New York State Div. of v New York City Hous.

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New York State Div. of v New York City Hous. 2017 NY Slip Op 31400(U) June 28, 2017 Supreme Court, New York County Docket Number: 450895/2016 Judge: Carol R. Edmead Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 06/29/2017 02:55 PM 1] NYSCEF DOC. NO. 38 PRESENT: PART·~ HON.CAROLR.EDMEAD .J.S.C. Justice Index Number: 450895/2016 NEW YORK STATE DIVISION OF vs. NEW YORK CITY HOUSING SEQUENCE NUMBER : 001 INDEX N O . - - - - - MOTION DATE wZUR!/r1r MOTION SEQ. NJ _ _ __ DISMISS ACTION The following papers, numbered 1 to _ _ , were read on this motion to/for Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits --------------I No(s).,_ _ _ _ __ -----------------~ Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s). - - - - - - 1No(s). - - - - - - Upon the foregoing papers, It Is ordered that this motion is ~ , " ~ ::> ::> .LI i:: i:: .LI .I.. .LI i:: ... Ui .J z .J ~ 0 .I.. "' ~ (!) .LI i:: RECEIVED NYSCEF: 06/29/2017 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY .LI :; .LI INDEX NO. 450895/2016 ~ 0::: z ;r; ~ 0 .LI ..J " 0 ( ..J J LL - In this action alleging unlawful discrimination based on disability in violation of NY Exec. Law 292 and 296, defendant, New York City Housing Authority and its Chairman and Chief Executive, Shola Olatoye (collectively, "defendant" or "NY CHA") moves pursuant to CPLR 321 l(a)(l) and (a)(7) to dismiss the complaint for failure to state a cause of action and based on documentary evidence. Factual Background Defendant operates a public housing project in Manhattan, consisting of buildings located at 80 Paladino Avenue, also known as "Wagner Houses" (the "building"). In July 2011, defendant notified its tenants that the building would be undergoing elevator modernization and that residents would be without elevator service for an extended period of time. Thereafter, Alaba Hamzat ("Complainant") and his wife, who reside in one of the buildings, filed a reasonable accommodation request to be transferred to an accessible first floor apartment in the building as he could not walk up the stairs due to the effects of his childhood polio condition . After a NYCHA manager visited Complainant's unit in February 2012, and promised to offer an alternative apartment, more than a year later, notices were posted advising that the elevator would be out of service from August 12, 2013 to November 16, 2013. The elevator modernization project lasted for 13 weeks, until November 16, 2013 when it was completed, and 0::: z .... ~ 2 ) 0 ! LL - - - - - - - - - - - ' J.S.C. 1. CHECK ONE: ..................................................................... L~ CASE DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: n GRANTED 3. CHECK IF APPROPRIATE: ................................................ ;--i ORDER ~-=:co NOT POST 1 of 5 ~ NON-FINALD.lSPOSITION l'JICD----T TGRANTEDIN PA;; '.~OTHER ~--~ SUBMIT ORDER ~ FIDUCIARY APPOINTMENT ::- . REFERENCE [*FILED: NEW YORK COUNTY CLERK 06/29/2017 02:55 PM 2] NYSCEF DOC. NO. 38 INDEX NO. 450895/2016 RECEIVED NYSCEF: 06/29/2017 during such period, the Complainant had to walk up and down three flights of stairs to enter his unit despite his requests to be transferred to an accessible apartment to no avail. 1 This action seeks damages based on defendant's alleged failure to provide a temporary accessible apartment to Complainant during the 13-week elevator modernization in his building. Defendant now seeks dismissal, arguing that documentary evidence, including its Interview Record and affidavits of its Housing Manager Karen Moye ("Ms. Moye") and Housing Assistant Milagros Morales-Cantre, show that defendant offered the Complainant two apartments ( l 2E and 2E) which were serviced by elevators and that the Complainant rejected them both. Further, the elevator modernization project ended on November 26, 2016 and the Complainant returned the keys to his apartment on January 17, 2014. Plaintiff opposes dismissal, arguing that the documetary evidence and affidavits defendant submits do not defeat his claims as a matter of law. Plaintiff is entitled to depose the person who showed the Complainant the apartments and the circumstances surrounding such showings. Plaintiffs own notes on this matter initially indicated that defendant did not have any records of the showings. To produce them now, more than three years later, raises issues of fact. In any event, such documents and affidavits fail to establish that the units allegedly shown would constitute a reasonable accommodation that would meet Complainant's physical needs. In reply, defendant argues that the records are sufficient to constitute documentary evidence