Folnsbee v Kenny

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Folnsbee v Kenny 2017 NY Slip Op 33407(U) December 1, 2017 Supreme Court, Onondaga County Docket Number: Index No. 2017EF2911 Judge: James P. Murphy Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 2017EF2911 FILED: ONONDAGA COUNTY CLERK 12/27/2017 09:32 AM NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 12/21/2017 INDEX NO. 2017EF2911 RECErm'Efx~eEF RECEIVED NYSCEF: 01_~Jj_%9h\n 7 '... 2/04/2017 STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA PATRICIA FOLNSBEE, Plaintiff; DECISION vs. J MICHAEL KENNY, EDAINA JESCHKE, Defendants. APPEARANCES: p Index No. 2017EF2911 RJINo. 33-17-2777 -CNY FAIR HOUSING, INC. By: Conor J. l{jrchnor, Esq. _ Attomey for Plaintiff 731 James Street, Suite 200 Syracuse, NY 13202 KENNY AND KBNNY, PILC By: Allison L. Pardee, Esq. Attomeys for Defendants 31 S West Fayette Street Syracuse, NY 13202 MURPHY,J. This aetion was commcnccd·by Plaintiff Patricia Folnsbee (~'Plaintiff") by the electronic :tili!W Qf a Sunun9ns Jnd Complaint on_J\lly 12, 2017, again.$1 :P@f{:QdmtJ Michael Kenny_and _ . . . ___ Edaina Jeschke ("Defendants"). Plaintiff, by Order to Show Cause signed by this Court on September 5, 2017, seeks an Order granting a preliminary injunction pursuant to C.P.L.R. §§ 6301 and 631 i and New York State Executive Law§ 290 et seq. enjoining and restraining Defendants, their officers and/or agents, from taking any ~on to terminate the tenancy of Plaintiff or to evict her from her residence at 258 Woodruff' Avenue, Syracuse, NY 13203, and from showing, renting, or disposing of258 Woodruff Avenue, during the pendency of this action. [* 1] 3 of 11 INDEX NO. 2017EF2911 FILED: ONONDAGA COUNTY CLERK 12/27/2017 09:32 AM NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 12/21/2017 INDEX NO. 2017EF2911 ' RECErHB~Y~eE O\~/M,.l;ro17 •. RECEIVED NYSCEF: By way of background, this action arises out of P_laintifrs need for the installation of a ramp at property located at 258 Woodruff Avenue, Syracuse, which is owned by Defendants and rented by Plaintiff. The Complaint alleges that Plaintiff is a tenant at the subject property owned by Defendants, 1q1d moved in on or around October 30, 2016. Plaintiff' alleges that she is unable to enter or exit her apartment without assistance and, therefore, requested that Defendants' install J a l!UllP to allow her to use a wheelchair. Plaintiff' claims that Defendant Michael_ Kenny ("Mr. ' ' Kenny") refused and expressed his concerns 1hat a ramp would impair his ability to sell the house, should he choose to do so. Mr. Kenny further refused to install a ramp even if the ramp could be temporary in nature. See, Complaint dated July 1l, 2017. Thus, Plaintiff has brought this action to restrain Defendants &om terminating the tenancy and/or taking any action to prevent the installation ofa temporary and/or removable ramp at Plaintiffs residence at P· Plaintiff's own expense. In opposition, Defendants state that there is no written lease entered into between the parties and, thus, Plaintiff is on a month~to-month tenancy which can be terminated at any time. See. R.P.L. § 232-b. In addition, Defendants contend that Plaintiffhas failed to pay rent in a timely manner, an~ in May, 2017, Defendants were fined $250.00 by the City of Syracuse for a code violatiorrwhich-was assessed as aresult·of Plaintiff having placed large electronics at the road. Based upon these breaches and violations, Defendants served a 30-day notice to quit on Plaintiff on July 10, 2017. C.P.L.R. § 6301 titled "Grounds for preliminary injunction and temporary restraining order" states: 2 [* 2] 4 of 11 /04/2017 INDEX NO. 2017EF2911 FILED: ONONDAGA COUNTY CLERK 12/27/2017 09:32 AM NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 12/21/2017 INDEX NO. 2017EF2911 RECEIY2W~~&F: 0 l~,~!9h~l7 RECEIVED NYSCEF.z 2/04/2017 : A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff' has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance ofan act, which, if committed or continued during the pend.ency of the action, would produce injury to the