Housing Court Decisions July 1996
edited by Colleen F. McGuire, Esq.
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New York Law Journal, decisions for the week of July 29-August 2, 1996 (7 cases)
- Case Caption:
- Matter of Powers Associates v. New York State DHCR
- Issues/Legal Principles:
- Landlord failed to prove service of DC-2 notice; tenant awarded overcharges.
- Keywords:
- Fair Market Rent Appeal (FMRA)
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Charles Ramos
- Date:
- July 29, 1996
- Citation:
- NYLJ, page 25, col. 1
- Referred Statutes:
- 9 NYCRR 2523.1
- Summary:
- Tenant took occupancy in 1979 as the first rent stabilized tenant to the previous rent
controlled premises. On or about February 14, 1984 tenant filed an overcharge complaint with
the DHCR. In June 1986 DHCR requested the landlord to submit a full rent history of the unit,
including a copy of the DC-2 notice. (This is the document required to be served on the first rent
stabilized tenant of an apartmentand informs the tenant that they are the first rent stabilized
tenant). Landlord claimed not to have a copy of the DC-2 notice. In May, 1988 DHCR notified
the landlord that it was converting the complaint into a Fair Market Rent Appeal (FMRA), that
landlord had a right to submit comparability data with regard to other, similar apartments and
requested proof of any vacancy improvements. DHCR claimed it sent additional notices to the
landlord in July and August 1988. In October landlord responded that it did not keep records for
10 years and could not produce leases, rent ledgers or proof of vacancy improvements made
immediately prior to the present tenant's occupancy. In January 1989 the District Rent
Administrator issued an order reducing the rent from $450 a month to $241.07, effective June 1,
1979 and directed the landlord to pay back the overcharges or credit the tenant's future rents. The
landlord filed a PAR (an appeal) and for the first time submitted receipts for various
improvements. Landlord's PAR was denied and it filed an Article 78 (an appeal) and Justice
Bruce Wright remanded the matter back to DHCR directing the agency to consider the documents
concerning the renovations. The DHCR gave landlord an additional $26.87 per month due to
improvements, making tenant's total overcharges $25,401.39. The landlord filed another Article
78 stating that it was aware of tenant's 1984 complaint, but was not aware that it was required to
keep records for other apartments, that the DHCR's conversion of the complaint to a FMRA was
arbitrary, that the DHCR erred when it decided the fair market rent solely upon the rent guidelines
and should have considered comparable data and that the DHCR should refer to its own records
pertaining to comparable rents because landlord was only required to keep records for four years.
The Article 78 judge remanded the matter to the DHCR to establish a rational fair market rent that
reflects "rents generally prevailing for similar housing accommodations in buildings located in the
area" (RSC Section 2522.3). The court further directed the DHCR to refer to "Data compiled by
the [landlord] from sources within the agency or without." DHCR appealed and the Appellate
Division reversed and ruled that the Supreme Court judge erred when it shifted the burden of
going forward with evidence concerning comparable rents to the DHCR because the agency is not
required to do the landlord's work of assembling necessary documentation. The lower court also
erred when it determined that the DHCR could not determine a fair market rent appeal solely upon
the rent guidelines without the aid of comparable data because the tenant filed the complaint prior
to April 1, 1984 and DHCR had a reasonable basis to apply the default procedures, and further
the four-year limitation for record retention was not in effect at the time the tenant filed the
complaint. The Court also ruled that landlord was not unfairly prejudiced by the DHCR's
conversion of the overcharge complaint to a FMRA four years after the complaint had been filed.
It was landlord who was at fault for failing to serve the tenant the DC-2 form. Had the landlord
served this notice, the tenant might have filed the appropriate type of complaint. Until the tenant
is served such notice, a FMRA remains viable. Since no notice was served, tenant had the right
to file a FMRA in 1988 when the DHCR converted tenant's overcharge complaint into a FMRA.
- Case Caption:
- Matter of 902 Assoc. v. New York City Loft Board
- Issues/Legal Principles:
- Tenant is protected under loft coverage
- Keywords:
- Loft Law
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Beatrice Shainswit
- Date:
- July 29, 1996
- Citation:
- NYLJ, page 25, col. 4
- Referred Statutes:
- CPLR 7804(g)
- Summary:
- Loft Board denied landlord's application to recover tenant's loft unit and ordered landlord
to direct a deed declaration concerning tenant's lot-line windows. Landlord appealed in an Article
78 to the Supreme Court. The Loft Board regulation at issue required the owner and the tenant
to make every effort to permit every unit subject to the Loft Law (which tenant's is) to be in
compliance with the Building Code. While deed restriction is not one of the enumerated
alternatives in the regulation, the Appellate Division upheld the Supreme Court's order on grounds
that there was no showing that the enumerated options were intended to be the exclusive means
of bringing the unit up to code. The Court further noted that substantial evidence supported the
Loft Board's conclusion that the deed restriction along with appropriate application to the
Department of Buildings was likely to result in code compliance, resulting in coverage of the
affected unit.
- Case Caption:
- Rafika Realty Corp. v. Davis
- Issues/Legal Principles:
- Landlord failed to file initial registration statement; rent reverts back to last rate under rent
control.
- Keywords:
- rent registration
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Howard Sherman
- Date:
- July 30, 1996
- Citation:
- NYLJ, page 21, col. 1
- Referred Statutes:
- RSC 2521.1(a)(1); 2528.2(d); RSL 26-517-e
- Summary:
- The tenant's lease was for $600.00 per month. In 1984 the premises were registered with
the DHCR as rent controlled at $118.54 per month. When the rent controlled tenant vacated,
landlord did not file an initial apartment registration setting forth the new stabilized rent or serve
the original stabilized tenant with a notice of initial registration. During a non-payment
proceeding, landlord registered the unit belatedly and allegedly served the first tenant, but never
served a copy of the registration on the current tenant. The reason the Appellate Term treated the
alleged service of the initial registration on the first tenant as a nullity was due to the fact that
landlord knew that the tenant no longer resided in the apartment. The Appellate Term concluded
that since landlord failed to establish valid service of the initial rent registration upon either the
tenant or her predecessor, Section 26-517(e) is not triggered and landlord is limited to recovery
of the last rate of rent under rent control. The lower court's decision in favor of the landlord was
reversed and the case remanded for a determination of tenant's overcharges.
