Michael Wood, Plaintiff(s), v. BENNO HENI 4116 49ST LLC HENI PROPERTIES CORP (2026)

The following electronically filed documents read on a motion by defendant to dismiss the complaint pursuant to CPLR 3211 (a) (1), (2), and (7):

Papers Numbered

Notice of Motion-Affirmations-Memorandum-Exhibits EF 68-87

Notice of Cross Motion-Memorandum-Exhibits EF 89-99

Notice of Rejection-Letters to the Court EF 100-106

Upon the foregoing papers it is ordered that the motion is decided as follows:

Plaintiff commenced this action by filing a summons and complaint in June 2021 alleging harassment, breach of contract, nuisance, stalking, and assault (see NYSCEF Doc No 1). Defendants moved to correct the pleadings and provide a more definite statement of the various causes of action and plaintiff cross moved to, among other things, amend the complaint. This court (J. Golia) granted defendant's motion but denied plaintiff's cross motion on the grounds that the proposed amended complaint was still deficient and ordered plaintiff to serve a new amended complaint within 30 days. However, plaintiff served his amended complaint 11 days after this deadline which defendants rejected as untimely. Plaintiff then moved to compel acceptance of his amended complaint which this court (J. Weiss) denied. Plaintiff appealed and the order was reversed by the Appellate Division which found the amended complaint to provide sufficient detail to enable defendants to answer and granted plaintiff's motion to compel acceptance of the amended complaint (see 237 AD3d 784 [2d Dept 2025]). The amended complaint pleads an "Order to Correct for RPL 235-b Warranty of Habitability," "RPL § 235 Willful Violations," attempted unlawful eviction, violations of the New York City Administrative Code, breach of contract, and intentional and negligent infliction of emotional distress.

Initially, defendants urge this court to reject plaintiff's opposition to their motion on the basis that it was labeled a "cross-motion." However, it is clear from the content of the filing that plaintiff intended this document to be an affirmation in opposition and the court exercises its discretion to treat it as such (see CPLR 2001).

Next, Defendants contend that plaintiff's amended complaint fails to state viable causes of action. The well known standard for a motion to dismiss is that "the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff 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" (Wilber v Borgen, 248 AD3d 844, 846 [2d Dept 2026] [internal quotation marks and citations omitted]). However, the impact of the Second Department's order granting plaintiff's CPLR 3025 motion complicates the analysis and must be considered.

Leave to amend a pleading "shall be freely given upon such terms as may be just" (CPLR 3025 [b]). Modern caselaw has interpreted this to mean that "[p]ermission to amend a pleading should be 'freely given' where the proposed amendment is neither palpably insufficient nor patently devoid of merit, and there is no evidence that the amendment would prejudice or surprise the opposing party" (Carlino v Shapiro, 180 AD3d 989, 990 [2d Dept 2020] [internal quotation marks and citation omitted]; see Deutsche Bank Natl. Trust Co. v David, 242 AD3d 1056, 1057 [2d Dept 2025]). "Palpably insufficient" and "patently devoid of merit," though commonplace in New York jurisprudence, are somewhat vague terms and are almost always invoked divorced from the context in which they were stated most clearly by the Second Department in Ludico v Mancuso (49 AD3d 220 [2d Dept 2008]).

In Ludico, the Second Department traced the legislative history of CPLR 3025 and the judicial approaches to the law that had evolved since its adoption. On the one hand, a string of cases emerged imposing an evidentiary burden on the movant, requiring "some evidentiary showing that the claim can be supported" (see Morgan v Prospect Park Assoc. Holdings, 251 AD2d 306, 306 [2d Dept 1998] [internal quotation marks and citation omitted]; see Alexander v Seligman, 131 AD2d 528, 528 [2d Dept 1987]). On the other, a parallel set of cases held that "the merits of a proposed amendment will not be examined on the motion to amend — unless the insufficiency or lack of merit is clear and free from doubt. Where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave should be denied" (Norman v Ferrera, 107 AD2d 739, 740 [2d Dept 1985] [citations omitted]; see Hayden v Josim Assoc., 148 AD2d 495, 496 [2d Dept 1989]). The court described this latter line of cases as "combin[ing] the analysis of a motion for leave to amend a pleading under CPLR 3025 (b) with the analysis of a motion to test the validity of that proposed amended pleading under CPLR 3211 (a) (7). Thus, the opponent of a motion for leave to amend a pleading was considered to have made, in effect, a cross motion to test the legal sufficiency of the proposed amendment" (Ludico v Mancuso, 49 AD3d at 225 quoting Norman v Ferrara, 107 AD2d at 740).

