DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF the CITY OF NEW YORK, Petitioner, v. SIMPLY BETTER APARTMENT HOMES, NYSANDY12 CBP9 LLC, Matthew Becker, Respondents.
Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in r of this motion.
Notice of Motion with Affirmation & Affidavit Annexed [With Exhibits A-G] 1
Affirmation in Opposition [With Exhibit A] 2
Reply Affirmation [With Exhibits A-C] 3
After the motion was marked submitted on May 21, 2020, upon the parties' consent to waive oral argument, and upon the foregoing cited papers, the decision and order on this motion is as follows:
FACTUAL AND PROCEDURAL HISTORY
This proceeding was commenced by the Department of Housing Preservation and Development of the City of New York (“HPD”) against respondents NYSANDY12 CBP9 LLC (the “Owner”), Simply Better Apartment Homes (the “Managing Agent”) and Matthew Becker (the “Head Officer”) seeking an order to correct, civil penalties and an order to compel.1 The basis of the proceeding is, essentially, the alleged failure of respondents to correct the violations placed against the subject premises in July 2019 and to comply with the vacate orders, also effective July 2019, directing correction of conditions in the subject premises.2
The subject premises at issue herein are four adjacent buildings known as and located at 1464, 1466, 1472 and 1474 Watson Avenue, Bronx, New York 10472 (the “subject premises”).3
The violations and orders to vacate at issue in this proceeding arose from a fire that took place at the subject premises on or about July 12, 2019.4
This proceeding commenced by Order to Show Cause and Petition on or about September 25, 2019 and respondents interposed an Answer on or about November 4, 2019.5 The matter first appeared on the court's calendar on November 6, 2019 and was adjourned several times, including for motion practice.
Respondents interpose the instant motion seeking dismissal of the portions of the petition seeking an order to correct and an order to compel compliance pursuant to CPLR §§ 3211(a)(2), (a)(7) and (a)(10) for lack of subject matter jurisdiction, failure to state a cause of action, and failure to name a necessary party. Respondents also seek discovery and dismissal of the civil penalties portion of the petition. The motion was fully briefed by March 4, 2020, but the proceeding was adjourned again to March 17, 2020.
Due to the ongoing coronavirus pandemic and the closing of in-person operations in all New York City housing courts, except for emergency applications, the motion was marked submitted without oral argument on or about May 21, 2020, upon consent of the parties.
As the parties have now settled the civil penalties portion of the petition,6 this court shall not address those portions of respondents' motion.
Respondents aver that the petition must be dismissed pursuant to CPLR § 3211(a)(7) as the petition fails to state a cause of action for several reasons. First, the petition states only one address for the subject premises, 1466 Watson Avenue, but does not state the addresses of the three other buildings.
Respondents further allege that the petition must be dismissed because the notices of violation are insufficiently vague as they do not list specific conditions to be corrected in each unit or the locations of repairs, but instead direct respondents to “abate the nuisance consisting of fire damage in the entire apartment.”7 In addition to the alleged insufficient notices of violation, respondents argue that the vacate orders further confuse the issue and conflict with the notices of violation as the vacate orders do list specific conditions and not “the entire apartment.”
Respondents also argue that dismissal is warranted as the notices of violation only cite to a statute discussing a landlord's general duty to repair and maintain rather than a provision of the Housing Maintenance Code relating specifically to fire damage and obligation to make such repairs. The general repair statute cited in the notices of violation is alleged to be inapplicable to fire damage as the damage was not caused by respondents and was out of their control.
Next, respondents aver that the petition must be dismissed pursuant to CPLR § 3211(a)(2) for lack of subject matter jurisdiction. Respondents reason that because the notices of violation are so vague, the petition actually requires respondents to “restore” the entire subject premises to their pre-fire state or to order correction of conditions with no violation. Respondents state that the court does not have jurisdiction to order restoration of the entire subject premises or correction of building systems, such as a plumbing system, but only to order correction of specific conditions found to be violations.
The last argument set forth by respondents in support of dismissal is pursuant to CPLR § 3211(a)(10), failure to join a necessary party. Respondents argue that because there are violations directing respondents to provide “electric service to the fixtures at all electrical light fixtures and electrical wall outlets” and to provide “gas to the fixtures at range in the kitchen,” 8 Consolidated Edison (“ConEd”) is a necessary party. Respondents reason that ConEd is the utility company that controls these services and as such it is not up to them to restore services. In the alternative, respondents claim ConEd must be impleaded in order to afford complete relief.
