The following papers on Defendant’s Motion for Summary Judgement were read: Papers Numbered Defendants’ Notice of for Summary Judgment 1 Defendants’ Memorandum of Law in Support 1A Defendants’ Statement of Material Facts 1B Defendants’ Confidential Medical Records 1C Defendants’ Exhibits A-R 1D Defendants’ Response to Plaintiffs’ Statement of Material Facts 1E Defendants’ Reply Memorandum of Law in Further Support 1F Defendants’ Reply Affidavit of Michael J. Tropp in Further Support and Exhibits 1G Plaintiffs’ Affirmation in Opposition and Exhibits A-E 2 Plaintiffs’ Memorandum of Law in Opposition 2A Plaintiffs’ Response to Defendants’ Statement of Material Facts 2B DECISION AND ORDER Upon the foregoing cited papers, oral argument heard on January 18, 2023, pursuant to CPLR §3212, Defendants’ move for an Order granting them summary judgment. As detailed below, the Defendants’ motion is DENIED. Procedural Posture and Factual history: On or about June 27, 2011, by served and filed Summons and Verified Complaint, Plaintiffs the City of New York and the Commissioner of the New York City Department of Buildings (jointly “Plaintiffs”)1 commenced this action against Defendants, as owners, operators and occupants of the properties at 165 Norfolk Street, Block 8757, Lot 31 (“165 Norfolk Street”) and 167 Norfolk Street, Block 8757, Lot 30 (“167 Norfolk Street”) in the County of Kings, City and State of New York (jointly, the “subject premises”). Plaintiffs seeks to enjoin Defendants from maintaining or occupying or permitting the maintenance or occupancy of the subject premises in a manner in violation of the New York City Zoning Resolution (“Zoning Resolution”), Title 28 of the New York City Administrative Code (“Administrative and/or Building Code”), and Orders issued by the New York City Department of Buildings (“DOB”), and contrary to the certificate of occupancy for 165 Norfolk Street and without obtaining a certificate of occupancy for 167 Norfolk Street. The Complaint seeks to compel Defendants to bring the subject premises into compliance with the Zoning Resolution, the Building Code, DOB Orders and obtain valid Certificates of Occupancy. Plaintiffs allege that Defendants have substantially altered, without approved plans and in violation of the Certificate of Occupancy, two existing dwellings at the subject premises to create one large dwelling in violation of the Zoning Resolution as it exceeds the permitted maximum floor area and lot coverage, encroaches improperly into the side and rear yards, and includes unauthorized swimming pools and curb cuts. Plaintiffs allege that, for over ten years, it repeatedly notified and ordered Defendants to correct said violations and Defendants have failed to do so. Defendants persisted in maintaining and occupying the illegal structures to the detriment of the neighborhood. Plaintiffs seeks a permanent injunction and civil penalties pursuant to and by the authority of §394 of the New York City Charter, §§7-703, 7-706, and 7-714 of the Administrative Code (the “Nuisance Abatement Law”), various sections of the Building Code, §11-61 of the Zoning Resolution and §20(22) of the General City Law. On or about September 12, 2011, by served and filed Verified Answer, Defendants denied said allegations. On or about December 9, 2015, Plaintiffs moved for Summary Judgment pursuant to CPLR §3212 and by Decision dated June 21, 2016, Justice Larry Martin denied said motion. On or about November 8, 2017, Plaintiffs’ motion to renew/reargue the June 21, 2016 Decision was denied. On or about January 31, 2022, Defendants moved for Summary Judgment dismissing all claims against it. On January 18, 2023, the parties appeared virtually before this Court and the parties made oral arguments on Defendants’ summary judgment motion. Defendants’ Position: Defendants seek dismissal of this action on various grounds. Plaintiffs’ claims are in violation of various provisions of the American with Disabilities Act (“ADA”), Fair Housing Act, New York Human Right Law §§8-102 and 8-107, and other related provisions given they discriminate against a qualified person with a disability. That Plaintiffs have engaged in selective enforcement of its rules and regulations by treating Mr. Michael Tropp, who is disabled, differently from owners of neighboring properties who are not disabled. That Plaintiffs denied Mr. Tropp reasonable accommodation from compliance with zoning laws and other rules and regulations; specifically of its policies, practices, and procedures as it applies to the Administrative Code §27- 110, for use of a side yard and an indoor swimming pool. Finally, Defendants seek attorney fees and costs in connection to defending this action, which Defendants contend is frivolous. Plaintiffs’ Position: In opposition to Defendants’ motion, Plaintiffs assert the motion is without merit. Specifically, the action against Defendants seeks injunctive relief and damages because of multiple violations of the New York City Zoning Resolution, including excessive floor area ratio and lot coverage and thus violations affecting the structure at the subject premises as a whole in addition to violations arising from unpermitted intrusions into the rear and side yards. Additionally, in a prior June 21, 2016 Decision on Plaintiffs’ summary judgment motion, the Court previously identified questions as to the entitlement to an accommodation and alleged selective enforcement as triable issues. Regarding any outstanding discovery, Plaintiffs assert that Defendants must make such an application by motion to compel, which they have not. Nonetheless, the discovery demand provided and signed by Mr. Tropp in his “Notice of Discovery and Inspection” dated October 22, 2020, is not enforceable. Plaintiffs