Civil Court of the City of New York, Kings County, July 13, 2016

Abdus Shahid, movant pro se.

Halima Ansari, movant pro se.

Slochowsky & Slochowsky, LLP, Brooklyn (Anjie Krul of counsel), for administrator.

Department of Housing Preservation & Development, New York City (William Muniz of counsel), for Department of Housing Preservation & Development, respondent.

Bushwick Housing & Legal Assistance, Brooklyn (Marilyn Nieves of counsel), for petitioners.

Petitioners commenced this proceeding seeking the appointment of a Real Property Actions and Proceedings Law article 7-A administrator^[FN1] which was granted by the court.

The owners of the subject property, Mr. Abdus Shahid and Ms. Halima Ansari, currently move to vacate this court's March 13, 2016 order^[FN2] "pursuant to CPLR § 2221 (a)" based upon alleged evidence of fraud (a claimed conspiracy at the hands of the tenants' attorney) and also based upon a stated plan to responsibly manage the property (presumably a new fact, not previously available).^[FN3]

Movants are the owners of 284 Cooper Street, Brooklyn, New York 11237, which are the premises that are the subject of this action. Movants previously requested that this court remove the 7-A administrator, and reinstate movants to managerial authority of the property. By a decision/order dated March 13, 2016, this court denied a prior motion seeking the same relief, as herein requested. The court stated in its March 13, 2016 order that movants' moving papers failed to demonstrate that the owners have the financial resources to maintain the{**53 Misc 3d at 244} premises in compliance with applicable legal requirements. Additionally, the court's March 13, 2016 decision stated that the owners' moving papers failed to "detail a plan for future proper and responsible maintenance of the premises." In denying the owners' prior motion, the court wrote "the motion is denied without prejudice to renew on proper papers."

Counsel for the article 7-A administrator opposes the motion. Counsel argues that the current application is the movants' twelfth motion seeking to discharge the 7-A administrator, and fails to submit new or additional facts which were not submitted in the movants' 11 prior applications seeking the same relief. Therefore, counsel argues that there is no basis upon which renewal can be granted, or the March 13, 2016 order vacated.

CPLR 2214 (a) requires that a "notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor." Although the notice of motion misidentifies the date of the decision that the movants seek to vacate and offers no basis to grant "renewal," "[t]he court may [*2]grant relief that is warranted pursuant to a general prayer contained in the notice of motion, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party."^[FN4] Additionally, "where the wrong ground is designated but other . . . grounds do apply, the court may treat the motion as having specified the right ground and grant relief, absent prejudice."^[FN5] Accordingly, this court will deem the motion to be an application to remove the 7-A administrator and place the movants back in managerial authority of the property.

The movants assert two different allegations of fraud. One fraud allegation asserted is that, as a result of a conspiracy at the hands of the complaining tenants' attorney, the movants{**53 Misc 3d at 245} (as the owners) were forced to appear as self represented litigants during the trial, and therefore the owners "lost."^[FN6] The other allegation of fraud asserted by the moving parties is that the 7-A administrator is acting unlawfully because there are only five minor conditions that need repair and the movants state that they can complete repair work of those conditions in one week at a cost of only $1,000.^[FN7]

Movants' allegation that, because of a conspiracy against them (a fraud), they had to appear as self represented litigants at trial, which caused them to lose the case, is not properly before the court. Following the trial, which resulted in the appointment of a 7-A administrator, movants commenced 11 prior motions seeking to substitute the administrator, and restore them to management responsibility of the property, and, as a result, that issue has been previously raised and finally determined and it cannot form the basis of this court granting the relief herein requested.^[FN8]

Additionally, the movants' contention that there are very few (and only minor) conditions in need of repair, which they can have repaired in a week, does not form the basis to conclude that there is fraud on behalf of the 7-A administrator, or that movants will be responsible managers of the premises.

