Housing Court Decisions October 1996
edited by Colleen F. McGuire, Esq.
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New York Law Journal, decisions for the week of
October 28 to November 1, 1996 (12 cases)
- Case Caption:
- Seward Park Housing Corp. v. Ostrow
- Issues/Legal Principles:
- Tenant not directed to deposit rent on application for adjournment
- Keywords:
- adjournment; rent deposit
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Joan Madden
- Date:
- October 29, 1996
- Citation:
- NYLJ, page 25, col 5
- Referred Statutes:
- RPAPL 745(b)
- Summary:
- Pro Se tenant in non-payment proceeding sought a brief adjournment. Landlord
demanded that tenant pay future use and occupancy as a condition to the adjournment pursuant
to RPAPL 745(b). The lower court denied landlord's request "for good cause shown" by the
tenant and the Appellate Term upheld, holding that such a decision lies in the sound discretion
of the trial court so long as there exists no abuse of discretion or violation of RPAPL 745(b).
- Notes:
- This case appears innocuous, but actually arose out of a big hoopla instigated by local
landlord organizations. RPAPL 745(b) provides: "In any adjournment of a summary
proceeding, other than on consent or at the request of the petitioner, the court shall at the
petitioner's request state on the record why for good cause shown it is not directing the tenant
to pay or post all sums demanded pursuant to a lease or rental agreement in the proceeding as
rent and use and occupancy." In the week of January 22, 1996, the landlords sought to show
their muscle in Housing Court by challenging judges who allowed tenants a second adjournment
without making the tenants pay future use and occupancy. Judge Madden was sitting in Part 18
on that week and this was the first case to come before her where the landlords attempted to put
pressure on judges to make tenants pay use and occupancy. The calendar call of Part 18 was
dramatically halted, a stenographer summoned and oral argument on landlord's application was
made. The tenant, however, was not left to fend for himself. Judge Madden granted the
application of a joint effort by Legal Services for NYC, Legal Aid Society and Northern
Manhattan Improvement Corporation to appear as a "friend of the court," a status known as
"amici." These three legal groups represented the Citywide Task Force on Housing and
Metropolitan Counsel on Housing. Andrew Scherer of Legal Services argued on behalf of the
tenant which was really an appearance and argument on behalf of all tenants in this implicit
"test case." Fortunately, the words "for good cause shown" in the statute allows judges to
exercise their discretion in whether or not to make the tenant pay or post the rents. Were it not
for these words, tenants would be at a distinct disadvantage. The statute allows landlords to
seek adjournments with no consequences, while a tenant seeking an adjournment has to wrestle
with the possibility that a judge may make them put up the rent. This Appellate Term decision
is a victory for tenants. Eventually, this particular case was settled between the landlord and
the tenant. During the settlement the landlord apparently convinced the tenant not to challenge
landlord's appeal of Judge Madden's decision. The landlord perfected its appeal and even
appeared for oral argument before the Appellate Term, but the landlord (or its attorneys) never
informed the attorneys for the tenant organizations about the appeal! When the tenant groups'
attorneys belatedly found out about this underhanded manoeuver, they went to the Appellate
Term on a motion to reargue. The Appellate Term denied the motion; it was a moot issue due
to the Appellate Term's upholding of Judge Madden's decision. This case demonstrates why
tenant organizations and legal aid groups are so important; they merit funding as these
organizations actively advocate the side of tenants in the unequal arena of Housing Court where
90% of tenants are unrepresented.
- Case Caption:
- Delmonico Hotel Co. v. Rumsey
- Issues/Legal Principles:
- Landlord not liable for treble damages.
- Keywords:
- non-primary residence
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. James Grayshaw
- Date:
- October 29, 1996
- Citation:
- NYLJ, page 25, col. 1
- Referred Statutes:
- none cited
- Summary:
- Landlord brought a holdover against the rent stabilized tenant on grounds that tenant
primarily resided in Wyoming where he owned a cabin and has oil investments. The tenant had
been the tenant of record of the premises since 1979. The trial lasted 6 days and the lower court
held for the tenant, finding that he "was in New York City on an ongoing, substantial basis."
The Appellate Term deferred to the factual findings and holding of the lower court, but a
vigorous dissent was submitted by Justice McCooe who noted that the tenant's main documents
all bore a Wyoming address: federal income tax returns, voter registration, driver's license,
ownership of property, truck registration, bank accounts and rent checks sent from Wyoming.
An accountant testified on behalf of the landlord that state tax returns were prepared using
computer software and that the 1991 and 1992 returns were prepared one after the other on the
same day since the code numbers were in sequence. Nonetheless, the tenant testified that he
signed them in different years. Justice McCooe noted that the tenant (who apparently was an
attorney) was previously disbarred for committing perjury before a grand jury and engaging in
a conspiracy to defraud relating to income tax. The lower court noted that tenant procured his
voter registration in 1974 when he bought the property and prior to taking occupancy at his New
York City apartment. The lower court also took into account that the tenant made long distance
calls and used his ATM card to demonstrate the periods of his time in New York. Justice
McCooe, however, noted that there was no verification that only the tenant possessed the ATM
card or that the New York City telephone itself was actually used (instead of calls billed to that
number). The dissent concluded that the tenant primarily resided in Wyoming and used his New
York apartment for visiting and business purposes. This case was a close call, and will probably
be appealed to the Appellate Division by the landlord.
- Case Caption:
- Melli v. Judge
- Issues/Legal Principles:
- Landlord held in contempt for illegal usage of apartment.
- Keywords:
- contempt; illegal occupancy
- Court:
- Civil Housing Court, Queens County
- Judge:
- Hon. James Grayshaw
- Date:
- October 30, 1996
- Citation:
- NYLJ, page 29, col 5
- Referred Statutes:
- none cited
- Summary:
- The case came before the court on an inquest, meaning that the tenant didn't appear.
The premises involved an illegal basement apartment. The court granted landlord a possessory
judgment but warned landlord that it was illegal to rent the space to anyone else. On its own
the judge requested a Building Department Inspector to determine if the court's warning was
followed by the landlord. The inspector found another occupant residing in the space and placed
a C violation for an illegal double cylinder lock and a B violation for rooms in the cellar. The
judge sent the landlord a notice to appear in court and explain why the landlord had disobeyed
the judge's warning. Absent an explanation the judge fined the landlord $250 for civil contempt,
ordered landlord to begin a holdover within 30 days to remove the new occupant, and ordered
the landlord to correct all violations within 30 days and not relet the basement until the landlord
had obtained a certificate of occupancy.
- Case Caption:
- Scott v. Haynes
- Issues/Legal Principles:
- Tenant in illegal apartment can be subject to eviction but not liable for rent.
