RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION NOTICE OF MOTION & AFFIDAVIT OF SERVICE 1-2 AFFIRMATION/AFFIDAVIT IN SUPPORT & EXHIBITS ANNEXED 3-4 AFFIRMATION/AFFIDAVIT IN OPPOSITION TO MOTION 5 AFFIRMATION/AFFIDAVIT IN REPLY 6 DECISION AND ORDER ORDER TO SHOW CAUSE REARGUMENT INTRODUCTION Petitioner moves This Honorable Court by Order to Show Cause, Opposed, pursuant to CPLR 2221 (d) for an Order granting Petitioner Leave to Reargue This Court’s Decision and Order, dated February 13, 2020 granting Respondent’s underlying Pre-Answer Motion to Dismiss and for Sanctions (see One Wythe LLC v. Elevations Urban Landscape Design Inc, 2020 NY Misc LEXIS 708, *1, 2020 NY Slip Op 50220 [U], 2, 2020 WL 809549) and where Re-Argument granted, vacating dismissal and granting such other and further relief deemed just and proper. For the reasons set forth below, Re-Argument Granted, vacating of dismissal Denied, Costs and Sanctions pursuant to 22 NYCRR 130-1.1 (c) Denied, Sua Sponte Contempt Withdrawn, and Judgment for Attorney’s Fees to Respondent pursuant to NYC Administrative Code §22-902, 903 Granted. PROCEDURAL AND FACTUAL HISTORY Petitioner-Landlord by deed dated October 24, 2018 purchased subject property from predecessor in interest, Berry Wythe LLC, which entered into lease dated February 12, 2016 with Respondent-non-residential small business Tenant by its principal, Ms. Cara White, commencing from March 1, 2016 and ending February 28, 20211. Description in Premises section of lease, page 1 states: “2100 square foot building located within 9 Wythe Ave. a.k.a. 150 Banker Street, Brooklyn, N.Y. 11222 Block #2641 Lot 1.” Whereas, page 4, lease back, under section Premises leased states “11 Wythe Avenue, Brooklyn, NY 11211,” thereby, creating an internal conflict and inconsistency within the lease as to the leasehold premises. Ms. White testified that lease was drafted by the predecessor in interest’s son, a lawyer, and she was not represented by counsel upon signing of the lease.2 Lease Clause Eighteen, titled “Notices” states: “all notices and demands, legal or otherwise, incident to the [this] lease, or occupation of the demised premises, shall be in writing…via registered mail…or by leaving a copy thereof with a person of suitable age found on the premises, or to post a copy thereof upon the door of said premises.” Further, Ms. White testified that upon lease signing, she understood that property may be sold and did not “begrudge” the predecessor in interest with whom she had an amicable relationship, particularly since there were very specific notice requirements which would give her time to relocate in the event of said sale3 as provided in Sale Termination Clause4 Fifteen: “In the event of the sale by the Landlord of the demised premises, or the property of which said premises are a part, the Landlord or the purchaser may terminate this lease on the thirtieth day of April in any year upon giving the Tenant notice of such termination prior to the first day of January in the same year.” PREVIOUS SUMMARY HOLDOVER PROCEEDING [#1Notice] Of indispensable consideration in the deliberation of this instant matter for reargument is the previous summary holdover proceeding brought by Petitioner, Civil Court of the City of New York, County of Kings, Commercial Landlord-Tenant Part 52, Index No. 65416/19 (hereinafter, #1Notice). Petitioner served #1Notice to Terminate on Respondent, the 120-day Notice of Intention to Terminate Lease dated December 17, 2018, which described leasehold premises as “150 Banker Street, Entire Premises Brooklyn, NY 11222 a/k/a 9 Wythe Avenue, Entire Premises Brooklyn, NY 11249.” However, after Petitioner’s purchase Ms. White testified that Petitioner’s agent came to visit her at 11 Wythe Avenue, not 9 Wythe Avenue, and informed her as to its new online rental payment system set up delineating premises address as 11 Wythe, and not 9 Wythe Avenue.5 Affidavit of Service sworn to December 26, 2018 indicates service of Notice to Quit for 9 Wythe Avenue was effectuated by United States Postal Service certified mail (Lease Clause 18 requires notices to be sent by “registered mail”) on December 19, 2018. Ms. White testified however that this Notice to Quit for 9 Wythe and not 11 Wythe was not received until January 14, 2019, and by email.6 Upon receipt of email, Ms. White testified that she called landlord and response was, “…if we didn’t agree with them we could talk to lawyer. Nothing. Radio Silence.”7 Petitioner thereafter filed No. 65416/19 by Notice of Petition and Petition for Holdover describing leasehold premises as “9 Wythe Avenue a/k/a 150 Banker Street, Entire Premises Brooklyn, NY 11222,” with Affidavit of Service sworn to May 8, 2019, effectuated by affixing to door of described leasehold premises, to wit, 9 Wythe (and not 11 Wythe) and mailing to same on May 8, 2019. Even though papers were not served to Ms. White’s 11 Wythe leasehold premises, papers did bear the name of Ms. White’s small business. Therefore, Ms. White engaged services of counsel. All the while, Ms. White continued to pay rent online to Petitioner, and Petitioner continued to accept Ms. White’s rental payment through Petitioner’s online payment system for 11 Wythe and not for 9 Wythe.8 Ms. White’s engaged counsel in lieu of filing an Answer, moved by Notice of Pre-Answer Motion to Dismiss pursuant to CPLR 3211 arguing: 9 Wythe Avenue as the leasehold premises description is incorrect as Respondent actually occupies 11 Wythe Avenue as per lease, therefore, all alleged notices and affidavit of services by Petitioner upon Respondent are invalid; Petitioner accepted rent after the April 30, 2019 alleged termination of lease date, which evidenced continuing landlord-tenant relationship for 11 Wythe Avenue and vitiates alleged termination of lease, or at the very least established a month to month tenancy pursuant to RPP 232-c; further, arguendo, even if Petitioner had provided accurate description of leasehold premises, to wit, 11 Wythe Avenue, to recover possession, Petitioner as successor in interest of lease must strictly comply with Sale Termination Lease Clause 15. Petitioner failed to provide written opposition to #1Notice motion to