assert that Mr. Tropp was advised that Plaintiffs agreed to accept re-service of the request by email and to respond upon receipt, but to date Plaintiffs have not received the Defendants’ discovery request, much of which was provided to Mr. Tropp as exhibits in during the extensive motion practice in this matter. Summary Judgment It is well established that summary judgment may be granted only when it is clear that no triable issues of fact exist.2 The party moving for summary judgment “bears the initial burden of making a prima facie showing of its entitlement to judgment as a matter of law”.3 Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers.4 Additionally, the moving party has the initial burden of coming forward with admissible evidence such as affidavits by persons having knowledge of the facts and reciting the material facts.5 Once such a showing has been established, the burden then shifts 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.”6 It is equally well settled that in making the determination of whether a movant has satisfied the requisite burden of proof, the nonmovant is entitled to the benefit of every favorable inference.7 Further, “the motion should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility.”8 Thus, “‘[r]esolving questions of credibility, determining the accuracy of witnesses, and reconciling the testimony of witnesses are for the trier of fact.’”9 “In determining a motion for summary judgment, the Court’s function is limited to the ascertainment of the existence of any genuine issues of material facts in the proofs laid bare by the parties’ submissions of affidavits based on personal knowledge and documentary evidence, rather than in conclusory or speculative averments. The Court makes no discretionary examination of such fact issues, nor does it resolve them.”10 Discussion: The Court finds that Defendants failed to meet their burden of establishing their prima facie entitlement to judgment. The June 21, 2016 Decision is instructive and determinative of the very issues raised by Defendants in their instant motion for summary judgment where this Court denied Plaintiffs’ motion for summary judgment and held that there were issues of fact that could only be determined at trial. In that 2016 Decision, the Court identified as triable fact issues, among other findings: (1) whether the two lots have been merged into one; (2) the difference in the calculation of the floor area ratio (FAR) and lot coverage depending on whether the two zoning lots were merged or should have been merged; (3) whether defendants purchased an easement measuring 8 feet by 660 feet; (4) whether the FAR had been impermissibly increased or the rear yard reduced because of the failure to conduct an inspection or take measurements at the subject premises; (5) the effect of the second story addition on the south side yard non-compliance when allegedly the structure was built on the same footprint of the preexisting structure; and (6) what changes, if any, were made after the 1995 plans for the subject premises were filed. Additionally, said June 21, 2016 Decision identified as triable fact issues whether Defendants were targeted for selective enforcement of the Zoning Resolution and Building Code and did not address whether the inground pool should be allowed in order to accommodate the health needs of Defendant Michael J. Tropp. The Court reviewed Defendants numerous exhibits in support of their motion for summary judgment: Dr. Murk H. Heinmann’s Affidavit: he is an Ophthalmologist and Mr. Tropp has been his patient since 2019. Dr. Heinmann provides a history of diagnosis and medical intervention for Mr. Tropp pre-2019 following his review of medical records. According to his Affidavit, Dr. Heinmann treated Mr. Tropp for shingles affecting his right eye requiring acute medical treatment and ongoing medical care at least through the date of this undated Affidavit, notarized December 7, 2021. Exhibit A: Plaintiffs’ Verified Complaint dated June 24, 2011. Exhibit B: Defendants’ Verified Answer dated September 6, 2011. Exhibit C: Justice Larry D. Martin’s December 22, 2011 Decision on motion sequence #1, denying Plaintiffs’ Order to Show Cause seeking an order enjoining and restraining Defendants because Plaintiffs “failed to demonstration the basis for granting a temporary restraining order and a preliminary injunction.” Exhibit D: Plaintiffs’ Notice of Motion for Summary Judgment and Memorandum of Law in Support of the same dated November 24, 2014. This motion was decided by Justice Martin on June 21, 2016 refenced above. Exhibit E: Defendants’ undated and unsigned Memorandum of Law and Affidavits in Opposition to Plaintiffs’ November 24, 2014 motion for summary judgment. Exhibit F: Justice Larry D. Martin’s June 21, 2016 Decision on Plaintiffs’ Motion for Summary Judgment where he denied summary judgment because issues of fact remain to be determined at trial, including that: Defendants raised an issue of fact with regard to whether the two lots have been or should be merged into one (pp18-19); regarding the nonconforming curb cut, Plaintiffs are precluded from again seeking to establish said violations exist (p22); Defendants have raised an issued of fact with regard to whether they were targeted for selective enforcement of the Zoning Resolutions and building Code and “…their allegations are sufficient to warrant denial of plaintiffs’ motion for summary judgment at this early stage of the proceeding….the actions of the DOB…raise issues of fact with regard to whether plaintiffs ae acting in bad faith.” (pp22-23); finally, regarding Mr. Tropp’s health, the court found that “…the health problems that he has developed in the intervening 20 years should now