No.

24845/11
Civil Court of the City of New York. Kings County

Castillo v. Balsamo Rosenblatt & Cohen, P.C.

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

No. 24845/11. II. Background

701 June 30, 2011. *701 The defendant law firm, which focuses; its
practice on landlord-tenant law, represents Ben
Balsamo Rosenblatt Cohen, EC, Brooklyn, for
Noah, LLC, the owner of a parcel of real property
defendant. Jose A. Castillo, Jr., plaintiff pro se.
702 located in Brooklyn, New York, which is *702
leased to the plaintiff. On or about March 3, 2011,
OPINION OF THE COURT the defendant, on behalf of its client, served the
plaintiff with a rent demand notice pursuant to
NANCY M. BANNON, J. RPAPL 711 (2), alleging that the plaintiff owed
back rent in the amount of $3,432.83. In a letter
I. Introduction dated March 9, 2011, the plaintiff informed the
In this action, which arises from a nonpayment defendant that he disputed the debt and requested
summary proceeding, the plaintiff tenant seeks, "validation" in the form of an accounting pursuant
inter alia, unspecified damages and declaratory to the FDCPA. (See 15 USC § 1692g [b].)
and injunctive relief against the defendant law
firm for its alleged violations of the Fair Debt On March 16, 2011, the defendant commenced a
Collection Practices Act ( 15 USC § 1692 et seq. summary proceeding against the plaintiff by filing
[hereinafter FDCPA]) in connection with its and serving a notice of petition and petition in the
representation of the property owner in the Housing Part of this court pursuant to article 7 of
housing court proceeding. The defendant moves to the RPAPL. On or about March 26, 2011, the
dismiss the complaint pursuant to CPLR 3211 (a) plaintiff filed the instant action against the
(7) arguing that the plaintiff has failed to state a defendant, alleging several violations of the
cause of action in that it is not a "debt collector" FDCPA.
within the meaning of the FDCPA and that, in any On March 31, 2011, when the plaintiff and
event, it did not violate any of the act's provisions. defendant appeared in the Housing Part of this
The plaintiff, who is self-represented in this court on the related summary proceeding, the
action, opposes the motion and cross-moves for defendant hand-delivered to the plaintiff a
partial summary judgment seeking, in effect, a breakdown of the arrears then due. In his amended
declaration that the defendant violated various complaint, the plaintiff alleges one "cause of
sections of the FDCPA, as set forth in his first action" which lists five different violations of the
cause of action, and a judicial referral of the FDCPA by defendant. Specifically, the plaintiff
defense counsel to the appropriate disciplinary alleges that the defendant violated the statute by
committee for an alleged failure to pay attorney (1) filing a civil action concerning a timely
registration fees. For the reasons set forth below, disputed debt, (2) demanding an amount in excess
both motions are denied. of any expressly authorized collectable amount,

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 Castillo v. Balsamo Rosenblatt & Cohen, P.C. 33 Misc. 3d 700 (N.Y. Misc. 2011)

