Department of Hous. Preserv. & Dev. of the City of New York v NYSandy12 CPB9 LLC

[*1] Department of Hous. Preserv. & Dev. of the City of New York v NYSandy12 CPB9 LLC 2018 NY Slip Op 51610(U) Decided on November 19, 2018 Civil Court Of The City Of New York, Bronx County Bryan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2018
Civil Court of the City of New York, Bronx County

Department of Housing Preservation and Development of the City of New York, Petitioners,

against

NYSandy12 CPB9 LLC Matthew Becker Lynette Davis, Landlord-, Respondents.



70714/2017



Petitioners are represented by:

New York City Department

of Housing Preservation and

Development by Jemma An, Esq.

Respondents NYSandy12 CB9 LLC

Becker & Davis are represented by:

Gutman, Mintz, Baker & Sonnenfeldt
David J. Bryan, J.

Upon the foregoing citing papers, the Decision and Order on this Motion are as follows:

Respondent NYSandy12 CB9 LLC, Becker and Davis (hereinafter Respondents) move by Notice of Motion for relief on several grounds. Respondents contest that service was proper. Respondents claim that the petition is fatally defective as it relies upon vague citations that fail to provide sufficient notice to abate the conditions in the subject premises. Respondents move for summary judgment to dismiss the claim for civil penalties in their entirety. Respondents also contend that the omission of indispensable parties warrants dismissal. In the event the Court does not dismiss the proceeding for the reasons stated, respondents move for leave to implead Con Edison and to conduct pretrial discovery. For the reasons noted within, the motion is denied in all respects and the matter is adjourned until November 27, 2018 at 9:30 am for a pretrial conference (the Court's rules are attached).

As to Service of Process

As to the question of service at 1484 Watson Avenue being deficient for encompassing [*2]the separate addresses of 1486 Watson Avenue, 1492 Watson Avenue and 1494 Watson Avenue, the motion to dismiss is denied. The requirement to provide an accurate address to the New York City Department of Housing Preservation and Development is provided at MDL § 325 and MHC 27-2097.[FN1] There is also a requirement to provide an accurate statement as to the registered managing agent. In reviewing the deeds on the New York City Department of Finance website (also known as ACRIS) each conveyance grouped the properties from 1484 Watson Avenue to 1494 Watson Avenue as one parcel with a single block and lot.[FN2] The HPD website lists all the addresses as "also known as" thereby also indicating the various addresses refer to one property.[FN3] [*3]In addition, service on the registered managing agent listed in the MDR, Lynette Davis was made and service on the managing agent establishes jurisdiction for an HP proceeding. [FN4] While the property has been transferred since the commencement of this action with consequent changes of the managing agent, the Court denies the motion to dismiss based upon a failure to serve all the addresses subjected to the Order to Correct.

As to the Defective Citations

This matter arises from a fire on October 1, 2017 that so damaged the subject premises that a vacate Order was issued on October 17, 2017. Shortly after the fire, DHPD issued citations requiring that respondent abate the fire damage to restore the premises to a habitable condition. These citations carried the language "abate the nuisance of fire damage in the entire apartment". Respondent moves to dismiss because the description and instructions were so vague as to be defective.

The objection to a vague Notice of Violation is an appropriate concern for the Court. A violation of due process would occur if the landlord received penalties for a violation that is poorly described. A failure to adequately describe the violation deprives the landlord of due process because the landlord cannot be certain it is fairly charged and also deprives the landlord of the ability to properly remedy the violation. However, the Court does not find a deprivation of due process in the citations issued in this case.

Eradication of fire damage to a structure may be complex in its application but the removal of smoke and soot, repair of walls, ceilings, floors, windows, doors, plumbing, fixtures are easily anticipated consequences of a renovation or repair after a catastrophe caused by fire. Each of these actions as well as those reasonably anticipated in a renovation of this type are encompassed by the phrase "abate the nuisance of fire damage in the entire apartment".

