Civil Court of the City of New York, New York County, August 10, 2022

Manhattan Legal Services (Lelia James and Rebecca Whedon of counsel) for petitioner.

SDK Heiberger, LLP (Eric Kahan of counsel) for 74-78 Post Avenue Heights Assoc. LLC and others, respondents.

Procedural History and Background

This is a Housing Part proceeding commenced by petitioner against respondents after she was vacated, pursuant to a vacate order issued by the Department of Housing Preservation and Development (HPD or the department), from her apartment for a second time when a second devastating fire tore through the subject building less than a year after the first. Petitioner, her husband, and seven children have been relocated from the premises to a temporary shelter at the department's expense. Petitioner seeks an order to correct, civil penalties, and an order requiring the respondent landlord to pay the costs and expenses of relocating petitioner to temporary housing that is more appropriate for her family than the city shelter system.

Respondents have moved to dismiss petitioner's request that the court order respondents to pay relocation costs and expenses. Respondents argue that there is no statutory basis to require a landlord to pay for relocation costs, that case law does not support such an order, and that it is not within this court's equitable jurisdiction as conferred by New York City Civil Court Act § 110 (c) to require respondents to pay for more appropriate housing when HPD has already relocated petitioner as required by law.

Respondents Huang and Santana have moved to have petitioner's claim for civil penalties as against them dismissed. Respondent, George Huang, is an officer of the building registered with HPD, and respondent, Santos Santana, is no longer registered as the managing agent as of July 2022, though it is not disputed that he was the registered managing agent at the time this proceeding was commenced.{**76 Misc 3d at 965}

Petitioner acknowledges that there are no cases that require a landlord to pay for [*2]relocation costs (NY St Cts Elec Filing [NYSCEF] Doc No. 24, petitioner's attorney's affirmation in opp ¶ 40), but argues that the court has the equitable power under New York City Civil Court Act § 110 to require the landlord to do so under the facts and circumstances of this case. Respondents cite to a handful of cases for this proposition which petitioner distinguishes in opposition.

After oral argument held on July 26, 2022, and August 2, 2022, for the following reasons the court finds that the Housing Court is without jurisdiction as a matter of law or equity to order a landlord to pay for relocation costs when a lawful occupant is displaced by a vacate order.

Discussion

Relocation Costs—Cause of Action

Administrative Code of City of NY § 26-301 (1) (a) (v) states in relevant part:

"The commissioner of housing preservation and development shall have the power and it shall be his or her duty:

"(a) To provide and maintain tenant relocation services . . .

"(v) for tenants of any privately owned building where such tenants vacate such building during a period when any law, regulation, order or requirement pertaining to the maintenance or operation of such building or the health, safety and welfare of its occupants requires such occupants to vacate such building.

"Such services may be provided as such commissioner may deem necessary, useful or appropriate for the relocation of such tenants" (emphases added).

Administrative Code § 26-303 establishes a relocation advisory commission: "There shall be a relocation advisory commission composed of fifteen members, who shall be appointed by the mayor."

Administrative Code § 26-304 outlines the relocation advisory commission's powers and duties.

"The relocation advisory commission shall meet at least once a month. It shall be informed by the commissioner of housing preservation and development of, and advise him or her on, matters of procedure{**76 Misc 3d at 966} and policy with respect to the relocation of tenants of real property over which the department has relocation jurisdiction."

Finally, Administrative Code § 26-305 (1) provides that HPD shall seek reimbursement from the owner for relocation costs expended by HPD:

"[T]he department shall be entitled to reimbursement of such expenses from the owner of the building from which such tenants were relocated, if the conditions giving rise to the need for such relocation arose as a result of the negligent or intentional acts of such owner, or as a result of the failure of such owner to maintain or repair such building in accordance with the standards prescribed by the housing maintenance code, building code, health code, or any other applicable law governing such building. The department shall recover such expenses from such owner" (emphases added).

There is no specific provision in either chapter 2, title 26 of the Administrative Code or the Housing Maintenance Code (HMC) (Administrative Code of City of NY, title 27, ch 2) allowing for a tenant to seek reimbursement from the landlord for relocation costs after being displaced by a vacate order. Rather the above-cited sections place the "duty" on HPD to provide what it determines to be "necessary, useful or appropriate" relocation services (Administrative Code § 26-301 [1] [a] [v]); [*3]and Administrative Code § 26-305 provides that HPD shall seek reimbursement from the landlord if it is determined that the vacate order was caused by the landlord's negligence. Thus, the landlord's duty, in turn, is to reimburse HPD if HPD can prove the landlord was at fault. (Administrative Code § 26-305 [1].)

