NEW RULE RE:COVID RESIDENTIAL EVICTIONS?

This passed both the Assembly and Senate and is waiting for the Governor's signature.

                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 8192--B

                            I N  S E N A T E

                             April 13, 2020
                               ___________

Introduced  by  Sens.  HOYLMAN,  KRUEGER,  MAYER, JACKSON, LIU, METZGER,
  MYRIE, SAVINO, SEPULVEDA -- read twice and ordered printed,  and  when
  printed  to  be  committed  to the Committee on Judiciary -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee  --  committee  discharged,  bill  amended,  ordered
  reprinted as amended and recommitted to said committee

AN  ACT  in  relation to prohibiting the eviction of residential tenants
  who have suffered financial hardship during the COVID-19 covered peri-
  od

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  For  the  purposes of this act, "COVID-19 covered period"
means March 7, 2020 until the date on which none of the provisions  that
closed or otherwise restricted public or private businesses or places of
public  accommodation,  or  required postponement or cancellation of all
non-essential gatherings of individuals of any size for  any  reason  in
Executive  Orders  202.3,  202.4,  202.5,  202.6,  202.7, 202.8, 202.10,
202.11, 202.13 or 202.14, as extended by  Executive  Orders  202.28  and
202.31  and as further extended by any future Executive Order, issued in
response to the COVID-19 pandemic continue to apply in the county of the
tenant's or lawful occupant's residence.
  § 2. Notwithstanding any provision of law to the contrary:
  1. No  court  shall  issue  a  warrant  of  eviction  or  judgment  of
possession  against  a  residential tenant or other lawful occupant that
has suffered a financial hardship during the COVID-19 covered period for
the non-payment of rent that accrues or becomes due during the  COVID-19
covered period.
  2. (a) A tenant or lawful occupant may raise financial hardship during
the  COVID-19  covered period as a defense in a summary proceeding under
article 7 of the real property actions and proceedings law.
  (b) In determining whether a tenant  or  lawful  occupant  suffered  a
financial  hardship  during the COVID-19 covered period, the court shall
consider, among other relevant factors:

  (i) the tenant's or lawful occupant's income  prior  to  the  COVID-19
covered period;
  (ii)  the  tenant's  or  lawful  occupant's income during the COVID-19
covered period;
  (iii) the tenant's or lawful occupant's liquid assets; and
  (iv) the tenant's or lawful occupant's eligibility for and receipt  of
cash assistance, supplemental nutrition assistance program, supplemental
security  income, the New York State disability program, the home energy
assistance program, or unemployment insurance or benefits under state or
federal law.
  3. This act shall not prohibit any court from awarding a judgment  for
the  rent due and owing to a successful petitioner in a summary proceed-
ing under article 7 of the real property actions and proceedings law.
  § 3. This act shall take effect immediately.

WHEN THE CO-OP BOARD SEEKS TO TERMINATE YOUR LEASE

The lesson here is to be specific in the predicate notice of the acts which constitute a breach of the lease and to make sure the board action is taken pursuant to its by-laws.

Clinton 510 Owners HDFC Inc. v. DiPietro, NYLJ  May 06, 2020, Date filed: 2020-04-10, Court: Civil Court, New York, Judge: Judge Kimon Thermos, Case Number: 58231/19:

"In this nuisance holdover, Petitioner HDFC seeks to regain possession of the subject cooperative apartment from Respondent shareholder after the board of directors decided, by vote, at a special meeting to terminate his tenancy and served a Five (5) Day Notice of Termination dated March 12, 2019. The notice contained a recitation of the purported objectionable conduct, which included an allegation that Respondent consistently subletted the apartment on a short term basis, and had attached a copy of the minutes of the special meeting held on February 28, 2019 which resulted in the termination.

Respondent, by counsel, now moves pre-answer for an Order, pursuant to CPLR §3211(a)(7), dismissing the petition on the grounds that the termination notice is defective, in that it does not contain sufficient facts to establish prima facie nuisance conduct by Respondent and/or that the alleged conduct does not otherwise constitute objectionable conduct in violation of the proprietary lease. Respondent further argues that Petitioner cannot remedy this defect by resorting to the application of the cooperative business judgment rule, where the court must defer to a properly taken “termination of tenancy vote” by the cooperative board, because the action taken by the board of directors terminating the tenancy was done in bad faith since Respondent was not served with notice to attend the special meeting and, therefore, did not the meeting. Additionally, Respondent argues that, in any event, the board’s decision is not binding, since the grounds for termination do not constitute a breach of the lease and, therefore, given this defect, the decision taken by the board was not authorized and is, therefore, a nullity.

Petitioner opposes the motion and cross moves for summary judgment of possession, asserting that the predicate notice is factually sufficient under the law and that, under the prevailing authority, the board’s decision to terminate the proprietary lease, and the grounds upon which it is based, cannot be collaterally challenged herein, since the business judgment rule precludes review of the board’s action by this Court. Petitioner submits that Respondent was properly notified of a hearing that was to be held to discuss the board’s accusations and that Respondent failed to appear. Petitioner avers that, since Respondent did not appear at the fact gathering hearing, there was no obligation to notify him of the special meeting, where only a vote was taken on whether to adopt the committee’s motion to terminate the tenancy for breach of lease and nuisance conduct as delineated in the predicate notice of termination which followed. Petitioner further argues that Respondent’s conduct was objectionable under the terms of the lease and, therefore, the board’s decision to terminate the lease was both authorized and rendered in good faith. In its cross-motion, Petitioner also seeks leave to amend its pleadings to correct the spelling of Respondent’s first name and zip code and to set this matter down for a hearing on legal fees.

DISCUSSION

When considering a motion to dismiss pursuant to CPLR §3211, the court must determine whether the pleadings state a cognizable cause of action or defense. In doing so, the Court must “afford the pleadings a liberal construction, take the allegations in the [pleadings] are true and afford the [pleadings] the benefit of every possible inference”. EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19 (2005). “The motion must be denied if, from the pleadings’ four corners, factual allegations are discerned which taken together manifest any cause of action [or defense] cognizable at law.” 511 West 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 152 (2002), quoting Polonetsky v. Better Homes Depot, 97 N.Y.2d 46 (2001).

Cooperative Business Judgment Rule

Petitioner argues that the court cannot scrutinize the termination notice for facial sufficiency because the board is shielded by the business judgment rule; therefore, the court must defer to its finding of grounds for termination as it satisfies the competent evidence rule under RPAPL §711. It is well settled that the decision of a cooperative board of directors to cancel a proprietary lessee’s shares, terminate the proprietary lease and seek to regain possession of the apartment is to be treated deferentially; and that the court’s independent evaluation of the grounds for termination is prohibited. However, an aggrieved shareholder can challenge the validity of such a decision in court by showing that any of the 3 criteria outlined in 40 West 67th Street v. Pullman, 100 N.Y.2d 147 (2003), were not met.

In Pullman, the Court of Appeals affirmed the extent to which the business judgment rule can act as shield to scrutiny of a cooperative board’s decision to terminate a proprietary lease and the standard utilized to determine whether the shield should be upheld given the facts presented, as first enunciated in the seminal case of Levandusky v. One Fifth Ave. Corp., 75 N.Y.2d 530 (1990). In Pullman, the court heard a challenge to the application of the business judgment rule to summary proceedings and the requirements of proof under RPAPL §711. In that case, Respondent argued that Levandusky, an Article 78 proceeding to lift a stop work order issued by the cooperative board, should be limited to non-summary proceedings given the different requirements and burdens of proof in the two types of actions. The court disagreed and found that the business judgment rule can be applied in summary proceedings to satisfy the evidentiary burden required under RPAPL §711. In so holding, the court stated that

“…the procedural vehicle driving this case is RPAPL §711(1), which requires ‘competent evidence’ to show that a tenant is objectionable. Thus, in this context, the competent evidence that is the basis for the shareholder vote will be reviewed under the business judgment rule, which means courts will normally defer to that vote and the shareholders’ stated findings as competent evidence that the tenant is indeed objectionable under the statute…. Despite this deferential standard, there are instances when courts should undertake review of board decisions. To trigger further judicial scrutiny, an aggrieved shareholder-tenant must make a showing that the board acted (1) outside the scope of its authority, (2) in a way that did not legitimately further the corporate purpose or (3) in bad faith.” Pullman, supra. at 155.

In this case, Respondent argues that Petitioner’s actions should not be given differential treatment, because the board’s decision to terminate his lease failed to meet the 3 criteria outlined in Pullman, supra. First, Respondent points to the grounds for termination to show that the board acted without authority under the proprietary lease to terminate his tenancy, because the alleged conduct, even if true, does not violate any specific term of the agreement and, in any event, lacks sufficient factual support to a nuisance claim.

However, this Court finds that Respondent’s argument lacks merit. The issue of articulating sufficient facts to constitute objectionable conduct does not negate the fact that the board had the authority to terminate the lease for such conduct, which is downplayed by Respondent as merely having too many guests, The court cannot use the lack of specificity in the predicate termination notice, if any, to find that the board lacked authority to terminate the proprietary lease. Notwithstanding, Respondent is correct in stating that the court in Pullman held that, in acting within its authority, the board must give proper notice by the mode required pursuant to the lease. Respondent correctly argues that, since he was indisputably not given notice of the special meeting where the vote was taken to terminate his tenancy, the board acted ultra vires.

Petitioner counters that Respondent was not invited to the special meeting because it was not a fact-finding meeting and his presence would have yielded no benefit to him, since he would not have been able to address the board. Petitioner further argues that Respondent was given proper notice of a fact-finding hearing scheduled on July 24, 2018, which Respondent did not attend. Petitioner contends that, since Respondent did not attend the hearing, there was no need to notify him of the special meeting.

