Housing Court Decisions January 1997
edited by Colleen F. McGuire, Esq.
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New York Law Journal, decisions for the week of January 27-31, 1997 (4 cases)
- Case Caption:
- Classic Properties v. Reif
- Issues/Legal Principles:
- Tenant entitled to attorney's fees on dismissed holdover where landlord elects not to
pursue substance of holdover claim.
- Keywords:
- attorney's fees
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Saralee Evans
- Date:
- January 27, 1997
- Citation:
- NYLJ, page 28, col 2
- Referred Statutes:
- Real Property Law 234
- Summary:
- Tenant was previously successful in getting the holdover proceeding dismissed, not on
substantive grounds, but on procedural grounds. Landlord did not recommence the holdover and
elected not to pursue the breach of lease claims relating to the holdover. Instead landlord began
a non-payment proceeding which in effect affirmed the tenancy. Tenant moved for attorney's
fees based on the dismissal of the holdover and tenant's motion was granted by the lower court
and upheld on appeal. Had landlord recommenced the holdover, tenant's motion for attorney's
fees would have been premature because the substantive issues of the case would still be
unresolved, and it would be too early to determine who the prevailing party would be.
However, by commencing a non-payment proceeding, landlord put a definitive end to the
holdover and thus tenant's motion for attorney's fees could go forward since the holdover was
a resolved matter.
- Case Caption:
- 1199 Housing Corp.
- Issues/Legal Principles:
- Section 8 tenant allowed to challenge revocation of her rent subsidy in Housing Court
where no hearing was held at agency administrative level.
- Keywords:
- Section 8
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. James Grayshaw
- Date:
- January 28, 1997
- Citation:
- NYLJ, page 25, col. 3
- Referred Statutes:
- none cited
- Summary:
- Tenant's federal rent assistance subsidy (Section 8) was revoked retroactively by her
Mitchell-Lama Co-operative after the manager determined that a former employee had
improperly placed the tenant's name ahead of other eligible tenants on the subsidy waiting list.
The co-op did not terminate the tenancy on grounds of fraud. Rather, a non-payment proceeding
was commenced to recover directly from the tenant the portion of the rent previously paid
through a government subsidy. After trial the lower court found that the landlord's records were
so poorly kept that it was not possible to determine whether the tenant's name was properly on
the list. The court granted the petition holding that it lacked jurisdiction to resolve the issues
before it other than whether arrears were owed. The Appellate Term noted that no procedure
exists for review of project revocations of a subsidy. Thus, no formal or informal hearing was
ever held, nor was written notice sent to the tenant terminating her subsidy. The Appellate
Term reversed the trial court and held that where there was no opportunity to contest the
landlord's claim at the administrative level, tenant should be entitled to do so within the contours
of Housing Court. Tenant's defense to the non-payment petition would be that her subsidy was
improperly terminated under the controlling federal regulations. The appellate court remanded
for a new trial and directed the tenant to pay pending use and occupancy.
- Case Caption:
- Partnership 76 v. Sooknan
- Issues/Legal Principles:
- Landlord is not legally obligated to apply to DHCR to reclassify property as an apartment
building in order to be deemed rent stabilized hotel.
- Keywords:
- hotels; rent stabilization
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Arlene Hahn
- Date:
- January 28, 1997
- Citation:
- NYLJ, page 28, col. 2
- Referred Statutes:
- RSC 2521.3; RPAPL 711
- Summary:
- The lower court improperly dismissed the nonpayment proceeding because the owner
properly pled in the petition that the building was subject to hotel stabilization. In another action
involving the same building it was determined that the structure is a hotel due to its certificate
of occupancy and DHCR designation. The Appellate Term held that the other case suggests that
the owner has the option to apply to DHCR for reclassification as an apartment building, but that
the owner is not legally obligated to do so. The Appellate Term also found that the fact that
tenants executed standard form stabilized renewal leases for an apartment, as opposed to a hotel,
does not relieve them of the duty to pay rent.
- Case Caption:
- Agard v. Cajigas
- Issues/Legal Principles:
- Landlord's termination notice against Section 8 tenant is defective for absence of "good
cause" stated of tenant's regulatory status.
