Recitation, as required by CPLR 2219(a): Notice of Motion and Affidavits Annexed 1 Order to Show Cause and Affidavits Annexed 0 Answering Affidavits 2 Replying Affidavits 3 Exhibits 4 Stipulations 0 Other 0 DECISION/ORDER This is an HP proceeding in which Petitioner Department of Housing Preservation and Development of the City of New York (“HPD”) seeks an order to correct all Housing Maintenance Code (“HMC”) violations at 451 Kingston Avenue, Brooklyn, New York 11225 (“premises”), civil penalties for failure to make timely repairs, compliance with Orders to Repair/Vacate Orders, and access for HPD inspections. Respondents Jims Realty LLC a/k/a Jim Realty LLC, Richard Joseph and Joseph Popack1 (collectively referred to as “Respondents”) are the owners of the premises within the meaning of the Housing Maintenance Code. Respondents filed an Answer on or about June 7, 2021, which contains four (4) affirmative defenses. There are currently two motions before the Court. The first is Petitioner’s motion seeking partial summary judgment pursuant to CPLR §3212 and/or CPLR §409(b) for an order to correct all open violations at the premises, an order dismissing Respondents affirmative defenses pursuant to CPLR §3211(b), and an order setting this matter down for a hearing on Petitioner’s claim for civil penalties. Respondents oppose and make their own motion for discovery. On September 10, 2021, this Court heard oral argument and reserved decision on both motions. All Court appearances took place via Microsoft Teams and all parties are represented by counsel at this time. Partial Summary Judgement — Order to Correct To obtain summary judgment, the moving party has the burden of establishing its cause of action or defense sufficiently to justify judgment in its favor as a matter of law. (See, CPLR §3212(b); Friends of Animals, Inc. V. Associated Fur Mfrs. Inc., 390 N.E.2d 298 [1979]). If there is any doubt as to the existence of a triable issue, summary judgment should not be granted. (Glick & Dolleck, Inc. V. Tri-Pk Export Corp., 239 N.E.2d 725 [1968]). As summary judgment is a drastic remedy, “the facts must be viewed in the light most favorable to the non-moving party.” (Vega v. Restani Construction Corp., 18 NY3d 499, 503 [2012]). “To grant summary judgment it must clearly appear that no material and triable issue of fact is presented.” (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; citing, Di Menna & Sons v. City of New York, 301 NY 118 [1950]). The proponent of summary judgment is required to “make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of material fact.” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Only upon making of this showing does the burden then “shift to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.” (Id.) In support of summary judgment, Petitioner attaches HPD records and printouts from HPD’s database. Such documents include a Building Registration Summary Report for the premises. (See, P. Ex. C). Also attached as exhibits to the Verified Petition are an Open Violation Summary Report for the premises, Notices of Violation for HPD violations at the premises, and an Order to Repair/Vacate Order for fire damage at Apt. F18. (See, P. Ex. A). The Court takes judicial notice of HPD’s violation records as prima facie evidence of proof of the conditions stated therein. (MDL §328(3); see also, Dept. of Hous. Preserv. & Dev. of the City of N.Y. v. Knoll, 120 Misc.2d 813 [App Term, 2nd Dep't 1983] [HPD's computer database records are prima facie evidence of any matter stated therein.]). The attached HPD violation report, dated October 19, 2021, shows one hundred and ninety-two (192) open violations at the subject premises. There are twenty-three (23) Class “A” violations, one hundred and fourteen (114) class “B” violations, and fifty-five (55) Class “C” violations. (See, Exhibit 1 attached hereto). In addition, after a notice of violation is served, it is an owner’s responsibility to certify that the violation has been corrected, and “failure to file such certificate of compliance shall establish a prima facie case that such violation has not been corrected.” (HMC §27-2115(f)(7)). Furthermore, “the court may retain continuing jurisdiction of any action or proceeding relating to a building until all violations of law have been removed.” (See, N.Y. City Civ. Ct. Act §110(c)). To overcome the presumptions contained in the HMC, Respondents will need “documentary evidence in the form of a certification of compliance or repair receipts or detailed testimony of repairs being done so as to show when and what repairs were specifically corrected….” (Dept. of Hous. Preserv. & Dev. of City of N.Y. v. Deka Realty Corp., et. al., N.Y.L.J., June 16, 1992, page 36, col. 6 [App Term, 2nd and 11th Jud. Dists. 