Putting the issue of whether Petitioner was required to serve Respondent with notice of the special meeting aside, Respondent, in his affidavit, claims that he was not properly served with notice of the hearing. Notwithstanding, Respondent claims that he did not feel the need to attend the hearing, since he was told by Donna Van Der Linden, the President of the cooperative board of directors, that they only wanted to generally speak to him about subleasing and Airbnb activity and not about any public area nuisance or the fact that the board deemed his alleged conduct to constitute an actionable nuisance. Based upon this conversation, Respondent claims that he did not attend the hearing, particularly since, by then, he had ceased subletting.

In support of its argument that Respondent was given proper notice of the hearing, Petitioner submitted another affidavit by Respondent, averring to his understanding of his conversation with Ms. Van Der Linden as referenced in a letter sent as notice about the hearing. However, this affidavit does not contradict Respondent’s current stance as to his understanding of the purpose of the hearing. Moreover, pursuant to the proprietary lease, service of all notices, including notices regarding hearing and meeting dates, must be completed by registered or certified mail, return receipt requested. Although Petitioner asserts that Respondent was sent a notice dated July 9, 2018 by Mr. Kaye, its managing agent, advising of the hearing to be held on July 24, 2018, Petitioner has failed to show compliance with the notice delivery requirement of the lease and has made no averment as to the mode of service, let alone provide proof of same.

The aforementioned set of events serves to undermine the board’s decision by evincing bad faith. No proof was submitted to show that Respondent was properly advised that his alleged nuisance conduct would be the basis of the hearing. On the contrary, he was incontrovertibly told that the hearing would be about illegal subleasing in general, not specifically about any nuisance allegations against him. The letter sent by the managing agent, even if it had been properly sent and received, did not spell out the purpose of the hearing, but merely references the conversation previously had between Respondent and Ms. Van Der Linden. Based upon this, Respondent, understandably but perhaps unwisely, did not appear at the hearing, because he had endeavored to cure the issue and, therefore, felt there was no need to appear. In light of these facts, this Court finds that the board acted in bad faith by lulling Respondent into a false sense of security that the issue discussed with Ms. Van Der Linden, as stated in Mr. Kaye’s letter, was, or would be, resolved in his favor.

Given this Court’s finding that the board acted in bad faith, and thus outside the scope of its authority, the procedural aspect of the vote taken at the special meeting to which Respondent undisputedly was not invited, can not be shielded by the business judgment rule. Therefore, the sufficiency of the factual allegations contained in the subject termination notice is now subject to examination by this Court.

Sufficiency of the Predicate Notice

In a holdover proceeding, the sufficiency of the pleadings in stating a cause of action depends upon the facial sufficiency of the predicate notices, which terminate the tenancy and serves as the basis of the holdover. Chinatown Apts. v. Chu Cho Lam, 51 N.Y.2d 786 (1980). This is particularly true when, as here, the petition incorporates the allegations of the predicate notices. A petition predicated on a defective notice must be dismissed for failure to state a cause of action. Chinatown Apts. v. Chu Cho Lam, supra. See also, Golub v. Frank, 65 N.Y.2d 900 (1985); 520 East 81 St. Associates v. Lenox Hill Hospital, 77 N.Y.2d 944 (1991); Ansonia Associates v. Consiglio, 163 A.D.2d 98 (1st Dept. 1990).

The standard of review utilized by the courts, upon determining the sufficiency of the factual allegations in a predicate notice, is “reasonableness in view of all attendant circumstances.” Cruz v. Davis, 20 Misc.3d 1135A (Civ. NY 2008); 297 Lenox Realty Co. v. Babel, 19 Misc.3d. 1145A (Civ. Kings 2008); Black Veterans for Social Justice, Inc. v. Killeen, 2007 N.Y. Misc. Lexis 982 (Civ. NY 2007). Courts will uphold a predicate notice as long as it sufficiently advises the tenant of the claimed allegations to enable the tenant to prepare a defense. Black Veterans for Social Justice, Inc. v. Killeen, supra.; Domen Holding Co. v. Aranovich, 1 N.Y.3d 117 (2003); 297 Lenox Realty Co. v. Babel, supra.

Herein, the subject termination notice fails to state with specificity how the alleged conduct by Respondent of having several visitors at early morning hours over a six-month period violates any rule within the proprietary lease or how that activity alone creates a nuisance. The allegation that some of Respondent’s guests “have been found roaming throughout the building and buzzing the intercom for other apartments other than the premises to gain entry…” is too vague, highly presumptive and conclusory and does not state the basis of the knowledge that these persons are Respondent’s guests. Furthermore, it is not stated how often this activity occurs and which other cooperators were complaining about the alleged disturbance in either the predicate notice or the minutes of the board’s special meeting, which is annexed to the predicate notice. In fact, the minutes do not recite any of the specific facts considered by the board upon its determination to terminate Respondent’s tenancy. As such, this Court finds that the subject predicate notice is insufficient to apprise Respondent of the claimed allegations to enable him to prepare a defense and is otherwise not reasonable under the attendant circumstances."

POST DIVORCE LITIGATION - A CHANGE IN CIRCUMSTANCES?

This court, in particular this Justice, writes the most interesting decisions and here describes the "change in circumstances" as being the "same old same old".

C.M.P. v M.D.P.,  2020 NY Slip Op 50560(U),  Decided on May 7, 2020,  Supreme Court, Monroe County,  Dollinger, J:

"In this matter, a mother seeks to change the terms of a separation agreement, inked less than a year ago and to do so, she needs to demonstrate a "change in circumstances." Schoenl v. Schoenl, 62 Misc 3d 567 (Sup.Ct. Monroe Cty. 2018)(Dollinger, J.). Despite the best efforts of the wife in this matter to allege a "change in circumstances" in 205 sworn paragraphs — her share of the affidavits before the Court — the alleged changes here do not implicate "the fitness of the custodial parent, nor affect the nature and quality of the relationship between the children and the noncustodial parent." Matter of Miedema v Miedema, 125 AD3d 971, 971-972 (2d Dept 2015).

When compared side-to-side, the allegations presented in the competing affidavits in this matter are evidence of differing perceptions of similar events:

(a) "ear aches/infections/boils" versus "sensitive skin/pimples;" (b) "too much outdoors without a coat" versus "a well-clad active toddler yearning for open air,"(c) "discourteous non-communicative grandparents" versus "conscientious grandparents pitching in to save childcare costs;"(d) "a father, stubbornly refusing to change a recently signed visitation [*2]agreement" versus "a father seeking to defend the time he has with the children because he works a mixed shift as part of law enforcement personnel;" or,(e) finally, "a mother who because of changes in her employment, simply wants more time with the children because she can do a better job" versus "a mother with buyer's remorse for signing an agreement that she now sees as preventing her from having more of her available time with her young children."

In short, that's the condensed sketch of the competing affidavits in this order to show cause. There are an abundance of other contested events and their impact on these two parents splattered across the competing affidavits. The mother, based on her 205 paragraphs of allegations, seeks to change the custody plan from joint to sole, designate herself as the primary residential parent and alter the visitation plan. The father asks this Court to deny the application, arguing that there has been no change of circumstances since the execution of the agreement less than a year ago.

Despite the invitation these lengthy and detailed affidavits and the numerous examples of conflict between the parents afford the Court, this Court declines to intervene at this stage. In this Court's view, there is no evidence of a change in circumstances that has impacted the children. There are allegations that the transitions between the two households have occasioned acrimony, mostly off-color verbal exchanges between the parents. There are allegations that the children have had difficulties in a host of areas: potty training, disengaging from the mother at times of transition and often, as only toddlers would, unknowingly parroting what their parents or other adults have said in their presence. There is undisputed evidence that the parents have occasionally exhibited loss of control, if not of their actions, then certainly of their tongues. There is an allegation that the father's parents, who provide childcare, have not communicated with their former daughter-in-law as she would desire but there is no undisputed evidence that the children have been adversely impacted as a result. There are arguments over attending appointments and sharp-exchanges at transfers galore.

But, there is no evidence suggesting any circumstances — present at the time of the execution of the agreement — have changed. Neither parent has changed jobs or work schedules. The parties have different living arrangements but, the divorce occasioned a separation and end to the shared marital residence. There is no evidence that any change in their income has altered their ability to beneficially use their parenting time. There is no change in their health or the health of their children. There is no onset of any debilitating physical ailments or mental health issues. The father's parents were intended, at the time of the agreement, to provide childcare for the children when the parents were working. The children are young but the parents knew the challenges of young children when they signed the agreement.

There is no evidence that the father is an unfit parent: the occasional incidents of disciplining the child, mistreating minor ailments or other minor matters do not transform him into an unfit parent. Whatever personalty traits drove the father's behaviors alleged by the mother in her current application, it is apparent that the father probably possessed — and exhibited — those personality traits during the marriage and at the time of the execution of the separation argument. The parents have hostility to each other, demonstrate occasional loss of control and bitterly resent the other's interference with [*3]their own understandings of what is right for their children or their different parenting approaches. Those circumstances — hostility and resentment — no doubt, were present at the time of the divorce and perhaps for a long time preceding it. The only new wrinkle — or "change in circumstances" — is that the mother asked for more time with the children. The father, relying on the agreement, declined that request and friction, somewhat present beforehand, accelerated, certainly for the mother and, most likely as a result, for the father.

