Civil Court of the City of New York, Bronx County, June 19, 2019

Mobilization for Justice, Inc., Bronx (Andrew Jones of counsel), for Wendy Dolly Anthony, respondent.

Todd Rothenberg, New Rochelle, for petitioner.

The decision and order on this motion is as follows:

Mangan Realty, LLC, the petitioner in this proceeding, commenced this summary holdover proceeding against Wendy Dolly Anthony, the respondent herein, seeking possession of the subject premises based on the allegations that "[r]espondent, his [sic] guests and/or occupants have engaged in conduct constituting nuisance."

The December 6, 2018 10 day notice to terminate (notice) states in relevant part,

"Since on or about January 24, 2018, you, your guests and/or occupants have engaged in conduct that has infringed upon the rights and safety of your fellow building residents and have degraded their quality of life and their ability to use their respective housing accommodations. Your conduct . . . is in breach of Section 2524.3 (b) of the Rent Stabilization Code for rent stabilized apartments and in violation of a substantial obligation of your lease agreement . . . , specifically paragraph 17 and 27 (g) of said lease."

The notice lists 11 separate instances of objectionable conduct.

Respondent, represented by counsel, interposed a written answer dated March 11, 2019. Respondent now moves for dismissal pursuant to CPLR 3211 (a) (7), citing RPAPL 744, Real Property Law § 227-d, and 42 USC § 1437f (c) (9) (B) and (C) (i).

Respondent argues that the matter must be dismissed because the proceeding "discriminates against Respondent on the basis of her status as a domestic violence survivor." In support of her motion, respondent submits an affidavit and two temporary orders of protection, both expiring April 16, 2019. Respondent's March 25, 2019 affidavit alleges a romantic relationship with a Moussa Soumare, beginning in June 2017; that he moved into the premises in September 2017; that Soumare was emotionally abusive; that Soumare would repeatedly yell and get in fights with other tenants; that Soumare moved out of the apartment in January 2019; that he returned in February 2019 and punched a hole in the wall; and that he returned to the apartment again on March 5, 2019.

RPAPL 744 (1) provides that

"[a] tenant shall not be removed from possession of a residential unit pursuant to this article because of such person's domestic violence victim status, as defined in section two hundred twenty-seven-d of the real property law. It shall be a defense to a proceeding to recover possession of a residential unit that a landlord seeks such recovery because of a person's domestic violence victim status, and that, but for such status, the landlord would not seek to recover possession. A landlord may rebut such defense by showing that he or she seeks to recover possession of a residential unit because of any other lawful ground."

Real Property Law § 227-d (1) provides,

"a person is a 'domestic violence victim' and possesses 'domestic violence victim status' if such person is or has been, or is a parent accompanied by a minor child or children who is or has been, in a situation in which such person or child is a victim of an act that would constitute a violent felony offense as enumerated in section 70.02 of the penal law, or a family offense as enumerated in subdivision one of section eight hundred twelve of the family court act, and such act is alleged to have been committed by a member of the same family or household, as defined in subdivision one of section eight hundred twelve of the family court act."

On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. The court must deem{**64 Misc 3d at 689} the facts alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. (Leon v Martinez, 84 NY2d 83, 87-88 [1994].) In assessing a motion under CPLR 3211 (a) (7), "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977].) Thus, "a motion to dismiss made pursuant to CPLR 3211 (a) (7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law." (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2d Dept 2006]; see Leon v Martinez, 84 NY2d at 87-88.)

Under the limited record before this court, the motion to dismiss must be denied. Neither respondent's affidavit or the issuance of the two temporary orders of protections, as far as this court can surmise,^[FN1] establish, as a matter of law, respondent as a "domestic violence victim" as defined by Real Property Law § 227-d. At best, issues of fact are implicated. Respondent may, at trial, offer proof that she is a domestic violence victim. Assuming arguendo that respondent has established she is a domestic violence victim, she has failed to establish that "but for such status, the landlord would not seek to recover possession." (RPAPL 744 [1].) The notice herein alleges 11 separate items, including multiple instances of threats, and physical violence, directed at other tenants. It may be that the otherwise lawful reasons for the eviction as described in the notice will be proved as having been created by the alleged abuser. If so, respondent's defense under RPAPL 744 may prove successful. However, this court will not foreclose petitioner from proceeding on this matter, commenced to protect the health and safety of other tenants, on the sparse record before it.

Respondent primarily relies on KDG Albany, LP v Dixon (62 Misc 3d 557 [Albany City Ct 2018]) in support of the motion. The court notes that in Dixon there was a fully developed record after trial. The Dixon court determined, after trial, that the tenant and the alleged abuser had an intimate relationship, that she qualified as a domestic abuse victim and that the{**64 Misc 3d at 690} complained of behavior was all sourced in domestic abuse. (Dixon, 62 Misc 3d at 562-564.) Other than respondent's affidavit, no independent proof is offered establishing Soumare and respondent's intimate relationship. There is no independent proof that Soumare and respondent were members of the same family or household (as defined by section 812 of the Family Ct Act). The affidavit is entirely conclusory regarding alleged threats and emotional abuse toward respondent. Respondent does not allege physical violence (that would constitute a violent felony). (See Real Property Law § 227-d; Penal Law § 70.02.) Respondent also has failed to establish that a "family offense" under section 812 of the Family Court Act has been [*2]committed.^[FN2]

The court has considered respondent's other arguments under 42 USC § 1437f (Metro N. Owners, LLC v Thorpe, 23 Misc 3d 178 [Civ Ct, NY County 2008]); they are not persuasive for the reasons already stated.

This court urges petitioner herein, its counsel, and future practitioners to avoid casting aspersions and using dismissive language toward domestic abuse survivors based on perceived inconsistencies in his or her actions or statements. This court fully concurs with Hon. Gerald Lebovits' statement in Thorpe, "Unrepresentative and inconsistent victim behavior toward an alleged aggressor fits into the cycle of domestic violence. Domestic violence is cyclical in nature. The battered woman's inconsistent behavior allows the victim to anticipate oncoming violence and entices her to remain with her abuser after the violence ends." (23 Misc 3d at 185 [citations omitted].)

Based on the foregoing, respondent's motion to dismiss the proceeding is denied without prejudice to interposing her defenses at trial.