Civil Court, City of New York,Kings County.

Castillo v. Cohen
33 Misc. 3d 700 (N.Y. Civ. Ct. 2011) • 930 N.Y.S.2d 789 •
2011 N.Y. Slip Op. 21329
Decided Jun 30, 2011

cause of action, and a judicial referral of the

2011-06-30
defense counsel to the appropriate disciplinary
Jose A. CASTILLO, Jr., Plaintiff,v.BALSAMO committee for an alleged failure
ROSENBLATT & COHEN, PC, Defendant.
792 *792 to pay attorney registration fees. For the
Jose A. Castillo, Jr., plaintiff pro-se.Balsamo reasons set forth below, both motions are denied.
Rosenblatt & Cohen, PC, St. Brooklyn, for the
defendant. II. Background
The defendant law firm, which focuses its practice
NANCY M. BANNON, J. on landlord-tenant law, represents Ben Noah,
LLC, the owner of a parcel of real property
791 *791 Jose A. Castillo, Jr., plaintiff pro-se.Balsamo 702 located in Brooklyn, New York, which is *702
Rosenblatt & Cohen, PC, St. Brooklyn, for the leased to the plaintiff. On or about March 3, 2011,
defendant. the defendant, on behalf of its client, served the
plaintiff with a rent demand notice pursuant to
701 *701 I. Introduction
RPAPL § 711(2), alleging that the plaintiff owed
In this action, which arises from a non-payment
back rent in the amount of $3,432.83. In a letter
summary proceeding, the plaintiff tenant seeks,
dated March 9, 2011, the plaintiff informed the
inter alia, unspecified damages and declaratory
defendant that he disputed the debt and requested
and injunctive relief against the defendant law
“validation” in the form of an accounting pursuant
firm for its alleged violations of the Fair Debt
to the FDCPA. See 15 USC § 1692g(b).
Collection Practices Act (15 USC § 1692 et seq
[hereinafter FDCPA] ) in connection with its On March 16, 2011, the defendant commenced a
representation of the property owner in the summary proceeding against the plaintiff by filing
housing court proceeding. The defendant moves to and serving a notice of petition and petition in the
dismiss the complaint pursuant to CPLR 3211(a) housing part of this court pursuant to Article 7 of
(7) arguing that the plaintiff has failed to state a the RPAPL. On or about March 26, 2011, the
cause of action in that it is not a “debt collector” plaintiff filed the instant action against the
within the meaning of the FDCPA and that, in any defendant, alleging several violations of the
event, it did not violate any of the act's provisions. FDCPA.
The plaintiff, who is self-represented in this
On March 31, 2011, when the plaintiff and
action, opposes the motion and cross-moves for
defendant appeared in the housing part of this
partial summary judgment seeking, in effect, a
court on the related summary proceeding, the
declaration that the defendant violated various
defendant hand-delivered to the plaintiff a
sections of the FDCPA, as set forth in his first
breakdown of the arrears then due. In his amended
complaint, the plaintiff alleges one “cause of
action” which lists five different violations of the

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 Castillo v. Cohen 33 Misc. 3d 700 (N.Y. Civ. Ct. 2011)