There is ample evidence that these parents do not, at this time, get along: both could stand improvement in their interpersonal reactions to one another. Those reactions by both parents are amplified because of the young age of the two children, the complications of grandparent childcare, the displacement from the COVID virus, the father's structured work schedule as a result of his employment, the introduction of new "friends" into the father's personal life and allegations of circulated offending rumors about the mother among other factors diagnosed and debated in these lengthy affidavits. But, although extensively detailed, the facts which allege a change in circumstances, do not as a matter of law justify modifying the agreed visitation schedule, signed by the parties less than a year ago and do not justify a hearing.

What's also missing in this matter is evidence that either party has continuously or with malicious intent violated the visitation terms of their agreement or, for that matter, any other term. This couple have bickered, used foul language and perhaps failed to communicate as often and as directly as they might but, those factors do not compel the conclusion of a change in circumstances sufficient to change the custody, primary residency or visitation plans set forth in the recently-inked agreement.

The mother's order to show cause to change custody, alter the primary residence designation or modify the visitation plan in the agreement is denied, as is her request for attorneys' fees. The father's cross-motion to dismiss the wife's application is granted but the Court, in an exercise of discretion, declines to award him fees either."

NEW RULES - EQUITABLE DISTRIBUTION

Laws of 2020, Ch 55, §1, enacted April 3, 2020 added an additional factor to the property distribution factors in Domestic Relations Law §236 [B]5] [d]. Factor 14 “any other factor which the court shall expressly find to be just and proper” was renumbered factor 15, and a new “domestic violence” factor 14 was added: (14) whether either party has committed an act  or  acts  of  domestic  violence, as described in subdivision  one  of  section four hundred    fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts.  

The amendment took effect on May 3, 2020 and applies to matrimonial actions commenced on or after the effective date, which, because of Covid-19 pause, will be today.

For maintenance purposes, domestic violence is already one of the factors

"(g) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;"

ENJOY THE MEMORIAL DAY WEEKEND

REMEMBER COMMENCEMENT AND SERVICE ARE TWO DIFFERENT THINGS

Chief Administrative Judge Marks released a Memorandum yesterday announcing that, beginning Monday, May 25, "e-filing through the NYSCEF system -- including the filing of new non-essential matters -- will be restored in those counties of the state that have not yet met the benchmarks required" under the Governor's reopening plan, including those in New York City and Long Island.

But have a process server ready to serve in quarantine times because pursuant to CPLR 306-b service of a summons and complaint must be made within 120 days after the commencement of the action, which the court, upon motion, may in its discretion and "upon good cause shown or in the interest of justice, extend the time for service" (CPLR 306-b; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 101 [2001]; Chan v Zoubarev, 157 AD3d 851 [2018]). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service Leader v Maroney, Ponzini & Spencer, supra at 105-106). The interest of justice standard does not require reasonably diligent efforts at service, but courts, in making their determinations, may consider the presence or absence of diligence, along with other factors (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105) including the expiration of the statute of limitations, the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant (see Bumpus v New York City Transit Auth.,, 66 AD3d 26, 32 [2009)]).

MORE COVID AND CHILD CUSTODY

Getting back to normal?

Matter of S.V. v. A.J., NYLJ May 18, 2020, Date filed: 2020-05-07, Court: Family Court, Bronx, Judge: Judge Ariel Chesler, Case Number: 224633:

"This matter was referred to this Court for determination of this motion by the father to enforce in-person visitation, to determine make-up visitation, and for other related relief. The father’s motion was properly filed pursuant to the special procedures in place during this period of the coronavirus health crisis, and the Court issued a scheduling order upon submission of the motion. The court has received and reviewed the following submissions: 1) The father’s Order to Show Cause and accompanying exhibits; 2) the mother’s Affirmation in Opposition with accompanying exhibits; 3) Affirmation from the attorney for the children; 4) Counsel for the father’s reply affirmation. The court also takes judicial notice of the following: 1) The November 20, 2019 report relating to the court ordered investigation conducted in these proceedings; and 2) the various Executive and Administrative Orders impacting New York Courts, in particular the March 23, 2020 Administrative Order issued by the Honorable Jeanette Ruiz, Administrative Judge of the New York City Family Court, and the April 8, 2020 and May 1, 2020 Administrative Orders issued by the Honorable Lawrence Marks, Chief Administrative Judge of the Courts.

BACKGROUND AND POSITIONS OF THE PARTIES

The parties have two children: J.J. who will turn 4 years old in a few days, and L.J. who is two and one-half years old. The parties have filed numerous petitions in Family Court and, most significantly, have filed cross-custody petitions. There is no final or even a temporary order of custody that has been issued in this case, and neither parent has a greater right to custody of the children (see DRL 240).

There have been various temporary orders issued relating to the father’s visitation. The latest and controlling order, dated January 16, 2020, directs that commencing January 17, 2020, the father have alternate weekend visitation from Friday at 8 PM until Sunday at 6 PM. Pursuant to the order, the children are to be exchanged at the 44th Precinct in the Bronx.

There is a final order of protection from Bronx Criminal Court dated December 19, 2019, which directs the father to stay away from the mother, refrain from communicating with her, and refrain from committing any offenses against her until December 19, 2021. This order of protection is subject to subsequent orders of Family Court which may direct contact, communication or access in a custody or other proceeding.

Visits took place pursuant to the order between January 2020 and March 2020. It appears undisputed, however, that the mother did not produce the children for weekend visitation on the weekends of March 27, 2020, April 10, 2020 and April 24, 2020. Instead, the parties arranged through their attorneys for daily video conference visits to take place between the father and children.
Following efforts to resolve this issue without seeking court intervention, the father now seeks enforcement of the temporary order of visitation, a schedule of make-up visits, time with the child J.J. on his birthday, May 10th, and an order directing daily video conferences with the children.

With regard to in-person visits, the father notes that the mother has not allowed him to see the children. He states his understanding of the COVID-19 crisis, and that he would never place the children in harm. The father advises that he lives in New Jersey in a 2-story home with a backyard, which would greatly benefit the children in these times as it would enable them to spread out and play in a private yard. The father has been practicing social distancing measures and has not tested positive for COVID-19. The father has his own automobile and promises he would transport the children in it and not via public transportation, that he would be available to pick up the children from the mother’s residence, that he would drive the children directly to his home and not take them out of his home during the visits, and that the only other person he would allow in his home is his mother, who resides in the home.

The father also claims that the mother points the camera at the ceiling during his video visits with the children thus frustrating his visits and his time with the children. Finally, he asks for time with J.J. on the child’s birthday which is May 10th.

The mother’s position is essentially that visits were suspended once New York and New Jersey issued “stay at home” orders in March 2020, and that she has accommodated the father by arranging the video visits. She describes the video visits as the children briefly conversing with their father and then playing while the father watches; the children sometimes leave the room or move the device.
The mother does not oppose daily video visits for the father. Similarly, she does not oppose additional video conference time on May 10, 2020 for the child J.J’s birthday.

However, the mother opposes any in-person visits between the father and children during the pandemic, noting the risk of spreading the virus. The mother takes it further, arguing that it is “irresponsible” to make parents comply with court-ordered in-person visitation because it might impact their safety, and that during this pandemic another type of visitation may be appropriate. Relatedly, the mother maintains that the exchange of the children must be at a precinct given the history between the parents, and thus argues that such exchange further endangers the parties and the children. The mother also proposes that make-up visits be scheduled for some time in the future when the pandemic ends, and that this Court order only video visitation until such time.

The attorney for the children does not oppose in-person visits between the father and children as long as social distancing and other safety measures are followed, and supports daily video conferences between the father and children. The attorney for the children also suggests that the missed visits be made up by expanding the father’s weekends to begin on Thursday evening and end on Monday evening.

In his reply, the father argues that the mother has provided no factual or legal basis to suspend the in-person visits, and that she failed to properly make a motion to suspend the visits. The father also argues that the mother’s position is completely “untenable,” and that the existence of COVID-19 does not limit the rights of parents to have meaningful relationships with their children.

LEGAL ANALYSIS AND DISCUSSION

Initially, the Court notes that while earlier Administrative Orders (A.O.) limited work in the courts to essential matters, the more recent A.O.’s referenced above have expanded our work to include, inter alia, conferencing pending matters and accepting motions on all pending matters (both essential and non-essential). It is the unfortunate reality that none of us know the duration of the pandemic and we may not be able to return to Court or to business as usual for an extremely long amount of time. In the meantime, we will conference matters, decide motions, and encourage litigants, including in this case, to work together for the sake of their children and to craft resolutions to their conflicts, and a global settlement of this matter.

We are now in a time of disruption, fear, uncertainty, and uncharted territory, and the Court appreciates how this stressful time may impact families, particularly those in conflict. However, to the greatest extent possible, we must ensure stability and comfort for children. While public health crises such as the one we face may impact children’s lives, and all of our lives, in many ways and for an unknown period of time, there is a presumption that continued connection and time with both parents is critical and in the best interest of children. The March 23, 2020 A.O., referenced above, in fact, extends all temporary orders issued by the Family Court, including orders of visitation, until such time as the matter is re-calendared or changed by a jurist.

While the best interests of a child obviously include health and safety issues, an analysis of children’s best interest must incorporate the impact of altering terms of parental contact on children’s mental and emotional health. It is well established that it is in a child’s best interest to have regular and meaningful contact with both of his or her parents. (see Zwillman v. Kull, 90 AD3d 774, 775 [2d Dept 2011] ["The best interests of the child lie in being nurtured and guided by both parents. In order for the noncustodial parent to develop a meaningful, nurturing relationship with the child, visitation must be frequent and regular"]).