Finally, respondents seek an order granting them discovery if dismissal is not granted. Respondents argue that there is ample need for discovery due to the vague notices of violation, the contradictions in the vacate orders with the notices of violation, the fact that the vacate orders fail to specify that HPD actually inspected the apartments for which gas and electrical violations have been placed, the fact that the vacate orders do not mention fire damage in certain apartments for which such notices of violation were issued and the fact that the vacate orders and notices of violation refer to 48 units despite the fact that the subject premises contain only 46 units. Respondent reason that, because HPD will have to prove at trial that it inspected each apartment and common area and prove that there is fire damage throughout each apartment, they are entitled to discovery to obtain proof that the inspections were done, as well as the dates and times of each inspection and additional information regarding said inspections.
In opposition, HPD argues that it has stated a cause of action for correction of violations and an order to compel compliance with the vacate orders. As a cause of action is read broadly as a “right to sue,” HPD argues it has such right pursuant to Sec. 27-2120 and Sec. 27-2140 of the Housing Maintenance Code (“HMC”), which authorize an order to correct open violations and an order to compel enforcement of a vacate order, respectively.
HPD further avers that the court does have subject matter jurisdiction over this proceeding as a matter of law. Contrary to respondents' contention, HPD states it is not seeking restoration of the subject premises, but merely the correction of open violations and enforcement of the repairs in the vacate orders. Finally, HPD claims that a fact-specific determination is needed to determine the scope of repairs required in this proceeding, which cannot be made on a motion to dismiss.
As to the failure to name a necessary party, HPD reasons that all necessary parties, owners of the subject premises, respondents here, have been named and ConEd is not a necessary party. As respondents are the owners of the subject premises, it is their duty to keep the premises in good repair pursuant to HMC Sec. 27-2005. Simply because ConEd may be collaterally involved, as the utility company, in restoring gas and electricity does not make ConEd a necessary party. If this were the case, HPD argues, every third party involved in making repairs, such as exterminators, mold abatement companies, etc. would be required to be joined as parties in every HP proceeding.
Finally, HPD opposes discovery, arguing that respondents have not shown ample need where it is undisputed that a fire occurred which caused substantial damage to the subject premises as well as necessitating vacate orders. HPD characterizes the requests for proof of inspections, identities of inspectors and other discovery as “ancillary” and “delay tactics” where respondents admit that the alleged deficiencies in the notices of violations or vacate orders did not cause respondents' failure to make the necessary repairs. In fact, HPD avers that respondents made it clear in the Head Officer's affidavit that the failure to make repairs were not caused by any confusion or vagueness in the violation notices or vacate orders but by circumstances outside of their control. As such, discovery is not necessary and there is no ample need for same.
Failure to State a Cause of Action
When considering a motion under CPLR § 3211, the court must afford the pleadings a liberal construction. The court must deem the facts alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. (Leon v. Martinez, 84 NY2d 83, 87-88, 614 NYS2d 972 ). In assessing a motion under CPLR § 3211(a)(7), “the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one.” (Guggenheimer v. Ginzburg, 43 NY2d 268, 275, 401 NYS2d 182 ; see also Rovello v. Orofino Realty Co., 40 NY2d 633, 636, 389 NYS2d 314 ).
Thus, “a motion to dismiss made pursuant to CPLR § 3211 (a) (7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law.” (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38, 827 NYS2d 231 [2nd Dept 2006]; see also Leon v. Martinez, 84 NY2d at 87-88; 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 152, 746 NYS2d 131 ).
First, respondents' argument that the petition is insufficient due to the fact that only one address is listed on the petition, while the notices of violation and the vacate orders refer to all four buildings at the subject premises, must fail.
As noted above, although the petition lists the address of the subject premises as only 1466 Watson Avenue, Bronx, New York 10472, the HPD Multiple Dwelling Registration lists the Building Range as 1464-1474. 9 Furthermore, upon review of the Deed for 1466 Watson Avenue on the ACRIS website, the court finds that all four buildings at issue here, that make up the subject premises, were sold to the Owner under one conveyance document, a Bargain and Sale Deed dated December 23, 2015. 10 The Deed further grouped the four buildings as one parcel under the same block and lot, Block 3711, Lot 40.
As such, any alleged defect in the address listed in the petition is de minimis and, in any case, amendable so that dismissal is not required. Indeed, the law is clear that a petitioner may move to amend the petition to conform to the proof at trial. (see CPLR § 2001; Blenheim LLC v. Il Posto LLC, 14 Misc 3d 735, 738, 827 NYS2d 620 [Civ Ct, New York County 2006]).
