### City of New York v Goldman 2024 NY Slip Op 30492(U) February 14, 2024 Supreme Court, New York County Docket Number: Index No. 452058/2020 Judge: James E. d'Auguste Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.NYSCEF DOC. NO. 92 INDEX NO. 452058/2020 RECEIVED NYSCEF: 02/14/2024 

### SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. James E. d'Auguste Justice -------------------------------------------·----X THE CITY OF NEWYORK, Plaintiff,
-vLLOYD GOLDMAN, BLDG MANAGEMENT CO. INC., BLDG EAST 38 STREET LLC, BESNICK ZIBA, SOPHIA LAMAS, THE LAND AND BUILDINGS THEREON KNOWN AS 597 AND 581 THIRD AVENUE, BLOCK 919, LOT 001, IN THE COUNTY OF NEWYORK, CITY AND STATE OF NEW YORK, and JOHN DOE AND JANE DOE NUMBERS 1 THROUGH 10, fictitious names, true names unknown, the parties intended being owners, operators, managers, lessees, employees, agents, and all other persons and entities claiming any right, title, or interest in the premises which is the subject ofthis action,Defendants. ----------------------X PART 55
INDEX NO. MOTION DATE 452058/2020 08/16/2021 MOTION SEQ. NO.
___ 00_1
__ _

DECISION/ SETTLE ORDER

The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 14, 15, 16, 17, 18, 19,20,21,22,23,24, 25,26, 27, 28,29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39,40,42,43,44,45,46,47, 48,49, 50, 58, 59,60, 61, 70, 71 were read on this motion to/for INJUNCTION/RESTRAINING ORDER In this action to abate a public nuisance, plaintiffthe City ofNew York (the City) moves by order to showcause for an order, pursuantto Administrative Code ofthe City ofNewYork§§ 7-707 and 28-205.1, CPLR 6311, and Judiciary Law § 140-b, to preliminarily enjoin defendants and their agents, employees, representatives, and others acting in concert with them during the pendency ofthis actionto: (1) immediately comply with all outstanding orders from the NewYork City Department ofBuildings (DOB) related to the premises located at 579 Third Avenue and 581 Third Avenue, Block 919, Lot 001 (together, the Premises), in New York County, including retaining a New York State licensed professional engineer and a DOB-registered contractor to evaluatethePremises,file all necessaryplanstorepairthe Premises andbeginworktopermanently

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### [* 1]NYSCEF DOC. NO. 92 INDEX NO. 452058/2020 RECEIVED NYSCEF: 02/14/2024 repair the structural conditions by a date certain; and (2) immediately abate all conditions at the Premises giving rise to a public nuisance and to refrain from engaging in any further acts or omissions giving rise to apublic nuisance at the Premises. Background Defendant BLDG East 38 Street, LLC (Owner) is the fee owner ofthe Premises, and defendants Sophia Lamas and Besnick Ziba are two of its officers (NY St Cts Elec Filing [NYSCEF] Doc No. 1, complaint, 

### ,i,i 1and 5-7). DefendantBLDGManagement Co. Inc. (BLDG Management) is the managing agent for the Premises, and defendant Lloyd Goldman is its president (id., 

### ,i,i 8-9). Owner, Sophia Lamas, Besnick Ziba, BLDG Management, and Lloyd Grossman (collectively, defendants) are considered "owners" for purposes of liability under Administrative Code§§ 7-706, 27-2004 and 28-101.5 (id., 

### ,i,i 10-11). According to the verified complaint, the Premises consists of two adjacent five-story buildings with 18 rent regulated apartments over ground floor commercial space (id., 

### ,I 14). The two old-law tenement buildings known as 579 Third Avenue and 581 Third Avenue were combined sometime before 1950 and share a party wall (id., 

### ,i,i 1and 16). Atpresent, the ground floor commercial spaces in both buildings are combined, and some ofthe residential apartments straddle the shared party wall (id., 

### ,I 16). The residential portion ofthe Premises has been largely vacant for several years, thoughregistrations on file withthe NewYork State Division ofHousing and Community Renewal (DHCR) in 2019 listthree occupied apartments (id., 

### ,I 17). More recent filings with DOB reveal that two ofthose three apartments are vacant (id.). Defendants have continued to rent the ground floor commercial spaces (id., 