There is one Appellate Term, First Department and two decisions from a court of concurrent jurisdiction that are most often cited for the proposition that a tenant may seek a court order requiring a landlord to pay relocation costs in the context of a vacate order.

In Farber v 535 E. 86th St. Corp. (2002 NY Slip Op 50064[U], *2-4 [App Term, 1st Dept 2002]), the Appellate Term, First Department vacated that part of a trial court's order directing the landlord to pay the "reasonable costs" of relocating cooperative shareholders while repairs were made in their apartment. The court "[did] not find preponderant evidence that such {**76 Misc 3d at 967}relocation [was] required." (Id. at *3.) Where there is a vacate order, it is manifest that relocation is required; and, here, relocation has been provided as required by HPD. It is not clear from the Farber court's decision that the court found a cause of action in the HMC for a tenant to seek relocation costs directly from the landlord. It is only by implication and extension that courts have so found.

There are two cases from courts of concurrent jurisdiction that stand for the proposition that "[CCA 110 (c)] provides the authority for the Housing Part to award relocation expenses in promoting the public's interest." The first is Gonzalez v Kwik Realty LLC (42 Misc 3d 433, 437 [Civ Ct, NY County 2013]). The Gonzalez court specifically found that a request for relocation expenses is a "proper cause of action [against a landlord]" provided by CCA 110 (c), though, again, the record does not demonstrate that relocation costs were actually awarded as against the landlord.

Two years later, the same court issued Revilla v 620 W. 182nd St. Hgts. Assoc. LLC (47 Misc 3d 1211[A], 2015 NY Slip Op 50556[U] [Civ Ct, NY County 2015]). In Revilla the court held that "[i]t is clear that landlords are held accountable for tenant relocation services pursuant to a vacate order under the Administrative Code of the City of New York §§ 26-301(1) (a) (v), 26-305." (Revilla, 2015 NY Slip Op 50556[U], *1.) It is not as clear to this court that such is the case. Moreover, the Revilla court did not actually award relocation expenses, although the parties may have settled upon them.

Citing to three cases—Altz v Lieberson (233 NY 16 [1922]), Farber, and Gonzalez—the Revilla court found that the need for relocation arose out of the landlord's failure to maintain the building in compliance with the HMC; thus, the court found that tenants have a viable claim against a landlord for relocation costs when displaced by a vacate order. For the following reasons, this court, most respectfully, takes a different view.

The Revilla court's reliance on Altz is misplaced. Altz involved the issue of whether a tenant had a cause of action against their landlord to maintain the premises which they occupied. The Court held that a tenant had the right to a habitable premises, and that the right to seek redress for an injury sustained by a falling ceiling within a tenant's own apartment was not restricted to the city or its officers under the Tenement House Law, which limited a tenant's cause of action against a landlord to violations in common areas. The Altz Court found{**76 Misc 3d at 968} that the Tenement House Law had to be interpreted to extend to include relief for a tenement tenant to seek redress from a landlord for necessary repairs inside their residence, thus portending the warranty of habitability, which is implied in every written or oral lease. (See Real Property Law § 235-b; Dan M. Blumenthal, 2021 Supp Practice Commentaries, McKinney's Cons Laws of NY, Real Property Law § 235-b [warranty of habitability] ["In 1922, Justice Benjamin [*4]Cardozo, then of the New York Court of Appeals, interpreted the (then) newly-enacted Tenement House Law and concluded that 'the Legislature must have known that unless repairs in the rooms of the poor were made by the landlord, they would not be made by any one' "].)

Recently, in Sanjurjo v Milio (70 Misc 3d 1224[A], 2021 NY Slip Op 50208[U], *9 [Civ Ct, Bronx County 2021]) the court stated, "[w]hether relocation costs are sufficiently tethered to 'housing standards' is debatable" and the court dismissed petitioner's claim for relocation costs as against the landlord after a vacate order absent allegations of fault in the petition.

In Baer v 400 S. 2nd St. Realties, LP (71 Misc 3d 1125 [Civ Ct, Kings County 2021]), the court analyzed whether the HMC created a cause of action for interim multiple dwelling tenants to sue in Housing Court. In finding that it did not, the court stated:

"As has been observed repeatedly, the Housing Part of the Civil Court of the City of New York was created in 1972 with the purpose to hear 'actions and proceedings involving the enforcement of state and local laws for the establishment and maintenance of housing standards' (NY City Civ Ct Act § 110 [a]; Prometheus Realty Corp. v City of New York, 80 AD3d 206, 209 [1st Dept 2010]). However, while CCA 110 created the court and gave it subject matter jurisdiction to hear various actions and proceedings, it did not create any causes of action for any actions or proceedings." (Id. at 1127.)