- Keywords:
- certificate of occupancy
- Court:
- Supreme Court, Kings County
- Judge:
- Hon. Dowd
- Date:
- October 30, 1996
- Citation:
- NYLJ, page 29, col. 2
- Referred Statutes:
- RPAPL Articles 6 & 7; Multiple Dwelling Law, 302
- Summary:
- Landlord brought an action for ejectment in Supreme Court to evict the tenant from a
basement apartment which was an illegal apartment. Tenant's lawyer argued that the landlord
could not recover possession in an ejectment action, nor any rent owed, due to the absence of
a certificate of occupancy. The court ruled that the absence of a certificate of occupancy did
not bar the action to recover possession under RPAPL Article 7, but that the landlord is not
entitled to any rent based on Multiple Dwelling Law, Section 302 which prevents owners from
recovering rent where premises are occupied in violation of the certificate of occupancy.
- Case Caption:
- Ursula Realty Corp. v. Salm
- Issues/Legal Principles:
- Defects in non-renewal notice not fatal.
- Keywords:
- non-primary residency; non-renewal notice
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Saralee Evans
- Date:
- October 30, 1996
- Citation:
- NYLJ, page 25, col. 2
- Referred Statutes:
- RSC 2524.3(b); RPAPL 741
- Summary:
- The Appellate Term reversed the lower court's dismissal of the holdover non-primary
residency petition. The lower court had ruled that the notice of non-renewal of the lease failed
to set forth necessary facts. The notice stated that the tenant was "rarely, if ever seen at" the
apartment, owned a "home" in Germany, and primarily resided in Long Island where the tenant
had eight cars registered in the tenant's name. The lower court noted that the name of the tenant
was incorrect ("Wildred" instead of "Wiltraud"), that the notice referred to the tenant with
masculine pronouns although the tenant was a woman, and that references to the original lease
lacked precise dates. The Appellate Court ruled that these errors did not trigger due process
concerns or render the notice invalid.
- Case Caption:
- Paragon Realty Corp. v. Kelly
- Issues/Legal Principles:
- Landlord failed to prove tenant knew or acquiesced in son's alleged drug dealing.
- Keywords:
- illegal usage
- Court:
- Civil Housing Court, Bronx County
- Judge:
- Hon. D. Thomas
- Date:
- October 30, 1996
- Citation:
- NYLJ, page 27, col. 2
- Referred Statutes:
- RPL 231(1) RPAPL 711(5)
- Summary:
- Landlord brought a holdover against the tenant alleging that the tenant used or permitted
the apartment to be used for drugs and operated the premises for the sale of drugs or
prostitution. The tenant resided in the apartment for 16 years and her 3 grandsons and
granddaughter resided with her. Landlord's witnesses included two police officers, the
managing agent, a commercial tenant from a neighboring building and two repairmen.
Respondent's witnesses were herself, an upstairs neighbor, tenant's sister and daughter.
Tenant's son had been arrested several times for drug possession, once in front of the building,
but never inside the apartment. Landlord's witnesses testified to the son's alleged drugs deals
in front of his mother's apartment building. Tenant's witnesses denied observations of the son's
drug dealings in front of the building. The court ruled that since there was only one arrest
outside the building, this isolated incident was insufficient evidence of ongoing illegal activity.
The court also held that the landlord must prove that tenant knew of or acquiesced in the use of
the premises (apartment or building) for illegal activity. The court found that the landlord failed
to meet this burden with respect to this tenant.
- Case Caption:
- 300 East 34th St. Co. v. Habeeb
- Issues/Legal Principles:
- Nephew lacked essential documents linking him to residency in uncle's apartment.
- Keywords:
- succession rights
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Howard Malatzky
- Date:
- October 28, 1996
- Citation:
- NYLJ, page 27, col. 4
- Referred Statutes:
- RSC 2523.5(b)(e)
- Summary:
- The Appellate Term reversed the lower court's finding of facts in this succession rights
case. (On questions of fact, as opposed to questions of law, appellate courts tend to defer to the
trial judge.) The lower court found that the nephew had resided with his uncle for at least two
years prior to the uncle's death. The Appellate Term, however, noted that all customary indicia
of continuous residence pointed to the respondent's family home in Peekskill, New York.
Justice Helen Freedman dissented from the majority ruling and noted that there was ample
evidence in the record, including the testimony of relatives, friends and a housekeeper, that
respondent cared for and resided with his uncle for at least three years prior to the uncle's death.
She also noted that although the paper trail was limited there were documents (e.g., credit cards)
linking respondent to the New York apartment, as well as the fact that he worked in New York
City, the presumption being that he resided in the city where he worked.
- Case Caption:
- Fame Equities & Management Co. v. Malcolm
- Issues/Legal Principles:
- Landlord's nonpayment petition not defective since it excluded arrears sought in prior
petition.
- Keywords:
- nonpayment; prior action pending
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Marilyn Schafer
- Date:
- October 28, 1996
- Citation:
- NYLJ, page 27, col 4
- Referred Statutes:
- CPLR 3211(a)(4); RPAPL 735(2)(b); 22 NYCRR 130-1.1(c)(2)
- Summary:
- The lower court granted the tenant's motion to dismiss landlord's nonpayment petition
on grounds that a "prior action was pending." However, the landlord's claim for the unpaid
rent was for months not included in an earlier nonpayment petition (which had been dismissed
and was on appeal). The Appellate Term reversed the lower court holding that the petition at
issue could proceed with respect to arrears not sought in the first petition. The Appellate Term
also found that landlord's failure to timely file proof of the service of the petition was a
jurisdictional defect warranting dismissal. Apparently, landlord re-served the second petition
and this was deemed acceptable by the appellate court. The Appellate Term also held that
sanctions were not warranted when a "courtesy copy" of the re-served petition was taped to
tenant's attorney's office door.
- Case Caption:
- Apinale v. 10 West 66th Street Corp.
- Issues/Legal Principles:
- Landlord failed to present evidence that tenant normal behavior in the apartment exceeded
reasonable noise levels.
- Keywords:
- noise
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Carol Huff
- Date:
- October 31, 1996
- Citation:
- NYLJ, page 26, col 4
- Referred Statutes:
- none cited
- Summary:
- Plaintiff tenant sued landlord and landlord counterclaimed that tenant breached the
proprietary lease prohibition of unreasonable noise. The lower court granted tenant's motion
for summary judgment and dismissed landlord's noise claim; the Appellate Division upheld. The
Appellate Division ruled that the landlord failed to show continuous noise of a type or volume
that a reasonable person under the circumstances would not tolerate. There was no evidentiary
proof of unusual noises other than those normally emanating from an apartment, such as persons
walking. Landlord's conclusory allegations that the noises were "loud" were not sufficient to
warrant a claim against the tenant.
- Case Caption:
- In Re EGA Assoc. Inc. v. DHCR
- Issues/Legal Principles:
- Landlord's appeal of DHCR decision denied; landlord can't introduce new evidence
during the PAR.
