GILL GRANT v. NYCHA (2018)

ORDERED that, on the court's own motion, the notice of appeal from the decision dated September 12, 2016 is deemed a premature notice of appeal from the judgment entered August 31, 2017 (see CPLR 5520 [c] ); and it is further,

ORDERED that the judgment is affirmed, without costs.

Insofar as is relevant to this appeal, tenant commenced this HP proceeding by order to show cause dated August 26, 2016 and verified petition, alleging, among other things, “excessive heat” in her apartment. An inspection by the Department of Housing Preservation and Development (HPD) on September 3, 2016 found that heat was not on at the time of the inspection. The Civil Court dismissed the petition, noting that tenant, if so advised, should bring another HP proceeding during the heating season.

The Civil Court has the power in an HP proceeding to issue orders directing the removal of housing violations or directing the imposition of such violations (see CCA 110 [a] [7] ). As tenant's allegation that her apartment is overheated during the heating season was made outside of the heating season, which runs from October 1st through May 31st each year (see Multiple Dwelling Law § 79), it was impossible for the HPD inspector to verify the alleged violation. A remedy for a violation cannot be required before the violation has been proven (see Parkchester Alliance v. Parkchester Apts. Co., 180 Misc 2d 548 [Civ Ct, Bronx County 1999] ).

Accordingly, the judgment is affirmed.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.