CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF BRONX: HOUSING PART H ---------------------------------------------------------------x 386 E. 139th STREET TENANTS’ ASSOCIATION, JUAN CANO in his capacity as President of the 386 E. 139th Street Tenants’ Association, WALTER UZHCA, FRANCISCO RUIZ, ROY CANO, BLONNIE RODGERS, LILLIAN MORADA, JULIANA MARTINEZ, SHAQUAN CLARK, LLEIMY GARCIA, Tenant-Petitioners, -againstSAUL PILLAR, Managing Member, SAM ROSEN, Head Officer & Managing Agent, PYRAMID, Managing Agent, and WILLIS APARTMENTS, LLC, Corporation, Index No: HP 40870/2018 ATTORNEY AFFIRMATION IN OPPOSITION TO MOTION TO DISMISS Premises: 386 E. 139th Street aka 249 Willis Avenue Bronx, NY 10454 Owner- Respondents, -andNYC DEPARTMENT OF HOUSING PRESERVATION & DEVELOPMENT, NYC DEPARTMENT OF BUILDINGS, NYC DEPARTMENT OF HEALTH AND MENTAL HYGIENE, and, NYC FIRE DEPARTMENT, Co-Respondents. ---------------------------------------------------------------x RAJIV JASWA, ESQ., an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms the following facts under penalty of perjury, except as to those matters stated upon information and belief; as to those matters, I believe them to be true based upon information provided to me by my clients, and a review of the files maintained within my office; your affirmant also sets forth the following propositions of law: 1. I am of counsel to the Community Development Project at the Urban Justice Center, attorneys for Tenant-Petitioners 386 E. 139th STREET TENANTS’ ASSOCIATION, JUAN CANO in his capacity as President of the 386 E. 139th Street Tenants’ Association, WALTER UZHCA, FRANCISCO RUIZ, ROY CANO, BLONNIE RODGERS, LILLIAN MORADA, JULIANA MARTINEZ, SHAQUAN CLARK, and LLEIMY GARCIA (“Petitioners”) in this proceeding. As such, I am fully familiar with the facts and circumstances of this case. 2. I make this affirmation in opposition to Owner-Respondents’ attempt to bring a Motion to Dismiss that is noticed to be heard on the morning of the first scheduled trial date. 3. The moving papers are defective as to form, untimely, and substantively meritless. 4. By all indications, Owner-Respondents’ attorneys could not have attached valid proof of service to the papers filed with the Bronx Housing Court Clerk’s Office on October 18, 2018 because they did not actually served them on my office until the next day, October 19, 2018. 2 5. But even if the moving papers had been properly served and filed, OwnerRespondents’ last-ditch attempt to delay trial should still fail because the motion has no substantive merit. 6. For example, Owner-Respondents seek dismissal pursuant to CPLR § 3211(a) on grounds that were either waived by stipulation months ago or were waived pursuant to CPLR § 3211(e) when they entered an Answer of “General Denial” on September 17, 2018. 7. An entire subsection of their Memorandum of Law even argued against dismissal pursuant to CPLR § 3211(a) (see Owner-Respondents’ memorandum of law at 12, arguing that it is “extremely difficult to resolve all the factual issues as a matter of law at this juncture,” and that “[t]here is an issue of fact as to the Affidavit which govern [sic.] the different portions of this lawsuit, and for that reason respectfully [sic.] requests the court to dismiss the defendants’ CPRL [a][1] [sic.] motion”). 8. The Court should reject Owner-Respondents’ latest attempt to delay adjudication on the merits and should permit trial to begin as scheduled on October 29, 2018 at 2:15pm. PROCEDURAL BACKGROUND AND RELEVANT FACTS 9. This HP proceeding was initiated by Order to Show Cause signed by the Honorable David J. Bryan on August 6, 2018. A copy of all initiating papers— including the Order to Show Cause; the Affirmation of Immediate Emergency of 3 Catherine Barreda, dated August 2, 2018; the Verified Petition, verified by Tenant-Petitioner Juan Cano on July 18, 2018; the Affidavit in Support: Apartment 3B, executed by Juan Cano on July 18, 2018; the Affidavit in Support: Apartment 5D, executed by Walter Uzhca on July 18, 2018; the Affidavit in Support: Apartment 4D, executed by Francisco Ruiz on July 18, 2018; the Affidavit in Support: Apartment 3D, executed by Roy Cano on July 18, 2018; the Affidavit in Support: Apartment 3C, executed by Blonnie Rodgers on July 18, 2018; the Affidavit in Support: Apartment 3A, executed by Lillian Morada on July 18, 2018; the Affidavit in Support: Apartment 2C, executed by Juliana Martinez on July 18, 2018; the Affidavit in Support: Apartment 2A, executed by Shaquan Clark on July 18, 2018; the Affidavit in Support: Apartment B, executed by Lleimy Garcia on July 18, 2018; and all exhibits annexed thereto—are attached together as Exhibit “A”. 10. The signed Order to Show Cause set a return date of August 13, 2018, temporarily enjoined Owner-Respondents from engaging in any activities in violation of N.Y.C. Admin. Code § 27-2005(d), and “FURTHER ORDERED that, pursuant to CPLR §403, Respondents shall serve on Petitioners’ counsel and file any answer with supporting papers by August 10, 2018” (id. [emphasis in original]). 11. Owner-Respondents did not serve an answer on my office by August 10, 2018. 4 First Court appearance on August 13, 2018 and subsequent events 12. On August 13, 2018, the Law Office of Brian A. Stark appeared as counsel for Owner-Respondents Sam Rosen, Willis Apartments LLC, and Saul Pillar, and the parties stipulated to adjourn the proceeding on consent to September 10, 2018. A copy of the signed Stipulation of Settlement, dated August 13, 2018, is attached as Exhibit “B” (hereinafter “August 2018 Stipulation”). 13. The August 2018 Stipulation required Owner-Respondents to comply with the following provisions: they “shall refrain from violating NYC Admin. Code § 27-2005(d) through and including the adjournment date” (id. at ¶ 2); they “shall immediately restore all alleged essential services including hot and cold water (with adequate pressure) within 24 hours . . .” (id. at ¶ 3); they shall schedule individual apartment access dates by email correspondence to Petitioners’ attorneys (see id. at ¶ 4); they “shall send to Petitioners’ attorneys . . . copies of Petitioners’ current and prior rent-stabilized leases and up-to-date rent breakdowns” on or before August 27, 2018 (id. at ¶ 6); and they “shall serve any answers and cross-claims, if any, on or before September 5, 2018” (id. at ¶ 8). 14. The August 2018 Stipulation also provided that “[a]ll parties consent to jurisdiction” (id. at ¶ 9). 15. Since this proceeding began, Owner-Respondents have not scheduled any individual apartment access dates through my office as required by ¶ 4 of the Stipulation. 5 16. Meanwhile, upon information and belief, Owner-Respondents and their agents have continued to directly approach and demand access from tenants (see affidavit of Sam Rosen in support of motion to dismiss, Ex. A, ¶ 4, claiming that “[t]he biggest problem I face is that tenants are refusing to . . . provide access since Urban Justice Center commenced their lawsuit”, and attaching copy of Work Order for repairs in Apartment # 3B signed by Juan Cano on October 10, 2018). 17. By letter dated August 20, 2018, my office sent a letter to OwnerRespondents’ attorneys providing notice of their client’s non-compliance with ¶¶ 2, 4, and 5 of the August 2018 Stipulation; demanding that their client schedule all future apartment access dates using the protocol mandated by ¶ 4; and demanding that their client comply with ¶ 2 by refraining from any further harassment of the Petitioners. Copies of email and letter correspondence from my office to attorneys for Owner-Respondents between August 13, 2018 and August 20, 2018 are attached as Exhibit “C”. 18. Owner-Respondents’ attorneys did not respond to our written communications about their non-compliance with the August 2018 stipulation. 19. Owner-Respondents’ attorneys did not provide my office with copies of the tenants’ leases or rent breakdowns by August 27, 2018, as required by ¶ 6 of the Stipulation. 