- Keywords:
- initial legal rent
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Richard Lowe
- Date:
- October 31, 1996
- Citation:
- NYLJ, page 25, col. 1
- Referred Statutes:
- none cited
- Summary:
- Landlord failed to submit pertinent rental data for comparable apartments to assist DHCR
in ascertaining the initial legal regulated rent, and tried to introduce new information allegedly
showing improvements while the PAR was pending. The lower court denied landlord's Article
78 challenging the DHCR order and the Appellate Division upheld the denial.
- Case Caption:
- 616 East Lincoln Avenue v. Finley
- Issues/Legal Principles:
- Landlord's conspicuous place service of non-payment petitions on vacant building was
improper method of service.
- Keywords:
- service of process
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower court: Hon. B. Bunter-Zambelli
- Date:
- November 1, 1996
- Citation:
- NYLJ, page 34, col. 1
- Referred Statutes:
- RPAPL 735; CPLR 308(5)
- Summary:
- Landlord served the nonpayment petitions by conspicuous place service (on the door or
under the door). The building was uninhabitable and all the tenants had vacated. Landlord
claimed not to know the new residential addresses of any of the tenants. The lower court
dismissed the petitions, holding that landlord failed to comply with the "reasonable application"
service standards of RPAPL 735. The Appellate Term concurred, holding that it was
impracticable for landlord to comply with RPAPL 735, and that the better course of action was
that landlord should have moved under CPLR 308(5) to seek a court order to fashion a method
of service reasonably calculated to give the tenants notice of the proceeding and an opportunity
to be heard.
- Case Caption:
- Edgemont Corp. v. Audet
- Issues/Legal Principles:
- Tenant entitled to 100% abatement for deprivation of air, light and ventilation
- Keywords:
- abatement
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower court: Hon. Dinin
- Date:
- November 1, 1996
- Citation:
- NYLJ, page 34, col. 2
- Referred Statutes:
- RPAPL 743
- Summary:
- Landlord brought a nonpayment proceeding against tenant for three months rent. Tenant
counterclaimed alleging deprivation of air, light and ventilation and presence of lead laden dust
particles due to landlord's placement of plastic sheeting around the exterior of the house in
connection with the removal of lead paint. Tenant also sought reimbursement for her costs of
lead sampling and daughter's medical care. After trial, the court gave tenant a 100% abatement
of rent for those three months, but no other monies, and further directed that two additional
months rent previously deposited with the court be released to the landlord. Tenant moved to
reargue on grounds that the latter two months not be released to the landlord because the
abatement should have covered more than three months, and she again sought her out-of-pocket
expenses. The appellate court upheld the principle that a deprivation of air, light and ventilation
constitutes a breach of the warranty of habitability and that tenant merited an abatement for the
full period the condition lasted, and rejected landlord's argument that tenant should not be
permitted to deduct the abatement from her rent, but should commence a plenary proceeding to
collect the amount of the abatement. The appellate court further rejected landlord's argument
that tenant's counterclaim exceeded the monetary limit, holding that an abatement of rent is a
defense defeating landlord's claim for rent, so additional affirmative relief to tenant on her
counterclaim was not precluded. With respect to tenant's out-of-pocket expenses, the appellate
court held that they were not sufficiently proven at trial. (Usually out-of-pocket expenses--known
as consequential damages--are never awarded in a non-payment proceeding.
- Case Caption:
- Matter of Gandler v. Halperin
- Issues/Legal Principles:
- DHCR erred in calculating tenant's overcharges beyond four years from the date the
complaint was filed.
- Keywords:
- overcharges
- Court:
- Appellate Division, Second Department
- Judge:
- lower court: Hon. Garry
- Date:
- November 1, 1996
- Citation:
- NYLJ, page 31, col. 1
- Referred Statutes:
- RSL 26-516(a)
- Summary:
- Tenant filed a rent overcharge complaint with DHCR who ruled that the apartment was
subject to Rent Stabilization upon the addition of a sixth residential unit in 1978. The Appellate
Division upheld this decision, as well as an award of treble damages, but sent the case back to
DHCR to recalculate the overcharges for the past four years only. Since tenant's complaint was
filed in September, 1988, DHCR erred in assessing overcharges prior to 1984.
New York Law Journal, decisions for the week of October 21-25,
1996 (4 cases)
- Case Caption:
- Matter of Coccaro v. Stupp
- Issues/Legal Principles:
- Tenant is exempt from reimbursement of SCRIE benefits given in error, but deemed
ineligible for benefits due to level of income.
- Keywords:
- SCRIE benefits
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Emily Goodman
- Date:
- October 23, 1996
- Citation:
- NYLJ, page 33, col 4
- Referred Statutes:
- RPTL 467-b; NYC Admin. Code 26-5090
- Summary:
- The tenant lived with his mother in a rent controlled apartment and she was the initial
recipient of Senior Citizen Rent Increase Exemption ("SCRIE") benefits. When she died prior
to 1985, the benefits were transferred to her son, the tenant. When he recertified, SCRIE staff
determined he was not eligible for the exemption and allegedly sent revocation notices
retroactive to January 1, 1986. The tenant claims he never received the notice and continued
to pay his former rent of $157.40 per month and the landlord continued to accept the abated rent
and applied for the tax abatements. The overclaims were discovered during a routine audit.
SCRIE sought to recoup the $22,036.80 in claimed tax abatement from the landlord and to set
tenant's rent at $474.38. The landlord then turned to tenant to pay the amount through a non-
payment proceeding in Housing Court which was stayed when the tenant filed a complaint with
Department for the Aging ("DFTA"). The DFTA revoked tenant's SCRIE benefits and directed
tenant to refund the costs of SCRIE tax abatements (equal to the tenant's rent exemption)
claimed by landlord from DFTA from 1986 to 1991. Tenant appealed by way of an Article 78.
The judge granted tenant's petition only to the extent of determining that he was not required
to repay the SCRIE abatements, but remanded the case to the DFTA on the issue of whether the
tenant was eligible for SCRIE benefits. DFTA moved to reargue the court's decision, which
motion was granted solely with respect to the continuing eligibility issue; the court denied
reargument on tenant's lack of liability for the six-year SCRIE tax abatements. (The landlord
had since paid half the amounts due DFTA). The court found that DFTA properly determined
that tenant was ineligible for SCRIE renewal during the years 1986-1991 because his total
income in that period was greater than the SCRIE income ceiling for each year. The tenant
claimed that SCRIE's calculation of income is vague and arbitrary because it doesn't consider
deductions for long term capital losses as does the Internal Revenue Service in its calculation of
federal income tax due. Had DFTA considered this reduction, the tenant argued that he would
have become eligible for SCRIE benefits. The court, however, relied on statutory definitions
of income to determine that the deductions should not be encompassed within SCRIE guidelines
and upheld its initial ruling that tenant was not eligible for SCRIE benefits during the period at
issue.
