Angela HAYES; Christine Bordeau, Petitioner, v. TOJU REALTY CORPORATION, and New York City Department of Housing Preservation and Development, Respondents.
The decision and order on this motion are as follows:
This is a tenant-initiated “HP proceeding.” After trial, the court issued an order (Smith, J., July 25, 2019) requiring Respondent Toju Realty Corp. to correct specified conditions that violate housing maintenance standards. Respondent Department of Housing Preservation and Development has moved for a finding of contempt against Toju and for the imposition of civil penalties.1 After a hearing on the motion and the submission of post-hearing memoranda, HPD's motion is denied.
HPD is sued as a respondent in the petition, but the petition does not assert any claim against HPD. Rather, Petitioners named HPD as a respondent as permitted (but not required) by NY City Housing Maintenance Code (Administrative Code of City of NY) § 27-2115(h) and (i), the statutes creating a private right of action for tenants to enforce the New York City Housing Maintenance Code.2 HPD never sought leave to file a cross-claim against Toju (cf. Hyde Park Assoc. v. Higgins, 191 A.D.2d 440, 594 N.Y.S.2d 57 [2d Dept. 1993] [leave required for cross-claim in a special proceeding]).
The City Council of the City of New York has given HPD several powers to be used for the enforcement of the HMC. HPD has the power to “issue notices and orders to secure compliance” with various housing standards, including the HMC and the Multiple Dwellings Law (HMC § 27-2091). It also has the power to hold hearings, subpoena witness, and compel the production of records, if for the purpose of enforcing the HMC (HMC § 27-2092). HPD can also commence actions in court to recover civil penalties (HMC § 27-2116) and to obtain an injunction requiring the correction of violations (HMC § 27-2120). There are others. But there is nothing in law to suggest that HPD is afforded the procedural privileges it implicitly seeks here, allowing it to act as a plaintiff/petitioner when it has not filed any petition or complaint and is merely appearing as a nominal party. Additionally, while Civil Court Act § 110(c) permits the court to “employ any remedy, program, or sanction authorized by law for the enforcement of housing standards,” it does not grant the court a “blank check.” For example, the statute's broad grant of power notwithstanding, the court may not order HPD to perform emergency repairs (Rubin v. Hevro Realty Corp., 84 Misc. 2d 1074, 376 N.Y.S.2d 834 [Sup. Ct., N.Y. County 1975], affd 55 A.D.2d 536, 389 N.Y.S.2d 1021 [1st Dept. 1976]). The court does not interpret the statute to permit derogation from standard rules of civil practice.
In other words, while HMC § 27-2115 does allow for HPD, at the option of the tenant, to be made a party to a tenant-initiated HP proceeding, unless HPD has filed a cross-claim against the owner there is nothing entitling HPD to seek civil penalties or to hold an owner in contempt after the court has issued an order after trial. The case may be different where, in lieu of a trial, the parties, including HPD, have entered into an agreement in which the owner explicitly agrees that HPD shall have the remedies sought herein. There is no such agreement here; HPD has no basis to seek civil penalties or to seek to hold Toju in contempt (cf. CPLR 5511; Carney v. Carney, 160 A.D.3d 218, 73 N.Y.S.3d 694 [4th Dept. 2018] [discussing whether a party is aggrieved such as giving it the right to appeal; “(t)he fact that the adjudication may remotely or contingently affect interests which the party represents does not give it a right to appeal” (internal quotation marks and brackets omitted)]).
This is the court's decision and order.
1. Petitioner previously moved for civil penalties and contempt based on Toju's failure to comply with the order, both motions which were granted.
2. The form provided by the court to pro se litigants commencing HP proceedings is pre-printed to name HPD as a respondent.
Michael Weisberg, J.