dismiss. Petitioner did however appear for oral argument to which the court Dismissed Summary Holdover Proceeding issuing the following Decision/Order dated, July 15, 2019: “The instant proceeding is dismissed. Both parties agree that the address in the petition is incorrect, notwithstanding dismissal based on the above, it has been brought to the court’s attention that there exist[s] a provision in the lease that governs the commencement of an action/proceeding regarding the parties. As the court cannot make a determination on future event, the court is hereby putting the parties on notice that if another case is commenced, Article 15 of the lease instructs, directs, governs etc. how the parties must proceed. If not done in accordance with Article 15, the court may make a determination of frivolity.”9 After decision dismissing proceeding, Ms. White testified, “I felt okay. Great. We gone to court done what we have need to do. We have been granted this. We would have another…we would be potentially notified again for future year, but for now we were safe. That was great.”10 INSTANT SUMMARY HOLDOVER PROCEEDING [#2Notice] About a week after court’s dismissal, Ms. White received #2Notice to terminate lease on July 23, 2019 effective August 31, 2019 indicating that she had no lease and was rather a month to month tenant,11 which shocked Ms. White since the court’s dismissal specifically stated that any further evictions must comply with Sale Termination Lease Clause 15, which meant that she was fine until April 30, 2020. Ms. White testified: “We got another notice. We don’t have a lease. I don’t understand that.”12 Notice of Petition and Petition dated September 3, 2019 was served. Notwithstanding same, Ms. White stated: “I have continued to pay rent for the premises for July, August, September and October 2019, although my September rent was refused and refunded.”13 However, Ms. White “paid again for September, 2019 rent.”14 Petitioner kept all rent paid by Ms. White specifically for 11 Wythe and not 9 Wythe, yet still continued summary holdover proceeding. Although two original attached Affidavit of Services both sworn to on July 25, 2019 indicate 30 Day Notice to Quit was served upon Respondent personally by delivering to its principal on July 23, 2019 at “11 Wythe Avenue, Garage, Brooklyn, NY 11249″, the 30 Day Notice to Quit was not attached in the court’s filed Notice of Petition and Petition. The leasehold premises sought to be recovered in the Notice of Petition and Petition is described as “11 Wythe Avenue, Garage (Located at Corner of Wythe Ave. & N. 15th St., entrance at 65 N. 15th Street) Brooklyn, NY 11249.” Service was effectuated by delivering to a “John Doe” as agent for Respondent on October 7, 2019 and mailing on October 8, 2019 to Respondent at mailing residence, “11 WYTHE AVE GARAGE LOCATED AT CORNER OF WYTHE BKLYN NY 11249,” as indicated in Affidavit of Service sworn to October 8, 2019 and stamped by the court on October 9, 2019. In lieu of Answer, Respondent once again moved by Notice of Pre-Answer Motion to Dismiss pursuant to CPLR 3211 (a) (7) and for the imposition of sanctions on Petitioner and/or Petitioner’s attorneys pursuant to NYCRR 130-1.1, which was stamped by court on December 13, 2019. Respondent argued: this instant matter is the second attempt to evict Respondent and is again a failed attempt at a summary holdover proceeding as the breach of Sale Termination Lease Clause 15 is in direct violation of Decision and Order of Court by failing to serve 120-day Notice of Termination before January 1, 2020 for the April 30, 2020 termination. Rather, Petitioner of its own volition brought this second instant summary holdover proceeding as a month to month holdover tenancy rather than pursuant to the lease still in effect, therefore disobeying Court’s July 15, 2019 Decision and Order. Petitioner argues that there is no lease in effect, because of the internal conflicting description of premises contained within the lease. PROSPECTIVE SUMMARY HOLDOVER PROCEEDING [#3Notice] During the pendency of this underlying #2Notice to dismiss where landlord alleges no lease, Ms. White was served a Third Notice of Termination (#3Notice). At oral argument for #2Notice motion to dismiss held January 17, 2020, Respondent announced same in argument with Petitioner’s acquiescence that it indeed had served a third notice to evict. Dated December 27, 2019, #3Notice “purported to terminate Respondent’s rights under the Lease which they now argue does not actually exist.”15 Petitioner at re-argument states that #3Notice should not have been considered by court in this instant #2Notice motion to dismiss. This court reiterated that #3Notice was not considered as to its legal import. That matter is premature and not before This court. Rather, it was considered to determine the issue of a material fact. This Court deemed #3Notice an admission against Petitioner’s interest, notwithstanding its argument that #3Notice is merely a contingent notice of termination, which it is opined to be of questionable legal viability, and not compelling to contradict its admission against interest that lease is valid for 11 Wythe. Therefore, This court reiterates that it deems that Petitioner’s #3Notice bolsters the material issue of fact that indeed the leasehold premises is 11 Wythe and not 9 Wythe as well as an evidentiary matter of fact to be considered in determining a violation of NYC Admin Code 22-902 (a), Non-Resident Harassment Law. COURT DECISION AND ORDER Respondent’s #2Notice Pre-Answer Motion to Dismiss was GRANTED; Respondent’s Motion for Costs and Sanctions; and Court’s Sua Sponte Motion for Contempt were to be decided after Hearing on February 28, 2020 (One Wythe LLC v. Elevations Urban Landscape Design Inc, 2020 NY Misc LEXIS 708, *1, 2020 NY Slip Op 50220 [U], 2, 2020 WL 809549). Thereafter, Petitioner moved by Order to Show Cause for reargument of court’s decision and order. This Court granted Petitioner’s Order to Show Cause for leave to Reargue and adjourned Hearing for Costs, Sanctions and Sua Sponte Contempt to be held concurrently on March 4, 2020. REARGUMENT — HEARING NYC ADMINISTRATIVE CODE On March 4, 2020, Petitioner failed to