- Case Caption:
- Matter of Symanski v. NYS DHCR
- Issues/Legal Principles:
- Landlord not liable for treble damages.
- Keywords:
- overcharges
- Court:
- Supreme Court, Kings County
- Judge:
- Hon. H. Kramer
- Date:
- October 23, 1996
- Citation:
- NYLJ, page 35, col. 5
- Referred Statutes:
- RSL 26-517(e)
- Summary:
- On July 31, 1986, tenant filed a DHCR complaint alleging that landlord failed to file
the initial apartment registration and overcharges. In response, the owner submitted copies of
leases from 1981 to 1984 bearing a rent of $288.66 per month and 1984 to 1986 bearing a rent
of $308.82. In 1991, the DHCR Rent Administrator ruled that the owner had not properly
registered the unit as of April 1, 1984 and had not served a copy of the initial registration upon
the tenant. The order set the legal rent at $285.63 as of April 1, 1984 and assessed treble
damages. The owner filed a PAR (i.e., an appeal) although it was filed at the wrong DHCR
office. The owner claimed that during the proceeding the owner refrained from collecting any
increases and that the tenant's rent payments during this period were inconsistent and often
deficient. The PAR order reduced the overcharge to a nominal amount and vacated the treble
damages. The court ruled that the filing of the PAR in the wrong office was inadvertent and
did not prejudice the tenant. The court further ruled that a finding of overcharges was proper
as the landlord did indeed fail to file an initial registration. With respect to the treble damages,
the court referred to the Rent Regulation Reform Act of 1993 which provides that treble
damages for a willful overcharge shall not apply where the overcharge is based solely on the
owner's failure to file an annual registration statement.
- Notes:
- This case should not have relief on the 1993 Rent Regulation Reform Act because it is
only applicable for cases commenced after its passage. This court, however, found that a $3.03
per month overcharge was de minimus and somehow that justified making the act applicable.
This case doesn't say whether the landlord finally registered the apartment. This case also does
not distinguish between an initial registration and an annual registration. The Appellate Term,
First Department holds that the failure to file an initial rent registration bars an owner from
collecting rent in excess of the last legal registered rent. This means that the tenant is liable for
only for the amount of the last legal rent until such time as the landlord does file the initial
registration. However, if a tenant pays the lower rent prior to the landlord's filing, he or she
cannot recover the overcharges. Tenant can only recoup overcharges if he or she is actively
withholding rent. As to the withheld rent, tenant need only pay the amount of the last legal
registered rent. Once the landlord files the initial registration, no further reductions are
accorded the tenant (unless perhaps tenant has other grounds for challenging that newly
registered rent. See Goldman v. Porges, NYLJ, 3-28-95, 25:1 (AT 1). This is a
real confusing and esoteric area of landlord-tenant law, and takes much patience in interpreting
the statutes and the case law.
- Case Caption:
- 1451 Realty LLC v. Berger
- Issues/Legal Principles:
- Non-payment petition is defective for failure to name all tenants
- Keywords:
- necessary parties
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Callender
- Date:
- October 23, 1996
- Citation:
- NYLJ, page 36, col 2
- Referred Statutes:
- CPLR 1001(a)(b), 1003, and 305(c); Rent Control Laws Section 26-403(e)(9)
- Summary:
- Landlord brought a nonpayment proceeding which the
court dismissed because the landlord failed to name the Respondent's sister as a party to the
proceeding. Both sisters moved into the apartment at the same time, lived together for over 30
years and both were statutory tenants of record. The landlord's agents were aware of both
sisters' presence and there was evidence that on many occasions the sisters paid the rent with
separate checks. As a result, both sisters were necessary parties; a judgment against one would
effect the other. The failure to name both sisters required the petition's dismissal.
- Case Caption:
- Costa v. David Frankel Realty Inc.
- Issues/Legal Principles:
- Landlord improperly denied roommate access and permission to move into premises.
- Keywords:
- roommates; sublet
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Heitler
- Date:
- September 23, 1996
- Citation:
- NYLJ, page 33, col. 6
- Referred Statutes:
- CPLR 3211(a)(7); RPL 235-f(2)(3)(9); Executive Law 296(5)
- Summary:
- Plaintiff attempted to move into tenant's apartment as a roommate but when she appeared
at the building, the landlord would not allow her to move in on various alleged grounds: that
she really was a subtenant, that the tenant's prior roommate damaged the premises; that the
plaintiff had deceptively intended to claim succession rights. Plaintiff incurred damages by
having to pay for the movers and make costly alternative living arrangements on the spot. Two
weeks later, the landlord said she could move in, but again thwarted her efforts when she arrived
with a mover, and only a telephone call from her attorney led to the owner's acquiescence.
Several months later plaintiff vacated the apartment on her own accord. Thereafter plaintiff sued
on various legal theories including violation of the Roommate Law (RPL 235-f), Human Rights
Law, breach of contract, tortious interference with contract and intentional infliction of
emotional distress. The court granted landlord's motion to the extent of dismissing all the causes
of action except the Roommate Law and limited plaintiff's damages to the expenses incurred in
having to make hasty and costly alternative arrangements on the two occasions her access was
denied. The court commented at length as to the rights involved under the Roommate Law,
noting that a tenant does not need an owner's permission and consent to have a roommate. As
to the Roommate Law cause of action, the court on its own ("sua sponte") referred the case to
the Civil Housing Court.
New York Law Journal, decisions for the week of October 14-18,
1996 (3 cases)
- Case Caption:
- 4305 Associates v. Davis
- Issues/Legal Principles:
- Sister granted succession rights upon proof of primary residency with tenant for over two
years.
- Keywords:
- succession rights
- Court:
- Civil Housing Court, Bronx County
- Judge:
- Hon. Fiorella
- Date:
- October 16, 1996
- Citation:
- NYLJ, page 30, col 5
- Referred Statutes:
- RPL 226-b & 235-f; RSC 2523.5(b)(1)
- Summary:
- Landlord brought a holdover proceeding alleging unlawful sublet and that the prime
tenant did not occupy the apartment as her primary residence. The tenant, Regina, moved into
apartment 1D in July, 1989. Her sister, the respondent in this case, moved into another
apartment in the building in February, 1990. Their mother moved into a third apartment in the
same building in July, 1990. Respondent testified that due to a serious asthmatic condition she
could no longer walk down stairs and begin staying with her sister and her mother. She fully
moved into Regina's two-bedroom apartment in April, 1993 along with her child. She testified
that Regina vacated the apartment in November, 1994. Rent checks in Respondent's name were
accepted by the landlord who gave her receipts in her name from January 1995 to April 1996.
