Calixto v. A. Balsamo & Rosenblatt, P.C.
Attorneys and Parties
Brief Summary
Residential landlord-tenant litigation involving alleged deceptive rent collection and eviction practices, consumer protection, and attorney misconduct.
The Supreme Court, Kings County granted defendants' motions under CPLR 3211(a) [rule allowing dismissal for failure to state a cause of action] and dismissed the complaint in full.
The Appellate Division reinstated the General Business Law § 349 [deceptive acts or practices declared unlawful] claim and the gross negligence claim against both the building and attorney defendants, and reinstated the Judiciary Law § 487 [attorney deceit with intent to deceive the court or a party] claim against the attorney defendants; it affirmed dismissal of the negligence per se claim.
The complaint plausibly alleged consumer‑oriented deceptive conduct (inflated rent claims and misrepresentations in court) causing injury; alleged facts supporting gross negligence (failure to exercise even slight care); and alleged knowing litigation conduct by attorneys amounting to deceit under Judiciary Law § 487. Negligence per se does not lie for a violation of General Business Law § 349 because that statute does not impose a specific duty.
Background
Plaintiff, a Brooklyn tenant, paid rent directly to a building owner/manager who claimed the apartment was rent stabilized despite no written lease and without informing her of rent stabilization. After defects went unrepaired, she withheld rent starting March 2017. The landlords' attorneys served a five‑day notice and filed a nonpayment proceeding seeking significantly more than she had withheld and a warrant of eviction. Plaintiff paid the withheld amount, but the proceeding continued. Her counsel discovered the building was not registered with the New York City Department of Housing Preservation and Development (HPD) and had not been registered with the New York State Division of Homes and Community Renewal since at least 1984. In February 2018, the Civil Court dismissed the nonpayment case because, given the lack of registration, the Multiple Dwelling Law [prohibits an owner of an unregistered multiple dwelling from collecting rent] barred rent collection. In 2021, plaintiff sued the landlords (building defendants) and their counsel (attorney defendants) for deceptive practices under General Business Law § 349, negligence per se, gross negligence, and attorney deceit under Judiciary Law § 487.
Lower Court Decision
The Supreme Court, Kings County granted defendants' CPLR 3211(a) [rule allowing dismissal for failure to state a cause of action] motions and dismissed all causes of action against all defendants.
Appellate Division Reversal
Applying the CPLR 3211(a)(7) standard, the court held the complaint sufficiently alleged consumer‑oriented deceptive acts under General Business Law § 349 (inflated rent claims and misrepresentations in eviction litigation causing defense costs and emotional distress); sufficiently alleged gross negligence (defendants would have discovered registration defects and incorrect sums with even slight diligence); and sufficiently alleged that the attorney defendants knowingly pursued litigation despite misrepresented rent amounts and registration status, supporting a Judiciary Law § 487 claim. The court therefore denied dismissal of those claims. It affirmed dismissal of negligence per se, holding that General Business Law § 349 does not create a specific duty to support such a theory.
Legal Significance
The decision recognizes that abusive or misleading eviction litigation can be actionable under General Business Law § 349 as consumer‑oriented deceptive conduct and that attorneys who knowingly advance such litigation may face liability under Judiciary Law § 487. It also clarifies that negligence per se cannot be predicated on General Business Law § 349 because the statute does not impose a specific duty.
Tenants may pursue consumer protection claims for deceptive eviction tactics and attorney deceit claims where counsel knowingly litigates based on false rent and registration assertions; however, negligence per se is not available for alleged violations of General Business Law § 349.