Preview
FILED: QUEENS COUNTY CLERK 05/25/2018 04:07 PM INDEX NO. 704563/2018
NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/25/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
------------------------------------------------------------------------X
~
SHIKHA AKTER, RAFIQUL BHUIYON, ROCKSHANA
BEGUM, FRANCES HOLLAND, MD. ATAUL HOQUE, Index No.: 704563/2018
ANWAR HOSSAIN, MIRBAHAR JAHANGIR
MD. ASSADUZZAMAN ALI-
HOSSAIN, KHAN,
~ ~
ASHRAF LODI, NURUN NAHAR, MOSAMMAT
MAZADA, MD SHAMIMUR RAHMAN, MD SYFUR
RAHMAN, MARIA VELASQUEZ, AND S.M. ZAMAN,
Plaintiffs,
-against-
ZARA REALTY HOLDING CORP., HILLSIDE PARK
168, LLC, AND ANTHONY SUBRAJ,
Defendants.
~~~~~~~ ~
------------------------------------------------------------------------X
MEMORANDUM OF LAW OF ZARA REALTY HOLDING CORP.
a a~
AND me r
HILLSIDE
ornr, a a axr
PARK w ro v r
LLC
n re
IN
nraanorvrnar
OPPOSITION
168,
PLAINTIFFS'
TO MOTION FOR LEAVE TO REARGUE THE MOTION TO DISMISS
PLAINTIFFS'
SECOND AND THIRD CAUSES OF ACTION
WOOD SMITH HENNING & BERMAN LLP
Michelle Arbitrio, Esq.
Christopher J. Seusing, Esq.
Leah A. Henry, Esq.
Attorneys for Defendants
ZARA REALTY HOLDING CORP. and
HILLSIDE PARK 168, LLC
18th
685 Third Avenue, 18 Floor
New York, NY 10017
(212) 999-7100
MArbitrio@wshblaw.com
CSeusing@wshblaw.com
LHenry@wshblaw.com
LEGAL:10916-0009/9207933.1
LEGAL:109164009/9207933.1
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PRELIMINARY STATEMENT
Plaintiffs'
Plaintiffs seek leave to reargue this Court's dismissal of the Second and Third
precedent"
Causes of Action by claiming that the Court "overlooked binding and did not "accurately
read" Plaintiffs'
allegations. However, in the Court's 12 page Order, this Court thoroughly recited
Plaintiffs'
the allegations as contained in the Amended Complaint which was appended to the
Motion to Dismiss, and relied on Second Department case law and supporting case law from other
departments as appropriate. Simply put, this Court did not overlook or misapprehend anything in
Plaintiffs' Plaintiffs'
Complaint or the original Motion to Dismiss when itdismissed Second Cause
of Action of the General Business Laws § 249 and the Third Cause of Action for Harassment.
Plaintiffs are seeking to once again argue matters already thoughtfully decided by this Court. See
(1"
Maginev.Keller, 182 A.D.2d 476 Dep't 2009) ("A motion to reargue, addressed to the discretion
of the court, is designed to afford a party an opportunity to establish that the court overlooked or
misapprehended the relevant facts or misapplied any controlling principles of law.Itspurposeisnot
to serve as a vehicle to permit the unsuccessful party to argue once again the very questions
previously decided [emphasis added]."). Accordingly, Defendants respectfully request that this
Plaintiffs' Plaintiffs'
Court deny Motion for Leave to Reargue the Motion to Dismiss Second and
Third Causes of Action.
ARGUMENT
L The Court properly relied on Second Department Appellate Division and
Plaintiffs'
Court of Appeals precedent in dismissing GBL §349 claim and
correctly decided that GBL §349 is inapplicable in this instant matter
pursuant to Second Department Appellate Division case law.
Plaintiffs'
argument that the Court improperly relied on First Department case law when it
Plaintiffs' Plaintiffs'
dismissed General Business Law § 349 claim is without merit. argument is
unsupported and misleading because the Court overwhelmingly relied on Second Department and
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Plaintiffs'
Court of Appeals precedent in its Order. counsel contends that the Court's citation to the
(13
First Department cases of Aguaiza v. Vantage Properties, LLC, 69 A.D.3d 422, 893 N.Y.S.2d 19
Dep't 2010) and Jagger v. Katz Park Ave. Corp., 33 Misc.3d 139(a)(Table), 2011 WL 586524 (N.Y.
1"
Sup.App. Term, 1steep't 2011) was improper because "in doing so, the Court overlooked Appellate
precedent."
