Matter of Moreno

[*1] Matter of Moreno 2017 NY Slip Op 50419(U) Decided on April 5, 2017 Civil Court Of The City Of New York, Kings County Avery, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 5, 2017
Civil Court of the City of New York, Kings County

In the Matter of the Application of Angel Moreno, Angeles Romero, and Najary Torres, Petitioners, FOR JUDGMENT PURSUANT TO ARTICLE 7A OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW.



HP 12773/16



Brooklyn Legal Services Corp. A

619 Thorp Avenue, 3rd Floor

Brooklyn, NY 11216-2522

Jean Stevens, Esq.

(718) 487-2305

Alexandra Villamia Drimal, Esq.

(718) 487-2335

Borah, Goldstein Altschuler, Nahins & Goidel, PC

377 Broadway

New York, NY 10013

Harriet Polinsky, Esq.

(212) 431-1300

Steve A. Rubinshteyn, Esq.

(212) 431-1300 ext 513

DHPD - Housing Litigation Division

100 Gold Street, Sixth Floor

New York, NY 10038

By: Jeffrey Pierre Louis, Esq.

(212) 863- 5201
Susan F. Avery, J.

BRIEF HISTORY

Petitioners commenced this proceeding by filing an order to show cause, notice of petition and petition seeking the appointment of a Real Property Actions and Procedure Law ("RPAPL") Article 7A administrator [FN1] ("7A proceeding") for the premises known as 94 Franklin Avenue, Brooklyn, 11205.

The petition alleges, and it was not disputed that landlord began a construction project on the property which is the subject of this action, and that the proper permits for the project were not issued. Additionally, it was undisputed that in July of 2015, the Department of Buildings ("DOB") issued a vacate order, requiring all occupants of the subject building to vacate the building. The vacate order is still in effect, and the building is currently vacant, and has been vacant since July of 2015.

Respondent-owner [FN2] appeared through counsel and filed an answer, containing numerous affirmative defenses and a counterclaim.

The matter appeared on the court calendar and after extensive conferencing and settlement discussions, the proceeding was unable to be resolved, and the matter proceeded to trial.

At the close of the petitioners' case in chief, respondent moved to dismiss the proceeding (Civil Practice Law and Rules ("CPLR") §4401). Petitioners opposed the motion.

LEGAL STANDARD: DIRECTED VERDICT

CPLR §4401 authorizes that: "[a]ny party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue, or at any time on the basis of admissions. Grounds for the motion shall be specified. The motion does not waive the right to trial by jury or to present further evidence even where it is made by all parties."

"The proper legal standard for deciding a motion pursuant to CPLR [§]4401 is whether, granting the plaintiff every favorable inference from the evidence submitted, there was any [*2]rational basis upon which [the trier of facts] could have found for the plaintiff."[FN3]

Additionally, CPLR §409 (b) requires that "[t]he court shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised." Indeed, "in a summary proceeding it is the obligation of the court to 'make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised,'"[FN4] by utilizing summary judgment (CPLR §3212) standards [FN5] to determine that a party is entitled to judgment as a matter of law.[FN6]

APPLICATION CURRENTLY BEFORE THE COURT

Respondent seeks dismissal of the instant proceeding based upon the contention that at the close of the petitioners' case in chief, the petitioners failed to meet their prima facie burden of proof to demonstrate that they are entitled to the relief sought in their petition. It is the respondent's contention that following the trial of their case in chief, petitioners failed to demonstrate the existence of every element of their prima facie case, and therefore the proceeding must be dismissed.

Respondent asserts that the petitioners failed to demonstrate: (1) that dangerous conditions exist at the subject premises; (2) that the landlord engaged in a course of conduct which was designed to harass the petitioners; and (3) that the petitioners failed properly provide notice to the non petitioning tenants of the premises, of the pendency of the instant litigation. Petitioners oppose the respondent's contentions.

As resolution of the issue of proper service on the non petitioning tenants is the threshold issue to this motion, this court will first address the issue of notice to the non petitioning tenants.