(3) failing to properly provide him with notice of from engaging in various abusive and unfair
the debt, and (4) harassing and threatening him in practices. ( See 15 USC §§ 1692- 1692p; Heintz v
an effort to collect the debt. In the "wherefore Jenkins, 514 US 291.) The act sets forth various
clause" of the amended complaint, the plaintiff rules by which debt collectors must abide in the
additionally seeks actual damages, statutory collection of debts. ( Id.) Under the rules, the debt
damages, attorney's fees, litigation expenses and collector must disclose to the debtor that he or she
costs, and an order enjoining what was then a is "attempting to collect a debt and that any
pending action in the Housing Part of this court, information obtained will be used for that
until "proper validation" of the alleged debt has purpose." ( See 15 USC § 1692e; Missionary
been mailed to him. Sisters of the Sacred Heart v Bowling, 182 Misc
2d 1009 [Civ Ct, NY County 1999].) Additionally,
On its instant motion, the defendant contends that
within five days of the initial communication the
the complaint should be dismissed because the
debt collector must provide the debtor with
plaintiff fails to state a cause of action.
"validation" notice which includes the amount of
Specifically, the defendant asserts that it is not a
the debt, the name of the creditor to whom the
"debt collection agency" as that term is defined
debt is owed, and a statement that unless the
under the Administrative Code of the City of New
consumer fails to dispute the debt, or a portion
York, that it is actually a landlord-tenant law firm
thereof, within 30 days, the "debt will be assumed
and therefore not subject to the guidelines set forth
to be valid by the debt collector." ( See 15 USC §
by the FDCPA. In support of the motion, the
1692g [a] [3].) The initial communication must
defendant states the following: "Defendant is
also include a statement that if the consumer
retained by landlords throughout the City of New
notifies the debt collector in writing within the 30-
York to commence summary proceedings in the
day period that the debt, or any portion thereof, is
Civil Court of the City of New York under Article
disputed, the debt collector must mail verification
7 of the RPAPL to evict tenants for failure to pay
of the debt to the consumer. (See 15 USC § 1692g;
rent or breaches of substantial obligations under
Sauino v Computer Credit, Inc., 164 F3d 81 [2d
703 their leases." *703 The defendant further argues
Cir 1998]; Missionary Sisters of the Sacred Heart
that its filing of a civil action on behalf of its client
v Bowling, supra.) If the consumer notifies the
is not "debt collection" as defined by the FDCPA
debt collector in writing within 30 days that the
and it is therefore not required to cease ordinary
debt, or a portion thereof, is disputed, or requests
communications with the debtor in relation to the
the name and address of the original creditor, the
lawsuit. The defendant claims that, in any event, it
debt collector shall cease collection of the debt
has fully complied with the FDCPA by providing
until the debt collector mails the requested
the plaintiff with verification of the debt by hand
verification to the consumer. ( See 15 USC §
delivery in court within 30 days of receipt of the
1692g [b].)
plaintiffs verification notice. The defendant also
seeks an award of $5,000 in legal fees pursuant to The statute also prohibits debt collectors from
15 USC § 1692k (a) (3), arguing that the plaintiff falsely representing to the consumer the amount or
has commenced this action in bad faith. 704 legal status of the debt *704 ( see 15 USC § 1692e
[A]), or collecting any amount not expressly
III. Discussion authorized by the agreement creating the debt or
A. The Fair Debt Collection Practices Act permitted by law. ( See 15 USC § 1692f.) Other
violations of the statute include harassment or
The FDCPA, enacted by the United States
abuse in the collection of debts, such as threats of
Congress in 1977, prohibits debt collectors from
violence or using profane language ( see 15 USC §
making false or misleading representations and

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 Castillo v. Balsamo Rosenblatt & Cohen, P.C. 33 Misc. 3d 700 (N.Y. Misc. 2011)

1692d), the making of false representations, such connection with ongoing client relationships with
as threatening to take legal action which cannot entities that have retained the lawyer or firm to
legally be taken or falsely representing that the assist in the collection of outstanding consumer
consumer has committed a crime or other conduct debt obligations. ( Id.) Additional factors to be
in order to disgrace the consumer ( see 15 USC § considered are the role debt collection practice
1692e, [7]), or using unfair or unconscionable 705 plays in the *705 practice as a whole, and whether
means to collect or attempt to collect the debt. ( the law firm markets itself as having debt
See 15 USC § 1692f.) collection expertise. ( Id.)

