Document for Edward Schumacher, Maribel Schumacher, Carlo-Edoardo Carlon v. Douglas-Worghs Realty Corp., The City Of New York

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                                INDEX       NO.   160811/2021
NYSCEF. DOC.        NO.      47                                                                                  RECEIVED     NYSCEF:       04/20/2022



                                        SUPREME COURT OF THE STATE OF NEW YORK
                                                   NEW YORK COUNTY
               PRESENT:             HON. LESLIE STROTH                                          PART                                       52
                                                                                 Justice
                          _—-.    aan                                                  X                                 160811/2021
                                                                                                INDEX'NO.
                    EDWARD SCHUMACHER, MARIBEL SCHUMACHER,
                                                                                                MOTION DATE               02/09/2022
                CARLO-EDOARDO CAR LON

                                                        Plaintiff,                              MOTION    SEQ.   NO.           001

                                                 -V-

                DOUGLAS-WORGHS              REALTY CORP., THE CITY OF NEW                          DECISION + ORDER ON
                YORK,                                                                                     MOTION
                                                        Defendant.
               -.                                                                      X

               The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 3, 4, 5, 6, 7, 8, 9,
               10, 11, 12, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 45, 46
               were read on this motion to/for                                               INJUNCTIVE RELIEF

                            Upon the foregoing documents, it is ordered that plaintiffs’ order to show cause seeking

           injunctive relief is denied, and defendants’ cross-motion to dismiss the complaint is granted.

           Plaintiffs are the property owners of the buildings abutting 66 and 68 West 119'" Street, New York,

           New York (the subject premises). The subject premises shares a party wal] with the plaintiffs’

           respective properties. Defendants are Douglas-Worghs Realty Corp. (Douglas-Worghs), the owner

           of the subject premises, and the City of New York (the City).

                            Plaintiffs allege in their underlying complaint that defendants have failed to maintain the

           subject premises in contravention of Administrative Code of the City of NY § 28.301.1,' which


           ' Administrative Code § 28.301.1 provides that:

                     All buildings and all parts thereof and all other structures shall be maintained in a safe condition. All
                     service equipment, means of egress, materials, devices, and safeguards that are required in a building
                     by the provisions of this code, the 1968 building code or other applicable laws or rules, or that were
                     required by law when the building was erected, altered, or repaired, shall be maintained in good working
                     condition. Whenever persons engaged in building operations have reason to believe in the course of
                     such operations that any building or other structure is dangerous or unsafe, such person shall forthwith
                     report such belief in writing to the department. The owner shall be responsible at all times to maintain
                     the building and its facilities and all other structures regulated by this code in a safe and code-compliant
               160811/2021 SCHUMACHER, EDWARD ET AL vs. DOUGLAS-WORGHS                     REALTY CORP. ET AL             Page 1 of 5
               Motion No. 001



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            has resulted in damage to plaintiffs’ properties. Specifically, plaintiffs claim that water that has

            pooled in the subject premises has been seeping into the plaintiffs’ basements causing water and

            ancillary damage. In response to the claimed conditions, plaintiffs hired consulting engineers to

            provide a structural assessment of the subject premises. Plaintiff commenced the instant action

            based on the report and recommendations of the consulting engineers. (See Plaintiffs’ Exhibit E,

            Structural Assessment Report).

                      The complaint seeks various declaratory judgments compelling the defendants to perform

            repairs at the subject premises, as well as monetary damages for alleged damage to the subject

            properties. Plaintiffs assert in their complaint that the alleged damage resulted from Douglas-

            Worghs’ failure to maintain the Subject Premises in a safe manner and the City’s failure to inspect

            and repair the subject premises.

                      Plaintiffs bring the, instant order to show cause seeking essentially the same relief as the
                                                                                                              .
           complaint, but request immediate injunctive relief given the alleged emergency resulting from

           ongoing water damage created by the disrepair of defendants’ building and the failure of the

           Department of Buildings (DOB) to issue violations and/or take other action. Douglas-Worghs and

           the City oppose and cross-move to dismiss the complaint for failure to state a cause of action.

                1           Vacate Order

                      After two adjournments on. consent of the parties, the parties appeared for oral argument

           on March 9, 2022. At oral argument, plaintiffs’ attorney emphasized that subject premises is in a

           dangerous state of deterioration and requested that the Court issue an order for repairs to be done.

           Plaintiffs’ counsel also noted, however, that on February            10, 2022, during the pendency          of the

           order to show cause, the DOB issued a full vacate order for the subject premises and ordered a full


                manner and shall comply with the inspection and maintenance requirements of this chapter. (Emphasis
                added).                                   .

            160811/2021 SCHUMACHER,        EDWARD ET AL vs. DOUGLAS-WORGHS    REALTY CORP. ETAL              Page 2 of §
            Motion No. 001



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               engineer’s report to be submitted to DOB. (See DOB Complaints
                                                                           and Violations dated February

               9, 2022 and February 10, 2022, Exhibits B-E to Affirmation in Opposition). The DOB violations

           note the missing and/or compromised roof and windows, the crumbling fagade, interior instability,

           and water damage at the subject premises. (/d.). The violations are assigned to DOB’s Emergency

           Response Team. (See DOB Complaint and Violation dated February 9, 2022, Exhibits B and’D to

           Affirmation in Opposition).