1992], citing Dept. of Hous. Preserv. & Dev. of City of N.Y. v. Knoll, 120 Misc.2d 813 [App Term, 2nd Dep't 1983]). The balancing act between the statutory presumption and ensuing burden is justified “since the knowledge of the work, labor and services performed is within the purview of the owner, it is reasonable to place on him, the burden of properly establishing, through his testimony and proof, that the violations listed have been properly corrected.” (Dept. of Hous. Preserv. & Dev. of City of N.Y. v. Deka Realty Corp., et. al., N.Y.L.J., June 16, 1992, page 36, col. 6 [App Term, 2nd and 11th Jud. Dists. 1992]). In opposition, Respondents contend that an attorney affirmation from HPD is insufficient to warrant summary judgment. However, that argument is unavailing as the Appellate Term when faced with this issue has previously held, “Contrary to landlords’ claim, the attorney’s affirmation submitted in support of HPD’s motion was in proper form (see CPLR 2106), and HPD did submit sufficient prima facie evidence of the violations (see Multiple Dwelling Law §328[3].” (Dept. of Hous. Preserv. & Dev. of City of N.Y. v. Omole, 2015 N.Y. Misc. LEXIS 1065 [App Term, 2nd Dep't 2015], citing Dept. of Hous. Preserv. & Dev. of City of N.Y. v. Knoll, 120 Misc.2d 813 [App Term, 2nd Dep't 1983]). Respondents also attach an affidavit in opposition from the site manager which denies that HPD violations exist, claims that HPD’s database is inaccurate, and alleges that the only reason violations remain open is because HPD has not conducted a reinspection. (See, Aff. of Z. Lezell, dated August 12, 2021). Although the affidavit references “spreadsheets” and “pictures” of repairs made, Respondents fail to attach proof in evidentiary form to show that the open violations have been properly corrected. For example, Respondents do not attach a single certificate of correction or repair receipt to show specifically what repairs were corrected or when they were corrected, nor does the affidavit provide a detailed account of repairs made. Merely alleging that repairs are complete, without any supporting evidence, is insufficient to defeat the motion for an order to correct. As such, Respondents have not met their evidentiary burden to overcome presumptions contained in the HMC: “Under subdivision 3 of section 328 of the Multiple Dwelling Law, the data base is prima facie evidence ‘of any matter stated therein’ and the courts are to take judicial notice of it ‘as if the same were certified.’ The failure of an owner to file a certificate of compliance ‘shall establish a prima facie case that such violation has not been corrected.’ It is the opinion of this court that the proof submitted by defendants was not sufficient to refute the prima facie case which those statutes establish. To permit a property owner to come into court and merely testify that the violations were removed, without any supporting evidence, would vitiate the impact of the Housing Maintenance Code of this city and render it meaningless (internal quotations omitted).” (Dept. of Hous. Preserv. & Dev. of City of N.Y. v. Knoll, 120 Misc. 2d 813 [App Term, 2nd Dep't 1983]). Furthermore, Respondents have failed to plead with specificity any defense to an order to correct. Therefore, Petitioner’s motion for partial summary judgment is granted and the Court enters an order to correct all open HPD violations at the premises as Respondents have failed “to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Civil Penalties — Hearing Required Petitioner’s motion asks the Court to schedule a hearing on Petitioner’s claim for civil penalties. As discussed, although HPD’s records are considered prima facie evidence, and there is a presumption in favor of HPD’s findings, owners are permitted by statute to raise defenses to civil penalties and can seek to mitigate them. Indeed, the statutory authority which enables HPD to bring this action in the Housing Part to recover civil penalties also provides that owners can raise defenses to civil penalties or make a showing as to why civil penalties should be mitigated. (See, HMC §27-2116). Where, as here, Respondents have raised defenses to civil penalties and