Sanjurjo v Milio, 2021 NY Slip Op 50208(U) [70 Misc 3d 1224(A)]

judgment [who] must make a[n initial] prima facie showing of entitlement to judgment as a
matter of law, tendering sufficient evidence to eliminate any material issues of fact from the
case.... Failure to make such showing requires denial of the motion, regardless of the sufficiency
of the opposing papers." (Pirelli v Long Island R.R., 226 AD2d 166, 641 NYS2d 240 [1st
Dept 1996] [citations omitted]).

A. Order to Correct

Here, petitioner is entitled to summary judgment on her first cause of action seeking an order
to correct. There is no dispute that petitioner and respondent are proper parties. In addition, the
court finds there is no dispute that conditions constituting violations are present in the subject
apartment. While respondent spends considerable effort disputing service of the notices of
violations, and argues that the violations are nullities, he does not deny the existence of the
underlying conditions. In any case, even if the notices of violations were not properly served on
respondent, the violations themselves are prima facie proof that the conditions exist, (see
MDL 328(3); Allen v 219 24th Street
LLC, 67 Misc 3d 1212[A] at 2; In re Morataya, 53 Misc 3d 242, 249, 37 NYS3d
375 [Civ Ct, Kings County 2016]), particularly where there is no dispute of the underlying
conditions. (see also CPLR § 409(b) ["The court shall make a summary
determination upon the pleadings, papers and admissions to the extent that no triable issues of
fact are raised. The court may make any orders permitted on a motion for summary
judgment."]).

As respondent's answer raises no true defense to an order to correct, petitioner's motion for
summary judgment on her first cause of action is granted.

B. Unlawful Eviction