be considered….and plaintiffs fail to address the issue of why this provision [Administrative Code §27-100] should not be relied upon to allow for the construction of the in ground pool to accommodate Mr. Tropp’s health needs” (p23-24). Exhibit G: numerous black and white copies of pictures of the subject premises and neighboring properties. Exhibit H: Justice Larry D. Martin’s November 8, 2017 Decision on motion sequence #5, denying Plaintiffs’ request for leave to reargue the June 21, 2016 decision because Plaintiffs “failed to submit the papers relied upon in connection with the initial motion, thereby rendering the motion defective….Moreover, the court declines to find that it overlooked or misapprehended any issues of law or fact in rendering the June 21, 2016 decision and order….that decision reveals the court carefully considered each argument raised by plaintiffs and determined that issues of fact were presented that could not be resolved upon the papers then before the court.” (pp1, 4). Exhibit I: emails between Mr. Tropp and Plaintiffs’ attorney Ms. Diana Murray between April 30, 2020 and October 22, 2022 and Mr. Tropp’s discovery demand dated October 22, 2022. Exhibit J: Justice Katherine A. Levine’s August 2, 2019 Decision on motion sequence #6, granting a request to stay the proceeding for six months until Feb. 14, 2020. “Defendants are to be prepared to proceed on that date…pro se or by counsel…” (p1). Exhibit K: Drumm Advocacy six-page letter dated August 28, 2020, emailed on August 31, 2020 to Kareem Gabriel, Disability Service Facilitator of DOB from Donna Drumm, Esq. acting as ADA Advocate for Mr. Tropp. This correspondence concludes that Mr. Tropp is a “qualified person with disabilities” who retained Ms. Drumm as his “Disability Rights Advocate”. It further outlines the DOB’s procedure for obtaining accommodations, Mr. Tropp’s disabilities, record of impairment, arrangement of reasonable accommodations requests, the requested accommodations (use of side yards for physical therapy and use of indoor swimming pool for physical therapy), cooperative dialogue and confidentiality (asking the DOB to contact Mr. Tropp with questions or responses to the requests in this letter by September 14, 2020. Exhibit L: September 1, 2020 email confirmation by the DOB’s Disability Service Facilitator of receipt of the letter referenced in Exhibit K above, the DOB’s denial of Mr. Tropp’s accommodations requests because it had not received from Mr. Tropp “an application for a permit to alter the premises in order to create the cited accessible features.” The DOB sent Mr. Tropp and Ms. Dunn the hyperlinks to the property profile confirming there were no recent filings and asking that the necessary filings be made so that waivers can be considered. Exhibit M: color copies of pictures from arial and side street views of 147 Norfolk St. Exhibit N: color copies of pictures from arial and side street views of one other property. Exhibit O: printout of Zoning and Land Use and Certificate of Occupancy (effective date August 5, 2008) for 2 Dover Street, Bk, NY 11235. Exhibit P: color copies of pictures from arial and side street views of additional properties. Exhibit Q: printout of Zoning and Land Use and Certificate of Occupancy (effective date April 28, 1992) for 1001 Oriental Boulevard, Bk, NY 11235. Exhibit R: numerous printouts from websites indicating COVID-19 testing rates, areas of concern (including south Brooklyn cluster effective October 1, 2020). Given that the issues raised by Defendants’ instant motion for summary judgment were considered and adjudicated by this Court’s June 21, 2016 Decision, their motion is denied, including the allegation that Plaintiffs selectively denied an accommodation from compliance with zoning laws and DOB regulations for an indoor swimming pool and walk-in showers in the rear and side yards of the subject premises. As for Mr. Tropp’s discovery demand, the Court directs Plaintiffs to respond to the October 22, 2022 discovery demand attached to their moving papers as Exhibit I. The Court agrees that failure, if any, by Plaintiffs to respond to Mr. Tropp’s discovery request is not grounds for summary judgment, rather a motion to compel production and compliance with the same. The Court is not persuaded by Plaintiffs’ assertion that said request was a “nullity without force and effect as it was signed by” Defendant Michael J. Tropp, who lacked authority to act on behalf of Defendants as at the time Defendants were represented by counsel. Clearly, Justice Levine’s August 2, 2019 Decision issued a stay of the proceeding for six months and directing Defendants to be prepared to proceed pro se or by counsel. At oral argument on January 18, 2023, the Court denied Defendants’ motion with leave to file a motion to compel discovery. This Court finds there were substantive issues barring summary judgment for Defendants based on the failure to grant an accommodation and alleged selective enforcement and that the alleged failure, if any, to provide discovery was not grounds for summary judgment. The Court Orders Plaintiffs to respond to Mr. Tropp’s discovery request dated October 22, 2022 attached to Exhibit I of the motion for summary judgment within sixty (60) days of when this Decision and Order is provided to the parties. Conclusion: Upon the filing and reading of the Complaint, the Verified Answer, the June 21, 2016 Decision, Defendants’ motion for summary judgment and the submissions in support and opposition thereto, and upon the oral argument held on January 18, 2023, the Court denies Defendants’ motion for summary judgment with leave to file a motion to compel discovery. This constitutes the Decision and Order of this Court. Dated: January 18, 2023