In order to prevail on his claim of a violation of If a debt collector fails to comply with any of its
the FDCPA, the plaintiff must prove that (1) provisions, the FDCPA provides that a debtor may
he/she is a "consumer" who allegedly owes the recover actual damages sustained due to
debt or a person who has been the object of efforts noncompliance, additional damages up to $1,000,
to collect a consumer debt, (2) the defendant and the costs of the action, as well as reasonable
collecting the debt is considered a "debt collector," attorney's fees. (See 15 USC § 1692k.)
and (3) the defendant has engaged in any act or
B. Defendant's Motion to Dismiss
omission in violation of the FDCPA requirements.
(See Dona v Midland Credit Mgt., Inc., 2011 WL In considering a motion to dismiss for failure to
941204, *1, 2011 US Dist LEXIS 27136, *3 [ED state a cause of action pursuant to CPLR 3211 (a)
NY, Feb. 10, 2011], quoting Healy v Jzanus Ltd., (7), the court must accept the facts as alleged in
2002 WL 31654571, *2, 2002 US Dist LEXIS the complaint as true, accord plaintiff the benefit
23417, *5-6 [ED NY, Nov. 20, 2002].) of every possible favorable inference, and
determine only whether the facts as alleged fit
The plaintiff in an FDCPA action bears the burden
within any cognizable legal theory. (See CPLR
of proving that the defendant was a debt collector
3211 [a] [7]; Leon v Martinez, 84 NY2d 83;
at the time it issued the challenged
Jiminez v Shahid, 83 AD3d 900 [2d Dept 2011].)
communication. (See Goldstein v Hutton, Ingram,
If the factual allegations set forth in the pleading
Yuzek, Gainen, Carroll Bertolotti, 374 F3d 56 [2d
state any cause of action, a motion for dismissal
Cir 2004].) The statute sets forth two categories of
will fail. (See Guggenheimer v Ginzburg, 43
"debt collector" status — engaging in such activity
NY2d 268; Kopelowitz Co., Inc. v Mann, 83
as the firm's "principal purpose," or "regularly"
AD3d 793 [2d Dept 2011].)
engaging in such activity. ( Id.) In Goldstein, the
Second Circuit set forth five factors which should Applying the foregoing principles to the facts in
be applied on a case-by-case basis to determine the instant matter, the court finds that the
what constitutes "regular" debt collection activity. plaintiff's amended complaint has established (1)
These factors are: (1) the absolute number of debt that he is a consumer who allegedly owes a debt
collection communications issued, and/or and has been the object of debt collection efforts,
collection-related litigation matters pursued, over (2) that the defendant may be considered a debt
the relevant period(s); (2) the frequency of such collector under the statutory scheme, and (3) that
communications and/or litigation activity, the defendant may have engaged in activity which
including whether any patterns of such activity are violates the FDCPA. (See Dona v Midland Credit
discernable; (3) whether the entity has personnel Mgt., Inc., supra.)
specifically assigned to work on debt collection
In regard to the first required showing, the
activity; (4) whether the entity has systems or
plaintiff has demonstrated that he is a consumer
contractors in place to facilitate such activity; and
who allegedly owes a debt and has been the object
(5) whether the activity is undertaken in

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 Castillo v. Balsamo Rosenblatt & Cohen, P.C. 33 Misc. 3d 700 (N.Y. Misc. 2011)