Notably, Multiple Dwelling Law § 282-a (2) was amended effective December 1, 2021, to specifically add a cause of action for loft tenants to enforce housing standards (L 2021, ch 639, § 1), thus putting that issue to rest.

CCA 110 (a) gives the Housing Court subject matter jurisdiction to hear "[p]roceedings for the issuance of injunctions and restraining orders or other orders for the enforcement of housing{**76 Misc 3d at 969} standards under such laws" and "[a]ctions and proceedings for the removal of housing violations recorded pursuant to such laws, or for the imposition of such violation or for the stay of any penalty thereunder." (CCA 110 [a] [4], [7] [emphases added].) It is the HMC that supplies the cause of action for HPD or a lawful occupant to seek an order of correction to enforce housing standards. And it is the HMC that provides the cause of action for HPD or a lawful occupant to seek imposition of violations and penalties for the failure to correct such violations. (See Administrative Code § 27-2115.) The HMC does not provide that a tenant may seek redress from a landlord for relocation costs incurred due to a vacate order.

It must be noted that, distinct from Administrative Code § 26-301 (1) (a) (v) that requires HPD to relocate tenants during a vacate order at HPD's expense, is the requirement that the landlord pay for relocation costs during remediation of a lead paint violation if the work "cannot be performed safely." (HMC § 27-2056.11 [a] [1].) The rules "provide for temporary relocation provided by the owner of the occupants of a dwelling or dwelling unit to appropriate housing when work cannot be performed safely." (Id. [emphasis added].) If the drafters of the code wished to specifically place the same duty upon owners under vacate order circumstances, they could have drafted that language or amended the law.

"It is a general rule of construction that omissions in a statute, where the act is clear and explicit in its language, cannot be supplied by construction. A court should not attempt to fill up or cure a casus omissus by supplying what it thinks should have been put there by the lawmakers." (Eastern Paralyzed Veterans Assn. v Metropolitan Transp. Auth., 79 AD2d 516, 517 [1st Dept 1980].)

Moreover, "the failure of the Legislature to include a substantive, significant prescription in a statute is a strong indication that its exclusion was intended." (People v Finnegan, 85 NY2d 53, 58 [1995].) [*5]

This court finds that there is no cause of action in the HMC allowing for a tenant to seek relocation costs directly from the landlord when a tenant is displaced by a vacate order.

This determination is supported by Matter of Cupidon v Donovan (8 Misc 3d 1024[A], 2005 NY Slip Op 51263[U] [Sup Ct, NY County 2005]). In Cupidon, HPD rendered an unwritten decision that petitioner, a tenant of an illegal basement{**76 Misc 3d at 970} apartment, was not entitled to be relocated by HPD to a temporary shelter after the issuance of a vacate order. The tenant brought a CPLR article 78 proceeding to challenge HPD's determination. The Supreme Court annulled HPD's oral determination as violating the plain language of the applicable statute and regulation and remitted to HPD to "provide petitioner with any and all services and assistance it determines to be appropriate and required to be provided to a 'relocatee' pursuant to applicable statute and regulation." (Cupidon, 2005 NY Slip Op 51263[U], *4 [emphasis added].) The Cupidon court based its holding on the plain language of the applicable statute and regulation, and concluded that, as it was not disputed that Keith Cupidon was a rent paying tenant who was a permanent resident of the premises as defined by Administrative Code § 26-301 (1) (a) (v) and former 28 RCNY 18-01 (a) (see also HMC § 27-2004 [a] [8] [a]), he fell under the umbra of displaced persons entitled to relocation when displaced by a vacate order. Cupidon does not stand for the proposition, for which it has sometimes been cited, that a tenant who is displaced by a vacate order is entitled to be relocated by an owner at the owner's expense. Cupidon does, however, stand for the proposition that HPD is the party responsible for relocating tenants and permanent residents displaced by a vacate order as "necessary, useful or appropriate." (Administrative Code § 26-301 [1] [a] [v].)

