DEREK DE JONG ADRIAN DE JONG v. 3612 LLC RICK ELEZI (2026)

This action arises from a residential landlord-tenant dispute. Plaintiffs are tenants of an apartment in a building located at 3612 Broadway in Manhattan, owned by defendant 3612 Broadway Partners LLC. Plaintiffs allege that after taking possession of the leased premises in April 2022, they experienced serious building and apartment conditions, including open HPD and DOB violations, a rodent infestation, a dangerous stair condition, and other structural issues. (NYSCEF No. 1 at ¶¶ 24—46.)

Plaintiffs assert six causes of action for damages: breach of the implied warranty of habitability, breach of the right to quiet enjoyment, negligence, harassment, tortious interference with real property, and rent overcharge. (Id. at ¶¶ 55—103.)

Separately, a holdover-eviction proceeding is pending in the New York City Housing Court, brought by 3612 Broadway Partners against plaintiffs here. (NYSCEF No. 9 at 1.) In that proceeding, 3612 Broadway Partners seeks possession and a warrant of eviction, unpaid rent and use and occupancy, and attorneys' fees. (Id. at 2 ¶ 13.)

Defendants move to dismiss the current action under CPLR 3211 (a) (1), (a) (4), and (a) (7). The motion is granted in part and denied in part.

DISCUSSION

I. Defendants' Request for Dismissal under CPLR 3211 (a) (4)

Under CPLR 3211 (a) (4), a court may dismiss an action based upon another pending action when there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same. (Swartz v Swartz, 145 AD3d 818, 822 [2d Dept 2016].).

A "substantial" identity of parties generally exists "when at least one plaintiff and one defendant is common in each action." (Jaber v Elayyan, 168 AD3d 693, 694 [2d Dept 2019].) In this case, although the parties appear in reversed roles, there are multiple identical parties in both actions, satisfying this requirement.

Although both this action and the Housing Court proceeding relate to the same property, they arise from different wrongs and seek different relief. Here, plaintiffs rely on alleged housing conditions and seek damages in tort; the holdover proceeding, on the other hand, is based on plaintiffs' failure to pay rent and failure to vacate the premises, and seeks possession and payment of unpaid rent under the lease. (NYSCEF No. 9 at ¶¶ 6—7.) Dismissal under CPLR 3211 (a) (4) is therefore unwarranted. (See Brestin v LaBianca, 144 AD3d 722, 723 [2d Dept 2016].)

Defendants argue that this action should be dismissed because plaintiffs in the Housing Court action have made many of the same arguments that plaintiffs now rely on here. (See NYSCEF No. 19 at 6-7.) But it is undisputed that plaintiffs have raised those arguments in the Housing Court proceeding only as defenses, not also as counterclaims. The two sets of arguments thus do not support requests for the same relief. Defendants' contrary position would imply that plaintiffs would have to raise their current claims not only as defenses in the Housing Court proceeding but also as counterclaims, on pain of a CPLR 3211 (a) (4) dismissal if they failed to do so. That position cannot be reconciled with New York's permissive counterclaim rule. (See Berger v Berger, 84 AD2d 545, 545 [2d Dept 1981] [reversing grant of 3211(a)(4) dismissal, and holding that the "fact that there was another matrimonial action pending between the parties, and that plaintiff had asserted defendant's alleged adultery as an affirmative defense to that action, did not preclude her from commencing a separate action for divorce"].)

The request for dismissal under CPLR 3211 (a) (4) is denied.

II. Defendants' Request for Dismissal under CPLR 3211 (a) (1)

Under CPLR 3211 (a) (1), "A dismissal is warranted only if 'the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law' Thus, the defendant bears the burden of demonstrating that the proffered documentary evidence conclusively refutes the plaintiff's factual allegations." (7 Mansion, LLC v Calvano, 226 AD3d 730, 731—732 [2d Dept 2024].)

Defendants do not identify the documentary evidence on which this branch of their motion is based, nor show how any such documentary evidence conclusively refutes one or more of plaintiffs' claims. Dismissal under CPLR 3211 (a) (1) is therefore denied.

III. Defendants' Request for Dismissal under CPLR 3211 (a) (7) of the Claims Against Rick Elezi

On a CPLR 3211 (a) (7) motion to dismiss, the court must accept the facts as alleged in the complaint as true and determine, drawing inferences in plaintiffs' favor, whether the facts as alleged fit within a cognizable theory. (See Leon v Martinez, 84 NY2d 83, 87—88 [1994].) At the same time, "a cause of action cannot be predicated solely on mere conclusory statements" that are "unsupported by factual allegations." (Miller v Allstate Indem. Co., 132 AD3d 1306, 1307 [4th Dept 2015] [internal quotation marks omitted].)

Here, plaintiffs' complaint does not include factual allegations against defendant Rick Elezi. The complaint contains only a single reference to Elezi, identifying him as the founder and CEO of REM Residential. (NYSCEF No. 1 at ¶ 17.) Before a corporate officer acting as agent can be held liable individually to third parties, it must appear that the acts were other than the ordinary acts of corporate agents acting for their principal. (See Michaels v Lispenard Holding Corp., 11 AD2d 12, 14 [1st Dept 1960].) Here, plaintiffs do not allege that Elezi personally committed any tortious acts or engaged in conduct outside the scope of his role as a corporate officer. Accordingly, the claims against him are conclusory and insufficient as a matter of law. Defendants' request for dismissal of plaintiff's claims against Elezi is granted.