Division, Second Department See Plaintiff s Memorandum of Law in Support of
Plaintiffs' Plaintiffs'
Motion for Leave to Reargue the Motion to Dismiss Second and Third Cause of
Action.
Plaintiffs'
counsel fails to acknowledge that this Court only relied on these cases to explain
large"
the meaning and application of "consumer-oriented conduct aimed at the public at language
within GBL §349. Directly preceding the Court's citation to First Department case law, the Court
cited exclusively to Second Department and New York Court of Appeals precedent. See Order of
Hon. Thomas D. Raffaele dated October 2, 2017 attached to the Affirmation of Christopher J.
Seusing as Exhibit A citing Meachum v. Outdoor World Corp., 235 A.D.2d 462 (2d Dep't 1997);
Laborers'
Karlin v. IVF America, Inc., 93 N.Y.2d 282 (N.Y. 1999); Oswego Local 214 Pension
Fund v. Marine Midland Bank, 85 N.Y.2d 20 (N.Y. 1995); Andre Strishak & Assocs., P.C. v.
Hewlett Packard Co., 300 A.D.2d 608 (2d Dep't 2002); Yellow Book Sales and Distribution Co., Inc.
v. Hillside Van Lines, Inc., 98 A.D.3d 663 (2d Dep't 2012); Canario v. Gunn, 300 A.D.2d 332 (2d
Plaintiffs'
Dep't 2002). As noted by counsel, under the principle of stare decisis New York trial
courts are bound by the precedent set by the Court of Appeals or the department in which the court
sits.Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d
.A.D.2d 663, 665 (2d Dep't 1984).
Plaintiffs' precedent"
Further, contention that this Court overlooked "binding in the Second
Department iswithout merit. In support of this claim, Plaintiffs cite to David v. #1 Mktg. Serv., Inc.,,
plaintiffs'
in which the Second Department reinstated GBL §349 claim regarding unlawful deceptive
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acts and practices in the conduct of business. See 113 A.D.3d 810, 811 (2d Dep't 2014). In that case,
plaintiffs were current and former residents of three-quarter houses operated by the defendants. Id. In
utilizing this case, Plaintiffs incorrectly argue that the Court reversed the dismissal of the claim
because plaintiffs as tenants, were consumers for the purpose of establishing a GBL § 349 claim and
the defendant landlords could be held liable for transactions relating to housing. However, the Court
tenants,"
did not make such a holding, instead finding that "the plaintiffs are licensees, rather than
and were not entitled to the protections of the Rent Stabilization Code. Id. at 811 (emphasis added).
Additionally, the conduct alleged against the defendants in thatcase in purported violation of
houses."
GBL §349 was their "recruit[ment] [of] plaintiffs to move into the three-quarter houses."Id. at 812.
That case dealt with the licensor-licensee relationship, not the landlord tenant relationship at issue in
this matter, and analyzed conduct regarding recruitment into housing, and not purported improper
Plaintiffs'
lease provisions at issue in this matter. Thus, Plaintiffs argument here is unavailing and directly
conflicts with controlling Second Department case law discussed above. Accordingly, this Court did
precedent," Plaintiffs'
not overlook "binding and GBL § 349 claim was properly dismissed because
their disputes merely relates to a private contractual relationship between parties as landlord and
tenant. See Meachum v. Outdoor World Corp., 235 A.D.2d 462 (2d Dep't 1997); Karlin v. IVF
Laborers'
America, Inc., 93 N.Y.2d 282 (N.Y. 1999); Oswego Local 214 Pension Fund v. Marine
Midland Bank, 85 N.Y.2d 20 (N.Y. 1995); Andre Strishak & Assocs., P.C. v. Hewlett Packard Co.,
300 A.D.2d 608 (2d Dep't 2002); Yellow Book Sales and Distribution Co., Inc. v.Hillside Van Lines,
Inc., 98 A.D.3d 663 (2d Dep't 2012); Canario v. Gunn, 300 A.D.2d 332 (2d Dep't 2002).