Here, there is no indication that the children’s alternate weekend visits with their father were anything other than enjoyable and beneficial and in their best interest. The court ordered investigation found no safety concerns with the father’s residence and noted that the home contains a playroom and a backyard, which, more than ever, would be greatly enjoyed by the children. The attorney for the children also supports in-person visits as long as social-distancing and other safety measures are followed.

To address any current health concerns, the father has proposed reasonable limitations to the visits, including avoiding public transportation and not taking the children out of his home during visits. He also advises he has followed social-distancing measures and has not tested positive for COVID-19.
The mother has failed to articulate, submit evidence, or even allege any particularized health concern such that the Court would consider suspension of in-person visits. A generalized fear of the coronavirus crisis we all face is insufficient to severely limit and perhaps harm a child’s relationship with a parent. This pandemic is not to be used to limit access by a parent or to flout valid orders of the court. Rather, valid orders of the court must be followed during this crisis unless a parent can articulate a specific health or safety risk, and can demonstrate to the Court that suspension of visits is warranted, which may be a heavy burden. In any event, in such a case a parent must then affirmatively move the court for emergency relief in order suspend any visitation order and may not resort to self help by failing to produce children for visits.

Lest it be unclear, and to settle any confusion, it is the opinion of this Court that while our movements and lives may be severely constrained during this time period, it is just as important for the children to see their father as it is for them to see their mother. They have two homes and should spend time in both places. In other words, in times of crisis children need regular contact with both parents more than ever to provide love, comfort, stability and guidance, something that video and virtual connections cannot fully accomplish. Our lives may be “on hold” in many respects, but vital family relationships cannot be placed on hold indefinitely without serious risk of harm. It is also expected that parents make additional efforts in these times to work together for the benefit of their children, and time with the other parent should be viewed as essential for the children and a permissible and important reason to leave the home.

The court also notes that no order of custody has been issued in this case and should the mother plan to be the primary physical custodian of the children she must fulfill her obligation to ensure the children have a meaningful relationship with their father. In fact, “[o]ne of the primary responsibilities of a custodial parent is to assure meaningful contact between the children and the other parent” (Matter of Raybin v Raybin, 205 AD2d 918, 921 [3d Dept 1994]). Therefore, if the mother does not comply with the visitation order, the Court may be forced to consider whether the mother should be the primary custodian, even during the pendency of this case.

In sum, the father’s in-person visitation must recommence immediately starting with this weekend. The parties are therefore directed to follow the schedule set forth at end of this order, which also provides for make-up visitation for the father and an expanded schedule for the time being. Notably, rather than have the children remain with the father for more than two weeks as the father proposes, the make-up time will be added by expanding the father’s weekends, as suggested by the attorney for the children.

The court commends the parties for working together to arrange video visits, and such visits should continue daily at 7 PM or at times mutually arranged by the parties. Of course, the expectation for the quality of such visits should be low given the age of the children and their limited attention span, as well as the fact that the parties’ relationship makes it difficult for the mother to participate in the calls. The mother should ensure that the children have uninterrupted video visits with their father, and the father should ensure the mother has such access when the children are with him.

The court takes seriously the mother’s concerns regarding the order of protection and the need for an exchange at a Police Precinct. In other circumstances, it would be reasonable and prudent for the exchange to take place outside the mother’s residence. But, given these concerns the Court will not modify the location of the exchange.

The father’s request for time during J.J.’s birthday on May 10th is granted to the extent of including some time in the early part of that day with the father, and the remainder of the day, which is also Mother’s Day, shall be with the mother."

THE ATTORNEY FOR THE CHILD IS AN ATTORNEY OF THE CHILD

A reminder to parents in custody disputes that the Attorney For The Child must take an active role.

Matter of Jennifer VV. v Lawrence WW., 2020 NY Slip Op 02136, Decided on April 2, 2020, Appellate Division, Third Department:

"Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of two children (born in 2008 and 2012). Pursuant to an October 2015 judgment of divorce, the parties were granted joint legal and shared physical custody of the children. The parties' settlement agreement was incorporated but not merged into the judgment and included, among other things, a parenting time schedule by which the children alternated between the parents' homes several times each week.

When the parties entered into the agreement, they both resided in the City of Mechanicville, Saratoga County. Thereafter, the mother remarried and moved to a new residence in a different school district. In February 2017, she commenced this modification proceeding seeking to reduce the number of midweek transitions on the ground that, among other things, she had left her former employment and planned to stay at home with a newly born child for several years. The mother also sought an order directing that the children would attend school in the district where her new home was located. She later amended her petition to request sole decision-making authority with respect to the children's religion on the ground that the father objected to their participation in religious activities. The father opposed any modification of the existing agreement.

Following a fact-finding hearing, Family Court determined that the mother had established a change in circumstances and that the children's best interests warranted modification of the agreement. The court ordered that the parties would continue to have joint legal custody, with primary physical custody to the mother and parenting time for the father under a schedule by which the mother would have the children from Saturday morning to Wednesday morning each week, and the father would have parenting time from Wednesday after school until Saturday morning. The court further ordered that the children would attend school in the district where the mother resided, and awarded the mother sole decision-making authority regarding the children's religion, so long as there was no interference with the father's parenting time. The father appeals.

The attorney for the children (hereinafter the AFC) on appeal was the same counsel who had represented the children in Family Court. The AFC initially submitted a letter to this Court stating that he did not intend to file a brief because the children — then approximately 10 and 6 years old — were "too young to formulate an independent opinion and provide a foundation for their respective opinions" and expressing his views on the children's best interests. This Court rejected the letter and directed the AFC to submit a brief in compliance with this Court's practice rules. In response, the AFC filed a brief in which he reiterated his position as to his clients' alleged inability to form an opinion, such that "[he], as their legal advocate, should articulate what [he] believe[d] to be in their best interest at the present time." Without stating the children's preferences, the brief discussed the factors pertinent to a best interests analysis and concluded that Family Court's order was in the children's best interests and should be affirmed.

The Rules of the Chief Judge require that an AFC in a custody or visitation proceeding "must zealously advocate the child's position" (22 NYCRR 7.2 [d]; see 22 NYCRR 7.2 [c]), and further provide that, "[i]f the child is capable of knowing, voluntary and considered judgment, the [AFC] should be directed by the wishes of the child, even if the [AFC] believes that what the child wants is not in the child's best interests" (22 NYCRR 7.2 [d] [2]; see Matter of Cunningham v Talbot, 152 AD3d 886, 886-887 [2017]; Matter of Gloria DD. [Brenda DD.], 99 AD3d 1044, 1046 [2012]; Matter of Mark T. v Joyanna U., 64 AD3d 1092, 1093-1094 [2009]). The Rules establish only two circumstances in which an AFC may adopt a position that does not reflect the child's wishes — specifically, when he or she "is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child" (22 NYCRR 7.2 [d] [3]; see Matter of Mark T. v Joyanna U., 64 AD3d at 1094).

The AFC here wholly failed to fulfill the obligations imposed by these provisions upon this appeal. The only stated basis for his determination to advocate for the children's best interests rather than for their wishes was their ages. However, it was the AFC's obligation to "consult with and advise the child[ren] to the extent of and in a manner consistent with [their] capacities" (22 NYCRR 7.2 [d] [1]). At 10, the older child was certainly old enough to be capable of expressing her wishes, and whether the younger child, at 6, had the capacity to do so was not solely dependent upon her calendar age, but also upon such individual considerations as her level of maturity and verbal abilities (see e.g. Matter of Schenectady County Dept. of Social Servs. v Joshua BB., 168 AD3d 1244, 1245 [2019] [AFC improperly failed to consult with child who was between 4½ and six years old during paternity litigation]; Matter of Ford v Baldi, 123 AD3d 1399, 1400 [2014] [seven-year-old child was "of an age where her wishes may be ascertained and taken into consideration"]; Matter of Seeley v Seeley, 119 AD3d 1164, 1167 [2014] [visitation matter remitted to Family Court for consideration of the wishes of child approximately nine years old]; Matter of Grant v Grant, 47 AD3d 1027, 1028 [2008] [two Lincoln hearings conducted in custody dispute involving child approximately five years old]).[FN1] The AFC did not claim that either child met either of the two exceptions to 22 NYCRR 7.2 (d) (3), i.e., a lack of capacity or risk of imminent harm, and nothing in the record reveals either circumstance (compare Matter of Audreanna VV. v Nancy WW., 158 AD3d 1007, 1011 [2018] [record established that children approximately six and seven years old "lack(ed) the capacity for knowing, voluntary and considered judgment due to their age(s), disabilities and the grandmother's hostility toward the mother"] [internal quotation marks and citation omitted]).[FN2] Moreover, even when it is appropriate for an AFC to substitute his or her judgment for the child's preferences, the AFC must nevertheless inform Family Court of the child's wishes if authorized by the child to do so (see 22 NYCRR 7.2 [d] [3]). Here, the AFC's brief is devoid of any indication of the children's wishes, with no reference to 22 NYCRR 7.2 or to the analysis that this rule requires an AFC to undertake before advocating for a position that does not express the child's wishes (compare Matter of Emmanuel J. [Maximus L.], 149 AD3d 1292, 1297 [2017]; Matter of Alyson J. [Laurie J.], 88 AD3d 1201, 1203 [2011], lv denied 18 NY3d 803 [2012]).