provide witness whereas Respondent’s principal, Ms. Cara White, testified as witness. This Court: Granted Petitioner’s Reargument; Reaffirmed its Decision to dismiss therefore Denied vacating order of dismissal; Denied Respondent’s Motion for Costs and Sanctions; Withdrew its Sua Sponte Contempt Hearing; and Reserved decision for Non-Residential Harassment pursuant to NYC Administrative Code 22-902 (hereinafter, Harassment Law). DISCUSSION LEAVE TO REARGUE: CPLR 2221(d) Petitioner seeks to persuade court that “matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion” is reversible error (CPLR 2221 [d]; Matter of Miness v. Deegan, 41 Misc 3d 1206 [A], 977 NYS 2d 668, 2013 NY Misc LEXIS 4359, 2013 NY Slip Op 51601 [U], 2013 WL 5480399; Bolos v. Staten Island Hosp., 217 AD2d 643, 629 NYS 2d 809 [2d Dept 1995]; Schneider v. Solowey, 141 AD2d 813, 529 NYS 2d 1017 [2d Dept 1988]). It has been held that CPLR 2221 (a) allows said motions to reargue “be made, on notice, to the judge who signed the order” (Alta Apartments LLC v. Wainwright, 4 Misc 3d 1009 [A], 791 NYS2d 867, 2004 NY Slip Op 50797 [U], 2004 WL 1717573 [Civ Ct, NY County 2004]). A Motion to reargue is not an aggrieved party’s second bite of the apple to present new or divergent arguments from its original failed arguments (Giovanniello v. Carolina Wholesale Off. Mach. Co., Inc., 29 AD3d 737, 815 NYS 2d 248 [2d Dept 2006]; Gellert & Rodner v. Gem Community Mgt., Inc., 20 AD3d 388, 797 NYS 2d 316 [2d Dept 2005]; Pryor v. Commonwealth Land Tit. Ins. Co., 17 AD3d 434, 793 NYS 2d 452 [2d Dept 2005]; Amato v. Lord & Taylor, Inc., 10 AD3d 374, 781 NYS 2d 125 [2d Dept 2004]; Frisenda v. X Large Enters., 280 AD2d 514, 720 NYS 2d 187 [2d Dept 2001]; Foley v. Roche, 68 AD2d 558, 418 NYS 2d 588 [1st Dept 1979]), nor does it allow aggrieved party to reargue the same issues already previously considered and decided by the court (William P. Pahl Equip. Corp. v. Kassis, 182 AD2d 22, 588 NYS 2d 8 [App Div 1992]). Further, it is well settled law that a CPLR 3211 dismissal “may be granted where documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Goldman v. Metro. Life Ins. Co., 5 NY3d 561, 571, 841 NE2d 742, 745-746, 807 NYS 2d 583, 586-587, 2005 NY LEXIS 3222, *8-9; Held v. Kaufman, 91 NY2d 425, 430-431, 694 NE2d 430, 671 NYS 2d 429 [1998]; Leon v. Martinez, 84 NY2d 83, 88). More so specifically, where, as here, the motion to dismiss is brought pursuant to CPLR 3211 (a) (7), the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference and determine whether the facts alleged fit within any cognizable legal theory” (Goldman v. Metro. Life Ins. Co., 5 NY3d 561, at 571; Arnav Indus., Inc. Retirement Trust v. Brown, Raysman, Millstein, Felder & Steiner, 96 N.Y.2d 300, 303, 751 NE2d 936, 727 NYS 2d 688 [2001]; Leon v. Martinez, 84 NY2d 83, 87-88, 638 NE2d 511, 614 NYS 2d 972 [1994]). Except, where, as here, movant as Respondent establishes that a material fact proffered by plaintiff/petitioner “is not a fact at all” and that “no significant dispute exists regarding it” (Pechko v. Gendelman, 20 AD3d 404, 407, 799 NYS 2d 80, 82, 2005 NY App Div LEXIS 7559, *4-5; Yew Prospect v. Szulman, 305 AD2d 588, 589, 759 NYS 2d 357 [2003], quoting Guggenheimer v. Ginzburg, 43 NY2d 268, 275, 372 NE2d 17, 401 NYS2d 182 [1977]; see Sta-Brite Servs. v. Sutton, 17 AD3d 570, 794 NYS 2d 70 [2005]). For this very same reason, This Court reiterates that it rejects Petitioner’s re-argument that there is no lease with Respondent for 11 Wythe Avenue as said argument is collaterally estopped by court’s previous decision. The fact that there is no lease for 11 Wythe is not a fact at all. Therefore, after re-argument, This Court rules to re-affirm and uphold its original decision to dismiss. NYS 22 NYCRR 130 -1.1 FRIVOLOUS VERSUS NYC ADMIN. CODE 22-902 FRIVOLOUS NYS 22 NYCRR 130 -1.1 In New York State, sanctions are statutorily authorized “to prevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation tactics,” by a party in civil litigation which authorizes courts to impose financial sanctions for “frivolous conduct” pursuant to 22 NYCRR 130-1.1 (Kernisan v. Taylor, 171 AD2d 869, 870, 567 NYS 2d 794, 795-796, 1991 NY App Div LEXIS 3834, *3; cf., Minister, Elders & Deacons of Refm. Prot. Dutch Church of City of N.Y. v. 198 Broadway, 76 NY2d 411; see also Steiner v. Bonhamer, 146 Misc 2d 10 [Sup Ct, Allegany County 1989]). 22 NYCRR 130 -1.1 (a) states: “The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct” Whereas, pursuant to 22 NYCRR 130 -1.1 (c) conduct is frivolous if: “1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false.” Each Petition filed for summary holdover proceeding, #1Notice, #2Notice, and #3Notice proceedings are all verified and signed by Petitioner’s attorney. It is the attorney’s duty to ensure that legal papers filed and affirmed to in court have been vetted for veracity of facts proffered and comply with current state of laws argued. Therefore, whether attorney exercised the standards of a reasonable attorney forms the basis of the court’s inquiry in determination of frivolous conduct that authorizes the court’s imposition of costs and sanctions (DeRosa v. Chase Manhattan Mortg. Corp., 15 AD3d 249, 793 NYS 2d 1 [App Div 2005]). Pursuant to 22 NYCRR 130-1.1 (d), “an award of costs or the imposition of sanctions may be made only after a reasonable opportunity to be heard” (Matter of Fernandez v. Nigro, 178 AD3d 703, 705, 113 NYS 3d 753 [App Div 2019]). Upon re-argument, This Court reverses its previous Decision and Order, therefore, denying costs and sanctions as well as withdrawing sua sponte contempt. It finds that Respondent’s legal argument did not rise to frivolous under this New York State statute. This Court has emphatically maintained that there is a high bar that constrains courts to make such findings and do so ever so sparingly when as a matter of law there is no legal reasoning whatsoever for the proffered argument brought before the court. Motion for sanctions carries the gravitas of serious dereliction of legal strictures, particularly which may be so egregious that may lead to overzealous advocacy by counsel bordering or veering into unethical attorney conduct and