Civil Court of the City of New York, Queens County, May 13, 2022

New York City Housing Authority (Jonathan David Rosen and Alan Harris Liskov of counsel) for respondent.

Queens Legal Services (Cynthia Melissa Ramos and Matthew D. Reichert of counsel) for petitioner.

The underlying proceeding is an HP action wherein petitioner seeks an order to correct violations, a finding that respondent has harassed petitioner and an order of restraint pursuant to New York City Housing Maintenance Code (HMC) (Administrative Code of City of NY) § 27-2005 (d). The proceeding was commenced September 27, 2021, triggering an inspection by the Department of Housing Preservation and Development (HPD) which resulted in various (13) unreported violations reflected on the corresponding violation report dated October 6, 2021. Petitioner had previously commenced an HP action in July 2021 (467/21) alleging similar conditions and harassment and in which unofficial violations were also reported after inspection. That case has since been transferred to Part X and is awaiting trial.

Respondent now moves for an order dismissing the underlying proceeding pursuant to CPLR 3211 (a) (7) alleging petitioner has failed to state a cause of action. Respondent, relying on Aguaiza v Vantage Props., LLC (69 AD3d 422 [2010]), appears to argue that section 27-2005 (d) was created solely to address perceived efforts by landlords to empty rent-regulated apartments by harassing tenants into giving up their occupancy rights. They then directly extrapolate this to conclude that since "the Housing Authority is a public benefit corporation created to give tenants safe housing it is [*2]clearly not the type of landlord that the drafters of the harassment statute intended the statute to operate against." (Respondent's mot para 10.) They also conclude that they have not engaged in any enumerated act or omission required by section 27-2004 (a) (48) because their actions have only amounted to a "mere delay in completing repairs [which] does not arise to the level of harassment as defined by the statute." (Respondent's mot para 12.)

{**75 Misc 3d at 848}Petitioner opposes the motion in its entirety and alleges numerous failures by the New York City Housing Authority (NYCHA) to correct hazardous conditions within her apartment over a lengthy period as well as allegations of unprofessional behavior during the course of their interactions where she alleges humiliating and dehumanizing treatment. She also provides documentation of various correspondences and prior proceedings wherein she alleged similar or the same conditions which continue to exist.

HMC § 27-2005 (d) provides that "[t]he owner of a dwelling shall not harass any tenants or persons lawfully entitled to occupancy of such dwelling as set forth in paragraph 48 of subdivision a of section 27-2004." Respondent is an "owner" as defined by HMC § 27-2004. They can maintain proceedings against NYCHA residents and they have full authority and control of building operations. Paragraph (48) of the code enumerates examples of acts or omissions intended to cause a tenant to vacate their dwelling or surrender or waive any rights in relation to their dwelling. Petitioner has alleged a variety of these acts were perpetrated by respondent including subparagraphs (b)—"repeated interruptions or discontinuances of essential services, or an interruption or discontinuance of an essential service for an extended duration or of such significance as to substantially impair the habitability of such dwelling unit"; (b-2)—"repeated failures to correct hazardous or immediately hazardous violations of this code or major or immediately hazardous violations" (petitioner's affirmation in opp paras 16-25); and (f)—"changing the lock on such entrance door without supplying a key to the new lock to the persons lawfully entitled to occupancy of such dwelling unit." (Petitioner's affirmation in opp para 28.)

Respondent's claim that the harassment portion of the code does not apply to NYCHA because it is presumed that it would not engage in harassing behavior as a public benefit corporation is alleged without legal support or authority, as well as devoid of any merit. While NYCHA is excluded from specific provisions of the Housing Maintenance Code (see § 27-2056), those exclusions are expressly enumerated and section 27-2005 is not such a provision. The fact that NYCHA is not specifically excluded with regard to section 27-2005 empowers the assertion that they are subject to it. Additionally, their assertion that they have not violated section 27-2004 (a) (48) is unsupported by documentation. Petitioner has provided a substantial{**75 Misc 3d at 849} documentary trail of the parties' history with regard to her complaints and NYCHA's response to those complaints dating back to 2017. Although HPD inspection results are not technically filed as recorded violations against a related city agency, they can still be accepted as prima facie evidence as to the conditions in the premises as witnessed by HPD (Multiple Dwelling Law § 328 [3]; Department of Hous. Preserv. & Dev. of City of N.Y. v Knoll, 120 Misc 2d 813 [1983]; Department of Hous. Preserv. & Dev. of the City of N.Y. v Joseph, 73 Misc 3d 1211[A], 2021 NY Slip Op 50999[U] [2021]) and the court can determine, after testimony, the severity of said conditions in concordance with HPD violation standards.

Further, when considering a motion under CPLR 3211 (a) (7), the court must afford the pleadings a liberal construction and deem the facts alleged in the complaint as true. (Leon v Martinez, 84 NY2d 83 [1994].) A motion to dismiss 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 some cognizable legal theory. (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d [*3]34 [2006].) Petitioner has clearly met this standard while respondent has failed to "flatly contradict[ ] by documentary evidence" bare legal conclusions and factual allegations. (Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1999].) As such, this case is ripe for trial for examination and determination of the weight of said claim.

Accordingly, respondent's motion is denied in its entirety.