- Notes:
- Rent Stabilization Law Section 26-517 holds that the failure to file a proper and timely
initial rent registration bars an owner from collecting rent in excess of the last legal regulated rent
but the filing of a late registration results in prospective elimination of such sanctions only. In
other words, in this case, since the landlord did not properly serve the current tenant with the
initial registration, the landlord could only collect $118.54 in rent (not the $600 in the lease) up
to the point a proper filing and service is made. Once filing and service of the initial registration
is proper, then landlord can begin collecting $600 in rent. However, if no notice was ever sent
to the first stabilized tenant (DC-2 notice) or any subsequent tenant then the current tenant could
file a Fair Market Rent Appeal with the DHCR. The current tenant's time period for doing so
expires ninety days after the DC-2 notice is served.
- Case Caption:
- Valentine v. Mark
- Issues/Legal Principles:
- Willfulness of landlord in overcharging tenant entitles tenant to treble damages.
- Keywords:
- overcharges
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Marilyn Shafer
- Date:
- July 31, 1996
- Citation:
- NYLJ, page 21, col. 2
- Referred Statutes:
- RSC 2521.1(a)(1); 2528.2(d); RSL 26-517-e
- Summary:
- A DHCR order upheld (in an Article 78 proceeding) landlord's liability for overcharges
and treble damages and directed landlord to roll back the rent to the lawful stabilized amount
($445.28 through July 1985) and subsequent leases were to be computed on that base rent.
Landlords set the rent at $906.88 starting August 1985 and thereafter $976.25. Landlord had full
knowledge of the DHCR order and chose to charge a higher amount. The lower court found that
landlord failed to establish by a preponderance of the evidence that the overcharge was not willful.
The Appellate Term upheld this finding of willfulness and upheld the award to tenant of treble
damages. Landlord's claim for alleged damages to the premises at the time tenant surrendered
possession was reinstated and remanded for a trial.
- Case Caption:
- Village Realty Partners LP v. Nejame
- Issues/Legal Principles:
- Landlord need not send rent controlled tenant notice to cure where tenant allegedly
inflicted serious and substantial injury on apartment.
- Keywords:
- substantial alterations; service of petition
- Court:
- Civil Court, New York County
- Judge:
- Hon. Martin Shulman
- Date:
- July 31, 1996
- Citation:
- NYLJ, page 23, col. 1
- Referred Statutes:
- Rent and Eviction Regulation Section 2004.3; 2204.2(a)(1)&(2)
- Summary:
- Tenant's rent controlled apartment had a living room, kitchen, bedroom and bathroom.
On February 26, 1996, without notice to landlord or permission, tenant hired a contractor who
demolished the interior of the apartment by tearing down all partition walls, removed all fixtures
except for the toilet and plaster was stripped. In short, the unit was gutted. Landlord began a
Supreme Court action against tenant and that court issued a temporary restraining order enjoining
the tenant from any future work on the apartment. The tenant's response was that she was
exercising self-help remedy to remove slum-like conditions and restore the apartment to a
habitable condition. While that case was pending, landlord served tenant a 30 day notice of
termination on grounds that tenant violated substantial obligations of the tenancy under Section
2204.2 of the Rent and Eviction Regulations and that tenant committed a nuisance. No notice to
cure was sent. Thereafter landlord served a holdover petition. Tenant's attorney argued that a
notice to cure was necessary because the language "violation of substantial obligation of the
tenancy" necessitates a notice to cure. The court disagreed. The full language of the subdivisions
(a)(1) and (a)(2) speak of the tenant's willful violations of an obligation which inflicts serious and
substantial injury on the landlord and malicious or gross negligence which substantially damages
the unit. The court ruled that tenant's breach "could reasonably be construed" as a willful
violation to the extent of inflicting serious and substantial injury, thereby omitting any requirement
to serve a predicate notice to cure. The judge reserved for the trial court the issue of whether the
tenant's acts legally constitute nuisance warranting an eviction. Tenant also moved to dismiss on
grounds that she was not properly served the petition because, if the landlord knew the apartment
was fully gutted, then the landlord knew she could not possibly be living there and it was not
reasonable for the landlord to attempt service on the apartment knowing that tenant was not
residing there. Tenant's attorney made this argument but no affidavit was submitted by tenant
stating that she did not actually reside in the apartment after it was gutted. The court denied this
portion of the motion, too.
- Case Caption:
- GSL Enterprises v. Lopez
- Issues/Legal Principles:
- Surviving partner fails to show evidence of emotional and financial commitment and
interdependence with deceased prime tenant.
- Keywords:
- succession rights
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Arlene Hahn
- Date:
- July 31, 1996
- Citation:
- NYLJ, page 21, col. 1
- Referred Statutes:
- 9 NYCRR 2204.6(d)(3)
- Summary:
- Surviving life partner sought succession rights to the rent controlled apartment as a
nontraditional family member. The lower court held against the occupant. The Appellate Term
upheld noting an absence of evidence of intermingled finances, joint ownership of property or any
execution of documents formalizing legal obligations. Nor was there testimony from friends,
family members or neighbors confirming the existence of a family-type relationship. Further the
deceased tenant gave his sister a power of attorney during his last illness and executed a document
indicating that he desired his sister to "inherit" the apartment. The court found that at best the
evidence merely established a roommate/friend relationship. In a separate, but concurring
opinion, Justice Helen Freedman deferred to the findings of the trial that all criteria for family
membership set forth in the statute were not satisfied. But she disagreed that the evidence merely
established a roommate/friend relationship. She noted that the couple lived together for eleven
years, slept in the same bed, had a sexual relationship for at least part of the time and other indicia
of a life time partnership. She felt if she had tried the case she would have found sufficient
evidence to show the committed relationship reached the statutory standard.
- Notes:
- In proving a succession rights case for nontraditional family members, there is no
statutory requirement that a couple's sex life must be explained. There are many married couples
who rarely have sex and yet a surviving spouse is not required to discuss their sex life in a
"traditional" sucession rights case. Neither the nature or extent of sexual relations should be at
issue with a so-called nontraditional couple's succession rights case.
- Case Caption:
- Shore Terrace Cooperative v. Schwartz
- Issues/Legal Principles:
- Stipulation is vacated and non-payment petition dismissed for failing to name one of co-op
tenants who owned the unit and for lack of specificity in the rent demand.