Where there is no direct conflict between case law in different departments, the Court may
properly look to other departments for guidance on specific legal issues. Here, Plaintiffs have failed
to identify a direct conflict between the First Department's holding in Aguaiza and any Second
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Department case on point. In fact,no Second Department case holds that the dispute over lease terms
between and landlord and tenant is consumer-facing conduct required for GBL §349 as improperly
alleged by Plaintiffs. Rather, Second Department case law interpreting the scope of GBL §349
consistently holds that disputes in private relationships will not fall within the statute. See Oswego
Laborers'
Local 214 Pension Fund v.Marine Midland Bank, 85 N.Y.2d 20 (N.Y. 1995)(denying the
plaintiff Union Fund's motion for summary judgment because there was a question as to whether the
defendant bank's conduct violated GBL §349) ; Andre Strishak & Assocs., P.C. v. Hewlett Packard
plaintiffs'
Co., 300 A.D.2d 608 (2d Dep't 2002)(upholding the dismissal of the class action GBL
§349 claim because they failed to establish that the defendant printing manufacturer engaged in a
deceptive consumer-oriented act or practice resulting in injury to the customer plaintiffs) ; Yellow
Book Sales and Distribution Co., Inc. v. Hillside Van Lines, Inc., 98 A.D.3d 663 (2d Dep't
2012)(dismissing defendant transportation company's GBL 349 claim against the defendant
advertising company because "private contractual disputes which are unique to the parties do not fall
within the ambit of the statute") ; Canario v. Gunn, 300 A.D.2d 332 (2d Dep't 2002)(dismissing
property purchaser plaintiff s GBL §349 claim against the defendant real estate agent because "the
misrepresentation had the potential to affect only a single real estate transaction involving a single
property"
unique piece of and there was no impact on the public at large). Additionally, case law in
Defendants'
other departments specifically on point, support argument here. See Needham v
Migdal2 Mgt. 2010, LLC, 2016 N.Y. Misc. LEXIS 2452, 5-6 (N.Y. Sup. Ct. July 5, 2016)
("
s allegations are asserted as only a private dispute between tenant and landlord... "and not
consumer-oriented conduct aimed at the public at large, as required by the statute.); Oshy v Koufa
Realty Corp., 35 Misc. 3d 1207(A) (N.Y. Sup. Ct. 2012) ("Gen Bus Law section 349 is said to only
apply to consumer-oriented conduct aimed at the public at large, and not to apply to private disputes
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between landlords and tenants."); Jagger v Katz Park Ave. Corp., 33 Misc. 3d 139(A) (N.Y. App.
Term 2011) (plaintiff "presented only [a] private dispute[] between landlords and tenants, and not
large"
consumer-oriented conduct aimed at the public at large").
Plaintiffs'
This Court, in dismissing Plaintiffs GBL § 349 claims, relied on appropriate case law and
acted within itsdiscretion to dismiss the cause of action. Plaintiffs have failed to show that thisCourt
Plaintiffs'
improperly applied the law or exceedingly exercised itsdiscretion when itdismissed GBL
Plaintiffs'
§ 349 claims. Accordingly, Plaintiffs Motion for Leave to Reargue this second cause of action
should be denied.
IL The Court properly concluded that the Amended Complaint insufficiently alleged
harassment under Local Law 7 of 2008 N.Y.C. Administrative Code § 27-2005(d) because
Plaintiffs'
third cause of action does not adequately allege repeated acts of wrongful
conduct as required in that code.
Plaintiffs claim that the Court improperly dismissed their third cause of action is without
Plaintiffs'
merit because itcontinues to demonstrate continuous misapplication of the law. Plaintiffs
"repeated"
argue that all of their claims should be considered in the aggregate and thus satisfy the
requirement under the harassment statute. New York City Administrative Code §27-2004 provides
that owners of a rental unit shall not engage in harassment against any tenants, and defines
"harassment"
as "any act or omission by or on behalf of an owner that (i) causes or is intended to
occupancy"
cause [any tenant] to surrender or waive any rights in relation to such and includes... "g.
other repeated acts or omissions ofsuch significance as to substantially interfere with or disturb the
"
comfort, peace, or quiet any [tenant] to surrender or waive any rights related to such occupancy
[emphasis added]. New York Administrative Code §27- 2004(a)(48).
City
Plaintiffs' Plaintiffs'
In Memorandum of Law in Support of Motion for Leave to Argue,
misconduct."
Plaintiffs contends that "[O]verall, there are eight different types of landlord See
Plaintiffs'
Plaintiff s Memorandum of Law in Support of Motion for Leave to Reargue the Motion to
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Plaintiffs'
Dismiss Second and Third Cause of Action. Plaintiffs then identify a specific number of
Plaintiffs who pled particular forms of alleged harassment - to the allegations in the
by citing
Amended Complaint - in an apparent attempt to restate the alleged harm on behalf of allPlaintiffs.