FAILURE TO PROPERLY NOTIFY NON-PETITIONING TENANTS

RESPONDENT'S CONTENTIONS

Counsel for the respondent argues that the order to show cause commencing this proceeding, "drafted by the petitioners, provided for service upon the non-petitioning tenants (the majority of the building residents) by posting a copy [of documents] upon the exterior door of the premises."[FN7]

Additionally, respondent argues that, in their verified petition, the petitioners' assert that "[w]e learned from other former tenants that Esther told the other tenants [that the issuance of the [*3]vacate order] was our fault for calling 911."[FN8] It is respondent's assertion that based upon this (and other) statements in the pleadings, the petitioners admit to being in contact with the non petitioning tenants, and as a result, should have applied to the court for a method of serving notice of the underlying notice of petition and petition, which was more likely to actually give notice, rather than the method of service that the petitioners' requested in their application.

Further, it is the respondent's assertion that while the method of notice requested by the petitioners' is sufficient where the non petitioning tenants remain in occupancy, in the case at bar, the non petitioning tenants were out of possession at the time of the commencement of this action for nearly seven (7) months and still remain out of possession, and therefore, service of notice of the pendency of the instant 7A proceeding upon them, by posting a copy of notice about the pendency of the instant proceeding on the exterior door to the vacant premises, is not proper notice.[FN9]

PETITIONERS' OPPOSITION

Counsel for the petitioners argue that service on the non petitioning tenants was performed "in the exact way proscribed by the RPAPL §771 and by Judge Avery's signed order."[FN10] It is the petitioners' assertion that because "[p]etitioners have served notice on non-petitioning tenants in a method both approved by statute and specifically authorized by this court.... [p]etitioners' have provided proper notice as a matter of law [pursuant to] RPAPL §771.[FN11]

Additionally, petitioners argue that "[e]ven if [the o]wner-[r]espondent could object to the statutorily-contemplated, judicially approved method of notice, [the o]wner-[r]espondent should be estopped from asserting such a defense[[FN12] ].... As it is undisputed that the [o]wner-[r]espondent undertook unpermitted construction that caused the vacate order. If statutory notice is insufficient, it is because of [the o]wner-[r]espondent's unclean hands."[FN13]

Further, petitioners' maintain that "[a]s a matter of practicality, [p]etitioners should not have to hire or become private investigators to find the former occupants, who could be anywhere, before they can commence a 7A case."[FN14]

Citing to the respondent's answer at paragraphs 2 through 4, petitioners' assert that the "[o]wner-[r]espondent raised the issue of notice to the non-petitioning tenants in their answer but [*4]failed to move for judgment on that basis within 60 days"[FN15] therefore petitioners' assert that the respondent-owner, "waived its ability to raise" this jurisdictional defense.[FN16]

THE APPLICABLE LAW

"Notice of the [7A] proceeding shall be given to the non-petitioning tenants occupying the dwelling by affixing a copy of the notice of petition and petition upon a conspicuous part of the subject dwelling" RPAPL §771(6).

A "dwelling" is defined as: "any building or structure or portion thereof which is occupied in whole or in part as the home, residence or sleeping place of one or more human beings and is either rented, leased, let or hired out, to be occupied, or is occupied as the residence or home of three or more families living independently of each other; or is a garden-type maisonette dwelling project as defined in the multiple dwelling law or other similar dwellings which in their aggregate are arranged or designed to provide three or more apartments...." RPAPL §782

A "notice [is required to be] reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."[FN17] "Indeed, [t]he HP court must ensure that due process has been afforded to those named in the statute [to receive notice], and that service was reasonably calculated to give notice to the non-petitioning tenants."[FN18]