to dismiss plaintiffs complaint. And, the complaint fails to state a claim under Executive Law 296 given that defendant offered the Complainant two apartments. Discussion In determining a motion to dismiss a complaint pursuant to CPLR § 3211 (a)(7), the Court's role is deciding "whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (African Diaspora Maritime Corp. v. Golden Gate Yacht Club, 109 A.D.3d 204, 968 NYS2d 459 [lst Dept 2013]; Siegmund Strauss, Inc. v. East 149th Realty Corp., 104 A.D.3d 401, 960 N.Y.S.2d 404 [lst Dept 2013]). On a motion to dismiss made pursuant to CPLR § 3211, the court must "accept the facts as alleged in the complaint as true, accord plaintiffs "the benefit of every possible favorable inference," and "determine only whether the facts as alleged fit into any cognizable legal theory" (Siegmund Strauss, Inc. v. East 149th Realty Corp., 104 A.D.3d 401, supra; Nonnon v. City of New York, 9 N.Y.3d 825 [2007]; Leon v Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994]). However, "allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not" presumed to be true or accorded every favorable inference (David v. Hack, 97 A.D.3d 437, 948 N.Y.S.2d 583 [I st Dept 2012]; Biondi v. Beekman Hill House Apt. Corp., 257 A.D.2d 76, 81, 692 N.Y.S.2d 304 [I st Dept 1999], affd 94 N.Y.2d 659, 709 N.Y.S.2d 861, 731 N.E.2d 577 [2000]; Kliebert v. McKoan, 228 A.D.2d 232, 643 N.Y.S.2d 114 [I st Dept], Iv denied 89 N.Y.2d 802, 653 N.Y.S.2d 279, 675 N.E.2d 1232 [1996], 1 Complainant allegedly filed a complaint with the plaintiff on September 17, 2014 alleging that defendant discriminated against him in housing based on disability in violation Human Rights Law. Plaintiff conducted an investigation and detennined that probable cause existed to support Complainant's allegations. 2 2 of 5 [*FILED: NEW YORK COUNTY CLERK 06/29/2017 02:55 PM 3] NYSCEF DOC. NO. 38 INDEX NO. 450895/2016 RECEIVED NYSCEF: 06/29/2017 and the criterion becomes "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]; see also Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994]; Ark Bryant Park Corp. v. Bryant Park Restoration Corp., 285 A.D.2d 143, 150, 730 N.Y.S.2d 48 [!st Dept 2001]; WFB Telecom., Inc. v. NYNEX Corp., 188 A.D.2d 257, 259, 590 N.Y.S.2d 460 [!st Dept], Iv denied 81 N.Y.2d 709, 599 N.Y.S.2d 804, 616 N.E.2d 159 [ 1993] [CPLR § 3211 motion granted where defendant submitted letter from plaintiffs counsel which flatly contradicted plaintiffs current allegations of prima facie tort]). "In deciding such a preanswer motion, the court is not authorized to assess the relative merits of the complaint's allegations against the defendant's contrary assertions or to determine whether or not plaintiff has produced evidence to support his claims" (Salles v. Chase Manhattan Bank, 300 A.D.2d 226, 228 [!st Dept 2002]). The Court notes that defendant's initial moving papers do not point to any pleading deficiencies or otherwise argue that the complaint fails to adequately allege a claim under the Executive Law 292 or 296. Instead, defendant relies on the documentary evidence as a basis for dismissal, and its efforts to do so in reply are unavailing. As such, dismissal pursuant to CPLR 321 l(a)(7) is unwarranted. 2 Pursuant to CPLR 3211 (a)(l), a party may move for judgment dismissing one or more causes of action asserted against him on the ground that "a defense is founded upon documentary evidence." A motion to dismiss on the basis of a defense founded upon documentary evidence may be granted "only where the documentary evidence utterly refutes [the complaint's] factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N. Y, 98 NY2d 314, 326, 746 NYS2d 858 [2002]; Mill Financial, LLC v. Gillett, 122 A.D.3d 98, 992 N.Y.S.2d 20 [1 51 Dept 2014]). "Dismissal pursuant to CPLR 321 l(a)(l) is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Mill Financial, LLC v. Gillett, supra, citing Art and Fashion Group Corp. v. Cyclops Production, Inc., 120 A.D.3d 436, 992 N.Y.S.2d 7 [l st Dept 2014]). While CPLR 3211 (a)(l) does not explicitly define "documentary evidence," this term "as referred to in CPLR 3211 (a)(l) typically means judicial records such as judgments and orders" (Webster Estate of Webster v State of New York, 2003 WL 728780 [N.Y.Ct.Cl. 2003] citing Fontanetta v Doe, 73 AD3d 78, 898 NYS2d 569 [2d Dept 2010] citing 2 N.Y. Prac, Com. Litig. in New York State Courts§ 7:60, 2d. ed.), deeds (lgarashi v Higashi, 289 AD2d 128, 735 NYS2d 33 [1st Dept 2001 ]), and informal judicial admissions (Morgenthow & Latham v Bank of New York Co., 305 AD2d 74, 760 NYS2d 438 [1st Dept 2003] (informal judicial admissions by 2 In any event, based on a review of the complaint, it cannot be said that plaintiff fails