Plaintiffs claim that they each individually pled multiple forms of harassment and that the Court
" added]."
misread the factual allegations in the amended complaint [emphasis See Plaintiff's
Plaintiffs'
Memorandum of Law. However, statement is unsupported. At the time of entering the
Order, the Court was well aware of the allegations pled by each as the Amended Complaint
was submitted as an exhibit to the Motion to Dismiss. In fact, this Court thoroughly recited
Plaintiffs'
allegations in its 12 page order, devoting 2 pages of the Order to detailing Plaintiffs
Plaintiffs'
specific claims. See Exhibit A. Inexplicably, Plaintiffs argument is premised upon the assumption
that this Court overlooked the Amended Complaint - the operative in this matter - when in
pleading
fact the Court accurately recited the Amended Complaint in detail in the Order itself. Id.
Further, Plaintiffs curiously rely on Aguaiza v. Vantage Properties, LLC, 69 A.D.3d 422, 893
(1"
N.Y.S.2d 19 Dep't 2010) to support their argument that the Court incorrectly dismissed the
harassment claims, despite simultaneously arguing that itwas improper for the Court to rely on that
Plaintiffs' can'
same case to dismiss second cause of action as discussed at length above. Plaintiffs can't
have itboth ways; either this Court can rely on the Aguaiza case or it cannot. Their contradictory
positions reflect a clear lack of legal support for the instant motion which appears to have been filed
pro forma while they perfect their appeal of this Court's Order to the Appellate Division.
Plaintiffs also argue that this Court mistakenly interpreted the Santo v. Rose Associates, Inc.
decision when the Order stated "[t]he third cause of action is inadequate because it alleges
tenants.'"
harassment as 'part of a bigger plan, scheme, and campaign to intimidate rent stabilized
See Exhibit A citing 28 Misc3d 1225(A), 958 N.Y.S.2d 310 (Table) (N.Y. Sup. Ct. 2010). However,
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Plaintiffs'
the Court correctly cited to that case, and Plaintiffs argument to the contrary is simply a red herring.
Plaintiffs argue that the Santo plaintiffs were allmembers of a single household and thus, could only
allege a single act of harassment, whereas here, Plaintiffs claim they sufficiently pleaded "repeated
acts" Plaintiffs'
because allof the named plaintiffs can show some form of harassment. argument is
without inadequate support because itmisinterprets the law as laid out in Santo. The Santo court
expressly stated that subdivision g of § 27-2004(a)(48) requires that the repeated acts be directed at
the particular person and that the statute "contemplates the aggregation of harassment instances
tenant."
directed ate single particular tenant Santo 958 N.Y.S.2d at *3 [emphasis added]. This Court, in
Plaintiffs'
dismissing Plaintiffs Local Law 7 claims, relied on appropriate case law and acted within its
Plaintiffs' Plaintiffs'
discretion to dismiss Plaintiffs third cause of action. Accordingly, Plaintiffs Motion for Leave to
Reargue this cause of action should be denied.
Even ifthis Court were to permit Plaintiffs leave to re-argue the dismissal of their harassment
claims, itis important to reiterate that the code provision under which Plaintiffs have asserted their
harassment claims, NYC Administrative Code 27-2120(b), dictates that such a claim be considered
by the housing part of the civil court. Specifically, that code provides that
Any tenant, or person or group of persons lawfully entitled to occupancy may individually or
jointly apply to the housing part of the civil court for an order restraining the owner of the
property from engaging in harassment. Except for an order on consent, such order may be
granted upon or subsequent to a determination that a violation of subdivision d of section 27-
2005 of this chapter has occurred.
CONCLUSION
Plaintiffs'
WHEREFORE, Defendants respectfully submit that the Motion for Leave to
Plaintiffs'
Reargue the Motion to Dismiss Second and Third Cause of Action should be denied as
Plaintiffs have failed to identify anything that this Court overlooked or misinterpreted in dismissing
Plaintiffs'
Second and Thirds Causes of Action.
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Dated: New York, NY
May 25, 2018
Respectfully submitted,
WOOD SMITH HENNING & BERMAN LLP
By:
Michelle Arbitrio, Esq.
Christopher J. Seusing, Esq.
Leah A. Henry, Esq.