representation. In the instant matter however, upon re-argument, Petitioner counsel presents a strained, tenuous, stretched hyper-technical legal argument so much bordering on a logical game. But, a legal argument, nevertheless. This court is so constrained to find for sanctions where there is a legal argument made in this instance, no matter how strained, tenuous, stretched, hyper-technical that legal argument may be, regardless of the effect of this strained, tenuous, stretched, hyper-technical legal argument’s effect on the real-world practical business tenant, more so particularly, small business tenant Respondent such as Ms. Cara White with her 10 employees. NYC ADMIN. CODE 22-902 To redress this real-world practical dilemma for the small business non-residential commercial tenant the City of New York Legislature responded. U.S. public policy acknowledges small businesses16 as the lifeblood of its functioning society which builds communities both local as well as national and therefore must be protected, fostered and any undue interference with such may be regulated by the legislature17, notwithstanding the private right to contract in our capitalistic society. Therefore, as a matter of public policy the New York City legislature exercised its authority to enact the relatively new Non-Residential Tenant Harassment Law based upon its foundational legislative history18. Section 1 was amended to add a new Chapter 9 to Title 22 of the Administrative Code of the City of New York, effective June 28, 2016, titled, The Harassment Law, to redress the real-world practical effect on small business commercial tenants of these sort of strained tenuous stretched hyper-technical legal arguments that may pass muster pursuant to NYS Sanctions Statute, NYS 22 NYCRR 130 -1.1. More so explicitly, to redress the effects of these sort of strained tenuous stretched hyper-technical legal arguments brought repeatedly against the small business tenant, such as Ms. Cara White and her 10 employees. New York City Non-Residential Tenant Harassment Law was first introduced July 23, 2015 with the title “A Local Law to amend the administrative code of the City of New York, in relation to curtailing harassment of small businesses and other non-residential tenants” by Small Business Committee Chair Councilperson Robert E. Cornegy, Jr. (representative of Bedford Stuyvesant, Brooklyn — an area of explosive real estate speculation with attendant explosive rent increases, both residential and commercial tenancies, significant gentrification as well as suffering erosive loss of displaced brick and mortar multigenerational mom and pop small businesses that are exponentially ceding to high-end high-rises). The proposed legislation, Chapter 9 was to include: 22-901, Definitions; 22-902, Commercial Tenant Harassment; 22-903, Private Right of Action; and 22-904, Affirmative Defenses and was approved June 21, 2016 by unanimous Council present (save for two absent Council Members) and signed into law by Mayor Bill DeBlasio on June 28, 2016. In part, the text of Admin Code 22-902 (a) as signed into law: “A landlord shall not engage in commercial tenant harassment. Except as provided in subdivision b of this section, commercial tenant harassment is any act or omission by or on behalf of a landlord that (i) is intended to cause a commercial tenant to vacate covered property, or to surrender or waive any rights under a lease or other rental agreement or under applicable law in relation to such covered property, and (ii) includes one or more of the following…”19 Schulman was in part brought under the initial 2016 Harassment Law mandating intent as an element (Schulman, Blitz & Williamson, LLP v. VBG 990 AOA LLC, 2018 NY Misc LEXIS 5612, 2018 NY Slip Op 32993 [U] [Sup Ct, NY County 2018]). Small business law firm, plaintiff, sought equitable relief in form of an injunction against defendant, new landlord as successor in interest of lease, which had made attempts to terminate leases of all tenants in its newly purchased building. Small business law firm was the sole remaining tenant in building and argued that landlord subjected it to commercial tenant harassment pursuant to Harassment Law. It argued that under the landlord’s guise of alleged required legitimate renovations pursuant to Local Law 11, work approved by City of New York Buildings Department, was a pretext. Those pretextual renovations caused business interruptions preventing small business law firm from conducting its business to meet with clients. Court denied injunctive relief to small business tenant finding no harassment based upon the mandated element of intent, which is indeed a high bar (see id.). “Defendant also contends that plaintiff fails to show an intent to cause it to vacate the building or waive its rights under the lease and that not only does the lease allow for the work, but the Department of Buildings (DOB) approved the renovation plans” (id. at 3-4). This element of intent under the Harassment Law actually compounded the deleterious effect of landlord’s offending conduct under pretext of legitimate conduct against the small business tenant. Schulman clearly exposed an unintended gaping loophole in the 2016 version of Harassment Law, to wit, the element of intent. The mandated intent was found too high a bar that actually frustrated the legislative intent of the Harassment Law in the first instance (see id.). Once again in its exercise of its public policy authority, New York City Legislature sought to redress this gaping loophole in the Harassment Law, to wit, the deleterious effect on small business tenant of such pretextual conduct under guise of legitimate purposes by offending landlord. Legislature found that “intent” requirement of the 2016 Law lent itself readily to pretextual reasoning for landlord’s offending conduct that causes harassment upon the small business tenant. Therefore, law as codified was not fulfilling its legislative purpose because of too readily crafted pretextual defenses that were being successfully used by landlords to frustrate its legislative purpose. Consequently, to close the gaping loophole exposed by Schulman, the Legislature proposed amendment to Harassment Law Chapter 9 on