to state a cause of action for discrimination based on disability. The complaint alleges sufficient facts, which if proven true, state a claim for violation of Executive Law 292 or 296 (see e.g.. Kennedy Street Quad, Ltd. v. Nathanson, 62 A.D.3d 879, 879 N.Y.S.2d 197 [2d Dept 2009] (citing Executive Law§ 296[2][a], and holding "To establish that a violation of the Human Rights Law (Executive Law art. 15) occurred and that a reasonable accommodation should have been made, the complainants must demonstrate that they are disabled, that they are otherwise qualified for the tenancy, that because of their disability it is necessary for them to keep the dog in order for them to use and enjoy the apartment, and that reasonable accommodations could be made to allow them to keep the dog"), leave to appeal denied, 13 N.Y.3d 714, 922 N.E.2d 902, 895 N.Y.S.2d 313)). 3 3 of 5 [*FILED: NEW YORK COUNTY CLERK 06/29/2017 02:55 PM 4] NYSCEF DOC. NO. 38 INDEX NO. 450895/2016 RECEIVED NYSCEF: 06/29/2017 plaintiffs' "attorney-in-fact" in another action, and prior statements of parties in the course of litigation that refute an essential element of a plaintiffs present claim)). To constitute documentary evidence, the papers must be "essentially undeniable" and support the motion on its own (Amsterdam Hospitality Group, LLC v. Marshall-Alan Associates, Inc., --- N.Y.S.2d ----, 2014 WL 4232688, 2014 N.Y. Slip Op. 06007 [1st Dept 2014] citing Siegel, Practice Commentaries, supra, at 2)). At the outset, the Interview Record, which consists of various computer entries by the two affiants and other employees of defendant documenting communications concerning Complainant's transfer request, does not constitute "documentary evidence" as that term is used in CPLR § 321 l(a)(l). Such Interview Record does not "utterly refute" the complainant's allegations or "conclusively establish a defense as a matter of law" (see Realty Investors v Bhaidaswala, 254 AD2d 603, 679 NYS2d 179 [3d Dept 1988] (stating that listing agreement, letter of intent and addenda, were not documentary evidence under CPLR 321 l(a)(l)). Nor do the affidavits submitted by defendant qualify as "documentary evidence" for purposes of this rule (see Regini v Board of Managers of Loft Space Condominium, 107 AD3d 496, 968 NYS2d 18 [l51 Dept2013]; Correa v Orient-Express Hotels, Inc., 84 AD3d 651, 924 NYS2d 336 [Pt Dept 2011]; Marin v Al Holdings (USA) Corp., 35 Misc 3d 1227(A), 953 NYS2d 550 (Table) [Supreme Court, New York County 2012]; Kear ins v Gruberg, McKay & Stone, 2 Misc 3d l 00 l, 2004 WL 316521 [Supreme Court, Bronx County 2004]; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 780 NYS2d 593 [Pt Dept 2004]). Further, as pointed out by plaintiff, the Interview Record, on its face, does not establish, as a matter of law, that the two units shown to the Complainant constitute a reasonable accommodation in light of the Complainant's inability or restricted ability to climb stairs. As plaintiff argues, Ms. Moye asserts that the Complainant's wife was shown a second floor apartment on July 23, 2013 and points to the July 23rd entry in the Interview Record to support this allegation. (Affidavit, tjltjl 8-9). However, such entry states, in pertinent part, "MS. CANTRE HAS SHOWED THE WIFE THE APARTMENT". And, the last two right hand columns of such entry appear to indicate that the apartment showing was recorded not by Ms. Cantre who allegedly showed the apartment, but rather by an entirely different person (Ms. Moye). Plaintiff is entitled to depose defendant's witnesses as to the entries in the Interview Record and the statements made in the affidavits. Defendant's remaining contentions lack sufficient merit. Therefore, dismissal pursuant to CPLR 321 l(a)(l) is also unwarranted. Conclusion Based on the foregoing, it is hereby ORDERED that defendant's motion to dismiss the complaint for failure to state a cause of action and based on documentary evidence pursuant to CPLR 321 l(a)(l) and (a)(7) is denied; and it is further ORDERED that defendant shall serve its answer within 30 days of entry of this order; and it is further ORDERED that defendant shall serve a copy of this order with notice of entry upon all 4 4 of 5 [*FILED: NEW YORK COUNTY CLERK 06/29/2017 02:55 PM 5] NYSCEF DOC. NO. 38 INDEX NO. 450895/2016 RECEIVED NYSCEF: 06/29/2017 parties within 20 days of entry; and it is further ORDERE.Jl ~at the parties shall appear for a Preliminary Conference on August 29, 2011. v- J../...J r /Y}. This constitutes the decision and order of the Court. HON.CAROLR.EDMEAD Check one: 0 FINAL DISPOSITION rON-FINAL DISPOSITIQ...,l-S.C. Check if appropriate: o DO NOT POST 5 5 of 5 o REFERENCE

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