Attorneys for Defendants
ZARA REALTY HOLDING CORP. and
HILLSIDE PARK 168, LLC
18th
685 Third Avenue, Floor
New York, NY 10017
(212) 999-7100
MArbitrio@wshblaw.com
CSeusing@wshblaw.com
LHenry@wshblaw.com
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Preview
FILED: QUEENS COUNTY CLERK 05/25/2018 04:07 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/25/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------------------------------------X ~ SHIKHA AKTER, RAFIQUL BHUIYON, ROCKSHANA BEGUM, FRANCES HOLLAND, MD. ATAUL HOQUE, Index No.: 704563/2018 ANWAR HOSSAIN, MIRBAHAR JAHANGIR MD. ASSADUZZAMAN ALI- HOSSAIN, KHAN, ~ ~ ASHRAF LODI, NURUN NAHAR, MOSAMMAT MAZADA, MD SHAMIMUR RAHMAN, MD SYFUR RAHMAN, MARIA VELASQUEZ, AND S.M. ZAMAN, Plaintiffs, -against- ZARA REALTY HOLDING CORP., HILLSIDE PARK 168, LLC, AND ANTHONY SUBRAJ, Defendants. ~~~~~~~ ~ ------------------------------------------------------------------------X MEMORANDUM OF LAW OF ZARA REALTY HOLDING CORP. a a~ AND me r HILLSIDE ornr, a a axr PARK w ro v r LLC n re IN nraanorvrnar OPPOSITION 168, PLAINTIFFS' TO MOTION FOR LEAVE TO REARGUE THE MOTION TO DISMISS PLAINTIFFS' SECOND AND THIRD CAUSES OF ACTION WOOD SMITH HENNING & BERMAN LLP Michelle Arbitrio, Esq. Christopher J. Seusing, Esq. Leah A. Henry, Esq. Attorneys for Defendants ZARA REALTY HOLDING CORP. and HILLSIDE PARK 168, LLC 18th 685 Third Avenue, 18 Floor New York, NY 10017 (212) 999-7100 MArbitrio@wshblaw.com CSeusing@wshblaw.com LHenry@wshblaw.com LEGAL:10916-0009/9207933.1 LEGAL:109164009/9207933.1 1 of 9 FILED: QUEENS COUNTY CLERK 05/25/2018 04:07 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/25/2018 PRELIMINARY STATEMENT Plaintiffs' Plaintiffs seek leave to reargue this Court's dismissal of the Second and Third precedent" Causes of Action by claiming that the Court "overlooked binding and did not "accurately read" Plaintiffs' allegations. However, in the Court's 12 page Order, this Court thoroughly recited Plaintiffs' the allegations as contained in the Amended Complaint which was appended to the Motion to Dismiss, and relied on Second Department case law and supporting case law from other departments as appropriate. Simply put, this Court did not overlook or misapprehend anything in Plaintiffs' Plaintiffs' Complaint or the original Motion to Dismiss when itdismissed Second Cause of Action of the General Business Laws § 249 and the Third Cause of Action for Harassment. Plaintiffs are seeking to once again argue matters already thoughtfully decided by this Court. See (1" Maginev.Keller, 182 A.D.2d 476 Dep't 2009) ("A motion to reargue, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts or misapplied any controlling principles of law.Itspurposeisnot to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided [emphasis added]."). Accordingly, Defendants respectfully request that this Plaintiffs' Plaintiffs' Court deny Motion for Leave to Reargue the Motion to Dismiss Second and Third Causes of Action. ARGUMENT L The Court properly relied on Second Department Appellate Division and Plaintiffs' Court of Appeals precedent in dismissing GBL §349 claim and correctly decided that GBL §349 is inapplicable in this instant matter pursuant to Second Department Appellate Division case law. Plaintiffs' argument that the Court improperly relied on First Department case law when it Plaintiffs' Plaintiffs' dismissed General Business Law § 349 claim is without merit. argument is unsupported and misleading because the Court overwhelmingly relied on Second Department and 2 of 9 FILED: QUEENS COUNTY CLERK 05/25/2018 04:07 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/25/2018 Plaintiffs' Court of Appeals precedent in its Order. counsel contends that the Court's citation to the (13 First Department cases of Aguaiza v. Vantage Properties, LLC, 69 A.D.3d 422, 893 N.Y.S.2d 19 Dep't 2010) and Jagger v. Katz Park Ave. Corp., 33 Misc.3d 139(a)(Table), 2011 WL 586524 (N.Y. 1" Sup.App. Term, 1steep't 2011) was improper because "in doing so, the Court overlooked Appellate precedent." Division, Second Department See Plaintiff s Memorandum of Law in Support of Plaintiffs' Plaintiffs' Motion for Leave to Reargue the Motion to Dismiss Second and Third Cause of Action. Plaintiffs' counsel fails to acknowledge that this Court only relied on these cases to explain large" the meaning and application of "consumer-oriented conduct aimed at the public at language within GBL §349. Directly preceding the Court's