6 20. Owner-Respondents’ attorneys did not serve an answer on my office by September 5, 2018, as required by ¶ 8 of the Stipulation. Second Court appearance on September 10, 2018 and subsequent events 21. The attorneys for the parties appeared in Court on September 10, 2018, and stipulated to yet another adjournment. A copy of the signed Stipulation of Settlement, dated September 10, 2018, is attached as Exhibit “D” (hereinafter “September 2018 Stipulation”). 22. As per the September 2018 Stipulation, the “[c]ase [was] adjourned to Monday, Sept. 17, 2018 at 9:30 am at Owner-Respondents’ request to submit its late answer,” and Owner-Respondents were required “to submit their answer to Petitioners’ counsel by email on or before Friday, Sept. 14, 2018 at 5pm” (id. at ¶¶ 1–2). Moreover, the Stipulation required “Owner-Respondents to comply with ¶ 6 on stipulation dated 8/13/18 by providing required doc[ument]s in Court on Sept. 17, 2018,” while providing that “[a]ll other terms in stipulation dated 8/13/18 not superseded remain in full force & effect” (id. at ¶¶ 3–4). 23. Owner-Respondents did not submit a late answer to our office by 5:00pm on September 14, 2018. Third Court Appearance on September 17, 2018 and subsequent events 24. On September 17, 2018, the parties appeared in Court through their attorneys. 7 25. Owner-Respondents’ attorneys did not bring any of the petitioning tenants’ lease or rent breakdown records, as was required by the September 2018 Stipulation. 26. In order to allow for an adjudication of Petitioners’ claims on the merits, Owner-Respondents were permitted to avoid default judgment by immediately entering a hand-written answer of “General Denial” and agreeing to a trial date. A copy of Owner-Respondents’ Answer is attached as Exhibit “E”. 27. Trial was scheduled for October 29, 2018 at 2:15pm, and a pre-trial conference was scheduled for October 15, 2018. Attorneys for both parties were instructed to comply with all requirements for the pre-trial conference set forth in ¶ 7 of the Part H Rules. 28. On or around September 28, 2018, HPD inspected the apartment of Petitioner Lillian Morada, a 94-year-old tenant who lives alone, in response to Ms. Morada’s 311 complaint. The inspection yielded three Class “C” violations for conditions related to inadequate hot and cold water in Ms. Morada’s bathroom sink, as well as a “nuisance consisting hot water exceeding 130 degrees at kitchen sink” (see print-out of All Open Violations retrieved from HPD’s online computerized records on October 22, 2018, attached as Exhibit “F”). 29. Upon information and belief, Owner-Respondent Sam Rosen chose to address Ms. Morada’s 311 complaint by personally appearing at her apartment door on October 8, 2018, making a verbal demand for unscheduled access to her 8 apartment, and verbally intimidating her about making future 311 complaints (see email correspondence from Catherine Barreda to Brian Stark, dated October 9, 2018, attached together with other email correspondence between attorneys as Exhibit “G”). 30. On October 11, 2018, my office sent a proposed joint stipulation of facts to Owner-Respondents’ attorneys by email correspondence (see Ex. G, copy of email correspondence from Rajiv Jaswa to Brian Stark, dated October 11, 2018, together with enclosed proposed Stipulation of Facts). 31. Owner-Respondents’ attorneys did not send a counterproposal or otherwise respond. Fourth Court appearance (scheduled as pre-trial conference) on October 15, 2018 and subsequent events 32. On October 15, 2018, the parties appeared in Court for the scheduled pretrial conference. Petitioners submitted to the Court the following materials, as required by the Part H Rules: a written statement as to the issues to be determined at trial; a list of all witnesses to appear at trial; and a list of all exhibits to be introduced at trial. 33. Owner-Respondents’ attorneys did not submit any of the required pre-trial materials on October 15, 2018. Instead, their attorney attempted to bring a motion to dismiss that appeared to be noticed to be heard on October 26, 2018. A copy of 9 the moving papers that Brian Stark attempted to serve me in-hand on October 15, 2018 is attached as Exhibit “H”. 34. Owner-Respondents’ moving papers were rejected from the bench and, upon information and belief, their attorney was instructed to bring the motion by order to show cause. Petitioners, through their attorneys, expressed to the Court that they desired and intended to proceed with trial at the scheduled time on October 29, 2018, and therefore requested that a return date for any pre-trial motion to dismiss be set for a date prior to October 29, 2018. 35. Despite the instructions from the bench, Owner-Respondents did not bring their motion to dismiss by an order to show cause. Owner-Respondents’ attempt to serve an untimely and defective motion to dismiss noticed for October 29, 2018 at 9:30 am 36. On Monday, October 22, 2018, my office received a FedEx Envelope from the Law Offices of Brian A. Stark with a label indicating an October 19, 2018 Ship Date (Tracking # 773519328409). A photocopy of the rear of the FedEx Envelope with an affixed shipping label is attached together with a printout of the online tracking information for #773519328409 as Exhibit “I”. 37. Enclosed within the aforementioned FedEx Envelope was a copy of Owner-Respondents’ new motion to dismiss papers, with the motion noticed to be heard on October 29, 2018 at 9:30 am. A copy of the Notice of Motion that was served on my office is attached as Exhibit “J”. 10 38. The front page of the new Notice of Motion bore a stamp indicating that opposing counsel had filed these moving papers with the Bronx Housing Court Clerk’s Office on October 18, 2018 (id.). 39. Upon information and belief, the Clerk’s Office requires all motions to be filed with proof of service annexed to the back of the motion papers (see 22 N.Y.C.R.R. § 208.4[a]). 40. By all indications, Owner-Respondents deposited the envelope containing the moving papers into the custody of FedEx for overnight delivery service on October 19, 2018 (see Ex. I, printed copy of FedEx Shipment Facts and Travel History for shipment under tracking number 773519328409, showing that package/shipment was “Picked up” by FedEx October 19, 2018 at 6:07 pm). 41. Pursuant to CPLR § 2103(b)(6), Owner-Respondents completed service of the moving papers on my office on October 19, 2018. 42. It is unclear how Owner-Respondents’ attorneys could have annexed valid proof of service to the moving papers filed with the Clerk’s Office on October 18, 2018 when they did not effectuate service until the following day. ADDITIONAL EVIDENCE IN SUPPORT OF PETITIONERS’ ALLEGATIONS 43. A true and correct copy of the April 5, 2018 Decision and Order of Hon. Kimon C. Thermos in the proceeding captioned Willis Apartments LLC v. 11 Blonnie Rodgers (Index No. L&T 9527/18), together with Notice of Entry and proof of service, is attached as Exhibit “K”. 44. A true and correct copy of the April 11, 2018 Decision and Order of Hon. Kimon C. Thermos in the proceeding captioned Willis Apartments LLC v. Lillian Morada (Index No. L&T 9526/18), together with Notice of Entry and proof of service, is attached as Exhibit “L”. 45. Court records pertaining to eviction proceedings commenced against Petitioners Blonnie Rodgers and Lillian Morada at or around the same time in February 2018 constitute additional evidence that Owner-Respondents unlawfully harassed Petitioners by commencing repeated baseless or frivolous Court proceedings against tenants lawfully residing at 386 East 139th Street (see N.Y.C. Admin. Code § 27-2004[a][48][d-1]). 46. A true and correct copy of the Notice of Violation issued by CoRespondent DOHMH’s Office of Pest Control Services against OwnerRespondent Willis Apartments LLC (ECB Ticket # 0801429521), dated August 24, 2018, is attached as Exhibit “M” (providing Owner-Respondents with notice of violation of NY City Health Code [24 RCNY] § 151.02[a] based upon inspector’s observation that “[t]he following active rat signs were found on premises: Live Rats – front right”). 