Respondent offered additional evidence (such as bank statements) bearing her address (Regina's
apartment). The court concluded that Petitioner knew of Respondent's residency and accepted
rent in her name for a substantial period of time. The court concluded that Respondent resided
with her sister for two years in the apartment as her primary residence prior to the sister's
vacatur, thereby satisfying the succession rights criteria under the statute. The court directed
Petitioner to tender Respondent a lease in her name within thirty days.
- Case Caption:
- Neerg Corp. v. Hamilton
- Issues/Legal Principles:
- Unverified petition is not dismissed due to tenant's untimely notice of an intention to
reject the petition on this ground.
- Keywords:
- verification
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Peter Wendt
- Date:
- October 16, 1996
- Citation:
- NYLJ, page 32, col. 1
- Referred Statutes:
- CPLR 3020(d)(3); RPAPL 721 & 741
- Summary:
- Tenant's attorney moved to dismiss the holdover petition on various grounds, including
lack of verification. (A verification is where the party, or the attorney, signs a document and
sets forth that the facts in the document are true). The landlord's attorney argued that there was
a verification, but it was never attached to court documents. The law provides that an opposing
party may treat an unverified petition as a legal nullity provided notice with due diligence is
given to the attorney of the adverse party that the intent is to so treat it as a nullity. "Due
diligence" is interpreted as within 24 hours. The tenant's attorney argued that she only recently
was retained and was not given the petition until nine days after its service on the tenant. Then
the attorney observed the defect and immediately brought the motion to dismiss. The court
found, however, that the attorney made one appearance in court for an adjournment and never
mentioned that she would be treating the unverified petition as a nullity. The court rejected the
tenant's motion to dismiss the petition because over three weeks elapsed before the landlord's
attorney was informed that tenant's attorney treated the petition as a nullity. Due to untimeliness
and lack of prejudice to the tenant, the court denied the tenant's motion to dismiss on this
ground.
- Case Caption:
- Ansonia Tenants' Coalition Inc. v. Ansonia Goons
- Issues/Legal Principles:
- Tenant's DHCR award not deemed an overcharge, thus not subject to a four-year statute
of limitations.
- Keywords:
- tenants association
- Court:
- Supreme Court, New York County
- Judge:
- Hon. David Saxe
- Date:
- October 15, 1996
- Citation:
- NYLJ, page 28, col. 6
- Referred Statutes:
- RPL 230
- Summary:
- Plaintiff tenants association sought a preliminary injunction to restrain defendants from
organizing or participating in tenant activities, including surveilling or stalking its members or
their apartments. The defendants in this case included the owners and sponsors of the plan to
convert the Ansonia to condominium ownership, managing agents, superintendents and security
personnel allegedly hired by the other defendants. This case has a long acrimonious history of
sparring between the parties. The court denied plaintiff's motion holding that there has been an
insufficient showing of the allegations that plaintiff's personal safety was threatened (despite
detailed allegations by plaintiffs of specific incidents). The court granted defendant's motion to
have the name "Goons" stricken from the caption because it was scandalous and prejudicial and
not relevant to the controversy.
New York Law Journal, decisions
for the week of October 7-11, 1996 (7 cases)
- Case Caption:
- Urra v. Friedman
- Issues/Legal Principles:
- Wrongful eviction action dismissed due to the statute of limitations.
- Keywords:
- wrongful eviction; statute of limitations
- Court:
- Appellate Division, Second Department
- Judge:
- lower court: Hon. Dowd
- Date:
- October 7, 1996
- Citation:
- NYLJ, page 36, col 5
- Referred Statutes:
- CPLR 205(a) & 203(b)(5)(i) & (e)
- Summary:
- Plaintiffs were evicted from their apartment on January 29, 1986 due to a default judgment
and warrant of eviction. A default judgment means the tenants never appeared in court to answer
the petition and the landlord automatically won. Plaintiffs served their wrongful eviction
complaint on February 18, 1986, 21 days after the eviction. On October 21, 1986, the default
judgment and warrant of eviction were vacated. On July 13, 1987, plaintiffs' complaint for
wrongful eviction was discontinued. The Appellate Division noted that the record was unclear
whether the discontinuance was voluntary. The statute of limitations on their claim expired on
January 29, 1987. The Court assumed that the discontinuance was not voluntary, and therefore
plaintiffs had a six-month period from July 13, 1987 to recommence the action, by virtue of
CPLR 205(a). The six-month period expired on January 29, 1988. Since plaintiffs did not
recommence their complaint until February 29, 1988, the Appellate Division affirmed the lower
court's dismissal of the complaint as barred by the statute of limitations.
- Case Caption:
- Matter of Nicolaides v. DHCR
- Issues/Legal Principles:
- Landlord required to serve new non-renewal notice where first notice results in dismissal
of case.
- Keywords:
- non-renewal notice
- Court:
- Appellate Division, Second Department
- Judge:
- lower court: Hon. I. Aronin
- Date:
- October 7, 1996
- Citation:
- NYLJ, page 36, col. 4
- Referred Statutes:
- none cited
- Summary:
- Landlord's holdover proceeding was dismissed in civil court. Landlord commenced a
second proceeding (apparently before the DHCR) to get the agency's permission to evict the rent
stabilized tenant. The landlord used the same notice of non-renewal of lease as was used in the
civil court proceeding. (The case doesn't specify the grounds for eviction). The DHCR dismissed
the landlord's application on grounds that the first notice of non-renewal was no longer valid and
service of a second notice was required. The landlord appealed by way of an Article 78. The
Supreme Court upheld the DHCR decision and landlord appealed again to the Appellate Division,
which affirmed the Supreme Court's holding.
- Case Caption:
- Mansions v. Moorhead
- Issues/Legal Principles:
- Tenant's DHCR award not deemed an overcharge, thus not subject to a four-year statute
of limitations.
- Keywords:
- abatement; overcharge
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Margaret Taylor
- Date:
- October 8, 1996
- Citation:
- NYLJ, page 25, col. 4
- Referred Statutes:
- CPLR 213-a & 203(d); RSC 2522.3(d); RPL 234
- Summary:
- The Appellate Term upheld the dismissal of the non-payment petition by the lower court
since it was established that the landlord owed tenant $4,332.37, an f tenant's performance, i.e., landlord recovered the apartment, albeit belatedly. The Appellate
Term remanded the case to the lower court for an order wherein the $15,000 would be returned
to the tenant, but landlord was entitled to use and occupance for the period tenant held over after
September 21st and for any damages attributable to tenant's delayed vacatur (e.g., inability to re-let the premises on the first of the month.)
- Case Caption:
- Forde v. Novick
- Issues/Legal Principles:
- Court lacks jurisdiction where tenants vacated prior to commencement of the proceeding.