As to respondents' argument that the notices of violation are vague and that the vacate orders are inconsistent with the notices, thereby requiring dismissal, the court finds this argument unpersuasive.
Although it is a defense to an order to correct that the notice of violation is facially insufficient, (D'Agostino v. Forty Three E. Equities Corp., 12 Misc 3d 486, 489-490, 820 NYS2d 468 [Civ Ct, New York County 2006]), the court does not find that to be the case here.
Under the CPLR, the sufficiency of a pleading to state a cause of action depends upon “whether or not there was substantial compliance with [CPLR] section 3013, which requires that “[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences of series of transactions or occurrences intended to be proved and the material elements of each cause of action or defense.” (Foley v. D'Agostino, 21 AD2d 60, 62, 248 NYS2d 121 [1st Dept 1964]).
Here, the substantial compliance under CPLR § 3013 required to give notice of the conditions in need of repair requires compliance with HMC § 27-2115(b). This statute lists the requirements of a proper notice of violation as “identify the condition constituting the violation, the provision of law applicable thereto, the department's order number, the classification of the violation according to its degree of hazard, the time for certifying the correction of such violation, and the amount of the possible penalty.” The notices of violation at issue here contain all of the above requirements, respondents' argument notwithstanding.
That the notices of violation pertaining to the fire damage do not list every single item that needs to be repaired in every single room of every single unit of each building that make up the subject premises is not dispositive.
In fact, as found by the court in DHPD v. NYSANDY12 CPB19 LLC et al, 61 Misc 3d 1219(A) at 3, 111 NYS3d 522 [Civ Ct, Bronx County 2018], a case cited by respondents themselves, “eradication of fire damage to a structure may be complex in its application but the removal of smoke and soot, repair of walls, ceilings, floors, windows, doors, plumbing, fixtures, are easily anticipated consequences.” As such, it is not necessary that HPD list every possible task respondents may need to undertake in each and every unit in order for the notices of violation to properly identify and give notice of what is in need of repair.
Like in DHPD v. NYSANDY12 CPB19 LLC et al, Index No. 70714/2017 at 2, unpublished opinion [Civ Ct, Bronx County, Feb. 4, 2019] [Hon. Bryan, J.], respondents here have provided no authority for the proposition that “an exhaustive list of each item is necessary to satisfy the [fire damage] violations” and such a standard would be “unduly burdensome.”
Respondents are more than capable of exercising their “professional expertise and common sense” to determine what work has to be done in each unit in order to “abate the nuisance consisting of fire damage in the entire apartment.” (see Id.)
This is especially true here for two reasons. First, the vacate orders contain precise additional information of the items in need of repair in each unit in order to abate the fire damage. The vacate orders specify that certain enumerated units contain damage to the walls and ceilings, and certain other units have broken windows, all caused by fire damage.11
The vacate orders and notices of violation are annexed to the petition, 12 and therefore must be read together with the allegations in the petition to determine whether the petition states a cause of action. The law is clear that documents annexed and incorporated into a pleading can provide the required information to make an otherwise deficient pleading sufficient. (see Jewish Theol. Seminary of Am. v. Fitzer, 258 AD2d 337, 685 NYS2d 215 [1st Dept 1999]).
Where respondents are guided not only by the notices of violation, which requires respondents to abate the fire damage that is within their expertise and common sense to determine, but also by the specific issues listed in the vacate orders incorporated into the petition, the specificity requirement of CPLR § 3013 has been amply met. As such, the petition states a sufficient cause of action for an order to correct violations and comply with the vacate orders and dismissal pursuant to CPLR § 3011(a)(7) is not warranted.
Furthermore, respondents allege in their affidavit in support of the motion that they “immediately responded to the emergency situation at the building,” have been making “diligent efforts toward compliance with the violations and the vacate order,” and have been “diligently working to determine the extent of the necessary repairs and the structural soundness of the building after the fire, as well as obtaining proposals, funds and labor.” 13 The affidavit further states that the respondents “immediately began coordinating with its staff, insurance company, and contractors to make emergency repairs and obtain estimates for further construction and repairs.”14
The notices of violation and vacate orders contain sufficient particularity to provide respondents notice of the conditions in need of correction, as underscored by the fact that respondents admit they have been working to make extensive repairs to the subject premises since the fire and even engaged contractors and obtained estimates for work to be done.