47. The attached records of post-petition violations placed by Co-Respondents HPD and DOHMH (see, e.g., Ex. F, Ex. M) constitute additional evidence of the 12 substandard housing conditions alleged in the Verified Petition, as well as evidence that Owner-Respondents are unlawfully harassing Petitioners through repeated interruptions or discontinuances of essential services, such as hot and cold water (see N.Y.C. Admin. Code § 27-2004[a][48][b]). CONCLUSION 48. This HP proceeding was commenced on August 6, 2018 by Order to Show Cause accompanied by an Affirmation of Immediate Urgency and nine tenant affidavits, each attesting to need for immediate relief from Owner-Respondents’ harassment. 49. Owner-Respondents’ have since disobeyed multiple Court-ordered filing deadlines and employed a succession of dilatory tactics to avoid adjudication on the merits; meanwhile, the petitioning tenants continue to be subjected to unlawful harassment and unconscionable living conditions. 50. Despite the substandard conditions at 386 East 139th Street—including severe rat infestation, recurring heat and hot water outages, and pervasive plumbing leaks—many tenants remain more afraid of the individuals sent by Owner-Respondents to perform repairs than of the hazardous living conditions they are forced to endure. 51. Hopefully, Owner-Respondents’ strategy of stalling and obstructing at all costs has reached a terminal point, and trial will begin as scheduled at 2:15pm on October 29, 2018. 13 CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF BRONX: HOUSING PART H ---------------------------------------------------------------x 386 E. 139th STREET TENANTS’ ASSOCIATION, JUAN CANO in his capacity as President of the 386 E. 139th Street Tenants’ Association, WALTER UZHCA, FRANCISCO RUIZ, ROY CANO, BLONNIE RODGERS, LILLIAN MORADA, JULIANA MARTINEZ, SHAQUAN CLARK, LLEIMY GARCIA, Tenant-Petitioners, Index No: HP 40870/2018 Premises: 386 E. 139th Street aka 249 Willis Avenue Bronx, NY 10454 -againstSAUL PILLAR, Managing Member, SAM ROSEN, Head Officer & Managing Agent, PYRAMID, Managing Agent, and WILLIS APARTMENTS, LLC, Corporation, Owner- Respondents, -andNYC DEPARTMENT OF HOUSING PRESERVATION & DEVELOPMENT, NYC DEPARTMENT OF BUILDINGS, NYC DEPARTMENT OF HEALTH AND MENTAL HYGIENE, and, NYC FIRE DEPARTMENT, Co-Respondents. ---------------------------------------------------------------x PETITIONERS’ MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO DISMISS LEGAL STANDARD AND BACKGROUND Petitioners commenced this HP proceeding pursuant to CCA § 110(a) and N.Y.C. Admin. Code § 27-2115(h). Owner-Respondents’ motion to dismiss is therefore subject to the rules and procedures set forth at CPLR § 3211 (see CCA § 1002, providing that “CPLR rule 3211, relating to a motion to dismiss, shall apply in this court, except that, with reference to subdivision [e] of said rule, a party's time to move to dismiss a cause of action contained in a pleading to which no response is required shall be within ten days after the service of such pleading”). Although not specified in the Owner-Respondents’ Notice of Motion, their Memorandum of Law appears to argue for dismissal on the following five grounds: that a defense is founded upon documentary evidence (CPLR § 3211[a][1]); that the Court does not have subject matter jurisdiction (CPLR § 3211[a][2]); that the pleading fails to state a cause of action (CPLR § 3211[a][7]); that the Court does not have personal jurisdiction over Owner-Respondents (CPLR § 3211[a][8]); and that the Court should not proceed in the absence of an indispensable party (CPLR § 3211[a][10]). “At the outset, the rules governing CPLR 3211 motions to dismiss are well established” (J.P. Morgan Sec. Inc. v. Vigilant Ins. Co., 21 N.Y.3d 324, 334, [2013]). Procedurally, objections or defenses on grounds including those set forth at CPLR § 3211(a)(1) and CPLR § 3211(a)(8) are deemed waived if they were not raised before the filing of a responsive pleading or in the responsive pleading 1 itself (see § 3211[e]). Substantively, Courts have applied the following rules of decision: “[o]n a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Al Rushaid v. Pictet & Cie, 28 N.Y.3d 316, 327 [2016], reargument denied sub nom. 28 N.Y.3d 1161 [2017], quoting Leon v. Martinez, 84 N.Y.2d 83, 87–88 [1994] [brackets and internal quotation marks in original]). ARGUMENT POINT I THE MOVING PAPERS ARE DEFECTIVE IN FORM PURSUANT TO 22 N.Y.C.R.R. § 208.4(A) The Uniform Civil Rules for the New York City Civil Court state that, [i]n addition to complying with the provisions of CPLR 2101, every paper filed in court shall have annexed thereto appropriate proof of service on all parties where required” (22 N.Y.C.R.R. § 208.4[a]). It appears that Owner-Respondents’ attorneys did not comply with this requirement because, by all indications, they filed the moving papers with the Clerk’s Office before serving them on my office. Owner-Respondents served a copy of the moving papers on my office by FedEx First Overnight Service under tracking number 773519328409 (see Ex. I). The service copy of the Notice of Motion bore a stamp indicating that the moving papers had already been filed with the Clerk’s Office on October 18, 2018 (see 2 Ex. J). All available information regarding the FedEx delivery under tracking number 773519328409 indicates that the moving papers were not deposited into the custody of FedEx for overnight delivery until October 19, 2018 (see Ex. I, photocopy of shipping label affixed to envelope indicating “SHIP DATE: 19OCT18” together with print-out of tracking information for # 773519328409 indicating item was “Picked up” on October 19, 2018 at 6:07 pm). As such, Owner-Respondents’ attorneys did not complete service of the moving papers until October 19, 2018 (see CPLR § 2103[b][6]). Owner-Respondents’ attorneys could not have annexed truthful proof of service to the Notice of Motion they filed with the Clerk’s Office on October 18, 2018 since they had not yet served my office at the time of filing. As such, the motion to dismiss should be rejected as defective in form pursuant to 22 N.Y.C.R.R. § 208.4(a). POINT II OWNER-RESPONDENTS PREVIOUSLY WAIVED ANY OBJECTIONS AND DEFENSES ON THE GROUNDS SET FORTH AT CPLR § 3211(A)(1), 3211(A)(2), AND 3211(A)(8) A. Owner-Respondents consented to this Court’s jurisdiction in the August 2018 Stipulation At the initial return date in this proceeding, on August 13, 2018, OwnerRespondents appeared by counsel and entered into a stipulation to adjourn the proceeding and extend their time to file a responsive pleading (see Ex. B). Paragraph 9 of the August 2018 Stipulation provided that “[a]ll parties consent to 3 jurisdiction” (id.). By signing the Stipulation, Owner-Respondents’ attorneys waived their clients’ right to later raise any jurisdictional objections or defenses, including those provided under CPLR § 3211(a)(2) or § 3211(a)(8). OwnerRespondents’ attempt to raise already-waived jurisdictional objections on the eve of trial should be rejected as untimely and frivolous. B. Pursuant to CPLR § 3211(e), Owner-Respondents’ entry of a “General Denial” Answer waived any objections or defenses under CPLR § 3211(a)(1) or CPLR § 3211(a)(8) CPLR § 3211(e) establishes time limits for asserting certain grounds for dismissal; namely, objections or defenses based upon a ground set forth in either § 3211(a)(1) or § 3211(a)(8) “is waived” if a party failed to raise it in either a preanswer motion or in the answer itself (CPLR § 3211[e]). At the third Court appearance in this proceeding, on September 17, 2018, Owner-Respondents’ attorney entered a handwritten Answer of “General Denial” (Ex. E). Owner-Respondents thereby waived any objection or defense on a ground set forth in either § 3211(a)(1) or § 3211(a)(8). The portions of the moving papers now seeking dismissal on both such grounds should be rejected as untimely and frivolous. 