- Keywords:
- stipulations; three day notice; necessary party
- Court:
- Civil Housing Court, Kings County
- Judge:
- lower court: Hon. Callender
- Date:
- July 31, 1996
- Citation:
- NYLJ, page 24, col. 2
- Referred Statutes:
- 9 NYCRR 2204.6(d)(3)
- Summary:
- Two tenants signed the occupancy agreement 16 years ago and purchased the shares to the
co-op in both their names. In a non-payment proceeding, the co-op landlord failed to name one
of the tenants in the three day notice and the petition, nor did it allege service of the papers on
her. The tenants defaulted and moved pro se to vacate the default judgment. They signed a
stipulation which amended the petition to name the female tenant as a respondent, waived personal
jurisdictional defenses against both tenants, and agreed to certain rental amounts. They defaulted
again, but retained an attorney who moved to dismiss the petition because the three day notice
failed to name the female tenant as a necessary party and serve her and the demand merely stated
a total sum owed for 6 months without any indication of what was due for each month during that
time period. Other arguments included improper inclusion of late fees, a discrepancy in the
amount of charges demanded and the notice failed to allege a date certain when to pay the
maintenance. The court ruled tht it lacked jurisdiction to issue a judgment against the female
tenant since she was not named in the notice or the rent demand and this is not an amendable
defect. The notice was further defective for failing to particularize and articulate clearly the exact
amount of maintenance due and miscellaneous charges. The court found good cause to vacate the
stipulation since the tenants signed it unaware of their rights.
New York Law Journal, decisions for the week of July 22-26, 1996 (5 cases)
- Case Caption:
- Tobjy v. Zepnick
- Issues/Legal Principles:
- Landlord denied rent due to illegal apartment not listed in the certificate of occupancy
- Keywords:
- illegal apartment
- Court:
- Civil Court, Kings County
- Judge:
- Hon. Margaret Cammer
- Date:
- July 24, 1996
- Citation:
- NYLJ, page 24, col. 4
- Referred Statutes:
- Multiple Dwelling Law, section 301, 302, 325
- Summary:
- Landlord owned a two family house. Tenant rented out the basement
apartment at $750 a month in rent, but failed to pay for 10 months. In a stipulation in Housing
Court, tenant vacated the premises, but the court denied landlord rent on grounds that the premises
was an illegal multiple dwelling. Landlord then sued in Civil Court to recover $7,500 in rent
arrears. Because two prior Housing Court judges determined that leasing the basement apartment
violated the multiple dwelling laws, thereby making it an illegal apartment, and because two prior
courts denied landlord a right to the rent based on the illegal usage, this Court held that it was
bound by res judicata and dismissed the landlord's complaint to collect the rent. The landlord
pointed out to the court certain case decisions which allowed a landlord to collect rent despite the
fact that those apartments were not listed on the certificate of occupancy (and therefore in violation
of the multiple dwelling laws). Those courts noted that a landlord could still collect rent if the
tenant failed to prove that their health or safety was endangered as a result of a lack of certificate
of occupancy. The Court disagreed with these judicial exceptions and held that the legislature
should enact a law permitting exceptions, that judges should not carve out exceptions themselves.
- Case Caption:
- City of New York v. Jones
- Issues/Legal Principles:
- Tenants evicted for their son's unlawful narcotics activity in apartment during tenants' absence.
- Keywords:
- illegal activity
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Dubinsky
- Date:
- July 24, 1996
- Citation:
- NYLJ, page 22, col. 4
- Referred Statutes:
- none cited
- Summary:
- Landlord brought holdover proceeding to evict the tenants of record due
to narcotics activity in their apartment. The tenants argued that they did not participate in the
illegal activity or knew it occurred. The court granted landlord's request to exclude from the
public testimony from its witness, an undercover agent, on grounds that the agent's identity would
be compromised. The agent testified that a drug bust occurred pursuant to a search warrant and
various drugs, drug paraphernalia, weapons and $10,000 cash was found in the apartment. The
tenants' son was present during the bust. Tenants testified that they were away to visit a family
member in South Carolina for several months. They said they left their daughter in charge of the
apartment and that their son did not have permission to be present in the apartment. During the
bust the son had an apartment key on him. The tenants denied knowledge of or participation in
the son's activity. The judge asked if the tenants wanted to call their son as a witness, noting that
arrangements could be made to have him come from jail. The tenants declined to call their son.
The daughter, who was in the hallway, declined to testify. The court found the agent's testimony
credible and that the apartment was used for illegal purposes on a large scale. Given the extent
of the narcotics activity, the court found it hard to believe that the parents did not know of the
activity. The court ruled it did not matter if the parents did not participate in the activity; they
had a responsibility to keep the apartment free of such activity. The judge granted possession to
the landlord.
- Case Caption:
- JD Realty Assoc. v. Scoullar
- Issues/Legal Principles:
- Landlord is granted discovery to question tenants as to rents
accrued from landlord's predecessor-in-interest. Three-day rent demand reinstated despite its
speculative nature.
- Keywords:
- rent demand; discovery
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Stallman
- Date:
- July 26, 1996
- Citation:
- NYLJ, page 21, col. 1
- Referred Statutes:
- none cited
-
- Summary:
- The lower court ruled that landlord's rent demand which stated "any and
all arrears which may be due" for a 3-4 year period beginning in 1989 was too indefinite and
equivocal to serve as a predicate notice to the consolidated non-payment proceedings and granted
tenants' motion for summary judgment. The landlord was an assignee of the property and lacked
knowledge as to the amounts owed or paid to its predecessors-in-interest. The Appellate Term
reversed the lower court's summary judgment award and remanded the case. It also reversed the
lower court's denial of landlord's motion for discovery to question the tenants as to the amounts
of rent due. The Appellate Term also ruled that landlord's more recent itemized demand for rent
should go forward at this time since those rents owed were not speculative and tenants had notice.
- Case Caption:
- 1438 Third Avenue Assoc. v. Mizrahi
- Issues/Legal Principles:
- Lower court improperly computed rent and wrongly denied
tenant's motion to vacate a default.
- Keywords:
- default judgment
- Court:
- Appellate Term, 1st Department
- Judge:
- lower court Hon. Grayshaw
- Date:
- July 26, 1996
- Citation:
- NYLJ, page 21, col. 2
- Referred Statutes:
- CPLR section 5015(a)
-
- Summary:
- The lower court denied tenant's motion to vacate a default judgment and
the Appellate Term reversed on grounds that the tenants submitted sufficient documentary
evidence of additional canceled rent checks relevant to the issue of the amount of rent actually
owed. The appellate court held that the lower court improperly computed the rent for a period
beyond a prior stipulation.
- Case Caption:
- Jane Street Company v. Suttoni
- Issues/Legal Principles:
- Estate's interest in rent stabilized apartment terminates at
the expiration of the lease.
-
- Keyswords:
- succession rights
- Court:
- Appellate Term, First Department
- Judge:
- lower court Hon. Saralee Evans
- Date:
- July 26, 1996
- Citation:
- NYLJ, page 21, col. 3
- Referred Statutes:
- none cited
- Summary:
- Occupant alleged succession rights to rent stabilized apartment. The
deceased prime tenant's lease expired by the time landlord brought a licensee proceeding. The
lower court dismissed the petition on grounds that the landlord failed to name the estate as a party.