Additionally, although the record reveals that the AFC met with the children during the Family Court proceeding, it does not appear that he met or spoke with them again during the appeal.[FN3] The children were, "at the least, entitled to consult with and be counseled by [their] assigned attorney, to have the appellate process explained, to have [their] questions answered, to have the opportunity to articulate a position which — with the passage of time — may have changed, and to explore whether to seek an extension of time within which to bring [their] own appeal of Family Court's order. Likewise the child[ren were] entitled to be [apprised] of the progress of the proceedings throughout. It appears that none of these services was provided to the child[ren]" (Matter of Mark T. v Joyanna U., 64 AD3d at 1094-1095 [citation omitted]). The AFC thus "failed to fulfill his essential obligation," and the children did not receive the effective assistance of appellate counsel (id.; accord Matter of Lewis v Fuller, 69 AD3d 1142, 1142-1143 [2010]; see Matter of Lamarcus E. [Jonathan E.]; 90 AD3d 1095, 1096 [2011]; see also Matter of Seeley v Seeley, 119 AD3d at 1167). Accordingly, the AFC will be relieved of his assignment, the Court's decision will be withheld and new counsel will be assigned to represent the children.

ORDERED that the decision is withheld, appellate counsel for the children is relieved of assignment and new counsel to be assigned to represent the children on this appeal.
Footnotes

Footnote 1: We further note that the AFC's statement that the children were too young to articulate "position[s] which they believe[d] to be in their best interest" misapprehends his obligation. 22 NYCRR 7.2 requires an AFC to advocate for a child's wishes. The rule does not require either the child or the AFC to make any determination as to his or her best interests; that determination is to be made by the court.

Footnote 2: The record indicates that the older child has an unspecified adjustment disorder and was unresponsive to the AFC during their initial meeting. However, the AFC stated during the fact-finding hearing that the child "loosened up a bit" in later telephone conversations and became "very verbal." In any event, the AFC made no claim that, as a result, the child lacked the capacity for knowing, voluntary and considered judgment.

Footnote 3: The AFC's brief states that it is "[b]ased on [his] reviews of the arguments of the parties, [his] trial notes and other documents in [his] file including notes taken contemporaneously when meeting with the children and the above analysis." "

NEIGHBORS AND FENCES

The old saying notwithstanding, fences and neighbor disputes are common problems that can arise when owning a home....and being stuck at home during this health crisis.

RPAPL 843 grants an owner or occupant of a structure a cause of action when he or she is deprived of light or air due to the construction of an adjoining property owner's "spite fence" (or "spite wall"). Such a fence, however, must exceed 10 feet in height, and must have been erected in bad faith. That is, a fence that is 10 feet high or less, or that was erected in good faith for the improvement of one's own property, is lawful and not to be deemed a nuisance (see RPAPL 843; 122 E. 40th St. Corp. v Dranyam Realty Corp., 226 App Div 78, 80 [1929]; Great Atl. &Pac. Tea Co. v New York World's Fair 1964-1965 Corp., 42 Misc 2d 855, 860 [1964]; D'Inzillo v Basile, 180 Misc 237 [1943]).

The most famous "spite fence" was built by Charles Crocker, a railroad investor and owner of a house on Nob Hill in San Francisco, who built a 40 foot high fence around his neighbor's house, spoiling his view, after the neighbor held out for many times the market value of the property. Google it.

Not all disputes on fences are about height. So while researching this issue, I came across this case: Seltzer v. Bayer, 272 AD 2d 263 - NY: Appellate Div., 1st Dept. 2000, a dispute between two adjoining property owners on East 69th Street in Manhattan where plaintiff complains that defendant trespassed on his property by erecting a fence and attaching it to plaintiff's fence. But the allegations also involve "that defendant dumped a pile of cement on the sidewalk in front of his house, tossed lighted cigarettes into his backyard, threw eggs on his front steps, and threatened once to paint a swastika on his house." According to E Courts, this case, started in 1997, was settled in 2001.

PRO BONO CAN PAY OFF

Who said no good deed goes unpunished?

Zi Chang Realty Corp. v. Chen, NYLJ  April 14, 2020, Date filed: 2020-03-20,  Court: Civil Court, New York, Judge: Judge Frances Ortiz, Case Number: LT-069323-18/NY:

"...….

Respondents are a prevailing party on their motion for summary judgment, after Judge Chinea awarded summary judgment in their favor and dismissed the petition. Moreover, under paragraph 16 (D) (3) of the lease (Exhibit I to the motion — copy of lease) and RPL §234, respondents are entitled to recovery of reasonable attorney’s fees from petitioner. Graham Court Owners Corp. v. Taylor, 24 N.Y.3d 742 (2015).

Ms. Femiano is a supervising attorney at MFJ with over eight years experience and admission to the New York State bar. She has devoted the majority of her private and public interest practice to landlord-tenant law representing tenants. Mr. Longobardi also has over three years legal experience in landlord tenant law and other public interest legal representation. He has been admitted to the New York State bar, since February 2015. Both of them performed legal research, drafted pleadings and motions, met, corresponded with respondents, appeared in court on their behalf and conducted the instant hearing. These were integral and reasonable responsibilities necessary to defend respondents’ ultimately successful case outcome. Based on the above credentials of the attorneys, the $350 hourly rate for Ms. Femiano and $300 hourly rate for Mr. Longobardi which is a generally accepted and reasonable hourly rate of similar landlord-tenant practitioner, this Court finds their hourly rate reasonable. Lastly, the actual time spent also appears reasonable to the Court. However, the $150 hourly rate sought for paralegal Fanny Chan will be reduced to an $85 hourly rate, as such $85 amount has been determined to be a reasonable billing rate for paralegals. S.B.H. Realty v. Santana, supra.

Hence, this Court finds the total combined 84.5 hours requested is reasonable. Specifically, these hours are 67.4 hours at $300 hourly for Mr. Longobardi ($20,220) and 9.6 hours at $350 hourly for Ms. Femiano ($3,360) for a final total cost of $23, 580 in attorney’s fees. As to the paralegal fees for Ms. Chan, the total is 7.5 hours at $85 hourly rate ($637.50).

Therefore, the total fees are $24,217.50 ($23,580 plus $637.50).

Additionally, free legal service providers can be awarded attorney’s fees. The fact that respondents are represented by a free legal services provider (MFJ) does not bar them from an attorney’s fee award. Maplewood Management, Inc. v. Best, 143 A.D.2d 978 (2nd Dep’t 1988); Matter of Greenpoint Hosp. Community Bd. v. NYC Health and Hospitals Corp., 114 A.D.2d 1028 (2nd Dep’t 1985); Alfonso v. Rosso, 137 Misc.2d 915 (Civ. Ct. NY Cty 1987).

Moreover, “an award of attorney’s fees to the organization providing free legal services indirectly serves the same purpose as an award directly to a fee paying litigant” by encouraging the protection of the indigent litigant’s rights. Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974); Atamanuk v. Kwok Yuin Wong, 82 Misc. 2d 1059, 1061-62 (Civ. Ct. NY Cty. 1975). Here, the fact that the legal services clients/respondents did not incur actual legal expenses does not mean that such an award will be a windfall to them, since this Court is directing that the award of attorney’s fees be paid directly to the legal services office.

Accordingly, respondents are entitled to an award of attorney’s fees totaling $24,217.50.:

NYC - THE LAW ON LANDLORDS HARASSING NON-RESIDENTIAL TENANTS

This opinion says it all.

One Wythe LLC v Elevations Urban Landscape Design Inc, 2020 NY Slip Op 50437(U), Decided on April 17, 2020, Civil Court, Kings County, Roper, J.

"…….

NYC ADMIN. CODE 22-902

To redress this real-world practical dilemma for the small business non-residential commercial tenant the City of New York Legislature responded. U.S. public policy acknowledges small businesses [FN16] as the lifeblood of its functioning society which builds communities both local as well as national and therefore must be protected, fostered and any undue interference with such may be regulated by the legislature [FN17] , notwithstanding the private [*8]right to contract in our capitalistic society. Therefore, as a matter of public policy the New York City legislature exercised its authority to enact the relatively new Non-Residential Tenant Harassment Law based upon its foundational legislative history [FN18] . Section 1 was amended to add a new Chapter 9 to Title 22 of the Administrative Code of the City of New York, effective June 28, 2016, titled, The Harassment Law, to redress the real-world practical effect on small business commercial tenants of these sort of strained tenuous stretched hyper-technical legal arguments that may pass muster pursuant to NYS Sanctions Statute, NYS 22 NYCRR 130 -1.1. More so explicitly, to redress the effects of these sort of strained tenuous stretched hyper-technical legal arguments brought repeatedly against the small business tenant, such as Ms. Cara White and her 10 employees.