4 POINT III OWNER-RESPONDENTS HAVE NOT ESTABLISHED GROUNDS FOR DISMISSAL PURSUANT TO CPLR § 3211(A)(7) On a motion brought pursuant to CPLR § 3211(a)(7), Courts are limited to an examination of the pleadings to determine whether they state a cause of action. Further, we must accept facts alleged as true and interpret them in the light most favorable to plaintiff; and . . . plaintiff may not be penalized for failure to make an evidentiary showing in support of a complaint that states a claim on its face (Miglino v. Bally Total Fitness of Greater New York, Inc., 20 N.Y.3d 342, 351 [2013], citing Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635 [1976] for proposition that “as long as a pleading is facially sufficient, the plaintiff is not obligated to come forward with claim-sustaining proof in response to a motion to dismiss”). While Owner-Respondents’ moving papers also cited Rovello and acknowledged the same established legal principles, they then proceeded to make frivolous arguments wholly unmoored from this case law. The moving papers characterized Petitioners’ harassment claims as “simply a community spread vicious rumor,” and argued that “[r]umors cannot be trusted and therefore the Petitioner[s] failed to state a cause of action upon [which] relief can be granted” (Owner-Respondents’ memorandum of law at 13). This argument is directly at odds with the case law cited earlier in the moving papers (see id., citing Foley v. D’Agostino, 21 A.D.2d 60, 65 [1st Dep’t 1964] for proposition that “the allegations are deemed to be true, whereby everything that 5 may be reasonably implied may be deemed true as well”). On a CPLR § 3211(a)(7) motion, Courts must “accept facts alleged as true” (Miglino, 20 N.Y.3d at 351 [citation omitted]), and cannot abandon this well-established presumption simply because the moving party has self-servingly described the allegations as an untrustworthy “rumor.” Moreover, all of the claims set forth in the Verified Petition and nine accompanying tenant affidavits were corroborated by annexed documentary exhibits that included Court records as well as computerized records of violations issued against Owner-Respondents by various City agencies (see, e.g., Verified Petition, Ex. C, Order and Judgment entered against Owner-Respondents in HPDinitiated heat/hot water HP proceeding under Index No. 8149/17-BX; Ex. E, printout of computerized records of HPD-issued violations at subject premises as of July 22, 2018; Ex. I, print-out of computerized records of DOHMH inspections of subject premises resulting in findings of “Active Rat Signs” on June 12, 2018, March 5, 2018, April 12, 2017, and March 21, 2017; Ex. K, print-out of computerized record of open DOB-issued boiler violation at subject premises). Additional Court records from eviction proceedings commenced in February 2018 against Petitioners Blonnie Rodgers and Lillian Morada are also annexed to these papers as further proof that Owner-Respondents have engaged in the alleged forms of harassment (see Ex. K, L). 6 Owner-Respondents moved for dismissal based upon a self-serving affidavit from the building’s Managing Agent and two Work Orders concerning repairs in Apartments # 3A and 3B—neither of which have any bearing upon the boiler, staircase, or rodent conditions at issue in this HP proceeding. Such evidence falls far short of establishing grounds for dismissal pursuant to CPLR § 3211(a)(7) (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 [1977] [citations omitted], explaining that on a motion to dismiss, “[w]hen evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate”). POINT IV OWNER-RESPONDENTS’ CANNOT CONCOCT AN INDISPENSABLE PARTY THROUGH SELF-SERVING SPECULATION ABOUT PRIOR OWNERS It is well-established “that dismissal for failure to join a necessary party should eventuate only as a ‘last resort’” (L-3 Commc'ns Corp. v. SafeNet, Inc., 45 A.D.3d 1, 11 [1st Dep’t 2007], quoting Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 N.Y.2d 801, 821 [2003], cert. denied 540 U.S. 1017 [2003]). Even in the absence of a party “who should be joined” under subdivision (a) of CPLR § 1001, Courts still must consider each of the five factors set forth under 7 subdivision (b) before reaching a conclusion that dismissal is warranted (see L-3 Commc'ns Corp., 45 A.D.3d at 11). Owner-Respondents’ self-serving speculation that tenants may have been harassed by prior owners of 386 East 139th Street clearly does not justify the last resort outcome of dismissal under CPLR § 3211(a)(10). Moreover, the tenant affidavits annexed to the Verified Petition included very specific allegations pinpointing Owner-Respondents’ acquisition of the building as the beginning of the substandard conditions and harassment at issue (see, e.g. Ex. A, affidavit of Blonnie Rodgers at ¶ 8, recalling that “[b]efore the new owners took the building, I used to love coming home. . . . But now coming home has become the thing I fear all the time”; Ex. A, affidavit of Francisco Ruiz at ¶ 5, describing being “harassed by the new landlord”; Ex. A, affidavit of Juan Cano at ¶ 9, specifying that ever [s]ince the new owners took over after Vincent Garrow left, things haven’t been the same,” and that under the ownership of “Willis Apartments LLC . . . I never get leases, conditions in the building and my apartment can stay bad forever, and any time I try to call the management office they don’t answer”). Since Petitioners’ harassment allegations are, in fact, specific to the acts or omissions of Owner-Respondents, and because, “in its present incarnation, the joinder provision is to be employed to avoid dismissal” (Red Hook/Gowanus Chamber of Commerce v. New York City Bd. of Standards & Appeals, 5 N.Y.3d 8 EXHIBIT A EXHIBIT B EXHIBIT C /o=urbanjusticecenter/ou=Exchange Administrative Group (FYDIBOHF23SPDLT)/cn=Recipients/ From: Sent: To: Cc: Subject: Attachments: Rajiv Jaswa Monday, August 20, 2018 9:23 PM brianstark@starklawpllc.com; Garett Metcalf Catherine Barreda; Sylvester, Symone (HPD) RE: 386 E. 139th St., Index No. 40870/18 BX 8-20-18 -- Letter to Owner-respondents re unsafe work practices at 386 E 139th St (Index No 40870-18 BX).pdf Good afternoon Brian & Garett, My colleague Catherine, who is out of the office until September 4th, forwarded me the emails below regarding the issues in Apt. 3B. Please see the attached PDF for a letter responding to these emails and explaining our concerns about your clients’ apparent failure to comply with the stipulation entered in the above-captioned HP proceeding. I am sending your office a hard copy of the same via certified mail. Best, RAJIV JASWA Staff Attorney Urban Justice Center Community Development Project 123 William Street, 16th Floor, New York, NY 10038 Tel 646.459.3026 Fax 212.533.4598 http://cdp.urbanjustice.org/ This message and its attachments are sent by a lawyer and may contain information that is confidential and protected by privilege from disclosure. If you are not the intended recipient, you are prohibited from printing, copying, forwarding or saving them. Please delete the message and attachments without printing, copying, forwarding or saving them, and notify the sender immediately. From: Catherine Barreda   Sent: Monday, August 20, 2018 3:51 PM  To: Rajiv Jaswa   Subject: Fwd: 386 E. 139th St., Index No. 40870/18 BX  Catherine Barreda Staff Attorney, Tenants' Rights Community Development Project Please excuse typos and/or brevity, this message was sent by iPhone. Begin forwarded message: 1 From: Brian Stark Date: August 20, 2018 at 2:48:25 PM EDT To: "cbarreda@urbanjustice.org" Subject: Fwd: 386 E. 139th St., Index No. 40870/18 BX Get Outlook for iOS From: Sam   Sent: Monday, August 20, 2018 12:58 PM  To: Arthur Goldshteyn  Cc: management@pyramidprop.com; Brian Stark  Subject: Re: 386 E. 139th St., Index No. 40870/18 BX      Also workers should up today and tenant refused to open door for access On Aug 20, 2018, at 12:46 PM, Arthur Goldshteyn wrote: Brian the HPD attorne is Catherine. Her email is cbarreda@urbanjustice.org      Sam wants you to reach out to attorney    Sam is on this email     Arthur Goldshteyn, M.S.  