The appellate court ruled that the estate's possessory claims terminated upon the expiration of the
lease and therefore the estate was not a necessary party. The appellate court reinstated the petition
and granted landlord discovery.
New York Law Journal, decisions for the week of July 15-19, 1996 (10 cases)
- Case Caption:
- Northtown Roosevelt Assoc. v. Christianson
- Issues/Legal Principles:
- Knowledge of tenant's pet imputed to landlord by tenant's
open and notorious keeping of dog.
- Keywords:
- pets
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Peter Wendt
- Date:
- July 17, 1996
- Citation:
- NYLJ, page 22, col. 4
- Referred Statutes:
- NYC Administrative Code section 27-2009.1(b)
- Summary:
- Landlord brought a holdover against the tenant for violating a substantial
obligation of the lease by harboring a dog. The tenant admitted to having a small dog, but argued
that the landlord waived its objections by failing to commence a proceeding within three months
after learning of the dog's presence. Tenant and her daughter testified that a pomeranian puppy
was bought on June 3, 1995 and immediately brought to the apartment. The tenant introduced
the dog to neighbors, took it on daily walks through the building and that landlord's agent once
saw the dog and let her children play with it. Further, the superintendent lived on the same floor
as the tenant and regularly saw the dog. A neighbor also testified for the tenant. The landlord's
witnesses, both agents, testified that they were not aware of the dog's presence until August or
September, although there were some inconsistencies in their testimony. The court noted that the
landlord never called the super as a witness to rebut tenant's allegations of his knowledge. A
negative inference may be drawn against a party where that party fails to produce a witness who
is available, has knowledge and would normally be expected to provide testimony favorable to the
party. The court ruled that the tenant did not attempt to conceal the fact that she had a dog and
in fact kept the dog in an open and notorious manner. The court concluded that the owner thus
had knowledge of the dog's presence from June, 1995. Since the petition was served five months
after the imputed knowledge, the court ruled that the landlord waived its objections to the dog by
operation of statute.
- Case Caption:
- Francis v. Reid
- Issues/Legal Principles:
- Tenant not restored to possession in unlawful eviction, but
awarded treble damages.
- Keywords:
- unlawful eviction
- Court:
- Civil Court, Westchester County
- Judge:
- Hon. Seiden
- Date:
- July 17, 1996
- Citation:
- NYLJ, page 26, col. 5
- Referred Statutes:
- RPAPL section 853
- Summary:
- Tenant moved by order to show cause to be restored to possession and
sought treble damages for an unlawful eviction. Tenant paid a security deposit and rent in March.
Rent was paid for April and May. At some point there was an oral agreement that the tenant
would vacate June 25th and live off the remainder of the security deposit. When tenant did not
vacate on June 25, landlord changed the locks, packed up tenant's belongings, moved them to
storage and sent the storage receipt to tenant's mother's address by overnight carrier. The
testimony was in dispute as to whether June 25th was a firm date or a target date to move. The
court determined that absent legal process, the eviction was perforce unlawful. The court declined
to restore the tenant to possession due to the animosity between the parties and the fact that the
building lacked a certificate of occupancy as a two family home. The tenant claimed that during
the eviction $10,000 in cash was taken and a $3,000 engagement ring. The court held that the
tenant failed to prove such loss (no bank statements, no invoices of purchase, etc.). The court
awarded tenant $500 damages because tenant had to live on a couch with her sister. The court
found that treble damages were warranted because the purpose of the statute is to punish those
who engage in wrongful conduct. Tenant was awarded $1,500.
- Case Caption:
- Simkowtiz v. Toniatti
- Issues/Legal Principles:
- Judgment in stipulation is automatically vacated upon
payment of amount cited in judgment.
- Keywords:
- judgments
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Malatzky
- Date:
- July 17, 1996
- Citation:
- NYLJ, page 21, col. 2
- Referred Statutes:
- CPLR section 5019(a)
-
- Summary:
- There was a math error in the stipulation and judgment. The court noted
that a judgment which is paid and satisfied of record ceases to have any existence since a
defendant, by paying the amount due, extinguishes the judgment and the obligation thereunder.
Landlord's motion to correct an error in the amount of the judgment, after the judgment was paid,
was denied by the lower court and affirmed on appeal on grounds that the judgment for rent was
timely satisfied and must be deemed vacated upon payment.
- Notes:
- One has to read through the lines in this decision because little of the facts
were set forth. It appears that the error in the judgment was in the tenant's favor. Tenant paid
the amount of the judgment and the courts ruled that this judgment was automatically vacated and
cannot be resurrected upon such payment. If the stipulation stated that the amount of the judgment
represented all rent owed through the date of the stipulation, then the doctrine of res judicata
would prevent the landlord from bringing a plenary proceeding in civil court to collect any other
rent monies allegedly owed but not included in the judgment.
- Case Caption:
- Parkchester Apartments Co. v. Drake
- Issues/Legal Principles:
- Stipulation of settlement did not preclude landlord from
later seeking attorney's fees.
- Keywords:
- prevailing party
- Court:
- Appellate Term, 1st Department
- Judge:
- lower court Hon. Delores Thomas
- Date:
- July 17, 1996
- Citation:
- NYLJ, page 21, col. 1
- Referred Statutes:
- none cited
-
- Summary:
- A consent judgment in the non-payment proceeding was entered in
landlord's favor. Presumably, by "consent judgment" the Appellate Term is referring to a
stipulation of settlement signed between landlord and tenant. Presumably, the stipulation
contained no clause specifying that each party waived attorney's fees. Absent such a provision,
landlord could seek attorney's fees which it did because there was a lease with an enforceable
attorney's fees clause. Apparently, the stipulation indicated that the landlord was the prevailing
party in the proceeding. The lower court refused to grant the landlord attorney's fees and denied
reargument on this issue. The Appellate Term reversed and remanded the matter for a hearing
on attorney's fees.
- Notes:
- This case is a reminder that tenants entering into settlements should make
sure that the stipulation includes a clause that would preclude the landlord from later coming back
to seek attorney's fees.
- Case Caption:
- Amsterdam Avenue v. Montero
- Issues/Legal Principles:
- Although mailing of petition to hospital was proper,
appellate court vacated tenant's default due to her hospitalization at time petition was commenced.