As to respondents' argument that the notices of violation are vague and require dismissal of the petition because the notices to not cite to a specific provision of the law requiring respondents to make the stated repairs, the court finds this contention to be without merit.
The fire damage violations each cite to HMC § 27-2005 and Multiple Dwelling Law (“MDL”) § 309. Similarly, the gas and electric violations each cite to HMC § 27-2070 and HMC §§ 27-2037 & 27-2038, respectively. As such, not only does each notice of violation properly cite to a specific statutory provision, as required under HMC § 27-2115(b), but each statute is applicable to the violation for which it is cited.
The gas violations order respondents to “provide an adequate supply of gas to the fixtures at range in the kitchen.” 15 The cited statutory provision, HMC § 27-2070, states in subsection (a) that “[t]he owner of a multiple dwelling shall provide every kitchen and kitchenette therein with gas or electricity or both for cooking.”
Similarly, the electrical violations ordered respondents to “provide a safe and adequate supply of electric service to the fixtures at all electrical light fixtures and electrical wall outlets in the entire apartment.”16
HMC § 27-2037 requires owners to “equip every dwelling for lighting by electricity,” and “install and maintain such receptacle outlets as may be required by the electrical code.” HMC § 27-2038, dealing with electric lighting fixtures requires in public area, states in subsection (a) that owners must provide a certain level of illumination “from electric lighting fixtures at all times of the day and night” and “install, position, operate and maintain sufficient electric lighting fixtures to assure that the required illumination level is maintained.” Subsection (b) requires owners to “keep electric lighting fixtures on continuously, during the day as well as at night.”
Finally, the fire violations require Respondents to “abate the nuisance consisting of fire damage in the entire apartment.”17
The notices of violation for the fire damage cite to HMC § 27-2005 and MDL§ 309. HMC § 27-2005(a) imposes a general duty on all owners of multiple dwellings to “keep the premises in good repair.” MDL§ 309(a) declares that “[w]hatever is dangerous to human life or detrimental to health,” shall be considered an unlawful nuisance, while MDL§ 309(c) allows HPD to “order or cause such nuisance to be removed, abated, suspended, purified, altered, repaired or otherwise improved as the order shall specify.”
These statutes, working together, are properly applicable to the fire violations at issue here and grant HPD the power to order respondents to abate the fire damage. Because respondents have a general duty to keep the subject premises in good repair, they must make repairs of any kind, whether specified in the HMC or not.
The fact that there is not a specific provision in the HMC requiring owners to repair fire damage is irrelevant. This court is not aware of any authority requiring a separate and distinct statute for every type of repair an owner may be responsible for, nor do respondents point to any such authority. Indeed, such a requirement would be unduly burdensome as the list of possible repairs would be impossibly exhaustive.
It is sufficient that respondents are under a general obligation to make repairs and maintain the subject premises in good condition. Such requirement is triggered by substantial fire damage throughout the subject premises.
Nor does HMC § 27-2005 require the conditions in need of repair to be caused by respondents. If this were the case, owners would never be responsible for routine damage caused by tenants, which is certainly not the case. Owners are responsible for repairs regardless of how the damage was caused, or by whom. (see DHPD v. Metropolitan Ave. Corp., 148 Misc 2d 956, 959, 960, 561 NYS2d 531 [Civ Ct, Kings County 1990])
In fact, the Appellate Division, First Department has held that “a landlord of a multiple dwelling has the obligation to maintain residential premises ‘fit for human occupation throughout the lease term’. Furthermore, this obligation of a landlord to keep residential property in good repair is imposed by statute (Multiple Dwelling Law § 78; Administrative Code of City of New York § 27-2005).” (Eyedent v. Vickers Management, 150 AD2d 202, 204, 541 NYS2d 210 [1st Dept 1989], citing Park W. Mgt. Co. v. Mitchell, 47 NY2d 316, 327, 418 N.Y.S.2d 310 ).
The repairs at issue in Eyedent concerned the collapse of a wall and resultant vacate orders. Despite no specific statute requiring the owner to repair the collapsed wall, the Appellate Division found the general repair statute sufficient.
In conjunction with the HMC general repair provision, MDL § 309 further underscores respondents' duty to comply with HPD's orders to abate the fire damage. Such extensive fire damage, as admitted by both parties herein, is dangerous and detrimental to human life, especially where the damage is so extensive as to require orders to vacate. Therefore, HPD is within its power to declare the fire damage a nuisance and order its abatement by respondents.
As such, HPD has stated a cause of action for an order to correct violations and to compel compliance with the vacate orders. Respondents' caselaw in support of its motion is unpersuasive and, in fact, contrary to their argument.