FDCPA by defendant. Specifically, the plaintiff A. The Fair Debt Collection Practices Act
alleges that the defendant violated the statute by
The FDCPA, enacted by the United States
(1) filing a civil action concerning a timely
Congress in 1977, prohibits debt collectors from
disputed debt, (2) demanding an amount in excess
making false or misleading
of any expressly authorized collectable amount,
(3) failing to properly provide him with notice of 793 *793 representations and from engaging in various
the debt, and (4) harassing and threatening him in abusive and unfair practices. See 15 USC §§
an effort to collect the debt. In the “wherefore 1692–1692p; Heintz v. Jenkins, 514 U.S. 291, 115
clause” of the amended complaint, the plaintiff S.Ct. 1489, 131 L.Ed.2d 395 (1995). The act sets
additionally seeks actual damages, statutory forth various rules by which debt collectors must
damages, attorney's fees, litigation expenses and abide in the collection of debts. Id. Under the
costs, and an order enjoining what was then a rules, the debt collector must disclose to the debtor
pending action in the housing part of this court, that he or she is “attempting to collect a debt and
until “proper validation” of the alleged debt has that any information obtained will be used for that
been mailed to him. purpose.” See 15 USC § 1692e(11); Missionary
Sisters of the Sacred Heart, Inc. v. Dowling, 182
On its instant motion, the defendant contends that
Misc.2d 1009, 703 N.Y.S.2d 362 (Civ. Ct., N.Y.
the complaint should be dismissed because the
County 1999). Additionally, within five days of
plaintiff fails to state a cause of action.
the initial communication the debt collector must
Specifically, the defendant asserts that it is not a
provide the debtor with “validation notice” which
“debt collection agency” as that term is defined
includes the amount of the debt, the name of the
under the Administrative Code of New York City,
creditor to whom the debt is owed, and a statement
that it is actually a landlord-tenant law firm and
that unless the consumer fails to dispute the debt,
therefore not subject to the guidelines set forth by
or a portion thereof, within 30 days, the “debt will
the FDCPA. In support of the motion, the
be assumed to be valid by the debt collector.” See
defendant states the following: “Defendant is
15 USC § 1692g(a)(3). The initial communication
retained by landlords throughout the City of New
must also include a statement that if the consumer
York to commence summary proceedings in the
notifies the debt collector in writing within the
Civil Court of the City of New York under Article
30–day period that the debt, or any portion
7 of the RPAPL to evict tenants for failure to pay
thereof, is disputed, the debt collector must mail
rent or breaches of substantial obligations under
verification of the debt to the consumer. See 15
703 their leases.” *703 The defendant further argues
USC § 1692g; Savino v. Computer Credit, Inc.,
that its filing of a civil action on behalf of its client
164 F.3d 81 (2d Cir.1998); Missionary Sisters of
is not “debt collection” as defined by the FDCPA
the Sacred Heart, Inc. v. Dowling, supra. If the
and it is therefore not required to cease ordinary
consumer notifies the debt collector in writing
communications with the debtor in relation to the
within 30 days that the debt, or a portion thereof,
lawsuit. The defendant claims that, in any event, it
is disputed, or requests the name and address of
has fully complied with the FDCPA by providing
the original creditor, the debt collector shall cease
the plaintiff with verification of the debt by hand
collection of the debt until the debt collector mails
delivery in court within 30 days of receipt of the
the requested verification to the consumer. See 15
plaintiff's verification notice. The defendant also
USC § 1692g(b).
seeks an award of $5,000 in legal fees pursuant to
15 USC § 1692k(3), arguing that the plaintiff has The statute also prohibits debt collectors from
commenced this action in bad faith. falsely representing to the consumer the amount or
704 legal status of the debt *704 ( see 15 USC §
III. Discussion

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 Castillo v. Cohen 33 Misc. 3d 700 (N.Y. Civ. Ct. 2011)

