Matter of Brown
Annotate this CaseDecided on November 4, 2016
Civil Court of the City of New York, Kings County
In the Matter of the Application of Reena Brown, Judith Garcia, Deciree Otero and Andres Serrano, Petitioners-tenants, For Judgment Pursuant to Article 7a Of the Real Property Actions and Proceedings Law, appointing a court designated administrator for the premises known as 314 MacDougal Street, Brooklyn, NY 11223 Block 1535. Lot 10.
HP 15262/2016
Brooklyn Legal Services Corp. A
260 Broadway, 2nd Floor
Brooklyn, NY 11211
By: Gregory E. Louis, Esq.
(718) 487-4757
By: Rachel Nager, Esq.
(718) 487-2308
DHPD - Housing Litigation Division
100 Gold Street, Sixth Floor
New York, NY 10038
By: Will Muniz, Esq.
(212) 863-7388
Becker & Pollakoff, LLP
45 Broadway
New York, NY 10006
(212) 599-3322
By: Glen Spiegal, Esq.
(212) 599-3322
Susan F. Avery, J.
Petitioners commenced this proceeding by filing an order to show cause, notice of [*2]petition and petition seeking the appointment of a Real Property Actions and Procedure Law ("RPAPL") Article 7A administrator [FN1] for the premises known as 314 MacDougal Street, Brooklyn, NY 11223. The proceeding was unable to be resolved, and the matter proceeded to trial.
Upon the commencement of the trial, the court took judicial notice of the violations of record placed at the subject property by the Department of Housing Preservation and Development ("DHPD") (which was admitted into evidence as petitioner's exhibit 1), the Department of Buildings ("DOB") and complaints filed with the Environmental Control Board ("ECB") (petitioner's exhibits 2-A through L).
THE APPLICATIONS CURRENTLY BEFORE THE COURT
Respondent's Application
At the close of the petitioners' case in chief, counsel for the respondent orally moved for dismissal of the proceeding, upon the contention that the petitioners failed meet their prima facie burden. The court denied the oral application without prejudice to commencing the application in writing, and the proceeding was adjourned for the court to hear oral argument on the written application.
However, rather than submitting a written motion seeking a directed verdict, counsel for the respondent submitted a memoranda of law, in support of the argument that the proceeding should be dismissed, based upon the contention that the petitioners failed to meet their prima facie burden.
Respondent contends that the proceeding must be dismissed, because following the submission of petitioners "case in chief" in which the petitioners called only one (1) witness and submitted numerous documents into evidence, the petitioners failed to meet their prima facie burden to support that a RPAPL 7A Administrator should be appointed. Therefore, respondent contends that CPLR §4401 and RPAPL §776 [FN2] require dismissal of the instant proceeding.
Petitioners' Application
In opposition, petitioners contend that the documents contained within the court file, including the certified documents of DHPD and the DOB, as well as court documents including affidavits, coupled with Ms. Garcia's unrebutted testimony, are sufficient for this court to appoint an administrator and to defeat the respondent's application for a directed verdict.[FN3] Petitioners also request that the matter proceed to trial on the respondent's defenses. The court notes that the petitioners' initial moving papers seek judgment as a matter of law pursuant to CPLR §409 and [*3]RPAPL Article 7A.[FN4] As a result, this court will address both contentions.
Additionally, petitioners assertion that the respondent's application for a directed verdict is not properly before the court and is without merit. Following the respondent's oral application for a directed verdict, the court requested that the respondent "make the application in writing" and the proceeding was adjourned, on the record for that purpose. Contrary to the petitioners' assertion, the respondent was not required to submit a formal motion on notice.
PETITIONERS' WITNESS
At trial, the petitioners called Ms. Judith Garcia as a witness. Ms. Garcia stated that she has lived in apartment 2R at 314 MacDougal Street, for fourteen (14) years. She stated that she brought this action because she is afraid for the health and safety of herself and her family at the premises. She stated that construction work is being done in the apartments located on the floor above where her apartment is located. She said as a result of the construction, she felt that her safety was jeopardized because there was constant banging, free falling plaster, noise, pipes shaking and that the ceiling "caved in."
