Acosta v. 202 S. 2nd St. LLC.

Recitation, as required by CPLR 2219(A), of the papers considered in the review of this Notice of Motion:PAPERS  NUMBEREDNOTICE OF MOTION AND AFFIRMATION ANNEXED         1ORDER TO SHOW CAUSE AND AFFIRMATION ANNEXED ANSWER AFFIRMATION      2REPLYING AFFIRMATION   3EXHIBITS STIPULATIONS OTHER Petition and Affidavits  4DECISION/ORDER Upon the foregoing cited papers, the Decision/Order in this Motion to dismiss the harassment allegations pursuant to CPLR §3013 and 3211(a)(7) is as follows:The Petitioners commenced this HP proceeding seeking an Order to Correct the violations of record, a finding of harassment, and enjoining the landlords from engaging in illegal patterns of behavior. The Respondents filed an Answer and the parties entered into a consent Order to Correct on September 18, 2018; the matter was set down for trial on the allegations of harassment. On the eve of trial, the Respondents-Landlord made this motion to dismiss that part of the proceeding seeking a finding of harassment.The Respondents argue that “the harassment claim raised in Paragraphs 9, 10, and 11 of the Petition do not contain any factual allegations whatsoever; rather they merely recite the statutory definition of harassment. The Landlord denies any claim of tenant harassment, but it is unable to defend itself against these serious allegations because there are no specific factual claims of wrongdoing, rather mere legal conclusions.”¹ Lastly, the Respondent argues that the pleadings should offer a time period for the alleged harassment as the recent amendments to the harassment statute were phased in with various effective dates, therefore, the time element is important to allow them to prepare a defense.The Petitioners oppose the Motion arguing that the timing of the motion was done to delay the trial and that the pleadings are sufficient. In opposition, the Affirmation In Opposition looks to CPLR §3026 and §3013:“Pleadings shall be liberally construed. Defects shall be ignored if a substantial right of a party is not prejudiced.”²“Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.”³The Court disagrees with the Petitioners’ argument. While the Court does not condone the timing of the Respondent’s motion, the Petitioner does not cite to statutory authority that precludes it. The Court recognizes that pleadings must be liberally construed and must be afforded every favorable inference, however, that does not negate the requirement that there be facts, specific to these Petitioners and the conduct of the Respondents, “to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.”⁴ Paragraphs 9, 10, 11 and 12 of the Verified Petition and Affidavits are a simplified regurgitation of the statute. There is nothing fact specific plead. There are six petitioners in this proceeding and these affidavits do not distinguish any claims or events specific to any particular petitioner. It is also troublesome that these are proffered as affidavits in support and yet these allegations of harassment are plead as being “upon information and belief.”⁵ The Court recognizes that it is their belief that the facts fall within the statute, however, as affidavits being submitted by the Petitioners themselves, the alleged facts are within their personal knowledge. There are no facts submitted based upon their personal knowledge as there is nothing detailed regarding the actual conduct that these six petitioners allegedly experienced.The New York Court of Appeals affirmed the Appellate Division’s determination⁶ that:“When assessing a pre-answer motion to dismiss for failure to state a cause of action, we accept the allegations in the complaint as true and accord the plaintiff every favorable inference (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002]; Maki v. Travelers Cos., Inc., 145 A.D.3d 1228, 1230, 44 N.Y.S.3d 220 [2016], appeal dismissed 29 N.Y.3d 943, 51 N.Y.S.3d 490, 73 N.E.3d 847 [2017]; T. Lemme Mech., Inc. v. Schalmont Cent. School Dist., 52 A.D.3d 1006, 1008, 860 N.Y.S.2d 241 [2008] ). Such favorable treatment, however, ‘is not limitless’ (Tenney v. Hodgson Russ, LLP, 97 A.D.3d 1089, 1090, 949 N.Y.S.2d 535 [2012] ). Notwithstanding the broad pleading standard, bare legal conclusions with no factual specificity do not suffice to withstand a motion to dismiss (see Godfrey v. Spano, 13 N.Y.3d 358, 373, 892 N.Y.S.2d 272, 920 N.E.2d 328 [2009]; New York State Workers’ Compensation Bd. v. Program Risk Mgt., Inc., 150 A.D.3d 1589, 1592, 55 N.Y.S.3d 790 [2017]; Rodriguez v. Jacoby & Meyers, LLP, 126 A.D.3d 1183, 1185, 3 N.Y.S.3d 793 [2015], lv. denied 25 N.Y.3d 912, 2015 WL 3952245 [2015] ). ‘Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery’ (Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 142, 53 N.Y.S.3d 598, 75 N.E.3d 1159 [2017] [citations omitted] ).”⁷The opposition cites Kain v. Larkin, 141 N.Y. 144, however, the circumstances are distinguishable as that court stated ‘”[i]f facts claimed to be essential can be proved as evidence of a fact alleged, then the complaint must be sufficient. (Cole v. Jessup, 10 N. Y. 104.) A fact which need not be proven, in every case of fraudulent conveyances, is not necessary to the sufficiency of the complaint.” That is not the case before the Court; there are facts to be proven. The Court further disagrees with the argument “that harassment, by definition, is a rebuttable presumption.”⁸ The New York Administrative Code §27-2004(48) provides “the term ‘harassment’ shall mean any act or omission by or on behalf of an owner that (i) causes or is intended to cause any person lawfully entitled to occupancy of a dwelling unit to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy, and (ii) includes one or more of the following acts or omissions, provided that there shall be a rebuttable presumption that such acts or omissions were intended to cause such person to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy,….” The statute does not state that there is a rebuttal presumption that the acts or omissions falling within the definition of harassment have occurred, rather, that those acts or omissions were intended to cause such person to vacate the apartment or to surrender or waive their rights.The Affirmation In Opposition⁹ further argues that harassment does not have to be plead with specificity, however, the three cases that the opponent cites are not cases that were ruling on the issue of harassment. The ruling in Guggenheimer v. Ginsburgh, 43 N.Y.2d 268, found that “[e]ach of the complaint’s causes of action embraces a forbidden type of deception set forth with sufficient factual specificity and fullness, so as to identify the transaction and indicate the theory of redress to enable the court to control the matter and the adversary to prepare,….” In Leon v. Martinez, 84 N.Y.2d 83, the court delved into the sufficiency of the pleadings and addressed the specific facts that were plead. In Foley v. D’Agostino, 21 A.D.2d 60, the court ruled that “it is clear that, under the Civil Practice Law and Rules, the statements in pleadings are still required to be factual, that is, the essential facts required to give ‘notice’ must be stated. (See Wachtel, New York Practice, p. 102.) Nevertheless, a party may supplement or round out his pleading by conclusory allegations or by ‘stating legal theories explicitly’ if the facts upon which the pleader relies are also stated.” (Emphasis added.) The pleadings before the Court are conclusory allegations but the facts upon which the pleader relies are not also stated.The harassment statute, and its recent amendments, are a powerful and necessary shield to protect tenants, however, that does not negate the procedural due process requirements that the CPLR intended. Accordingly, pursuant to the foregoing, the Motion is granted and that part of the Petition seeking a finding of harassment is dismissed, without prejudice. The Petitioners argue that they would suffer severe prejudice, however, the parties have signed a consent Order to Correct the violations of record and this dismissal of the harassment pleading is without prejudice.Dated: January 9, 2019