In support of their application, the movants assert that they are financially sound, and have the resources to responsibly maintain the premises. Indeed, annexed to the motion as exhibit 2 are photocopies of two documents claiming to be Citibank, Citigold bank account statements. The first document bears the names of Mr. Abdus Shahid and Ms. Halima Ansari as [*3]the account holders. The document states that it is for the period of February 1, 2016 through February 29, 2016. The documents annexed as movant's exhibit 2 will not be considered by the court for the following reasons: (1) there is nothing in the supporting affidavit to authenticate the documents;{**53 Misc 3d at 246}^[FN9] (2) the date noted on the face of each document shows that each document was available at the time the movants commenced the motion which resulted in this court's March 13, 2016 decision;^[FN10] and (3) the face of each document states that the document is "1 of 4" pages, and only "page 1" of each document was annexed to the moving papers, therefore each "statement" was an incomplete document.^[FN11]

Based upon the foregoing, the movants have failed to sufficiently demonstrate that they are financially stable to responsibly maintain the premises.

The movants argue that the "[t]otal rental income per month is $7,700 [and the t]otal rental income per year is $92,400.00."^[FN12] The movants offset the $92,400 yearly income generated from rent collection with the $30,900 yearly costs of running the building, which they calculated as follows: yearly real estate taxes ($6,543.12), yearly water costs ($5,486.56), yearly cost of gas ($5,700), yearly electricity costs ($1,200) and yearly maintenance costs of ($12,000).^[FN13]

It is movants' conclusion that calculating the above cited numbers, the building generates "$61,500.00 profit per year."^[FN14] This court notes that the movants failed to submit any documentary evidence to support that the building is operating at $61,500 per year profit. Indeed, a review of the "7A Monthly {**53 Misc 3d at 247}Filing Report" submitted by Mr. Nicolaos Leonardos, the [*4]appointed 7-A administrator, demonstrates that during the month of February 2016^[FN15] the movants' position is incorrect.

The "7A Monthly Filing Report" of February 2016 reports that the monthly rent collected was $4,119.62^[FN16] and the monthly expenses were $2,103.20.^[FN17] Moreover, the monthly $2,103.20 expenses were stated to be for the following services: building cleaning, management fee, exterminating, repairs, legal and electric.^[FN18] Notably, during that reported period, it appears that the following expenses, which movants included in their submission, were not paid by the 7-A administrator: real estate taxes (which movants claim are $6,543.12 per year/$545.26 per month),^[FN19] water bill charges (which movants claim are $5,486.56 per year/$457.21 per month), which are due every three months, and gas (which movants claim is $5,700 per year/$475 per month).

The reality appears to be that, calculating the income generated by rental payments ($4,119.62) and reducing that amount by the monthly expenses ($2,103.20 plus $1,477.47), there is a $538.95 monthly surplus, which translates into a $6,467.40 yearly surplus, which is nearly 90% less than the amount claimed by the movants.

Indeed, even without factoring in real estate taxes, water bill charges and gas costs, the source of the numbers used by the movants when determining the amount of income generated at the subject premises is unknown. This court credits the statements contained in the monthly reports supplied by the 7-A administrator, and finds the huge disparity between the administrator's monthly statement and the movants' unrealistic figures gives this court reason to question the movants' actual ability to responsibly maintain the premises.{**53 Misc 3d at 248}

Additionally, movants state that the 7-A administrator is "collecting $7,700.00 a month and $92,400.00 a year showing 5 violation[s] are not finished [and] only $1,000.00 and one week [is] need[ed] to fix these 5 minor violations."^[FN20] As noted above, there is no basis for this court to determine that the premises are generating $61,500 in yearly income, nor do movants supply documentary support for this contention. Similarly, the movants offer no basis for their conclusion that it will take "only $1,000.00" and only one week to remove the remaining "minor" violations. This court makes this determination notwithstanding movants' assertion that [*5]they "already hired a maintenance worker to take care of the subject property."^[FN21]

Movants' assertion that the "7A administrator finished repair [work] [i]n July 2013 [and is] not returning the property"^[FN22] and therefore committing fraud demonstrates that the movants fail to grasp the severity of the situation, or the purpose of the enactment of article 7-A of the RPAPL. The purpose of article 7-A of the RPAPL is to take away control of property from irresponsible landlords and provide occupants with landlords who will provide and maintain the property in safe condition.^[FN23] Parenthetically, this court notes that movants' assertion that the "7A administrator finished repair [work] [i]n July 2013 [and is] not returning the property"^[FN24] is inconsistent with movants' assertion that the administrator will not remove all the violations because as long as there are any outstanding violations the administrator may maintain control of daily management of the premises.^[FN25]