### ,I 24). Defendants are alleged to have "warehoused" numerous rent-regulated apartments at the Premises and havebeenengagedinaneffortto evictthe last-remainingtenant inorderto demolish the Premises and construct a newbuilding that is not subject to rent regulation (id., ,I 18). Since

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I ('' i 

### [* 2]NYSCEF DOC. NO. 92 INDEX NO. 452058/2020 , RECEIVED NYSCEF: 02/14/2024
2009, defendants have filed numerous applications to demolish the Premises, none ofwhich have resulted in the issuance ofapermit (id., 

### 120). In addition, in 2010, defendants filed an application with DHCR for permission to evict rent-regulated tenants and to demolish the Premises, though they withdrew the application four years later (id., 

## 121). In the meantime, it is alleged that defendants have neglected to maintain and repair the Premises (id., 

## 1 19). Since 2006, defendants have been cited 153 times for failing to remove litter in violation ofAdministrative Code § 16-118, whichhas resulted inthe accrual of$10,835 in civil penalties (id., 

### 123). The Premises has also received numerous violations for alleged structural defects beginning as early 1993 (id., 

### 125). In February 1993, DOB issueda violationfor "sagging and slanted steps with door frames falling apart" (id.). Violation no. 34505829Rfrom 2006 noted
a significant slope in the public hallways and stairways at 579 Third Avenue and directed the Owner to "[m]ake all necessary repairs forthwith," but the violation remains unresolved (id., 

### 11 26-27; NYSCEF Doc No. 3, complaint, exhibit B). In May 2020, inspectors from DOB's Forensic Engineering Unit (FEU) responded to a complaint about an adjacent building at 583 Third Avenue, which is also owned by defendants, and conducted a briefinspection (id., 

### 11 30 and 32). Inspectors discovered an open roof stair bulkhead which leftthe interior ofthe Premises exposed to the elements (id., 

## 131). DOB directed the Owner to seal the bulkheads and provide it with access to the Premises for a full inspection (id.). On May 12, 2020, DOB issued Class-I "Immediately Hazardous" violations for the Premises, apartialvacate orderfor 579 ThirdAvenue, and afull vacate orderfor 581 ThirdAvenue (the Vacate Orders) after discovering cracked, leaning brick piers on the first floor, sloped lintels at the second through fifth floors, sloped floors throughout the Premises, and a sloped/damaged and unstable party wall at risk ofcollapse (id., 

## 132; NYSCEF Doc No. 4, complaint, exhibit C). That same date, DOB issued additional Class-I violations and Commissioner's Orders (the

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### [* 3]NYSCEF DOC. NO. 92 INDEX NO. 452058/2020 RECEIVED NYSCEF: 02/14/2024 Emergency Work Orders) directing the Owner to immediately construct shoring ofthe floors supported by the damaged party wall and to brace/shore the party wall (NYSCEF Doc No. 5, complaint, exhibit D). After a reinspection of the Premises, DOB issued two Immediate Emergency Declarations (together, the IEDs) on June 11, 2020 directing the Owner to take immediate action to remediate the conditions by constructing shoring ofthe floors and roofthat
are supported by the damaged party wall and constructing bracing and shoring ofthe damaged party wall (NYSCEF Doc No. 

### 1,, 35; NYSCEF Doc No. 6, complaint, exhibit E). Then, on September 17, 2020, DOB issued two additional Class-I violations and Commissioner's Orders for the Premises (the Permanent Repair Orders) (NYSCEF Doc No. 

### 1,, 37). The Permanent Repair Orders noted that the Owner had "temporarily shored/braced the party wall" per the IEDs from June and directed the Owner to retain a New York State licensed professional engineer and
a DOB-registered contractor to evaluate the Premises in its entirety, file permits to repair the Premises by November 15, 2020, and begin work by January 15, 2021 (NYSCEF Doc No. 7, complaint, exhibit F). After defendants failed to fully repairthe conditions noted above, the City commencedthis actiononOctober 10, 2020. Theverifiedcomplaintpleadsfour causes ofactionfor: (1) a statutory public nuisance for violations of the New York City Construction Codes (the Construction Codes)1; (2) a statutory public nuisance for failing to the maintain the Premises in safe condition under Administrative Code § 28-301.1; (3) a statutory public nuisance for failure to remove garbage and other debris under Administrative Code § 16-118 (2); and a violation of Administrative Code § 27-2005 for tenant harassment based on a repeated failure to remedy hazardous andimmediatelyhazardousviolationsthat substantiallyinterfere withthosetenants who