Manager  Stark Law PLLC  1325 Castle Hill Avenue  Bronx, NY 10462  P: 718‐792‐1200  F: 718‐792‐4594  Visit Our New Website By Clicking The Link Below  https://www.starklawpllc.com      From: Sam   Sent: Friday, August 17, 2018 2:30:41 PM  To: Arthur Goldshteyn; vadgoldesq@gmail.com; Brian Stark Law  office;management@pyramidprop.com  Subject: Re: 386 E. 139th St., Index No. 40870/18 BX Brian I want to notify you if you, That we had arranged access to work in apartment 3B this week and next week and while we were working in said apartment The tenant advised my workers to please leave and not to do any repairs in the apartment because they were making dust. 2 Please note that we are always ready and willing to do repairs however if a tenant will refuse access there is nothing we can do. If you can please reach out to the attorney and notify them that the tenant will not let us work in the apartment. Sam On Aug 15, 2018, at 10:56 AM, Management Office wrote: Good morning, Please let them know that we are working on it today.   Regards, Leah   From: Arthur Goldshteyn [mailto:arthur@starklawpllc.com] Sent: Wednesday, August 15, 2018 10:22 AM To: Sam Rosener; management@pyramidprop.com Subject: Fw: 386 E. 139th St., Index No. 40870/18 BX Importance: High Sam,   See email below from DHPD attorney     Arthur Goldshteyn, M.S. Manager Stark Law PLLC 1325 Castle Hill Avenue Bronx, NY 10462 P: 718‐792‐1200 F: 718‐792‐4594 Visit Our New Website By Clicking The Link Below https://www.starklawpllc.com       From: Garett Metcalf  Sent: Wednesday, August 15, 2018 9:31 AM  To: Brian Stark; Arthur Goldshteyn; nirmala gokhul  Subject: Fw: 386 E. 139th St., Index No. 40870/18 BX       Garett Metcalf, Esq. 3   Associate Attorney Stark Law PLLC 1325 Castle Hill Avenue Bronx, NY 10462 P: 718‐792‐1200 F: 718‐792‐4594       From: Catherine Barreda   Sent: Monday, August 13, 2018 9:39 PM  To: Garett Metcalf  Cc: sylvests@hpd.nyc.gov; Rajiv Jaswa  Subject: 386 E. 139th St., Index No. 40870/18 BX   Good evening, Please find a scanned copy of the OSC and petition for 386 E. 139th Street, Bronx, NY 10454, Index No. 40870/2018, as required by paragraph 10 of this afternoon’s so ordered stipulation. As you all may be aware, while we were in court this afternoon the Tenant Association President, Juan Cano, Apt. 3B, had both Sam Rosen and Dmitri, the superintendent, present in his home to make alleged repairs. As you may also recall, I was sent footage of the alleged repairs performed as they occurred in real time while we were conferencing the instant proceeding. Owner-Respondent told Mr. Cano that they planned to repair his kitchen floor following DHCR’s inspection that found his floor to be uneven and in need of leveling. Please note that this evening, Mr. Cano sent more live footage from his home where an extensive and severe leak exists in his kitchen, where the alleged repairs to the floor were made. This leak is the same leak that existed not long ago that OwnerRespondents claimed they had repaired. Please advise on how your client would like to proceed in consideration of paragraphs 4 and 5 of today’s so ordered stipulation. Thanks in advance and we look forward to hearing from you. Catherine Barreda Pronouns: She/Her Staff Attorney Community Development Project Urban Justice Center 123 William Street, 16th Floor 4   New York, NY 10038 Phone: (646) 923-8319 Fax: (212) 533-4598 cdp.urbanjustice.org Urban Justice Center - CDP The link ed image cannot be display ed. The file may hav e been mov ed, renamed, or deleted. Verify that the link points to the correct file and location. cdp.urbanjustice.org The Urban Justice Center serves New York City's most vulnerable residents through a combination of direct lega service, systemic advocacy, community education and political organizing.         This message and its attachments are sent by a law office and  may contain information that is confidential and protected by  privilege from disclosure. If you are not the intended recipient, you  are prohibited from printing, copying, forwarding, or saving this  email and any attachments. Please notify the sender immediately  if you believe that you are not the intended recipient. 5 URBAN JUSTICE CENTER COMMUNITY DEVELOPMENT PROJECT Date: August 20, 2018 123 William Street, 16th Floor New York, NY 10038 Via Email Correspondence To: Brian Stark, Esq. Garrett Metcalf, Esq. Stark Law PLLC Attorneys for Owner-Respondents Re: Compliance with Stipulation entered in 386 E. 139th Street Tenants’ Association et al. v. Saul Pillar et al. (Index No. L&T 40870-18/BX) Counsel: I write in regards to the August 13, 2018 stipulation entered in the above-captioned HP proceeding that adjourned the Order to Show Cause to September 10, 2018 for all purposes. Paragraph 2 of the subject stipulation mandates that Ownerrespondents shall refrain from violating NYC Admin. Code § 272005(d) through and including the adjournment date. Paragraph 4 mandates that Owner-respondents shall schedule all individual apartment access dates by email correspondence to Petitioners’ attorneys, while Paragraph 5 requires Owner-respondents to fully comply with all notice requirements for accessing Petitioners’ apartments for inspections or repairs pursuant to the Housing Maintenance Code and its implementing rules and regulations. We have reason to believe that your client(s) are not in compliance with Paragraphs 4 and 5 of the stipulation, and also may be in breach of Paragraph 2. To date, my office has not received any requests to schedule individual apartment access dates as was required under Paragraph 4 of the stipulation. Instead, you recently forwarded our office copies of email correspondence that you apparently received from your clients, Sam Rosen and Pyramid Properties, alleging that the tenant in Apartment # 3B “refused to open [the] door for access.” Such allegations lack any merit when your client(s) never even attempted to schedule access dates for Apartment # 3B in the manner required by Paragraph 4 of the stipulation. Moreover, we have reason to believe that your client(s) and/or their agents may have been engaged in acts or omissions in violation of § 27-2005(d) of the Housing Maintenance Code, incorporated by reference in Paragraph 2 of the stipulation. It is our understanding that throughout the week of August 13th to August 17th, 2018, our client Juan Cano, tenant of record in Apartment # 3B, voluntarily provided access to your client(s) and their workers/agents to make repairs in his apartment. Upon information and belief, the workers began performing electrical work in the subject apartment despite the fact that such workers did not have any permits or licenses as required by law. Upon information and belief, on August 14, 2018, a DOB inspector and/or Marshal appeared at the subject apartment, observed unlicensed/unpermitted electrical repairs being performed, and instructed the workers that they were not allowed to perform such work without proper licenses and/or permits. As a result, the workers simply abandoned such repairs after having ripped electrical wiring and/or fixtures out of the walls and ceiling, as depicted in the photographs below, taken on August 17, 2018: 2 Upon information and belief, on or around August 17, 2018, workers also began saw-cutting sheetrock in the living room of Apartment # 3B in a manner that generated massive amounts of sheetrock dust, which quickly dispersed throughout the apartment. Our client, Mr. Juan Cano, apparently attempted to discuss his safety concerns with the workers—in particular, how inhaled sheetrock dust may adversely affect his children and family—but the workers refused to listen or make any efforts to ensure their work practices were adequately protective of Mr. Cano’s children and family. Below are pictures of the above-described conditions, each taken, upon information and belief, on August 17, 2018: 3 Mr. Cano is willing to resume providing access to his apartment so that the work that was begun in his apartment last week can be properly completed. However, such work must be performed by licensed workers and with proper DOB permits, as required by law. Moreover, such work must