Opinion
100010/04.
Decided June 29, 2004.
Plaintiffs' attorney was Jack Lester, Esq., New York, NY.
Defendants were represented by Daniel Ansell, Esq., of Greenberg Trourig, New York, NY.
Plaintiffs are the tenants' association and two residents ("Tenants") of the Peter Cooper Village residential apartment complex located on the east side of Manhattan. On January 7th, 2004, I signed an order to show cause, which contained no temporary restraining order, initiating this motion seeking declaratory judgment and an injunction. Defendant Metropolitan Life Insurance and Annuity Company ("Met Life") is the owner of Peter Cooper Village and neighboring Stuyvesant Town. It cross-moved to dismiss the complaint. For the reasons below, the Tenants' motion is denied and Met Life's cross-motion is granted.
Peter Cooper Village consists of twenty-one buildings with approximately 2,500 apartments, and is home to approximately 7,000 people. In November 2003, Met Life announced its intention to install a new security system to replace the security system that had been in place for at least fifty years. Under the existing system, each tenant has a metal key to the lobby doors. Tenants were permitted to obtain additional keys at their own expense for guests, family members, housekeepers, health aides, et al. Obviously, over the years, a vast number of such keys have been made.
Under the new system, the metal key is replaced with a "cardkey" that is sensed by a reading mechanism at the lobby entrance. The card reader triggers the door lock and causes an electronic record to be made of which cardkey caused the door to be opened and when. The cardkeys also serve as identification cards. Each tenant of record is entitled to a cardkey, as is each household member. Additional cardkeys may be obtained for guests, including non-resident family members, household workers or contractors, by applying to Met Life. Met Life retains some discretion over whether or not to issue a cardkey to a guest, and may require the guest to submit a name and address. Once issued, the additional cardkeys must be renewed periodically. Tenants point to a variety of hardships connected to the plan, including the burden on residents and guests alike caused when family members are not only prevented from visiting a loved one, but also from checking in on potential medical emergencies.
Met Life also will require that the person to whom a cardkey is issued be photographed, and the image will be embossed on the cardkey. The photographs will be stored by Met Life electronically. In addition to the new cardkeys, cameras will be placed at entrances to permit security guards to monitor people who use the doors. A benefit of the plan is that a cardkey can be cancelled, and a new one issued to the tenant, where a cardkey is lost or if a bearer to whom an additional cardkey was given loses his or her right to access.
Met Life contends that the plan for the new system was developed after consultation with the New York City Police Department and with other security experts, and will significantly improve security. Similar systems have been installed in other apartment complexes, including in the University Towers complex in Brooklyn (more on this below). The system is touted as representing a marriage of security and convenience for the tenants.
Tenants allege three causes of action in their complaint. First, they argue that the new system is an illegal hardship, breach of privacy, a diminution of service and breach of the implied warranty of habitability. Second, they allege that it represents an unlawful change in the lease. Third, they argue that Met Life illegally failed to seek approval from the New York State Division of Housing and Community Renewal before implementing the new system.
Oral argument was held on these motions, which was attended by a large contingent of Peter Cooper Village and Stuyvesant Town tenants. The court was impressed both with their opposition to the proposed implementation and with the advocacy on both sides of the dispute, which led me to suggest that counsel meet informally and with the court to attempt to arrive a negotiated resolution. After two conferences with the court and an informal exchange between counsel, Met Life has made some amendments to its proposal in response to the Tenants' concerns, but significant differences remain which require judicial resolution.
The residents of Peter Cooper Village are rent stabilized tenants. A change in a required or essential service, such as security, is subject to review by the New York State Division of Housing and Community Renewal ("DHCR"). 9 NYCRR § 2520.6(r) and § 2523.4(e). Where there has been a reduction of service, the DHCR may order a restoration of service or a rent reduction, and "the Rent Control and Rent Stabilization Laws provide administrative machinery for enforcement of such agency orders and for dealing with violations." Bartley v. Walentas, 78 AD2d 310, 313 (1st Dept 1980). The determination of what constitutes an essential or required service within the meaning of the rent laws is a factual issue to be determined by the DHCR. 140 West 57th Street Corp. v. DHCR, 260 AD2d 316 (1st Dept 1999).
Met Life argues persuasively that the DHCR has jurisdiction over the Tenants' claims asserted in the second and third causes of action, and the Tenants' right to challenge the DHCR determination in an Article 78 proceeding arises after a final administrative determination is made. Met Life relies in part upon the decision of the Supreme Court, Kings County, in the case of Frederick v. University Tower Associates ( 2002 WL 3194670). In that case, tenants living in the University Towers apartment complex in Brooklyn commenced an action very similar to the present one to block the building owner from installing a cardkey security system. The court granted the owner's motion to dismiss, holding that the tenants had not exhausted their administrative remedy and the court lacked jurisdiction to hear their claims. Id. at 4. The court also found that there is no common-law cause of action for breach of privacy in New York, as alleged in that action, and that no breach of the warranty of habitability was alleged by the switch to a key card system.
In the instant action, to the extent that Tenants claim that the proposed security system represents a diminution of service, a violation of the rent laws or an unauthorized change in the rent stabilized lease, the cross-motion must be granted because the court lacks jurisdiction to consider these claims until Tenants have exhausted their administrative remedies before the DHCR. Moreover, Tenants do not point to any provision of the lease violated by the proposed security system. Indeed, paragraph 6 of the lease provides that the tenant agrees to observe such rules and regulations adopted by Met Life relating to the building and grounds. Accordingly, the second and third causes of action are dismissed, and that part of the first cause of action complaining of diminution of service also is dismissed.
With respect to the remaining claims in the first cause of action, that the proposed system is an illegal hardship, a breach of privacy and a breach of the warranty of habitability, Tenants have not set forth a cognizable cause of action. Under the implied warranty of habitability (Real Property Law § 235-b), a landlord impliedly warrants that the premises are fit for human habitation, that the condition of the premises are in accord with the uses reasonably intended by the parties, and that tenants are not subjected to conditions endangering or detrimental to their health or safety. Park West Management Corp. v. Mitchell, 47 NY2d 316 (1979), cert. denied, 444 US 992 (1979). "If, in the eyes of a reasonable person, defects in the dwelling deprive the tenant of those essential functions which a residence is expected to provide, a breach of the implied warrant of habitability has occurred. Id., at 328. Here, the inconveniences alleged to flow from the proposed change in the security system do not rise to the level of a breach of the implied warranty of habitability. See Frederick, supra.
In New York, there is no common-law right of privacy. Howell v. New York Post Co., 81 NY2d 115 (1993). An identical claim by the tenants in Frederick was rejected by the Kings County Supreme Court, and the facts alleged here do not merit a different result.
Finally, that part of Met Life's cross-motion that argues that the tenants' association is not a proper party to this action will not be addressed because it is moot. In light of the foregoing, it hereby is
ORDERED that the motion for an injunction and declaratory judgment is denied, and the cross-motion to dismiss the complaint is granted, with costs and disbursements to defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly.