Patel v 110 Assets LLC
Annotate this CaseDecided on November 10, 2021
Civil Court of the City of New York, Queens County
Rima Patel, Petitioner,
against
110 Assets LLC, David Asherian, and New York City Department of Housing Preservation and Development (DHPD), Respondents.
Index No. LT-306045-21/QU
For Petitioner: Michael Kang, Esq, Legal Aid Society
For Respondent: Jack Glasser, Esq.
For Respondent DHPD: Jean-Pierre Passerieux, Esq.
Enedina Pilar Sanchez, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion
Papers Numbered
Order to Show Cause and Affidavits Annexed 1
Cross Motion and Answering Affidavits a 2
Replying Affirmation 3
Petitioner sought an order to correct violations. The subject premises are located at 63-41 110th Street, Apartment 1C, Forrest Hills, New York 11375. Respondent-owners did not appear. Petitioner presented proof of service. Service was proper. On September 30, 2021, this Court issued an Order to Correct Violations on Default.
The court was informed that the property was conveyed by a Referee's Deed to 100 Assets LLC. Respondent Bhargavati Patel was no longer listed as the owner in fee and the court sua sponte removed his name from this HP case. (See September 30, 2021 Order)
Respondents' Motion to Vacate
Respondents 110 Assets LLC and David Asherian now move by Order to Show Cause to vacate the September 30, 2021 Order to Correct. Respondents move pursuant to CPLR Rule 5015(a) or for permission for "reargument of said Order."
A party can move to vacate a default if it is excusable and there is a meritorious defense [*2]or claim. Gray v. B.R. Trucking Co., 59 NY2d 649 (1983). Respondent-owners argue that they were not served at the address filed with HPD.
Respondent-owners were served at the address indicated on the deed and at the address provided to the New York Department of State, Division of Corporations. Service was done via Certified Mail/ Return Receipt Requested pursuant to the Housing Maintenance Code. See, Matter of Ebanks v. Skyline NYC, LLC, 70 AD3d 943 (2nd Dept 2021). Respondent-owners do not articulate a reasonable excuse as to why they did not appear in court. Simply stating that the respondent-owners did not receive the papers at the "property registered with HPD" is untenable since the HPD website shows that the property is "not currently validly registered with HPD." The individuals listed on the expired registration are not the owners of this property anymore. The court notes that the HPD website does not show that the respondent-owners are registered with HPD.
Respondents argue that they filed a Multiple Dwelling Registration (MDR) with HPD and submitted it as part of their Order to Show Cause. The MDR form submitted is not signed and there are no dates next to the signature lines. The Referee's Deed is dated February 8, 2020 and the alleged MDR shows, at the top, a date of August 31, 2021. Respondents acknowledge receiving mail at the address designated on the deed.
Respondents do not show an excusable default in support of vacating the Order.
The second requirement of Rule 5015(a)(1) is that the movant must state a meritorious claim or defense. The Court took judicial notice of the Open Violation Summary Report that can be found on the DHPD website. https://www1.nyc.gov/site/hpd/about/hpd-online.page. The report confirms that conditions exist in the apartment and are in violation of the Housing Maintenance Code (HMC). The September 30, 2021 Order incorporated the HPD Open Violation Summary Report.
That the respondent-owners purchased the property at a foreclosure sale does not exempt them from the mandates of the Housing Maintenance Code. The new purchaser takes ownership with the occupant/tenants in possession; and actual possession gives notice to the new purchaser that the property is occupied. "Moreover, possession of premises constitutes constructive notice to a purchaser of the rights of the possessor. Citing, Phelan v Brady, 119 NY 587 (1890)" 52 Riverside Realty Co. v. Ebenhart, 119 AD2d 452, at 453 (AD 1st Dept. 1986). This basic principle applies particularly to multiple dwellings. The property contains four Class A residential units. There is no dispute that the subject property is a multiple dwelling and respondents were on notice.
The Housing Maintenance Code, §27-2115(k)(3) permits an owner to show facts in defense or mitigation of the civil penalties sought by a petitioner. Respondent-owners defenses or claim may arise in the context of an enforcement case by HPD. The instant case is a tenant initiated case seeking an order to correct the violations. Respondents are required to comply with the Code as they are the owners and there are violations of record.
Respondents do not show a meritorious defense.
Respondent-owners' request, in the alternative, that they be allowed to "reargue" the Order "and upon granting reargument, vacating the court's decision on default and granting such other, further and different relief." This argument is unavailing. There is no reargument on a default. Also, the argument regarding whether a tenant filed a Hardship Declaration and whether it is valid, does not apply to HP cases.
Conclusion
To the extent that there are hazardous conditions in the subject premises, respondent-owners must address those violations as required under the Housing Maintenance Code. The repairs would enhance and protect respondents' investment, and they are required by the law. All work is to be done within COVID-19 safety protocols.
Respondent-owners' motion to vacate the September 30, 2021 Order to Correct is denied. The September 30, 2021 Order to Correct continues in full force and effect. The parties are encouraged to arrange access dates to correct violations and comply with the NYC Administrative Code.
This Decision/Order is being emailed to all the parties.
This constitutes the Order of the Court.
Dated: November 10, 2021
Queens, New York
ENEDINA PILAR SANCHEZ
Judge, Housing Court
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