A document was marked for identification as petitioners' exhibit 3. Ms. Garcia testified that she recognized the document marked for identification as petitioners' exhibit 3 as a photograph she took with her phone, which depicts the ceiling in her child's room, showing there is a hole in the ceiling. Ms. Garcia stated that the photograph depicts a true and accurate representation of the condition of the ceiling in the room. The document was admitted into evidence.
Admitted into evidence as petitioners' exhibit 4 was a photograph which Ms Garcia stated that she took on May 10, 2016 and it accurately depicts the condition of the bed in her child's room, full of debris, following the collapse of the ceiling.
Ms. Garcia testified that the building she lives in contains six (6) units and that the two (2) units located on the third floor, are vacant. She then named the co-petitioners as occupants of the other apartments in the building which is the subject of this action.
At the request of the petitioners' counsel, judicial notice was taken of the contents of the entire court file, with a special emphasis on the respondent's affidavit in support of its order to show cause.[FN5]
Following Ms. Garcia's testimony, counsel for the petitioners sought to have additional documents admitted into evidence, which over counsel for the respondent's objection, were admitted into evidence by the court. The petitioners then rested.
RESPONDENT'S ARGUMENTS IN SUPPORT OF DISMISSAL OF THIS ACTION
It is respondent's contention that in support of their case, petitioners failed to submit "credible evidence" and submitted "only suspect testimony" and certified documents which fail to demonstrate by "a preponderance of the evidence" that conditions exist which are "dangerous" to health and safety. Additionally, respondent argues that not every violation placed is dangerous to health and safety. Additionally, respondent asserts, there was not even "a scintilla of evidence" to support the petitioner's harassment claims.
[*4]ARTICLE 7A OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW
Article 7A of the RPAPL authorizes the commencement of a "special proceeding by tenants of a dwelling in the city of New York... for a judgment directing the deposit of rents into court and their use for the purpose of remedying conditions dangerous to life, health or safety... in the civil court of the city of New York..."[FN6]
RPAPL §770(1) details the grounds upon which an article 7A proceeding may be maintained. The statute provides that:
"One-third or more of the tenants occupying a dwelling located in the city of New York.... may maintain a special proceeding ... upon the ground that there exists in such dwellings or in any part thereof a lack of heat or of running water or of light or of electricity or of adequate sewage disposal facilities, or any other condition dangerous to life, health or safety, which has existed for five days, or an infestation by rodents, or any combination of such conditions; or course of conduct by the owner or the owner's agents of harassment, illegal eviction, continued deprivation of services or other acts dangerous to life, health or safety....." RPAPL §770(1).Once one third or more of the tenants/petitioners demonstrate the existence of "a lack of heat or of running water or of light or of electricity or of adequate sewage disposal facilities, or any other condition dangerous to life, health or safety, which has existed for five days, or an infestation by rodents, or any combination of such conditions; or course of conduct by the owner or the owner's agents of harassment, illegal eviction, continued deprivation of services or other acts dangerous to life, health or safety....." as required by RPAPL §770(1), the burden shifts to the owner [FN7] to demonstrate the existence of one (1) or more of the three (3) defenses specifically authorized by statute.