It has been noted that in proceedings for the appointment of a 7A Administrator, "[f]ew cases have discussed the sufficiency of the notice which is required to be given to non-petitioning tenants under RPAPL [§]771(6)"[FN19] and "absen[t]... proof that non-petitioning tenants had been given notice, the court was deprived of jurisdiction."[FN20] Further, case law supports that

where "the makeup of the housing complex.... is a horizontal row house development... [with] 175 entrance doors and 300—400 apartments.... [p]etitioners'.... notice... [to]... non-petitioning tenants... [by]... affix[ing] a single copy of the notice of petition and petition next to the door of the office of the managing agent... proper notice was not provided to the non-petitioning tenants [and dismissal was appropriate]."[FN21] In fact, the court found that the petitioners' selected method [*5]of providing notice to the non petitioning tenants to be "troubling."[FN22]

ANALYSIS OF THE LAW AND THE FACTS

Service Pursuant to Court Order and Statute

As stated above, to commence the instant proceeding, counsel for the petitioners filed a notice of petition, a petition and an order to show cause. The order to show cause, which the petitioners' attorney submitted to this court, provides as follows: "IT IS FURTHER ORDERED that service of (1) this Order upon the non-petitioning tenants of the premises by posting conspicuously upon the front door of the premises, and [of] (2) this Order along with the papers upon which it is based upon... the owner..."[FN23]

This court finds that contrary to counsel for the petitioners' assertion, service on the non petitioning tenants was not performed in accordance with the law. While it was "ORDERED that service of (1) this Order upon the non-petitioning tenants of the premises by posting conspicuously upon the front door of the premises..." there is no language in the order that this "method of service shall be deemed good and sufficient."

Moreover, the language in the order to show cause, which was submitted to this court by the petitioners' attorneys addressed "service" on the non petitioning tenants and not actual "notice" to the non petitioning tenants, as required by the statute.

Additionally, the statute itself requires that notice to the non-petitioning tenants, shall consist of conspicuously placing a copy of the "notice of petition and petition" at the subject premises. However, in their order to show cause application, the petitioners' requested that only the "order" be conspicuously placed at the vacant premises, and makes no mention of the notice of petition and petition.

Further, it is undisputed that the DOB ordered the occupants of the premises to vacate their apartments in July of 2015, and to date the premises remains vacant. The court notes that the instant proceeding was commenced in March of 2016, almost seven (7) months after the tenants were no longer in possession of the premises.

Based upon the foregoing, this court finds that affixing a copy of the "order" (even with the notice of petition and petition) upon a "conspicuous part" of the subject vacant dwelling to which the non petitioning tenants had not resided in for nearly seven (7) months, is insufficiently calculated under the circumstances, to give actual notice.

Landlord's Lack of Standing/Unclean Hands

Petitioners' assert that the respondent does not have standing to challenge service on the non petitioning tenants by conspicuous post at the vacant building, because the landlord is the cause of the vacate order being issued. It is the petitioners' contention that if the landlord had not undertook the "illegal construction" the DOB would not have issued a vacate order and conspicuous service at the premises would have been sufficient to give actual notice to the non petitioning tenants. Therefore, according to the petitioners, the respondent should be estopped from challenging service on the non petitioning tenants at a premises that had been vacant for [*6]seven (7) months prior to the commencement of the instant proceeding and continues to be vacant.

The petitioners' assertion is contrary to law. "The appointment of a 7A administrator is a drastic remedy which should not be invoked without the participation of all tenants interested in the habitability of the apartments and building where they reside.[FN24] Indeed, the requirement of notice to the non petitioning tenants, is a mechanism to protect the rights of the non petitioning tenants and provide them with due process and an opportunity to he heard.[FN25]

As such, the landlord has no authority to alienate the rights of the non petitioning tenants to their due process protections.[FN26] Accordingly, even if this court found that the landlord had "unclean hands" the landlord's "unclean hands" could not operate to deprive non petitioning tenants of their rights to be heard, as that right does not belong to the landlord.

