Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion.Papers NumberedOrder To Show Cause and Supplemental Affidavit and Affirmation Annexed 1, 2, 3Oral Opposition on the Record Given By Unrepresented Party 4 Upon the foregoing cited papers, the Decision and Order on this Motion are as follows:Steven Robinson, the petitioner in this proceeding (“Petitioner”), commenced this proceeding against Milton Taube and 110 Realty Equities LLC, the respondents in this proceeding (“Respondents”), seeking relief on the theory that Respondents have harassed him in violation of N.Y.C. Admin. Code §27-2005(d). Respondents now move to dismiss pursuant to CPLR §3211(a)(7), i.e., for failure to state a cause of action, and pursuant to CPLR §3211(a)(1), i.e., for a defense based upon documentary evidence.On a motion to dismiss for a failure to state a cause of action, the Court must deem the allegations of the petition as true and construe them in Petitioner’s favor, affording Petitioner the benefit of “every reasonable inference,” Cortlandt St. Recovery Corp. v. Bonderman, 31 NY3d 30, 38 (2018), and determine whether the facts as alleged fit any cognizable legal theory. Lezama v. Cedano, 119 AD3d 479, 480 (1st Dept. 2014).Aside from the pre-printed boilerplate language on the petition, the substance of the petition, drafted by Petitioner himself, reads as follows:We are both senior citizens[.] He states if your [sic.] not happy[,] move!! The [l]andlord[']s [l]ease requires tenants moving in to within 60 days cover at least 80 percent of all rooms and [h]alls with carpet and padding. Also it states that I am entitled to a quiet [apartment]. When notified [on] numerous occasions of the violations by my neighbor [sic.], [h]e ignores it. This is because I am a state rent regulated tenant [sic.] and almost all other [sic.] are open market rent. Please note I have lived in this building 47 years and my brother and I are 75 years old and I will soon be 69[.] He rents [apartments] similar to mine open market 4x [sic.] my rent.On oral argument of this motion, Petitioner confirmed that his grievance is that his neighbor (“Petitioner’s neighbor”) is loud and disturbs him. Petitioner also stated that Petitioner’s neighbor does not carpet his apartment as appears to be required by standard leases that apply to residents of the building in which the subject premises is located. Petitioner further confirmed the averment contained in an affidavit in support of Respondent’s motion that the subject premises is on the same floor as Petitioner’s neighbor’s apartment.The prohibition against harassment applies to an “owner.” N.Y.C. Admin. Code §27-2005(d). An “owner” means a “lessee, agent, or any other person, firm or corporation, directly or indirectly in control of a dwelling….” N.Y.C. Admin. Code §27-2004(a)(45). The purpose of this language is to impose liability on any entity or person with some say in the operation of a building, Schlam Stone & Dolan, LLP v. Howard R. Poch, 40 Misc 3d 1213(A)(S. Ct. NY Co. 2013), such as an officer of a corporate landlord, Dep’t of Hous. Pres. & Dev. of the City of NY v. Chana Realty Corp., 1993 NY Misc. LEXIS 659, at *1-2 (App. Term 1st Dept. 1993), or a registered managing agent. Dep’t of Hous. Pres. & Dev. v. 2515 LLC, 6 Misc 3d 1039(A)(Civ. Ct. NY Co. 2005), citing DHPD v. Livingston, 169 Misc 2d 660, 661 (App. Term 2nd Dept. 1996). As the purpose of N.Y.C. Admin. Code §27-2004(a)(45) is to define an owner as a person or entity in control of a building, the Court construes the use of the word “lessee” in the definition of an owner to refer to a lessee in control of property, i.e., a net lessee. Ellouzi v. Sherman, 2019 NY Slip Op. 50555(U)(Civ. Ct. NY Co.), Metropolitan Realty Group v. McSwain, 27 Misc 3d 1216(A)(Civ. Ct. NY Co. 2010); Redhead v. Henry, 160 Misc 2d 546, 547 (Civ. Ct. Kings Co. 1994). See Also Jackson v. Dunbar, LLC, 2012 NY Slip Op. 30493(U) (S. Ct. NY Co.)