REQUIRED DETERMINATIONS
Following the trial, RPAPL §776 requires that "[t]he court shall render a final judgment either:
"a. Dismissing the petition for failure to affirmatively establish the allegations thereof or because of the affirmative establishment by the owner .... of a defense or defenses specified in section seven hundred seventy-five of this article; or"b. Directing that"(1) the rents due on the date of the entry of such judgment from the petitioning tenants and the rents due on the dates of service of the judgment on all other residential and non-residential tenants occupying such dwelling from such other tenants, shall be deposited with the administrator appointed by the court, pursuant to section seven hundred seventy-eight of this article;"(2) any rents to become due in the future from all tenants occupying such dwelling shall be deposited with such administrator as they fall due;"(3) such deposited rents shall be used, subject to the court's direction, to the extent necessary to remedy the condition or conditions alleged in the petition and"(4) upon the completion of such work in accordance with such judgment, any remaining surplus shall be turned over to the owner, together with a complete accounting of the rents deposited and the costs incurred; and granting such other and further relief as to the court may seem just and proper ...."[FN8]ALTERNATIVE PERMISSIBLE DETERMINATION
The law also supports that, "[i]f, after a trial, the court shall determine that the facts alleged in the petition have been affirmatively established by the petitioners, that no[ne of the three (3)] defense(s)... [permitted] has been affirmatively established by the owner.... and that the facts alleged in the petition warrant the granting of the relief sought, and if the owner.... shall apply to the court to be permitted to remove or remedy the conditions specified in such petition and shall (1) demonstrate the ability promptly to undertake the work required; and (2) post security for the performance thereof within the time, and in the amount and manner, deemed necessary by the court, then the court, in lieu of rendering judgment.... may issue an order permitting [the owner] to perform the work within a time fixed by the court."[FN9]
POTENTIAL DEFENSES
RPAPL §775 provides that "[i]t shall be a sufficient defense to the proceeding, if the [owner can] establish that: a. The condition or conditions alleged in the petition did not in fact exist or that such condition or conditions have been removed or remedied; or b. Such condition or conditions has been caused by a petitioning tenant or tenants or members of the family or families of such petitioner or petitioners or of their guests or by other residents of the dwelling or their families or guests; or c. Any tenant or resident of the dwelling has refused entry to the owner or his agent to a portion of the premises for the purpose of correcting such condition or conditions."
CPLR §4401
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."CPLR §409
CPLR §409 (a) reads as follows:
"[u]pon the hearing, each party shall furnish to the court all papers served by him. The petitioner shall furnish all other papers not already in the possession of the court necessary to the consideration of the questions involved. Where such papers are in the [*5]possession of an adverse party, they shall be produced by such party at the hearing on notice served with the petition. The court may require the submission of additional proof. All papers furnished to the court shall be filed unless the court orders otherwise."Additionally, CPLR §409 (b) reads as follows: "[s]ummary determination. The court shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised."
RESPONDENT'S ARGUMENTS
Respondent argues that the petitioners, may not rely on pleadings, affidavits and the testimony of a single witness to support that an RPAPL Article 7A administrator should be appointed. Additionally, the respondent asserts that the law requires that to appoint an RPAPL Article 7A administrator, the petitioners must demonstrate that one-third or more of the tenants occupying the dwelling are named petitioners in the proceeding and the one-third or more of those tenants must demonstrate that "there exists in such dwelling... a lack of heat or of running water or of light or of electricity or of adequate sewage disposal facilities, or any other condition dangerous to life, health or safety.... or an infestation by rodents, or any combination of such conditions; or course of conduct by the owner or the owner's agents of harassment, illegal eviction, continued deprivation of services or other acts dangerous to life, health or safety....." "which has existed for five days." It is the respondent's position that the petitioners failed to meet their statutory burden.
