BACKGROUNDThis HP Proceeding was commencedby RON RIVELLINI (Petitioner) the occupant of of the 2ND Floor at 17 Leonard Street, New York, New York, 10013 (Subject Premises) againstCHRISTOPHER ROLF(Respondent) the owner of the Subject Building and NYC DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT (DHPD), DEPARTMENT OF BUILDINGS (DOB) and NYC LOFT BOARD (LB)seeking an order directing Respondent to repair the Subject Premises, restore electrical and water service, and correct all violations of the Housing Maintenance Code (HMC), Building Code and the LB rules and for related relief.

PROCEDURAL HISTORY

Petitioner commenced this proceeding by Order To Show Cause initially returnable on December 20, 2013. The petition alleges that Petitioner is the residential tenant of record of the Subject Premises, that he has a pending application for coverage under the Loft Law pending at LB, and that the Subject Building is an Interim Multiple Dwelling (IMD). The petition further asserts that on December 6, 2013, DOB issued a full vacate order for the Subject Building due to a crack in the exterior wall, and that there existed 12 outstanding ECB violations and three "active" DOB violations against the Subject Building. The petition further asserts that Con Ed has terminated electrical service to the Subject Building and that the City has terminated water service.

Petitioner asserts that these conditions constitute violations of MDL § 282-a, 29 RCNY § 2-04(b)(1) and that Petitioner is entitled to an order to correct and related relief.

On the initial return date, Respondent appeared by counsel and the proceeding was adjourned to January 24, 2014. Respondent was to serve an answer and any motion responsive to the initial pleading by January 17, 2014. Respondent did serve and file a written answer asserting five affirmative defenses. The answer asserts that Petitioner is not a residential tenant of record of the Subject Premises, and that Petitioner was only permitted to occupy a room in the front portion of the Subject Premises for office and storage purposes, and only as an incident to Petitioner's employment by Respondent. The answer further asserts that at the time Petitioner was permitted said occupancy the Subject Premises had no bathroom, kitchen, or heating facilities, and that Petitioner only recently took occupancy of the balance of the Subject Premises, without Respondent's consent in an attempt to manufacture a claim of being a protected tenant under the Loft Law.

The Answer further asserted that MDL § 282-a(2) is not applicable to this proceeding and that Respondent was not the cause of anything that required Petitioner to vacate the Subject Premises, and that the vacate order was issued to due the negligence of the owner of a neighboring building, who's actions compromised the integrity of the Subject Building. [*2]

Corporation Counsel appeared on behalf of DOB and LB. The court set an initial trial date for February 26, 2014.

On February 26, 2014, DOB and LB moved for an order dismissing the proceeding as against them. On March 14, 2014, Respondent moved fore a protective order striking portions of the February 21, 2014 Notice to Admit served on behalf of Petitioner, and seeking to limit the issues at trial in this proceeding to the determination of Petitioner's rights under § 282-a(2) of the MDL.

On March 14, 2014, the court heard limited oral argument on the pending motions and reserved decision. The motions are consolidated herein for disposition.

MOTION BY DOB AND LB FOR DISMISSAL

DOB and LB move for dismissal on three points, that the relief Petitioner seeks as against these agencies, must be sought in the context of an Article 78 proceeding, that the court lacks subject matter jurisdiction because the relief sought should be sought in an Article 78 proceeding, and that Petitioner's pleading fails to state a cause of action as against these agencies.

The motion to dismiss is denied. Petitioner is not seeking mandamus relief or relief more appropriately sought in an Article 78 proceeding. Petitioner does not seek in his pleadings to overturn an decision by DOB to issue or fail to issue violations. Additionally, it is well settled that Housing Court has jurisdiction in an HP proceeding over violations issued by DOB, ECB and to address repairs necessary to have a vacate order rescinded [see eg Tenants of 515 E 12th St v 515 E 12th St 128 Misc 2d 235; Schanzer v Vendome 7 Misc 3d 1018(A); § 110(a) and § 203(k) of the Civil Court Act]. Similarly LB is a proper party subject to the jurisdiction of this court (see eg §§ 110(l) (d) and (c) of the New York City Civil Court Act.

As to the claim that Petitioner fails to state a cause of action as to DOB and LB, read in a light most favorable to Petitioner, the court does not find that the pleading is subject to dismissal at this point. The movant assumes that the relief sought by Petitioner is to compel a discretionary act that these bodies have already considered and refused, however in the context of this pre- answer motion there is no basis for the court to make any such findings.