New York City Non-Residential Tenant Harassment Law was first introduced July 23, 2015 with the title "A Local Law to amend the administrative code of the City of New York, in relation to curtailing harassment of small businesses and other non-residential tenants" by Small Business Committee Chair Councilperson Robert E. Cornegy, Jr. (representative of Bedford Stuyvesant, Brooklyn — an area of explosive real estate speculation with attendant explosive rent increases, both residential and commercial tenancies, significant gentrification as well as suffering erosive loss of displaced brick and mortar multigenerational mom and pop small businesses that are exponentially ceding to high-end high-rises). The proposed legislation, Chapter 9 was to include: § 22-901, Definitions; § 22-902, Commercial Tenant Harassment; § 22-903, Private Right of Action; and § 22-904, Affirmative Defenses and was approved June 21, 2016 by unanimous Council present (save for two absent Council Members) and signed into law by Mayor Bill DeBlasio on June 28, 2016. In part, the text of Admin Code § 22-902 (a) as signed into law:

"A landlord shall not engage in commercial tenant harassment. Except as provided in subdivision b of this section, commercial tenant harassment is any act or omission by or on behalf of a landlord that (i) is intended to cause a commercial tenant to vacate covered property, or to surrender or waive any rights under a lease or other rental agreement or under applicable law in relation to such covered property, and (ii) includes one or more of the following "[FN19]

Schulman was in part brought under the initial 2016 Harassment Law mandating intent as an element (Schulman, Blitz & Williamson, LLP v VBG 990 AOA LLC, 2018 NY Misc LEXIS 5612, 2018 NY Slip Op 32993 [U] [Sup Ct, NY County 2018]). Small business law firm, plaintiff, sought equitable relief in form of an injunction against defendant, new landlord as successor in interest of lease, which had made attempts to terminate leases of all tenants in its newly purchased building. Small business law firm was the sole remaining tenant in building and argued that landlord subjected it to commercial tenant harassment pursuant to Harassment Law. It argued that under the landlord's guise of alleged required legitimate renovations pursuant to Local Law 11, work approved by City of New York Buildings Department, was a pretext. [*9]Those pretextual renovations caused business interruptions preventing small business law firm from conducting its business to meet with clients. Court denied injunctive relief to small business tenant finding no harassment based upon the mandated element of intent, which is indeed a high bar (see id.). "Defendant also contends that plaintiff fails to show an intent to cause it to vacate the building or waive its rights under the lease and that not only does the lease allow for the work, but the Department of Buildings (DOB) approved the renovation plans" (id. at 3-4). This element of intent under the Harassment Law actually compounded the deleterious effect of landlord's offending conduct under pretext of legitimate conduct against the small business tenant. Schulman clearly exposed an unintended gaping loophole in the 2016 version of Harassment Law, to wit, the element of intent. The mandated intent was found too high a bar that actually frustrated the legislative intent of the Harassment Law in the first instance (see id.).

Once again in its exercise of its public policy authority, New York City Legislature sought to redress this gaping loophole in the Harassment Law, to wit, the deleterious effect on small business tenant of such pretextual conduct under guise of legitimate purposes by offending landlord. Legislature found that "intent" requirement of the 2016 Law lent itself readily to pretextual reasoning for landlord's offending conduct that causes harassment upon the small business tenant. Therefore, law as codified was not fulfilling its legislative purpose because of too readily crafted pretextual defenses that were being successfully used by landlords to frustrate its legislative purpose. Consequently, to close the gaping loophole exposed by Schulman, the Legislature proposed amendment to Harassment Law Chapter 9 on February 23, 2019 sponsored by Bronx Councilperson Vanessa L. Gibson of the Housing and Buildings Committee under the title: "Requiring a certification of no harassment prior to the approval of construction documents or the issuance of permits for demolition or renovation of certain commercial buildings" with the following Introduction Summary:

"This bill would redefine commercial tenant harassment as an act or omission by a landlord that would reasonably cause a commercial tenant to vacate, or surrender or waive their rights under a rental agreement. The bill would also broaden the acts and omissions that constitute commercial tenant harassment. The bill would raise civil penalties for landlords that commit commercial tenant harassment to $10,000-50,000 for each property in which the tenant was subject to harassment. Finally, when a landlord has been found to have engaged in commercial tenant harassment, the bill would clarify that courts can order the Department of Buildings not to approve, issue or renew documents for certain types of construction work the landlord wishes to perform at the property in which the tenant was subject to harassment."[FN20]

This proposed amendment in relevant part explicitly replaces the language in § 22-902 (a) from "(i) is intended to cause" to "(i) would reasonably cause".[FN21] By majority, City Council voted to approve amendment on September 25, 2019 and though it was returned unsigned by Mayor Bill [*10]DeBlasio on November 13, 2019, amendment became law by City Charter Rule Adopted October 26, 2019, to take effect "immediately"[FN22] . In addition, it amends the civil penalties pursuant to § 22-903 (a) from "an amount not less than one thousand dollars and not more than ten thousand dollars" to "an amount not less than ten thousand dollars and not more than fifty thousand dollars." Of particular note, the title of this proposed 2019 amendment contained explicit language of demolition, Department of Building approvals, and renovation which directly evidences Schulman's influence on the Legislature.

Clearly, the enactment of October 26, 2019 legislative amendment conclusively established that the landlord's intent is no longer to be an element nor a determinative factor for the amended Harassment Law. Rather, it is the effect on the small business tenant that becomes the focus on the determination of harassment under the current amended state of the Law: whether or not landlord's conduct would reasonably cause the small business tenant to vacate leasehold premises or to surrender or waive any rights under the lease or other rental agreement. Prior to the vote on the amendment on September 25, 2019, Legislative City Council Speaker stated:

"[O]ur small businesses are the backbone of our economy and I'm so very happy the Council is acting on this item today.Introduction 1410-B sponsored by Council Member Vanessa Gibson would strengthen the commercial tenant harassment law by changing the current standard of an act or omission that is quote, "intended to cause a tenant to vacate the premises" to an or omission that would quote, "reasonably cause a commercial tenant to vacate the property" or surrender or waive rights as a lawful tenant. Further the bill adds to the current list of behaviors that constitute tenant harassment which include continued interruption of a essential services to now also include discrimination based on a protected class and inquiring to a tenant's immigration status or threatening a tenant based on such status "[FN23].

Obviously, Legislature as a matter of public policy redressed the gaping loophole of pretextual conduct by landlord. The realization being made, that there may be crafted pretextual seemingly legitimate reasons for landlord's offending conduct against the small business tenant who adversely feels the crushing harassing effect of such offending conduct brought by the landlord's undue duress and burden ultimately resulting in a premature vacatur or surrender or waiver of rights under lease or other rental agreement.

This immediate effective date of October 26, 2019 [FN24] of the Harassment Law amendment occurred during the pendency of this instant matter in which Respondent sought redress pursuant to Harassment Law. "In determining whether statutory enactments should be given retroactive effect, there are two axioms of statutory interpretation" (Clean Earth of N. Jersey, Inc. v Northcoast Maintenance Corp., 142 AD3d 1032, 1036-1037, 39 NYS 3d 165, 170 [App Div 2016] citing Marrero v Crystal Nails, 114 AD3d 101, 111, 978 NYS2d 257 [2013], quoting Nelson v HSBC Bank USA, 87 AD3d 995, 997, 929 NYS2d 259 [2011]). "Amendments are presumed to have prospective application unless the Legislature's preference for retroactivity is explicitly stated or clearly indicated. However, remedial legislation should be given retroactive effect in order to effectuate its beneficial purpose'" (id. citing Nelson v HSBC Bank USA, 87 AD3d at 997, quoting Matter of Gleason [Michael Vee, Ltd.], 96 NY2d 117, 122, 749 [*11]NE2d 724, 726 NYS2d 45 [2001]; see Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 584, 696 NE2d 978, 673 NYS2d 966 [1998]; Marrero v Crystal Nails, 114 AD3d at 111). "These axioms are helpful guideposts, but 'the reach of the statute ultimately becomes a matter of judgment made upon review of the legislative goal" (id. citing Nelson v HSBC Bank USA, 87 AD3d at 997, quoting Matter of OnBank & Trust Co., 90 NY2d 725, 730, 688 NE2d 245, 665 NYS2d 389 [1997]; see Matter of Marino S., 100 NY2d 361, 371, 795 NE2d 21, 763 NYS2d 796 [2003]; Marrero v Crystal Nails, 114 AD3d at 112)." The Appellate Division Second Department further decided that in determining legislative intent as to the remedial retroactive effect of a statutory amendment, its chosen effective date is determinative. "The Legislature's six-month postponement of the effective date indicates that it did not intend for the amendment to be given retroactive effect" (Matter of Joyner v New York State Div. of Parole, 114 AD3d 792, 793, 980 NYS 2d 267, 268 [App Div 2014]). Here, the October 26, 2019 enacted amendments to The Harassment Law were to take "effect immediately"[FN25] . Therefore, in applying the Appellate Division Second Department's standards, these amendments are to be given retroactive effect notwithstanding law changed during the pendency of instant matter.

Although this instant matter was commenced as a summary holdover proceeding, NYC Admin. Code § 22-902 (a) creates a private right of action that may have been brought as a plenary action allowing for jury demand. Further, where tenant seeks equitable relief pursuant to the Harassment Law as in Schulman, it must be brought in Supreme Court, as court of competent jurisdiction, and not Civil Court with very limited equitable jurisdiction (see Schulman, Blitz & Williamson, LLP v VBG 990 AOA LLC, 2018 NY Misc LEXIS 5612, 2018 NY Slip Op 32993 [U] [Sup Ct, NY County 2018]). Herein, Tenant has chosen to seek redress, inter alia, in Civil Court pursuant to Harassment Law in this pre-answer motion to dismiss for summary holdover proceeding. It would be wholly inconsistent with the spirit of the law through its legislative history as detailed above and not in the interest of justice to hold as a matter of law that redress pursuant to Harassment Law may not be sought procedurally in a summary proceeding brought by the landlord, as said summary proceeding in and of itself may be wholly or in part thereof the alleged offending act or omission that constitutes a basis for the harassment at issue. Two elements are required to be proven by a preponderance of evidence pursuant to the Harassment Law. First, Tenant bears the burden of proof to demonstrate that the landlord's offending act or omission would reasonably cause the tenant's vacatur of the covered property or to surrender or waive any rights under a lease, other rental agreement or applicable law, NYC Admin. Code 22-902(a); to reasonably cause requires this determination to be made pursuant to the reasonable person standard, to wit, would a reasonable person as fact finder find that landlord's act or omission would more likely than not cause the tenant to vacate, surrender, or waive any rights under the lease or other rental agreement at issue. Second, landlord's offending act or omission must comprise or be the basis of one or more of the explicitly enumerated offending acts in the Harassment Law, NYC Admin. Code § 22-902 (a) (1-13).