February 23, 2019 sponsored by Bronx Councilperson Vanessa L. Gibson of the Housing and Buildings Committee under the title: “Requiring a certification of no harassment prior to the approval of construction documents or the issuance of permits for demolition or renovation of certain commercial buildings” with the following Introduction Summary: “This bill would redefine commercial tenant harassment as an act or omission by a landlord that would reasonably cause a commercial tenant to vacate, or surrender or waive their rights under a rental agreement. The bill would also broaden the acts and omissions that constitute commercial tenant harassment. The bill would raise civil penalties for landlords that commit commercial tenant harassment to $10,000-50,000 for each property in which the tenant was subject to harassment. Finally, when a landlord has been found to have engaged in commercial tenant harassment, the bill would clarify that courts can order the Department of Buildings not to approve, issue or renew documents for certain types of construction work the landlord wishes to perform at the property in which the tenant was subject to harassment.”20 This proposed amendment in relevant part explicitly replaces the language in 22-902 (a) from “(i) is intended to cause” to “(i) would reasonably cause”.21 By majority, City Council voted to approve amendment on September 25, 2019 and though it was returned unsigned by Mayor Bill DeBlasio on November 13, 2019, amendment became law by City Charter Rule Adopted October 26, 2019, to take effect “immediately”22. In addition, it amends the civil penalties pursuant to 22-903 (a) from “an amount not less than one thousand dollars and not more than ten thousand dollars” to “an amount not less than ten thousand dollars and not more than fifty thousand dollars.” Of particular note, the title of this proposed 2019 amendment contained explicit language of demolition, Department of Building approvals, and renovation which directly evidences Schulman’s influence on the Legislature. Clearly, the enactment of October 26, 2019 legislative amendment conclusively established that the landlord’s intent is no longer to be an element nor a determinative factor for the amended Harassment Law. Rather, it is the effect on the small business tenant that becomes the focus on the determination of harassment under the current amended state of the Law: whether or not landlord’s conduct would reasonably cause the small business tenant to vacate leasehold premises or to surrender or waive any rights under the lease or other rental agreement. Prior to the vote on the amendment on September 25, 2019, Legislative City Council Speaker stated: “[O]ur small businesses are the backbone of our economy and I’m so very happy the Council is acting on this item today. Introduction 1410-B sponsored by Council Member Vanessa Gibson would strengthen the commercial tenant harassment law by changing the current standard of an act or omission that is quote, “intended to cause a tenant to vacate the premises” to an or omission that would quote, “reasonably cause a commercial tenant to vacate the property” or surrender or waive rights as a lawful tenant. Further the bill adds to the current list of behaviors that constitute tenant harassment which include continued interruption of a essential services to now also include discrimination based on a protected class and inquiring to a tenant’s immigration status or threatening a tenant based on such status…”.23 Obviously, Legislature as a matter of public policy redressed the gaping loophole of pretextual conduct by landlord. The realization being made, that there may be crafted pretextual seemingly legitimate reasons for landlord’s offending conduct against the small business tenant who adversely feels the crushing harassing effect of such offending conduct brought by the landlord’s undue duress and burden ultimately resulting in a premature vacatur or surrender or waiver of rights under lease or other rental agreement. This immediate effective date of October 26, 201924 of the Harassment Law amendment occurred during the pendency of this instant matter in which Respondent sought redress pursuant to Harassment Law. “In determining whether statutory enactments should be given retroactive effect, there are two axioms of statutory interpretation” (Clean Earth of N. Jersey, Inc. v. Northcoast Maintenance Corp., 142 AD3d 1032, 1036-1037, 39 NYS 3d 165, 170 [App Div 2016] citing Marrero v. Crystal Nails, 114 AD3d 101, 111, 978 NYS2d 257 [2013], quoting Nelson v. HSBC Bank USA, 87 AD3d 995, 997, 929 NYS2d 259 [2011]). “Amendments are presumed to have prospective application unless the Legislature’s preference for retroactivity is explicitly stated or clearly indicated. However, remedial legislation should be given retroactive effect in order to effectuate its beneficial purpose’” (id. citing Nelson v. HSBC Bank USA, 87 AD3d at 997, quoting Matter of Gleason [Michael Vee, Ltd.], 96 NY2d 117, 122, 749 NE2d 724, 726 NYS2d 45 [2001]; see Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 584, 696 NE2d 978, 673 NYS2d 966 [1998]; Marrero v. Crystal Nails, 114 AD3d at 111). “These axioms are helpful guideposts, but ‘the reach of the statute ultimately becomes a matter of judgment made upon review of the legislative goal” (id. citing Nelson v. HSBC Bank USA, 87 AD3d at 997, quoting Matter of OnBank & Trust Co., 90 NY2d 725, 730, 688 NE2d 245, 665 NYS2d 389 [1997]; see Matter of Marino S., 100 NY2d 361, 371, 795 NE2d 21, 763 NYS2d 796 [2003]; Marrero v. Crystal Nails, 114 AD3d at 112).” The Appellate Division Second Department further decided that in determining legislative intent as to the remedial retroactive effect of a statutory amendment, its chosen effective date is determinative. “The Legislature’s six-month postponement of the effective date indicates that it did not intend for the amendment to be given retroactive effect” (Matter of Joyner v. New York State Div. of Parole, 114 AD3d 792, 793, 980 NYS 2d 267, 268 [App Div 2014]). Here, the October 26, 2019 enacted amendments to The Harassment Law were to take “effect immediately”25. Therefore, in applying the Appellate Division Second Department’s