Upon the following papers numbered 1 to 51 read on these motions by defendants, Top Realty Company and Joseph V. Fabrizio; Community Services Realty, LLC., and Libertino Arrigo; Kueber Realty, Inc. d/b/a Coldwell Banker Kueber Realty s/h/a Coldwell A. Banker Realty, to dismiss plaintiffs' complaint, pursuant to CPLR §§3211(a)(7) and, in some instances, §3211(a)(8), and a motion by plaintiffs seeking an extension of time to serve Kueber Realty:[*2]

Papers

Numbered

Notices of Motion - Affidavits - Exhibits ...........................................1-21

Answering Affidavits - Exhibits .........................................................22- 38

Reply Affidavits - Exhibits..................................................................39-51

This action was brought to recover, inter alia, damages for alleged violations of the New York State Human Rights Law, NY Exec. Law §290, et seq. (NYSHRL), and the New York City Human Rights Law, NYC Admin. Code §8-107, et seq. (NYCHRL). Plaintiff, Maureen Dill, Individually and as Administrator of the Estate of her late son, Scott Dill, alleges her son, in his pursuit of an apartment, was wrongfully discriminated against by the defendant realtors because he was disabled, and based on his source of income. Plaintiff alleges her son answered advertisements for available apartments, listed by the defendant real estate agencies; requested apartments commensurate to the rent assistance provided to him by the HIV/AIDS Services Administration (HASA); and, after revealing his disability and his receipt of rent assistance from HASA, was told that no apartments were available.

The branches of the motions of the defendants Kueber Realty, Top Realty and Joseph V. Fabrizio and the motions of defendants Community Services Realty, LLC., and Libertino Arrigo which seek to dismiss the complaint pursuant to CPLR §3211(a)(7) for failure to state a cause of action are decided as follows:

The sole criterion to dismiss a complaint, or part thereof, is whether the pleading, and the factual allegations contained within its four corners, manifests any cause of action cognizable at law (see Gaidon v. Guardian Life Ins. Co. Of America, 94 NY2d 330 [1999]). "To withstand dismissal, the requisite elements of the cause of action must be discernable from the pleadings, and the complaint must give notice of the transactions and occurrences to be proved" ( Dolphin Holdings, Inc. v Gander & White Shipping, Inc., 122 AD3d 901, 902 [2014]).

On a motion to dismiss the complaint, pursuant to CPLR §3211(a)(7), for failure to state a cause of action, the court must afford the pleading a liberal construction, accept as true all the facts alleged, give the nonmoving plaintiff the benefit of all favorable inferences, and determine only whether the alleged facts fit within any cognizable legal theory, and not whether plaintiff can ultimately prove such facts (see J.P.Morgan Securities, Inc. v Vigilant Ins. Co., 21 NY3d 324 [2013]; People ex rel. Cuomo v Coventry First LLC, 13 NY3d 108 [2009]; Bd. of Mgrs. of Bay Club v Borah, Goldstein, [*3]Schwartz, Altschuler & Nahins, P.C., 97 AD3d 612 [2012]).

In the case at bar, after appropriately affording a liberal construction to the pleadings (see Leon v Martinez, 84 NY2d 83 [1994]; Hampshire Properties v BTA Building & Developing, Inc., 122 AD3d 573 [2014]; Carillo v Stony Brook Univ., 119 AD3d 508 [2014]), the branches of moving defendants' motions seeking to dismiss the plaintiffs' complaint for failure to state a cause of action are denied. Plaintiffs have sufficiently claimed in the complaint, prima facie, the elements of a housing discrimination action based on disability, through violations of the NYSHRL and the NYCHRL. The complaint demonstrated that Scott Dill was a member of a protected class, who applied for, and was qualified to rent, housing which was denied him "under circumstances which give rise to an inference of unlawful discrimination" (Matter of New York State Div. of Human Rights v Caprarella, 82 AD3d 773, 774 [2011]).

Furthermore, the contention that the causes of action delineated in the complaint are insufficiently pled, in that they fail to state that the housing allegedly denied to Scott Dill was actually available at the time his requests is without merit. Defendants rely on the language of §296 (5)(a)(1) of the Executive Law, and of §8-107(5)(c)(1) of the Administrative Code of the City of New York, which both contain the words "when in fact it is so available," to support this contention.

Executive Law §296 (5)(a)(1) provides that it is unlawful to:

Refuse to sell, rent, lease or otherwise to deny or to withhold from any person or group of persons such housing accommodation because of the race, creed... disability... of such person, or to represent that any housing accommodations or land is not available... when in fact it is so available.