1692e[2][A] ), or collecting any amount not 794 *794 related litigation matters pursued, over the
expressly authorized by the agreement creating the relevant period(s); (2) the frequency of such
debt or permitted by law. See 15 USC § 1692f(1). communications and/or litigation activity,
Other violations of the statute include harassment including whether any patterns of such activity are
or abuse in the collection of debts, such as threats discernable; (3) whether the entity has personnel
of violence or using profane language ( see 15 specifically assigned to work on debt collection
USC § 1692d), the making of false activity; (4) whether the entity has systems or
representations, such as threatening to take legal contractors in place to facilitate such activity, and
action which cannot legally be taken or falsely (5) whether the activity is undertaken in
representing that the consumer has committed a connection with ongoing client relationships with
crime or other conduct in order to disgrace the entities that have retained the lawyer or firm to
consumer ( see 15 USC § 1692e[5]; 15 USC § assist in the collection of outstanding consumer
1692e[7] ), or using unfair or unconscionable debt obligations. Id. Additional factors to be
means to collect or attempt to collect the debt. See considered are the role debt collection practice
15 USC § 1692f. 705 plays in the *705 practice as a whole, and whether
the law firm markets itself as having debt
In order to prevail on his claim of a violation of
collection expertise. Id.
the FDCPA, the plaintiff must prove that (1)
he/she is a “consumer” who allegedly owes the If a debt collector fails to comply with any of its
debt or a person who has been the object of efforts provisions, the FDCPA provides that a debtor may
to collect a consumer debt, (2) the defendant recover actual damages sustained due to
collecting the debt is considered a “debt noncompliance, additional damages up to $1,000,
collector,” and (3) the defendant has engaged in and the costs of the action, as well as reasonable
any act or omission in violation of the FDCPA attorney's fees. See 15 USC § 1692k. B.
requirements. See Dona v. Midland Credit Defendant's Motion to Dismiss
Management, Inc., 2011 WL 941204 (E.D.N.Y.
In considering a motion to dismiss for failure to
Feb.10, 2011); quoting Healy v. Jzanus Ltd., 2002
state a cause of action pursuant to CPLR 3211(a)
WL 31654571 (E.D.N.Y. Nov.20, 2002).
(7), the court must accept the facts as alleged in
The plaintiff in an FDCPA action bears the burden the complaint as true, accord plaintiff the benefit
of proving that the defendant was a debt collector of every possible favorable inference, and
at the time it issued the challenged determine only whether the facts as alleged fit
communication. See Goldstein v. Hutton, Ingram, within any cognizable legal theory. See CPLR
Yuzek, Gainen, Carroll & Bertolotti, 374 F.3d 56 3211(a)(7); Leon v. Martinez, 84 N.Y.2d 83, 614
(2d Cir.2004). The statute sets forth two categories N.Y.S.2d 972, 638 N.E.2d 511 (1994); Jiminez v.
of “debt collector” status—engaging in such Shahid, 83 A.D.3d 900, 922 N.Y.S.2d 123 (2nd
activity as the firm's “principal purpose,” or Dept.2011). If the factual allegations set forth in
“regularly” engaging in such activity. Id. In the pleading state any cause of action, a motion for
Goldstein, the Second Circuit set forth five factors dismissal will fail. See Guggenheimer v. Ginzburg,
which should be applied on a case-by-case basis to 43 N.Y.2d 268, 401 N.Y.S.2d 182, 372 N.E.2d 17
determine what constitutes “regular” debt (1977); Kopelowitz & Co., Inc. v. Mann, 83
collection activity. These factors are: (1) the A.D.3d 793, 921 N.Y.S.2d 108 (2nd Dept.2011).
absolute number of debt collection
Applying the foregoing principles to the facts in
communications issued, and/or collection
the instant matter, the court finds that the
plaintiff's amended complaint has established that

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 Castillo v. Cohen 33 Misc. 3d 700 (N.Y. Civ. Ct. 2011)

(1) he is a consumer who allegedly owes a debt District held that the plaintiff tenants had properly
and has been the object of debt collection efforts, stated a claim against the firm for violations of the
(2) that the defendant may be considered a debt FDCPA and denied the law firm's motion to
collector under the statutory scheme, and (3) that dismiss. See Travieso v. Gutman, Mintz, Baker &
the defendant may have engaged in activity which Sonnenfeldt, P.C., 1995 WL 704778 (E.D.N.Y.
violates the FDCPA. See Dona v. Midland Credit Nov. 16, 1995). The Southern District similarly
Management, Inc., supra. held that unpaid rent was a “debt” under the
FDCPA, and a law firm's transmission of a rent
In regard to the first required showing, the
demand notice constituted “communication”
plaintiff has demonstrated that he is a consumer
within the scope of the statute. See Romea v.
who allegedly owes a debt and has been the object
Heiberger & Associates, supra.
of collection efforts by establishing that he was
served with a rent demand, notice of petition and Contrary to the defendant's contentions, section
petition. Id. 20–489(5) of the Administrative Code of the City
of New York does not exempt it from the FDCPA.
Secondly, the plaintiff has shown that the
While that provision defines “debt collection
defendant may be considered a debt collector
agency” as not including law firms collecting a
under the statutory scheme. The allegations in the
debt on behalf of a client, it expressly excludes
amended complaint, coupled with the defendant's
from that category any firm “who regularly
own statement set forth in its motion papers—that
engages in actions traditionally performed by debt
it is retained by landlords throughout the City of
collectors.” See Administrative Code § 20–489(5).
New York to commence summary proceedings—
As stated above, the defendant's own allegations
permit a conclusion that the defendant law firm
indicate that it regularly engages in debt collection
may “regularly” engage in the collection of debts,
activities within the meaning of the federal statute.
subjecting it to “debt collector” status under the
FDCPA. See Goldstein v. Hutton, Ingram, Yuzek, As to the third required showing, the plaintiff has
Gainen, Carroll & Bertolotti, supra; Dona v. sufficiently alleged that the defendant may have
706 Midland Credit Management, Inc., supra; *706 violated the FDCPA in its attempts to collect the
Garmus v. Borah, Goldstein, Altschuler & debt at issue by failing to inform the plaintiff in
Schwartz, P.C., 1999 WL 46682 (S.D.N.Y.1999); the rent demand that he could dispute a portion of
Romea v. Heiberger & Associates, 988 F.Supp. the debt, failing to mail the validation notice to the
712 (S.D.N.Y.1997), affd. 163 F.3d 111 (2nd plaintiff, falsely representing the amount of the
Cir.1998). debt and attempting to collect an unauthorized
amount, and harassing and threatening the plaintiff
Federal and state courts have held that law firms
in connection with the debt. Specifically, the
that “regularly” engage in consumer debt-
plaintiff asserts that the rent demand, which was
collection litigation, including those firms which
the initial communication sent by the defendant,
regularly commence summary proceedings on
merely informed the plaintiff that he could dispute
behalf of landlords, are subject to the rules
the debt and failed to state that he could
promulgated
707 alternatively dispute a portion of the debt. See *707
795 *795 by the FDCPA. See eg Heintz v. Jenkins, 15 USC § 1692g; Baker v. G.C. Services Corp.,
supra; Romea v. Heiberger & Associates, supra. 677 F.2d 775 (9th Cir.1982). Additionally, the
In an analogous federal class-action case, several plaintiff claims that the defendant failed to mail
New York tenants sued the law firm that had the validation notice to him, in violation of the
commenced summary proceedings against them statute. See 15 USC § 1692g.
for alleged violations of the FDCPA. The Eastern