plaintiff. A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage wi11 result unless the defendant is restrained before the hearing can be had. ' J It is well settled that a preliminary injunction may be granted under. CP~ Article 63 when the party seeking such relief demonstrates (1) a likelihood ofultimate success on the merits; (2) the prospect ofirreparable injury if the relief is withheld; and (3) a balance·of-equities tipping in the moving party's favor. See. Doe v. Axelrod, 73 N.Y.2d 748 (1988). p [n support of her application for a preliminary injunction, Plaintiff argues that Defendants have violated Executive Law § 296 titled "Unlawful discriminatory practices.'' which states in pertinent part: 5. (a) It shall be an unlawful discriminatory practice for the owner, lessee, sub-lessee, assignee, or managing agent o( or other person having the right to sell, rent or lease a housing accommodation, constructed or to be constructed, or any agent or employee, thereof: (2) To discriminate against any person because of race, creed, oolor, national origin, sexual orientation, militmy status, sox., age, disability, marital status, or familial status in the terms, conditions or privileges of the sale, rental or lease of any such housing · accommodation or in the furnishing of facilities or services in connection therewith. 3 [* 3] 5 of 11 INDEX NO. 2017EF2911 FILED: ONONDAGA COUNTY CLERK 12/27/2017 09:32 AM NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 12/21/2017 INDEX NO. 2017EF2911 RECEIVI,,16)!ffi'.~F. Ojz,f31~~17 RECEIVED NYSCEF: J (3) To print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any fonn of application for the pmchase, rental or lease of such housing accommodation or to make any record or inquiry in connection with the prospective purchase, rental or lease of such a housing accommodation which express~. directly or indirectly, any limitation, specification or discrimination as to race, creed, color, national origin, sexual orientation, military status, SOX, age, disability, marital status, or familial status, or any intent to make any such limitation, specification or discrimination. 18. It shall be an unJawful discriminatory practice for the owner, lessee, sub-lessee, assignee, or managing agent o~ or other person having the right of ownmhip of or possession of or the right to rent or lease housing accommodations: p (1) To refuse to permit, at the expense ofa person with a disability, reasonable modifications of existing premises occupied or to be occupied by the said person, if the modifications may be necessary to afford the said person full enjoyment of the premises, in conformity with the provisions of the New York state uniform fire prevention and building code except that, in the case of a rental, the landlord may, where it is reasonable to do so, condition pennission for a modification on the renter's agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted. Likelihood of Success on the Merits To establish that a violation of the Human Rights Law (Executive Law Article 15) occurred and that a reasonable accommodation should have been made, the petitioner must demonstrate that ·they are disabled and that they are otherwise qualified for the tenancy and that, because of their disability, it is necessary for them to have a wheelchair ramp for their use and enjoyment of their tenancy, and that a reasonable accommodation could be made to accomplish this. See. generally, Kennedy Street Quad, Ltd. v. Nathanson, 62 A.D.3d 879 (2d Dept. 2009). 4 [* 4] 6 of 11 2/04/2017 INDEX NO. 2017EF2911 FILED: ONONDAGA COUNTY CLERK 12/27/2017 09:32 AM NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 12/21/2017 INDEX NO. 2017EF2911 ONONDAGA COUNTY CLERK 12 RECErR~BE~Y~'ctE4°\71lMhfo17 ·· RECEIVED NYSCEF: Once a _plaintiff has made an initial showing under the Executive Law, the defendant is · required to present legitimate, independent and nondiscriminatory reasons to support its actions. If the defendant m_eets that burden, the plaintiff would then have to show that the reasons given by the defendant were merely a pretext. See, Delkap Managemel'II, Inc. v. New York State J, Division qfHu~n Rights. 