BURDEN AS TRUSTEE OF BURDEN IRR EV OCABLE TRUST v. HPD (2022)

Review of respondent Glenridge Mews Condominium's motion to dismiss pursuant to CPLR §§ 3211(a)(2), (3), and (7) and petitioner's cross-motion pursuant to CPLR § 3025 to amend the petition.

The decision and order on respondent's motion and petitioner's cross-motion (consolidated for determination herein) is as follows.

PROCEDURAL HISTORY

This HP action for an order to correct and other relief was commenced by order to show cause in March 2022. Following an initial adjournment, respondent Glenridge Mews Condominium (hereinafter “Glenridge Mews”), through counsel, made a motion to dismiss and petitioner (appearing pro se) made a cross-motion to amend the petition to add a petitioner, Elizabeth Burden, and to “include pertinent section of the applicable laws of the city and state of New York.” After the motions were briefed, the court heard argument on them on April 13, 2022. Upon the conclusion of the argument, the court reserved decision.

RESPONDENT'S MOTION

Respondent Glenridge Mews seeks dismissal pursuant to multiple subsections of CPLR § 3211(a). Glenridge Mews first argues that the court lacks subject matter jurisdiction (CPLR § 3211(a)(2)) because there is no “landlord-tenant relationship” between the parties. Glenridge Mews annexes the deed for the subject condominium unit (showing Crystal Burden as Trustee of the Burden Irrevocable Trust as owner) and the by-laws in support. Petitioner does not specifically address this basis for dismissal but asserts in her affirmation in support of her cross-motion and in opposition to respondent's motion that Glenridge Mews is an “owner” as defined by the Housing Maintenance Code and that it can be compelled to repair common area conditions.

It is well established that this court is “vested with subject matter jurisdiction over housing matters by statute (NY City Civ. Ct. Act § 110).” 170 West 85th Street Tenants Ass'n v. Cruz, 173 A.D.2d 338, 339, 569 N.Y.S.2d 705 [1st Dept. 1991]; see also 433 West Assocs. v. Murdock, 276 A.D.2d 360, 360-361, 715 N.Y.S.2d 6 [1st Dept. 2000]; 716 Realty, LLC v. Zadik, 38 Misc. 3d 139[A], 2013 N.Y. Slip Op. 50194[U], 2013 WL 530380 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2013]. Moreover, while Glenridge Mews is correct that the relevant appellate caselaw has foreclosed statutory warranty of habitability claims between condominium owners and associations (see Frisch v. Bellmarc Mgt., Inc., 190 A.D.2d 383, 597 N.Y.S.2d 962 [1st Dept. 1993]), the Appellate Division, Second Department has recognized that condominiums are not exempted from “the generally beneficial requirements of Article 27 of the [N.Y.C.] Administrative Code.” Board of Managers v. Lamontanero, 206 A.D.2d 340, 341, 616 N.Y.S.2d 744 [2d Dept. 1994]. Nonetheless, NYC Admin. Code § 27-2115(n), which became effective on February 5, 2018, specifically provides that the harassment provisions of the Housing Maintenance Code “shall not apply where the owner of record of a dwelling unit owned as a condominium, or those lawfully entitled to reside with such record owner, resides in such condominium unit[.]” See Kossoff v. 910 Fifth Ave. Corp., 2021 N.Y. Slip Op. 32737[U], *3, 2021 WL 6051421 [Sup. Ct., N.Y. County 2021]. As the deed annexed by Glenridge Mews establishes that petitioner is the record owner of the subject condominium unit and the petition pleads that petitioner is the “residential” tenant/shareholder (¶ 7), the court lacks subject jurisdiction of over the harassment claims (under the Housing Maintenance Code) raised in the petition.¹ Accordingly, the prong of Glenridge Mews’ motion made pursuant to CPLR § 3211(a)(2) is granted to the extent that petitioner's harassment claims made pursuant to NYC Admin. Code § 27-2005(d) are dismissed.

Glenridge Mews next moves to dismiss pursuant to CPLR § 3211(a)(3), upon the assertion that petitioner lacks standing and/or capacity to proceed herein. In the Second Department, “lack of standing” has been interpreted as being within the ambit of CPLR § 3211(a)(3). See Wilmington Sav. Fund Socy., FSB v. Matamoro, 200 A.D.3d 79, 89, 156 N.Y.S.3d 323 [2d Dept. 2021]. Nonetheless, it is the movant's burden “to establish, prima facie, the [petitioner's] lack of standing as a matter of law.” Id. at 90, 156 N.Y.S.3d 323. Glenridge Mews’ main argument under CPLR § 3211(a)(3) is that since petitioner does not reside in the subject condominium unit, she does not have standing to proceed herein. Under the Housing Maintenance Code, a “lawful occupant or group of lawful occupants” may apply to this court for an order to correct violations. See NYC Admin. Code § 27-2115(h)(1). The Code does not require a person to be in actual physical possession to seek an order to correct. See e.g. Parker v. 92-98 Morningside Av LLC, 2003 NY Misc LEXIS 2066 [Civ Ct, NY County, Sept. 10, 2003, Index No. 000181/2003].

