Ortega v Lin

[*1] Ortega v Lin 2023 NY Slip Op 51139(U) Decided on September 25, 2023 Civil Court Of The City Of New York, Queens County Guthrie, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 25, 2023
Civil Court of the City of New York, Queens County

Angel Ortega, Petitioner,

against

Fang P. Lin, YUE E. CHEN, Respondents, and
DEPARTMENT OF HOUSING PRESERVATION & DEVELOPMENT, Respondent.



Index No. HP 6189/21


Julia McNally, Esq.
The Legal Aid Society
Kew Gardens, NY
Attorney for petitioner

Jack L. Glasser, Esq.
Jack L. Glasser, P.C.
Jamaica, NY
Attorney for respondents Fang P. Lin and Yue E. Chen

Helen Lai, Esq.
Department of Housing Preservation and Development
New York, NY
Attorney for respondent DHPD Clinton J. Guthrie, J.

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of respondents' order to show cause for access for the purposes of correcting Housing Maintenance Code violations and petitioner's cross motion for an order to take "all steps necessary and proper to abate the mold and lead paint violations," including temporary relocation:

Papers Numbered
Order to Show Cause & Affirmation/Exhibits Annexed 1 (NYSCEF 42-47)
Notice of Cross Motion & Affirmation/Affidavit/Exhibits Annexed 2 (NYSCEF 48-56)
Affirmation in Opposition (to Cross Motion) & Exhibits Annexed 3 (NYSCEF 57-58)
Affirmation in Reply (to Cross Motion) & Exhibits Annexed 4 (NYSCEF 65-67)
Affirmation in Reply (to Order to Show Cause) 5 (NYSCEF 69)

Upon the foregoing cited papers, the decision and order on respondents' order to show cause and petitioner's cross motion (consolidated for determination herein) is as follows.

PROCEDURAL HISTORY

These consolidated HP proceedings for repairs and harassment were commenced in 2021 and 2022, respectively. The proceedings, Index Nos. 6189/21 and 317382/22, were consolidated by a stipulation so-ordered by this court on April 17, 2023.[FN1] On February 6, 2023, this court commenced a hearing on a motion for civil contempt relating to an order to correct issued on March 16, 2022. Subsequent to the commencement of the hearing, counsel appeared for respondents. The hearing has been conducted over multiple days and remains pending.

In June 2023, respondents, through counsel, filed an order to show cause to gain access to repair open violations. Then, petitioner (also represented by counsel), made a cross motion for respondents to abate mold and lead paint violations and for temporary relocation. Following briefing, the court heard argument on both motions on September 22, 2023, and reserved decision. The contempt hearing is scheduled to resume on October 5, 2023.

RESPONDENTS' ORDER TO SHOW CAUSE

Respondents seek access from petitioner to complete repairs of open Housing Maintenance Code violations. The order to show cause does not cite any legal support for respondents' request for access. These are HP proceedings governed by the Housing Maintenance Code. While NYC Admin. Code § 27-2008 provides for a general "right of access" to make repairs (see e.g. Richardson v. NYCHA — Gompers Houses, 78 Misc 3d 127[A], 2023 NY Slip Op 50194[U] [App Term, 1st Dept 2023]), respondents' order to show cause does not set forth even a minimal factual showing that access was requested or unreasonably withheld.

The order to show cause is accompanied only by an attorney affirmation and list of violations.[FN2] An attorney affirmation has no probative value (see Wilmington Trust, N.A. v. Wei P. Teo, 204 AD3d 735, 736 [2d Dept 2022]). While an affidavit from respondent Fang Ping Lin is offered in opposition to petitioner's cross motion, it does not support the order to show cause. Accordingly, as respondents have failed to make an adequate showing in support of an order for [*2]access under the Housing Maintenance Code, the order to show cause for access is denied.[FN3]

PETITIONER'S CROSS MOTION

Petitioner's cross motion effectively seeks an order fashioning the safeguards for mold and lead paint abatement in the subject premises, as well as temporary relocation. As the court has denied respondents' motion for access, there is no immediate basis for the court to order correction of existing violations. In addition to the March 16, 2022 order to correct that is the subject of the contempt hearing, this court granted a second order to correct on January 4, 2023, requiring respondents to correct all open DHPD violations issued after March 30, 2022. In order to properly correct the violations for mold and lead paint that are subject to the court's prior orders, respondents must comply with the Rules of the City of New York and the Housing Maintenance Code provisions governing such violations. In the posture of an ongoing civil contempt hearing, however, the court does not find that there is a basis to issue an additional order to correct solely to reiterate what the law already requires.

The court will also refrain from ordering temporary relocation in the absence of a specific plan by respondents to abate the mold and/or lead paint violations. Under NYC Admin. Code § 27-2056.11(a)(1), temporary relocation is contemplated "when the work [to abate lead paint] cannot be performed safely" (see Mendoza v. 74-78 Post Avenue Heights Assoc. LLC, 76 Misc 3d 963, 969 [Civ Ct, NY County 2022]). Here, there is an inadequate record for the court to assess the safety of any potential work since respondents do not propose any specific plan for lead paint abatement. Accordingly, petitioner's cross motion is denied, without prejudice to renewal upon a concrete lead paint abatement plan being presented by respondents.

CONCLUSION

Respondents' order to show cause and petitioner's cross motion are both denied for the reasons stated herein. The proceeding will be restored for continued hearing on October 5, 2023 at 11:00 AM in Part O, Room 202. This Decision/Order will be filed to NYSCEF.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Dated: September 25, 2023
Queens, New York
HON. CLINTON J. GUTHRIE, J.H.C. Footnotes

Footnote 1:Although the stipulation provides that the cases were to be consolidated under Index No. 6189/21, the papers relevant to the pending motions have been filed on the NYSCEF page for Index No. 317382/22. Counsels for the parties are advised to file papers in Index No. 6189/21 going forward.

Footnote 2:A reply affirmation has also been submitted. While a reply is not contemplated by CPLR § 2214(d), petitioner did not object to the filing of the reply. Nonetheless, the reply affirmation also has no probative value (Wilmington Trust, N.A., 204 AD3d at 736).

Footnote 3:The court also notes that in the current posture, where a motion for contempt is being litigated, the court is reluctant to grant interim relief that goes to the very allegations at issue at the contempt hearing. Nonetheless, the court is cognizant of the fact that violations exist for the subject premises that, at least as a prima facie matter, affect life, health and/or safety (see Fiondella v. 345 W. 70th Tenants Corp., 217 AD3d 495, 496 [1st Dept 2023]) and encourages the attorneys for the parties to negotiate in good faith on issues of access.