Sandy Realty LLC v Burnett

Annotate this Case

Download PDF

Sandy Realty LLC v Burnett 2017 NY Slip Op 31382(U) June 14, 2017 Supreme Court, New York County Docket Number: 155574/2016 Judge: Lucy Billings 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 06/28/2017 11:29 AM 1] NYSCEF DOC. NO. 30 ~ INDEX NO. 155574/2016 RECEIVED NYSCEF: 06/28/2017 ··~ ~r ' SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 --------------------------------------x Index No. 155574/2016 SANDY REALTY LLC, Plaintiff DECISION AND ORDER - against KATHRYN RYLAND BURNETT and SAHER NASAN, Defendants --------------------------------------x LUCY BILLINGS, J.S.C.: I. THE PENDING MOTIONS Plaintiff landlord has moved for a preliminary injunction against defendant rent stabilized tenants in plaintiff's building at 43 West 8th Street, New York County. 6312(a). C.P.L.R. §§ 6301, Defendant Nasan resides in apartment 2R and defendant Burnett in 4R. Plaintiff seeks to enjoin defendants to provide plaintiff access the their apartments, so plaintiff may install new staircases in the building; to vacate their apartments until plaintiff completes renovations of the apartments, including new floors; and to refrain from interfering with plaintiff's repairs. Plaintiff claims that, when it removes the current staircases to replace them, defendants will lack a means of egress from and access to their apartments and that their apartment floors are in imminent danger of collapsing. Plaintiff alleges that it has offered defendants temporary relocation housing, but fails to demonstrate that the temporary housing is comparable to their current apartments or otherwise adequate to accommodate their sandy.183 1 2 of 7 [*FILED: NEW YORK COUNTY CLERK 06/28/2017 11:29 AM 2] NYSCEF DOC. NO. 30 INDEX NO. 155574/2016 RECEIVED NYSCEF: 06/28/2017 needs. Defendant Burnett cross~moves to dismiss the claims against her based on the court's lack of jurisdiction to evict her from her apartment, even temporarily, and plaintiff's failure to allege any grounds under the New York Rent Stabilization Law (RSL) permitting plaintiff to evict defendants. · C.P.L.R. 32ll(a) (2) and (7). § She maintains that only the New York City Department of Buildings (DOB)., Department of Housing Preservation and Development (DHPD) , Department of Health and Mental Hygiene (DHMH), and Fire Department are empowered to order tenants to vacate their apartments due to.dangerous conditions. Even if not required to relocate, Burnett insists that she has been receptive to relocating temporarily to a comparable . , apartment at comparable rent with compensation for her moving expenses, but that plaintiff has offered only permanent relocation housing without reimbursement of moving expenses. This version of the facts; h<?wever, disputes the complaint's allegations and therefore may be considered only in opposition to plaintiff's motion for a preliminary injunction and not in support of Burnett's motion to dismiss the complaint against Burnett based on its failure to allege a claim for relief. Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d 342, 351 (2013); Lawrence v. Miller, 11 N.Y.3d 588, 595 (2008); GEM Holdco, LLC v. Changing World Tech., L.P., 127 A.D.3d 598, i 59_9-600 (1st Dep' t 2015). Nevertheless, the adequacy of plaintiff's offers of relocation is immaterial to the viability sandy.183 2 3 of 7 [*FILED: NEW YORK COUNTY CLERK 06/28/2017 11:29 AM 3] NYSCEF DOC. NO. 30 INDEX NO. 155574/2016 RECEIVED NYSCEF: 06/28/2017 of this action. II. PLAINTIFF'S FAILURE TO ALLEGE A CLAIM FOR RELIEF The regulations under the RSL dictate the exclusive circumstances when a landlord may evict a rent stabilized tenant, whether permanently or temporarily, none of which plaintiff has alleged here. 9 N.Y.C.R.R. § 2524.l(a). The Rent Stabilization Code, 9 N.Y.C.R.R. § 2524.3(e), on which plaintiff relies, permits eviction when a "tenant has unreasonably refused the owner access to the housing accommodation for the purpose of making necessary repairs or improvements required by law." York City Administrative Code § 27-2008~ New on which plaintiff also relies, prohibits a ten~nt from refusing "to permit .the owner, or his agent or employee, to enter such tenant's dwelling unit or other space under his or her control to make repairs or improvements required by this code or other law," but does not provide the owner a remedy of eviction if a tenant violates this statute. Plaintiff alleges that defendants' apartment floors are in imminent danger of collapsing, but not that new floors, as opposed to repairs to the floors or their supporting structures, are "necessary" or "required by law." 9 N.Y.C.R.R. § 2524.3(e). Nor does plaintiff allege any instance when defendants have refused plaintiff access to their apartments to make repairs, as opposed to refusing to relocate. In fact, plaintiff seeks access only to install new staircases in the common areas, not to install new floors in their. apartments, for which plaintiff seeks sandy.183 3 4 of 7 [*FILED: NEW YORK COUNTY CLERK 06/28/2017 11:29 AM 4] INDEX NO. 155574/2016 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 06/28/2017 defendants' relocation. In sum, plaintiff nowhere alleges that defendants have refused access to make repairs or improvements required by law. 9 N.Y.C.R.R. § 2524.3(e); N.Y.C. Admin. Code§. 