standards, these amendments are to be given retroactive effect notwithstanding law changed during the pendency of instant matter. Although this instant matter was commenced as a summary holdover proceeding, NYC Admin. Code 22-902 (a) creates a private right of action that may have been brought as a plenary action allowing for jury demand. Further, where tenant seeks equitable relief pursuant to the Harassment Law as in Schulman, it must be brought in Supreme Court, as court of competent jurisdiction, and not Civil Court with very limited equitable jurisdiction (see Schulman, Blitz & Williamson, LLP v. VBG 990 AOA LLC, 2018 NY Misc LEXIS 5612, 2018 NY Slip Op 32993 [U] [Sup Ct, NY County 2018]). Herein, Tenant has chosen to seek redress, inter alia, in Civil Court pursuant to Harassment Law in this pre-answer motion to dismiss for summary holdover proceeding. It would be wholly inconsistent with the spirit of the law through its legislative history as detailed above and not in the interest of justice to hold as a matter of law that redress pursuant to Harassment Law may not be sought procedurally in a summary proceeding brought by the landlord, as said summary proceeding in and of itself may be wholly or in part thereof the alleged offending act or omission that constitutes a basis for the harassment at issue. Two elements are required to be proven by a preponderance of evidence pursuant to the Harassment Law. First, Tenant bears the burden of proof to demonstrate that the landlord’s offending act or omission would reasonably cause the tenant’s vacatur of the covered property or to surrender or waive any rights under a lease, other rental agreement or applicable law, NYC Admin. Code 22-902(a); to reasonably cause requires this determination to be made pursuant to the reasonable person standard, to wit, would a reasonable person as fact finder find that landlord’s act or omission would more likely than not cause the tenant to vacate, surrender, or waive any rights under the lease or other rental agreement at issue. Second, landlord’s offending act or omission must comprise or be the basis of one or more of the explicitly enumerated offending acts in the Harassment Law, NYC Admin. Code 22-902 (a) (1-13). Enumerated in NYC Admin. Code 22-902 (a) (1-13) are varied diverse offending acts or omissions26 that may be redressed by other penal as well as civil laws, ranging from threats of violence to discrimination of protected classes27. While cross-examining Ms. White, Petitioner erroneously implied that Harassment Law required some sort of physical strong-arm techniques, such as threatened or actual breaking of limbs or destruction of leasehold property. However, in this case of first impression pursuant to this October 26, 2019 newly amended Harassment Law, Ms. White argues that each and every summary proceeding commenced by Petitioner against Respondent were based upon pre-textual strained tenuous stretched hyper-technical legal arguments and not based upon fact, and were frivolous even where the strained tenuous stretched hyper-technical legal arguments may not rise to frivolous as explicitly defined pursuant to 22 NYCRR 130-1.1 (c). This Court finds that while “frivolous” is determined as a matter of law pursuant to 22 NYCRR 130-1.1 (c); “frivolous” pursuant to Admin Code 22-2902 (a) (5) is determined as a material issue of fact. However, Harassment Law failed to explicitly define “frivolous” pursuant to Admin Code 22-2902 (a) (5). Where a word or explicit language was undefined within a law, the common law principle from the Kings Bench, the “plain meaning rule”28 of statutory construction was applied. However, U.S. common law has rejected the plain meaning rule in applying the literal or commonplace meaning of an undefined word within a law. Rather, the present state of U.S. law bases the meaning of that undefined word upon the legislative intent or the spirit of the law at issue. The spirit of the law is determined by its legislative history: “It is said that when the meaning of language is plain we are not to resort to evidence in order to raise doubts. That is rather an axiom of experience than a rule of law and does not preclude consideration of persuasive evidence if it exists. If Congress has been accustomed to use a certain phrase with a more limited meaning than might be attributed to it by common practice, it would be arbitrary to refuse to consider that fact when we come to interpret a statute. But, as we have said, the usage of Congress simply shows that it has spoken with careful precision, that its words mark the exact spot at which it stops” (Boston Sand & Gravel Co. v. United States, 278 US 41, 48-49, 49 S Ct 52, 54, 73 L Ed 170, 177 [1928]). “To the extent that the Court of Appeals excluded reference to the legislative history of the FWPCA in discerning its meaning, the court was in error. As we have noted before: ‘When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial examination’. In this case, as we shall see, the legislative history sheds considerable light on the question before the Court” (Train v. Colorado Public Interest Research Group, Inc., 426 US 1, 9-10, 96 S Ct 1938, 1942, 48 L Ed 2d 434, 441 [1976] quoting United States v. American Trucking Assns., 310 US 534, 543-544 [1940]; citing Cass v. United States, 417 US 72, 77-79 [1974]; see United States v. Dickerson, 310 US 554, 554, 60 S Ct 1034, 1035, 84 L Ed 1356, 1358 [1940]; see also Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 348 US 437, 444, 75 S Ct 489, 492, 99 L Ed 510, 516 [1955]; see also Greater N.Y. Metro. Food Council, Inc. v. Guiliani, 1998 US Dist LEXIS 19498, 27 Media L Rep 1417). Therefore, where “frivolous” is undefined as used in NYC Admin. Code 22-902 (a) (5), it is the spirit of the law through legislative history that must be applied to determine its meaning as intended by the legislators in the enactment of the law at issue. Legislator Mark Levine stated at legislative hearing held on September 25, 2015: “And the most unscrupulous among them are resorting to really despicable tactics to push out commercial tenants before their lease is up because they know that there is higher rents on the back side.” 29; “…. they’re also