1 The New York City Building Code forms part ofthe Construction Codes (Administrative Code § 28- 101.1). 452058/2020 CITY OF NEWYORK vs. GOLDMAN, LLOYD Motion No. 001 Page 4 of 16


### [* 4]NYSCEF DOC. NO. 92 INDEX NO. 452058/2020 RECEIVED NYSCEF: 02/14/2024 lawfully reside atthe Premises. The City seeks declaratory and injunctivereliefand civilpenalties authorized under Administrative Code §7-706 (h). The Parties' Contentions The City moves for apreliminary injunction compelling defendants to abate the conditions noted in the DOB violations, above, based on the verified complaint and its exhibits. Defendants oppose and argue that the City has failed to meet the elements necessary to
secure apreliminary injunction and that the reliefsought on the application relates to the ultimate relief sought in this action. Defendants maintain that DOB issued unnecessary, redundant violations because DOB was aware that they had remedied the conditions. Defendants further argue that the City preemptively filed this action because the mostrecent violations allowed them until November 15, 2020 to file permits to repair the Premises. Defendants offer affidavits from BLDG employees Scott Zecher (Zecher), Executive Vice President, Alan Starkman (Starkman), VicePresident, andZivZamir(Zamir), AIA, ChiefArchitect; an affidavit from JamisonD. Morse, P.E, (Morse), Principal and Director ofthe Structures Division at PVE Engineering (PVE); an affidavit from Charles Pisano, Jr., P.E., (Pisano), President of The Eipel Engineering Group, D.P.C. (Eipel); and correspondence with DOB. After receiving the Emergency Work Orders, defendants retained PVE to devise a planto address the violations (NYSCEF DocNo. 19, Starkman aff, ,i 4; NYSCEF Doc No. 20, Zamir aff, 

### ,i 2; NYSCEF Doc No. 37, Zamir aff, exhibit 15). On May 13, 2020, PVE corresponded with Ian R. King, P.E. (King) ofDOB onthe proposed work (NYSCEF Doc No. 21, Morse aff, 

### ,i 9). Alan Dudley, P.E. (Dudley), a senior project manager at PVE, wrote that PVE proposed installing shoring downto the foundation thatwill carry downthe roofand floor loadthat is framing into the [party] wall
... [to] relieve some of the loads on the wall" (NYSCEF Doc No. 29, Morse affirmation, exhibit 7 at 1 ). Dudley also expressed "concern[ ] aboutthe ground floor level where
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### [* 5]NYSCEF DOC. NO. 92 INDEX NO. 452058/2020 RECEIVED NYSCEF: 02/14/2024

we see cracking in the wall" and proposed "install[ing] shoring
... to redistribute to the load due to the self-weight ofthe wall down to the cellar level and relieve the stress on the piers that are failing" (id.). King responded the next day, writing that the proposal "is certainly along the lines ofwhat I expected to see as part ofthe scope ofthe emergency work" (NYCSEF Doc No. 30, Morse affirmation, exhibit 8 at 1 ). King also asked PVE to reconsider the easternmostpart ofthe shoring that ran beyond the 55-foot-long party wall, which would have affected the occupied part ofthe Premises withthe street address of203 East 38th Street (id). Defendants retained Armteck Construction as the general contractorto performthe work (NYSCEF DocNo. 19,, 10). By letter dated June 16, 2020, defendants informed DOB's Manhattan Borough Commissioner that it had begun work to address the structural issues at the Premises (NYSCEF Doc No. 33, Starkman aff, exhibit 11). PVE also furnished DOB with daily field reports (NYSCEF Doc No. 21, , 18; NYSCEF Doc No. 39, Morse aff, exhibit 17). Defendants maintain that DOB issued the Permanent Repair Orders unnecessarily when theremedial work was ongoing (NYSCEF DocNo. 19,, 13). PVEinformedDOB by letterdated October 9, 2020 that it had designed a shoring structure that was meant to remain in place for a minimum of 10 years and offeredto monitorthe Premises quarterly for 60 months to confirm that the Premises was secure and was not a threat to public safety (NYSCEF Doc No. 21,, 22). In addition, PVE stated that the shoring "is intended to be permanent until the next use for the buildings is determined," and after 60 months ofmonitoring, "BLDG, in coordinationwith DOB, will determine ifthe building is ready to be demolished, as has always been the intent, or ifit requires some repairsto ensurethatthe building cancontinueto standin a safe manner" (NYSCEF Doc No. 35, Morse aff, exhibit 13 at 2). Starkmanavers thathe and Morse challengedthe issuance ofthe Permanent Repair Orders because PVE's design was "robust," and no further action other than monitoring was necessary (NYSCEF Doc No. 19,, 15). DOB, however, did not rescind the

