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.

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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."