- Keywords:
- Section 8
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Finkelstein
- Date:
- January 29, 1997
- Citation:
- NYLJ, page 28, col. 6
- Referred Statutes:
- 24 CFR 882.511(b) & 982.310(e); 42 USC 1437f(d)(1)(B)
- Summary:
- Tenants entered into possession under a Section 8 lease. Landlord terminated the tenancy
with a 30 day termination notice which said that there was no lease in effect and the apartment
was not regulated since it was in a two-family house. Tenants argued that the landlord did not
show good cause to terminate the lease, and landlord failed to state the apartment was subject
to Section 8 status. The court agreed with the tenant that a landlord cannot terminate a Section
8 tenant except for good cause pursuant to the federal statutes. Since the termination notice
mentions no cause at all it was defective. The court also agreed that the petition must state that
the tenant is a Section 8 tenant. Even though the apartment is not rent stabilized or rent
controlled, it is still regulated by federal laws through the Section 8 subsidy, and a petition must
state whether an apartment is regulated or not.
New York Law Journal, Decisions for the week of January 20 - 24, 1997 (3 cases)
- Case Caption:
- Amalgamated Housing Corp. v. Urena
- Issues/Legal Principles:
- Landlord waived right to evict tenant for harboring a dog because landlord did not start
holdover proceeding within thirty days of learning about the dog.
- Keywords:
- pets
- Court:
- Civil Housing Court, Bronx County
- Judge:
- Hon. Halprin
- Date:
- January 22, 1997
- Citation:
- NYLJ, page 26, col 6
- Referred Statutes:
- Administrative Code 27-2009.1
- Summary:
- Landlord brought a holdover against tenants who live in a co-op unit on grounds that
they harbored a dog in violation of their occupancy agreement which prohibits pets. Tenants
argued that landlord waived a right to proceed against them because landlord did not act within
three months of gaining knowledge of the pet. Both sides agree that the landlord became aware
of the pet on February 22, 1996 and that a notice of termination was served on May 1, 1996.
Then the tenants paid May's rent. Both sides agree that a second notice of termination was
served on May 13, 1996 and the petition served on June 13th with a return date of June 19th.
The court held that the landlord failed to commence a summary proceeding within three months
from the time the landlord acquired actual knowledge of the dog, the time period required under
the statute. The court held that the commencement of a summary proceeding occurs when the
notice of petition and petition are served, not when a notice to cure or notice of termination are
served.
- Notes:
- It appears that the landlord worried that the cashing of May's rent would vitiate the first
notice of termination, so the second notice of termination was sent. However, this delayed the
time when the petition could be served. The three month time period is measured from the date
the landlord discovered the dog up to the date the petition was served. In this case February
22nd to June 13th exceeds three months.
- Case Caption:
- Wong v. Khoo
- Issues/Legal Principles:
- Landlord allowed discovery in alleged unlawful sublet case.
- Keywords:
- discovery
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Kibbie Payne
- Date:
- January 23, 1997
- Citation:
- NYLJ, page 27, col. 3
- Referred Statutes:
- none cited
- Summary:
- Landlord's request to conduct a deposition before trial in an alleged unlawful sublet case
was upheld on appeal. The Appellate Term held, "The availability of examinations before trial
in a summary proceeding brought under Real Property Actions and Proceedings Law has long
been recognized" and depositions are "no longer viewed as inherently hostile to the nature of
the summary proceeding."
- Notes:
- This case seems to imply that landlords can obtain discovery whatever the issue involved
just by the mere asking. In fact, landlords must show "ample need." In nonprimary residency
cases or succession rights discovery is generally granted. But otherwise the landlord should still
be required to make a showing of why discovery is needed. (Discovery means getting to ask
the tenant or occupant questions under oath before trial.) Unfortunately it is not as easy for
tenants to get discovery because one has to show that there is no prejudice to the other side by
the request. Landlords will always claim that the prejudice involved is a delay of the
proceedings which is preventing the landlord from pursuing its case.
- Case Caption:
- Weehawken Street Associates v. Kali
- Issues/Legal Principles:
- One-bedroom co-habitation of occupant with deceased prime tenant raises issue of
whether occupant has succession rights.