factual issues which could mitigate civil penalties, Respondents should be afforded a full opportunity to raise such defenses and mitigating circumstances at a trial. (See, Dept. of Hous. Preserv. & Dev. of City of N.Y. v. De Bona, 101 AD2d 875, 875 [2nd Dep't 1984] ["Although civil penalties for the violation run from the date the notice is affixed to the certificate of inspection visits and there is a presumption of a continuing violation, penalties cannot be collected or otherwise enforced, until a judicial proceeding is brought. At this proceeding, the owner may negate the existence of any violation, rebut the presumption of a continuing violation, or otherwise present a defense. Thus, the owner is afforded a full hearing on the merits prior to the deprivation of any property rights (internal citations omitted)."]). As the opposition papers present potential defenses and/or mitigating circumstances to civil penalties, a hearing is required to resolve the factual dispute. (Automated Waste Disposal, Inc. v. Mid-Hudson Waste, Inc., 50 AD3d 1073 [2nd Dep't 2008] [hearing must be conducted if a factual dispute exists which cannot be resolved on the papers alone.]). Therefore, Petitioner’s motion for a hearing on Petitioner’s claim for civil penalties is granted. Motion to Dismiss Affirmative Defenses The Court now turns to the prong of Petitioner’s motion which seeks to strike all of Respondents affirmative defenses. Under CPLR §3211(b), “a party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit.” Petitioner has the burden of demonstrating that the affirmative defense is “without merit as a matter of law.” (Bank of New York v. Penalver, 125 A.D.3d 796, 797 [2nd Dep't 2015], Iv to appl dism. 26 N.Y.3d 1030 [2015]; quoting, Vita v. New York Waste Servs., LLC, 34 A.D.3d 559, 559 [2006]). In this context, “the Court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every possible inference.” (Fireman’s Fund Ins. Co. V. Farrell, 57 A.D.3d 721, 723 [2008]). As the Court has already decided to enter an order to correct all open HPD violations at the premises, the affirmative defenses under review concern defenses that Respondents can raise solely at a hearing for civil penalties. The branch of Petitioner’s motion to strike Respondents’ First Affirmative Defense (that Respondents provided access), Second Affirmative Defenses (that repairs have been completed within the timeframe required by statute), and Third Affirmative Defense (that Respondents properly certified the repairs and that any delay is due to the COVID-19 pandemic) is denied. Giving Respondents every reasonable inference, as this Court must, the first three of Respondents’ affirmative defenses are preserved for the civil penalties hearing. The Fourth Affirmative Defense (that all violations have been reinspected and removed from public records) is stricken as it has no merit and is clearly contradicted by the attached HPD violation report, dated October 19, 2021. (See, Exhibit 1 attached hereto). Therefore, for the reasons stated, the branch of Petitioner’s motion to strike Respondents’ affirmative defenses is granted in part and denied in part to the extent that Respondents can raise the First, Second and Third Affirmative Defenses at a hearing on Petitioner’s claim for civil penalties. Leave for Discovery Denied Respondents seek disclosure in a variety of forms, which include a “Demand for Collateral Source Information,” “Demand for Discovery and Inspection,” “Demand for a Bill of Particulars,” “Demand for Identify of Witnesses,” “Demand for Expert Witness Information,” and “Notice to Take Deposition Upon Oral Examination.” However, Respondents must first obtain leave of court. (See, CPLR §408). The Housing Maintenance Code further provides that “Leave of court, obtained by motion to the housing part thereof, shall be required for disclosure or for a bill of particulars…” (See, HMC §27-2116(a)). The Uniform Rules for the New York City Civil Court also states that “No disclosure or bill of particulars shall be allowed without an order of the court in an action or proceeding to obtain a civil penalty in the housing part.” (See, 22 N.Y.C.R.R. §208.43(1)). To justify discovery the moving party must demonstrate “ample need” for a claim or defense and the request for discovery must be narrowly tailored. (New York Univ. v. Farkas, 121 Misc. 2d 643, 647 [Civ. Ct., N.Y. County 1983]; Hughes v. Lenox Hill Hospital, 226 AD2d 4 [1st Dept. 1996], lv to appl den’d 90 NY2d 