of collection efforts by establishing that he was Contrary to the defendant's contentions, section
served with a rent demand, notice of petition and 20-489 (a) (5) of the Administrative Code of the
petition. ( Id.) City of New York does not exempt it from the
FDCPA. While that provision defines "debt
Secondly, the plaintiff has shown that the
collection agency" as not including law firms
defendant may be considered a debt collector
collecting a debt on behalf of a client, it expressly
under the statutory scheme. The allegations in the
excludes from that category any firm "who
amended complaint, coupled with the defendant's
regularly engages in activities traditionally
own statement set forth in its motion papers —
performed by debt collectors." ( See
that it is retained by landlords throughout the City
Administrative Code § 20-489 [a] [5].) As stated
of New York to commence summary proceedings
above, the defendant's own allegations indicate
— permit a conclusion that the defendant law firm
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 Mgt., Inq., supra; Garmus *706 v violated the FDCPA in its attempts to collect the
Borah, Goldstein, Altschuler Schwartz, PC, 1999 debt at issue by failing to inform the plaintiff in
WL 46682 [SD NY 1999]; Romea v Heiberger the rent demand that he could dispute a portion of
Assoc, 988 F Supp 712 [SD NY 1997], affd 163 the debt, failing to mail the validation notice to the
F3d 111 [2d Cir 1998].) plaintiff, falsely representing the amount of the
debt and attempting to collect an unauthorized
Federal and state courts have held that law firms
amount, and harassing and threatening the plaintiff
that "regularly" engage in consumer debt-
in connection with the debt. Specifically, the
collection litigation, including those firms which
plaintiff asserts that the rent demand, which was
regularly commence summary proceedings on
the initial communication sent by the defendant,
behalf of landlords, are subject to the rules
merely informed the plaintiff that he could dispute
promulgated by the FDCPA. ( See e.g. Heintz v
the debt and failed to state that he could
Jenkins, supra; Romea v Heiberger Assoc. supra.)
alternatively dispute a portion of the debt. ( See
In an analogous federal class action case, several
707 *707 15 USC § 1692g; Baker v G. C. Servs. Corp.,
New York tenants sued the law firm that had
677 F2d 775 [9th Cir 1982].) Additionally, the
commenced summary proceedings against them
plaintiff claims that the defendant failed to mail
for alleged violations of the FDCPA. The Eastern
the validation notice to him, in violation of the
District held that the plaintiff tenants had properly
statute. ( See 15 USC § 1692g.)
stated a claim against the firm for violations of the
FDCPA and denied the law firm's motion to The plaintiff further alleges that the defendant,
dismiss. ( See Travieso v Gutman, Mintz, Baker through its rent demand, may have falsely
Sonnenfeldt, PC, 1995 WL 704778, 1995 US Dist represented to him the amount of the debt and
LEXIS 17804 [ED NY, Nov. 16, 1995].) The attempted to collect an amount not expressly
Southern District similarly held that unpaid rent authorized or permitted by law. (See 15 USC §
was a "debt" under the FDCPA, and a law firm's 1692e [A]; § 1692f [J].) Pursuant to a New York
transmission of a rent demand notice constituted State Division of Housing and Community
"communication" within the scope of the statute. ( Renewal order issued on January 5, 2011, the
See Romea v Heiberger Assoc. supra.) plaintiffs rent was restored to $875 per month,
from $759.39, retroactive to June 2010. However,
the plaintiff filed a timely appeal of the order,

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 Castillo v. Balsamo Rosenblatt & Cohen, P.C. 33 Misc. 3d 700 (N.Y. Misc. 2011)