- Keywords:
- surrender of premises
- Court:
- Civil Court, Dutchess County
- Judge:
- Hon. Pergament
- Date:
- October 9, 1996
- Citation:
- NYLJ, page 27, col. 2
- Referred Statutes:
- none cited
- Summary:
- Prior to the landlord's commencement of a summary proceeding, the month to month
tenants had already vacated the apartment. The tenants claimed they gave the landlord oral notice.
The landlord argued that at the time the summary proceeding commenced the tenants were still
in possession because they failed to turn over the keys and left substantial abandoned property in
the apartment, including furniture and clothes. A landlord cannot maintain a summary proceeding
if the tenant has already vacated. So the issue before the court was who had dominion and control
over the premises at the time the landlord commenced the proceeding. The court queried whether
the tenants retention of the keys and the abandonment of property constituted possession of the
premises on their part. The court noted that the landlord had a key to the apartment, inspected
the premises shortly after the tenants' vacatur, removed some of the abandoned property (which
tenants never returned to collect) and finally sent the tenants a demand for rent at their new
address. The court concluded that to have jurisdiction in a summary proceeding the tenant must
have physical possession of the premises, not merely the legal right of possession. The court
concluded that based on the facts before it, the tenants were not in possession at the time the
proceeding was commenced and therefore the court lacked jurisdiction to entertain the landlord's
claim (which apparently was one for rent owed).
- Case Caption:
- Matter of Jemrock Realty Co. v. NYS DHCR
- Issues/Legal Principles:
- Tenant's Fair Market Rent Appeal is governed by the laws in effect at the time of filing.
- Keywords:
- overcharges; Fair Market Rent Appeal
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Cozier
- Date:
- October 9, 1996,
- Citation:
- NYLJ, page 21, col. 5
- Referred Statutes:
- RSC 2522.3(e) & 2521.1(d)(1)
- Summary:
- Landlord brought an Article 78 to appeal the DHCR's decision which reduced the tenant's
rent stabilized rent after hearing a Fair Market Rent Appeal ("FMRA") which the tenant filed in
November, 1983 with the CAB, the DHCR's predecessor agency. In 1985 the District Rent
Adminstrator ("DRA") ruled that the rent of $875.00 was to be reduced to $630.49 and directed
landlord to give tenant a refund in excess rent of $9,426.93. The landlord filed a PAR in 1985.
In 1991, the DRA modified its decision in tenant's favor by increasing the tenant's refund to
$12,855.99 from 1985 to 1990. The landlord filed a PAR on this order. In 1996, the
Commissioner handling the PAR affirmed the DRA's 1991 order. It was this order which the
landlord appealed in an Article 78. The DHCR usually calculates the rent in FMRA cases by
reviewing the applicable rent guidelines and comparability data representing rents for similar
apartments ("comparables") in the same area as the subject apartment. The DHCR may consider
as comparables: (1) legal regulated rents where the FMRA process either lapsed or was resolved,
and (2) at the owner's option, market rents in effect for other comparable housing on the date of
the initial lease for the subject apartment. DHCR has discretionary authority to decide whether
to accept or reject the landlord's proffered leases as truly comparable. Prior to April 1, 1984, in
order for a legal regulated rent to be considered comparable the owner, in order to show that the
proposed comprables were no longer subject to a FMRA, had to provide proof of service of a DC-2 form upon the first rent stabilized tenants of the allegedly comparable apartments. Prior to May
1, 1987, an owner was permitted to submit only comparability data drawn from leases
commencing one year before or one year after the commencement date of the initial lease for the
subject apartment. On April 1, 1984, the law changed and DHCR required that an apartment
registration form (RR-1) served by an owner on a tenant, which went unchallenged, could be used
for purposes of showing that a proposed comparable was no longer subject to a FMRA.
Therefore, the RR-1 form could be used as a substitute for the DC-2 form. Also, effective on
May 1, 1987, DHCR required that an apartment would be considered comparable if its lease
commenced four years prior to or one year after the commencement date of the initial lease for
the subject apartment. This expanded the eligible period from which comparability date could be
taken from two years to five years. In 1984 and 1986, the DHCR sent notices to the landlord
informing it that proof of service of the DC-2 forms were required and that the leases of eligible
comparables had to have commenced one year before or one year after the commencement date
of the tenant's initial lease. The landlord asserted that the 1984 and 1987 revisions revisions in
the law affecting the use of comparables increased the number and type of apartments the landlord
could have submitted as comparables and the DHCR was remiss in not informing the landlord of
these changes. The landlord argued that the proceeding was pending after April 1, 1984, the date
on which the use of the RR-1 forms were first permitted, and therefore the DHCR should have
specifically notified it of the opportunity to submit comparability data for apartments where RR-1
forms had been properly served. Had it been notified, the landlord contended, it would have
submitted comparability data for apartments whose leases had commenced four years prior to the
inception of the tenant's tenancy. DHCR argued that since the FMRA claim was filed before
1984 it was bound by the old rules. The court ruled that Section 2521.1(d)(1) of the Code
provides that a FMRA claim not determined prior to April 1, 1984 shall be determined based on
the law in effect on March 31, 1984. Although the FMRA was filed in 1983, the provisions in
effect were the old laws and these are the ones the landlord was subject to. Thus, DHCR had no
duty to notify the landlord of the new rules.
- Case Caption:
- 1050 Tenants Corp. v. Lapidus
- Issues/Legal Principles:
- Co-op granted $336,288.92 in legal fees against shareholder tenant who delayed and
protacted the non-payment proceeding for almost four years.
- Keywords:
- attorney's fees
- Court:
- Civil Court, New York County
- Judge:
- Hon. Martin Shulman
- Date:
- October 10, 1996
- Citation:
- NYLJ, page 25, col. 2
- Referred Statutes:
- none cited
- Summary:
- The proceeding involved a rent dispute between the Co-op Board and the shareholder
tenant of a luxury Park Avenue co-op. In 1992, the Board voted to increase the monthly
maintenance and added assessments which meant tenant's monthly rent (i.e., maintenance)
increased to $2,483.12. The tenant (whom the court referred to in a footnote as "a savvy real
estate attorney with extensive litigation and trial experience") refused to pay rent in March 1992
and a non-payment proceeding was commenced. After a lengthy trial, Judge Shafer awarded the
Co-op a judgment for $43,834.26 for arrears from March, 1992 to March, 1993. Tenant argued
that since Judge Shafer never wrote a formal order regarding attorney's fees, her decision settled
all claims through March, 1993, including any claim by the Co-op for attorney's fees. The tenant
appealed to the Appellate Term and the Appellate Division, both of which were unsuccessful.