Glenridge Mews also argues that petitioner is the “owner” of the subject unit and that it (Glenridge Mews) is a “non-owner.” While this is technically correct, various courts have held that the Housing Maintenance Code can nonetheless be enforced against condominium associations for common-area conditions. See e.g. Pershad v. Parkchester South Condo., 174 Misc. 2d 92, 95, 662 N.Y.S.2d 993 [Civ. Ct., Bronx County 1997], affd 178 Misc. 2d 788, 683 N.Y.S.2d 708 [App. Term, 1st Dept. 1998]; Smith v. Parkchester N. Condominium, 163 Misc. 2d 66, 67, 619 N.Y.S.2d 523 [Civ. Ct., Bronx County 1994]; Gazdo Properties Corp. v. Lava, 149 Misc. 2d 828, 831-833, 565 N.Y.S.2d 964 [Civ. Ct., Kings County 1991], appeal dismissed 150 Misc. 2d 1019, 579 N.Y.S.2d 305 [App. Term, 2d Dept., 2d & 11th Jud. Dists. 1991]; see also Leprovost v. Pitts, 46 Misc. 3d 1216[A], 2015 N.Y. Slip Op. 50102[U], *5, 2015 WL 518420 [Civ. Ct., N.Y. County 2015] [“Owner” under the Housing Maintenance Code includes “a condominium association”]; Gerald Lebovits and James P. Tracy, Cooperatives and Condominiums in the New York City Housing Court, 36-2 NY State Bar Real Property Law Journal 45 [Spring 2008] [“The Housing Part also has jurisdiction over condominium common areas and to condominium units that a unit owner leases.”]. The court also finds significance in the City Council's amendment of the Housing Maintenance Code to specifically exempt condominium and cooperative owners and shareholders from the harassment provisions of the Code but not similarly exempting them from the housing standards enforcement provisions. See e.g. Matter of Walsh v. New York State Comptroller, 34 N.Y.3d 520, 524, 122 N.Y.S.3d 209, 144 N.E.3d 953 [2019] [“A statute ‘must be construed as a whole and [ ] its various sections must be considered together and with reference to each other.’ ”] [Quoting Matter of New York County Lawyers’ Assn. v. Bloomberg, 19 N.Y.3d 712, 721, 955 N.Y.S.2d 835, 979 N.E.2d 1162 [2012]]; Kimmel v. State of New York, 29 N.Y.3d 386, 394, 57 N.Y.S.3d 678, 80 N.E.3d 370 [2017] [“Where the legislature has addressed a subject and provided specific exceptions to a general rule the maxim expressio unius est exclusio alterius applies (see McKinney's Cons Laws of NY, Book 1, Statutes § 240 at 412-413 [’where a statute creates provisos or exceptions as to certain matters the inclusion of such provisos or exceptions is generally considered to deny the existence of others not mentioned’])”].² For each of these reasons, the court finds Glenridge Mews has not demonstrated, prima facie, that petitioner lacks capacity and/or standing to proceed herein with regard to the portion of the petition seeking an order to correct and related remedies under the Housing Maintenance Code. Accordingly, the prong of Glenridge Mews’ motion made pursuant to CPLR § 3211(a)(3) is denied.

Finally, Glenridge Mews moves pursuant to CPLR § 3211(a)(7) to dismiss on the basis that petitioner has filed to state a cause of action. On a CPLR § 3211(a)(7) motion, the petition “is to be afforded a liberal construction, the facts alleged are presumed to be true, the [petitioner] is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory.” Watts v. City of New York, 186 A.D.3d 1577, 1578, 129 N.Y.S.3d 340 [2d Dept. 2020]. When evidentiary material is offered and considered on such a motion, “the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one[.]” Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 [1977].