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### [* 6]NYSCEF DOC. NO. 92 INDEX NO. 452058/2020 RECEIVED NYSCEF: 02/14/2024

Permanent Repair Orders (id.). In addition, defendants retained Eipel to conduct a peer review and an independent inspection (NYSCEF Doc No. 22, Pisano aff, , 9). Pisano informed DOB by letter on October 15, 2020 that it was his professional opinion "the installed shoring combined with the proposed periodic monitoring program is sufficient to maintain the buildings in a state that will protectthe public for at least five years" (NYSCEF Doc No. 36, Pisano aff, exhibit 14). Furthermore, defendants deny any claim oftenant harassment. Zecheraversthatthe entire Premises is vacant, and that the tenant referred to the complaint resides in an adjoining property located at 203 East 38th Street (NYSCEF Doc No. 18, Zecher aff,, 11). Zecher further aversthat the alleged conditions do not affectthe adjoining property, and that the sole tenantis not in danger because DOB did not issue a full orpartial vacate order (id.). Inreply, the Cityrejectsthe contentionsthatDOB'sorders are duplicative andthatthe sole tenant at the Premises and the public at large are not in danger. On these points, the City tenders
an affidavitfrom King. KingexplainsthatFEUis a specialinvestigativeunitcomposedoflicensed professional engineers who respond to building collapses and other incidents where the stability
or structure ofabuilding is compromised (NYSCEF DocNo. 43, King aff,, 1). Part ofhis duties include investigating the structural integrity of buildings and enforcing compliance with the Building Code (id.). King avers that DOB visited the Premises on May 7, 2020 while performing an on-site structural stability assessment of583 Third Avenue, which is on the same tax lot as the Premises (id.,, 25). Inspections onMay 12, May 15, and June 11, 2020 revealed: (1) distress along 40 feet ofthe 55-foot-long sharedparty wall; (2) crackedanddisplacedbricksinthebrickpiers supporting openings, piers that were "racked" ormoved out ofplumb by the building's load, and sloped steel lintels at the ground floor commercial unit; and (3) cracked finishes and walls and sloped lintels, arches and floors in the upper floors ofthe Premises (id.,, 26). At 581 Third Avenue, the first452058/2020 CITY OF NEWYORK vs. GOLDMAN, LLOYD Motion No. 001 Page 7 of 16


### [* 7]NYSCEF DOC. NO. 92 INDEX NO. 452058/2020 RECEIVED NYSCEF: 02/14/2024
floor framing was saturated and rotted, and the framing at the rearwas sagging and collapsing due to rot (id, 

### ,-i 26). King determined that the party wall was unstable and at risk ofcollapse, though the 20-foot-long north wall of579 Third Avenue was not damaged (id, 

### ,-i 27). King issued Class1 "immediately hazardous" violations for Administrative Code § 28-301.1 violations (id, 

### ,-i 28). Submitted with King's affidavit are numerous photographs depicting the conditions at the Premises (NYSCEF Doc No. 47, King aff, exhibit D). King explains that DOB did not issue duplicative or redundant orders. The Emergency Work Orders allowed defendants to bypass normal permitting requirements under Administrative Code § 28-105.4.1 and begin remedial work immediately (NYSCEF Doc No. 43, 

### ,i,-r 29-30 and 38). Defendants did notbeginworkimmediately, and Kingrecalledthat Starkmanhad asked DOB to extendtheVacate Ordersto 203 East 38th Street so defendants could seekto demolishthe entire Premises (id., 

### ,i 35). King avers that defendants had yet to begin the emergency work when he reinspected the Premises onJune 11, 2020, and he issued the IEDs as a result (id., 

