Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion.Papers NumberedNotice of Motion and Supplemental Affirmation and Affidavit Annexed 1, 2, 3HPD’s Affirmation In Opposition 4Petitioner’s Affirmation In Opposition 5Reply Affirmation 6DECISION/ORDER Upon the foregoing cited papers, the Decision and Order on this Motion are as follows:159 Stanton Street Tenants Association, et al., the petitioner in this proceeding (“Petitioner”), commenced this proceeding pursuant to New York City Civil Court Act §110 (“the HP proceeding”) against a number of respondents, including but not limited to Steven Croman, a respondent in this proceeding (“Respondent”), seeking an order directing respondents to correct violations of the New York City Housing Maintenance Code (“the Code”) in the subject building (“the Building”). Respondent now moves to dismiss against him pursuant to CPLR §3211(a)(1).No party disputes that a consent decree so-ordered on July 30, 2018 in the matter of People v. Croman. et al., Index # 450545/2016 (S. Ct. N.Y. Co.)(“the consent decree”) governs the management of the Building. The consent decree provides, inter alia, that a property management company shall handle all operations of managing the subject premises including performing ongoing maintenance duties and correcting violations that HPD issues; that the managing company “shall be primarily responsible for managing” the Buildings; that nothing shall be construed as relieving Respondent of his obligation to comply with all applicable laws; that Respondent may sell the Building if he wishes to; and that Respondent shall be allowed to adequately defend himself against any claims of any nature brought by a tenant in the Building.In opposition to the motion, Petitioner shows the multiple dwelling registration of the Building pursuant to MDL §325, which identifies Respondent as a “head officer.”Respondent argues that the consent decree renders him to not be a proper respondent in an HP proceeding. However, the Code defines the term “owner” expansively to include, inter alia, a “lesser estate therein,” including 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). As the consent decree provides that Respondent can sell the Building, Respondent is at least indirectly in control of the Building. The consent decree’s designation of the management company as being “primarily” responsible for maintenance of the Building compels the conclusion that Respondent can be secondarily responsible. The consent decree explicitly does not relieve Respondent of his responsibility for compliance with the law, indicating a degree of at least indirect control.A defense based on documentary evidence can succeed if the documents submitted resolve all of the factual issues as a matter of law. Gephardt v. Morgan Guar. Trust Co., 191 A.D.2d 229 (1st Dept.), leave to appeal denied, 82 N.Y.2d 656 (1993), or if the documentary evidence submitted “utterly refutes [Petitioner's] factual allegations.” Mill Fin., LLC v. Gillett, 122 A.D.3d 98, 103 (1st Dept. 2014). Given the manifold qualifications in the consent decree regarding Respondent’s status vis a vis the Building, noted above, and given the expansive definition of “owner” in the Code, Respondent has not met his burden of resolving all fact issues as a matter of law.Accordingly, the Court denies Respondent’s motion to dismiss. The Court restores this matter to the Court’s calendar on July 19, 2019 at 9:30 a.m. in part B, Room 583 of the Courthouse locate at 111 Centre Street, New York, New York. If Respondent does not serve an answer on or before July 5, 2019, the Court will deem the answer to be a general denial.This constitutes the decision and order of this Court.Dated: June 19, 2019New York, New York
