BACKGROUND
On November 28, 2023, plaintiff, 420 West 42nd Street LLC, filed a summons and complaint against defendant Luis Mercado, defendant occupants Christine Vargas, John Doe 1, John Doe 2, and defendant New York City Police Department. (NYSCEF No. 1.) Plaintiff brought three causes of action: (1) declaratory relief as to the occupancy rights of defendants Luis Mercado, Christine Vargas, John Doe 1, and John Doe 2, (2) injunctive relief for trespass against all defendants, and (3) a writ of prohibition against the NYPD. (NYSCEF No. 1.)
On November 29, 2023, plaintiff brought on an order to show cause (OSC), requesting interim relief. (NYSCEF No. 14.) This decision resolves that OSC.
Plaintiffs OSC initially requested a temporary restraining order to (1) restrain defendant occupants, with NYPDs help, from continuing to occupy apartment 18D in plaintiffs building and (2) restrain the NYPD from taking any action, other than helping plaintiff, that would interfere with plaintiffs attempts to remove defendant occupants from plaintiffs building. (NYSCEF No. 14.)
On December 15, 2023, this court granted plaintiffs request for interim relief with respect to Vargas and denied it with respect to the NYPD. (NYSCEF No. 20.) In granting plaintiffs request with respect to Vargas, this court concluded that plaintiffs motion papers sufficiently established for purposes of the TRO that Vargas does not have succession rights in the subject premises. (NYSCEF No. 20.) In denying plaintiffs request for interim relief with respect to the NYPD, this court concluded that it lacked the authority under the circumstances to direct the NYPD how to enforce the law. (NYSCEF No. 20.) For similar reasons, this court declined to sign the portion of plaintiffs OSC seeking injunctive relief barring the NYPD from arresting or threatening to arrest plaintiff and its employees for removing Vargas from the building and changing the locks in the premises at issue. (NYSCEF No. 20.)
The NYPD opposes the portion of plaintiffs OSC seeking to enjoin the NYPD. (NYSCEF No. 29 at 1.) The NYPD also cross-moves, under CPLR 3211 (a) (7), to dismiss plaintiffs claims against it. (NYSCEF No. 27.) Plaintiff does not reply to the NYPDs opposition or oppose the NYPDs cross-motion.
Vargas has not appeared in this proceeding and is unrepresented. (NYSCEF No. 20.) Plaintiff has shown that it attempted repeatedly (and unsuccessfully) to serve her by personal delivery at the premises at issue; and attempted (unsuccessfully) to serve her by personal delivery at a Bronx address on her file. (NYSCEF No. 20.) Plaintiffs process server affixed service to the door of the premises at issue and sent a copy of the paper to the Bronx address by FedEx. (NYSCEF No. 20.) Plaintiff also mailed a copy of the papers to Mercado at his nursing home and emailed a copy to Mercados Housing Court guardian ad litem. (NYSCEF No. 20.) Neither Vargas, Mercado, nor Mercados GAL have filed papers in this action or contacted the court to seek assistance in doing so. (NYSCEF No. 20.)
DISCUSSION
Under CPLR 3211 (a) (7), a party may move for judgment dismissing one or more causes of action asserted on the ground that the pleading fails to state a cause of action. When reviewing a motion to dismiss pursuant to CPLR 3211 (a) (7), the court accepts all the allegations in the complaint as true. (Cortlandt St. Recovery Corp. v Bonderman, 31 NY3d 30, 46-47 [2018].) The “sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail.” (Polonetsky v Better Homes Depot, Inc., 97 NY2d 46, 54 [2001].)
I. NYPDs Cross-Motion to Dismiss
The NYPD argues that it is entitled to dismissal because the NYPD is not a separate legal entity that may be sued in its own right. (NYSCEF No. 29 at 4.)
Under the New York City Charter § 431, the NYPD is a department of the City of New York. Under chapter 17, section 39, of the New York City Charter, all actions and proceedings arising from claims against the City or City agencies or departments must name the City as the defendant, not a particular City agency or department.