                        Both of defendants’ attorneys represented that their clients are aware of conditions that

           resulted in the vacate order and defendant Douglas-Worghs is in the process of attempting to

           resolve the Violations. Both attorneys also stressed that as the DOB         is now handling the issues

           raised by the defendants, it is premature for this Court to intervene and order injunctive relief, as

           administrative remedies must be exhausted prior to resorting to court intervention. Specifically

           with regard to any imminent risks, the City’s attorney noted that the violations here are not “Class

               1” immediately hazardous violations that would require urgent corrections.

                  Il.        Order to Show Cause for Preliminary. Injunction

                        A party seeking a preliminary injunction bears the heavy burden of proving each of the

           following: (1) the likelihood of its ultimate success on the merits of the underlying petition; (2)

           that it will suffer irreparable injury if the relief is not granted; and (3) that, on balance, the equities

           favor granting the preliminary injunctive relief. State of N.Y. v Fine, 72 NY2d 967, 968-69 (1988);

           W.T. Grant Company v Srogi, 52 NY2d 496, 517 (1981). As further discussed below, plaintiffs

           fail to prove the likelihood of ultimate success on the merits, as no private right of action exists

           under Administrative Code § 28.301.1, nor do plaintiffs demonstrate a right to compel a writ of

           mandamus. Additionally, plaintiffs do not show they will suffer irreparable harm, as the violations




               160811/2021   SCHUMACHER, EDWARD ET AL vs. DousAtWwoRGHS    REALTY CORP. ET AL          Page 3 of 5
FILED:      NEW           YORK     COUNTY       CLERK      04/28/2022         10:29      AM             INDEX     NO.       1o081T/202T
NYSCEF   DOC.     NO.     47                                                                     RECEIVED     NYSCEF:        04/20/2022




            will be adjudicated through the DOB’s normal administrative course, and the DOB                 has not found

            any potential urgent harm. Therefore, plaintiff's order to show cause is denied.

                   Til.        Cross-Motions to Dismiss the Complaint

                          The defendants cross-move to dismiss the complaint on the ground that there is no private

            right of action under Administrative Code of the City of NY § 28.301.1, which requires owners of

            city buildings to maintain their property in a safe condition. Plaintiffs? complaint alleges five

            causes of action, all of which rely on or explicitly reference Administrative Code § 28.301.1, and

            a sixth cause of action for attorneys’ fees.

                          CPLR 3211 (a) (7) provides for dismissal by motion on the ground that the pleading fails

            to state a cause of action. On such a motion, the complaint is to be afforded a liberal construction,

            and the court must accept the facts as alleged as true and provide plaintiff with every favorable

            inference. See Leon v Martinez, 84 NY2d 83, 87 (1994). “However, ‘factual allegations ... that

            consist of bare legal conclusions,           or that are inherently   incredible..:are not entitled to such

            consideration.’”” Mamoon          v Dot Net Inc., 135 AD3d     656, 658 (Ist Dept 2016), citing Leder v

            Spiegel, 31 AD3d 266, 267 (1st Dept 2006).

                          Administrative Code § 28.301.1 does not explicitly provide for a private right of action.

            Moreover, the statute itself provides for the DOB to govern its enforcement. Plaintiffs cite to no

            statute, case law, or legislative history that would fairly imply an intent to create a private right of

            action through Administrative Code of the City of NY § 28.301.1. See Kamins v United Healthcare

            Ins. Co. of New         York,   Inc., 171   AD3d   715, 716 (2d Dept 2019), citing Sheehy        v Big Flats
                                                                                                                  x
            Community Day, 73 NY2d 629, 633 (1989).

                          Additionally, to the extent that the complaint is an improperly asserted plenary action

            seeking a writ of mandamus, plaintiffs have failed to demonstrate their entitlement to such relief.
                                                                                          ‘                             «

                160811/2021 SCHUMACHER, EDWARD ET AL vs. DOUGLAS-WORGHS REALTY CORP.'ET AL               Page 4 of 5
                Motion No. 001



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          The   remedy    of mandamus       is only available to compel     an act that is ministerial       and         non-

          discretionary, premised upon specific statutory authority mandating performance in a specified

          manner. See Grisi v Shainswit, 119 AD2d 418 (1st Dept 1986); Peirez v Caso, 72 AD2d 797 (2d

          Dept 1979); Posner v Levitt, 37 AD2d 331 (3d Dept 1971). Here, the City’s authority to perform

          emergency repairs and issue violations involves the exercise of discretion. Plaintiffs fail to cite to

          any law providing that the City is under an obligation to repair the subject premises or to controvert

          the fact that the actions plaintiffs seek to compel are discretionary in nature.

                  As plaintiffs have failed to plead a cognizable cause of action under Administrative Code

          § 28.301.1 or for a writ of mandamus pursuant to Article 78, the complaint must be dismissed. See

          CPLR 3211 (a) (7).
                  Accordingly, it is

                  ORDERED that plaintiffs’ order to show cause is denied, and it is further

                  ORDERED          that defendants’   motions to dismiss are granted,        and the complaint is
                                                            >
          dismissed.

                  This constitutes the Decision and Order of the Court.



                   4/19/2022
                     DATE                                                          u bieletorfust
           CHECK ONE:                     CASE DISPOSED                   NON-FINAL DISPOSITION
                                          GRANTED          C DENIED       GRANTED IN PART           —]     OTHER
           APPLICATION:                   SETTLE ORDER                    SUBMIT ORDER
           CHECK IF APPROPRIATE:          INCLUDES TRANSFER/REASSIGN      FIDUCIARY APPOINTMENT     C      REFERENCE




           160811/2021 SCHUMACHER,     EDWARD ET AL vs. DOUGLAS-WORGHS    REALTY CORP. ET AL            Page 5 of 5
           Motion No. 001



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