While the court in DHPD v. NYSANDY12 CPB19 LLC et al, supra, did correctly find that a vague, insufficient notice of violations is an appropriate defense, respondents fail to mention that the court twice upheld the notices of violation therein as proper, including fire damage violations that appear to be identical to the ones at issue here. (see DHPD v. NYSANDY12 CPB19 LLC et al, 61 Misc 3d at 4-5; DHPD v. NYSANDY12 CPB19 LLC et al, Index No. 70714/2017 at 2, unpublished opinion [Civ Ct, Bronx County, Feb. 4, 2019] [Hon. Bryan, J.] )
Respondents argue that DHPD v. NYSANDY12 CPB19 LLC et al, supra, did not involve the additional layer of inconsistencies between the notices of violation and vacate orders or the fact that 48 violations were issued for a 46 unit subject premises, as here.
However, while these factors may prevent petitioner from prevailing at trial or a motion for summary judgment made after completion of discovery, they are not proper considerations in this motion to dismiss.
In the context of the motion to dismiss, courts have consistently held that it is of no present concern whether the petitioner will be able to prove the allegations in the pleading. (see Howard Stores Corp. v. Pope, 1 NY2d 110, 114, 150 NYS.2d 792 ; NY County Dist. Attorney's Off. v. Oquendo, 147 Misc 2d 125, 131, 553 NYS2d 973 [Civ Ct, New York County 1990]).
In another case cited by respondents, DHPD v. Kings and Queens Holdings LLC, et al, Index No. 2332/2012, unpublished opinion [Civ Ct, Kings County, Jun. 30, 2017] [Hon. Chinea, J.], the court the court granted summary judgment to the respondents only after completion of discovery which revealed that the HPD inspector had, at best, only inspected about half of the units it placed fire damage violations for. (see Id. at 2-3)
Because the respondents showed, through conclusive discovery evidence, that many of the purported inspections did not occur, the reliability of the electronic record of the inspections was called into question and could not be used to sustain the violations. (see Id. 3-4). It was only upon this conclusive showing that the court granted summary judgment.
However, the court was clear that “[t]he electronic record may be sufficient when opposing a motion to dismiss.” (see Id. at 4). Here, where no discovery has been completed and respondents present no evidence that the violations have not properly been placed, the court cannot look past the four corners of the pleading nor can it make a determination on the merits of HPD's cause of action. As such, respondents' own caselaw establishes dismissal is inappropriate.
Lack of Subject Matter Jurisdiction
Respondents argue that this court lacks subject matter jurisdiction over this proceeding seeking an order to correct violations and an order to compel compliance with the vacate orders.
The basis of respondents' argument is that the notices of violation are vague and therefore compliance would entail restoration of the entire subject premises, which the court has no jurisdiction to order.
It is black letter law that a civil court is vested with subject matter jurisdiction over housing matters by statute. (see 170 W. 85th St. Tenants Ass'n v. Cruz, 173 AD2d 338, 339, 569 NYS2d 705 [1st Dept 1991]). Courts have consistently held that “[s]ubject matter jurisdiction embraces those categories of actions which a court is empowered to adjudicate and those types of remedies which a court is authorized to grant,” and that parties cannot deprive a court of such subject matter jurisdiction, granted by statute. (see Katz Park Ave. Corp. v. Olden, 158 Misc 2d 541, 543, 601 NYS2d 757 [Civ Ct, New York County 1993]).
As such, it is axiomatic that Civil Court, and Housing Court in particular, is vested with subject matter jurisdiction over housing matters by statute. (see 170 W. 85th St. Tenants Ass'n v. Cruz, 173 AD2d at 339; Katz Park Ave. Corp. v. Olden, 158 Misc 2d at 543; see also NY City Civ. Ct. Act § 110).
Subject matter jurisdiction is granted to a court by Constitution or statute and litigants lack the power to grant or deprive a court of subject matter jurisdiction. (see Katz Park Ave. Corp. v. Olden, 158 Misc 2d at 543; 40 E. 68th St. Co. v. Habbas, 17 Misc 3d 1101(A), 2-3, 851 NYS2d 57 7 [Civ Ct, New York County 2007]).