- Keywords:
- succession rights
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Donna Mills
- Date:
- January 23, 1997
- Citation:
- NYLJ, page 27, col. 3
- Referred Statutes:
- 9 NYCRR 2204.6(d)
- Summary:
- Dismissal of landlord's summary judgment motion was upheld on appeal. The Appellate
Term held: "In light of the 25 year period of cohabitation by respondent and the deceased tenant
of record in the controlled one-bedroom apartment, we agree that there are questions of fact as
to whether respondent's relationship with the decedent entitles him to eviction protection under
the succession regulations.
New York Law Journal, Decisions for the week of January 13 - 17, 1997 (5 cases)
- Case Caption:
- Immerblum v. Grefe
- Issues/Legal Principles:
- Subtenant in possession before Rent Stabilized apartment is purchased as co-op unit
retains Rent Stabilized rights during sublease period, except for renewal rights.
- Keywords:
- overcharge; statute of limitations; subtenant
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Bernard Fuchs
- Date:
- January 14, 1997
- Citation:
- NYLJ, page 26, col 4
- Referred Statutes:
- Rent Stabilization Code 2520.11(1) & 2522.5(h)(5); CPLR 213-a & 203(d)
- Summary:
- Plaintiff signed a subscription agreement to purchase the Rent Stabilized apartment as a
co-op apartment. Plaintiff also signed an interim lease and then sublet the apartment to
Defendants for a one-year period ending December 1984. Plaintiff obtained the shares to the
premises upon closing in May, 1984. Defendants argued that the apartment remained subject
to Rent Stabilization until the end of December, 1984. The lower court disagreed and the
Appellate Term upheld, finding that the apartment became deregulated when it reverted to a co-
op status in May, 1984. Assuming Defendants' argument that it remained Rent Stabilized during
the term of the sublease, the court found that it became de-stabilized even under this theory in
December, 1984. Thus, any overcharge claim could not have accrued later than December,
1984 (a typo in the Law Journal states 1994). Since Defendants did not interpose a claim for
overcharges until September 1989 by way of service of an amended answer to Plaintiff's lawsuit
for use and occupancy, Defendants' claim was time-barred by the four-year statute of limitations
for overcharges. (Defendants' original answer in 1986 lacked a counterclaim for rent
overcharges in this action.) The Appellate Term further held that Defendants could not assert
the claim as a set-off to Plaintiff's lawsuit, since Plaintiff was not seeking rent during the term
of the sublease, but rather use and occupancy during the term of the holdover after the sublease
expired. A strong dissent by Justice McCooe made a two-fold argument. Firstly, Plaintiff's
original claim related back to the terms of the sublease, the amount of the rent in the sublease,
and thus the overcharge was relevant, pertained to, and related back to the performance under
the sublease. Secondly, Defendants held a unique status as sublessees of a Rent Stabilized
apartment that had not yet become exempted at the time the sublease agreement was signed. The
dissent argued that the Defendants retained a Rent Stabilized status up to December 31, 1984,
pursuant to Section 2522.5(h)(5) of the Code, even thought this Section did not give the
Defendants a right to a renewal lease similar to other Rent Stabilized tenants. Nonetheless, this
unique status as Stabilized tenants for the duration of the sublease agreement should enable
Defendants, according to the dissent, to assert a claim of overcharge.
- Case Caption:
- Bernard v. Scharf
- Issues/Legal Principles:
- Landlord fails to show economic infeasibility of restoration costs after fire to premises.
- Keywords:
- economic infeasibility; owners
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Peter Wendt
- Date:
- January 14, 1997
- Citation:
- NYLJ, page 25, col. 1
- Referred Statutes:
- Administrative Code 27-2004(45), 27-2121, 110 of Civil Court Act
- Summary:
- On February 7, 1994, a fire severely damaged a 60 unit co-op building and rendered the
premises uninhabitable. The tenants and proprietary lessee shareholders sued the Owners Corp
to demand that the owners restore the building units to habitable conditions. Approximately
2/3rds of the shares of the Corporation are held by Leon and Morris Scharf, and three other
family members. They also sponsored the conversion. Morris Scharf is the secretary of the
Corporation and managing agent of the building. His father, Leon, is the Corporation president.