which suspends collection of the retroactive eliminate any material issues of fact. Once the
portion of the adjusted rent until a final movant meets this burden, it becomes incumbent
determination is made. ( See NY St Div of Hous upon the party opposing the motion to come
Community Renewal Fact Sheet No. 18, forward with proof in admissible form to raise a
Appealing a Rent Administrator's Order: Petition triable issue of fact. ( See Alvarez v Prospect
for Administrative Review.) Accordingly, the legal Hosp., 68 NY2d 320; Zuckerman v City of New
rent for the month of December 2010 was York, 49 NY2d 557.) When determining a
$759.39, the preadjustment amount. The rent summary judgment motion, the evidence must be
demand served by the defendant reflects that the viewed in the light most favorable to the
rent was $807.83 for that month. Therefore, the nonmovant. ( See Dorival v DePass, 74 AD3d 729
defendant may have falsely represented the [2d Dept 2010]; Pearson v Dix McBride, LLC, 63
amount of the debt and attempted to collect an AD3d 895 [2d Dept 2009].) Since the granting of
unauthorized amount in contravention of the summary judgment deprives a litigant of his day
FDCPA. ( See 15 USC § 1692e [A]; § ieJ92f [1].) in court, it is considered a drastic remedy which
should only be employed when there is no doubt
Lastly, the plaintiff alleges that the defendant law
as to the absence of triable issues. ( See Andre v
firm has harassed and threatened him in
Pomeroy, 35 NY2d 361; Dorival v De-Pass,
connection with this debt, in violation of various
supra.) "Even the color of a triable issue
provisions of the statute which prohibit this
forecloses the remedy." ( See Rudnitsky v Robbins,
behavior. (See 15 USC §§ 1692d, 1692e, 1692f.)
191 AD2d 488, 489 [2d Dept 1993].) In any event,
According to the plaintiff, when the parties
if the proponent of a summary judgment motion
appeared in housing court, counsel for the
fails to make a prima facie showing of its
defendant threatened him by telling him he will be
entitlement to judgment as a matter of law, the
subject to sanctions and attorney's fees if he does
motion must be denied. ( See Alvarez v Prospect
not withdraw the instant action. The plaintiff
Hosp., supra.)
further alleges these threats have caused him
emotional distress. While the plaintiff has asserted allegations
sufficient to defeat the defendant's motion to
For the foregoing reasons, the court finds that the
dismiss as discussed previously, he has failed to
plaintiff has sufficiently alleged, for pleading
make a prima facie showing of his entitlement to
purposes, a cause of action for the defendant's
judgment as a matter of law. Before there can be a
violations of the FDCPA so as to defeat the instant
determination on the defendant's alleged violations
motion to dismiss. (See Travieso v Gutman, Mintz,
of the FDCPA, it must first be proved whether, in
Baker Sonnenfeldt, PC, supra.)
fact, the defendant is a "debt collector" within the
C. Plaintiffs Motion for Partial Summary meaning of the statute. The plaintiff has failed to
Judgment submit evidence sufficient to establish as a matter
of law that the defendant is a "debt collector" as
The plaintiff cross-moves for partial summary
defined by the statute. Without this required prima
judgment, seeking a declaration that the defendant
facie showing, his motion must be denied. Thus, at
violated several provisions of the FDCPA, as set
trial, the plaintiff will have the burden of proving
forth in his "first" cause of action.
by a preponderance of the evidence that the
It is well settled that the proponent of a summary defendant "regularly" engages in collection
judgment motion must make a prima facie activity within the meaning of the statute. (See
708 showing of entitlement to judgment *708 as a Goldstein v Hutton, Ingram, Yuzek, Gainen,
matter of law, tendering sufficient evidence to Carroll Bertolotti, supra; Kalra v Kalra, 149

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 Castillo v. Balsamo Rosenblatt & Cohen, P.C. 33 Misc. 3d 700 (N.Y. Misc. 2011)

AD2d 409 [2d Dept 1989].) Even if he is IV Conclusion

successful in that regard, to prevail at trial he must
As the plaintiff has sufficiently stated a cause of
then also prove that the defendant's collection
action for violations of the FDCPA, the
activity violated the statute. ( See 15 USC § 1692
defendant's motion to dismiss the complaint is
et seq.)
denied. However, the plaintiffs cross motion for
While the court has the authority to search the partial summary judgment is also denied as he has
record and grant summary judgment to a failed to make a prima facie showing of his
nonmoving party with respect to an issue that was entitlement to judgment as a matter of law The
the subject of the motion before the court ( see portion of plaintiffs motion which seeks a judicial
CPLR 3212 [b]; Goldstein v County of Suffolk, referral of defendant's counsel to the attorney
300 AD2d 441 [2d Dept 2002], lv denied 100 grievance committee is denied.
709 NY2d 509), the defendant *709 has similarly failed
Therefore, it is ordered that the defendant's motion
to demonstrate its entitlement to judgment as a
to dismiss the complaint is denied; and it is further
matter of law.
ordered that the plaintiffs cross motion for partial
D. Plaintiffs Motion for Judicial Referral summary judgment is denied; and it is further
ordered that the plaintiffs motion seeking a
Plaintiff alleges, for the first time in his motion
judicial referral of defendant's counsel to the
papers, that an Internet search revealed that
grievance committee is denied; and it is further
counsel for defendant is currently "delinquent" in
ordered that any relief requested but not
his attorney registration fees in violation of
specifically granted herein is denied; and it is
Judiciary Law § 468-a. To the extent that the
further ordered that the parties shall appear for
plaintiff is requesting this court to refer
710 trial as previously scheduled. *710
defendant's counsel to the appropriate attorney
disciplinary authority ( see Rules of Chief
Administrator of Cts [22 NYCRR] § 100.3 [D]
[2]), the court declines to do so.