Civil Court of the City of New York, Bronx County, November 17, 2021

The Legal Aid Society (Max Reinhardt of counsel) for petitioner.

Monju Sarker, respondent pro se.

Petitioner moves the court for leave to amend her petition to "include other repairs that petitioner has in her apartment" and to add harassment claims.

While amendment should be freely granted particularly where, as here, the motion is unopposed (see CPLR 3025 [b]; Norwood v City of New York, 203 AD2d 147, 148-149 [1st Dept 1994]; National Union Fire Ins. Co. of Pittsburgh, Pa. v Schwartz, 209 AD2d 289, 290 [1st Dept 1994]), it is also true that amendments which clearly lack merit ought to be denied. (See Thomas Crimmins Contr. Co. v City of New York, 74 NY2d 166, 170 [1989].)

As such the court must assess each of the proposed amendments independently to determine whether any have merit. If any proposed amendment lacks merit, this court may strike it pursuant to CPLR 409 (b). (See Matter of Bahar v Schwartzreich, 204 AD2d 441, 443 [2d Dept 1994] [In a special proceeding, where no triable issues of fact are raised, the court must make a summary determination on the pleadings and papers submitted by the parties as if a motion for summary judgment were before it].)

First, the request to add additional repair items is granted. At this point in the litigation, it cannot be said this amendment will prejudice or unfairly surprise the respondent. (See Fahey v County of Ontario, 44 NY2d 934 [1978].) Indeed, petitioner alleges that at least one of the additional conditions was already deemed a violation by the New York City Department of Housing Preservation and Development (DHPD). The others, petitioner claims, were complained of long before this Housing Part action commenced. Although there are no DHPD violations for lack of heat in the apartment or for mold in the{**73 Misc 3d at 1012} kitchen (some of the [*2]additional conditions claimed), petitioner may prove the existence of such conditions by other means. (Scherer & Fisher, Residential Landlord-Tenant Law in New York § 19:65 [2019 Update]; Mite v Pipedreams Realty, 190 Misc 2d 543 [Civ Ct, Bronx County 2002].)

As for the balance of petitioner's motion seeking to amend the petition to add harassment claims, that request is denied. Administrative Code of City of NY § 27-2004 (a) (48) (ii) (b-2) defines harassment as "repeated failures to correct hazardous or immediately hazardous violations of this code or major or immediately hazardous violations of the New York city construction codes, relating to the dwelling unit or the common areas of the building containing such dwelling unit, within the time required for such corrections." Critically, and in keeping with common sense,

"where one or more allegations of harassment pursuant to subparagraphs b, c and g of paragraph 48 of subdivision a of section 27-2004 of this chapter is made, to the extent that any such allegation is based on physical conditions of a dwelling or dwelling unit, such allegation must be based at least in part on one or more violations of record issued by the department or any other agency." (Administrative Code § 27-2115 [h] [2] [i]; see also 1068 Winthrop St. LLC v Zimmerman, 65 Misc 3d 1107, 1119 [Civ Ct, Kings County 2019].)

Thus, to properly allege harassment under subparagraphs (b), (c), and (g), where the "allegation is based on physical conditions" in the apartment, petitioner must show one or more violations of record. (See Jeffers v River Park Residences LP, 70 Misc 3d 1225[A], 2021 NY Slip Op 50218[U] [Civ Ct, Bronx County 2021].) Consequently, the harassment claim under subparagraph (b-2) is without merit. As of the date of the proposed amended petition,^[FN1] none of the violations issued on or about September 10, 2021,^[FN2] or September 23, 2021, were past their certification of correction date. Consequently, the facts, as alleged, cannot support a finding that there were "repeated failures to correct hazardous or immediately hazardous [conditions]." {**73 Misc 3d at 1013}(Administrative Code § 27-2004 [a] [48] [ii] [b-2] [emphasis added].)

The harassment claim pursuant to subparagraph (g) is also insufficient and the proposed amendment is denied. Subparagraph (g) is the "catch-all" provision of the harassment law ("other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peace or quiet of any person lawfully entitled to occupancy"). Petitioner's allegation under this subparagraph is that respondent or respondent's agent removed personal property from the apartment, and that when petitioner inquired about the property, respondent's daughter informed petitioner that she could relocate if petitioner did not trust respondent.

Pleadings, of course, must be liberally construed, and defects must be ignored if a substantial right of a party is not prejudiced. (See Foley v D'Agostino, 21 AD2d 60, 65 [1st Dept 1964].) However, the pleading must not "mislead one as to the identity of the transactions or occurrences sought to be litigated or as to the nature and elements of the alleged cause or defense." (Id. at 66.)

Here, the attorney-prepared amended pleading does not meet basic requirements of [*3]CPLR 3013 ("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"). Petitioner does not specify whether it was respondent or respondent's agent who removed her personal property.^[FN3] Thus, respondent is left to guess whether he must answer for himself or for the acts of his alleged unnamed agent. Petitioner does not explain why she cannot provide details about whether it was respondent or his agent(s) who removed property from the apartment. Petitioner does not specify what property was taken, or even if it was her property that was removed. Again, respondent is left to guess what might have been taken and guess whom the property belonged to. All of this deprives respondent of the ability to properly defend this claim. (See Foley v D'Agostino.)