-
- Keyswords:
- default
- Court:
- Appellate Term, First Department
- Judge:
- lower court Hon. Howard Malatzky
- Date:
- July 17, 1996
- Citation:
- NYLJ, page 21, col. 2
- Referred Statutes:
- RPAPL section 735; CPLR section 5015(a)(1)
- Summary:
- Tenant defaulted in a non-payment proceeding. The testimony of the
process server and proof of mailings supported the finding of the lower court that service was
proper. A separate mailing was sent the tenant at Psychiatric Center where she was an inpatient.
The lower court denied tenant's motion to vacate the judgment of possession. The Appellate Term
exercised its discretion and reversed the lower court's ruling in light of the tenant's hospitalization
at the time the nonpayment was commenced, finding the hospitalization to be an excusable default.
The appellate court held that tenant's long term tenancy should not be forfeited for illness,
especially where her sons were ready to pay all arrears.
- Case Caption:
- Gottlieb v. Aragones
- Issues/Legal Principles:
- Occupant's tender of 14 "rent" payments did not make a
tenancy since payments were for "use and occupancy," not rent.
-
- Keyswords:
- waiver
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Peter Wendt
- Date:
- July 17, 1996
- Citation:
- NYLJ, page 21, col. 2
- Referred Statutes:
- none cited
- Summary:
- The rent stabilized tenant surrendered its rights and landlord brought a
holdover proceeding against the remaining occupant as a licensee. After trial the lower court
determined that landlord's acceptance of fourteen "rent checks" from the occupant manifested the
landlord's acceptance of her as a tenant. The Appellate Term, however, held that a tenancy
cannot be created by waiver or estoppel, and found insufficient evidence of intent on landlord's
part to enter into a landlord-tenant relationship. Tenant's request for a lease in her own name was
denied and she signed a writing agreeing to vacate by a date certain. Thereafter she sought more
time to vacate during which her checks were accepted "without prejudice." The Appellate Term
deemed these payments as "use and occupancy," not rent. Landlord's acceptance of these
payments, without more, did not confer tenancy status upon respondent or establish a waiver of
landlord's right to contest respondent's occupancy as a licensee.
- Case Caption:
- Jannarone v. Ware
- Issues/Legal Principles:
- Court would not vacate warrant against tenant who breached
3 stipulations and had history of chronic nonpayment.
- Keyswords:
- chronic non-payment
- Court:
- Appellate Term, 1st Dept.
- Judge:
- Lower court; Hon. Arlene Hahn
- Date:
- July 18, 1996
- Citation:
- NYLJ, page 21, col. 1
- Referred Statutes:
- none cited
- Summary:
- The Appellate Term affirmed the lower court's denial of tenant's motion
to vacate the warrant on grounds that the tenant failed to comply with the payment terms of 3
stipulations and had a history of chronic non-payment. The Appellate Term held that the lower
court did not abuse its discretion in denying the motion.
- Case Caption:
- Brodsky v. Davidsson
- Issues/Legal Principles:
- Court denies landlord's motion to "dismiss" its own
proceeding.
- Keyswords:
- non-payment petition
- Court:
- Appellate Term, 1st Dept.
- Judge:
- lower court: Hon. Wildred O'Connor
- Date:
- July 18, 1996
- Citation:
- NYLJ, page 21, col. 2
- Referred Statutes:
- Article 7 of RPAPL
- Summary:
- Landlord brought a non-payment proceeding and made a motion to
"dismiss" its own petition on grounds that the rent demand was improper, although the tenant did
not object to the form of the demand. (The case does not make clear why the landlord seemed so
intent on getting rid of its own case.) The tenant sought a jury trial and the Appellate Term ruled
that the matter should proceed before the jury since a prior motion to strike the jury demand was
denied and upheld on appeal. Tenant's counterclaim that the repairs were not done properly did
not state a cause of action for harassment or intentional infliction of emotional distress.
- Case Caption:
- New York City Housing Authority v. Alexander
- Issues/Legal Principles:
- Niece of prime tenant in city-owned apartment entitled to
hearing in Housing Court on succession rights claim.
- Keywords:
- succession rights
- Court:
- Appellate Term, 1st Dept.
- Judge:
- lower court Hon. Dubinsky
- Date:
- July 18, 1996
- Citation:
- NYLJ, page 21, col. 3
- Referred Statutes:
- none cited
- Summary:
- Occupant moved into the premises, a city-owned building, with her aunt,
the tenant of record. The aunt vacated and occupant sought to succeed to the lease. There was
a dispute as to if and when the tenant notified NYCHA of her niece's presence in the apartment
or inclusion on the annual household composition and income statement. The lower court
dismissed occupant's motion to amend her answer to include the affirmative defense of entitlement
to the apartment. On appeal, the Appellate Term ruled that since there was no grievance
proceeding held with NYCHA and because the occupant alleged that NYCHA had actual
knowledge of her disclosed occupancy, she should be permitted to litigate her claim as a remaining
family member in the Housing Court proceeding. The Appellate Court upheld the lower court's
decision that the occupant's claim of breach of warranty of habitability was not related to the
landlord's claim for possession of the premises and thus should be stricken.
- Case Caption:
- Feinberg & Gitlin v. Mauriello
- Issues/Legal Principles:
- Occupant fails to establish two-year primary residence with
grandmother to attain succession rights
- Keywords:
- succession rights
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Arlene Hahn
- Date:
- July 19, 1996
- Citation:
- NYLJ, page 21, col. 4
- Referred Statutes:
- 9 NYCRR 2204.6(d)
- Summary:
- Occupant sought to establish a right to succeed to the rent control
apartment of his grandmother but he could only prove contemporaneous residence with her for
16 months prior to her removal to a nursing home. Unless the person asserting succession rights
is a senior citizen, a two-year simultaneous residence with the prime tenant must be shown (the two
years immediately prior to the prime tenant's vacatur or death). (Senior citizens seeking
succession rights need only show a one-year contemporaneous co-occupancy).
New York Law Journal, decisions for the week of July 8-12, 1996 (12 cases)
- Case Caption:
- Blackjack Realty Corp. v. Romero
- Issues/Legal Principles:
- Vacatur of default dependent on tenant's payment of rent
arrears
- Keywords:
- default judgment
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Arlene Hahn
- Date:
- July 9, 1996
- Citation:
- NYLJ, page 25, col. 5
- Referred Statutes:
- none cited
- Summary:
- Tenant defaulted and the lower court conditioned the vacatur of the
default upon payment into court of a portion of the outstanding rent owed. The Appellate Term
ruled that the court did not abuse its discretion in requiring the payment, particularly because five
months elapsed before tenant sought to vacate the default. Apparently tenant paid the rent pending
appeal, so the case was remanded to the judge for a trial. (The case doesn't indicate any other
facts of the proceeding.)