Landlord's Waiver of Challenge to Service (CPLR §3211 (e))

Petitioners also argue that the landlord waived the right to challenge the method service on the non petitioning residents because the respondent-landlord failed to timely move to dismiss the petition based upon that jurisdictional defense (CPLR §3211(e).[FN27]

As stated above, the purpose of requiring notice of the pendency of the 7A proceeding, to be given to the non petitioning tenants is to protect the rights of the non petitioners. There is no support for the contention that a landlord may waive the rights of unnamed and interested individuals as each "ha[s] independent... rights [and interests in relation] to [the premises]..."[FN28] Indeed, the RPAPL notice requirement "must be seen as a safeguard provided by the Legislature against [the] imposition of an administrator with all that this entails"[FN29] without the participation of the tenants that wish to be heard.[FN30] As a result, demonstrating proper notice, to interested non party and non petitioning tenants is part of the petitioners' prima facie case, which must be demonstrated at trial.

SERVICE AT A VACANT BUILDING

The RPAPL notice requirement "must be seen as a [constitutional] safeguard provided by [*7]the Legislature to ensure participation of all interested tenants.[FN31] As it is only by enforcing the "constitutional safeguards of due process"[FN32] that true justice will be achieved.[FN33] Therefore, it is the obligation of this court to "...follow the plain meaning of the statute"[FN34] which was enacted to protect the non petitioning tenants and conclude that notice to the non petitioning tenants at a premises which was vacant for seven (7) months prior to the commencement of the instant proceeding and to date, remains vacant, is not notice that is reasonably calculated, under the circumstances, to actually give notice. In fact, the selected method "notice" is "troubling."[FN35]

.

The court notes that the petition alleges that the subject building contains seven (7) or eight (8) units and individuals from three (3) of those units are petitioners.[FN36] While counsel for the landlord asserts that the petitioners should have known or been able to ascertain where the other tenants that were similarly evacuated, could be located,[FN37] there is nothing in the record to support this contention.

However, this court finds that it would not have been too burdensome a task for the petitioners to have made some type of effort in an attempt to locate the occupants of only four (4) or five (5) units [FN38] especially where, as here, trial testimony supported that one (1) of the petitioners' is a sibling of a non petitioning tenant, and each occupied separate apartments at the premises.

Further, this court takes judicial notice that "[u]nder Administrative Code §26-305, building owners [are] responsible for the violation that caused a vacate order [to be issued and] must reimburse HPD's relocation expenses.... The landlord's obligation for such expenses lasts as long as the tenant is in temporary housing — that is, until the tenant is placed in permanent housing or is permitted, after any violations have been remedied, to return to the vacated [*8]apartment."[FN39] Based upon the foregoing statute, this court finds, that it would not have imposed too much of a hardship for the petitioners' attorneys to have inquired to co-respondent DHPD as to the status of the four (4) or five (5) non petitioning tenants.[FN40]

Accordingly, in a 7A proceeding, where a vacate order, which evacuated all residents of the premises and had been in effect for seven (7) months prior to the commencement of the Article 7A proceeding, and remains in effect subsequent to the petitioners resting at trial, this court finds affixing a copy of the notice of petition and petition, at a conspicuous part of the vacant premises, is insufficient to provide adequate notice.

On the unique facts of this case, the petitioners' owed a duty to the four (4) or five (5) non petitioning tenants, to provide them with notice of the pendency of the instant proceeding, which was reasonably calculated under the circumstances, to provide actual notice.[FN41] As there was no trial testimony as to what attempts, if any, the petitioners' took, in the exercise of due diligence, to ascertain, where any of the non petitioning tenants could be located, an element of the petitioners' prima facie burden has not been demonstrated.

DETERMINATION

Having rested after offering their prima facie case, and having chosen a method of service upon the non petitioning tenants which was not reasonably calculated to provide actual notice to the non petitioning tenants, the petitioners' have failed to demonstrate an element of their prima facie burden, and as a result this court is constrained to deny the petition.

CONCLUSION

Based upon the foregoing, the respondent's motion is granted the petition is denied and the proceeding is dismissed.

The foregoing constitutes the decision and order of the court.