The Court's Equitable Jurisdiction to Award Relocation Costs

Petitioner argues that, notwithstanding that there is no specific provision in the HMC and, admittedly, no controlling case law that requires a landlord to pay for relocation costs when a lawful occupant is displaced by a vacate order, this court has "broad" equitable powers under CCA 110 (c) "to craft any remedy, procedure, or sanction it deems necessary to preserve and enforce housing standards and promote the public interest." (NYSCEF Doc No. 24, petitioner's attorney's affirmation in opp ¶¶ 29-30 [emphasis omitted].) Petitioner maintains that, while no court has actually required an owner to pay for relocation costs, there are courts that have declined to foreclose the possibility of litigating this claim "in an appropriate case" based on their equitable power under CCA 110. Stating that "[p]etitioner and her seven children, three of whom have disabilities, have twice been forced into cramped shelter quarters, greatly restricting their privacy, autonomy, and{**76 Misc 3d at 971} dignity," petitioner urges that the facts and circumstances of this proceeding suggest that this petitioner's situation presents an appropriate case. (Id. ¶ 33.)

However, the equitable jurisdiction and injunctive powers of the Housing Court are not unlimited. As the Appellate Term cautioned in Broome Realty Assoc. v Sek Wing Eng (182 Misc 2d 917 [App Term, 1st Dept 1999]) when it reversed the lower court, Civil Court's injunctive authority is limited to applications for certain provisional remedies and proceedings for the enforcement of housing standards. Since the enforcement of housing standards was not at issue in that case "the limited injunctive authority of Civil Court did not extend to the matter in dispute." (Id. at 918.)

Nowhere in the code is the term "housing standards" defined. None of the cases cited by petitioner find that relocation is related to housing standards, only that the court has broad equitable powers which may be exercised in certain situations, even though in none of those cases did a judge find the equities to rise to the level of exercising their equitable powers to [*6]actually enjoin the landlord to pay relocation costs.

The most relevant authority regarding the definition of housing standards is provided by Prometheus Realty Corp. v City of New York (80 AD3d 206 [1st Dept 2010]). The Prometheus Court found that the 2007 city council amendment of the HMC to include a cause of action for harassment did not run afoul of the court's jurisdiction under CCA 110 (c) because it relates to housing standards. In so finding, the Prometheus Court opined:

"it is demonstrably untrue that the Housing Maintenance Code has been, until now, strictly limited to governing matters of building structure. Initially, as the motion court observed, the legislative declaration in the Housing Maintenance Code indicates an intent to protect tenants' actual occupancy, as well as the physical condition of the premises, in that it explicitly declares a need to protect tenants in areas of 'health and safety, fire protection, light and ventilation, cleanliness, repair and maintenance, and occupancy in dwellings.' " (Id. at 212.)

The harassment provisions of the HMC survived the challenge mounted by Prometheus Realty because the Court found harassment relates to housing standards, in the same way that{**76 Misc 3d at 972} a nuisance does, and the right to peaceful "occupancy" in a tenant's own home.^[FN1]

"Since such issues as whether a tenant's conduct is objectionable or constitutes a nuisance have already been established to be within the jurisdiction of the Housing Part, and therefore necessarily an issue of 'housing standards,' the equivalent issue of whether a particular landlord's conduct constitutes harassment must similarly be recognized as an issue of 'housing standards' " (id.).

One court recently determined that awarding relocation expenses against a landlord might be within the equitable jurisdiction of the court if it can be proved at trial that the landlord is at fault. (Cardenas v 74-78 Post Ave. Hgts. Assoc. LLC, 2022 NY Slip Op 32939[U], *1-2 [Civ Ct, NY County 2022].)^[FN2] The court stated that it found the holding in Sanjurjo (2021 NY Slip Op 50208[U]) to be persuasive, and while the court agrees with Sanjurjo that "[Housing Court] should, in most circumstances, avoid interfering in [the statutory] scheme," like the Sanjurjo court and the other courts of concurrent jurisdiction, supra, the Cardenas court declined to "rule out an award of relocation expenses against the landlord on equitable grounds, based upon a finding of fault." (Cardenas, 2022 NY Slip Op 32939[U], *2.) However, this court also respectfully disagrees that, even if the tenant alleges that a landlord has been negligent, the element of fault creates equitable grounds to enjoin a landlord to pay relocation costs. This court has already found that relocation under vacate order circumstances is not sufficiently related to housing standards such as to invoke this court's equitable jurisdiction.^[FN3] The Cardenas court {**76 Misc 3d at 973}did [*7]not specifically address the issue of whether relocation to temporary shelter involves housing standards. And the Sanjurjo court recognized that "[w]hether relocation costs are sufficiently tethered to 'housing standards' is debatable." (2021 NY Slip Op 50208[U], *9.)^[FN4]