sometimes engaging in shenanigans…”30 ; “…And frankly until now there just haven’t been strong enough protections and sanctions on this kind of behavior….”31; “…seeks to provide some penalties with teeth so hat tenants who are subjected to this kind o[f] harassment and it is harassment can resort to the courts and win damages to compensate for lost business, to compensate for legal fees, etcetera”32 Here, legislative history may indeed be summed up in the regard as to repeated commencement of frivolous matters by the term “shenanigans” (see City Council Meeting Committee on Small Business September 25, 2015 tr at 12, line 2). Although repeated commencement of frivolous matters as shenanigans may not rise to the gravity of physical violence, threat of physical violence, or pretextual demolition of property that satisfy “unscrupulous” or “really despicable tactics,” nevertheless said repeated commencements of frivolous court proceedings may reasonably cause tenant’s vacatur or surrender or waiver of rights under lease or other rental agreement. It is shenanigans such as repeated commencement of frivolous matters with its attendant buildup of expenditure of time away from tenant’s business and expenditure of money by tenant for defense thereto which could cause a reasonable person to find by a preponderance of evidence that the repeated commencement of these frivolous actions whether or not seemingly legitimate, are actual shenanigans to deflect tenant from conducting its business causing business disruption and expenditure of moneys to defend said frivolous matters in costs, disbursements and attorney fees. All of which, constituting financial injury in the form of loss of revenues and in expenditure of time in defending repeated frivolous actions as well as defense litigation expenses to ultimately result in the effect of small business tenant being bludgeoned into submission by landlord by giving up to vacate, or to surrender or to waive legitimate contractual rights under a lease or other rental agreement. Thus, whether there were repeated commencement of frivolous proceedings pursuant to Administrative Code 22-902 (5) which constitute harassment is a matter of fact for the factfinder applying a reasonable person standard in accordance with the legislative history’s spirit of the Harassment Law. Procedurally, where, as here, Harassment Law redress is sought as counter in a landlord’s commenced summary proceeding, tenant’s testimony is required to bear its burden of proof for the alleged harassment and its effects upon tenant by preponderance of the evidence and its damages. In the instant matter, Harassment Law Hearing was held on March 4, 2020 in which tenant’s testimony was taken with landlord’s cross-examination. Landlord failed to provide witness. Respondent’s principal, Ms. White, testified: Respondent is a woman owned small business33 for design landscaping services with 10 employees; entered into lease February 2016 for 5 years to occupy 11 Wythe which she uses as office and warehouse for her materials; she is mother of 2 small children as she runs her small business; predecessor owner with whom she had an amicable relationship with did tell her that he may sell property and Sale Termination Lease Clause 15 was included for that contingency; the lease was drafted by the predecessor owner’s son who was a lawyer and she was not represented by counsel; upon Petitioner’s purchase of the property Petitioner’s agent introduced himself at 11 Wythe and reminded her as to the previously sent letter regarding its new online site for rent payment; new online site for her rent payment explicitly stated leasehold premises as “11 Wythe” and not “9 Wythe”; when she received #1Notice on January 14, 2019 by email to evict her from the wrong address of 9 Wythe, she called Petitioner who told her to “call lawyer” and then “radio silence”34; even though wrong address and notice not properly sent based upon Clause Eighteen of the lease, she was forced to engage a lawyer to defend #1Notice; she was forced to expend time away from her business to look for and engage services of an attorney to defend against obviously defective #1Notice; after court on July 15, 2019, judge dismissed Petitioner’s case and quite stridently admonished Petitioner for its breach of lease in its failure to comply with Sale Termination Lease Clause 15 and mandating any further proceedings to evict her must be in compliance; she then felt a sense of relief that she had at least until April 2020 before Petitioner can seek to again evict her and Petitioner had to abide by lease and give her notice on or before December 31, 2019; “I felt okay. Great. We gone to court done what we have need to do. We have been granted. We would have another — we would potentially notified again for future year, but for now we were safe. That was great. We got another notice. We don’t have a lease. I don’t understand that.35 Ms. White was taken aback and confused when Petitioner served her again with #2Notice about a week after judge’s decision dismissing #1Notice; This time, #2Notice to evict her alleged that she had no lease and was merely a month to month tenant; she was absolutely confused and again engaged the same lawyer and was very worried as to having to vacate earlier than April 2020; she was not sure what to do so she began to look for other rental space notwithstanding that she knew that lease explicitly stated she had to receive notice by the 31st day of December in the previous year in order to be evicted by the end of April in the succeeding year as per Sale Termination Lease Clause 15; In the midst of Ms. White fending off eviction from #2Notice in which Petitioner alleged no lease, landlord again served a Third Notice to Terminate #3Notice this time alleging the complete opposite fact – that she did have a lease which caused even heightened level of frustration and confusion; she then realized that she would have to pay more legal fees for #3Notice; she could not understand why Petitioner was repeatedly bringing these cases against her under inconsistent theories when she dutifully paid her rent without incident; “I think that it just been series of confusions, you know, from my