144 A.D.3d 1148 (2d Dept 2016). With regard to whether Plaintiff is likely to succeed on the underlying merits, the law is well settled that Plaintiff must first demonstrate that she is.disabled. Executive Law§ 292.21 (c)(2) defines the 1erm "disability" to mean "(i) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or labora1ory dia$nOstic techniques." See, State Division ofHuman Rights v. Xerox Corp., 65 N.Y.2d 213 (1985). Here, in support of Plaintiff's claim that she is disabled as that term is · defined in the Executive Law, Plaintiff submits a letter dated November 21, 2016, from Martha Aliwalas, M.D., which briefly concludes, without specifics: "To Whom It May Concern: It is medically necess~ry for Ms. Folnsbee to have a w~eclchair ramp so patient can get in and out df her apartment." Toe letter is electronically signed, and it is ·not verified in any manner, Plaintiff · submits no further medical cvidenceto. support her claim. In considering PlaintiWs proof in the first instance, the Court finds that Plaintiff's unverified letter from Dr. Aliwalas is insufficient, and ~ls to demonstrate Plaintiff suffers from the existence of a medically~recognized condition. Put another way, Plaintiff completely fails in her proof to show that she suffers from any medical impairment. Accordingly, based on the above, the Court finds that it is not likely that Plaintiff will be successful on the merits. , 5 [* 5] 7 of 11 /04/2017 INDEX NO. 2017EF2911 FILED: ONONDAGA COUNTY CLERK 12/27/2017 09:32 AM NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 12/21/2017 INDEX NO. 2017EF2911 REcErv'EW~~8eF? 0B~t9)icn 1 RECEIVED NYSCEF: 2/04/2017 ,.OIIOHDAGA COUNTY CLERK OC. NO. 28 In the alternative, even if it could be argued that Plaintiff'has somehow met her burden that she is disabled, Defendants in opposition clearly present legitimate, independ~t and nondiscriminatory rewns to end Plaintiff's tenancy; Defendants submit uncontroverted proof that Plaintiff failed to make timely payments~ including the failure to submit a security deposit. Additionally, Defendants submit an Affidavit in support from Scott Wright, the son-in-law of J Plaintiff, who confinns Defendants' testimony that the monthly rent was supPQSed to be for the swn of $650.00 and that a security deposit was to be provided, however, Mr. Wright worked out an agreement with Defendants that his mother-in-law would pay only $500.00 per month, and that he would perfonn property maint~ including lawn mowing, trimming and landscaping to make up the difference. Mr. Wright states that he breached the agreement and has not done . . aoy of these things, and he confinns the fact that at no time did he ever advise or indicate to P Plaintiff that she could live in this residence indefinitely. In addition, Defendants were cited by the City of Syracuse Codes Department relating to a violation due to Plaintiff unlawfully leaving electronics at the curb. Accordingly. based on all of the foregoing, the Court finds that Defendants have clearly shown non-discriminat.ory, justifiable reasons for terminating the tenancy, which in any event could have been tenninated with a 30-daywritten notice. See, RPL § 232-b; In reply~ Plaintiff",- conclusory assertion that Defendants' reasons for the eviction are merely a pretext are insufficient based upon the clear, mostly undisputed proof provided by Defendants, specifically the imposition of code violations for Plaintiff's actions. 6 [* 6] 8 of 11 INDEX NO. 2017EF2911 FILED: ONONDAGA COUNTY CLERK 12/27/2017 09:32 AM NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 12/21/2017 INDEX NO. 2017EF2911 ·RECEr~%~r? 1i,~;,~b17 RECE_IVED NYSCEF: 1 /04/2017 T~ Proapect of Irreparable Ipjuty if the Relief is Withheld In support, Plaintiff contends that she will face irreparable injury if injunctive relief is not granted based on the fact that Defendants will then proceed to commence eviction proceedings to have her removed from her apartment. In the first instance, Plaintiff concedes that there is no J lease and that she is on a month-to-month