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 Castillo v. Cohen 33 Misc. 3d 700 (N.Y. Civ. Ct. 2011)

The plaintiff further alleges that the defendant, motion to dismiss. See Travieso v. Gutman, Mintz,
through its rent demand, may have falsely Baker & Sonnenfeldt, P.C., supra. C. Plaintiff's
represented to him the amount of the debt and Motion for Partial Summary Judgment
attempted to collect an amount not expressly
The plaintiff cross-moves for partial summary
authorized or permitted by law. See 15 USC §
judgment, seeking a declaration that the defendant
1692e(2)(A); 15 USC § 1692f(1). Pursuant to a
violated several provisions of the FDCPA, as set
New York State Division of Housing and
forth in his “first” cause of action.
Community Renewal order issued on January 5,
2011, the plaintiff's rent was restored to $875.00 It is well settled that the proponent of a summary
per month, from $759.39, retroactive to June judgment motion must make a prima facie
2010. However, the plaintiff filed a timely appeal 708 showing of entitlement to judgment*708 as a
of the order, which suspends collection of the matter of law, tendering sufficient evidence to
retroactive portion of the adjusted rent until a final eliminate any material issues of fact. Once the
determination is made. See DHCR Fact Sheet No. movant meets this burden, it becomes incumbent
18, Appealing a Rent Administrator's Order: upon the party opposing the motion to come
Petition for Administrative Review. Accordingly, forward with proof in admissible form to raise a
the legal rent for the month of December 2010 triable issue of fact. See Alvarez v. Prospect
was $759.39, the pre-adjustment amount. The rent Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501
demand served by the defendant reflects that the N.E.2d 572 (1986); Zuckerman v. City of New
rent was $807.83 for that month. Therefore, the York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404
defendant may have falsely represented the N.E.2d 718 (1980). When determining a summary
amount of the debt and attempted to collect an judgment motion, the evidence must be viewed in
unauthorized amount in contravention of the the light most favorable to the non-movant. See
FDCPA. See 15 USC § 1692e(2)(A); 15 USC § Dorival v. DePass, 74 A.D.3d 729, 901 N.Y.S.2d
1692f(1). 528 (2nd Dept.2010); Pearson v. Dix McBride,
LLC, 63 A.D.3d 895, 883 N.Y.S.2d 53 (2nd
Lastly, the plaintiff alleges that the defendant law
Dept.2009). Since the granting of summary
firm has harassed and threatened him in
judgment deprives a litigant of his day in court, it
connection with this debt, in violation of various
is considered a drastic remedy which should only
provisions of the statute which prohibit this
be employed when there is no doubt as to the
behavior. See
absence of triable issues. See Andre v. Pomeroy, 35
796 *796 15 USC § 1692d; 15 USC § 1692e; 15 USC § N.Y.2d 361, 362 N.Y.S.2d 131, 320 N.E.2d 853
1692f. According to the plaintiff, when the parties (1974); Dorival v. DePass, supra. “Even the color
appeared in housing court, counsel for the of a triable issue forecloses the remedy.” See
defendant threatened him by telling him he will be Rudnitsky v. Robbins, 191 A.D.2d 488, 489, 594
subject to sanctions and attorney fees if he does N.Y.S.2d 354 (2nd Dept.1993). In any event, if the
not withdraw the instant action. The plaintiff proponent of a summary judgment motion fails to
further alleges these threats have caused him make a prima facie showing of its entitlement to
emotional distress. judgment as a matter of law, the motion must be
denied. See Alvarez v. Prospect Hospital, supra.
For the foregoing reasons, the court finds that the
plaintiff has sufficiently alleged, for pleading While the plaintiff has asserted allegations
purposes, a cause of action for the defendant's sufficient to defeat the defendant's motion to
violations of the FDCPA so as to defeat the instant dismiss as discussed previously, he has failed to
make a prima facie showing of his entitlement to