Where the Civil Court has jurisdiction over the subject of the proceedings and jurisdiction of the person of the respondent as provided by law, the proceeding is not jurisdictionally defective. (see Jackson v. New York City Housing Auth., 88 Misc 2d 121, 2-3, 387 NYS2d 38 [App Term, 1st Dept 1976] [“A petition in a summary proceeding is no different than a pleading in any other type of civil case. A petition which may fail to state facts sufficient to constitute a cause of action or contains other pleading infirmities is capable of correction by amendment. Such a petition does not render the proceeding jurisdictionally defective.”] ).
In the instant proceeding, “section 110 (a) (4) of the Civil Court Act specifically provides the Housing Part with jurisdiction to issue injunctions and restraining orders for the enforcement of housing standards. Moreover, regardless of the relief originally sought by a party, section 110 (c) provides that ‘the court may recommend or employ any remedy, program, procedure or sanction authorized by law for the enforcement of housing standards, if it believes they will be more effective to accomplish compliance or to protect and promote the public interest’.” (D'Agostino v. Forty-Three E. Equities Corp., 12 Misc 3d at 489).
Given the foregoing, it is clear this court has jurisdiction over the subject matter of this proceeding.
Further, while respondents may be correct that this court cannot order “complete restoration of premises destroyed by fire,” (Arroyo v. Rosenbluth, 115 Misc 2d 655, 660, 454 NYS2d 610 [Civ Ct, Kings County 1982]), that is not the issue here.
As discussed at length above, the notices of violation and vacate orders are sufficient and not vague or overly broad. The petition seeks only an order to correct the specific violations listed therein, and compliance with the conditions in the vacate orders. 18 As the conditions listed therein are specific enough to give notice to respondents of what repairs need to be made, this case falls into the category of cases authorized by statute. (see Roth v. Kelley, 104 Misc 2d 463, 466, 428 NYS2d 389 [Civ Ct, Queens County 1980]; Arroyo v. Rosenbluth, 115 Misc 2d at 660 [“the Civil Court had jurisdiction and power to compel the landlords to remedy or remove defects or deficiencies.”] ).
Parkchester Alliance v. Parkchester Apartments Co., 180 Misc 2d 548, 691 NYS2d 548 (Civ Ct, Bronx County 1999), cited by respondents, does not require a different result. There, the court held that it could not order the repair or replacement of the entire plumbing system where no violations were placed for the plumbing.
However, the court did find that an order to correct the specific violations placed, such as “water leaks, deterioration of walls and ceilings, interruption of water service and defective electrical services related to the wet walls,” was appropriate. (see Parkchester Alliance v. Parkchester Apartments Co., 180 Misc 2d at 549, 552, quoting Various Tenants of 515 East 12th Street v. 515 East 12th Street, Inc., 128 Misc 2d 235, 237, 489 NYS2d 830 [Civ Ct, New York County 1985] [“The court has jurisdiction to order violations corrected.”] ).
As this court is empowered to order correction of specific violations, (see Fernandez v. Tsoumpas Bros. Co., 126 Misc 2d 430, 432, 481 NYS2d 948 [Civ Ct, New York County 1984]), there is subject matter jurisdiction over this proceeding and respondents' motion to dismiss upon this ground is denied.
Failure to Name a Necessary Party
Respondents argue for dismissal on the additional basis that ConEd is a necessary party as it is the entity responsible for restoring gas and electrical to the subject premises at the street level.
A necessary party is one who is necessary in order to accord complete relief in the action; it is a party who has such an interest in the litigation that the controversy cannot be settled without considering this party's interests. (see CPLR 1001(a); see also Joanne S. v. Carey, 115 AD2d 4, 7, 498 NYS2d 817 [1st Dept 1986]). A party is necessary and must be named if necessary to prevent said party from being adversely affected absent notice and an opportunity to be heard. (see Saratoga County Chamber of Commerce v. Pataki, 100 NY2d 801, 819-820, 766 NYS2d 654 ). “It also must be determined if the court's decision in the case, in the absence of the proposed parties, will have the element of finality for the protection of those before the court.” (Joanne S. v. Carey, 115 AD2d at 7).
Here, ConEd is not a necessary party based upon the foregoing criteria. Although ConEd's cooperation may be useful to respondents to ensure the gas and electrical are restored once any necessary repairs to electrical fixtures, electrical outlets, gas pipes, stoves, etc. have been made by respondents, it is not necessary to afford complete relief.
ConEd will not be adversely affected by any order to correct that the court may issue in this proceeding, neither will its rights be affected by this court ordering respondents to correct violations placed at the subject premises.
Similarly, failure to name or join ConEd does not prevent respondents from making the repairs and correcting the violations as required by law. (see HMC §§ 27-2037, 27-2038, 27-2070).