perspective I sign lease, I feel like I have a lease. Now I’m back in court for in — of another notice saying I do have a lease — now I’m back in court for that. Confusion would be appropriate term.”36 The inconsistency and repeated proceedings to evict caused stress upon Ms. White; “It’s a constant stress point. We have been, you know, I’ve been running base for number of years. I could foresee lot of the business stress that come our way. This is one that I feel like I’m kind of in a world no control over it. I feel I received lease in court.”37 This Court as fact-finder paraphrases witness’ testimony to include its interpretation of said testimony adduced by Ms. White’s body language and speech patterns that cannot be captured by mere reportable text of transcript. This Court finds witness was nervous, worried and anxious about the future of her small design landscaping business. This Court finds Ms. White quite credible. Applying reasonable person standard This Court as fact-finder finds #1Notice and #2Notice are repeated commencement of frivolous court proceedings, bolstered by the evidence of #3Notice. Pursuant to the legislative history and spirit of the Harassment Law using Legislator Levy’s language, it is found that commencement of both proceedings are indeed shenanigans and therefore repeated frivolous proceedings. Petitioner knew or should have known that Ms. White’s small business leased premises is 11 Wythe and not 9 Wythe in #1Notice: Its agent visited her at 11 Wythe after purchase of building on October 24, 2018; same agent reminded her as to the new online payment system which it created and stated for leasehold of 11 Wythe and not 9 Wythe. Still, even after she called Petitioner upon receipt of #1Notice after December 31, 2018, to wit, by email on January 14, 2019, instead of curing its defective #1Notice it doubled down and told her to get a lawyer and so she was forced to do exactly that. After expending monies for attorney fees and time away from her business, on the very same basis that she spoke to Petitioner about, the court dismissed #1Notice on July 15, 2019 and specifically stated in its decision, “…the court is hereby putting the parties on notice that if another case is commenced, Article 15 of the lease instructs, directs, governs etc. how the parties must proceed. If not done in accordance with Article 15, the court may make a determination of frivolity.”38 Nevertheless, Petitioner sought a different argument in another attempt to evict her with #2Notice; This time, incredibly claiming that Ms. White had no lease but was rather a month to month tenant arguing that because of the internal conflict within the lease stating both 11 Wythe and 9 Wythe as leasehold premises that Petitioner of its own volition is invalidating the lease as of no existence; Although, well established law holds where any ambiguities or errors in said contract as a lease will inure to the detriment of drafter and to the benefit of non-drafter.39 Therefore, Petitioner as landlord errs in its attempt to shift burden unto Ms. White for its error as drafter, re-emphasizing that Petitioner stands in the shoes of its predecessor in interest. Moreover, it was clear that July 15, 2019 court decision established as a matter of law the validity and existence of the lease for 11 Wythe and not for 9 Wythe, notwithstanding the internal conflicting leasehold premises. This Court further finds that #1Notice and #2Notice are repeated frivolous proceedings commenced against Ms. White’s small business tenancy which could reasonably cause and actually did cause Ms. White to attempt to cede possession of the leased premises of 11 Wythe and to surrender and waive her rights under Sale Termination Clause 15 as well as Notice Lease Clause 18 based upon the preponderance of evidence. The commencement of these repeated frivolous proceedings did deflect Ms. White from conducting her landscaping design business, causing business disruption and expenditure of moneys to defend, which caused financial injury. It is uncontroverted that Ms. White had not breached any of her obligations under the lease, having been a dutifully timely paying tenant, bar none. As Ms. White testified, fact-finder found that she appeared so very put upon, most certainly seemingly bludgeoned into submission by Petitioner-landlord that she actually did seek to vacate, to surrender, and to waive legitimate contractual rights and protections that she has under the valid lease. “Every time you get notice you stop, know where you stand, you’re looking for new space, you’re stressed out, you’re finding space. You are finding far more expenses. I’ve been lucky, I live and work in the same space. I have two little kids that’s been monumental. It is hard when that sort of situation get upended. We’re looking at space, not same neighborhood. All of this it effect your business. Your spending time, effort not to do what you should do for business growth.”40 “Other than the number of notices and court experiences that I have been made to make. Elements we are here today. All of those collectively, in addition to the third notice which I can foresee, you know proceeding regarding that.”41 Further, Petitioner’s harassment upon Ms. White’s small business caused financial injury in the form of business interference, loss of time away from her clients, unnecessary money paid for attorney fees amounting to $19,509.32 to defend these repeated frivolous proceedings of #1Notice and #2Notice, as well as stress. “Interference of business. I’m sole proprietor of this business. My job is with clients it is not managing staff. Every hour I’m spending is a hour I’m not doing my operation of business. Looking for spaces, calling landlord, that all comes into play as well. Responding to, you know, e-mail, getting to this point.”42 For all the foregoing reasons, Re-Argument Granted; vacating of dismissal order Denied; Costs and Sanctions pursuant to 22 NYCRR 130-1.1 (c) Denied; and Judgment in the amount of $19,509.32 for attorney’s fees in favor of Respondent, ELEVATIONS URBAN LANDSCAPE DESIGN INC Granted. The foregoing constitutes the opinion, decision, and order of This Honorable Court. Dated: April 17, 2020