Enumerated in NYC Admin. Code § 22-902 (a) (1-13) are varied diverse offending acts or omissions [FN26] that may be redressed by other penal as well as civil laws, ranging from threats of [*12]violence to discrimination of protected classes [FN27] . While cross-examining Ms. White, Petitioner erroneously implied that Harassment Law required some sort of physical strong-arm techniques, such as threatened or actual breaking of limbs or destruction of leasehold property. However, in this case of first impression pursuant to this October 26, 2019 newly amended Harassment Law, Ms. White argues that each and every summary proceeding commenced by Petitioner against Respondent were based upon pre-textual strained tenuous stretched hyper-technical legal arguments and not based upon fact, and were frivolous even where the strained tenuous stretched hyper-technical legal arguments may not rise to frivolous as explicitly defined pursuant to 22 NYCRR 130-1.1 (c). This Court finds that while "frivolous" is determined as a matter of law pursuant to 22 NYCRR 130-1.1 (c); "frivolous" pursuant to Admin Code § 22-2902 (a) (5) is determined as a material issue of fact. However, Harassment Law failed to explicitly define "frivolous" pursuant to Admin Code § 22-2902 (a) (5). Where a word or explicit language was undefined within a law, the common law principle from the Kings Bench, the "plain meaning rule"[FN28] of statutory construction was applied. However, U.S. common law has rejected the plain meaning rule in applying the literal or commonplace meaning of an undefined word within a law. Rather, the present state of U.S. law bases the meaning of that undefined word upon the legislative intent or the spirit of the law at issue. The spirit of the law is determined by its legislative history:
"It is said that when the meaning of language is plain we are not to resort to evidence in order to raise doubts. That is rather an axiom of experience than a rule of law and does not preclude consideration of persuasive evidence if it exists. If Congress has been accustomed to use a certain phrase with a more limited meaning than might be attributed to it by common practice, it would be arbitrary to refuse to consider that fact when we come to interpret a statute. But, as we have said, the usage of Congress simply shows that it has spoken with careful precision, that its words mark the exact spot at which it stops"

(Boston Sand & Gravel Co. v United States, 278 US 41, 48-49, 49 S Ct 52, 54, 73 L Ed 170, 177 [1928]). "To the extent that the Court of Appeals excluded reference to the legislative history of the FWPCA in discerning its meaning, the court was in error. As we have noted before: 'When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no 'rule of law' which forbids its use, however clear the words may appear on 'superficial examination'. n this case, as we shall see, the legislative history sheds considerable light on the question before the Court"

(Train v Colorado Public Interest Research Group, Inc., 426 US 1, 9-10, 96 S Ct 1938, 1942, 48 L Ed 2d 434, 441 [1976] quoting United States v American Trucking Assns., 310 US 534, 543-544 [1940]; citing Cass v United States, 417 US 72, 77-79 [1974]; see United States v Dickerson, 310 US 554, 554, 60 S Ct 1034, 1035, 84 L Ed 1356, 1358 [1940]; see also Association of Westinghouse Salaried Employees v Westinghouse Electric Corp., 348 US 437, [*13]444, 75 S Ct 489, 492, 99 L Ed 510, 516 [1955]; see also Greater NY Metro. Food Council, Inc. v Guiliani, 1998 US Dist LEXIS 19498, 27 Media L Rep 1417). Therefore, where "frivolous" is undefined as used in NYC Admin. Code § 22-902 (a) (5), it is the spirit of the law through legislative history that must be applied to determine its meaning as intended by the legislators in the enactment of the law at issue.

Legislator Mark Levine stated at legislative hearing held on September 25, 2015:

"And the most unscrupulous among them are resorting to really despicable tactics to push out commercial tenants before their lease is up because they know that there is higher rents on the back side." [FN29]; " . they're also sometimes engaging in shenanigans " [FN30] ; " And frankly until now there just haven't been strong enough protections and sanctions on this kind of behavior ."[FN31] ; " seeks to provide some penalties with teeth so hat tenants who are subjected to this kind o[f] harassment and it is harassment can resort to the courts and win damages to compensate for lost business, to compensate for legal fees, etcetera"[FN32]

Here, legislative history may indeed be summed up in the regard as to repeated commencement of frivolous matters by the term "shenanigans" (see City Council Meeting Committee on Small Business September 25, 2015 tr at 12, line 2).Although repeated commencement of frivolous matters as shenanigans may not rise to the gravity of physical violence, threat of physical violence, or pretextual demolition of property that satisfy "unscrupulous" or "really despicable tactics," nevertheless said repeated commencements of frivolous court proceedings may reasonably cause tenant's vacatur or surrender or waiver of rights under lease or other rental agreement. It is shenanigans such as repeated commencement of frivolous matters with its attendant buildup of expenditure of time away from tenant's business and expenditure of money by tenant for defense thereto which could cause a reasonable person to find by a preponderance of evidence that the repeated commencement of these frivolous actions whether or not seemingly legitimate, are actual shenanigans to deflect tenant from conducting its business causing business disruption and expenditure of moneys to defend said frivolous matters in costs, disbursements and attorney fees. All of which, constituting financial injury in the form of loss of revenues and in expenditure of time in defending repeated frivolous actions as well as defense litigation expenses to ultimately result in the effect of small business tenant being bludgeoned into submission by landlord by giving up to vacate, or to surrender or to waive legitimate contractual rights under a lease or other rental agreement. Thus, whether there were repeated commencement of frivolous proceedings pursuant to Administrative Code § 22-902 (5) which constitute harassment is a matter of fact for the factfinder applying a reasonable person standard in accordance with the legislative history's spirit of the Harassment Law.

Procedurally, where, as here, Harassment Law redress is sought as counter in a landlord's commenced summary proceeding, tenant's testimony is required to bear its burden of proof for the alleged harassment and its effects upon tenant by preponderance of the evidence and its damages. In the instant matter, Harassment Law Hearing was held on March 4, 2020 in which tenant's testimony was taken with landlord's cross-examination. Landlord failed to provide witness. Respondent's principal, Ms. White, testified: Respondent is a woman owned small [*14]business [FN33] for design landscaping services with 10 employees; entered into lease February 2016 for 5 years to occupy 11 Wythe which she uses as office and warehouse for her materials; she is mother of 2 small children as she runs her small business; predecessor owner with whom she had an amicable relationship with did tell her that he may sell property and Sale Termination Lease Clause 15 was included for that contingency; the lease was drafted by the predecessor owner's son who was a lawyer and she was not represented by counsel; upon Petitioner's purchase of the property Petitioner's agent introduced himself at 11 Wythe and reminded her as to the previously sent letter regarding its new online site for rent payment; new online site for her rent payment explicitly stated leasehold premises as "11 Wythe" and not "9 Wythe"; when she received #1Notice on January 14, 2019 by email to evict her from the wrong address of 9 Wythe, she called Petitioner who told her to "call lawyer" and then "radio silence"[FN34] ; even though wrong address and notice not properly sent based upon Clause Eighteen of the lease, she was forced to engage a lawyer to defend #1Notice; she was forced to expend time away from her business to look for and engage services of an attorney to defend against obviously defective #1Notice; after court on July 15, 2019, judge dismissed Petitioner's case and quite stridently admonished Petitioner for its breach of lease in its failure to comply with Sale Termination Lease Clause 15 and mandating any further proceedings to evict her must be in compliance; she then felt a sense of relief that she had at least until April 2020 before Petitioner can seek to again evict her and Petitioner had to abide by lease and give her notice on or before December 31, 2019;

" I felt okay. Great. We gone to court done what we have need to do. We have been granted. We would have another - - we would potentially notified again for future year, but for now we were safe. That was great. We got another notice. We don't have a lease. I don't understand that.[FN35]

Ms. White was taken aback and confused when Petitioner served her again with #2Notice about a week after judge's decision dismissing #1Notice; This time, #2Notice to evict her alleged that she had no lease and was merely a month to month tenant; she was absolutely confused and again engaged the same lawyer and was very worried as to having to vacate earlier than April 2020; she was not sure what to do so she began to look for other rental space notwithstanding that she knew that lease explicitly stated she had to receive notice by the 31st day of December in the previous year in order to be evicted by the end of April in the succeeding year as per Sale Termination Lease Clause 15; In the midst of Ms. White fending off eviction from #2Notice in which Petitioner alleged no lease, landlord again served a Third Notice to Terminate #3Notice this time alleging the complete opposite fact - that she did have a lease which caused even heightened level of frustration and confusion; she then realized that she would have to pay more legal fees for #3Notice; she could not understand why Petitioner was repeatedly bringing these cases against her under inconsistent theories when she dutifully paid her rent without incident; "I think that it just been series of confusions, you know, from my perspective I sign lease, I feel like I have a lease. Now I'm back in court for in - - of another notice saying I do [*15]have a lease - - now I'm back in court for that. Confusion would be appropriate term."[FN36]

The inconsistency and repeated proceedings to evict caused stress upon Ms. White; "It's a constant stress point. We have been, you know, I've been running base for number of years. I could foresee lot of the business stress that come our way. This is one that I feel like I'm kind of in a world no control over it. I feel I received lease in court."[FN37]