As such, the motion to dismiss for failure to name ConEd as a necessary party is denied. The court retains discretion to implead ConEd at a later time if, after respondents make all repairs required prior to restoration of gas and electrical service, respondents provide evidence (which may be provided in the form of affidavits, documentary evidence and the like) that ConEd failed to restore such services.
The availability of discovery in summary holdover proceedings is well established, and courts have consistently held that discovery is not “inherently hostile” to the nature of a summary proceeding. (see New York Univ. v. Farkas, 121 Misc 2d 643, 645, 468 NYS 2d 808 [Civ Ct, New York County 1983] quoting 42 West 15th Street Corp. v. Friedman, 208 Misc. 123, 125 [App Term, 1st Dept 1955]).
Leave to conduct discovery in a summary proceeding may be granted by leave of court pursuant to CPLR § 408 where “ample need” is shown by the party requesting disclosure. (see New York Univ. v. Farkas, 121 Misc 2d at 646; Mautner-Glick Corp. v. Higgins, 64 Misc 3d 16, 18 [App Term, 1st Dept 2019]). Courts will consider the following factors in determining whether the “ample need” standard is met:
“In determining whether ample need has been established, courts consider a number of factors, not all of which need to be present in every case, including whether the party seeking discovery has asserted facts to establish a claim or defense; whether there is a need to determine information directly related to the claim or defense; whether the requested disclosure is carefully tailored and likely to clarify the disputed facts; whether prejudice will result from granting leave to conduct discovery; whether any prejudice caused by granting a discovery request can be diminished by an order fashioned by the court for that purpose; and whether the court, in its supervisory role, can structure discovery so that pro se tenants in particular will be protected.”
(Mautner-Glick Corp. v. Higgins, 64 Misc 3d at 18-19, citing New York Univ. v. Farkas, 121 Misc 2d at 647).
First, it is important to note that HPD has not made any allegations in its opposition papers that it would be somehow prejudiced were discovery to be granted. As such, the court can only infer that HPD would not be prejudiced by the grant of discovery.
Respondents, on the other hand, have adequately stated ample need for discovery. Respondents argue that there are inconsistencies between the notices of violation and vacate orders, that certain violations are vague and to not adequately explain the scope of repairs, that violations were issued for 48 units when only 46 units exist, that it is questionable whether all units were, in fact, inspected, and that HPD will need to prove at trial that all units and common areas where violations were placed were inspected and that such conditions did, in fact, exist.
Discovery has been granted in similar cases where HPD has commenced a proceeding for an order to correct at a building damaged by fire. In such circumstances, “[q]uestions and discovery concerning the nature and extent of violations and damage as well as access to building or lack thereof, as well as the costs to repair and maintain the building against the value thereof are certainly subject to reasonable inquiry.” (Various Tenants of 665 New York Avenue v. Kings and Queens Holdings LLC, et al, Index Nos. 6645/2012, 6556/2012, 6576/2012, 6577/2012 & 6580/2012 at 2-3, unpublished opinion [Civ Ct, Kings County, Oct. 27, 2014] [Hon. Mundy, J.] ).
Respondents here are entitled to discovery regarding the names and badge numbers of the inspectors who expected the subject premises, the dates and times of the inspections, inspection reports and pictures taken by the inspectors during said inspections. As such, discovery is granted as to items 1, 5 and 7 of part I, and items 2, 6 and 7 of parts II and III of the discovery demand is granted as to the entirety of the item. (see Renaissance Equity Holdings LLC v. Webber, 61 Misc 3d 298, 309, 82 NYS3d 810 [Civ Ct, Kings County 2018] [“Although palpably improper demands may be struck as a whole, the better course in this instance is to craft an order narrowly tailored to the issue”] [internal citations omitted]; Estate of John D. Rockefeller, 2018 NYLJ LEXIS 1267, 12-13 [Surr Ct, New York County, 2018] ).
As to items 2, 3 and 4 of part I and items 3, 4, and 5 of parts II and III of the discovery demand, discovery is granted as to the portions of such demands seeking the dates and times of each inspection. As to the portions of said demands seeking “proof” of the time each such inspection occurred, the demands are vague and overbroad and otherwise improper for discovery as respondents do not allege what kind of proof they are seeking. Such portions of these demands are better suited for interrogatories where respondents can determine if such documentary proof exists and, if so, in what form.