ANALYSIS OF THE FACTS AND THE LAW
"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 rational basis upon which [the trier of facts] could have found for the plaintiff."[FN10] Indeed, "[t]he 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 rational basis upon which [the trier of facts] could have found for the plaintiff."[FN11]
"[I]n 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,'"[FN12] by utilizing summary judgment (CPLR §3212) standards [FN13] to determine that a party is entitled to judgment as a matter of law.[FN14]
Respondent's argument that Ms. Garcia gave inconsistent testimony and therefore is not a [*6]credible witness has no relevance to the instant application,[FN15] as this court must deem Ms. Garcia to be a credible witness when ruling on respondent's CPLR §4401 motion.[FN16]
Similarly, a determination on the petitioners' CPLR §409 application must be analyzed using CPLR §3212 summary judgement standards, which requires that the court view the submissions in a light most favorable to the respondent.[FN17]
To support the appointment of an RPAPL Article 7A administrator, it was petitioners' burden to submit proof in evidentiary form from at least one third of the tenants that dangerous conditions have existed at the premises for more than five (5) days. To raise a factual issue, it was respondent's burden to demonstrate the existence of one (1) or more of the defenses authorized by statute. It has been held that, "in addition to their pleadings [where] the parties have submitted other evidence to support their respective positions, the court may treat the matter summarily and proceed to search the record to determine whether genuine triable issues of fact are present (see, CPLR 409[b])."[FN18]
RESPONDENT'S CASE IN DEFENSE
Upon a search of the record, this court finds that the respondent has asserted sufficient defenses to this proceeding as authorized by RPAPL §775.[FN19] Specifically, the respondent has asserted that the petitioners have refused to provide access to inspect and correct the stated [*7]conditions;[FN20] that the conditions were caused by the petitioners or guests or family members of the petitioners [FN21] and that the conditions have been corrected.[FN22]
THE PLAIN LANGUAGE OF THE STATUTE
Notwithstanding the statutory provisions that the parties base their arguments upon, the laws of statutory construction require this court to base its determination, on the more specific provisions of the RPAPL when determining the drastic remedy of appointing an RPAPL Article 7A administrator, rather than the general provisions of the CPLR for awarding judgments.[FN23]
RPAPL §774 is clear that "[w]here triable issues are raised... they shall be tried by the court..." Accordingly, it is for this court to determine whether the statute requires that, in order to prove their prima facie case, at least one third of the tenants at the premises must testify in court at the trial and subject themselves to cross examination, or whether the statute contemplates that a "trial on submitted papers" along with the trial testimony of a single witness, is sufficient to support the appointment of an RPAPL Article 7A administrator.
Based upon the foregoing, this court will analyze the language of the applicable statutes. As "it is well-established... that the legislature may, in enacting a law, define the terms used therein or declare what construction shall be placed on its own language, and such legislative interpretations will not be lightly disregarded."[FN24] Indeed, "[w]hen construing a statute, courts must first look to the language of the statute. If the language is clear and unambiguous, courts must follow the plain meaning of the statute."[FN25]
As the appointment of an RPAPL Article 7-A administrator is a drastic remedy, it must not be invoked without the participation of all of the statutorily required tenants (RPAPL §770(1)). The requirement of RPAPL §770 (1) that at least one third of the affected tenants "maintain" the proceeding, must be seen as a safeguard provided by the legislature to ensure that [*8]a landlord will not be divested of his or her property interest by the imposition of an administrator at the request of only a minority of the tenants in occupancy.[FN26]
The plain language of RPAPL §774, read in tandem with the plain language of CPLR §409 require this court to conduct a trial, where complaining witnesses are subject to cross examination. While CPLR §3212 (a) states that "[a]ny party may move for summary judgment in any action, after issue has been joined," RPAPL §774 mandates that "[w]here triable issues of fact are raised, they shall be tried by the court" (emphasis added). Moreover, CPLR §409 only authorizes summary determination upon the pleadings, papers and admissions "to the extent that no triable issues of fact are raised"[FN27] (emphasis added) and courts consistently hold that where issues of fact are raised, they must be resolved at trial.[FN28] In the case at bar, the respondent raised issues which preclude summary determination in petitioners' favor.
DUE PROCESS REQUIREMENTS
Having sufficiently asserted valid defenses to this proceeding, the respondent was entitled to a trial on the issues raised, and was entitled to confront the complaining petitioners through cross examination.[FN29]
The New York State Constitution mandates that "[n]o person shall be deprived of life, liberty or property without due process of law,"[FN30] and the language of the New York State Constitution mirrors the language of Fourteenth Amendment of the Federal Constitution.[FN31] Accordingly, the court is constitutionally required to conduct a hearing prior to depriving the respondent of any property rights.[FN32]
The due process provisions of the Federal and State Constitutions require that: "[w]henever state action deprives a citizen of his or her liberty or property due process requires [*9]that he or she be afforded the opportunity for a hearing."[FN33] "The hearing must be provided '...in a meaningful manner.'"[FN34] To be meaningful, the hearing "must comply with the mandates of due process."[FN35] Indeed, "[e]ssential among the minimal standards which must be observed [to ensure due process requirements are met] are the right to confront and cross-examine adverse witnesses..."[FN36] and "the denial of the opportunity to cross-examine that witness work[s as] a substantial deprivation upon petitioner's right to a fair hearing."[FN37] Also, "[t]here was no abuse of discretion in the decision to... to strike tenant[s] testimony.... for her failure to submit to cross examination."[FN38] Additionally, the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses."[FN39]
Further, "[i]n almost every setting where important decisions turn on questions of fact, [constitutional] due process requires an opportunity to confront and cross-examine adverse witnesses,"[FN40] and it is only by enforcing the "constitutional safeguards of due process"[FN41] that true justice will be achieved.[FN42]
NEGATIVE INFERENCE
"A trier of fact may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding,"[FN43] including summary proceedings [*10]tried in Housing Court.[FN44] Accordingly, this court draws a negative inference as a result of the petitioners' failure to call two thirds of the tenants of the subject premises to testify at the trial on their own behalf.
