1907 DITMAS AVE TENANTS ASSOCIATION v. WILMINGTON TRUST LLC 1907 LLC (2025)

ORDERED that, on the court's own motion, the notice of appeal from the September 28, 2023 order is deemed a premature notice of appeal from the January 22, 2024 order (see CPLR 5520 [c]); and it is further,

ORDERED that the January 22, 2024 order, insofar as appealed from, is modified by providing that the branches of petitioner's motion seeking, in effect, to vacate the portions of the September 28, 2023 order which, (1) pursuant to CPLR 409 (b), dismissed so much of the petition as sought declaratory relief, injunctive relief, statutory damages, and attorney's fees on the harassment claims and which (2) denied, as moot, petitioner's motion for leave to conduct discovery are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs, so much of the petition as sought declaratory relief, injunctive relief, statutory damages, and attorney's fees on the harassment claims is reinstated, and the matter is remitted to the Civil Court for a determination on the merits of petitioner's motion for leave to conduct discovery.

Petitioner unincorporated tenants' association commenced this Housing Part (HP) proceeding by order to show cause and a verified petition, alleging harassment in violation of Local Law No. 7 (2008) of City of New York (Administrative Code of City of NY § 27-2005 [d]) and private nuisance. The petition was verified by John Balliet and sought a declaratory judgment finding harassment and private nuisance; an injunction against future harassment or private nuisance; and compensatory or statutory damages, punitive damages, and attorney's fees. By notice of motion dated August 22, 2023, petitioner moved for leave to conduct discovery. Respondents opposed. By order entered September 28, 2023, the Civil Court (Remy Smith, J.), pursuant to CPLR 409 (b), dismissed the petition and denied, as moot, petitioner's motion for leave to conduct discovery. The court stated:

“An unincorporated tenant association is not a proper party petitioner as it is neither a tenant nor a lawful occupant. See Bartley v. Walentas, 78 A.D.2d 310 [434 N.Y.S.2d 379] (1st Dep't 1980) and HMC § 27-2115(h)(1) and (i). There is no natural person named in the proceeding, nor did a natural person sign the verification of the petition on behalf of the unincorporated association. The pleadings are totally devoid of any identification of the members and individuals to whom the action for private nuisance belongs. The case is therefore dismissed for lack of standing.”

In a motion denominated a “motion to reargue,” petitioner sought, in effect, to vacate the September 28, 2023 order and, upon such vacatur, to grant petitioner's motion for leave to conduct discovery. In seeking to, in effect, vacate the dismissal of the petition, petitioner added the fact that Mr. Balliet, who had verified the petition, was the president of petitioner. Respondents opposed. By order entered January 22, 2024, the Civil Court (Remy Smith, J.) denied the motion.

Petitioner appeals from the September 28, 2023 order, raising no issue in its brief with respect to the Civil Court's dismissal of so much of the petition as sounded in private nuisance. Its notice of appeal from the remainder of the September 28, 2023 order, which, (1) pursuant to CPLR 409 (b), dismissed so much of the petition as sounded in harassment, and, (2) denied, as moot, petitioner's motion for leave to conduct discovery, is deemed a premature notice of appeal from so much of the January 22, 2024 order as denied the branch of petitioner's motion seeking, in effect, to vacate that portion of the September 28, 2023 order and, upon such vacatur, to grant petitioner's motion for leave to conduct discovery (see CPLR 5520 [c]; Matter of Commissioner of Social Servs. of City of NY v. Rafael B., 186 A.D.2d 253, 253, 588 N.Y.S.2d 579 [1992]).

The failure to properly verify a petition in an HP proceeding is not a jurisdictional defect (see generally Matter of Miller v. Board of Assessors, 91 N.Y.2d 82, 86, 666 N.Y.S.2d 1012, 689 N.E.2d 906 [1997] [“The lack of a proper verification on a tax certiorari petition is not a jurisdictional defect”]; 1346 Park Place HDFC v. Wright, 52 Misc.3d 18, 21, 34 N.Y.S.3d 561 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2016] [“(T)he failure to verify, or properly verify, a petition in a summary proceeding is not a jurisdictional defect”]). Moreover, respondents did not assert any objection to the validity of the verification with due diligence, as required by CPLR 3022 (see Matter of Miller v. Board of Assessors, 91 N.Y.2d at 86 n. 3, 666 N.Y.S.2d 1012, 689 N.E.2d 906; Flushing AV Laundromat, Inc. v. Dekao Qu, 229 A.D.3d 516, 520, 215 N.Y.S.3d 400 [2024]; Rozz v. Law Offs. of Saul Kobrick, P.C., 134 A.D.3d 920, 921-922, 22 N.Y.S.3d 113 [2015]). Finally, respondents failed to claim any prejudice that would weigh against disregarding any defect in the verification (see CPLR 2001, 3026; Matter of Miller v. Board of Assessors, 91 N.Y.2d at 87, 666 N.Y.S.2d 1012, 689 N.E.2d 906; Flushing AV Laundromat, Inc. v. Dekao Qu, 229 A.D.3d at 520, 215 N.Y.S.3d 400; Gaffey v. Shah, 131 A.D.3d 1006, 1007, 17 N.Y.S.3d 46 [2015]). Thus, the Civil Court erred in dismissing, for improper verification, so much of the petition as sounded in harassment.