tenancy. The facts before the Court show that to date, Defendants have not commenced any eviction proceeding, but had only served upon Plaintiff a 30-day notice to_ quit. 1n Church v. Allen Meadows Apartments, 69 Misc.2d 254 (Supreme Court, Onondaga County, 1972), the Court was faced with a similar issue which was brought by a tenant facing eviction. The plaintiffs, who leased an apartment in a complex controlled by defendants as managing agent, sought a preliminary injunction to prevent the defendants from evicting p plaintiffs. The plaintiffs al1ege that they had been active arid vocal in a tenants, association which had been seeking corrective action for various housing-code violations by defendants in the apartment complex. In reviewing whether to grant injunctive relief, the Honorable J. Robert Lynch denied granting a preliminary injunction noting that the plaintiffii would be entitl~ to raise as a defense in an eviction proceeding the defense of retaliation. Id. at 255; see also. Kanter ·v; EaJt 62nd Stteet Associates, 111 A.D:2d'26 (1st Dept. 1985). where the First Department denied the plaintiff injunctive relief precluding the landlord from oommencing an action or .proceeding to evict a tenant concluding that the tenant could obtain full relief in a civil court by defending any summary proceeding. Id. at 27. Here, based on the above cases, should an eviction proceeding be commenced by Defendants, Plaintiff will have available to her any defense under th~ Executive Law. The Court. therefore, finds that Plaintiff will not suffer irreparable injury should the Court deny Plaintiff"s application for injunctive relief. 7 [* 7] 9 of 11 INDEX NO. 2017EF2911 FILED: ONONDAGA COUNTY CLERK 12/27/2017 09:32 AM NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 12/21/2017 INDEX NO. 2017EF2911 RECE r RBEJY~-2E ~ 0 \1fl:MHv 1 7 FILED: ONONDAGA COUNTY CLERK .OHONDAGA COUNTY CLERK ,RECEIVED NYSCEF: 1/04/2017 Balancing of the Equiti,a In support. Plaintiff claims that she will continue to pay rent every month and that Defendants will benefit by having her as a tenantt specificalJy that Defendants will not have to repaint_ the apartment for a new tenant or to process rental applica~ns. Plaintiff further contends J that the installation of a ramp would he of no oost to Defendants end would be removable if and when she eventu~lly vacates the apartment. In opposition. Defendants cite to the fact that · Plaintiff cannot meet her burden that she is disabled but sooondly, that it is fundamentally unfair to Defendants to have a ramp installed even if Plaintiff were to cover the cost. -Finallyt ·oefendants contend that there is absolutely no proof that Plaintiffhas been unable to leave her apartment at any time or that. as she contendst is a prisoner within the subject property. .In considering the above, the Court finds that Plaintiff has not met her burden showing P that the equities tip in her favor. Fundamentally, as set forth above, there has been no showing by Plaintiff that she suffers from a disability as defined under the Executive Law. Secondly, there has been no showing that Plaintiff is in fact a "prisoner,, who is unable to leave her apartment at this point in time. At best, the record demonstrates that she has some difficulty with the stairs. -- -- · Accordingly, based on all of the foregoing. the Court denies Plaintiff's application as-set forth in tho Order to Show Cause which seeks a preliminary injunction precluding Defendants from bringing an eviction proceeding and preventing Plaintiff from installing a ramp for ingress and egress. [* 8] 10 of 11 FILED: ONONDAGA COUNTY CLERK 12/27/2017 09:32 AM NYSCEF DOC. NO. 32 INDEX NO. 2017EF2911 RECEIVED NYSCEF: 12/21/2017 INDEX NO. 2017EF2911 RECErv!r! 0 ~~'F': RECEIVED NYSCEFl The above constitutes the Decision of the Court. Defendants• attorney shall electronically file a proposed Order to the Court, on notice to opposing counsel, within fifteen (15) days of the date of this Decision. Dated: December _J_, 2017 1· ENTER p 9 [* 9] 11 of 11 °-1.1lff51¾ih 7 2/04/201 7

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