be performed in a manner that does not render Mr. Cano’s apartment wholly unsafe and largely uninhabitable, as it has been over the past seven days. Please contact our office by 4 email correspondence if your client wishes to schedule such additional access dates to Apartment # 3B utilizing the protocol mandated by Paragraph 4 of the stipulation. To the extent we receive any further information indicating that your client(s) are engaging in acts or omissions that amount to harassment of the Petitioners, we are prepared to restore the underlying HP proceeding to the calendar immediately and seek any and all appropriate relief. We appreciate your attention to this matter, and look forward to your future compliance with all terms and conditions in the August 20, 2018 stipulation entered under Index No. 40870-18/BX. Sincerely, /X/ RAJIV JASWA Staff Attorney Ph: (646) 459-3026 Email: RJaswa@urbanjustice.org cc: NYC Dep’t of Housing Preservation and Development Attorneys for Co-Respondents Symone Sylvester, Esq. SylvestS@hpd.nyc.gov 5 EXHIBIT D EXHIBIT E EXHIBIT F 10/22/2018 HPD Building Info 10/22/2018 100918 HPD Building, Registration & Violation Home Services --- Select --- The selected address: 249 WILLIS AVENUE, Bronx 10454 HPD# 125019 Active Range 249-249 Block 02301 Lot CD CensusTract 0023 1 3900 Stories 5 A Units 18 B Units 0 Ownership PVT Registration# 210328 Class A Other Units Property Owner Registration Information Charges Complaint Status Complaint History Litigation/Case Status Tenant Harassment Report All Open Violations prior year Open Viol.'s Ecertification Overdue Lead Paint Viol. Correction Vacate Orders I-Card Images PROS Online Map Building Registration Summary Report Clear Find Apartment# Owner Last Reg Dt Reg Expire Dt Head Officer 09/11/2018 09/01/2019 Corporation 09/11/2018 09/01/2019 WILLIS APARTMENTS, LLC Managing Agent 09/11/2018 09/01/2019 WILLIS APARTMENTS LLC Organization Search Last Nm First Nm PILLER SOL ROSEN SAM House Street Nm No Apt City State Zip 1425 38TH STREET BROOKLYN NY 11218 1425 38TH STREET Brooklyn NY 11218 1425 38TH STREET BROOKLYN NY 11218 Open Violations - ALL DATES There are 18 Violations. Arranged by category: A class: 1 class: 0 B class: 11 C class: 6 I For Definitions of the columns indicated below, select glossary under the Services option (located at the upper right). To sort the columns, click on their underlined headers below in the blue area. Apt Reported Story Date, nov ISSUED Date Hzrd Order Violation Violation Description Class no ID, NOV ID, NOV Type Status Status Date Certify By Date Actual Cert. Date 3B 3 2018/10/01 B 2018/10/04 702 12616968 § 27-2045 adm code repair or replace the smoke 6210527 detector (defective) located at apt 3b, 3rd story, 1st Original apartment from south at west CIV14 2018/11/22 MAILED 2018/10/08 2018/10/09 3B 3 2018/10/01 B 2018/10/04 1503 12616969 § 27-2046.1 hmc: repair or replace the carbon 6210527 monoxide detecting device(s). (defective) located at Original apt 3b, 3rd story, 1st apartment from south at west CIV14 2018/11/22 MAILED 2018/10/08 2018/10/09 3A 3 2018/09/28 C 2018/10/03 576 * 12611097 § 27-2024 adm code provide adequate supply of cold 6209237 water for the fixtures at wash basin in the bathroom Original located at apt 3a, 3rd story, 1st apartment from west at north CIV14 2018/10/16 MAILED 2018/10/08 2018/10/09 3A 3 2018/09/28 C 2018/10/03 577 * 12611102 § 27-2024 adm code provide adequate supply of hot 6209237 water for the fixtures at wash basin in the bathroom Original located at apt 3a, 3rd story, 1st apartment from west at north CIV14 2018/10/16 MAILED 2018/10/08 2018/10/09 3A 3 2018/09/28 B 2018/10/03 501 12611242 § 27-2005 adm code properly repair the broken or CIV14 2018/11/21 6209236 defective window frame in the bathroom located at apt MAILED 2018/10/16 Original 3a, 3rd story, 1st apartment from west at north 2018/10/17 3A 3 2018/09/28 B 2018/10/03 508 12611305 § 27-2005 adm code repair the broken or defective 6209236 plastered surfaces and paint in a uniform color at west Original wall in the bathroom located at apt 3a, 3rd story, 1st apartment from west at north 3A 3 2018/09/28 C 2018/10/02 510 12611377 § 27-2005 adm code & 309 m/d law abate the nuisance CIV14 2018/10/15 6208249 consisting of hot water exceeeding 130 degrees at MAILED 2018/10/08 Original kitchen sink thermometer # 3458 in the kitchen 2018/10/09 located at apt 3a, 3rd story, 1st apartment from west at north 3A 3 2018/09/28 B 2018/10/02 508 12611453 § 27-2005 adm code repair the broken or defective 6208248 plastered surfaces and paint in a uniform color at Original ceiling in the kitchen located at apt 3a, 3rd story, 1st apartment from west at north CIV14 2018/11/20 MAILED 2018/10/16 2018/10/17 3A 3 2018/09/28 B 2018/10/02 530 12611473 § 27-2005, 2007 adm code arrange and make self6208248 closing the doors ... in the entrance located at apt 3a, CIV14 MAILED https://hpdonline.hpdnyc.org/HPDonline/select_application.aspx CIV14 2018/11/21 MAILED 2018/10/16 2018/10/17 2018/11/20 2018/10/16 1/2 10/22/2018 HPD Building Info Original 3rd story, 1st apartment from west at north 2018/10/17 5D 5 2016/10/11 B 2016/10/19 530 11429732 § 27-2005, 2007 adm code arrange and make self5539565 closing the doors to apartment in the entrance located Original at apt 5d, 5th story, 1st apartment from east at south 5D 5 2016/10/11 B 2016/10/17 508 11429863 § 27-2005 adm code repair the broken or defective 1 NO 2016/12/05 5537014 plastered surfaces and paint in a uniform color the ACCESS Original south wall in the bathroom located at apt 5d, 5th story, 2017/08/11 1st apartment from east at south 5D 5 2016/10/11 B 2016/10/17 550 11429883 § 27-2005 hmc:trace and repair the source and abate 5537014 the nuisance consisting of mold ... the west wall in the Original bathroom located at apt 5d, 5th story, 1st apartment from east at south 1 NO 2016/12/05 ACCESS 2017/08/11 5D 5 2016/10/11 B 2016/10/17 702 11429945 § 27-2045 adm code repair or replace the smoke 5537014 detector inoperative in the entire apartment located at Original apt 5d, 5th story, 1st apartment from east at south 1 NO 2016/12/05 ACCESS 2017/08/11 5D 5 2016/10/11 B 2016/10/17 1503 11429961 § 27-2046.1 hmc: repair or replace the carbon 1 NO 2016/12/05 5537014 monoxide detecting device(s). inoperative in the entire ACCESS Original apartment located at apt 5d, 5th story, 1st apartment 2017/08/11 from east at south 3B 3 2015/07/07 A 2015/07/09 556 10775135 § 27-2013 adm code paint with light colored paint to 5155404 the satisfaction of this department all peeling paint Original surfaces in the bathroom , the 3rd room from east located at apt 3b, 3rd story, 1st apartment from west at north 4C 4 2010/01/25 C 2010/02/02 616 8262011 3860382 Original § 27-2056.6 adm code - correct the lead-based paint 1 NO 2010/03/05 hazard - presumed lead paint that is peeling or on a ACCESS deteriorated subsurface using work practices set forth 2017/08/11 in 28 rcny §11-06(b)(2) 1st window frame from west at north wall in the 2nd room from east located at apt 4c, 4th story, 2nd apartment from west at north 2D 2 2009/06/18 C 2009/07/02 616 7944335 3672220 Original § 27-2056.6 adm code - correct the lead-based paint DEFECT 2009/08/02 hazard - presumed lead paint that is peeling or on a LETTER deteriorated subsurface using work practices set forth 2010/01/26 in 28 rcny §11-06(b)(2) ceiling, north wall, 1st window frame from east at south wall in the kitchen located at apt 2d, 2nd story, 1st apartment from north at east 2D 2 2005/06/24 C 2005/06/29 617 5576275 2441920 Original § 27-2056.6 adm code - correct the lead-based paint DEFECT 2005/07/30 hazard - paint that tested positive for lead content and LETTER that is peeling or on a deteriorated subsurface - using 2010/01/26 work practices set forth in 28 rcny §11-06(b)(2) baseboard at south wall, 3rd door frame from east at south wall in the foyer located at apt 2d, 2nd story, 1st apartment from north at east https://hpdonline.hpdnyc.org/HPDonline/select_application.aspx 1 NO 2016/12/07 ACCESS 2017/08/11 1 NO 2015/10/26 ACCESS 2017/08/11 2/2 EXHIBIT G /o=urbanjusticecenter/ou=Exchange Administrative Group (FYDIBOHF23SPDLT)/cn=Recipients/ From: Sent: To: Cc: Subject: Attachments: Rajiv Jaswa Thursday, October 11, 2018 12:07 AM Brian Stark; Garett Metcalf Catherine Barreda Re: 386 E. 139th St., Index No. 40870/18 BX joint stip of facts -386 e. 139th st (10-10-18 RJ).docx Counsel:    As per Judge Bryan's Part Rules, we are sending you a proposed joint stipulation of facts, as attached. Let us  know if you would like to discuss the proposed joint stipulation prior to Monday's pre‐trial conference date, or  if you have a counterproposal for us to review.    