Serrano v Paredes

[*1] Serrano v Paredes 2021 NY Slip Op 51148(U) Decided on December 8, 2021 Civil Court Of The City Of New York, Bronx County Ibrahim, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2021
Civil Court of the City of New York, Bronx County

Rosa Serrano, Petitioner,

against

Amelia Paredes & KARINA MENDEZ, Respondents, and NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT (DHPD), Co-Respondents.



Index No. 311336/2021



Amelia Paredes and Karina Mendez

Respondents, Pro-Se

&

The Legal Aid Society

By: Russell Crane, Of Counsel

Attorneys for Petitioner
Shorab Ibrahim, J.

Petitioner is the tenant of apartment 2 located at 1417 Zerega Avenue in the Bronx. Respondents are the owners of the premises. The September 29, 2021 petition seeks, inter alia, an order to correct conditions affecting the apartment and a finding that the respondents have harassed the petitioner.[FN1] The court only addresses the harassment claims here.

After a review of the pleadings pursuant to CPLR § 409(b), ["The court shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised."], the harassment claims are dismissed in their entirety for failure to state a cause of action.

The first alleged harassment claim is made under NYC Admin Code § 27-2004(a)(48)(b) with petitioner alleging she was denied hot water in August 2021, for which DHPD placed a violation.

§ 27-2004(a)(48)(b) requires "repeated interruptions or discontinuances of essential services, or an interruption or discontinuance of an essential service for an extended duration or of such significance as to substantially impair the habitability of such dwelling unit" to find harassment. The petition neither pleads "repeated" interruptions nor does it plead that the alleged denial of hot water was for an "extended duration" or that it "substantially impaired" the apartment's habitability.

Petitioner's reliance on the statute's language ["within the meaning of "] is simply not enough to satisfy the requirements set forth in CPLR § 3013. CPLR § 3013 states that [*2]"statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." It is settled law that a recitation of the relevant statute, without more, does not satisfy these requirements. (see Mid-Hudson Valley Federal Credit Union v Quartararo & Lois, PLLC, 155 AD3d 1218, 1219, 64 NYS3d 389 [3rd Dept 2017] (Notwithstanding the broad pleading standard, bare legal conclusions with no factual specificity do not suffice to withstand a motion to dismiss); Acosta v 202 South 2nd Street LLC, 62 Misc 3d 1209[A], 2019 NY Slip Op 50040[U] [Civ Ct, Kings County 2019] (petition must specify the facts constituting harassment and cannot simply restate language used in the relevant statute)).

Next, petitioner alleges harassment "within the meaning of NYC Admin Code § 27-2004(a)(48)(g) by committing other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peach or quite of petitioner" because the respondent called "us 'shelter people' in front of our neighbors; and said in sum and substance that she will kick us out of the apartment; and she will have us put in jail."

Speech, even alleged speech as abhorrent as that alleged here, remains constitutionally protected as it does not present danger of some serious substantive evil. (see Coleson v Sarker, 2021 NY Slip Op 21314, at *3). In any event, the pleading fails to allege "repeated" acts or omissions as required under § 27-2004(a)(48)(g).

Finally, petitioner alleges harassment under § 27-2004(a)(48)(b-2), which requires that the petitioner establish that there have been "repeated failures to correct hazardous or immediately hazardous violations of this code , relating to the dwelling unit or the common areas of the building containing such dwelling unit, within the time required for such corrections." (emphasis added).

Petitioner alleges harassment under this section because the respondent allegedly failed to "timely and properly correct violations issued on August 25, 2021 and September 24, 2021."

Recently, in Coleson v Sarker, this court issued a decision focused, in large part, on alleged harassment based on speech. (2021 NY Slip OP 21314). In doing so, however, the court glossed over the fact that the petition therein claimed harassment based on the landlord's purported failure to correct violations timely when, in fact, the time set for correction had not expired. (see id.).

The court viewed that pre-mature claim as an aberration. Yet, the petition herein, once again, seeks a finding of harassment on this meritless ground.

As of September 29, 2021, or even when the petition was served [October 5, 2021 by mail according to the affidavits of service], the time to correct had not expired for a single violation issued on August 25, 2021 and September 24, 2021.[FN2] Consequently, given these facts, petitioner cannot state a claim for harassment under § 27-2004(a)(48)(b-2) since the claim did not exist when the case was commenced.

Based on the foregoing, the harassment claim is dismissed. The case is adjourned to January 11, 2022 at 9:45 AM for conference.

Dated: December 8, 2021

SO ORDERED,

Bronx, NY

/S/

SHORAB IBRAHIM, JHC Footnotes

Footnote 1:The court has reviewed the electronic court file [NYSCEF] in reaching its decision.

Footnote 2:Certification dates are noted in the last column of printout from DHPD website [as of November 18, 2021]. These records are admissible pursuant to CPLR § 4518 and MDL § 328(3).