Department of Envtl. Protection of the City of N.Y. v Board of Mgrs. of the Lydig Condominium

[*1] Department of Envtl. Protection of the City of N.Y. v Board of Mgrs. of the Lydig Condominium 2022 NY Slip Op 22155 Decided on May 19, 2022 Supreme Court, New York County Lebovits, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on May 19, 2022
Supreme Court, New York County

Department of Environmental Protection of the City of New York and the New York City Water Board, Plaintiffs,

against

Board of Managers of the Lydig Condominium et al., Defendants.



Index No. 454038/2021



Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, NY (William J. Cortellessa of counsel), acting as Special Assistant Corporation Counsel for the City of New York and as attorney for plaintiffs.

Padernacht Law, P.C., Bronx, NY (Daniel Padernacht of counsel), attorney for defendant Board of Managers of the Lydig Condominium.
Gerald Lebovits, J.

This is an action for unpaid water and sewer charges. Plaintiffs, the New York City Department of Environmental Protection (DEP) and the New York City Water Board, seek a money judgment against defendants, the Board of Managers (Board) of a Bronx condominium apartment building (the Lydig Condominium) and the condominium's individual unit owners.

The Board of Managers now moves under CPLR 511 to change venue from New York County to Bronx County. The motion is denied.

DISCUSSION

Plaintiffs have alleged that the Lydig Condominium has incurred approximately $1.1 million in unpaid water and sewer charges and late fees. Plaintiffs have brought this action under Public Authorities Law § 1045-j (5) seeking to recover a money judgment in that amount.

The Board of Managers makes two arguments for a change of venue. First, the Board contends that this action for a money judgment will "affect the title to . . . the real property" of the condominium, mandating a change of venue to Bronx County under CPLR 507. Second, the Board argues that because most of the unit-owner defendants live in the Bronx, changing venue from New York to the Bronx will promote the convenience of material witnesses under CPLR 510 (3). Neither argument is persuasive.

I. Defendant's Argument for Mandatory Change of Venue under CPLR 507

Neither party has provided the court with authority addressing whether an action under [*2]Public Authorities Law § 1045-j (5) that seeks only a judgment in the amount of unpaid water/sewer charges affects title to the real property for which those charges were incurred. Considering the issue as a question of first impression, this court concludes that an action for a money judgment under § 1045-j (5) does not affect title to real property for purposes of CPLR 507.

Section 1045-j (5) affords the Water Board (or DEP acting on behalf of the Water Board) a choice of remedies. Under this subsection, unpaid water/sewer charges and fees, "if not paid when due, shall constitute a lien upon the premises served and a charge against the owners thereof," which may be "foreclosed against the lot or building served in the same manner as a lien for such taxes." Alternatively, the "amount which remains due and unpaid for sixty days may . . . be recovered by the water board in a civil action in the name of the water board against such owners."

Ordinarily a money judgment would not be viewed as affecting title to real property. The Board of Managers contends, though, that the money judgment here, if awarded, would be "inextricably linked to the lien" on the condominium's real property. (NYSCEF No. 112 at 11.) That is, the Board asserts, the judgment would be entitled to issue-preclusive effect on "the amount due to satisfy the existing § 1045-j lien" on the real property at issue, thereby affecting the lien (and thus title). (Id. at 10.) The difficulty with this argument is that the current action does not affect the existing lien—the lien is what it is, no matter the outcome of the action. At most, a judgment in this action might furnish definitive evidence about the amount of the lien; but that is not the same thing.

Indeed, in a closely analogous context, the Appellate Division, Third Department, has held that a damages action, although based on a claim of entitlement to money that has also given rise to a lien on real property, does not affect THE title to that property. (See State v Slezak Petroleum Prods., Inc., 78 AD3d 1288, 1289 [3d Dept 2020] [Stein, J.].)

Slezak Petroleum arose from the cleanup under the Navigation Law of a gasoline spill that occurred in Montgomery County. When such a spill occurs, "[a]ny person who has discharged petroleum shall be strictly liable, without regard to fault, for all cleanup and removal costs." (Navigation Law § 181 [1].) If the State pays those remediation costs, it may file a lien against real property owned by the party liable for those costs under § 181 (1). (See id. § 181-a.) The State may then bring an action to enforce that lien. (See id. § 181-d.) Alternatively, the State may bring an action under Navigation Law § 181 to recover its remediation costs from the discharger. (See id.; see also State v Stewart's Ice Cream Co., 64 NY2d 83, 86-88 [1984] [discussing statutory scheme]; State v Green, 96 NY2d 403, 408 [2001] [noting alternative lien-based remedy].)