Best,  Rajiv Jaswa    From: Catherine Barreda  Sent: Tuesday, October 9, 2018 1:26 PM  To: Brian Stark  Cc: Rajiv Jaswa  Subject: RE: 386 E. 139th St., Index No. 40870/18 BX      Brian,      As per my recent telephone call with Vadim, I want to reiterate that Sam Rosen and/or his agents approaching our 94‐ year‐old client, Lillian Morada (Apt. 3A), on a holiday to scold her for calling 3‐1‐1 about a leak they knew/should have  known about is unacceptable and we believe it to be further evidence of harassment that the Tenant Association  described in their petition.       During his unannounced visit, Sam took notes and told Ms. Morada that his workers would return today/tomorrow to  perform work.  We ask that in advance of the return to Ms. Morada’s apartment, your office provide the  names of the  workers, the time they will arrive, describe work to be performed, and provide the license number for anyone qualified  to perform the work necessary – specifically for treatment of the mold in the bathroom.      I also provided Vadim with my cell phone number in light of our previous stipulation, dated August 13, 2018, which  requires your client provide notice to our office when requesting access from the tenants so that we may confirm their  availability.  I am offering my cell with the understanding that it will be used in lieu of email only where emergency  conditions exist and immediate entrance to an apartment becomes necessary.      We look forward to hearing from you.   Catherine      From: Brian Stark [mailto:brianstark@starklawpllc.com]   Sent: Monday, August 20, 2018 2:48 PM  1 To: Catherine Barreda   Subject: Fwd: 386 E. 139th St., Index No. 40870/18 BX         Get Outlook for iOS  From: Sam   Sent: Monday, August 20, 2018 12:58 PM  To: Arthur Goldshteyn  Cc: management@pyramidprop.com; Brian Stark  Subject: Re: 386 E. 139th St., Index No. 40870/18 BX      Also workers should up today and tenant refused to open door for access   On Aug 20, 2018, at 12:46 PM, Arthur Goldshteyn wrote:  Brian the HPD attorne is Catherine. Her email is cbarreda@urbanjustice.org       Sam wants you to reach out to attorney     Sam is on this email      Arthur Goldshteyn, M.S.  Manager  Stark Law PLLC  1325 Castle Hill Avenue  Bronx, NY 10462  P: 718‐792‐1200  F: 718‐792‐4594  Visit Our New Website By Clicking The Link Below  https://www.starklawpllc.com        2 From: Sam   Sent: Friday, August 17, 2018 2:30:41 PM  To: Arthur Goldshteyn; vadgoldesq@gmail.com; Brian Stark Law office;management@pyramidprop.com  Subject: Re: 386 E. 139th St., Index No. 40870/18 BX     Brian      I want to notify you if you, That we had arranged access to work in apartment 3B this week and next week and while we were working in said apartment The tenant advised my workers to please leave and not to do any repairs in the apartment because they were making dust.     Please note that we are always ready and willing to do repairs however if a tenant will refuse access there is nothing we can do.   If you can please reach out to the attorney and notify them that the tenant will not let us work in the apartment.     Sam   On Aug 15, 2018, at 10:56 AM, Management Office wrote:  Good morning,  Please let them know that we are working on it today.     Regards,  Leah     3 From: Arthur Goldshteyn [mailto:arthur@starklawpllc.com] Sent: Wednesday, August 15, 2018 10:22 AM To: Sam Rosener; management@pyramidprop.com Subject: Fw: 386 E. 139th St., Index No. 40870/18 BX Importance: High     Sam,     See email below from DHPD attorney        Arthur Goldshteyn, M.S.  Manager  Stark Law PLLC  1325 Castle Hill Avenue  Bronx, NY 10462  P: 718‐792‐1200  F: 718‐792‐4594  Visit Our New Website By Clicking The Link Below  https://www.starklawpllc.com             From: Garett Metcalf  Sent: Wednesday, August 15, 2018 9:31 AM  To: Brian Stark; Arthur Goldshteyn; nirmala gokhul  Subject: Fw: 386 E. 139th St., Index No. 40870/18 BX           Garett Metcalf, Esq.  4 Associate Attorney  Stark Law PLLC  1325 Castle Hill Avenue  Bronx, NY 10462  P: 718‐792‐1200  F: 718‐792‐4594             From: Catherine Barreda   Sent: Monday, August 13, 2018 9:39 PM  To: Garett Metcalf  Cc: sylvests@hpd.nyc.gov; Rajiv Jaswa  Subject: 386 E. 139th St., Index No. 40870/18 BX     Good evening,      Please find a scanned copy of the OSC and petition for 386 E. 139th Street, Bronx,  NY 10454, Index No. 40870/2018, as required by paragraph 10 of this  afternoon’s so ordered stipulation.     As you all may be aware, while we were in court this afternoon the Tenant  Association President, Juan Cano, Apt. 3B, had both Sam Rosen and Dmitri, the  superintendent, present in his home to make alleged repairs.  As you may also  recall, I was sent footage of the alleged repairs performed as they occurred in  real time while we were conferencing the instant proceeding.  Owner‐ Respondent told Mr. Cano that they planned to repair his kitchen floor following  DHCR’s inspection that found his floor to be uneven and in need of  leveling.  Please note that this evening, Mr. Cano sent more live footage from his  5 home where an extensive and severe leak exists in his kitchen, where the alleged  repairs to the floor were made.  This leak is the same leak that existed not long  ago that Owner‐Respondents claimed they had repaired. Please advise on how  your client would like to proceed in consideration of paragraphs 4 and 5 of  today’s so ordered stipulation.       Thanks in advance and we look forward to hearing from you.     Catherine Barreda   Pronouns: She/Her  Staff Attorney  Community Development Project  Urban Justice Center  123 William Street, 16th Floor  New York, NY 10038  Phone: (646) 923‐8319  Fax: (212) 533‐4598  cdp.urbanjustice.org  Urban Justice Center - CDP The link ed image cannot be display ed. The file may hav e been mov ed, renamed, or deleted. Verify that the link points to the correct file and location. cdp.urbanjustice.org The Urban Justice Center serves New York City's most vulnerable residents through a combination of direct legal service, systemic advocacy, community education and political organizing.            6 This message and its attachments are sent by a law office and may contain  information that is confidential and protected by privilege from disclosure. If you  are not the intended recipient, you are prohibited from printing, copying,  forwarding, or saving this email and any attachments. Please notify the sender  immediately if you believe that you are not the intended recipient.  7 CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF BRONX: HOUSING PART H ------------------------------------------------------------x 386 E. 139th STREET TENANTS’ ASSOCIATION, JUAN CANO in his capacity as President of the 386 E. 139th Street Tenants’ Association, WALTER UZHCA, FRANCISCO RUIZ, ROY CANO, BLONNIE RODGERS, LILLIAN MORADA, JULIANA MARTINEZ, SHAQUAN CLARK, LLEIMY GARCIA, Tenant-Petitioners, -against- Index No: HP 40870/2018 STIPULATION OF FACTS Premises: 386 E. 139th Street aka 249 Willis Avenue Bronx, NY 10454 SAUL PILLAR, Managing Member, SAM ROSEN, Head Officer & Managing Agent, PYRAMID, Managing Agent, and WILLIS APARTMENTS, LLC, Corporation, Owner- Respondents, -andNYC DEPARTMENT OF HOUSING PRESERVATION & DEVELOPMENT, NYC DEPARTMENT OF BUILDINGS, NYC DEPARTMENT OF HEALTH AND MENTAL HYGIENE, and, NYC FIRE DEPARTMENT, Co-Respondents. ------------------------------------------------------------x Parties agree to the following set of facts: 1. The subject building is located at 386 E. 139th Street, Bronx, NY 10454 (a/k/a/ 249 Willis Avenue, Bronx, NY 10454). All apartments listed below are located within the subject premises. 