### ,i 36). Once a hazardous condition has been temporarily remediated, DOB issues an order directing permanent repairs, which King represented happened in this case (id., ,i 38). The Permanent Repair Orders specified additional remedies for defendants to undertake once they completed the emergency work ordered in the Emergency Work Orders, and included target dates for oversight purposes • (id, 

### ,i,-i 37 and 41). These additional remedies included an order directing defendants to retain personnel to evaluatetheentirePremises (id, 

### ,i 37). Kingrepresentsthatina subsequenttelephone conversation, Starkmaninformedhim that defendants did not wishto spend any money to perform permanentrepairs (id, 

### ,-i 40). King deniesthatthere is no dangertotheremainingtenantorthepublic. First, the Premises occupies abusy cornerinManhattan (id., 

### ,-i 66). Second, based onthe records on file withthe City and his personal observations, 201 and 203 East 38th Street and 579 and 581 Third Avenue are all

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### [* 8]NYSCEF DOC. NO. 92 INDEX NO. 452058/2020 RECEIVED NYSCEF: 02/14/2024
part ofthe same structure (id., 

### ,i,i 13 and 16-23). 579 and 581 Third Avenue are old-lawtenement buildings that share a 55-foot-longparty wall thatruns eastfrom Third Avenue (id., 

### ,i 8). Thewall extends 20 feet beyond 581 Third Avenue to form the north wall of579 Third Avenue (id.). Both 579 and 581 Third Avenue were renovated and combined, with 579 Third Avenue further divided into 201 and 203 East 38th Street (id., 

### ,i 9). The second-floor apartments at 579 and 581 Third Avenue have been combined and straddle the party wall (id., 

### ,i 10). These apartments are accessible via an entrance with the street address of201 East 38th Street (id., 

### ,i 14). 579 Third Avenue containsan additional four apartments, which are accessible viaanentrance withthe street address of203 East 38th Street (id.). Before beginning the emergency work, defendants filed an RC-50 notification with DHCR which listed a single inhabited apartment at 203 East 38th Street (id., 

### ,i 21; NYSCEF Doc No. 46, King aff, exhibit C). King avers that he issued a partial vacate order for 579 Third Avenue for two reasons. King states thatthe 20-foot length ofthe shared wall that forms the north wall for 579 Third Avenue/203 East 38th Street did not appear damaged (NYSCEF Doc No. 43, 

### ,i 45), and PVE confirmed that this part ofthe wall did not present an imminenthazard (id., 

### ,i 51). In addition, the sole remaining tenant at the rear ofthe Premises had
a separate means ofegress (id., 

### ,i 46). That said, King avers that there is still athreat to the tenant should the party wall fail and collapse (id., 

### ,i,i 50 and 52). King avers that apermanentrepair is necessary to ensure thatthe Premises is safe and code compliant (id., 

### ,i 53). The measures installed by defendants are temporary, and a quarterly monitoring program ofa vacant structure for 60 months may fail to yield notice ofworsening underlying conditions (id., 

### ,i,i 53, 57 and 63). Further, shoring is a stopgap measure while a more permanent repair of the structural hazard is completed (id., 

### ,i 63). Thus, "prevention of any collapse or near-collapse situation is abundantly necessary and can be accomplished only by permanently repairing the underlying hazardous conditions" (id., 

### ,i 59).

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### [* 9]NYSCEF DOC. NO. 92
Discussion INDEX NO. 452058/2020 RECEIVED NYSCEF: 02/14/2024