The Navigation Law, like Public Authorities Law § 1045-j (5), thus involves related but distinct remedies—one involving a lien on real property, one involving monetary liability. In Slezak Petroleum, the State had filed environmental liens under Navigation Law § 181-a on the real property where the gasoline spill occurred, and then brought an action under § 181 in Supreme Court, Albany County, to recover the costs of cleanup on that property. (See 78 AD3d [*3]at 1289.) The defendant, pointing to the liens on the property, moved under CPLR 507 to change venue of the action to Montgomery County, where the property was located. Supreme Court denied the motion. On appeal, the Third Department affirmed.

The Third Department explained that although a lien existed on the property, the relief sought in the action "pertains to recovery of a money judgment and does not include enforcement of such liens." (Id.) CPLR 507, the Court said, applies only "if the judgment demanded involves a change in the title" to real property. (Id., quoting Nassau Hotel Co. v Barnett, 164 AD 203, 205 [1st Dept 2014] [emphasis in original].) And although the action before it "clearly involves defendant's property, it does not involve a change in the title thereto or otherwise directly affect such property." (Id. [internal quotation marks omitted].) Therefore, the Court held, a change of venue was not required by CPLR 507. (See id.)

Here, as in Slezak Petroleum, plaintiff has brought an action for money, rather than an action to foreclose on the existing lien. Under the Third Department's holding in that case, the current action, standing alone, will not alter title to the property. CPLR 507 thus does not require venue in the action to be changed to Supreme Court, Bronx County.

There is no merit to the Board of Managers's additional argument that if plaintiffs are awarded a money judgment, the judgment will necessarily give rise under CPLR 5203 to a lien on "the real property owned by The Lydig Condominium," and thereby affect title to real property in the Bronx. (NYSCEF No. 95 at 29.) CPLR 5203 (a) provides that a money judgment gives rise to a lien on real property when the judgment is docketed "with the clerk of the county in which the property is located," or when a notice of levy is filed with that clerk. Thus, if the ultimate result of this action is a money judgment in plaintiffs' favor, that judgment would give rise to a lien on real property of the defendants located in New York County. The judgment would give rise to a lien on real property in Bronx County only if plaintiffs were then also to docket the judgment in Bronx County (or to execute on real property in Bronx County to enforce the New York County judgment). This contingent, hypothetical possibility is not enough to implicate the mandatory-transfer requirement of CPLR 507.

II. Defendant's Argument for Discretionary Change of Venue under CPLR 510

In addition to contending change of venue is required under CPLR 507, the Board of Managers seeks a discretionary change of venue under CPLR 510 (3) based on the convenience of witnesses. The Board contends that because a majority of the individual-unit-owner defendants live in the Bronx, it will be "convenient and less expensive" for them to "attend[] Court in the Bronx," as opposed to in Manhattan (NYSCEF No. 95 at 35); and also "less time consuming" and "less costly," travel-wise (NYSCEF No. 112 at 18). These general, conclusory statements, made only in affirmations of counsel, are plainly insufficient. (See 10 Two Trees Lane LLC v Mahoney, 192 AD3d 468, 469 [1st Dept 2021] [explaining that a defendant moving under CPLR 510 (3) for change of venue "must make a detailed evidentiary showing" by affidavit that witnesses "will, in fact, be inconvenienced absent such relief," and describing the multiple elements of the necessary showing].)

The Board of Managers also asserts that granting judgments against the unit owners "will have a negative impact and deleterious effects on this Condominium building located in Bronx County," and that because "of the impact on a building of this size in Bronx County, it should be a Justice of the Supreme Court in Bronx County that presides over this action." (NYSCEF No. 95 at 34.) It is not clear—and the Board does not clarify—what the Board means by this assertion. To the extent the statement is intended to convey an opinion about the fairness and impartiality either of the justices of Supreme Court, New York County, or, for that matter, of the justices of Supreme Court, Bronx County, the statement is unfortunate. Regardless, this statement does not identify a cognizable ground under CPLR 510 for changing venue.

Accordingly, for the foregoing reasons, it is

ORDERED that the Board of Managers's motion for change of venue is denied.

5/19/2022