829 [1997]). In New York Univ. v. Farkas, the Court provided a list of factors on whether “ample need” has been met, which include (1) whether the party seeking discovery has asserted facts sufficient to establish a cause of action or defense; (2) whether movant has demonstrated a need to determine information directly related to that cause of action or defense; (3) whether the information requested is carefully tailored and is likely to clarify the disputed facts; (4) whether granting disclosure would lead to prejudice; (5) whether the court can alleviate such prejudice; and (6) whether the court can structure discovery so that pro se tenants will not be adversely affected by the discovery request. (New York Univ. v. Farkas, 121 Misc. 2d at 647; see also, Georgetown Unsold Shares, LLC v. Ledet, 130 A.D.3d [2nd Dep't 2015]). In this case, as the Court has already decided to enter an order to correct all open HPD violations at the premises, the issue is whether Respondents have shown “ample need” for disclosure at a civil penalties hearing. At a civil penalties hearing, it is incumbent upon Respondents themselves to show why civil penalties should not be assessed or to demonstrate mitigating circumstances. (See, HMC §27-2116). To do so, Respondents need to show that violations were corrected within the time specified and that certificates of compliance were duly filed. (See, HMC §27-2116(b)(1)). Respondents could also seek to show that violations did not exist when the notices of violation were served or demonstrate certain delineated mitigating circumstances to the Court. (See, HMC §27-2116(b)(2)). To demonstrate mitigating circumstances, it is incumbent “the owner shall show, by competent proof, pertinent financial data, and efforts made to obtain necessary materials, funds or labor or to gain access, or to obtain a permit or license and such other evidence as the court may require.” (See, HMC §27-2116(2)(iii)). Therefore, at a hearing for civil penalties, the Housing Maintenance Code puts the burden on Respondents to produce evidence in their own defense. As such, Respondents have failed to demonstrate “ample need” for disclosure. The Court also notes that Respondents’ discovery demands are not narrowly tailored, and that HPD’s prima facie case is already available to Respondents. As Respondents are the best custodians of the repair records that they need to show at a hearing for civil penalties, and for the foregoing reasons stated, Respondents’ motion for disclosure is denied. This finding is without prejudice to any trial subpoenas. The Court has considered the remaining arguments and issued presented in Respondents’ motion and finds them unavailing. Therefore, for the reasons stated, Petitioner’s motion is granted in part and denied in part, Respondents’ motion is denied, and this proceeding is transferred to Part X for a hearing on civil penalties. The balance of any issues concerning compliance with Orders to Repair/Vacate Orders and HPD’s request for access referenced in the petition can be addressed at the civil penalties hearing to the extent required. FURTHERMORE, IT IS ORDERED AS FOLLOWS: 1. Respondents shall correct all violations listed on the HPD violation report annexed hereto as Exhibit 1, classified as “C” (immediately hazardous) violations within 10 days from the date of this Order. 2. Respondents shall correct all violations listed on the HPD violation report annexed hereto as Exhibit 1, classified as “B” (hazardous) violations within 30 days from the date of this Order. 3. Respondents shall correct all violations listed on the HPD violation report annexed hereto as Exhibit 1, classified as “A” (non-hazardous) violations, within 60 days from the date of this Order. 4. Failure by Respondents to correct violations as directed in this Order shall subject them to the contempt power of the Court. 5. All issues concerning civil penalties shall be determined at a civil penalties hearing. 6. This Order shall not affect the obligations of Respondents to comply with the prior orders of this Court, if any. 7. In the event that there is a delay beyond Respondents’ control, Respondents may apply for an extension prior to the expiration of the deadline upon showing that Respondents acted with reasonable diligence to perform their obligations in a timely manner, and that the delay was beyond Respondents’ control. This constitutes the Decision/Order of this Court, which shall be uploaded to NYSCEF. Dated: October 19, 2021
