Department of Hous. Preserv. & Dev. v 724 40th St LLC

Civil Court of the City of New York, Kings County

Decided on March 8, 2026

Index No. LT-317139-25/KI

Enedina Pilar Sanchez, J.

The Department of Housing Preservation and Development ("HPD") commenced this proceeding for an Order to for Access to the subject premises to perform emergency repairs. The emergency repairs described in the petition are identified as violations of the Housing Maintenance Code and relate to lead-based paint violations issued on January 23, 2025.

The Court takes judicial notice of the HPD website and the contents including the violation summary report. The petition, however, does not identify which is the apartment in the building for which access is sought. The building has 8 apartments. After an examination of the violation summary report and the violations referenced in the petition, can one identify the apartment that would be the subject of the requested Order for Access.

The subject premises would be Apartment 1B. On January 23, 2025, the HP inspector issued violations for lead-based paint hazard. The violations describe two closet door frames and two window frames that would need lead abatement. Also presumed lead paint on a wall.

Respondent's Managing Agent appeared in court and stated that Apartment 1B is vacant. The owner plans to make all the repairs needed and comply with the request to abate the lead-based paint hazard in Apartment 1B. The Managing Agent appeared as a pro se litigant.

Respondent then filed a motion to dismiss this proceeding because Apartment 1B is vacant. The Affirmation in Support argues that there are no occupants or minor children under the age of six and no risk of exposure from the alleged lead-based paint condition. Respondent attaches the DHCR Annual Apartment Registration for 2025 reporting Apartment 1B is vacant.

Petitioner informed the Managing Agent that after the lead-based abatement is completed, proof of such work by a certified entity must be supplied to HPD. After the submission HPD would follow up with a "dust-swipe test" to confirm proper completion of the abatement.

Discussion and Legal Conclusion

While there seems to be no dispute as to the occupancy status of Apartment 1B, and that [*2]there is no apparent risk of harm to any occupant, adult or minor, Respondent credibly represents that the needed work will be done.

Petitioner's argument that the statutory framework entities it to the relief it seeks regardless of the vacant status of the subject premises, falls short of explaining why the subject premises were not identified in the petition and the justification for imposing additional cost for a vacant unit when the owner plans to do repairs. Neither side provided case law as to the nuances of how and when an access order is proper when no one is in possession, the risk of harm is not an imminent concern, and the owner asserts that the work will be done. There needs to be a practical relationship between the enforcement actions sought here and the facts and circumstances of the case. Here, the access order would call for the undertaking of the proposed work which requires a bidding process, a timely and potentially more costly outcome, when the owner states that it is prepared to perform the work in the vacant unit and presumably render the premises rentable. Petitioner's reference to Department of Housing Preservation & Dev. v. Metropolitan Ave. Corp., 148 Misc 2d 956 [Civ Ct, Kings Co 1990] is not dispositive. In DHPD v. Metropolitan Ave Corp, (supra) the question was whether the owner is obligated to correct housing code violations found in vacant apartments. The court found that an owner must correct housing code violations in vacant units. Here, Respondent has not alleged that the violations do not have to be corrected because the unit is vacant. Respondent is indeed required to correct the violations, and it may use its own contractor to complete the task.

The court treats Respondent's pro se motion as a pre-answer motion to dismiss.

Accordingly, Respondent's motion to dismiss is granted and this proceeding is dismissed without prejudice. Respondent must provide HPD proof showing that the housing code violation for the subject premises has been corrected and proof of compliance is to be provided within 90 days of the entry of this Order. Upon Respondent's failure to provide proof of correction, HPD may file a proper petition for all appropriate relief.

This Decision/Order will be filed to NYSCEF and mailed to Respondent.

This is the Decision/Order of the court.

Date: March 8, 2026

Hon. Enedina Pilar Sanchez

Housing Court Judge