citation to First Department case law, the Court cited exclusively to Second Department and New York Court of Appeals precedent. See Order of Hon. Thomas D. Raffaele dated October 2, 2017 attached to the Affirmation of Christopher J. Seusing as Exhibit A citing Meachum v. Outdoor World Corp., 235 A.D.2d 462 (2d Dep't 1997); Laborers' Karlin v. IVF America, Inc., 93 N.Y.2d 282 (N.Y. 1999); Oswego Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20 (N.Y. 1995); Andre Strishak & Assocs., P.C. v. Hewlett Packard Co., 300 A.D.2d 608 (2d Dep't 2002); Yellow Book Sales and Distribution Co., Inc. v. Hillside Van Lines, Inc., 98 A.D.3d 663 (2d Dep't 2012); Canario v. Gunn, 300 A.D.2d 332 (2d Plaintiffs' Dep't 2002). As noted by counsel, under the principle of stare decisis New York trial courts are bound by the precedent set by the Court of Appeals or the department in which the court sits.Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d .A.D.2d 663, 665 (2d Dep't 1984). Plaintiffs' precedent" Further, contention that this Court overlooked "binding in the Second Department iswithout merit. In support of this claim, Plaintiffs cite to David v. #1 Mktg. Serv., Inc.,, plaintiffs' in which the Second Department reinstated GBL §349 claim regarding unlawful deceptive 3 of 9 FILED: QUEENS COUNTY CLERK 05/25/2018 04:07 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/25/2018 acts and practices in the conduct of business. See 113 A.D.3d 810, 811 (2d Dep't 2014). In that case, plaintiffs were current and former residents of three-quarter houses operated by the defendants. Id. In utilizing this case, Plaintiffs incorrectly argue that the Court reversed the dismissal of the claim because plaintiffs as tenants, were consumers for the purpose of establishing a GBL § 349 claim and the defendant landlords could be held liable for transactions relating to housing. However, the Court tenants," did not make such a holding, instead finding that "the plaintiffs are licensees, rather than and were not entitled to the protections of the Rent Stabilization Code. Id. at 811 (emphasis added). Additionally, the conduct alleged against the defendants in thatcase in purported violation of houses." GBL §349 was their "recruit[ment] [of] plaintiffs to move into the three-quarter houses."Id. at 812. That case dealt with the licensor-licensee relationship, not the landlord tenant relationship at issue in this matter, and analyzed conduct regarding recruitment into housing, and not purported improper Plaintiffs' lease provisions at issue in this matter. Thus, Plaintiffs argument here is unavailing and directly conflicts with controlling Second Department case law discussed above. Accordingly, this Court did precedent," Plaintiffs' not overlook "binding and GBL § 349 claim was properly dismissed because their disputes merely relates to a private contractual relationship between parties as landlord and tenant. See Meachum v. Outdoor World Corp., 235 A.D.2d 462 (2d Dep't 1997); Karlin v. IVF Laborers' America, Inc., 93 N.Y.2d 282 (N.Y. 1999); Oswego Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20 (N.Y. 1995); Andre Strishak & Assocs., P.C. v. Hewlett Packard Co., 300 A.D.2d 608 (2d Dep't 2002); Yellow Book Sales and Distribution Co., Inc. v.Hillside Van Lines, Inc., 98 A.D.3d 663 (2d Dep't 2012); Canario v. Gunn, 300 A.D.2d 332 (2d Dep't 2002). Where there is no direct conflict between case law in different departments, the Court may properly look to other departments for guidance on specific legal issues. Here, Plaintiffs have failed to identify a direct conflict between the First Department's holding in Aguaiza and any Second 4 of 9 FILED: QUEENS COUNTY CLERK 05/25/2018 04:07 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/25/2018 Department case on point. In fact,no Second Department case holds that the dispute over lease terms between and landlord and tenant is consumer-facing conduct required for GBL §349 as improperly alleged by Plaintiffs. Rather, Second Department case law interpreting the scope of GBL §349 consistently holds that disputes in private relationships will not fall within the statute. See Oswego Laborers' Local 214 Pension Fund v.Marine Midland Bank, 85 N.Y.2d 20 (N.Y. 1995)(denying the plaintiff Union Fund's motion for summary judgment because there was a question as to whether the defendant bank's conduct violated GBL §349) ; Andre Strishak & Assocs., P.C. v. Hewlett Packard plaintiffs' Co., 300 A.D.2d 608 (2d Dep't 