Recitation as required by CPLR 2219(a), of the papers considered in the review of respondent’s motion to dismiss pursuant to CPLR 3211(a), for sanctions pursuant to 22 NYCRRR 130-1.1, and for costs and disbursements. Papers Numbered Notice of Motion, Affirmation, Exhibits & Memorandum of Law 1/NYSCEF 3-12 Petitioner’s Affirmation in Opposition, Exhibits, and Memorandum of Law 2/NYSCEF 13-20 Reply Affirmation and Exhibit3/NYSCEF 21-22 Upon the foregoing cited papers, the Decision/Order of this Court on this motion is as follows: Geraldine Estrada brought this HP action against her landlord and its managing agent asking the court to find that the respondents have engaged in harassment pursuant to Section 27-2005[d] of the Administrative Code of the City of New York. Ms. Estrada filed the Order to Show Cause and Petition commencing this matter pro se. Amongst other allegations made in support of the harassment claim, Ms Estrada asserts that “[a]fter DHCR closed [her] case, the super/select concierge staff no longer respond to most of [her] requests for repairs/service.” (Verified Petition in Support of an Order to Show Cause at 5(b)). She goes on to claim that “[her landlord's] failure to correct dangerous conditions is harassment.” (Id.) After several preliminary conferences for the parties to appear and obtain counsel, respondents Tower 31 LLC and Garden Apartment Management, Inc. now move for dismissal of the order to show cause and petition that instantiated this matter. Respondents also move for sanctions against petitioner and for costs and disbursements. Petitioner has opposed the motion and respondents served and filed a reply. Respondents make four arguments as to why the proceeding should be dismissed. The court will address each of these arguments in turn. Respondents Argue the Petition Fails to State a Claim Respondents argue that the petition should be dismissed pursuant to CPLR 3211(a)(7) for failure to state a cause of action. “When reviewing a pre-answer motion to dismiss the complaint for failure to state a cause of action, we must give the pleadings a liberal construction, accept the allegations as true and accord the plaintiff[ ] every possible favorable inference” Sassi v. Mobile Life Support Servs., Inc., 37 NY3d 236 (2021) (quoting Chanko v. American Broadcasting Cos. Inc., 27 NY3d 46, 52 (2016))(internal quotations omitted). Giving plaintiff the benefit of all favorable inferences that may be drawn from the pleading, the Court determines only whether the alleged facts fit within any cognizable legal theory. Id. The question is whether the complaint adequately alleged facts giving rise to a cause of action, “not whether [it] properly labeled or artfully stated one.” Id. Two elements need to be proven for a finding of harassment. First, the respondents must have acted or omitted to act in such a way that caused or intended to cause the petitioner to vacate the subject unit or to surrender any rights in relation to such occupancy. NYC Admin. Code §27-2005(d), §27-2004(a)(48). Second, the respondents’ action or failure to act must fall under at least one of the twenty-one enumerated acts and omissions found in NYC Admin Code §27-2004(a)(48)(a — g). A properly pled petition must only allege one of the twenty-one enumerated acts and omissions found in NYC Admin Code §27-2004(a)(48 a — g); there is a rebuttable presumption in buildings with more than two units that these acts and omissions were intended to cause such person to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy. NYC Admin. Code §27-2004(a)(48). In her petition, Ms. Estrada states that the respondents have “[v]iolated the Administrative Code of the City of New York Section 27-2005[d] by causing or intending to cause the tenant(s)/petitioner(s) to move out of the above-mentioned apartment/unit or to give up or waive any rights to such apartment/unit.” (Petition at 5(a).) Ms. Estrada also alleges that the respondents failed to timely comply with NYC Admin Code §27-2140(c) by failing to correct the conditions which made the unit unlivable or unfit for habitation, which are described in the Vacate Order issued by DHPD pursuant to NYC Admin. Code §27-2139[b], and a violation of record was issued for at least one of those conditions. (Petition at 5(b).) If proven, this failure to correct the condition would constitute harassment pursuant to NYC Admin. Code §27-2004(a)(48)(c). Ms. Estrada goes on to allege that the respondents repeatedly caused or permitted acts or omissions that substantially interfered with or disturbed her comfort, peace or quiet and that there was a violation issued for one of those conditions. (Petition at 5b.) Importantly, Ms. Estrada alleges that she has requested repairs for her apartment and that those requests have been ignored. She points specifically to a loose tile in the common areas of the building that she requested to be repaired and was ignored. Giving the pro se petition a liberal construction and giving Ms. Estrada the benefit off all favorable inferences, this allegation, if proved, would constitute harassment under NYC Admin. Code §27-2004(a)(48)(b-2) or (g). Respondents characterize petitioner’s allegations as boiling down to being “unresponsive to requests to talk.” (Resp Memo of Law at p. 9.) In