CONCLUSION
The petitioners' having called only one (1) witness/tenant when it is undisputed that four (4) units at the residence/building are currently occupied, have precluded respondent from the opportunity to confront his accusers. As a result, petitioners have failed meet their prima facie burden [FN45] and respondent is entitled to judgment in its favor.[FN46] In light of the above determination, this court need not address any other issue.
DECISION/ORDER
Based upon the foregoing, the proceeding is dismissed.
The foregoing constitutes the decision and order of the court.
Dated: Brooklyn, NY
November 4, 2016
/s/
Susan F. Avery, Judge Housing Court 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.
Footnote 2:Following the trial in an RPAPL Article 7A proceeding, RPAPL §776 requires the court to either dismiss the proceeding (RPAPL §776 (a)) or to appoint an administrator (RPAPL §776 (b)), the court has no discretion but to rule in one (1) of those two (2) ways, except as permitted by RPAPL §776.
Footnote 3:See affirmation of Racheal Nager, Esq., dated May, 26, 2016.
Footnote 4:See affirmation of Racheal Nager, Esq., dated May, 26, 2016.
Footnote 5:See affidavit of Jacob Leifer June 26, 2016.
Footnote 6:RPAPL § 769(1).
Footnote 7:"...the term 'owner' shall mean and include the owner or owners of the freehold of the premises or lesser estate therein, mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee, agent, or any other person, firm or corporation, directly or indirectly in control of a dwelling, but shall not include a receiver appointed pursuant to section three hundred nine of the multiple dwelling law" RPAPL §781.
Footnote 8:RPAPL §776.
Footnote 9:RPAPL §777(a).
Footnote 10:Godlewska v Niznikiewicz, 8 AD3d 430 (2nd Dept [2004]).
Footnote 11:Godlewska v Niznikiewicz, 8 AD3d 430 (2nd Dept [2004]).
Footnote 12: Fourth Housing Co., Inc., v Bowers, 2016 NY Slip Op 26217 (App Term 2nd Dept 2nd 11th & 13th Jud Dists) citing to CPLR §409[b].
Footnote 13: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 14:Pena v Penny Lane Realty Inc., 129 AD3d 441 (1st Dept [2015]).
Footnote 15:"In reviewing the dismissal of plaintiffs' complaint at the close of their case, this court is required (as was the trial court) to view the evidence adduced in the light most favorable to plaintiffs, and all questions as to a particular witness' credibility must be resolved in plaintiffs' favor," Santiago v Steinway Trucking, 97 AD2d 753 (2nd Dept [1983]); see also "...the judgment is reversed... the motion.... pursuant to CPLR [§]4401 is denied, the complaint.... [is] reinstated, and the matter is remitted to the Supreme Court, Kings County.... To be entitled to judgment as a matter of law pursuant to CPLR [§]4401.... the trial court must.... consider [the facts] in a light most favorable to the nonmovant.... and [i]n making this determination, a court must not 'engage in a weighing of the evidence,' nor [grant such motion] where.... the credibility of [a] witness[] is in question," Bzezi v Eldib, 112 AD3d 772 (2nd Dept [2013]) (citing Dolitsky v Bay Isle Oil Co., 111 AD2d 366 (2nd Dept [1985]); and Brownrigg v New York City Hous. Auth., 70 AD3d 619 (2nd Dept [2010])).