Plaintiff properly served the City of New Yorks corporation counsel at 100 Church Street. (NYSCEF No. 13; CPLR 311 [a] [2].) The misnomer exception is available to amend a complaint to name the proper defendant when the proper party is served and the allegations of the complaint are such that the City of New York knew or should have known that it was the proper-party defendant. (See Gil v City of New York, 143 AD3d 572, 573 [1st Dept 2016]; Rohlehr v New York City Police Dept., 151 AD3d 1093, 1094 [2d Dept 2017].)
However, plaintiff does not oppose the NYPDs opposition or cross motion to dismiss. And plaintiffs complaint must name the City of New York, which plaintiff does not. On these grounds, NYPDs motion to dismiss plaintiffs claims against it is granted.
Even if this court were to apply the misnomer exception, plaintiffs claims against the NYPD would still be subject to dismissal.
First, plaintiff is seeking a writ of prohibition to prevent the NYPD from taking any action to interfere with plaintiffs exclusion of defendant occupants. But as the NYPD argues, a writ of prohibition must be sought by CPLR article 78 proceeding, not by plenary action. (See Matter of Johnson v Sackett, 109 AD3d 427, 428-429 [1st Dept 2013]; CPLR 7801.) Additionally, as the NYPD correctly points out, a “writ of prohibition may be obtained only when a clear legal right of a petitioner is threatened by a body or officer acting in a judicial or quasi-judicial capacity.” (Morgenthau v Erlbaum, 59 NY2d 143, 147 [1983].) Here, the NYPD is acting in an investigative or executive role, not a judicial or quasi-judicial role.
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Second, plaintiffs request for injunctive relief could conceivably be read as seeking to require the NYPD to aid plaintiff in removing defendant occupants from plaintiffs building if they do not vacate voluntarily. But law-enforcement decisions, such as whether or not to investigate allegations of criminal activity, should be left to the NYPDs discretion. (See Alliance to End Chickens as Kaporos v New York City Police Dept., 152 AD3d 113, 120 [1st Dept 2017].) If plaintiff is unable to remove defendant occupants from its building, it may seek police assistance. But as this court said in denying plaintiffs request for interim relief as against the NYPD, the court “lacks authority in these circumstances to direct the NYPD how to enforce laws against trespassing—much less to permit a private landlord to take that step.” (NYSCEF No. 20 at 3.)
Plaintiffs claims against the NYPD are thus subject to dismissal on multiple independent grounds. The cross-motion to dismiss those claims is granted.
II. Plaintiffs Preliminary-Injunction Motion Against Defendant Occupants
Plaintiff seeks a preliminary injunction against defendant occupants excluding them from plaintiffs building. This court concludes that plaintiffs motion papers sufficiently establish that defendant Vargas does not have succession rights in the subject premises; and thus that she, and any guests of hers, may properly be excluded from the building, effective 10 days after service of this order with notice of entry or August 1, 2024, whichever is later. Plaintiffs request for preliminary injunctive relief is granted to that extent and without opposition.
Accordingly, it is
ORDERED that to the extent plaintiffs preliminary-injunction motion seeks relief against the NYPD, the motion is denied; and it is further
ORDERED that the NYPDs cross-motion to dismiss the claims against it is granted, and those claims are dismissed; and it is further
ORDERED that the balance of the claims in this action are severed and shall continue; and it is further
ORDERED that plaintiffs request for preliminary-injunctive relief directed toward defendant occupants is granted, and defendant occupants are hereby enjoined and restrained from entering the building located at 420 West 42nd Street, New York, NY, and/or Apartment 18D in that building, effective 10 days after service with notice of entry or August 10, 2024, whichever is later; and it is further
ORDERED that plaintiff serve a copy of this order with notice of its entry on defendant occupants by personal service, by certified mail, return receipt requested, directed to Vargass last-known address, and by email to defendant Mercados Housing Court GAL.
FOOTNOTES
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. The court also notes that the writ sought by plaintiff would bar the NYPD from interfering with plaintiffs attempts to exclude defendant occupants from plaintiffs building, whether or not those attempts were lawful—thus, in effect, seeking to prevent the NYPD from enforcing city ordinances against it. Plaintiff does not provide any basis for granting this remarkable and drastic relief.
Gerald Lebovits, J.