(a social services organization that rents apartments in which to house its clients can be deemed an owner for purposes of the Housing Maintenance Code). Under this definition, another tenant is not an “owner” and the prohibition against harassment memorialized in N.Y.C. Admin. Code §27-2005(d) does not apply to Petitioner’s neighbor.The focus of Respondents’ motion to dismiss, then, is on the allegations of the petition with regard to Respondents themselves, not on Petitioner’s neighbor. N.Y.C. Admin. Code §27-2004(a)(48) defines “harassment” as, inter alia, any act or omission by or on behalf of an owner to cause any tenant to surrender rights, including a use of force, threats, providing false or misleading information, interruptions of essential services, repeated commencement of baseless court proceedings, removal of a tenant’s possessions, removal of an entrance door, making buyout offers, or other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, reposes, peace, or quiet of any tenant. Assuming the truth of the allegation of the petition that Respondents told Petitioner that he could move if Petitioner’s neighbor disturbed him, such a statement does not rise to the level of harassment as defined by the statute, i.e., a “significant” act that “substantially” interferes with Petitioner’s comfort, repose, peace, or quiet.What remains of Petitioner’s cause of action, and what really seems to animate Petitioner, is Respondents’ failure to take action against Petitioner’s neighbor and/or enforce a putative house rule regarding the installation of carpeting. In the first instance, the installation of carpeting would intuitively protect a downstairs neighbor from noise, not a next-door neighbor. Even setting aside that proposition, enforcement of a rule, as such, only has meaning if Respondents would have a remedy, which could only be a nuisance holdover proceeding against Petitioner’s neighbor.While an owner’s “omission” can constitute harassment, N.Y.C. Admin. Code §27-2004(a)(48), the proposition that a landlord’s forbearance in commencing an eviction proceeding can constitute “harassment” is problematic. Keeping tenants in their homes is, in fact, a goal of N.Y.C. Admin. Code §27-2005(d). See Prometheus Realty Corp. v. City of NY, 80 AD3d 206, 213 (1st Dept. 2010)(finding the Legislature’s interest in preventing landlords from “forcing tenants out” to be rationally related to the remedies memorialized in N.Y.C. Admin. Code §27-2005(d)); Aguaiza v. Vantage Props., LLC, 69 AD3d 422, 423 (1st Dept. 2010)(the Legislature enacted a harassment statute to address, in part, “a perceived effort by landlords to empty rent-regulated apartments,” using such tactics as the commencement of baseless or frivolous eviction proceedings.) Exposing a landlord to liability for harassment for refraining from commencing an eviction proceeding would incentivize landlords, on the margin at least, to commence more eviction proceedings than otherwise, which the Court finds would frustrate an intent of the statute.1The statutory language defining harassment demonstrates that harassment entails some level of purpose on a landlord’s behalf. In particular, N.Y.C. Admin. Code §27-2004(a)(48) defines harassment as a landlord’s act or omission “to cause” a tenant to surrender rights. In instructive contrast, a cause of action for breach of the warranty of habitability lies against a landlord with no showing that a landlord acted in bad faith or contributed to an impaired condition. McBride v. 218 E. 70th St. Assocs., 102 Misc 2d 279, 283 (App. Term 1st Dept. 1979). In that context, a landlord bears liability even if an act of a third party caused the breach, Park West Management Corp. v. Mitchell, 47 NY2d 316, 327, cert. denied, 444 U.S. 992 (1979), Duane Fabs Properties Corp. v. Cronus Consulting LLC, N.Y.L.J. Sept. 11, 2002 at 18:5 (S. Ct. NY Co.), including acts of an owner of an adjacent property, Sutton Fifty-Six Co. v. Garrison, 93 AD2d 720, 721-722 (1st Dept. 1983), or — as is relevant to this case — another tenant who commits a nuisance. Brown v. Blennerhasset Corp., 113 AD3d 454, 455 (1st Dept. 2014), Nostrand Gardens Co-Op v. Howard, 221 AD2d 637 (2nd Dept. 1995). In distinction to a landlord’s liability for breaches of the warranty of habitability, the statute’s definition of harassment, as noted above, does not contemplate liability for a similarly passive landlord.Accordingly, the Court grants Respondents’ motion and dismisses this proceeding, with prejudice to a cause of action sounding in harassment on the facts alleged herein, but without prejudice to causes of action other than harassment Petitioner may have against an appropriate party in the appropriate forum, and without prejudice to any defenses that party may have.This constitutes the decision and order of this Court.Dated: May 6, 2019New York, New York