To the extent that the Civil Court's dismissal of so much of the petition as sounded in harassment was based on petitioner's lack of capacity to sue, this, too, was error. Since petitioner, an unincorporated association, has no legal existence separate and apart from its individual members (see Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C1025:2; see also Pascual v. Rustic Woods Homeowners Assn., Inc., 134 A.D.3d 1006, 1006, 21 N.Y.S.3d 687 [2015]), the proceeding should have been brought by the association's president or treasurer, rather than in the name of the association itself (see General Associations Law § 12; CPLR 1025; 2834-2838 Brighton 3rd St. Condominium v. Bazinian, 66 Misc.3d 143[A], 2020 N.Y. Slip Op. 50180[U], 2020 WL 629764 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2020]). However, since “this error is not jurisdictional and can be corrected” (Montalvo v. Bakery & Confectionery Workers Intl. Union of Am. Local No. 3, AFL-CIO, 137 A.D.2d 506, 508, 524 N.Y.S.2d 249 [1988]; see CPLR 2001; Matter of Motor Haulage Co. [Teamsters' Union], 298 N.Y. 208, 212, 81 N.E.2d 91 [1948]; Matter of Stephentown Concerned Citizens v. Herrick, 223 A.D.2d 862, 864 n 2, 636 N.Y.S.2d 470 [1996]; Concerned Citizens of Albany-Shaker Rd. v. State of New York, 140 A.D.2d 842, 843, 528 N.Y.S.2d 230 [1988]), it was inappropriate to dismiss the petition pursuant to CPLR 409 (b) (see CPLR 409 [a]) on that basis at this juncture.

With respect to associational standing, the Court of Appeals has set out the following three-part test (Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 775, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [1991]):

“First, if an association or organization is the petitioner, the key determination to be made is whether one or more of its members would have standing to sue; standing cannot be achieved merely by multiplying the persons a group purports to represent. Second, an association must demonstrate that the interests it asserts are germane to its purposes so as to satisfy the court that it is an appropriate representative of those interests. Third, it must be evident that neither the asserted claim nor the appropriate relief requires the participation of the individual members.”

Here, petitioner's members, as tenants of the subject premises, would have individual standing to bring this HP proceeding (see Administrative Code §§ 27-2115 [h] [1]; 27-2120 [b]). The interests sought to be protected—the statutory rights of petitioner's members to be free from harassment by the owner of the premises—are germane to petitioner's purpose, and petitioner is an appropriate organization to act in a representative capacity (see Matter of Martha Washington Tenants Assn. v. Roberts, 292 A.D.2d 225, 226, 739 N.Y.S.2d 59 [2002]; Magzamen v. UWS Ventures III LLC, 72 Misc.3d 677, 683, 149 N.Y.S.3d 858 [Civ. Ct., N.Y. County 2021]). To the extent the petition seeks declaratory relief, injunctive relief, statutory damages, and attorney's fees, such relief does not require the participation of the individual members of petitioner (see Administrative Code § 27-2115 [o]; Victory Vil. Tenants Assn., Inc. v. Evergreen Communities, LLC, 218 A.D.3d 1207, 1208-1209, 193 N.Y.S.3d 790 [2023]; Matter of Scarsdale Comm. for Fair Assessments v. Albanese, 202 A.D.3d 966, 968, 163 N.Y.S.3d 570 [2022]; Matter of Schlemme v. Planning Bd. of City of Poughkeepsie, 118 A.D.3d 893, 895, 988 N.Y.S.2d 640 [2014]). However, to the extent the petition seeks compensatory and punitive damages, which would require individualized evidence from petitioner's members, petitioner lacks standing to seek such relief (see Victory Vil. Tenants Assn., Inc. v. Evergreen Communities, LLC, 218 A.D.3d at 1209, 193 N.Y.S.3d 790; Matter of Scarsdale Comm. for Fair Assessments v. Albanese, 202 A.D.3d at 968, 163 N.Y.S.3d 570). Therefore, the Civil Court erred in dismissing so much of the petition as sought declaratory relief, injunctive relief, statutory damages, and attorney's fees on the harassment claims.

Accordingly, the January 22, 2024 order, insofar as appealed from, is modified by providing that the branches of petitioner's motion seeking, in effect, to vacate the portions of the September 28, 2023 order which, (1) pursuant to CPLR 409 (b), dismissed so much of the petition as sought declaratory relief, injunctive relief, statutory damages, and attorney's fees on the harassment claims and which (2) denied, as moot, petitioner's motion for leave to conduct discovery are granted; so much of the petition as sought declaratory relief, injunctive relief, statutory damages, and attorney's fees on the harassment claims is reinstated; and the matter is remitted to the Civil Court for a determination on the merits of petitioner's motion for leave to conduct discovery.

BUGGS and OTTLEY, JJ., concur. MUNDY, J.P., taking no part.