2002)(upholding the dismissal of the class action GBL §349 claim because they failed to establish that the defendant printing manufacturer engaged in a deceptive consumer-oriented act or practice resulting in injury to the customer plaintiffs) ; Yellow Book Sales and Distribution Co., Inc. v. Hillside Van Lines, Inc., 98 A.D.3d 663 (2d Dep't 2012)(dismissing defendant transportation company's GBL 349 claim against the defendant advertising company because "private contractual disputes which are unique to the parties do not fall within the ambit of the statute") ; Canario v. Gunn, 300 A.D.2d 332 (2d Dep't 2002)(dismissing property purchaser plaintiff s GBL §349 claim against the defendant real estate agent because "the misrepresentation had the potential to affect only a single real estate transaction involving a single property" unique piece of and there was no impact on the public at large). Additionally, case law in Defendants' other departments specifically on point, support argument here. See Needham v Migdal2 Mgt. 2010, LLC, 2016 N.Y. Misc. LEXIS 2452, 5-6 (N.Y. Sup. Ct. July 5, 2016) (" s allegations are asserted as only a private dispute between tenant and landlord... "and not consumer-oriented conduct aimed at the public at large, as required by the statute.); Oshy v Koufa Realty Corp., 35 Misc. 3d 1207(A) (N.Y. Sup. Ct. 2012) ("Gen Bus Law section 349 is said to only apply to consumer-oriented conduct aimed at the public at large, and not to apply to private disputes 5 of 9 FILED: QUEENS COUNTY CLERK 05/25/2018 04:07 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/25/2018 between landlords and tenants."); Jagger v Katz Park Ave. Corp., 33 Misc. 3d 139(A) (N.Y. App. Term 2011) (plaintiff "presented only [a] private dispute[] between landlords and tenants, and not large" consumer-oriented conduct aimed at the public at large"). Plaintiffs' This Court, in dismissing Plaintiffs GBL § 349 claims, relied on appropriate case law and acted within itsdiscretion to dismiss the cause of action. Plaintiffs have failed to show that thisCourt Plaintiffs' improperly applied the law or exceedingly exercised itsdiscretion when itdismissed GBL Plaintiffs' § 349 claims. Accordingly, Plaintiffs Motion for Leave to Reargue this second cause of action should be denied. IL The Court properly concluded that the Amended Complaint insufficiently alleged harassment under Local Law 7 of 2008 N.Y.C. Administrative Code § 27-2005(d) because Plaintiffs' third cause of action does not adequately allege repeated acts of wrongful conduct as required in that code. Plaintiffs claim that the Court improperly dismissed their third cause of action is without Plaintiffs' merit because itcontinues to demonstrate continuous misapplication of the law. Plaintiffs "repeated" argue that all of their claims should be considered in the aggregate and thus satisfy the requirement under the harassment statute. New York City Administrative Code §27-2004 provides that owners of a rental unit shall not engage in harassment against any tenants, and defines "harassment" as "any act or omission by or on behalf of an owner that (i) causes or is intended to occupancy" cause [any tenant] to surrender or waive any rights in relation to such and includes... "g. other repeated acts or omissions ofsuch significance as to substantially interfere with or disturb the " comfort, peace, or quiet any [tenant] to surrender or waive any rights related to such occupancy [emphasis added]. New York Administrative Code §27- 2004(a)(48). City Plaintiffs' Plaintiffs' In Memorandum of Law in Support of Motion for Leave to Argue, misconduct." Plaintiffs contends that "[O]verall, there are eight different types of landlord See Plaintiffs' Plaintiff s Memorandum of Law in Support of Motion for Leave to Reargue the Motion to 6 of 9 FILED: QUEENS COUNTY CLERK 05/25/2018 04:07 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/25/2018 Plaintiffs' Dismiss Second and Third Cause of Action. Plaintiffs then identify a specific number of Plaintiffs who pled particular forms of alleged harassment - to the allegations in the by citing Amended Complaint - in an apparent attempt to restate the alleged harm on behalf of allPlaintiffs. Plaintiffs claim that they each individually pled multiple forms of harassment and that the Court " added]." misread the factual allegations in the amended complaint [emphasis See Plaintiff's Plaintiffs' Memorandum of Law. However, statement is unsupported. At