The Nuisance Abatement Law (Administrative Code § 7-701 et seq.) addresses public nuisances, including "flagrant violation[s] ofthe building code
..., all ofwhich interfere with the quality oflife, property values and the public health, safety, and welfare" (Administrative Code § 7-701). The purpose ofthe law is to "create one standardized procedure for securing legal and equitableremedies relatingto the subject matter encompassedby this law, withoutprejudiceto the
use of procedures available under existing and subsequently enacted laws, and to strengthen existing laws onthe subject" (id.). The lawpermitsthe Corporation Counselto bring a civil action to permanently enjoin apublic nuisance (Administrative Code § 7-706 [a]). UnderAdministrative Code §7-707 (a), "the courtmay grant apreliminary injunctionenjoining apublic nuisance within the scope ofthis subchapter
... where thepublichealth, safety orwelfare immediatelyrequires the granting ofsuch injunction." Ordinarily, "[a] party seeking a preliminary injunction must demonstrate by clear and convincing evidence, (1) a likelihood ofsuccess on the merits, (2) irreparable injury absent the granting ofthe preliminary injunction, and (3) a balancing ofthe equities in the movant's favor" (Gilliland v Acquafredda Enters., LLC, 92 AD3d 19, 24 [1st Dept 2011]). However, "[a] municipality seeking a preliminary injunction to enforce compliance with its ordinances or regulations in orderto protectthe public interest
... need only demonstrate a likelihood ofsuccess
on the merits and that the equities weigh in its favor" (City of New York v Beam Bike Corp., 206 AD3d 447, 447-448 [1st Dept 2022]; butsee City of New York v Love Shack, 286 AD2d 240, 242 [1st Dept 2001] [reasoning that the City must satisfy all three prongs before a preliminary injunction may be issued] and City of New York v Bilynn Realty Corp., 118 AD2d 511, 512-513 [1st Dept 1986] ["[t]he three-pronged test for injunctive reliefdoes not apply; no special damage
orinjury to thepublic needbe alleged; andcommissionoftheprohibited actis sufficientto sustain

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### [* 10]NYSCEF DOC. NO. 92 INDEX NO. 452058/2020 RECEIVED NYSCEF: 02/14/2024
theinjunction"]). Themunicipalityneednot showproofofirreparableharm (see BeamBike Corp., 206 AD3d at 448). Furthermore, "[t]he existence ofan adequate remedy at law shall not prevent the granting of temporary or permanent relief" under the Nuisance Abatement Law (Administrative Code § 7-706 [a]). Applying these principles, the City has demonstrated its entitlement to a preliminary injunction under the one-, two- or three-prong tests articulated in Bilynn Realty Corp., Love Shack, or Beam Bike Corp. The definition ofa "public nuisance" includes "[a]ny building
... which is in violation of

... article 301
... ofchapter 3oftitle 28" (Administrative Code§ 7-703 [d]). Administrative Code §28-301.1 provides that: "All buildings and all parts thereofand all other structures shall be maintained in a safe condition
... The owner shall be responsible at all times to maintain the building and its facilities and all other structures regulated by this code in a safe and code-compliant manner and shall comply with the inspection and maintenance requirements ofthis chapter." The Construction Codes allow the City to seek compliance through civil judicial proceedings for civil penalties, injunctive relief, or both and through "[t]he issuance and enforcement of peremptory orders for immediately hazardous, major and lesser violations" (Administrative Code§ 28-201.3 [2] and [4]; see also Administrative Code§ 28-205.1). DOB is tasked with enforcing the Building Code (New York City Charter § 643). "[T]o establish a likelihood ofsuccess onthe merits, aprimafacie showing ofareasonable probability ofsuccess is sufficient" (Bass v WVPreserv. Partners, LLC, 209 AD3d 480, 481 [1st Dept2022]). The allegationsintheverifiedcomplaint,togetherwiththeEmergency WorkOrders, IEDs, and Permanent Repair Orders, amply demonstrate the City's likelihood ofsuccess on the merits. As isrelevanthere, "[a] certificate inwriting by the commissioner, orhis orher authorized representative, shall be presumptive evidence ofany matter stated therein" (Administrative Code

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§ 28-205.1.2.1). In addition, a Class 1 "immediately hazardous violation" is defined, in part, as
one "wherethe violating conditionposes a threatthat severely affects life, health, safety, property, thepublic interest, ora significantnumberofpersons so asto warrantimmediatecorrective action" (Rules ofCity ofNY Dept ofBuildings [1 RCNY] 

### § 102-01 [b] [1]). Here, DOB issued Class 1 immediately hazardous violations for significant structural hazards observed at the Premises, in part, because ofthe seriousrisk ofthe collapse ofthe two buildings. The records showthatnearly 80% ofthe shared party wall was in significant distress. DOB also observed other structural hazards at the Premises. Administrative Code 