This Court as fact-finder paraphrases witness' testimony to include its interpretation of said testimony adduced by Ms. White's body language and speech patterns that cannot be captured by mere reportable text of transcript. This Court finds witness was nervous, worried and anxious about the future of her small design landscaping business. This Court finds Ms. White quite credible.
Applying reasonable person standard This Court as fact-finder finds #1Notice and #2Notice are repeated commencement of frivolous court proceedings, bolstered by the evidence of #3Notice. Pursuant to the legislative history and spirit of the Harassment Law using Legislator Levy's language, it is found that commencement of both proceedings are indeed shenanigans and therefore repeated frivolous proceedings. Petitioner knew or should have known that Ms. White's small business leased premises is 11 Wythe and not 9 Wythe in #1Notice: Its agent visited her at 11 Wythe after purchase of building on October 24, 2018; same agent reminded her as to the new online payment system which it created and stated for leasehold of 11 Wythe and not 9 Wythe. Still, even after she called Petitioner upon receipt of #1Notice after December 31, 2018, to wit, by email on January 14, 2019, instead of curing its defective #1Notice it doubled down and told her to get a lawyer and so she was forced to do exactly that. After expending monies for attorney fees and time away from her business, on the very same basis that she spoke to Petitioner about, the court dismissed #1Notice on July 15, 2019 and specifically stated in its decision,

" the court is hereby putting the parties on notice that if another case is commenced, Article 15 of the lease instructs, directs, governs etc. how the parties must proceed. If not done in accordance with Article 15, the court may make a determination of frivolity."[FN38]

Nevertheless, Petitioner sought a different argument in another attempt to evict her with #2Notice; This time, incredibly claiming that Ms. White had no lease but was rather a month to month tenant arguing that because of the internal conflict within the lease stating both 11 Wythe and 9 Wythe as leasehold premises that Petitioner of its own volition is invalidating the lease as of no existence; Although, well established law holds where any ambiguities or errors in said contract as a lease will inure to the detriment of drafter and to the benefit of non-drafter.[FN39] Therefore, Petitioner as landlord errs in its attempt to shift burden unto Ms. White for its error as drafter, re-emphasizing that Petitioner stands in the shoes of its predecessor in interest. Moreover, it was clear that July 15, 2019 court decision established as a matter of law the validity and existence of the lease for 11 Wythe and not for 9 Wythe, notwithstanding the internal conflicting leasehold premises.

This Court further finds that #1Notice and #2Notice are repeated frivolous proceedings commenced against Ms. White's small business tenancy which could reasonably cause and actually did cause Ms. White to attempt to cede possession of the leased premises of 11 Wythe [*16]and to surrender and waive her rights under Sale Termination Clause 15 as well as Notice Lease Clause 18 based upon the preponderance of evidence. The commencement of these repeated frivolous proceedings did deflect Ms. White from conducting her landscaping design business, causing business disruption and expenditure of moneys to defend, which caused financial injury. It is uncontroverted that Ms. White had not breached any of her obligations under the lease, having been a dutifully timely paying tenant, bar none. As Ms. White testified, fact-finder found that she appeared so very put upon, most certainly seemingly bludgeoned into submission by Petitioner-landlord that she actually did seek to vacate, to surrender, and to waive legitimate contractual rights and protections that she has under the valid lease.

"Every time you get notice you stop, know where you stand, you're looking for new space, you're stressed out, you're finding space. You are finding far more expenses. I've been lucky, I live and work in the same space. I have two little kids that's been monumental. It is hard when that sort of situation get upended. We're looking at space, not same neighborhood. All of this it effect your business. Your spending time, effort not to do what you should do for business growth."[FN40] "Other than the number of notices and court experiences that I have been made to make. Elements we are here today. All of those collectively, in addition to the third notice which I can foresee, you know proceeding regarding that."[FN41]

Further, Petitioner's harassment upon Ms. White's small business caused financial injury in the form of business interference, loss of time away from her clients, unnecessary money paid for attorney fees amounting to $19,509.32 to defend these repeated frivolous proceedings of #1Notice and #2Notice, as well as stress.

"Interference of business. I'm sole proprietor of this business. My job is with clients it is not managing staff. Every hour I'm spending is a hour I'm not doing my operation of business. Looking for spaces, calling landlord, that all comes into play as well. Responding to, you know, e-mail, getting to this point."[FN42]

For all the foregoing reasons, Re-Argument Granted; vacating of dismissal order Denied; Costs and Sanctions pursuant to 22 NYCRR 130-1.1 (c) Denied; and Judgment in the amount of $19,509.32 for attorney's fees in favor of Respondent, ELEVATIONS URBAN LANDSCAPE DESIGN INC Granted.

…….

Footnote 16:An independent business with less than 500 employees (see 2019 Small Business Profile [US Small Business Administration], https://cdn.advocacy.sba.gov/wp-content/uploads/2019/04/23142719/2019-Small-Business-Profiles-US.pdf.). Parenthetically, it is timely that at the writing of This Court's Decision, Federal, State and City governments likewise, as a matter of public policy, are concomitantly redressing deleterious effects of the tragic Coronavirus Pandemic of 2020 encroaching on private rights of contract for small businesses. "Small businesses are the lifeblood of the U.S. economy: they create two-thirds of net new jobs and drive U.S. innovation and competitiveness. A new report shows that they account for 44 percent of U.S. economic activity [GDP]" (Small Businesses Generate 44 Percent Of U.S. Economic Activity [U.S. Small Business Administration], https://advocacy.sba.gov/2019/01/30/small-businesses-generate-44-percent-of-u-s-economic-activity/ [Jan. 30 2019].

Footnote 17:Quite timely as to the imperative national public policy legislative interest in the protection of small businesses, inter alia, in the midst of This Court's decision, was enacted the historically unprecedented two trillion dollar stimulus package titled Coronavirus Aid, Relief and Economic Securities Act (CARES Act) to redress the decimation of our economy by force majeure of Coronavirus Pandemic of 2020.

Footnote 18:"Just as residential tenants are protected from harassment so they can stay in their homes and contribute to the diversity and vibrancy of New York City small business owners deserve protection" (City Council Meeting Committee on Small Business September 25, 2015 tr at 7, lines 20-24); "And the most unscrupulous among them are resorting to really despicable tactics to push out commercial tenants before their lease is up because they know that there is higher rents on the back side"(id. at 11, lines 12-16); "they're also sometimes engaging in shenanigans" (id. at 11, line 25; at 12, line 2); "And frankly until now there just haven't been strong enough protections and sanctions on this kind of behavior" (id. at 12, lines 5-8); "seeks to provide some penalties with teeth so hat tenants who are subjected to this kind of harassment and it is harassment can resort to the courts and win damages to compensate for lost business, to compensate for legal fees, etcetera"(id. at 12, lines 9-14).

Footnote 19:Local Law No. 77 (2016) of City of New York § 22-902.

Footnote 20: Summary of Int. No. 1410-B [New York City Council] https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3860325 & GUID=77C59AE5-3675-48E1-81B6-97F7B26616D4 & Options=ID%7cText%7c & Search=Int+1410 [2019].

Footnote 21:See City Council Stated Meeting September 25, 2019 tr at 36, lines 24-25; at 37, line 2. (Transcript in error states "2018").

Footnote 22:Local Law No. 185 (2019) of City of New York § 22-902.

Footnote 23:City Council Stated Meeting September 25, 2019 tr at 45, lines 12-16.

Footnote 24:See n 22, supra.

Footnote 25:Id.

Footnote 26: " the harassment can take many forms and other acts or omissions that disrupt business operation" (City Council Meeting Committee on Small Business June 20, 2016 tr at 3, line 22; at 4, line 3); " landlord will be guilty of non-residential tenant harassment if he engages in acts or omissions with the intent to deprive a covered tenant of any rights in a lease or other rental agreement, which may include a month-to month agreement and a holdover tenancy" (id. at 4, lines 6-11).

Footnote 27:NYC Admin Code § 22-902 (a) (11).

Footnote 28:Also referred to as the Literal Rule of statutory construction: where the court applies the literal, ordinary or commonplace meaning of an undefined word used in a law, even if in such application fails to reflect the law's legislative intent or the spirit of the law. "If the words of the Statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in that natural and ordinary sense. The words themselves alone do, in such a case, best declare the intention of the law giver" (Sussex Peerage Case, 11 Cl & Fin 85 [1844]; see Whiteley v Chappel, LR 4 QB 147 [1868;] [defendant acquitted where penal statute prohibiting impersonation of a "person" to vote, where court applied Plain Meaning/Literal Rule decided that a dead man is not a "person"]).

Footnote 29:City Council Meeting Committee on Small Business September 25, 2015 tr at 11, lines 12-16.

Footnote 30:Id. at 11, line 25; at 12, line 2.

Footnote 31:Id. at 12, lines 5-8.

Footnote 32:Id. at 12, lines 9-14.

Footnote 33:Women owned small businesses are at all levels of government, federal, state and municipal, qualified as protected class of businesses and special protections are promulgated as a matter of public policy to encourage women owned small businesses, which have been historically under-represented based upon archaic de jure and still existing de facto glass ceiling limitations imposed upon such businesses based upon gender inequality. As such, there is an even higher scrutiny placed upon any harassment interfering with women owned small businesses. Therefore, amended October 26, 2019 Harassment Law included NYC Admin Code § 22-902 (a) (11) to redress harassment threats against protected classes, including women owned small business as Ms. White's small design landscaping business.

Footnote 34:Hearing tr at 29, line 10.

Footnote 35:Id. at 31, lines 3-8.

Footnote 36:Id. at 33, lines 12-16.

Footnote 37:Id. at 33, lines 21-25.

Footnote 38:Respondent Attorney's Affirmation in Support of Motion to Dismiss, Exhibit D.

Footnote 39:See Jacobson v Sassower, 66 NY2d 991 (Ct App 1985).

Footnote 40:Hearing tr at 34, lines 7-15.

Footnote 41:Id. at 58, lines 16-20.

Footnote 42:Id. at 35, lines 10-15."