Dated: Brooklyn, NY

April 5, 2017 Footnotes

Footnote 1:Article 7A of the RPAPL establishes a mechanism whereby the court can remove an irresponsible landlord from management of a building and replace that irresponsible landlord with a responsible manager of the property.

Footnote 2:Mindful that the Department of Housing Preservation and Development ("DHPD") is a respondent in this proceeding, for purposes of this decision, this court will be referring to the landlord-owner, when referring to the "respondent."

Footnote 3:Godlewska v Niznikiewicz, 8 AD3d 430 (2nd Dept [2004]).

Footnote 4: Fourth Housing Co., Inc., v Bowers, 53 Misc 3d 43 (App Term 2nd Dept 2nd, 11th & 13th Jud Dists [2016]) citing to CPLR §409[b].

Footnote 5:See Town of Oyster Bay Housing Authority v Kohler, 34 Misc 3d 1243(A) (Dist Ct Nassau County [Fairgrieve, J., 2012]) "CPLR 409[b] which governs hearings in special proceedings, requires that the Court make a summary determination upon the pleadings, papers and admissions... [by applying] the standards governing motions for summary judgment... [which is] applicable to... summary proceeding[s] to recover possession of real property...."

Footnote 6:Pena v Penny Lane Realty Inc., 129 AD3d 441 (1st Dept [2015]).

Footnote 7:Affirmation of Harriet M. Polinsky, Esq., dated February 14, 2017 at ¶22.

Footnote 8:Petitioners' Affidavits in support, sworn to on March 7, 2016 at ¶16.

Footnote 9:Affirmation of Harriet M. Polinsky, Esq., dated February 14, 2017 at ¶¶22 and 23.

Footnote 10:Affirmation of Alexandra Drimal, Esq., dated March 3, 2017 at ¶23.

Footnote 11:Affirmation of Alexandra Drimal, Esq., dated March 3, 2017 at ¶25.

Footnote 12:Affirmation of Alexandra Drimal, Esq., dated March 3, 2017 at ¶27.

Footnote 13:Affirmation of Alexandra Drimal, Esq., dated March 3, 2017 at ¶28.

Footnote 14:Affirmation of Alexandra Drimal, Esq., dated March 3, 2017 at ¶29.

Footnote 15:Affirmation of Alexandra Drimal, Esq., dated March 3, 2017 at ¶30.

Footnote 16:Affirmation of Alexandra Drimal, Esq., dated March 3, 2017 at ¶¶30 and 31.

Footnote 17:149 Glen Street Corp. v Jefferson, 40 AD3d 742 (2nd Dept [2016]) citing Mullane v Central Hanover Bank & Trust Co., 339 US 306 ([1950]).

Footnote 18: Matthews v Marcus Garvey Brownstone Houses, Inc., 188 Misc 2d 503 (Civ Ct Kings County [Sikowitz, J., 2001]) affd 192 Misc 2d 439 (App Term 2nd Dept [2002]).

Footnote 19:Matthews v Marcus Garvey Brownstone Houses Inc., 192 Misc 2d 439 (App Term 2nd Dept [2002]).

Footnote 20:Matthews v Marcus Garvey Brownstone Houses Inc., 192 Misc 2d 439 (App Term 2nd Dept [2002]) citing Eversley v Ulkan Realty Corp., 70 Misc 2d 153 (Civ Ct NY County [Stecher, J., 1972]).

Footnote 21:Matthews v Marcus Garvey Brownstone Houses Inc., 192 Misc 2d 439 (App Term 2nd Dept [2002]).

Footnote 22:Matthews v Marcus Garvey Brownstone Houses Inc., 192 Misc 2d 439 (App Term 2nd Dept [2002]).

Footnote 23:Order to Show Cause dated March 9, 2017, at pages 2 through 3.

Footnote 24:Wall St. Transcript Corp. v Finch Apt. Corp., 148 Misc 2d 181 (Civ Ct NY County [Gruner Gans, J., 1990]).