As to items 6, 8, 9, 10, and 11 of part I and items 7, 9, 10, 11 and 12 of parts II and III, such demands are vague and overbroad, may constitute privileged material, and constitute improper fishing. Again, these items are better suited for interrogatories wherein respondents can determine if such documents exist and identify the exact documents sought, rather than asking for “all” or “any and all” such documents. Similarly, respondents can identify whether HPD has performed testing at the subject premises or consulted with experts in the first place. (see Ganin v. Janow, 86 AD2d 857, 858, 447 NYS2d 325 [2d Dept 1982] [“the alternative use of ‘all,’ ‘any,’ or ‘any and all’ renders the notice for discovery and inspection improper, since CPLR 3120 (subd [a], par 1, cl [i] ) requires that documents sought to be discovered be ‘specifically designated’ and ‘specified with reasonable particularity in the notice.’ Orderly disclosure procedures required that a party first ascertain identifiable documents before seeking discovery and inspection”] [internal citations omitted]; Kantor v. Kaye, 114 AD2d 782, 782-783, 495 NYS2d 42 [1st Dept. 1985] [“The use of the descriptions, “any”, “all” or “any and all” renders the notice for discovery and inspection improper Defendant has never ascertained by interrogatories, deposition or any other means that these items exist or that plaintiff is in possession of them. Without having first done so the notice is premature.”).
As to items 1 of parts II and III, discovery is denied as the documents sought, copies of the vacate orders, are not exclusively within HPD's possession, custody and control. In fact, such documents were not only annexed to the petition but also annexed by respondents to their motion.19
Finally, as to item 12 of part I and items 13 of parts II and III, discovery is denied as the demands are vague, overly broad and not narrowly tailored. Respondents' seeking “all other documents,” including “emails, reports, letters, writings and/or documents” relating to issuance of the notices of violation and vacate orders are improper on their face and do not seek to clarify the issues at trial, nor are they related to any claim or defense. (see generally, Parallax 109 v. Molina, 2002 NY Misc. LEXIS 918, 2002 NY Slip Op 50296(U) [App Term 1st Dept 2002]; see also Ganin v. Janow, 86 AD2d at 858; Kantor v. Kaye, 114 AD2d at 782-783)
As such, respondents are directed to serve HPD with interrogatories within fifteen (15) days of the date of this order. HPD is directed to respond to the document demands and interrogatories within thirty (30) days of service of the interrogatories.20
Finally, respondents are granted leave to depose the HPD inspectors who inspected the subject premises once such inspectors are identified and document discovery has been completed. The parties are directed to schedule depositions of HPD inspectors within twenty (20) days of HPD's response to the document demands and interrogatories.
Based on the foregoing, it is So Ordered, that respondents' motion to dismiss for failure to state a cause of action, lack of subject matter jurisdiction and failure to name a necessary party is denied in all respects. Respondents' motion for discovery is granted in part and denied in part. This matter is adjourned to August 17, 2020, 9:30 A.M, Part H, Room 590, for compliance.
Dated: June 4th, 2020
1. See Petition.
2. See Petition.
3. The Court notes that, although the petition lists the address of the subject premises as only 1466 Watson Avenue, Bronx, New York 10472, the HPD Multiple Dwelling Registration lists the Building Range as 1464-1474. See Exhibit A to Motion. Furthermore, the parties herein refer to all four buildings as part of the instant proceeding. Therefore, any alleged defect in the address listed in the petition is de minimis and, in any case, amendable.
4. See Motion at Par. 6
5. See Motion Exhibits C & D.
6. See Stipulation dated May 13, 2020.
7. See Motion Exhibit A.
8. See Motion Exhibit A.
9. See Motion Exhibit A.
10. See https://a836-acris.nyc.gov/DS/DocumentSearch/DocumentImageView?doc_id=201110200039500, last accessed June 1, 2020.
11. See Motion Exhibit B & Petition Exhibit 3.
12. See Petition Exhibits 1, 2 & 3.
13. See Affid. in Support of Motion at Par. 20-21.
14. See Affid. in Support of Motion at Par. 22.
15. See Petition Exhibits 1 & 2 and Motion Exhibit A.
16. See Petition Exhibits 1 & 2 and Motion Exhibit A.
17. See Petition Exhibits 1 & 2 and Motion Exhibit A.
18. See Petition and Exhibits 1, 2 & 3.
19. See Petition Exhibit 3 and Motion Exhibit B.
20. The court, of course, is aware that compliance with these dates may be complicated by the current coronavirus crisis. Any delays ought to be made known to opposing counsel so that needless motions are avoided.
Shorab Ibrahim, J.
Was this helpful?