Generally, a tenant has a right to reoccupy their apartment after a vacate order is issued, but the enforcement mechanisms extant in the HMC are a Housing Part action seeking an order to correct the HMC violations underlying the vacate order, a Housing Part action seeking an award of civil penalties for failure to timely abate those violations, and a motion for contempt for failing to remediate, as required by a court order in that action, the conditions that caused the vacate order. Notably missing from petitioner's recitation of CCA 110 (c) in support of her argument that the court has equitable power to award relocation costs is that this court may recommend or employ any remedy, program, procedure or sanction "authorized by law." (Emphasis added.) To require a landlord to pay relocation costs as a matter of equity would be a remedy or sanction not within the Housing Court's jurisdiction to enforce housing standards. The legislature could amend the statute to provide such a cause of action against the landlord, and it would remain to be seen if, upon a challenge, as in Prometheus, the courts would find that cause of action rationally related to housing standards.

Finally, to the very limited extent that petitioner argues in one paragraph of her attorney's affirmation that ordering relocation costs would promote the public interest, this court does not interpret the words "public interest" as broadly as petitioner urges they should be read. (NYSCEF Doc No. 24, petitioner's attorney's affirmation in opp ¶ 30 ["This authority is broad and stems from the Court's ability to craft any remedy, procedure, or sanction it deems necessary to preserve and enforce housing standards and promote the public interest"].) The court does not have unmitigated injunctive power to promote the public interest in all things. Rather, the court has the ability to employ any remedy that the court believes will further compliance with housing standards, or promote the{**76 Misc 3d at 974} public interest in the enforcement of housing standards. Certainly, it would be in petitioner's best interests for her and her family to be housed somewhere other than a city shelter. However, petitioner's best interests are not paramount to the public interest.

Even so, petitioner is not without a remedy. If petitioner believes that HPD is breaching its duty to provide necessary and appropriate temporary shelter in this situation, she may appeal HPD's determination in an article 78 proceeding. (See Cupidon, 2005 NY Slip Op 51263[U].) If the appellate court agrees with petitioner that HPD must provide alternate housing at its expense, then HPD may seek reimbursement from respondents, and, upon service of a notice of those charges, petitioner may challenge HPD's request for reimbursement on the basis that respondents are not at fault for causing the vacate order.

If this result is undesirable, it is for the legislature to remedy. (Chazon, LLC v Maugenest, 19 NY3d 410, 416 [2012].)

Respondents' Motion to Dismiss Petitioner's Request for Civil Penalties

HMC § 27-2004 (a) (5) states: "The term 'person' as used in subchapters four and five of this code shall include the owner, mortgagee or vendee in possession, assignee [*8]of rents, receiver, executor, trustee, lessee, agent or any other person, firm or corporation directly or indirectly in control of a dwelling." (See also HMC § 27-2004 [a] [45] [defining "owner" in the same way].)

There is no basis to dismiss civil penalties as against the named individuals. In fact, there is nothing preventing petitioner from seeking civil penalties before an order to correct is issued. HMC § 27-2115 (h) (1) provides that

"if there is a notice of violation outstanding respecting the premises in which the lawful occupant or or group of lawful occupants resides . . . the lawful occupant or any group of lawful occupants, may individually or jointly apply to the housing part for an order directing the owner and the department to appear before the court. . . . If the court finds a condition constituting a violation exists, it shall direct the owner to correct the violation and, upon failure to do so within the time set for certifying the correction of such violation pursuant to subdivision (c) of this section, it shall impose a penalty{**76 Misc 3d at 975} in accordance with subdivision (a) of this section." (Emphasis added.)

However, to do so without an order to correct issued by the court directing the owner to lift violations within a statutorily prescribed time period and directing service of the order, petitioner would have to demonstrate proper service by HPD of proper notices of violation as defined by the code. To do that, petitioner would have to subpoena HPD for records pertaining to the notices of violation issued by HPD, their propriety, and service thereof pursuant to HMC § 27-2115 (b) and (c). Because of the time and expense of holding a hearing regarding whether a proper notice of violation was properly served, most petitioners opt to seek from the court an order to correct for which there are few defenses.

Conclusion

Accordingly, it is ordered that respondents' motion to dismiss petitioner's request that the court direct respondent to pay for the costs and expenses of relocating petitioner to alternative, more appropriate housing is granted; and it is further ordered that respondents' motion to dismiss petitioner's claim for civil penalties against Huang and Santana is denied.

"For example, the Housing Part is authorized under Real Property Law § 235-b (1) to determine whether tenants are being 'subjected to any conditions endangering or detrimental to their life, health or safety' . . . [And] [t]he Housing Part is authorized under RPAPL 711 to determine whether a tenant is objectionable so as to entitle the landlord to terminate the lease." (80 AD3d at 210, 211.)