27-2008. Plaintiff's engineer and architect attest simply that the demolition or other structural work "that needs to be done" will place apartment occupants at risk of bodily injury. Zahid Ismail , 12; Aff. of Shawn Stiles , 12. Aff. of Plaintiff does not demonstrate that that need is dictated by any requirement of law. Plaintiff's witnesses describe the staircases as "excessively deformed due to the landing deflection," Ismail Aff. , 6; Stiles Aff. , 6, and the apartment floors as "sagging," "partially deformed" because "floor and wall planes in common were not perpendicular," "and in dire need of repair," not necessarily replacement. Ismail Aff. , 7; Stiles Aff. , 7. The witnesses point out that protective gear will guard agai~st defendants' inhalation of dust, damage to their eyes, and excessive noise and do not 'specify how occupants will risk any other. injury if they remain in the apartments during the repair. Although the witnesses describe the staircase as "unsafe," Ismail Aff. , 9; Stiles Aff. , 9, and "recommended" that it be "immediately replaced," Ismail Aff. , 8; Stiles Aff. , ·8, they allow that it is "a matter of time before the stairs buckle and/or the floors collapse," and this buckling or collapse will occur only if "the stairs and floors continue to go untreated," not if they are unreplaced. sandy.183 Ismail Aff. , 10; Stiles Aff. , 10. 4 5 of 7 [*FILED: NEW YORK COUNTY CLERK 06/28/2017 11:29 AM 5] NYSCEF DOC. NO. 30 .•. INDEX NO. 155574/2016 RECEIVED NYSCEF: 06/28/2017 -· Insofar as plaintiff alleges demolition of a structure housing defendants' apartments, even if that level of improvement is not required by law, plaintiff's remedy .is to seek a certificate of eviction from the New York State Division bf Housing and Community Renewal. 9 N.Y.C.R.R. § 2425.5(a) (2); Peckham v. Calogero, 12 N.Y.3d 424, 431-32 (2009); Sohn v. Calderon, 78 N'. Y. 2d 755, 764-65, 767-68 (1991). Insofar as plaintiff alleges defendants' vacatur of their apartments, rather than only access, -is required because one or more apartments .of the building "constitutes a danger to the life, health, or safety of its occupants," N.Y.C'. Admin. Code§ 27-'2139(a) or "is unfit for human habitation," N.Y.C. Admin. Code§ 27-2139(b), plaintiff's remedy is to seek an order to vacate the apartment from DHPD, id., DHMH, N.Y.C. Admin. Code§ 17-159, or DOB. N.Y.C. Admin. Code§§ 28-207.4, 28-207.4.1. 18.01(a). See 28 R.C.N.Y. § When DHPD issues an order that tenants vacate a building, for example, DHPD undertakes an obligation to assist them with relocation. N.Y.C. Admin. Code § 26-301(1) (a) (v); Smith v. Donovan, 61 A.D.3d SOS, S09 (1st Dep't 2009); Toolsee v. Department of Hous. Preserv. & Dev. of City of N.Y., 299 A.D.2d 209, 211 (1st Dep't 2002). III. CONCLUSION For all the above reasons, the court grants defendant Burnett's cross-motion to dismiss the complaint against Burnett. C.P.L.R. § 3211(a) (7). Since plaintiff's motion for a preliminary injunction seeks the same relief sought in the sandy.183 s 6 of 7 [*FILED: NEW YORK COUNTY CLERK 06/28/2017 11:29 AM 6] NYSCEF DOC. NO. 30 INDEX NO. 155574/2016 RECEIVED NYSCEF: 06/28/2017 •·. complaint and the same relief against both defendants, the court denies plaintiff's motion against both Burnett and Nasan. It not only fails to demonstrate a claim on which plaintiff is.likely to succeed, C.P.L.R. ( §§ 6301, 6312(a); Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 840 (2005); Al Entertainment LLC v. 27th St. Prop. LLC, 60 A.D.3d 516, 516 (1st Dep't 2001); Metropolitan Steel Indus., Inc. v. Perini Corp., 50 A.D.3d 321, 322 (1st Dep't 2008); U.S. Re Cos., Inc. v. Scheerer, 41 A.D.3d 151, 154-55 (1st Dep't 2007), but also seeks the ultimate relief sought by the action as a whole,.rather than to maintain the status quo pending a determination of the ultimate relief. Lehey v. Goldburt, 90 A.D.3d 410, 411 (1st Dep't 2011); Jones v. Park Front Apts., LLC, 73 A.D.3d 612, 613 (1st Dep't 2010); Pamela Equities Corp. v. 270 Park Ave. Cafe Corp., 62 A.D.3d 620, 621 (1st Dep't 2009); Sithe Energies, Inc. v. 335 Madison Ave., LLC, 45 A.D.3d 469, 470 (1st Dep't 2007). DATED: June 14, 2017 LUCY BILLINGS, J.S.C. LUCY BILLINGS J.S,-C. sandy.183 6 7 of 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.