- Case Caption:
- Simkowitz v. Birden
- Issues/Legal Principles:
- Trial judge improperly denies landlord adjournment or later
opportunity to present the merits of the case.
- Keywords:
- failure to prosecute
- Court:
- Appellate Term, First Department
- Judge:
- lower court Hon. Walter Strauss
- Date:
- July 9, 1996
- Citation:
- NYLJ, page 25, col. 4
- Referred Statutes:
- none cited
- Summary:
- The nonpayment proceeding was dismissed for "failure to prosecute"
when landlord's attorney suddenly got ill on the eve of trial. An associate unfamiliar with the case
was denied an adjournment and landlord's subsequent motion to vacate the dismissal was also
denied. The Appellate Term found the lower court's decision an "improvident exercise of
discretion," because there is a strong preference that cases be decided on their merits (absent
demonstrable prejudice). The court noted that the petition set forth a meritorious rent claim, the
default was not wilful, tenant's attorney agreed to vacate the dismissal, and no history of delay
in the prosecution of the case existed. The court reinstated the petition.
- Case Caption:
- Stahl Associates Co. v. Siegel
- Issues/Legal Principles:
- Judgment against tenant for failure to abate nuisance.
- Keywords:
- nuisance
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Walter Strauss
- Date:
- July 9, 1996
- Citation:
- NYLJ, page 25, col. 3
- Referred Statutes:
- none cited
-
- Summary:
- In a nuisance holdover, the tenant agreed to remove debris and garbage
strewn around the apartments. Extensions of her time to comply were granted and finally the case
was restored to the calendar when tenant still didn't clean up the mess. Based on photos and
testimony, the lower court determined that the apartment's condition presented a health and fire
hazard to tenant and other tenants. The Appellate Term upheld the lower court's decision to evict
the tenant, noting the record had sufficient supporting evidence.
- Case Caption:
- Prominence Realty Corp. v. Trueblood
- Issues/Legal Principles:
- Tenant restored to possession after defaulting.
- Keywords:
- after-eviction
- Court:
- Appellate Term, 1st Department
- Judge:
- lower court Hon. Arlene Hahn
- Date:
- July 9, 1996
- Citation:
- NYLJ, page 25, col. 2
- Referred Statutes:
- none cited
-
- Summary:
- Rent controlled tenant for 27 years withheld two months rent based on
lack of repairs. Tenant unintentionally defaulted at trial in the non-payment proceeding.
Landlord's representative told him on the morning of the eviction that he would not be evicted if
the rent was tendered in full. Later that day, landlord declined tenant's tender because the warrant
had been executed and the landlord decided they wanted to keep possession of the apartment. The
lower court exercised its discretion and restored the tenant to possession after the eviction when
he tendered all arrears in court in certified funds. Appellate Term upheld the restoration.
- Notes:
- The general rule is that the landlord is not required to restore the tenant to
possession after the warrant has been executed. Landlord can even accept the rent and still not
be obliged to restore the tenant to possession. Case law has developed allowing judges to deviate
from this harsh standard rule of law in appropriate circumstances, such as this case.
- Case Caption:
- Parkchester Apartments v. Rogers
- Issues/Legal Principles:
- Lower court did not abuse discretion by giving tenant one
month to pay the arrears after landlord gave tenant extensions for 8 months.
-
- Keyswords:
- stipulations; attorney's fees
- Court:
- Appellate Term, First Department
- Judge:
- lower court Hon. Pierre Turner
- Date:
- July 9, 1996
- Citation:
- NYLJ, page 25, col. 1
- Referred Statutes:
- none cited
- Summary:
- Landlord had six stipulations with tenant over an 8 month period to stay
the execution of the warrant if arrears of $8,000 were paid. Tenant paid ongoing use and
occupancy while she pursued an application for an emergency rent grant from Department of
Social Services. The lower court granted the tenant an additional one month stay which landlord
objected to and appealed. During the appeal, landlord received and accepted two DSS checks
which satisfied the arrears. Landlord continued its appeal because it wanted attorney's fees. The
Appellate Term denied fees on grounds that the stipulations did not provide for either party to
recover any attorney's fees.
- Case Caption:
- Prospect International Corp. v. Cavallaro
- Issues/Legal Principles:
- Occupant who came into possession by consent of tenant
cannot be a squatter.
-
- Keyswords:
- squatter; licensee
- Court:
- Appellate Term, 9th & 10th Judicial Districts
- Judge:
- lower court: Hon. Null
- Date:
- July 9, 1996
- Citation:
- NYLJ, page 29, col. 6
- Referred Statutes:
- RPAPL sec. 713
- Summary:
- Occupants entered into possession by agreement with the tenants, therefore
they were not squatters. Further, occupants were not licensees whose license has been terminated
because it is not within a landlord's power to terminate a license granted by tenants. The proof
at trial showed occupants were assignees of the tenants, although without landlord's consent. The
court held that landlord's remedy was to maintain a summary proceeding against the tenant-assignors.
Landlord's failure to name the tenants as parties to this summary proceeding required
its dismissal.
- Case Caption:
- DPHD v. Livingston
- Issues/Legal Principles:
- Managing agents are "owners" in HP proceeding
- Keyswords:
- owner
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower court: Hon. Harriet George
- Date:
- July 9, 1996
- Citation:
- NYLJ, page 29, col. 4
- Referred Statutes:
- Housing Maintenance Code sec. 27-2004(45); Multiple Dwelling
Law sec. 4(45)
- Summary:
- In HP proceeding the tenant-petitioner obtained a judgment against the
respondents for failure to provide heat and hot water. The respondents moved to vacate the
judgment on grounds that they were not "owners" as defined by the statutes. The court held that
a managing agent is an owner under the relevant statutes. Further a corporate officer is an agent
whether or not the person is involved with the operations of the building. In this case, one of the
respondents was the managing agent, and therefore an owner, and the other was a principle of the
corporation who was intimately involved with the day-to-day operations of the building.
Therefore both were subject to the fines imposed by the lower court.
- Case Caption:
- 255 Eastern Parkway Assoc. v. Quinones
- Issues/Legal Principles:
- Landlord denied discovery in non-primary residency
proceeding
- Keyswords:
- discovery
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower court: Hon. Baynes
- Date:
- July 9, 1996
- Citation:
- NYLJ, page 29, col. 5
- Referred Statutes:
- none cited
- Summary:
- The Appellate Term upheld the validity of the notice of nonrenewal of
lease sent to alleged non-primary residents. The court denied landlord's motion to conduct
discovery because the tenants provided substantially all the information sought by the landlord in
tenants' motion papers .