actuality, the petition, with a liberal reading, states that petitioners failed to repair conditions within the time proscribed by law after the tenant asked them to do so. That is cognizable as harassment and the court will not dismiss the petition for failure to state a claim. Respondents Seek Dismissal Due to Collateral Estoppel Respondents argue that the petitioner is collaterally estopped from asserting her harassment claim because she instituted a harassment proceeding at DHCR. (DHCR Docket No IR-410004-HL, initiated on August 4, 2020.) CPLR 3211(a)(5). The respondents annex to their motion the Tenant’s Statement of Complaint-Harassment that initiated that DHCR proceeding (Exhibit 1), the Landlord’s Response to DHCR Complaint (Exhibit 2), as well as a letter from Cheryl King, a senior attorney at DHCR, dated October 19, 2020 (Exhibit 3). Ms. King writes that her letter serves “to provide a summary of a virtual conference held on September 17, 2020 to investigate Geraldine Estrada’s harassment claim” (Ex. 3 at p. 1). Ms. King finds that no further enforcement action is warranted and states that she will recommend (presumably to the DHCR Administrator) that the case be closed. Respondents argue that this letter from Ms. King precludes the petitioner from asserting the same claims in the present proceeding. Ms. King’s letter, which boils down to a conference summary and recommendation, can not be considered an adjudication of the claim that would have preclusive effect. However, the court need not reach that issue. Respondents have the burden of demonstrating that the issues presented to DHCR and the issues presented here are identical (see, e.g. Howard v. Stature Elec., Inc., 20 NY3d 522, 525 (2013)), and they have failed to do so. Ms. Estrada alleges that the respondents’ failure to respond to her requests for repairs occurred after Ms. King issued her letter on October 19, 2020 and thus, by definition, Ms. King could not have adjudicated those allegations. Ms. Estrada also says that she complained of a loose tile some time in early October of 2020. There is no discussion of this allegation in Ms. King’s letter or in Ms. Estrada’s DHCR complaint. Ms. Estrada alleges that building staff take pictures of her as she enters the building. No such allegations were made by Ms. Estrada in the DHCR proceeding. The only allegation that is similar in the two proceedings revolves around alleged behavior of respondents’ employees in sharing Ms. Estrada’s personal information. Though similar, her claims in the DHCR proceeding are distinct from the claim here. In the DHCR proceeding, Ms. Estrada complains of the employee’s behavior and alleges that they violated her right to privacy. In the present proceeding she complains that she was denied a meeting to discuss her allegations. The court is not being asked here to adjudicate whether the employee shared private information. Instead, the court is being asked to determine whether the respondents harassed Ms. Estrada by failing to meet with her to discuss her concerns. In short, although Ms. Estrada alleged that the respondents harassed her in both the DHCR proceeding and the present action, the allegations giving rise to the claims are distinct The harassment claims in each forum derive from different statutes and provide different relief, after a finding of harassment. The DHCR harassment was brought pursuant to RSC §2525.51 not pursuant to NYC Admin. Code §27-2004(a)(48)(b-2) or (g) and the matter did not proceed beyond the DHCR attorney’s letter. As such, Ms. King’s letter could not have adjudicated these issues (if her letter could be considered an adjudication at all), and the court will not dismiss the petition due to collateral estoppel. Respondents Seek Dismissal Due to the Pending DHCR Proceeding Respondents also argue that the proceeding should be dismissed because the DHCR proceeding is still pending. CPLR 3211(a)(4) dictates that a proceeding should be dismissed if there is another action pending between the same parties for the same causes of action. As detailed above, though Ms. Estrada seeks a finding of harassment in both the DHCR proceeding and the present litigation, the facts underpinning these claims are distinct. As such, the DHCR proceeding has no bearing on the present litigation, whether it could be deemed as pending or not. As such, the court will not dismiss the petition on this ground. Respondents Ask For Dismissal Based on Documentary Evidence Finally, the respondents assert that the proceeding should be dismissed pursuant to CPLR 3211(a)(1), arguing that they possess documentary evidence that conclusively refutes petitioner’s allegations and establishes their defense. The documentary evidence in question is the same evidence presented at the prior DHCR proceeding. (Respondent’s Affirmation in Support at 16.) In other words, respondents here claim that the evidence contained in their Response to the DHCR Complaint (Exhibit 2) is so irrefutable that this action should be dismissed. They are not claiming here that Ms. King’s letter itself is documentary evidence that would support a finding under CPLR 3211(a)(1).2 Respondents argue that this letter, if anything, would support an argument that the petitioner is collaterally estopped from making