| Aguaiza v Vantage Props., LLC |
| 2010 NY Slip Op 00062 [69 AD3d 422] |
| January 7, 2010 |
| Appellate Division, First Department |
| Jose Ricardo Aguaiza et al.,Respondents-Appellants, v Vantage Properties, LLC, et al., Appellants-Respondents, etal., Defendants. |
—[*1] Robert McCreanor, Sunnyside, for respondents-appellants.
Order, Supreme Court, New York County (Martin Shulman, J.), entered on May 26, 2009,granting defendants' motion to dismiss the amended complaint to the extent of dismissing thefirst cause of action against all defendants and the second cause of action only with respect to theindividual defendants, unanimously modified, on the law, the local statute governing the secondcause of action held to have only prospective application, the matter remanded forreconsideration as to which claims, if any, fall within the effective date of that statute withrespect to the corporate defendants, and otherwise affirmed, without costs.
Plaintiffs' allegations of unlawfully deceptive acts and practices under General Business Law§ 349 presented only private disputes between landlords and tenants, and notconsumer-oriented conduct aimed at the public at large, as required by the statute (see City of New York vSmokes-Spirits.Com, Inc., 12 NY3d 616, 621 [2009]). Accordingly, this claim wasproperly dismissed and it is unnecessary to address the parties' other contentions with respectthereto.
The second cause of action alleged violation of Local Law No. 7 (2008) of City of NewYork, which protects residential tenants from harassment by building owners (AdministrativeCode of City of NY § 27-2005 [d]). This enactment created a new cause of action(see Administrative Code § 27-2115 [h]) to address a perceived effort by landlordsto empty rent-regulated apartments by harassing tenants into giving up their occupancy rights,using such tactics as "commencing repeated baseless or frivolous court proceedings" againstthose tenants (Administrative Code § 27-2004 [a] [48] [d]). Although the statute isremedial in nature, it specifically provides that its terms are to take effect "immediately" (i.e.,March 13, 2008, the date of its enactment) (Local Law No. 7 [2008] of City of NY § 7).No provision was made in the statute for retroactive application of its terms.
The motion court improperly applied the provisions of Local Law 7 retroactively withrespect to the corporate defendants. As a matter of statutory interpretation, "[w]here a statute byits terms directs that it is to take effect immediately, it does not have any retroactive operation oreffect" (McKinney's Cons Laws of NY, Book 1, Statutes § [*2]51 [b], Comment, at 92; State of New York v Daicel Chem. Indus., Ltd., 42 AD3d 301, 302[2007]; Morales v Gross, 230 AD2d 7, 10 [1997]; Majewski v Broadalbin-PerthCent. School Dist., 91 NY2d 577 [1998]). Indeed, it has long been a primary rule ofstatutory construction that a new statute is to be applied prospectively, and will not be givenretroactive construction unless an intention to make it so can be deduced from its wording. AsJudge Cardozo put it, "It takes a clear expression of the legislative purpose to justify aretroactive application" (Jacobus v Colgate, 217 NY 235, 240 [1916]).
Although remedial statutes such as Local Law 7 generally constitute an exception to thegeneral rule that statutes are not to be given retroactive construction, this exception is limited tothe extent that any retroactive application must not impair vested rights (Statutes § 54 [a];Dorfman v Leidner, 150 AD2d 935, 936 [1989], affd 76 NY2d 956 [1990]).Stated differently, "Every statute pertaining to a remedy is retroactive in that it operates upon allpending actions unless they are expressly excepted, but this does not apply to a statute whereby anew right is established even though it be remedial" (Statutes § 54 [a], Comment, at109-110; see Matter of Duell v Condon, 84 NY2d 773, 783 [1995]). For example, aremedial statute is applied to procedural steps in pending actions, and is given retroactive effectonly insofar as the statute provides for a change in the form of the remedy or a new remedy orcause of action for an existing wrong (Shielcrawt v Moffett, 294 NY 180, 188 [1945]).
Here, the wording of the statute is clear with respect to the timing of its effective date."Immediately" is a term in statutory construction with a precise meaning. Moreover, as LocalLaw 7 specifically created a new right of action that did not exist prior to its enactment, it shouldbe applied prospectively only (see Matter of Hays v Ward, 179 AD2d 427, 428-429[1992], lv denied 80 NY2d 754 [1992]).
The matter must thus be remanded to determine which aspects of the second cause of action,if any, remain active under this analysis.
The motion court correctly noted that nothing in Local Law 7 prohibits "joint" claims by agroup of tenants, as an alternative to pleading repeated wrongful conduct against an individual(see Administrative Code § 27-2120 [b]).
Plaintiffs' claimed need for discovery with respect to the individual defendants is unavailingin the absence of allegations that those defendants were de facto owners of the corporatelandlord entities (see Matias v MondoProps. LLC, 43 AD3d 367 [2007]) or participated in tortious conduct (see Peguero v 601 Realty Corp., 58AD3d 556, 559 [2009]). The Local Law 7 claims against them were properly dismissed.
Motion seeking leave to reargue and for other related relief denied. Concur—Andrias,J.P., Sweeny, Nardelli, Catterson and DeGrasse JJ. [Prior Case History: 2009 NY Slip Op31144(U).]