- Notes:
- Landlords almost always get discovery in non-primary residency cases. This
means they can ask the tenant questions under oath before trial, and also request and receive
documents from the tenant relating to the claim. In this case, the tenants attached as exhibits to
their motion almost all documents landlord requested and this excused the tenants from oral
questioning under oath. Many times, however, tenants are not able to produce all the documents
or their case may be compromised by just producing some of the documents. Although this case
is good for tenants, be wary: don't assume by this case that if a tenant produces all the documents
requested in motion papers that no oral deposition will occur. That's not necessarily true.
- Case Caption:
- Laren v. Chakranarayan
- Issues/Legal Principles:
- Landlord cannot recover cost of painting apartment from
tenant.
- Keywords:
- painting
- Court:
- Appellate Term, First Department
- Judge:
- lower court Hon. Margaret Taylor
- Date:
- July 12, 1996
- Citation:
- NYLJ, page 25, col. 1
- Referred Statutes:
- Housing Maintenance Code of Administrative Code of City of
New York, Section 27-2013(b)(2)
- Summary:
- Landlord sued rent controlled tenant in small claims court for the cost
of painting tenant's apartment in 1990 and 1994. The court held that landlord was not entitled to
compensation directly from the tenant, and landlord should apply to the DHCR for an application
for an increase in the maximum rent.
- Notes:
- Landords are required (if asked by tenants) to paint the apartment every three
years. They are also responsible for paying for this service. It is strange that the Appellate Term
would advise landlord to seek an increase in rent from the DHCR for a paint job; seemingly, the
DHCR would deny such a request.
- Case Caption:
- Centennial Restorations Co. V. Wyatt
- Issues/Legal Principles:
- Landlord has one year to restore a case to calendar before
the case can be dismissed for failure to prosecute.
- Keywords:
- failure to prosecute
- Court:
- Appellate Term, First Department
- Judge:
- lower court Hon. James Grayshaw
- Date:
- July 12, 1996
- Citation:
- NYLJ, page 25, col. 2
- Referred Statutes:
- 22 NYCRR Section 208.14(c)
- Summary:
- In June, 1994 landlord moved to mark the holdover proceeding "off
calendar." No appeal was taken from that order. Seven months later tenant moved to dismiss the
petition for failure to prosecute. The court held that the tenant's motion was premature since
landlord had one year to move for restoration from June, 1994 to avoid an automatic dismissal.
- Case Caption:
- Ellis Avenue Corp. V. Diaz
- Issues/Legal Principles:
- Stipulation vacated due to unexplained overcharge.
- Keywords:
- overcharge
- Court:
- Appellate Term, First Department
- Judge:
- lower court Hon. Anthony Fiorella
- Date:
- July 12, 1996
- Citation:
- NYLJ, page 25, col. 5
- Referred Statutes:
- none cited
- Summary:
- Pro se tenant signed a stipulation in a nonpayment proceeding. Later she
retained the services of a legal organization who moved to vacate the stipulation on grounds of
overcharge. Since landlord failed to explain the excessive increase in rent from the DHCR
records of the prior rent, the court considered this reason "ample good cause" to set aside the
stipulation and return the parties to their former position.
- Case Caption:
- Rodriguez v. Hongford Realty Corp.
- Issues/Legal Principles:
- Vacatur of landlord's default allowed to enable dispute to
be resolved on its merits
- Keywords:
- default judgment
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Peter Wendt
- Date:
- July 12, 1996
- Citation:
- NYLJ, page 25, col. 5
- Referred Statutes:
- none cited
- Summary:
- Landlord unintentionally defaulted and was less than one-half hour late
in appearance on the adjourned trial date of the HP proceeding. The Appellate Term vacated the
default on grounds that it is general policy to "resolve disputes on their merits whenever possible."
Landlord's defnese was economic infeasibility with respect to structure repairs necessary to restore
the vacated premises.
New York Law Journal, decisions for the week of July 1-5, 1996 (7 cases)
- Case Caption:
- Harlington Realty Corp. v. Polakovich
- Issues/Legal Principles:
- Tenants default in non-payment proceeding cannot later
raise issues of constructive eviction in subsequent plenary suit by landlord for rent.
- Keywords:
- res judicata
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower court: Hon. Weinstein
- Date:
- July 2, 1996
- Citation:
- NYLJ, page 29, col. 3
- Referred Statutes:
- none cited
- Summary:
- The Appellate Term affirmed the lower court's awarding landlord the
unpaid rent and costs to repaint and repair the apartment after tenants vacated plus legal fees.
Tenants' pro se answer sounded in conversion (unlawful retention of property). They retained a
lawyer and moved to amend their pleading to include a counterclaim for wrongful eviction, treble
damages and conversion. The Appellate Term denied the tenants' motion because they defaulted
in a prior nonpayment proceeding and never appealed or moved to vacate that judgment.
Therefore they are barred from litigating the issues concerning wrongful eviction and damages
arising from those acts under the doctrine of res judicata. But the Appellate Term affirmed the
lower court's permitting the tenants' claim for conversion. Apparently, this claim arose after the
non-payment claim.
- Case Caption:
- Fourth Avenue Owners Corp. v. Geshwind
- Issues/Legal Principles:
- Co-Op Corp. recovers maintenance arrears in Supreme
Court contrary to tenant's claim that the issues should be heard in Housing Court.
- Keywords:
- maintenance arrears
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Charles Ramos
- Date:
- July 1, 1996
- Citation:
- NYLJ, page 29, col. 2
- Referred Statutes:
- none cited
- Summary:
- Plaintiff co-op was granted summary judgment for $24,547.04 for
maintenance arrears. Defendant attempted to claim that plaintiff did not abide by a stipulation in
Housing Court in an earlier, separate proceeding and that the Housing Court should deal with the
issue of maintenance owed, but the Supreme Court and the Appellate Division rejected this
argument.
- Case Caption:
- Scharfman v. Aleman
- Issues/Legal Principles:
- Section 8 tenant is not liable to pay subsidized portion of
rent to landlord even if govt. agency refuses to.
- Keywords:
- Section 8
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Gould
- Date:
- July 3, 1996
- Citation:
- NYLJ, page 32, col. 1
- Referred Statutes:
- Civil Court Act 110
- Summary:
- In a federal case it was determined that a landlord cannot recover more
than the share of rent for which a Section 8 tenant is responsible in a summary proceeding. Thus,
tenants are not liable by federal law for the subsidized portion of the rent if the subsidizing agency
fails to pay it. For a period of 9 months, New York City Housing Authority (NYCHA) withheld
payment of the rent subsidy in an agency decision to terminate tenant's subsidy for those months.