After the appeals, the Co-op moved in civil court for attorney's fees. Judge Hahn granted the Co-op's motion, tenant appealed, and the Appellate Term upheld the Co-op's award of attorney's fees
the Co-op was the prevailing party. The tenant made numerous other motions all designed to
protract and delay the matter and "implicitly designed to economically force the Co-op to its
knees," according to Judge Shulman. At the attorney's fees hearing before Judge Shulman, the
Co-op's attorney testified that 2,032.80 hours were billed over a four year period totalling roughly
$355,000. The court accepted several of the tenant's arguments why certain hours should not be
awarded and granted attorney's fees to the Co-op totalling $309,178.50, plus disbursements of
$27,110.42. The court rejected tenant's claim that this was a garden variety non-payment case
and that the fees were excessive.
New York Law Journal, decisions
for the week of September 30
to October 4, 1996 (11 cases)
- Case Caption:
- Beachway Operating Corp.
- Issues/Legal Principles:
- Subtenant lost all rights when prime lease was canceled.
- Keywords:
- subtenants
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Howard Malatzky
- Date:
- October 1, 1996
- Citation:
- NYLJ, page 21, col 3
- Referred Statutes:
- RPAPL 713
- Summary:
- Landlord served subtenant a ten day notice to quit after the prime tenant's lease was
cancelled. The Appellate Term upheld the lower court's ruling that the undertenant's possessory
claims were extinguished once the paramount lease was canceled as a subtenant's rights flow only
from those held by a prime tenant.
- Case Caption:
- Park Holding Co. v. Rosen
- Issues/Legal Principles:
- Respondent denied succession rights when court found mother's primary residency was
elsewhere.
- Keywords:
- unlawful sublet; nonprimary residency; succession rights
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Howard Malatzky
- Date:
- October 3, 1996
- Citation:
- NYLJ, page 24, col. 1
- Referred Statutes:
- RSC 2523.5(b)(1)
- Summary:
- The Appellate Term upheld the lower court's finding of fact that the respondent did not
reside with his mother, the tenant of record, for two years prior to her vacatur of the apartment.
Therefore, the respondent was not entitled to succession rights to the apartment. The court ruled,
"When a person other than the lessee is shown to be in possession of leasehold premises the law
will presume the existence of an assignment or sublet agreement and proof of such agreement is
not required." The dissenting judge noted that the landlord brought the proceeding as an unlawful
sublet, but the lower court tried it as if it were a non-primary residency case, but then reverted
to the illegal sublet theory by granting the tenant ten days to cure the illegal sublet. The dissent
noted that the respondent was the tenant's son who resided in the apartment for virtually his entire
life, except for one year following his graduation from college when he moved into another
apartment with a friend. The dissent saw the facts differently; that although the mother re-married
she did not live full time with her husband in his apartment but evidence showed she continued
to use and occupy the premises as her primary residency, and documentary evidence was available
to this effect. The dissent felt that the landlord should have waited until the lease expired to bring
a non-primary residency proceeding, rather than converting the unlawful sublet case into a quasi
non-primary residency case where the mother's residence was a primary issue in dispute.
- Notes:
- This case reveals some of the confusion involved in differentiating between non-primary
residency proceedings and unlawful sublet proceedings. In an unlawful sublet proceeding, it is
not necessary for the landlord to prove that the tenant no longer occupies the premises as their
primary residence. The landlord need only prove that the tenant is not in occupancy and someone
else is in occupancy without the landlord's consent. Simply because a tenant is not residing in the
apartment does not necessarily mean that the premises are no longer the primary residence of the
tenant, which is a higher burden to prove.
- Case Caption:
- 545 8th Avenue Assoc. v. New York City Loft Board
- Issues/Legal Principles:
- Occupant granted Loft Law coverage even though occupant is not prime tenant.
- Keywords:
- Loft Law
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Schackman
- Date:
- October 3, 1996
- Citation:
- NYLJ, page 21, col. 4
- Referred Statutes:
- 26 RCNY 2-09(b)(2); Multiple Dwelling Law 281(4)
- Summary:
- The Appellate Division upheld the Loft Board and the Supreme Court's finding that the
Loft Law provides coverage for a residential occupant in possession of loft premises even if the
occupant is not the prime tenant, and even if the landlord did not consent to the sublet, so long
as the occupant was in possession prior to July 27, 1987.
- Case Caption:
- Friedman v. Mayor
- Issues/Legal Principles:
- Service of process during working hours held reasonable when prior attempt was made
on a Saturday, traditionally deemed non-working hours.
- Keywords:
- service of process
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Bruce Gould
- Date:
- October 2, 1996
- Citation:
- NYLJ, page 26, col. 3
- Referred Statutes:
- RPAPL 735
- Summary:
- Landlord's process server served the holdover petition alleging unlawful sublet by
conspicuous place service, that is, by placing the court papers on the door or under the door and
mailing copies by regular and certified mailing within 24 hours thereafter. A "reasonable
application" must be made to first attempt personal service on the tenant before resorting to
conspicuous place service. Thus, a process server should attempt service at least once during
non-working hours, working hours generally being 8:00 am to 6:00 pm. The process server first went
to the premises on a Saturday. The court held that the process server's service of the papers
during traditional working hours was reasonable since the server had already attempted service
once during non-working hours on Saturday.
- Case Caption:
- 619 West 145th Street Realty Corp. v. Carty
- Issues/Legal Principles:
- Landlord served rent controlled holdover papers to wrong DHCR office
- Keywords:
- rent controlled holdovers
- Court:
- Civil Court, New York County
- Judge:
- Hon. Saralee Evans
- Date:
- October 2, 1996
- Citation:
- NYLJ, page 23, col. 4
- Referred Statutes:
- DHCR Regulations 2200.3(g) and 2200.8
- Summary:
- Landlords are required to serve copies of a holdover petition based on non-primary
residency against a rent controlled tenant with the District Rent Office ("DRO"). The DHCR
Regulations sets forth where the DRO office is located for particular areas of Manhattan: the
Lower Manhattan DRO is the south side of 110th Street and below, while the Upper Manhattan
DRO is the north side of 110th Street and above. Petitioner served the DRO in Upper Manhattan,
yet the apartment's jurisdiction was located in Lower Manhattan. Given that service was made
on the wrong DRO, the court dismissed the petition without prejudice for the landlord to re-serve
at the proper DRO office.
- Case Caption:
- 342 West 30th Street Corp. v. Vaswani
- Issues/Legal Principles:
- Tenant denied punitive damages against landlord for breaches of warranty of habitability
- Keywords:
- punitive damages; warranty of habitability
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Gerald Klein
- Date:
- September 30, 1996
- Citation:
- NYLJ, page 26, col. 6
- Referred Statutes:
- none cited
- Summary:
- Tenant sought punitive damages against landlord for breaches of the warranty of
habitability. The Appellate Term affirmed the principle that landlords may be liable for punitive
damages, but only where the conduct is proven to be motivated by malice or is so reckless or
grossly negligent as to rise to the level of criminal disregard for tenant's health and safety. This
tenant failed to prove that level of conduct against the landlord.