### § 28-301.1 imposes an obligation upon owners to maintain their properties in safe condition, and a violation of this section constitutes a public nuisance under the Nuisance Abatement Law. Despite the installation oftemporary bracing and shoring, those actions do notbringthe Premises into compliance withthe Construction Codes. As such, the City has demonstrated its likelihood ofsuccess onthe merits. The City has also satisfied the second prong ofirreparable harm. "[I]rreparable injury is presumed from the continuing existence of an unremedied public nuisance" (Love Shack, 286 AD2d at 242). Here, defendants installed temporary shoring intended to last somewhere between five and 10 years, only, and have not completed more permanent repairs. Defendants' engineer, PVE, acknowledged to DOB that such measures were to remain in place until such time "the buildings are demolished orthe wall is repaired in such a way that the shoring could be removed" (NYSCEF Doc No. 35 at 1). Thus, it does not appear that the Premises is "maintained in a safe condition" per Administrative Code 

### § 28-301.1. Regarding the third prong, the court must weigh the harm to the City in the absence of injunctive relief against the harm to defendants if an injunction is issued (McLaughlin, Piven, Vogel vNolan & Co., 114 AD2d 165, 174 [2d Dept 1996], Iv denied 67 NY2d 606 [1986], citing Nassau Roofing & SheetMetal Co. v Facilities Dev. Corp., 70 AD2d 1021, 1022 [3d Dept 1979],

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### [* 12]NYSCEF DOC. NO. 92 INDEX NO. 452058/2020 RECEIVED NYSCEF: 02/14/2024 appealdismissed48 NY2d 654 [1979]). Here, the balance ofequitiestip inthe City'sfavor. DOB is tasked with investigating the structural integrity and stability ofbuildings throughout the five boroughs and with ensuring compliance with the Construction Codes. A portion ofthe party wall at the Premises forms the north wall ofthe rear part of579 Third Avenue/203 East 38th Street. There were no visible defects in this part ofthe shared wall but, according the RC-50 form dated July 9, 2020 on file with DHCR, Ellen Roman is the rent-stabilized tenant in Apartment D at the Premises (NYSCEF Doc No. 46 at 5). This filing by defendants refutes their assertion that the entire Premisesis vacant. Presumably, a collapse ofthe sharedparty wall (andthe Premises) could endanger this tenant's safety. In addition, the Premises is located on a busy comer in Manhattan. The potential riskto the public at large should the party wall fail, thereby causing all or part ofthe Premises to collapse, eclipses the potential harm to defendants and establishes that the balance of equities weighs in favor ofthe City. Contrary to defendants' contention, the City's remedies are not limited to enforcement proceedings brought by DOB or the New York City Department of Housing Preservation and Development (HPD) in New York City Civil Court. As noted above, the Nuisance Abatement Lawpermits the City to bring a civil actionto enjoin apublic nuisance (Administrative Code § 7- 706 [a]), and Administrative Code§§ 28-201.3 and 28-205.1 allowthe City to bring an action for civilpenalties and injunctive relieffor Construction Codes violations. Next, defendants contendthatthe City has not establishedthe extraordinary circumstances necessary for the issuance ofa mandatory preliminary injunction. The purpose ofa preliminary injunction is to maintain the status quo while an action is pending (Huguenot LLC v Megalith Capital Group Fund 

### L LP, 191 AD3d 530, 530 [1st Dept 2021]). Where the plaintiffseeks an order mandating specific conduct, the right to such reliefmust be clearly established (Second on Second Cafe, Inc. v Hing Sing Trading, Inc., 66 AD3d 255, 265 [1st Dept 2009]). "A mandatory