A plain reading of the statute clearly shows that the statute contains two separate and independent basis for liability. First, it is unlawful to refuse to rent to a person because of among other things, a person's disability. Second it is unlawful to represent that housing is not available, when it is available.

Administrative Code §8-107 (5)(c)(1) contains similar separate and independent basis for liability.

More importantly, plaintiffs' complaint does allege that housing was available. Accordingly, it is

ORDERED that the branches of the motions by defendants seeking to dismiss plaintiff, Maureen Dill as Temporary Administrator of The Estate of Scott Dills's [*4]complaint for failure to state a cause of action are denied.

The court finds however, that plaintiff Maureen Dill, individually, lacks standing to sue. New York courts have held that the spouse of an aggrieved person does not fall within the meaning of an "aggrieved person" within the meaning of Executive Law §297(9), Weinstein v Hospital for Joint Disease, 53 AD2d 627 (2nd Dept., 1976); see also, Rich v Coopervision, 198 AD2d 860 (4th Dept., 1993). Plaintiff has cited no authority which provides that a distributee has standing to sue as an aggrieved party. A clear reading of the Executive Law and the Administrative Code of the City of New York gives only the person under a disability the standing to sue. Accordingly, it is further

ORDERED that the branch of defendant Kueber Realty's motion seeking to dismiss the causes of action on behalf of plaintiff, Maureen Dill individually, on the grounds that she does not have standing to sue since that she is not an "aggrieved person" is granted.

Defendant Kueber Realty also moves to dismiss the plaintiffs' complaint upon the ground that this court lacks in personam jurisdiction.

Plaintiffs contend that their process server properly served the defendant Kueber Realty by delivering the summons and complaint to defendant Kueber Realty's authorized agent Pat Neff. The process server's affidavit of service states that the process server knew the person who accepted service was an "authorized agent" of the defendant.

Defendant Kueber Realty contends that Pat Neff, was a receptionist and not one of the individuals designated to receive service under CPLR §311(a)(1). Accordingly, it is

ORDERED that the branch of defendant Kueber Realty's motion to dismiss the plaintiffs' complaint for lack of in personam jurisdiction is set down for a traverse hearing on November 10, 2015 at 9:30 a.m., in Part 19, Courtroom 45, at the Courthouse located at 88-11 Sutphin Blvd., Jamaica, New York.

Plaintiff's motion to extend the time to serve defendant Kueber Realty Inc., is held in abeyance pending a hearing on traverse.

Defendant Kueber Realty also moves to dismiss the plaintiffs' cause of action for punitive damages, on the ground that New York's Estate, Powers & Trusts Law §11-3.2 explicitly prohibits the award of punitive damages.

EPTL §11-3.2(b) disallows a recovery for punitive damages in any such action [*5]brought to recover damages for personal injury where the death occurs on or before the year 1982. That is not the case here. Furthermore, Executive Law §297(9) specifically permits a cause of action for punitive damages in an amount not to exceed $10,000 in housing discrimination cases. Accordingly, it is further

ORDERED that the branch of Kueber Realty's motion seeking to dismiss plaintiffs' cause of action for punitive damages is denied.

Defendant Top Realty Company moves to dismiss plaintiffs' complaint on the ground that the court does not have in personam jurisdiction over it since Top Realty Company is a trade name, it cannot be sued independently, citing Honeyman v Curiosity Works, Inc., 120 AD3d 1302 (2014) and Provosty v Lydia E. Hall Hosp., 91 AD2d 658 (1982). Plaintiffs contend that service on defendant, Joseph Fabrizio, "sufficed to fairly apprise Joseph Fabrizio Realty Company, Inc., that it was the intended target of such claim." While an amendment to cure a misnomer in the description of a party defendant is permitted, plaintiff must demonstrate that, in fact, "the correct party defendant has been served with process" (Creative Cabinet Corp. of Am. v Future Visions Computer Store, 140 AD2d 483, 484 [1988]; see Sanders v 340FA, LLC, 126 AD3d 876 [2015]). Accordingly, it is

ORDERED that the branch of defendant Top Realty Company's motion to dismiss the plaintiff's complaint for lack of in personam jurisdiction is set down for a hearing on November 10, 2015 at 9:30 a.m., in Part 19, Courtroom 45, at the Courthouse located at 88-11 Sutphin Blvd., Jamaica, New York to determine whether Top Realty Company is a legal entity and if not, whether Joseph Fabrizio Realty Company, Inc., was sufficiently apprised that it was the intended defendant; and it is further

Robert L. Nahman, J.S.C.