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 Castillo v. Cohen 33 Misc. 3d 700 (N.Y. Civ. Ct. 2011)

judgment as a matter of law. Before there can be a Judiciary Law § 468–a. To the extent that the
determination on the defendant's alleged violations plaintiff is requesting this court to refer
of the FDCPA, it must first be proven whether, in defendant's counsel to the appropriate attorney
fact, the defendant is a “debt collector” within the disciplinary authority ( see 22 NYCRR 100.3[D]
meaning of the statute. The plaintiff has failed to [2] ), the court declines to do so.
submit evidence sufficient to establish as a matter
of law that the defendant is a “debt-collector” as IV. Conclusion
defined by the statute. Without this required prima As the plaintiff has sufficiently stated a cause of
facie showing, his motion must be denied. Thus, at action for violations of the FDCPA, the
trial, the plaintiff will have the burden of proving defendant's motion to dismiss the complaint is
by a preponderance of the evidence that the denied. However, the plaintiff's cross-motion for
defendant “regularly” engages in collection partial summary judgment is also denied as he has
activity within the meaning of the statute. See failed to make a prima facie showing of his
Goldstein v. Hutton, Ingram, Yuzek, Gainen, entitlement to judgment as a matter of law. The
Carroll & Bertolotti, supra; Kalra v. Kalra, 149 portion of plaintiff's motion which seeks a judicial
A.D.2d 409, 539 N.Y.S.2d 761 (2nd Dept.1989). referral of defendant's counsel to the attorney
Even if he is successful in that regard, to prevail at grievance committee is denied.
trial he must then also prove that the defendant's
Therefore, it is,
collection activity violated the statute. See 15 USC
§ 1692 et seq. ORDERED that the defendant's motion to dismiss
the complaint is denied; and it is further
While the court has the authority to search the
record and grant summary ORDERED that the plaintiff's cross-motion for
partial summary judgment is denied; and it is
797 *797 judgment to a nonmoving party with respect
further
to an issue that was the subject of the motion
before the court ( see CPLR 3212(b); Goldstein v. ORDERED that the plaintiff's motion seeking a
County of Suffolk, 300 A.D.2d 441, 751 N.Y.S.2d judicial referral of defendant's counsel to the
549 [2nd Dept.2002], lv. denied 100 N.Y.2d 509, grievance committee is denied; and it is further
766 N.Y.S.2d 163, 798 N.E.2d 347 [2003] ), the
ORDERED that any relief requested but not
709 defendant *709 has similarly failed to demonstrate
specifically granted herein is denied; and it is
its entitlement to judgment as a matter of law. D.
further
Plaintiff's Motion for Judicial Referral
ORDERED that the parties shall appear for trial as
Plaintiff alleges, for the first time in his motion
previously scheduled.
papers, that an internet search revealed that
counsel for defendant is currently “delinquent” in This constitutes the Decision and Order of the
his attorney registration fees in violation of court.