It is not necessary to state the obvious in the citation, e.g. that soot stained drywall must be cleaned if practical and replaced if necessary. It is the respondents' responsibility to apply professional expertise and common sense to determine if their abatement of the fire damage is sufficient to comply with the citation and relevant codes for construction. Applying the standard urged by respondents would be unduly burdensome. Therefore, the motion to dismiss based upon the vagueness of the citations is denied.[FN5]

[*4]As to the Civil Penalties

Respondent moves to dismiss the claim of civil penalties based upon their prompt and diligent efforts to address the consequences of the October 1, 2017 fire. As respondent correctly states, their diligent efforts as well as the circumstances that rendered remedies impossible may be considered in mitigation of penalties under§ 27-2116(b). Respondents urge they cannot be charged with civil penalties where the remedy sought is impossible to achieve. Berenger v. 261 West LLC, 93 AD3d 175, 940 N.Y.S.2d 4 (App. Div. 1st Dept. 2012) which in turn cites to Divito v. Farrell, 50 AD3d 405, 406, 857 N.Y.S.2d 61, 62(App. Div. 1st Dept. 2008).

However, the determination of these efforts and circumstances cannot be reached by affidavits of an interested party. The petitioner has credibly claimed the violation occurred and that penalties are warranted. A motion to dismiss must give to the non-moving party the advantage of every inference that can properly be drawn from the facts presented. See Falk v. Havemeyer, 144 A.D. 688 (N.Y App. Div. 1911); Kraus v. Birnbaum, 200 NY 130 (NY 1910); Burger v. Burger, 111 NY 523 (NY 1888). Therefore, the motion is denied.

As to the Failure to Name Indispensable Parties or leave to Implead

Respondent contends that petitioner has failed to name Con Edison as a respondent and that the utility is an indispensable party. Petitioner's failure to name Con Edison (and apparently, National Grid)[FN6] as an indispensable party is without merit. Con Edison does not meet the standard of CPLR § 3211(a)(10) as this matter can proceed on these facts without their presence. While a delay caused by Con Edison may be relevant in the mitigation of civil penalties it is not a defense to the obligation to repair the premises. The Court finds that the resolution of this matter is not impacted by the absence of these utilities and therefore the motion to dismiss pursuant to CPLR § 3211(a)(10) is denied. Similarly, leave to implead is denied pursuant to CPLR § 1007 due to an absence of a credible allegation of the utilities failure to restore services after completion of all work. Respondent may submit a judicial subpoena for these utilities for trial on November 27, 2018. Finally, the Court retains its ability to join necessary parties to this proceeding under CCA sec. 110(d).

As to the Inability of the Court to Order the Respondent to Restore the Entire Building

Respondents contend that the Court is unable to Order the restoration of an entire building. It is conceivable that an Order requiring the petitioner to spend more than the building is worth may implicate the takings clause of the United States Constitution. However, it is the burden of the respondents to demonstrate that a restoration is violative because the cost is prohibitive, or another obstacle exists. The motion is devoid of any financial information that would substantiate respondents' claim of excessive costs of compliance. Therefore, at this stage of the litigation the motion is denied.

As to Pretrial Disclosure

Respondent moves for pretrial disclosure so that they may contest the accuracy of each citation. The example provided is that when the citation indicates that abatement of the nuisance of fire damage is required, respondents would determine if the citation accurately depicted the extent of damage in each apartment. Respondents cite to DHPD v. Kings & Queens Holdings LLC, Index 2332/12 for an example of false inspections proven at trial.

The motion for pretrial disclosure is denied without prejudice to renew. Discovery should be granted by the Court if the movant has shown "ample need" by special or extraordinary circumstances or if the circumstances in this case are novel or complex. A theory of this matter that would meet the ample need standard above has not been clearly stated.[FN7] Until respondent can articulate a coherent theory of its defense requiring disclosure, there is no ample need to provide for pretrial disclosure. Respondent is urged to consider submitting a judicial subpoena for approval at the pretrial conference.