- Case Caption:
- 619 West 145th Street Realty Corp. v. Carty
- Issues/Legal Principles:
- Termination notice proper where statutory basis cited
- Keywords:
- termination notices
- Court:
- Appellate Term, First Department
- Judge:
- Lower court: Hon. Joan Madden
- Date:
- October 1, 1996
- Citation:
- NYLJ, page 21, col. 1
- Referred Statutes:
- RPL 235-f; RPL 226-b; RSC 2524.3(a)
- Summary:
- The Appellate Term reversed the lower court's dismissal of the petition finding that the
notice alleging unlawful sublet or failure to notify landlord of a roommate was proper in that the
notice identified the sublet and/or roommate by name and cited tenant's California address. The
Appellate Term also held that the notice was not defective simply because it did not cite a lease
provision which was violated because the allegations were not based exclusively on a breach of
the lease. The allegations were also based on statutory violations and the notice in fact referenced
the specific statutes. The Appellate Term reinstated the petition.
- Case Caption:
- Tri-Block Assoc. v. Cardona
- Issues/Legal Principles:
- Niece wins succession rights to Section 8 Housing although not listed on recertification
forms.
- Keywords:
- succession rights; Section 8
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Jose Rodriguez
- Date:
- October 2, 1996
- Citation:
- NYLJ, page 27, col. 1
- Referred Statutes:
- 13 NYCRR 18.3(v)(5)(i)
- Summary:
- The respondent's aunt permanently vacated the apartment and landlord brought a non-payment
proceeding. Although the niece's name was never placed on the annual recertification
forms, various evidence (phone and utility records, testimony) indicated that she resided in the
unit for years. The court ruled that she qualified as a remaining family member entitled to
succeed to her aunt's Section 8 tenancy.
- Case Caption:
- Deepdale Gardens Third Corp. v. Knox
- Issues/Legal Principles:
- Guardian ad litem appointed for tenant in nuisance action
- Keywords:
- guardian ad litem; nuisance
- Court:
- Supreme Court, Queens County
- Judge:
- Hon. Satterfield
- Date:
- October 1, 1996
- Citation:
- NYLJ, page 26, col. 1
- Referred Statutes:
- CPLR 1201 & 1203
- Summary:
- Tenant defaulted and moved to stay the execution of the warrant of eviction and vacate the
default judgment. The Department of Social Services (DSS) also moved for an order granting its
agency to intervene for purposes of seeking the appointment of a guardian ad litem for the tenant.
Tenant is a shareholder in a co-op building who failed to cure a violation alleging that she created
a nuisance by among other things feeding and harboring cats and pigeons and creating an
unhealthy condition by allowing the cats to defecate on the co-op's property, and that she was
physically abusive to the other residents. DSS argued that the tenant could not adequately defend
her rights as she was mentally unfit. Based on extensive psychiatric evidence, the court allowed
DSS to intervene to be her guardian ad litem, vacated the default judgment, and set the matter
down for a hearing on the nuisance allegations alleged by the co-op.
- Case Caption:
- Giuffrida v. Giuffrida
- Issues/Legal Principles:
- Father cannot evict son as licensee when son lives in the premises as an invitee of his
mother who also owns the premises.
- Keywords:
- licensee
- Court:
- Civil Court, Yonkers County
- Judge:
- Hon. Doran
- Date:
- October 4, 1996
- Citation:
- NYLJ, page 27, col. 5
- Referred Statutes:
- RPAPL 713(7)
- Summary:
- The petitioner commenced a licensee holdover proceeding against his son who resided in
the premises based on a notice stating that his son paid no rent and had no tenancy rights. The
novel issue presented before the court was whether a legally emancipated son occupying premises
owned by both his parents with the permission of the mother could be subject to a licensee
proceeding instituted by the father. The son, 22 years old, lived with his mother in the premises
by her invitation. An order of protection was in effect against the father to stay away from the
home of his wife. Petitioner had also commenced divorce proceedings against his wife where he
also sought exclusive possession of the premises. The court found that the son was not a licensee
within the meaning of RPAPL Section 713(7) because he did not occupy the apartment by explicit
or implicit agreement with his father, but rather his right flowed directly from his mother who,
as an owner, had rights to grant her son a license to live with her. Since the father's holdover
case was not challenging the mother's rights of possession, then the son's rights (which flowed
from the mother's) could not be subject to a licensee proceeding. The court dismissed the
petition.
- Case Caption:
- Matter of Sanders v. Holland
- Issues/Legal Principles:
- Section 8 rent subsidy is allowed for remaining family member
- Keywords:
- MCIs
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Cahn
- Date:
- October 4, 1996
- Citation:
- NYLJ, page 22, col. 2
- Referred Statutes:
- RSC 2522.4(a)(2) & 2529.6; 9 NYCRR 2530.1
- Summary:
- This case involves 33,000 residents of Stuyvesant Town and Peter Cooper Village who
challenged the owner, Metropolitan Life Insurance Company, regarding its installation of windows
in the complex in 1991. Met Life sought two separate MCI applications to the DHCR in
connection with the installation of the windows, one for each complex. Tenants immediately
began complaining about defects in the windows, including spontaneous cracks or breaks,
imploding windows causing glass to fly into apartments and other hazardous conditions. In June,
1994 Met Life submitted a report to DHCR concerning the fact that 2,199 apartments sustained
window damage, about 1.5% of the windows in the complex. The tenants claimed 16% of the
windows were effected. Apparently the window defects were due to a buildup of pressure in the
argon gas used as an insulating material between the two panes of glass in the windows. A
remedial device inserted in the windows was necessary and that work was not completed until late
1994. The DHCR rejected Met Life's MCI applications because they contained no information
regarding the remedial work. Instead of re-submitting new applications, Met Life appealed the
decision (i.e., filed a PAR) and did not submit the additional information about the remedial work
until during the pendency of the PAR in 1995. On the PAR, Met Life was allowed to collect the
MCI increases at $9 per room starting in 1993 for some tenants and 1994 for other tenants. The
court ruled that the commissioner granting the PAR should not have ruled in Met Life's favor
since the remedial work was not finished. Rather the court held the commissioner should have
sent the case back to the district rent officer for a determination since it was improper for the
commissioner to hear new evidence not presented to the initial hearing officer. The court noted
that the tenants would then have an opportunity to contest the new evidence, as well as the current
condition of the windows. The court enjoined the landlord from collecting the increases. Since
Met Life's application should not be heard or granted until all the work was done, the judge's
ruling created the effect of postponing the commencement date of the increases until the new
DHCR rule is rendered, which could be at least a year.
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