The court has already found that petitioner lacks a cause of action for harassment under the Housing Maintenance Code (see NYC Admin. Code § 27-2115(n)), so the motion is granted to the extent that the harassment claims are dismissed. As far as the claim seeking an order to correct pursuant to the Housing Maintenance Code is concerned, the alleged conditions related to leaks and a vermin infestation, when afforded a liberal construction, constitute common-element conditions of the subject condominium that, if proven as violations, would be the basis for an order to correct under NYC Admin Code § 27-2115(h)(1). See NYC Admin. Code §§ 27-2017.4 and 27-2027. The by-laws annexed by Glenridge Mews provide that “[a]ll maintenance, repairs and replacements to the [c]ommon [e]lements shall be made by the Board of Managers[.]” (Exhibit B, Section 10(b). Similarly, Real Property Law § 339-ee(1) (Condominium Act) provides that “the board of managers shall be deemed the person in control of common elements, for purposes of any law or code[.]” The court need not determine whether the conditions pleaded are actually common-element violations in the context of the instant motion to dismiss. A determination of whether the conditions exist and whether they are violations of the Housing Maintenance Code shall be made at trial. See Pershad, 174 Misc. 2d at 95-96, 662 N.Y.S.2d 993; Kahn v. 230-79 Equity, Inc., 2 Misc. 3d 140[A], 2004 N.Y. Slip Op. 50302[U], 2004 WL 869746 [App. Term, 1st Dept. 2004]. For each of these reasons, Glenridge Mews’ motion to dismiss for failure to state a cause of action is granted only to the extent that the petitioner's harassment claims are dismissed.

PETITIONER'S CROSS-MOTION

Petitioner's cross-motion seeks to amend the petition pursuant to CPLR § 3025, in order to add Elizabeth Burden as a petitioner and in order to include reference to certain laws of the city and state of New York. Glenridge Mews opposes the cross-motion in its entirety. Pursuant to CPLR § 3025(b), “[a] party may amend his or her pleading ․ at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including granting of costs and continuances.” See e.g. Faiella v. Tysens Park Apts., LLC, 110 A.D.3d 1028, 1029, 975 N.Y.S.2d 71 [2d Dept. 2013] [“Leave to amend a pleading should be freely given absent prejudice or surprise to the opposing party, unless the proposed amendment is palpably insufficient or patently devoid of merit.”]. Moreover, “[a]ny motion to amend shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading.” CPLR § 3025(b). Although the affirmation in support of the cross-motion states that Elizabeth Burden has resided at the subject property for the past 32 years, the proposed amended pleading does not actually include allegations regarding her status as a party (in fact, does not name her as a party in the body of the proposed amended petition or caption), except incidentally in describing alleged violations of the Housing Maintenance Code. Insofar as petitioner is permitted to proceed on her claim for an order to correct, the court sees no potential merit in also adding Elizabeth Burden as a party, especially when the proposed amended pleading does not adequately allege her party status.

With regard to the references to laws that petitioner seeks to add to her petition, it is noted at the outset that every court shall take judicial notice without request of all public statutes of “every state and of all local laws and county acts” pursuant to CPLR § 4511(a) and may take judicial notice without request of “ordinances and regulations of officers, agencies or governmental subdivisions of the state or of the United States” pursuant to CPLR § 4511(b). See Rothstein v. City Univ. of New York, 194 A.D.2d 533, 534-535, 599 N.Y.S.2d 39 [2d Dept. 1993] [Lower court's sua sponte decision to take judicial notice of New York City Building Code provisions was authorized by CPLR § 4511(b)].³ Here, the bulk of the additional legal references in the proposed amended petition (as a part of Paragraph 12) are unlabeled and without reference to any specific law. Since the court is already permitted to take judicial notice of the laws, ordinances, and regulations that are relevant to petitioner's surviving claims, there is no basis for the proposed amendment, which mostly consists of an incomplete, unidentified portion of a law. As a result, petitioner's cross-motion is denied in its entirety.

CONCLUSION

In accordance with the foregoing determinations, respondent Glenridge Mews’ motion to dismiss is granted to the extent that petitioner's claims related to harassment under the Housing Maintenance Code are dismissed. The motion to dismiss is otherwise denied. Petitioner's cross-motion to amend the petition is denied.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

FOOTNOTES

1.   Without specifically assessing the merits of the cross-motion, the proposed additional petitioner, Elizabeth Burden, would be a person “lawfully entitled to reside with” petitioner for the purposes of NYC Admin. Code § 27-2115(n). See Article VI, Section 11 of By-Laws annexed as Exhibit B to Glenridge Mews’ motion; Real Property Law § 339-h.

2.   The provisions of the NYC Administrative Code are subject to usual rules of statutory interpretation. See Lynch v. City of New York, 35 N.Y.3d 517, 520, 134 N.Y.S.3d 297, 159 N.E.3d 213 [2020].

3.   NYC Admin. Code § 1-104(a) also provides a basis for courts to take judicial notice of the Administrative Code.

Clinton J. Guthrie, J.