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### [* 13]NYSCEF DOC. NO. 92 INDEX NO. 452058/2020 RECEIVED NYSCEF: 02/14/2024 injunction should notbe granted, absent extraordinary circumstances, where the status quo would be disturbed and the plaintiffwould receive the ultimate relief sought, pendente lite" (Spectrum Stamford, LLCv 400At!. Tit., LLC, 162 AD3d 615, 617 [1stDept 2018] [internal quotation marks and citation omitted]). Mandatory injunctions have been issued where the structural integrity ofa building has been compromised (see PWLJInc. v Omnipoint Communications, Inc., 2011 WL 13272731, *9 [Sup Ct, NY County, Oct. 31, 2011, Mills, J., index No. 107622/11] [because safety was a paramount concern, the court granted a mandatory preliminary injunction that required T-Mobile to remove its cellular telephone transmitting equipment from roofofa building with significant structural issues]). Here, defendants do not expressly disagree with DOB's assessment that the Premises is in need of structural repairs. In addition to the conditions identified by DOB, PVE informed DOB that it was "concerned about the ground floor level where we see cracking in the wall" (NYSCEF Doc No. 30 at 1). Defendants only disagree with the City on the extent ofthe
measures necessary to bring the Premises into compliance with Administrative Code §28-301.1. Especially when coupled with the element of deference afforded to public safety officials on matters ofpublic safety, defendants do not raise the "sharp issues offact," necessary to defeat a motion for preliminary injunction (Residential Bd. of Managers of the Columbia Condominium v Alden, 178 AD2d 121, 123 [1st Dept 1991]; see also People v. Cherkowsky, 150 Misc 681,683 [Mag Ct, New York Co 1934]). Furthermore, grantingthe injunctiondoes notupendthe statusquo. The PermanentRepair Orders directed defendants to retainpersonnelto evaluatethe entirety ofthe Premises, file permits to perform repair work and begin such work by a date certain. There is no indication that defendants attempted orintendedto comply. Instead, defendants insistthatthe temporary bracing and shoring rendered the Premises safe and that those measures would remain in place until such

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# I lNYSCEF DOC. NO. 92 INDEX NO. 452058/2020 RECEIVED NYSCEF: 02/14/2024
time as defendants determined the next use for the buildings, including demolition. Directing defendants to comply with Administrative Code § 28-301.1, however, does not cause defendants to perform unnecessary work or deprive the City ofthe incentive to prosecute this action to its conclusion (cf Village ofWesthampton Beach v Cayea, 38 AD3d 760, 762 [2d Dept 2007]). Defendants own the Premises and are obligated to maintain it in safe condition. Administrative Code § 28-301.1 imposes this same obligation upon all owners whether the property is occupied, partially occupied, or vacant. Moreover, the temporary shoring and bracing does not resolve the conditions compromising the structural integrity ofthe Premises. In any event, the City is not seeking the ultimatereliefsoughtinthis action, as it also seeks declaratory relief, injunctiverelief relatedto afailure to remove litterand allegedtenantharassment, and civilpenalties. Furthermore, defendants do not dispute that the Premises is located on busy comer ofThird Avenue and East 38th Street. The Emergency Work Orders, IEDs, and PermanentRepair Orders bear a substantial relation to City's interest in safeguarding the health, welfare, and safety ofthe public at large. Finally, defendants' contention that the City's motion is not supported by an affidavit is unpersuasive. For apreliminary injunctionunderthe Nuisance Abatement Law, itmustbe shown by "affidavit and such other evidence as may be submitted, that there is a cause ofaction for a permanent injunction abating a public nuisance within the scope of this subchapter" (Administrative Code§ 7-708; see also CPLR 6312). The City is a governmental subdivisionand ifa party is a governmental subdivision, then under CPLR 3020 (d) (2), "the verification may be made by any person acquainted with the facts." This "standard
... is not synonymous with 'personal knowledge"' (Blake v State of New York, 134 Misc 2d 892, 893 [Ct Cl 1987]). The verification signedby the Assistant Corporation Counselrepresenting the Cityreveals that counsel read the contents of the pleadings and based its contents on information obtained from other departments of the City, statements made to him by officers or agents of the City, and from

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### [* 15]NYSCEF DOC. NO. 92 INDEX NO. 452058/2020- RECEIVED NYSCEF: 02/14/2024
statements, affidavits or affirmations from other persons (NYSCEF Doc No. 1 at 18). Because "[a] 'verifiedpleading' may be utilized as an affidavit wheneverthe latter is required" (CPLR 105 [u]), the City's submission ofa verified pleading, together with DOB records, is sufficient (see State of New York v Please Me LLC, 78 Misc 3d 1236[A], 2023 NY Slip 50432[U], *6 n 5 [Sup Ct, Albany County 2023], citing Blake, 134 Misc 2d at 893). The court has considered the other arguments advanced by the parties and finds them unavailing. Accordingly, it is ordered that the motion ofplaintiffCity ofNew York for preliminary injunction (motion sequence no. 001) is granted. Settle order onnotice.

2/14/2024

DATE CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

452058/2020 CITY OF NEWYORK vs. GOLDMAN, LLOYD Motion No. 001 NO,I AL DISPOSITION t3RANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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