Based on the forgoing the motion to dismiss the proceeding as to DOB and LB is denied.

MOTION BY RESPONDENT FOR A PROTECTIVE ORDER

Respondent acknowledges in its moving papers that Petitioner has standing to bring the proceeding pursuant to MDL§ 282-a(2). MDL§ 282-a(2) provides that where an occupant has filed an application for coverage and has received a docket number from the Loft Board, it is unlawful for an owner to use interruptions of essential services as a means of forcing the occupant to vacate or surrender his rights. The legislative intent behind the enactment of MDL§ 282-a(2) was to allow occupants with pending applications before the Loft Board to seek relief in Housing Court, where there is an interruption in services, notwithstanding the fact that said occupant has no legal status as a residential tenant (See eg New York Sponsors' Mem, Bill Jacket, 2011 Bill A5375).

However, even if Petitioner were not seeking to pursue a claim under MDL§ 282-a(2), Petitioner would be entitled to maintain this proceeding given it is undisputed by the parties that he has the right to occupy the Subject Premises pending the outcome of the coverage application before the Loft Board [see eg Various Tenants of 515 E. 12th St. 128 Misc 2d 235, 238 holding "tenant" as used in HMC includes any person with a lawful right to occupy the premises; Cruz v [*3]Square Block Assoc, Inc 29 Misc 3d 1207(A) holding occupant in a holdover proceeding still has standing to maintain HP proceeding after issuance of a warrant pending appeal of the underlying judgment]. This court thus need not reach the issue of whether Petitioner is a residential tenant as defined under the loft law, or whether there is a landlord tenant relationship between the parties. All this court need establish for Petitioner to have standing to seek the correction of violations is that he is currently lawfully entitled to occupancy of the Subject Premises, which fact is established by virtue of the pending application for coverage before LB (see also § 283 of the MDL).

Moreover, Petitioner has standing to seek an order to correct the conditions that underlie the vacate order issued by DOB [Farrell v EGA Associates Inc. 9 Misc 3d 1118(A); Civ Ct Act § 110(a); Schanzer v Vendome 9 Misc 3d 1105(A)].

HP proceedings are appropriately commenced by occupants of IMDs seeking to correct violations (In re DHPD 131 Misc 2d 505 functions of loft board do not include enforcement of city housing maintenance code which may be pursued in HP proceeding even where building is an IMD).

Respondent moves for a protective order regarding the notice to admit served by Petitioner because he asserts that the notice seeks admissions which would have a preclusive effect in the pending application before the Loft Board. Respondent's argument to this extent is misplaced. As provided in CPLR § 3123(b) "Any admission made or deemed made, by a party to a request made under this rule is for the purpose of the pending action only and does not constitute an admission by him for any other purpose nor may it be used against him in any other proceeding; and the court, at any time, may allow a party to amend or withdraw any admission on such terms as may be just (emphasis added)." Thus to the extent Respondent seeks a protective order because of his concern that admissions made will be used against him in the pending matter at the Loft Board, that concern is addressed by statute and the motion for a protective order on that basis is denied.

Additionally, CPLR §3123(b) provides that "Any admission shall be subject to all pertinent objections to admissibility which may be interposed at trial." Thus, Respondent can still object based on relevance or any other appropriate objection at trial, even if he makes admissions pursuant to the notice.

However, Respondents are correct that the only function of a notice to admit is "... to expedite the trial by eliminating from contention that which is public knowledge or easily provable and which the party reasonably believes is not in dispute (Taylor v Blair 116 AD2d 204, 207)." The Notice to Admit does appear to go beyond this mandate.

Based on the foregoing, Respondent's motion is for a protective order is granted to the extent of vacating and striking from Petitioner's notice to admit items numbered 5-7, 10, 22-36, and 38.

The balance of the motion seeking an order limiting the issues to be tried in this proceeding to a determination and enforcement of Petitioner's rights under Section 282-a(2) of the MDL is denied.

CONCLUSION

In conclusion, the motion to dismiss by DOB and LB is denied and said parties are directed to serve and file an answer on or before April 8, 2014. Respondent's motion for a [*4]protective order is granted only to the extent set forth above, and otherwise denied. The proceeding is restored to the calendar on April 10, 2014, at 9:30 am for a final pretrial conference and to set a trial date.

This constitutes the decision and order of this court.

Dated: March 25, 2014

New York, NY

____________________

Hon. Sabrina B. Kraus, J.H.C.

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