Movants' assertion that, because there are no longer violations at the premises, the administrators continued maintenance of the premises "is unlawful fraudulent act[ion] of [the] {**53 Misc 3d at 249}7A [a]dministrator to make money"^[FN26] is contrary to law. Indeed, even if there were no current violations of record at the premises, and all essential services were being provided, the discharge of a 7-A administrator requires a showing of

"a plan for the continued maintenance of the building . . . and . . . [i]n the absence of such a showing a court would be remiss in granting a motion seeking the discharge of the Administrator since a grant of the relief . . . would place the property in a state of abandonment to the great detriment of the tenants."^[FN27]

As relevant to the case at bar, the Multiple Dwelling Law provides that

"[i]n any action or proceeding before the housing part of the New York city civil court either (a) the visually displayed or (b) the printed computerized violation files of the department responsible for maintaining such files and all other computerized data as shall be relevant to the enforcement of state and local laws for the establishment and [*6]maintenance of housing standards^[FN28] . . . [and] shall be prima facie evidence of any matter stated therein and the courts shall take judicial notice thereof as if same were certified as true under the seal and signature of the commissioner of that department."^[FN29]

The plain language of the statute is clear that a court must take judicial notice of violations placed against a building by any authorized government agency as prima facie proof of the existence of violations of the housing maintenance laws at the subject premises. Indeed, "to determine whether dangerous conditions exist, courts generally consider housing violations{**53 Misc 3d at 250} placed by the municipal department charged with the enforcement of the housing maintenance laws."^[FN30]

Accordingly, this court is mandated by statute to take judicial notice of known violations placed by the municipal department charged with the enforcement of the housing maintenance laws at the premises owned by the movants of the within proceeding.^[FN31] Accordingly, this court takes judicial notice of the case entitled Klenfner v Shahid (Civ Ct, Kings County, Avery, J., index No. LT-013867-16/KI), relating to the premises known as 455 Tompkins Avenue, Brooklyn, NY 11216, which are owned by Mr. Abdus Shahid and Ms. Halima Ansari, and which is currently pending before this court, where the petitioners therein seek the appointment of an article 7-A administrator.

In Klenfner, the petitioners, the tenants residing at 455 Tompkins Avenue, seek the appointment of an article 7-A administrator. The proceeding is currently mid-trial. In Klenfner, numerous documents were submitted by the petitioners and much testimony was heard by this court. Included in the documents submitted were Department of Housing Preservation and Development (DHPD) violations of record as of April 26, 2016. The DHPD records show that there were 237 violations at 455 Tompkins Avenue, with 60 [*7]classified as A, 144 classified as B and 33 classified as C.^[FN32] Additionally, as of June 30, 2016, there were 193 violations at 455 Tompkins Avenue, with 46 classified as A, 118 classified as B and 29 classified as C.

Also admitted into evidence were Department of Buildings (DOB) documents demonstrating that as of May 16, 2016 there{**53 Misc 3d at 251} were 16 DOB violations and 6 Environmental Control Board (ECB) violations placed at 455 Tompkins Avenue. Additionally, admitted into evidence at the Klenfner trial was an "Order Reducing Rent For Rent Stabilized Tenants" dated June 22, 2015 issued by the Division of Housing and Community Renewal (DHCR) which found evidence of "an unstable, loose and rusted fire escape, collapsing floor in the kitchen with loose chipped, uneven and dangerously sharp edged broken tiles, collapsing floor in the largest bedroom with broken, cracked missing and chipped floor-tiles and broken/cracked bottom window-sash in the bathroom" (sic). The testimony at trial was that the conditions found to exist as specified in the DHCR rent reduction order still exist.