the time of entering the Order, the Court was well aware of the allegations pled by each as the Amended Complaint was submitted as an exhibit to the Motion to Dismiss. In fact, this Court thoroughly recited Plaintiffs' allegations in its 12 page order, devoting 2 pages of the Order to detailing Plaintiffs Plaintiffs' specific claims. See Exhibit A. Inexplicably, Plaintiffs argument is premised upon the assumption that this Court overlooked the Amended Complaint - the operative in this matter - when in pleading fact the Court accurately recited the Amended Complaint in detail in the Order itself. Id. Further, Plaintiffs curiously rely on Aguaiza v. Vantage Properties, LLC, 69 A.D.3d 422, 893 (1" N.Y.S.2d 19 Dep't 2010) to support their argument that the Court incorrectly dismissed the harassment claims, despite simultaneously arguing that itwas improper for the Court to rely on that Plaintiffs' can' same case to dismiss second cause of action as discussed at length above. Plaintiffs can't have itboth ways; either this Court can rely on the Aguaiza case or it cannot. Their contradictory positions reflect a clear lack of legal support for the instant motion which appears to have been filed pro forma while they perfect their appeal of this Court's Order to the Appellate Division. Plaintiffs also argue that this Court mistakenly interpreted the Santo v. Rose Associates, Inc. decision when the Order stated "[t]he third cause of action is inadequate because it alleges tenants.'" harassment as 'part of a bigger plan, scheme, and campaign to intimidate rent stabilized See Exhibit A citing 28 Misc3d 1225(A), 958 N.Y.S.2d 310 (Table) (N.Y. Sup. Ct. 2010). However, 7 of 9 FILED: QUEENS COUNTY CLERK 05/25/2018 04:07 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/25/2018 Plaintiffs' the Court correctly cited to that case, and Plaintiffs argument to the contrary is simply a red herring. Plaintiffs argue that the Santo plaintiffs were allmembers of a single household and thus, could only allege a single act of harassment, whereas here, Plaintiffs claim they sufficiently pleaded "repeated acts" Plaintiffs' because allof the named plaintiffs can show some form of harassment. argument is without inadequate support because itmisinterprets the law as laid out in Santo. The Santo court expressly stated that subdivision g of § 27-2004(a)(48) requires that the repeated acts be directed at the particular person and that the statute "contemplates the aggregation of harassment instances tenant." directed ate single particular tenant Santo 958 N.Y.S.2d at *3 [emphasis added]. This Court, in Plaintiffs' dismissing Plaintiffs Local Law 7 claims, relied on appropriate case law and acted within its Plaintiffs' Plaintiffs' discretion to dismiss Plaintiffs third cause of action. Accordingly, Plaintiffs Motion for Leave to Reargue this cause of action should be denied. Even ifthis Court were to permit Plaintiffs leave to re-argue the dismissal of their harassment claims, itis important to reiterate that the code provision under which Plaintiffs have asserted their harassment claims, NYC Administrative Code 27-2120(b), dictates that such a claim be considered by the housing part of the civil court. Specifically, that code provides that Any tenant, or person or group of persons lawfully entitled to occupancy may individually or jointly apply to the housing part of the civil court for an order restraining the owner of the property from engaging in harassment. Except for an order on consent, such order may be granted upon or subsequent to a determination that a violation of subdivision d of section 27- 2005 of this chapter has occurred. CONCLUSION Plaintiffs' WHEREFORE, Defendants respectfully submit that the Motion for Leave to Plaintiffs' Reargue the Motion to Dismiss Second and Third Cause of Action should be denied as Plaintiffs have failed to identify anything that this Court overlooked or misinterpreted in dismissing Plaintiffs' Second and Thirds Causes of Action. 8 of 9 FILED: QUEENS COUNTY CLERK 05/25/2018 04:07 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/25/2018 Dated: New York, NY May 25, 2018 Respectfully submitted, WOOD SMITH HENNING & BERMAN LLP By: Michelle Arbitrio, Esq. Christopher J. Seusing, Esq. Leah A. Henry, Esq. Attorneys for Defendants ZARA REALTY HOLDING CORP. and HILLSIDE PARK 168, LLC 18th 685 Third Avenue, Floor New York, NY 10017 (212) 999-7100 MArbitrio@wshblaw.com CSeusing@wshblaw.com LHenry@wshblaw.com 9 of 9