The parties are to appear for a pretrial conference on November 27, 2018 at 9:30 am for a pretrial conference (the Court's rules are attached) in Part H, Room 560. Respondent will appear with a principal of the corporation as well as a person capable of reporting in detail the progress of construction. The Court anticipates this matter being ready for trial on December 18, 2018 at 2:15 pm and the parties shall plan the appearance of November 27, 2018 at 9:30 am to resolve any issues prior to the hearing (a copy of the Court's rules are attached).

This is the decision of the Court and copies will be mailed to the attorneys for the petitioner, each of the respondents and made available in the Courtroom.

Date: November 19, 2018

David J. Bryan,

Housing Judge, Civil Court Footnotes

Footnote 1:See, Dep't Hous. Preservation & Dev. V. 2515 LLC, 6 Misc 3d 1039(a), 2005 NY Slip Op. 50347(U), (Hous. Part Civ. Ct. NY County, Mar. 18, 2005).

Footnote 2:Date of Deed of Addresses April 27, 2018 From NYSandy to Watson Avenue Estates 1484 to 1494 Watson Avenue December 23, 2015 From Fortress CWW LLP to NYSandy 1484 to 1494 Watson Avenue; along with 1050 Wheeler Avenue, 1085 to 1095 Colgate Avenue, 1464 to 1474 Watson Avenue. October 17, 2011 Watson Realty LLC to Fortress CWW LLC 1484 Watson Avenue, along with 1050 Wheeler Avenue January 30, 2006 Bronx Wattson Gardens to Watson Realty The deed doesn't contain the address but it has the metes and bounds (3170, 32) on Watson Avenue along with Colgate Avenue. (check if it's the same block and lot). April 15, 1997 Sorkin/Maslin to Bronx Wattson Bardens The deed doesn't contain the address but it has the metes and bounds (3170, 32) on Watson Avenue along with Colgate Avenue. (check if it's the same block and lot).

Footnote 3:This address is also known as: House No Street Nm 1484 WATSON AVENUE 1486 WATSON AVENUE 1488 WATSON AVENUE 1490 WATSON AVENUE 1492 WATSON AVENUE 1494 WATSON AVENUE

Footnote 4:See CPLR § 308 (3).

Footnote 5:Respondents' citations have been reviewed and are entirely inapplicable. In D'Agostino, the Court was primarily concerned with the application of an arbitration clause to exclude the tenant from seeking relief in the HP Part to compel the landlord to repair the roof and water damage in his apartment. Other than a brief mention as to the need facial insufficiency, the case is not applicable see D'Agostino v. Forty-Three East Equities Corp., 12 Misc 3d 486, 820 N.Y.S.3d 486, aff'd by D'Agostino v. Forty-Three East Equities Corp., 16 Misc 3d 59, 842 N.Y.S.2d 122, 2007 NY Slip Op. 27254 (App. Term 1st Dept. 2007) (citing Dept of Housing v. 163, 6/7/2000 N.Y.L.J. 28 (col 5) [App. Term 2d Dept]. In Bernard, the Court primarily analyzes the responsibility of the landlord to restore a property as required by the Maintenance Code despite the economic infeasibility caused by a renovation costing more than the property's value see Bernard v. Scharf, 246 AD2d 171 675 N.Y.S.2d 64 [App. Div. 1st Dept. 1998] rev'd as moot mem, 93 NY2d 842, 689 N.Y.S.2d 1, 911 N.E.2d 187 [1999]. Finally, in Eyedent, the Court analyzes economic infeasibility for the restoration of a property see Eyedent v. Vickers, 150 AD2d 202, 541 N.Y.S.2d 21 [1st Dept. 1989].

Footnote 6:See paragraph 63 of the affirmation in support of the motion.

Footnote 7: Smilow v Ulrich, 11 Misc 3d 179, 182 [Civ Ct 2005] citing to (Farkas, 121 Misc 2d at 647, 468 N.Y.S.2d 808.).