Landlord impleaded NYCHA (i.e., made the agency a party to the proceeding) and wanted the
court to rule that either NYCHA or the tenant must pay the subsidized portion of the rent for the
9 months. The court ruled that although it was proper to implead NYCHA, but this was only to
assist the tenant in furnishing documents to correctly identify the tenant's rent. The court ruled
that Housing Court has no jurisdiction to compel NYCHA to pay the subsidy, and federal law
precluded the tenants from paying.
- Case Caption:
- Shafron v. Camardella
- Issues/Legal Principles:
- Landlord cannot evict Tenant without legal process
- Keywords:
- illegal eviction
- Court:
- Civil Court, Westchester County
- Judge:
- Hon. Scher
- Date:
- July 3, 1996
- Citation:
- NYLJ, page 33, col. 1
- Referred Statutes:
- RPAPL 853
- Summary:
- After tenant's lease expired, tenant became a month-to-month tenant.
Tenant sued Landlord for illegal eviction and Landlord admitted to removing tenant's possessions
to the street, but claimed the lease permitted self-help in the event of non-payment of rent. The
court held that in New York a landlord may not evict a tenant without benefit of legal process,
notwithstanding the lease provision and a case cited by landlord allegedly supporting a self-help
eviction. The court rejected landlord's argument and granted tenant's motion for summary
judgment and set the matter down for a trial on tenant's damages.
- Notes:
- The Administrative Code of the City of New York, Section 26-521 provides
that "it shall be unlawful for any person to evict or attempt to evict an occupant of a dwelling unit
who as lawfully occupied the dwelling unit for thirty consecutive days or longer..."
- Case Caption:
- 521 East 72nd St. Realty Company v. Weltsek
- Issues/Legal Principles:
- Surviving life partner fails to show financial
interdependence to succeed to rent control lease
- Keywords:
- succession rights
- Court:
- Civil Court, New York County
- Judge:
- Hon. Peter Wendt
- Date:
- July 3, 1996
- Citation:
- NYLJ, page 29, col. 4
- Referred Statutes:
- NYCRR sec. 2204.6(d)(3)(i)
-
- Summary:
- Tenant of record to rent controlled apartment died and his gay life partner
sought to establish succession rights as a "non-traditional" remaining family member during
landlord's licensee proceeding against the respondent. The standard of proof includes a showing
of emotional and financial commitment and interdependence. The court ruled that no such
financial interdependence was shown: the partners maintained separate checking accounts, had no
joint bank account, received separate government benefits, received separate food stamps,
although household bills were split down the middle. The court further found that the deceased
tenant treated his mother's home in Queens as his "family" home since he was registered to vote
there and had a telephone listing there. The court believed that the couple were lovers but that
their relationship did not rise to the standard necessary under the statute for the survivor to attain
succession rights. The respondent also argued that landlord accepted money orders from him after
the tenant's death, and thus accepted him as a tenant. The money orders, however, were in the
name of the rent controlled tenant and therefore didn't constitute a waiver by landlord.
- Case Caption:
- Juarez et al v. Wavecrest Management Team et al
- Issues/Legal Principles:
- Landlords not liable for lead paint poisoning if they have
no notice of a child's residence in t he apartment
- Keywords:
- Lead paint
- Court:
- Court of Appeals
- Judge:
- Deciding Judge: Chief Judge Judith Kaye
- Date:
- July 3, 1996
- Citation:
- NYLJ, page 25, col. 1
- Referred Statutes:
- Administrative Code of NYC, sec. 27-2013(h);
-
- Summary:
- This case was brought on behalf of a child suffering from lead poisoning
and presented the court with the first opportunity to consider the liability of a landlord who
allegedly failed to comply with the lead abatement provision of the law. The issue before the
court was whether the law obliged owners to ascertain whether a child six years or younger resides
in a building containing hazardous levels of lead, and further obliged owners to inspect those units
for dangerous lead conditions. The court ruled that to determine liability the plaintiffs had to
prove that the owner had actual or constructive notice that a child under six resided in the
building. If notice is proven, the law provides that the owner is chargeable with notice of any
hazardous lead condition in the apartment. In this case, it was proven that a lead hazard existed
in the unit and the landlord made no attempt to remedy it and that the hazard caused damage to
the child. The sole issue was whether the owner knew a child resided in the unit. Despite a
contrary lease provision, the tenant sublet its unit to the plaintiff and her two infant daughters for
four years. Plaintiff complained to the tenant that the paint was peeling and her children were
eating it, but she never complained to the owner. One of the children was diagnosed as having
lead poisoning in 1988. The City Health Department took samples of the paint and then issued
an order to abate nuisance to the owner. The order noted that a child resided in the apartment and
that the unit had contaminating levels of lead paint. Despite subsequent violation notices, the
landlord did nothing and the lead levels increased by 1989. Plaintiff sued the original owner,
managing agent and successive owner, and was granted summary judgment with a finding by the
court that there was no evidence that the owner took any steps to alleviate the conditions. On
appeal, the Appellate Division reversed the decision with respect to all defendants except the
original owner who, the court concluded, had an affirmative duty to inspect and repair. The
Court of Appeals ruled that this owner was, however, not liable unless he had actual or
constructive notice that a child under seven resided in the apartment. The Court remanded the
case for a hearing on the factual issue of whether this owner did indeed have notice that the infants
resided in the unit. The Court of Appeals thereupon engaged in a long and fruitful analysis of the
background of the law, liability under the law, notice requirements under the law and causation
issues.
- Case Caption:
- Sheehan v. Saunders
- Issues/Legal Principles:
- Appellate Court won't overturn trial court's abatement
award unless award is not supported by the record.
- Keywords:
- abatements
- Court:
- Appellate Term, 1st Dept.
- Judge:
- lower court Hon. Malatsky
- Date:
- July 5, 1996
- Citation:
- NYLJ, page 27, col. 2
- Referred Statutes:
- RPL sec. 235-b
- Summary:
- Tenants appealed on grounds that the abatement awarded in a breach of
habitability case was inadequate. The Appellate Term held that damages in such cases are not
susceptible to precise determination and the evaluations made by the trial judge should not be
disturbed unless clearly erroneous or without support in the record. Tenant tried unsuccessfully
to get a greater recovery based on landlord's breach of a prior stipulation, but the court held that
the stipulation resolved all rent and repair issues for those periods and cannot be resurrected now.
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