Footnote 16:See Pipelias v City of New York, 99 AD3d 685 (2nd Dept [2012]) "[t]he Supreme Court erred in granting the... CPLR [§]4401 [motion]... and in dismissing the complaint.... A motion for judgment as a matter of law is to be made at the close of an opposing party's case or at any time on the basis of admissions (see CPLR [§]4401), and the granting of such a motion... generally will be reversed... even if the ultimate success of the opposing party in the action is improbable."
Footnote 17:"The standards of [CPLR §3212 motions for] summary judgment... should also be applied by the court to proceedings governed by CPLR [§]409..." Port Of New York Authority, v 62 Cortlandt Street Realty Co, 18 NY2d 250 ([1966]).
Footnote 18:Gilheany, v The Civil Service Employees Assoc., Inc., 59 AD2d 834 (3rd Dept [1977]).
Footnote 19:See Chelsea Ridge NY, LLC, v Clarke, 42 Misc 3d 128(A) (App Term 2nd Dept 9th & 10th Judicial Dists [2013]) "[a]fter reviewing written submissions from landlord and tenants, the Justice Court made a summary determination (see CPLR [§]409[b]) and awarded landlord possession.... However, tenants alleged, in their answer, that there was a rent overcharge. In view of this assertion, it was error for the court to award landlord a final judgment without taking sworn testimony at a trial."
Footnote 20:See answer verified by Mr. Leifer on June 16, 2016 at¶7 and ¶9, see also affidavit of Mr. Leifer sworn to June 26, 2016 at ¶17 and ¶18.
Footnote 21:See affidavit sworn to on June 26, 2016 by Mr. Leifer at ¶18, see also answer verified by Mr. Leifer on June 16, 2016 at ¶8 and ¶9. To the extent that paragraph 8 of the verified answer notifies the petitioners and the court that the respondent asserts the defense that the conditions were caused by the petitioners or the petitioners' family or guests, the court notes that the paragraph is asserted to be "based upon information and belief" and therefore of no probative value, and will not be considered in ths court's determination, see, LK Comstock & Company, Inc, v Duffy, 43 AD2d 704 (2nd Dept [1973]) "...the above-mentioned affidavit in opposition ...lacks probative value since it was made on information and belief." However, the affidavits sworn to by Mr. Leifer do not contain such qualifying language, and therefore will be considered by this court.
Footnote 22:See affidavit sworn to on June 26, 2016 by Mr. Leifer at ¶17 and §18, and affidavit submitted sworn to by Mr. Leifer on June 16, 2016 at ¶19.
Footnote 23:A "general statute must yield to a... specific statute...." Dandomar Co., LLC v. Town of Pleasant Valley Town Bd., 86 AD3d 83 (2nd Dept [2011]).
Footnote 24:49 Bleecker, Inc. v Gatien, 51 Misc 3d 152(A) (App Term 1st Dept [Ling-Cohan, J., dissenting] 2016) citing (McKinney's Cons Laws of NY, Book 1, Statutes §75, Comment at 160 [1971 ed].
Footnote 25:Alston v Starrett City, Inc., 2016 NY Slip Op 31283(U) (Sup Ct NY County [Hagler, J.]).
Footnote 26:Wall St. Transcript Corp. v Finch Apt. Corp., 148 Misc 2d 181 (Civ Ct NY County [Gruner Gans, J., 1990]).
Footnote 27:"Contrary to the petitioner's contention, the Supreme Court did not err in summarily denying the petition. In a special proceeding, the court 'shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised'" (CPLR [§]409[b]" Addesso v Addesso, 131 AD3d 1052 (2nd Dept [2015]).
Footnote 28: See, Karpf v McLaren, 40 AD2d 995 (2nd Dept 1972]) "[i]n our opinion, issues of fact were presented by the proof, which required their submission to the jury" and L.N.L. Const. v M.T.F. Industries, Inc., 190 AD2d 714 (2nd Dept [1993]) "even the color of a triable issue of fact forecloses the remedy [of a summary determination]."