Additionally, the amended claim casually, without any stated basis, holds respondent responsible for statements allegedly made by his daughter. Speech, of course, is constitutionally{**73 Misc 3d at 1014} protected. (US Const 1st Amend.) It may not be penalized unless it presents danger of some serious substantive evil. (See J.F. v D.F., 73 Misc 3d 1215[A], 2021 NY Slip Op 51046[U] [Sup Ct, Monroe County 2021], citing People v Dietze, 75 NY2d 47, 51 [1989].) In other words, speech cannot be punished simply because it causes annoyance. (People v Golb, 23 NY3d 455, 466 [2014].)

As this court is often inundated with allegations of harassment based on speech, a further discussion is appropriate.

In People v Dietze, the name-calling (including "bitch" and "a dog") "was unprovoked" and "was sufficient to support a finding that defendant had the requisite intent to 'harass' or 'annoy' the complainant." (75 NY2d at 51.) This clearly violated the relevant statute which barred the use of "abusive" language with the intent to "harass" or "annoy" another person. (Id. at 50.) The Court of Appeals, however, found the statute violated both the federal and state free speech protections. (Id. at 51 ["Speech is often 'abusive'—even vulgar, derisive, and provocative—and yet it is still protected under the State and Federal constitutional guarantees of free expression unless it is much more than that"].)

That the "punishment" faced here is civil in nature is of little import. Under the harassment statute, respondents face serious monetary fines and a public record of having harassed a tenant. (See Administrative Code § 27-2115 [m] [2].) Those things too are likely to chill "the expressive freedom of those who believe the statute means what it says and, thus, are reluctant to disobey its literal command" (75 NY2d at 53), particularly if a court were to even consider the speech alleged here as part of a harassment claim.

In People v Golb, the Court of Appeals found another harassment statute unconstitutional because it "criminalizes, in broad strokes, any communication that has the intent to annoy." (23 NY3d at 467.)

It is clear, then, that a finding of harassment based on words such as those alleged here would run afoul of the Federal and State Constitutions. Such words, even if annoying (petitioner does not state how she felt about the words), do not present danger of some serious substantive evil. As such, petitioners, particularly those represented by counsel, ought to be more careful in leveling harassment claims premised on an "owner's" constitutionally protected speech.

{**73 Misc 3d at 1015}If a landlord threatens a tenant based on their gender, it is considered harassment. (Administrative Code § 27-[*4]2004 [a] [48] [ii] [f-5].) Petitioner alleges harassment under this subparagraph because the landlord allegedly performed repairs for a male tenant^[FN4] in September 2020, while refusing to make repairs to petitioner's apartment.

As there is no allegation that respondent threatened petitioner based on her gender, there is no claim under subparagraph (f-5). The word "threatening" must be afforded its ordinary meaning. (See Yaniveth R. v LTD Realty Co., 27 NY3d 186, 192 [2016] ["In the absence of a statutory definition, 'we construe words of ordinary import with their usual and commonly understood meaning, and in that connection have regarded dictionary definitions as useful guideposts in determining the meaning of a word or phrase' "].)

Under Administrative Code § 27-2004 (a) (48) (ii) (f-4)

"repeatedly contacting or visiting any person lawfully entitled to occupancy of such unit (i) on Saturdays, Sundays or legal holidays, (ii) at times other than the hours between 9 a.m. and 5 p.m. or (iii) in such a manner as can reasonably be expected to abuse or harass such person" may constitute harassment.

Petitioner alleges she was harassed because the respondent allegedly visited her apartment, without notice, on September 3, 2021, and September 29, 2021.

This claim, as pleaded, is without merit. September 3, 2021, was a Friday. September 29, 2021, was a Wednesday. Neither was a legal holiday. Neither the amended petition nor petitioner's affidavit alleges the visits occurred before 9:00 a.m. or after 5:00 p.m. Furthermore, the amended petition alleges that on September 2, 2021, in the wake of Hurricane Ida, petitioner notified the respondent about damage caused by flooding. Stated another way, petitioner asks the court to find harassment against the landlord for being responsive to an emergency condition.^[FN5] That respondent "visited the apartment and inspected the conditions" the day after a hurricane obviously cannot constitute harassment.{**73 Misc 3d at 1016}

Even if respondent demanded access on September 29, 2021, without notice, the amended petition does not clarify how that demand was "reasonably expected to abuse or harass" the petitioner. The court notes that notices of violations were issued on September 23, 2021. DHPD's normal practice is to mail such notices. Allowing for five days for mailing means that respondent would have received them on or about September 28, 2021. It is not surprising, then, that respondent would attempt to view the premises on or about September 29, 2021, after receiving notice from DHPD of conditions in the apartment in need of repair.

Based on the foregoing, petitioner's motion is granted solely to the extent that the petition is amended to include the additional items petitioner alleges need repair. The motion is otherwise denied in all other respects. Petitioner shall serve and file an amended petition that comports with this decision and order by November 29, 2021.