The Ludico court rejected the first approach and embraced the second as articulated by Norman, holding that the "[t]he court need only determine whether the proposed amendment is 'palpably insufficient' to state a cause of action or defense, or is patently devoid of merit," the well known and frequently invoked language of CPLR 3025 motions today (Ludico v Mancuso, 49 AD3d at 229). What should not be forgotten is that "palpably insufficient" and "patently devoid of merit" are not just legal niceties, but concepts with a concrete meaning, namely that "the motion for leave to amend will be denied, in the absence of prejudice or surprise, only if the new cause of action would not withstand a motion to dismiss under CPLR 3211 (a) (7)" (id. at 225).

With that added context in mind, when the Appellate Division reversed the order of J. Weiss denying plaintiff's CPLR 3025 motion, it found that the amended pleading was sufficiently pleaded to survive a CPLR 3211 (a) (7). Therefore, this court is compelled to deny that branch of defendants' motion seeking to dismiss for failure to state a claim.

Defendants also move to dismiss for lack of subject matter jurisdiction, contending that plaintiff has no private right of action under RPAPL § 768 or RPL § 235. Both statutes create criminal liability and as such are subject to the rule that, generally, where such liability is imposed, no private right of action may be implied (see Ortiz v Ciox Health LLC, 37 NY3d 353, 360-361 [2021]; 276-W71 LLC v G.S., 80 Misc 3d 216, 223 [Civ Ct, NY County 2023]; Avignone v Valigorski, 70 Misc 3d 911 [Cohoes City Ct 2020]). Neither statute explicitly provides a private right of action. Accordingly, plaintiff's second and third causes of action are dismissed.

As to defendants' claim that plaintiff's action is barred by documentary evidence, a "motion to dismiss a complaint based upon documentary evidence may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Kalaj v 21 Fountain Place, LLC, 169 AD3d 657, 657 [2d Dept 2019] [internal quotation marks and citation omitted]).

Attached to defendants' motion is plaintiff's lease, which names 41-16 49ST LLC as the landlord. However, a lease rider bears the signature of Benno Heni as "Owner/Agent" and Anne Heni as "Owner or Owner's Agent." It is unclear from the lease whether these defendants signed as the owners of the premises, or merely as the agents of the LLC. Therefore, defendants Benno and Anne Heni have failed to show that the documentary evidence utterly refutes that any liability may be imputed to them (see Philadelphia Indem. Ins. Co. v B & L Mgt. Co. LLC, 60 Misc 3d 1207[A], 2018 NY Slip Op 50982[U], *2 [Sup Ct, NY County 2018]). As to defendant Heni Properties Corp., although not a party to the lease, that corporation is alleged to be the property manager of the subject premises, an allegation that defendants do not refute. However, defendants are correct in their assertion that RPL 235-b does not apply to a landlord's agents, therefore the cause of action alleging breach of the warranty of habitability is dismissed as to defendant Heni Properties Corp. only (see Adler v Ogden CAP Props., LLC, 42 Misc 3d 613, 622 [Sup Ct, NY County 2013], affd 126 AD3d 544 [1st Dept 2015]).

Defendants' remaining contentions regarding the mootness of various claims are unsupported by documentary evidence and any relief sought thereunder is denied. To the extent not already addressed, any further remaining contentions have been examined and found to be without merit or rendered academic.

This constitutes the decision and order of the court.

Dated September 8, 2026

Hon. Peter J. Kelly, J.S.C.

Peter J. Kelly, J.