Footnote 29:See MacLean v 7 Ave. Garden, LLC FKAL Management Corp., 44 Misc 3d 1208(A) (Civ Ct NY County [Kraus, J., 2014]) RPAPL 7A proceeding dismissed where "[o]nly two of the three Petitioners actually appeared to testify"; see also, In re Garcia, 2002 NY Slip Op 50497(U) (Civ Ct Kings County [2002] Scheckowitz, J.) "the petition [seeking the appointment of a 7A administrator] is dismissed" where "the court note[ed] that only six of these 15 (sic) remaining petitioners have testified at trial."
Footnote 30:McKinney's Const. Art 1 §6 NY Comp Codes R & Regs title 18 §515.2 (emphasis added).
Footnote 31:USCA Const Amend 14.
Footnote 32:See Sedgwick Ave. Realty Assoc., L.L.C. v Torres, 38 Misc 3d 1212 (Civ Ct Bronx County [Lehrer, J., 2013]) "... if an affidavit... provides the information required by the [the statutes] no hearing is required unless the party challenging [the affidavit] alleges specific facts to rebut the statements made in that affidavit.
Footnote 33: People v Forman, 145 Misc 2d 115 (Crim Ct NY County [Gruner—Gans, J., 1989]) (emphasis added) citing to Schall v Martin, 467 US 253 ([1984]); Mathews v Eldridge, 424 US 319 ([1976]); Gerstein v Pugh, 420 US 103 ([1975]); Matter of Jones v Berman, 37 NY2d 42 at 55 ([1975]); Sharrock v Dell Buick—Cadillac, Inc., 45 NY2d 152 ([1978]).
Footnote 34:Mathews v Eldridge, 424 US at 333, quoting Armstrong v Manzo, 380 US 545 at 552 ([1965]).
Footnote 35:Matter of Scarpitta v Glen Cove Housing Auth., 48 AD2d 657 (2nd Dept [1975]).
Footnote 36:Matter of Scarpitta v Glen Cove Housing Auth., 48 AD2d 657 (2nd Dept [1975]); see also Barnes v City of New York, 44 AD3d 39 (1st Dept [2007]) where the court "recogniz[ed] the necessity of putting plaintiff's case to the test of cross-examination."
Footnote 37:Matter of Scarpitta v Glen Cove Housing Auth., 48 AD2d 657 (2nd Dept [1975]).
Footnote 38:Guazzoni v McNamara, 188 Misc 2d 598 (App Term 1st Dept [2001]).
Footnote 39:Dukes v New York City Housing Auth., 63 AD2d 690 (2nd Dept [1978]).
Footnote 40:People ex rel. McGee v Walters, 62 NY2d 317 ([1984]) citing Goldberg v Kelly, 397 US 254 ([1970]).
Footnote 41:Smith v O'Grady, 312 US 329 ([1941]).
Footnote 42: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 43:Matter of Nassau County Dept. of Social Servs. [Dante M.] v Denise J., 87 NY2d 73 at 79 ([1995]).
Footnote 44:See J.H. Taylor Constr. Corp. v Liguori, 5 Misc 3d 74 (App Term 1st Dept [2004]) "[n]or was such evidence otherwise refuted by the tenant, whose failure to testify in his own behalf in defense of the holdover petition allows the court to draw 'the strongest inference against him...."
Footnote 45: Kahn v Riverside Syndicate, Inc., 34 AD2d 515 (1st Dept [1970]) "[a] close examination of the record establishes that the proof adduced was clearly insufficient to support the appointment of an administrator. The legislative intent looks to relief in cases of unusual circumstances and neglect..." which was not demonstrated in the case at bar.
Footnote 46: McLean v Buffalo Bills Football Club, Inc., 32 AD2d 881 (4th Dept [1969]) citing CPLR §4401, 4 Weinstein-Korn-Miller 4401.11; McTiernan v City of Little Falls, 284 AD 79 (4th Dept [1954]), Matter of Woodard v MVAIC, 23 AD2d 215 (3rd Dept [1965]); Squillante v Los Cab Corp., 23 AD2d 656 (1st Dept [1965]).
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