Remaining complaint in Sandy class action tossed

Two other initial plaintiffs file for an appeal, court docs show

Jan.January 24, 2014 06:32 PM

Briana Adler, the remaining plaintiff in a proposed Hurricane Sandy-related class action that sought rent reimbursements from landlords of storm-affected properties in New York, has had her complaint dismissed with prejudice, according to State Supreme Court documents filed today. In a decision last month, New York State Supreme Court Judge Shirley Werner Kornreich gave Adler 20 days to file a new class action — limited only to representing the tenants at Her 155 East 31st Street building and against landlord Mastic Associates of New York — but nothing came of it.

“She did not do so, and her attorney has informed the court that he does not intend to do so,” wrote Judge Kornreich of filing the new complaint in this most recent order.

But the two other initial plaintiffs in the case, Lauren Shoenfeld and Perri Steiner, have appealed their cases to the Appellate Division, according to documents filed on Wednesday. Judge Kornreich last month dismissed the claims of Shoenfeld and Steiner because they were not present in their apartments during the Oct. 29, 2012 storm, as The Real Deal reported. Shoenfeld left her 145 East 16th Street apartment before the storm hit and returned after conditions were back to normal. Steiner returned to her East Village apartment at 17 Stuyvesant Street in early November, though the judge said other tenants here had working stoves, hot water, and temperatures outside at that time were in the 40s and 50s.

“They did not suffer any loss by residing in an apartment lacking essential services,” ruled Judge Kornreich in December, referring to Shoenfeld and Steiner.

But their lawyers see it differently.

“The court … erred in granting Defendants’ motion for summary judgment dismissing Appellants’ claims after having stayed all discovery,” the appeal documents filed Wednesday read. “The Court erroneously found facts and held as a matter of law that tenants who left their apartments during Hurricane Sandy forfeited their claims under New York Real Property Law.”

“The judge felt that if you seek safe haven, you lose your claim,” said Harold Hoffman, an attorney for the three women. “We do not believe that the law supports that point of view. After the Appellate Division rules, that will inform the question of an amended pleading.”

Adler’s case was allowed to continue because it was not clear last month whether she weathered Sandy at home. Though her building did not have electricity, the building had an emergency generator to power elevators, common area lighting and water pumps. Tenants also got meals, glow sticks and stations to charge electronic devices.

“We believe that tenants who pay full rent for an apartment which is not habitable are entitled to a rebate whether they choose to seek safe haven or whether they choose to freeze in a dark apartment,” Hoffman said.

Barbara Hart, an attorney for Adler, Shoenfeld and Steiner, did not respond to a message seeking comment.

As for the dismissal of Adler’s complaint, Mara Levin, an attorney for the defendant landlord, said that she was happy with the result. Mastic Associates did not immediately respond to a request for comment.

The three young women launched their case last January on behalf of all state tenants who paid rent in the aftermath of the storm — a time when many residents did not have heat, hot water, functional elevators or electricity, as The Real Deal first reported. The crux of their argument: under New York Real Property Law, landlords and management companies had an obligation to keep their buildings habitable for all leases.

The initial defendants included two entities affiliated with the estate of Sol Goldman and Ogden Cap Properties. Judge Kornreich dismissed the claims against the three last month because they function as managing agents, not as building landlords, and are not parties to any leases.

These dismissals, as well as those of Shoenfeld and Steiner last month, strongly undercut the case’s viability.

This case caught the attention of three powerful trade groups last spring — the Real Estate Board of New York, the Community Housing Improvement Program and the Rent Stabilization Organization — who argued that allowing the class action to proceed would set a “dangerous precedent” for future landlord-tenant disputes, as The Real Deal also reported.

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