Footnote 25:"[T]he requirements of due process and fair procedure are flexible as to the... formality.... called for by the particular situation" In re Morataya, 53 Misc 3d 242 (Civ Ct Kings County [Avery, J., 2016]) citing People v Forman, 145 Misc 2d 115 (Crim Ct NY County [1989]) citing Morrissey v Brewer, 408 US 471 ([1972]).

Footnote 26:Morrisania II Assocs. v Harvey, 139 Misc 2d 651 (Civ Ct Bronx County [Stallman, J., 1988]).

Footnote 27:Petitioners' cite CPLR §3211(e) to support their contention. CPLR §3211(e) provides that "an objection that the summons and complaint, summons with notice, a notice of petition and petition was not properly served, is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading...."

Footnote 28:Morrisania II Assocs. v Harvey, 139 Misc 2d 651 (Civ Ct Bronx County [Stallman, J., 1988]).

Footnote 29:Wall St. Transcript Corp. v Finch Apt. Corp., 148 Misc 2d 181 (Civ Ct NY County [Gruner Gans, J., 1990]).

Footnote 30:Wall St. Transcript Corp. v Finch Apt. Corp., 148 Misc 2d 181 (Civ Ct NY County [Gruner Gans, J., 1990]).

Footnote 31:Wall St. Transcript Corp. v Finch Apt. Corp., 148 Misc 2d 181 (Civ Ct NY County [Gruner Gans, J., 1990]).

Footnote 32:Smith v O'Grady, 312 US 329 ([1941]).

Footnote 33:See. Gideon v Wainwright, 372 US 335 at 343 ([1963]) "[t]he Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not still be done."

Footnote 34:Alston v Starrett City, Inc., 2016 NY Slip Op 31283(U) (Sup Ct NY County [Hagler, J.]).

Footnote 35:Matthews v Marcus Garvey Brownstone Houses Inc., 192 Misc 2d 439 (App Term 2nd Dept [2002]).

Footnote 36:"There are seven (7) or eight (8) apartments in said multiple dwelling and the three (3) [t]enant-[p]etitioners from three (3) separate apartments constitute one-third or more of the tenants in occupancy of said multiple dwelling" Petition dated March 9, 2016, at ¶2.

Footnote 37:Affirmation of Harriet M. Polinsky, Esq., dated February 14, 2017 at ¶22.

Footnote 38:"...Det. Sgt. DeMarco failed to ask her the one question that could have tied all the pieces of information together, namely, did defendant leave any forwarding address" People v Schiavo, 118 Misc 2d 776 (Westchester County Ct [Rosato, J., 1983]).

Footnote 39:Rivera v Department of Hous. Preserv. & Dev. of the City of NY, 2017 NY Slip Op 02587 ([NY Court of Appeals]) citing Department of Relocation Memorandum in Support of Local Law No. 15, at 1-3 ([Oct. 19, 1967]).

Footnote 40:"Indeed, as the Appellate Division, Second Department has previously held, in a factually analogous case, 'there is no merit to the petitioner's argument that hotel expenses incurred by DHPD for relocating the tenants who vacated the subject premises pursuant to a vacate order issued by the Buildings Department [DOB] are not recoverable. DHPD is required to offer... shelter to relocatees...'" Rivera v Department of Hous. Preserv. & Dev. of the City of NY, 2017 NY Slip Op 02587 ([NY Court of Appeals]) citing Matter of Retek v City of New York, 14 AD3d 708 (2nd Dept [2005]) (emphasis added).

Footnote 41:"In support of their application... the plaintiffs demonstrated that Tigre left the country... without leaving a forwarding address. Under these circumstances, the Supreme Court properly determined that service upon Tigre was impracticable under the... relevant subsections of CPLR [§]308, and that expedient service was appropriate (internal citations omitted). The manner in which expedient service was directed to be made was reasonably calculated to apprise Tigre of the action brought against him" Solomon v Horie Karate Dojo, 283 AD2d 479 (2nd Dept [2001]).