IV. Defendants' Request for Dismissal under CPLR 3211 (a) (7) of the claims against 3612 Broadway Partners

3612 Broadway seeks dismissal under CPLR 3211 (a) (7) of plaintiffs' first through fifth causes of action against it.

The complaint here pleads detailed, nonconclusory allegations establishing that defendant 3612 Broadway Partners owned, operated, and controlled the subject premises and failed to maintain it in a safe and habitable condition. Whether these allegations suffice to support a cause of action will be discussed in turn for each of plaintiffs' first five claims against 3612 Broadway Partners.

The first cause of action alleges breach of the implied warranty of habitability under Real Property Law § 235-b. That statute requires a landlord to warrant that leased residential premises are fit for human habitation, fit for the uses reasonably intended by the parties, and free from conditions dangerous to life, health, or safety. (Goldhirsch v St. George Tower, 142 AD3d 1044, 1045 [2d Dept 2016].) The complaint alleges 178 open HPD violations including Class C immediately hazardous violations, a persistent rodent infestation despite notice from multiple city agencies, a broken stairway railing that caused plaintiff Harding's hospitalization, and carbon monoxide leaking from a stove that requiring Con Edison intervention. (NYSCEF No. 1 at ¶¶ 26—53.) Those allegations state a breach-of-warranty cause of action.

The second cause of action alleges breach of the covenant of quiet enjoyment. To recover damages for breach of this covenant, a tenant must show either an ouster from the premises, or, if the eviction is constructive, an abandonment of the premises. (TDS Leasing, LLC v Tradito, 148 AD3d 1079, 1080 [2d Dept 2017].) Plaintiffs have not vacated the premises. Nor do they allege that they were compelled to abandon the premises. To the contrary, the holdover proceeding reflects that they have not surrendered occupancy. Because the complaint does not plead the essential element of ouster or abandonment, it fails to state a cause of action for breach of the covenant of quiet enjoyment.

The third cause of action is based on negligence. Although negligence is a cognizable common-law theory, this cause of action duplicates the first cause of action for breach of the warranty of habitability. A cause of action is duplicative when it relies on the same facts and seeks the same relief as another claim. (See Doe 42 v Yeshiva Univ., 245 AD3d 545, 547 [1st Dept 2026].) The negligence cause of action rests on the same building conditions underlying the warranty-of-habitability claim, namely the HPD violations, rodent infestation, and structural defects. (NYSCEF No. 1 at ¶¶ 71—80.) The complaint itself defines the duty underlying the negligence claim as the "warranty of quiet enjoyment and warranty of habitability" (see id. at ¶ 72), confirming that no duty independent of the first two causes of action is alleged. And the negligence cause of action seeks the same $100,000 in damages requested on the first cause of action. The negligence cause of action is thus subject to dismissal as duplicative.

The fourth cause of action alleges harassment. New York does not recognize a common-law cause of action for harassment. (Edelstein v Farber, 27 AD3d 202 [1st Dept 2006].) Although the complaint alleges at ¶ 85 that defendant commenced an unwarranted holdover proceeding against plaintiff Harding, the mere commencement of a civil action, without unlawful interference with person or property, is insufficient to state a cause of action. (See Mago, LLC v Singh, 47 AD3d 772, 773 [2d Dept 2008].) The remaining allegations underlying the harassment claim, including persistent interruptions of essential services and uncured violations, are the same maintenance conditions that form the basis of the first cause of action for breach of the warranty of habitability, and the harassment claim seeks the same $100,000 in damages. (NYSCEF No. 1 at ¶¶ 81—86.) The fourth cause of action therefore fails both because no cognizable legal theory supports it and because it is duplicative of the first cause of action.

The fifth cause of action asserts a claim for tortious interference with real property. New York does not recognize this cause of action. (Benjamin v Assad, 186 AD3d 549, 551 [2d Dept 2020].) And the conduct described in ¶¶ 87—91 of the complaint discloses no cognizable legal theory beyond what the first cause of action already encompasses.

Accordingly, it is

ORDERED the branch of defendants' motion seeking dismissal of the action in its entirety under CPLR 3211 (a) (4) is denied; and it is further

ORDERED that the branch of defendants' motion seeking dismissal of the claims against defendant Rick Elezi under CPLR 3211 (a) (7) is granted, and plaintiffs' complaint is dismissed as against defendant Elezi, with costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that the branch of defendants' motion seeking dismissal under CPLR 3211 (a) (7) of the first through fifth causes of action as against defendant 3612 Broadway Partners is denied with respect to the first cause of action, and is granted with respect to the second through fifth causes of action; and it is further

ORDERED that the first and sixth causes of action asserted against defendant 3612 Broadway Partners are severed and shall continue; and it is further

ORDERED that plaintiffs and 3612 Broadway Partners shall appear before this court for a telephonic preliminary conference on July 10, 2026; and it is further

ORDERED that defendant Elezi shall serve a copy of this order with notice of its entry on all parties and on the office of the County Clerk (using the NYSCEF filing event "Notice to the County Clerk - CPLR § 8019 (c)"), which shall enter judgment accordingly.

DATE 6/12/2026

Gerald Lebovits, J.