As the Klenfner trial is currently in the middle of plaintiffs' case-in-chief, Mr. Shahid and Ms. Ansari have not yet had the opportunity to introduce evidence in support of their defense(s), if any. As a result, it seems contrary to the movants' constitutionally protected rights to deny their application based upon the allegations asserted in Klenfner, which they have not yet had the opportunity to defend. Indeed, the New York State Constitution mandates that "[n]o person shall be deprived of life, liberty or property without due process of law."^[FN33] The language of the New York State Constitution mirrors the language of the Fourteenth Amendment of the Federal Constitution.^[FN34]

The due process provisions of the Federal and State Constitutions require that "[w]henever state action deprives a citizen of his or her liberty or property due process requires that he or she be afforded the opportunity for a hearing."^[FN35] The hearing must be provided "at a meaningful time and in a meaningful manner."^[FN36] Only in extraordinary situations may the hearing {**53 Misc 3d at 252}be postponed until after the property deprivation has occurred.^[FN37]

"However, the requirements of due process and fair procedure are flexible as to the . . . formality . . . called for by the particular situation."^[FN38] Accordingly, "[b]efore defendant may be deprived of [a property right] . . . he [or she] is entitled to a hearing, unless . . . an overriding State interest necessitate[s] prompt action either without a hearing or [postponing the] hearing until after the event."^[FN39] Indeed, a "compelling public interest . . . outweigh[s] the need for [a] prior . . . hearing."^[FN40]

Moreover "the [deprivation of the] use of private property i[s] . . . reasonable . . . [where the purpose of the deprivation is] to protect the health and safety of the public—i.e., to 'prevent an impending danger emanating directly from the use or condition of the property.' "^[FN41] Indeed, "[m]atters that are civil in nature, such as [in the case at bar], require a lower level of due process protections."^[FN42] A fortiori, because "the 7A administrator is placed in the position of the owner [only] for some purposes, he 'does not, however, fully stand in the shoes of the owner' "^[FN43] therefore the "order [which appointed the 7-A administrator] d[oes] not deprive [the owners] of their ownership rights to the premises."^[FN44]

{**53 Misc 3d at 253}Based upon the unique facts presented here, this court invokes the maxim falsus in uno, falsus in omnibus.^[FN45] The maxim supports that where violations are placed against one property the court may deny the substitution of a 7-A administrator of a different property, where both properties are owned by the same individual(s). The reason being is that it would not be in the best interest of the building or the public to replace a 7-A administrator with an owner that is [*8]managing another property in a standard which is contrary to the public health and safety,^[FN46] as this may be an indication of the manner in which the property owner will manage the other property that he or she is responsible to maintain.

Accordingly, taking judicial notice of the 193 violations of record placed by DHPD, including the 29 violations delineated as class C, as well as the violations placed by the DOB and the ECB, coupled with the rent reduction order issued by the DHCR against 455 Tompkins Avenue, a separate property owned by the instant movants, falsus in uno, falsus in omnibus requires this court to determine that "movant[s] ha[ve] neither demonstrated that it would be in the perceived best interest of the building nor in the public interest to remove the 7-A administrator and turn management and control of the premises over to [t]he[m]."^[FN47]

Accordingly, for the reasons cited above, the motion is denied. However the movants are granted leave to renew in the event they successfully defend against the allegations asserted in the Klenfner action.

"[P]ursuant to section 328 (3) of the Multiple Dwelling Law, in any proceeding before this part, computer-printed HPD violations and all other computerized data relevant to the enforcement of state and local housing standards are prima facie evidence of any matter stated therein, and the court must take judicial notice thereof as if same were certified as true" (Department of Hous. Preserv. & Dev. of City of N.Y. v Living Waters Realty Inc., 14 Misc 3d 484, 486-487 [Civ Ct, NY County 2006, Capella, J.]).

"[I]n her affidavit . . . of her ability, experience and competence to manage the subject premises [movant notes] her personal participation [in managing the premises] just down the street from the subject premises . . . [T]he Court has examined the [HPD] computer screen . . . regarding [the premises just down the street and] [p]rima facie judicial notice is taken of the accuracy of the Housing Code Violations listed thereon . . . [which] listed various, serious Building Code violations . . . This type of prima facie evidence does not persuade this court that [movant] will be [an] . . . effective . . . administrator" (Toribio v Whiz Realty Corp., 131 Misc 2d 227, 232 [Civ Ct, NY County 1986, Dankberg, J.], citing Pack v Loremady Realty Corp., 65 Misc 2d 801 [Civ Ct, Kings County 1971, Aronin, J.]).