2. The 386 E. 139th Street Tenant Association is a member of the South Bronx Tenants’ Movement, a local grassroots organizing effort to support tenants’ rights in the South Bronx. 3. The 386 E. 139th Street Tenant Association is made up of the following tenants as of October 10, 2018: Juan Cano, Walter Uzhca, Francisco Ruiz, Roy Cano, Juana Cano, Blonnie Rodgers, Lillian Morada, Juliana Martinez, Shaquan Clark, and Lleimy Garcia. 4. Juan Cano is the tenant of record of Apartment 3B and lives with his family. 5. Walter Uzhca is the tenant of record of Apartment 5D and lives with his family. 6. Francisco Ruiz is the tenant of record of Apartment 4D and lives with his family. 7. Roy Cano is a co-tenant of Apartment 3D and lives with Juana Cano, the tenant of record of Apartment 3D. 8. Blonnie Rodgers is the tenant of record of Apartment 3C and lives alone. She is a DRIE recipient. 9. Lillian Morada is the tenant of record of Apartment 3A and lives alone. She is a SCRIE recipient. 10. Juliana Martinez is the tenant of record of Apartment 2C and lives with her family. 11. Shaquan Clark is the tenant of record of Apartment 2A and lives with her family. 12. Lleimy Garcia is the tenant of record of Apartment B and lives with her family. 13. HPD is the city agency charged with enforcing housing standards in New York City and is named as a co-respondent pursuant to Section 27-2115 of the Housing Maintenance Code. 14. In its capacity as the city agency charged with enforcing housing standards, HPD initiated an HP action against Owners for failure to provide heat and hot water to the subject building, L&T Index No. 8149/2017 BX. The case resulted in an Order to Correct and civil penalties to be paid by Owners. 15. On or around November 22, 2016, Owners applied to DOB for approval of Gas Plumbing Work including the “REPLACMENT OF (1) GAS BOILER W/ TANKLESS COIL AND (1) GAS BURNER 20” under LAA # 220278072. On February 6, 2018, DOB disapproved renewal of the permit issued under LAA # 220278072 after the “OWNER [was] CITED ON WORK W/OUT PERMIT VIOLATION.” Owners have not yet resolved this issue or applied to DOB for permit renewals since its February 6, 2018 application was disapproved. 16. Willis Apartments, LLC is registered with HPD as the Corporate Owner of the subject building as that term is defined by Section 4(44) of the Multiple Dwelling Law and Section 272004(a)(45) of the Housing Maintenance Code. 17. Saul Pillar a/k/a Sol Piller a/k/a Saul Piller is registered with HPD as Head Officer of Willis Apartments, LLC and is an “owner” as defined by Section 27-2004(a)(45) of the Housing Maintenance Code. 18. Sam Rosen is registered with HPD as Managing Agent of Willis Apartments, LLC and is an “owner” as defined by Section 27-2004(a)(45) of the Housing Maintenance Code. 19. The individual known to the Tenant Association as “Dmitri” holds himself out to the tenants as the superintendent and/or agent of the Owner. Tenants are instructed to contact Dmitri when any work is needed within the subject building. Dmitri is in possession of the phone numbers of all tenants and directly contacts tenants to speak about issues in the subject building, including activities of the Tenant Association. Dmitri often personally attempts to make repairs and oftentimes supervises the work of others who appear to perform work in the subject building. He has a similar role in other buildings known to be owned by the Owner. 20. The individual known to the Tenant Association as “Ron” holds himself out to the tenants as the superintendent and/or agent of the Owner. Tenants are instructed to contact Dmitri when any work is needed within the subject building. Dmitri often personally attempts to make repairs and oftentimes supervises the work of others who appear to perform work in the subject building. He has a similar role in other buildings known to be owned by the Owner. 21. The tenants of the Tenant Association sent letters to Owners outlining the conditions in each apartment and within public areas of the subject building in late 2016 and early 2017. In the most recent letter, the Tenant Association invited Owners to a press conference scheduled in early May 2017. 22. The Tenant Association held a press conference on May 8, 2017. Owners were not present. Among other media coverage, the Bronx Times released an article on May 22, 2017 about the press conference. 23. The day after the press conference, on or around May 9, 2017, Sam Rosen went to the subject building and began knocking on doors to ask tenants what conditions existed in their homes. 24. In or around February 2018, Owners sued Lillian Morada for nonpayment of rent, L&T Index No. 9526/2018 BX. After Ms. Morada submitted a motion seeking dismissal, the case was discontinued by written decision on or around April 11, 2018 by the Hon. Thermos. 25. In or around February 2018, Owners sued Blonnie Rodgers for nonpayment of rent, L&T Index No. 9527/2018 BX. After Ms. Rodgers submitted a motion seeking dismissal, the case was discontinued by written decision on or around April 5, 2018 by the Hon. Thermos. 26. On or around February 12, 2018, Lillian Morada and Juan Cano each filed with DHCR an Application For A Rent Reduction Based Upon Decreased Services - Individual Apartment. 27. During DHCR’s inspection of apartments within the subject building, Respondent Sam Rosen was present and discussed scheduling repairs with Petitioner Juan Cano. Sam Rosen and Dmitri scheduled repairs to begin in the apartment of Juan Cano, Apartment # 3B, on August 13, 2018, simultaneously with the initial return date of this HP proceeding. Dated: October __, 2018 ___________________________ STARK LAW PLLC By: 1325 Castle Hill Avenue Bronx, NY 10462 Tel: 718-792-1200 Attorneys for Owner-Respondents ___________________________ COMMUNITY DEVELOPMENT PROJECT At the URBAN JUSTICE CENTER By: Catherine Barreda 123 William Street, 16th Floor New York, NY 10038 Tel: 646-923-8319 Attorneys for Petitioners EXHIBIT H EXHIBIT I 10/22/2018 Track your package or shipment with FedEx Tracking 773519328409 Delivered Monday 10/22/2018 at 9:49 am DELIVERED Signed for by: A.MARTINEZ GET STATUS UPDATES OBTAIN PROOF OF DELIVERY FROM TO BRONX, NY US NEW YORK, NY US Shipment Facts T R AC K I N G N U M B E R SERVICE D O O R TAG N U M B E R 773519328409 FedEx First Overnight DT104770104311, DT105112395271, DT105112395271 W E I G HT D E L I V E R E D TO TOTA L P I E C E S 0.5 lbs / 0.23 kgs Receptionist/Front Desk 1 TOTA L S H I P M E NT W E I G HT TERMS PA C K AG I N G 0.5 lbs / 0.23 kgs Shipper FedEx Envelope S P E C I A L H A N D L I N G S E CT I O N S TA N DA R D T R A N S IT S H I P DAT E 10/20/2018 by 9:30 am Fri 10/19/2018 For Saturday Delivery A CT UA L D E L I V E RY Mon 10/22/2018 9:49 am Travel History Local Scan Time Monday , 10/22/2018 9:49 am NEW YORK, NY Delivered 8:07 am NEW YORK, NY On FedEx vehicle for delivery 7:15 am NEW YORK, NY Delivery exception Customer not available or business closed https://www.fedex.com/apps/fedextrack/?tracknumbers=773519328409 1/2 10/22/2018 Track your package or shipment with FedEx Tracking 6:54 am NEW YORK, NY On FedEx vehicle for delivery 6:14 am NEW YORK, NY At local FedEx facility 2:02 pm NEW YORK, NY At local FedEx facility 11:51 am NEW YORK, NY Saturday , 10/20/2018 Delivery exception Customer not available or business closed 9:15 am NEW YORK, NY Delivery exception Customer not available or business closed 8:32 am NEW YORK, NY On FedEx vehicle for delivery 8:16 am NEW YORK, NY At local FedEx facility 7:44 am NEWARK, NJ Departed FedEx location 8:38 pm MOUNT VERNON, NY Left FedEx origin facility 6:07 pm MOUNT VERNON, NY Picked up Friday , 10/19/2018 10:20 am Shipment information sent to FedEx https://www.fedex.com/apps/fedextrack/?tracknumbers=773519328409 2/2 EXHIBIT J EXHIBIT K EXHIBIT L EXHIBIT M Image Copy CityPay 0801429521