Gemini Realty LLC v Miller

[*1] Gemini Realty LLC v Miller 2023 NY Slip Op 51144(U) Decided on October 25, 2023 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 25, 2023
Supreme Court, New York County

Gemini Realty LLC, Plaintiff,

against

David Miller, Defendant.



Index No. 157293/2023



Axelrod, Fingerhut & Dennis, New York, NY (Jared Matthew Langenthal of counsel), for plaintiff.

David Miller, defendant pro se.
Gerald Lebovits, J.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 14, 15, 16, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29 were read on this motion for INJUNCTION/RESTRAINING ORDER.

Plaintiff, Gemini Realty LLC, moves for a preliminary injunction enjoining defendant, David Miller, from denying plaintiff and its agents access to defendant's apartment. The motion is granted.

BACKGROUND

Plaintiff alleges that it owns the building located at 47 Jane Street in New York County, and that defendant is a licensee residing in the apartment. By written request for access dated May 23, 2023, which was sent to defendant by regular first-class mail and certified mail return receipt requested, plaintiff requested that defendant give plaintiff access to the apartment on June 7, 2023, and June 8, 2023, to replace the bathtub with a shower to prevent water leaks and associated damage to other parts of the building. Defendant did not respond to the request, or provide plaintiff access to the apartment to replace the bathtub.

On July 20, plaintiff began this action against defendant for a declaratory judgment and an injunctive relief. On August 10, defendant answered that plaintiff's complaint fails to state a claim upon which a relief can be granted and that plaintiff is not the real party in interest. Defendant also counter-claimed that plaintiff's tortious conduct has harassed defendant. Plaintiff [*2]now moves for a preliminary injunction barring defendant from denying plaintiff access to the apartment during reasonable hours to replace the bathtub carry out repairs needed to correct an open Department of Buildings (DOB) violation.

DISCUSSION

Plaintiff seeks a preliminary injunction barring defendant from denying plaintiff's representatives access to the apartment that they need to carry out these repairs. A party moving for a preliminary injunction must demonstrate a likelihood of success on the merits, irreparable injury absent the granting of the preliminary injunction, and a balancing of the equities in their favor. (Aetna Ins. Co. v Capasso, 75 NY2d 860, 862 [1990].)

1. With respect to likelihood of success, plaintiff claims a clear right to access defendant's apartment for necessary repairs mandated by the Building Code, as provided for by New York City Administrative Code § 27-2008. This court agrees.

Multiple Dwelling Law § 78 provides that every multiple dwelling, including its roof or roofs, and every part thereof and the lot upon which it is situated, shall be kept in good repair. The owner shall be responsible for compliance with the provisions of this section; but the tenant is also liable if a violation is caused by the tenant's own willful act, assistance, or negligence or that of any member of the tenant's family, household, or guest.

Under New York City Administrative Code § 27-2008 (part of the City's Housing Maintenance Code), tenants must cooperate with building owners with respect to apartment repairs. Among other things, a tenant must allow the owner's representative to enter an apartment to make repairs. Here, defendant's refusal of plaintiff's request for access, despite a well-documented written request specifying reasonable dates, runs afoul of this legal obligation. Further, Multiple Dwelling Law § 78 obligates plaintiff to maintain the building in a reasonably safe condition. Both the replacement of the bathtub with a shower and correcting the conditions underlying the DOB violation are necessary to fulfill this obligation.[FN1]

Plaintiff is thus entitled, as it contends, to access defendant's apartment to conduct necessary repairs and correct the open violation.

2. With respect to irreparable harm, Plaintiff has presented the following evidence: (i) pictures suggesting that leakage has inflicted substantial and pervasive damage throughout the building; (ii) a tenant's affidavit demonstrating that water leaks from defendant's apartment has caused extensive damage to the walls, floors, ceiling and closets in the premises, as well as to personal property; (iii) the building superintendent's affidavit indicating that he personally observed defendant sleeping in the bathtub with the water still running and overflowing onto the floor on multiple occasions when leaks were occurring; (iv) DOB's violation letter, indicating that defendant's apartment was in state of disrepair conditions including cracks on the bath and living room ceilings and sloping wood flooring; and (v) repair invoices and check reports suggesting the cost of repairing the damages caused throughout the building. Furthermore, plaintiff also presented pictures indicating that additional leaks emanated from defendant's bathtub since the filling of the motion, which has led to the presence of mold. Plaintiff has established that absent the requested injunction, it will suffer irreparable harm.

3. On the equities, according to the access request provided by plaintiff, plaintiff gave defendant at least one week in advance and requested access to defendant's apartment from 9:00 a.m. to 5:00 p.m. on both June 7, 2023 and June 8, 2023 to inspect the bathtub and to repair and/or replace the bathtub with a shower. The request also stated that if defendant was unable to provide access on the date requested, defendant could schedule an alternative time with plaintiff. In this regard, the potential harm to plaintiff stemming from the continued deterioration of the building's structural integrity appears to eclipse any potential inconvenience that defendant might face in granting access for vital repairs.

Defendant has asked the court to order plaintiff to replace the defective bathtub. However, defendant has not provided sufficient evidentiary support to demonstrate that plaintiff has refused to address this matter. In fact, the record reflects that plaintiff has made diligent efforts to resolve the issue by requesting access from defendant for the purpose of replacing the bathtub.

Accordingly, it is

ORDERED that plaintiff's motion for a preliminary injunction enjoining defendant from denying plaintiff and its agents access to defendant's apartment during reasonable hours in order to (i) replace the bathtub with a shower and (ii) perform repairs necessary to remedy the open DOB violation is granted.

ORDERED that plaintiff shall serve a copy of this order with notice of its entry on defendant.

Dated: October 25, 2023
Hon. Gerald Lebovits
J.S.C. Footnotes

Footnote 1:Defendant argues that plaintiff is not the real party in interest. Based on a deed submitted by plaintiff, recorded in January 2010, plaintiff became the building owner on December 1, 2009, Defendant has not provided any contrary documents or other evidence.