her claims here and that the court should dismiss the claim based on those documents contained in Exhibit 2 to their motion. Respondents attached the following exhibits to their Answer to the DHCR complaint: (1) two affidavits, (2) a regulatory agreement made between Tower 31, LLC and the New York State Housing Finance Agency, (3) two fully executed lease agreements, (4) three work orders made by Ms. Estrada, (5) a series of emails by other tenants in the building, (6) a memo from Ben Hoffer Esq. dated June 18, 2020, (7) a waitlist for one- bedroom apartments and (8) a fob key log. Affidavits cannot be considered “documentary evidence” sufficient to support a CPLR 3211(a)(1) motion to dismiss. Tsimerman v. Janoff, 40 AD3d 242 (1st Dep’t 2007) (citing Rovello v. Orofino Rlty. Co., 40 NY2d 633 (1976)); see also Fontanetta v. Doe, 73 AD3d 78, 85 (2nd Dep’t 2010); Berger v. Temple Beth-EL of Great Neck, 303 AD2d 346, 347 (2nd Dep’t 2003). Likewise, the Appellate Division, First Department has found that emails are not the types of documents that the legislature intended when it enacted paragraph 1 of CPLR 3211 in 1963 and should not be considered in support of a motion made under that provision. Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, 10 AD3d 267, 271 (1st Dep’t 2004). Thus, the court will not consider the emails and affidavits in the context of the CPLR 3211(a)(1) motion. The regulatory agreement and leases could technically be considered “documentary evidence’ in the context of a CPLR 3211(a)(1) motion (See, e.g., Fontanetta v. Doe 73 AD3d 78, 84-85 (2nd Dep’t 2010)) but the court fails to see the relevance to the matter at hand, let alone how they conclusively establish the respondents’ defense. The court has no reason to doubt that Tower 31 LLC entered into the regulatory agreement they attach, nor is there any doubt that the parties entered into the lease agreements. These documents, however, do not address Ms. Estrada’s claim that the respondents have failed to address her requests for repairs (which, again, occurred after the DHCR proceeding was terminated). Ms. Estrada mentions in her petition that she was not offered a renewal lease in 2020, but the leases presented by the respondents in the DHCR proceeding are from 2010 and 2019. Likewise, the waitlist for one-bedroom apartments and fob key log address complaints made in the DHCR proceeding, but do not relate to any allegations in the instant matter. The affidavits, emails, regulatory agreement, leases, waitlist, and fob key log do not support respondents’ CPLR 3211(a)(1) motion. The only two pieces of “documentary evidence” that remain for consideration are the three work orders made by Ms. Estrada and the memorandum written by Mr. Hoffer. Mr. Hoffer’s memorandum relates to an investigation he conducted regarding Ms. Estrada’s claim that building personnel shared private information with her neighbors. The court does not find that this memorandum should be considered “documentary evidence” under CPLR 3211(a)(1). This memorandum does not conclusively refute Ms. Estrada’s allegations and Ms. Estrada should be allowed to question Mr. Hoffer about his findings, insofar as they relate to the present proceeding. Moreover, as noted above, the allegations here related to Ms. Estrada’s alleged privacy issues do not exactly mirror the allegations made in the DHCR proceeding. Likewise, the work orders do not refute Ms. Estrada’s assertions because they predate the allegations made in this proceeding. Since all of the evidence presented at the DHCR proceeding either cannot be considered “documentary evidence” for the purposes of CPLR 3211(a)(1) motion or does not conclusively establish respondents’ defenses, the court will not dismiss the petition under CPLR 3211(a)(1). Since the court declines to dismiss the petition for any of the reasons provided by respondents in their moving papers, the petition survives and the motion to dismiss is denied. As such, respondents’ motions for sanctions, attorney’s fees and costs are also denied. Respondents based their request for legal fees and sanctions on the presumption that there is no basis in law for this proceeding to be maintained. As the court has explained, respondents’ motion to dismiss is denied because a cognizable claim has been stated that has not been adjudicated. As such, no legal fees or costs will be awarded, and the court declines to sanction petitioner pursuant to 22 NYCRRR 130-1.1, as she has brought a facially valid claim. The matter is restored to the Part B calendar at a date to be determined by the successor Part B judge for status conference on the harassment petition, and if the matter is not resolved then, it will be transferred to Part S for trial, after a preliminary conference order is prepared with the parties. Respondents are to file a written answer on NYSCEF within twenty days (20) of the date of decision. ORDERED: Respondents’ motion to dismiss is denied. ORDERED: Respondents’ motion for sanctions, attorney fees, costs and disbursements is denied. ORDERED: Respondents are to file a written answer on NYSCEF within twenty days (20) of the date of decision. This is the decision and order of this court. Copies of this decision will be uploaded to NYSCEF. Dated: December 7, 2021