The co-op offering plan required that the building be insured for $3 million. In 1991 Leon
Scharf, acting as president of the Board of Directors, reduced the insurance to $2 million, 80%
co-insurance policy. The Dept. of Buildings issued a vacate order and later the premises were
sealed to prevent vandalism since all the residents were forced to evacuate the building. After
trial the lower court directed the Corporation to restore the premises to safe and habitable
condition. The court ruled that the Scharfs were "owners" under the Housing Maintenance Code
making them personally responsible for making the necessary expenditures for repairs. The
Corporation went bankrupt. The Scharfs contend that they cannot be ordered to restore the
building because it would be economically infeasible. The lower court rejected this defense on
grounds that they presented no proof of the costs incurred if the premises were not restored in
relation to demolition costs or costs to relocate or compensate the tenants. The lower court also
rejected the economic infeasibility defense holding that the Scharfs were estopped from asserting
it because they brought the problems on themselves through their deliberate underinsurance of
the premises. The Scharfs argued on appeal that the lower court's decision constitutes an
uncompensated "taking" violative of the 5th and 14th amendments of the U.S. Constitution. The
owners also claimed on appeal that the building was no longer "salvageable." The Appellate
Term agreed with the lower court that the owners failed to submit proof that restoration costs
would exceed all the other costs involved if the tenants were not restored. The Appellate Term
also ruled that the owners failed to present any evidence that once restored the building would
not generate enough income to recover the cost discrepancy in a reasonable time. The Appellate
Term also affirmed the lower court's rejection of the "marine rule" which is applicable to marine
insurance cases and sometimes is used with commercial buildings. It holds that if the cost of
restoration exceeds one-half the value of the building before the damage, then there is deemed
a total destruction that does not require repair. The court held that to apply the marine rule to
residential property would thwart the strong public policy that housing be maintained in safe and
habitable condition. The Appellate Term also agreed that the owners brought on the economic
situation by their underinsuring the premises and that they cannot now cry economic
infeasibility. They breached their duties to the shareholders in underinsuring the premises. The
Appellate Term further ruled that the trial court's order to repair does not constitute an
unconstitutional physical or regulatory taking because the statutory requirement that a landlord
must keep residential property in good repair is a legitimate exercise of the police power. The
Appellate Term also agreed with the trial court that the Scharfs are owners because they are
"directly or indirectly in control of the premises." Justice McCooe offers a very strong dissent
in favor of the owner's economic infeasibility defense. The dissent is so detailed that it will
probably allow the owners to appeal to the Appellate Division and thereby delay further the
tenants' restoration to the building.
- Case Caption:
- Matter of H&R Executive Towers v. DHCR
- Issues/Legal Principles:
- Landlord's falsely filing apartment as vacant with DHCR supports a finding of wilfulness
warranting treble damages in tenant's overcharge claim.
- Keywords:
- overcharges; treble damages
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Lottie Wilkins
- Date:
- January 16, 1997
- Citation:
- NYLJ, page 27, col. 4
- Referred Statutes:
- Administrative Code 26-517(d); 26-516(a)
- Summary:
- The tenant commenced occupancy on May 1, 1984 but the landlord never served the
tenant a Rent Registration form (RR-1) as required when the first Rent Stabilized tenant takes
possession. Moreover, the landlord filed the initial rent registration with the DHCR in June,
1984 listing the apartment as vacant. Because the landlord failed to prove proper service of the
RR-1 form and filing of the form, DCHR was authorized to review the owner's records back
to 1980 to establish the legal regulated rent for the apartment. Upon doing so, the DHCR
properly determined that the last two rent stabilized tenants of the apartment had also been
overcharged. Thus, there was sufficient evidence in the record that the landlord's overcharge
was wilful and treble damages were warranted.
- Case Caption:
- Matter of Maya Realty Associates v. Holland
- Issues/Legal Principles:
- Landlord not allowed to charge tenants a premium on utilities once tenants were given
individual electric meters to their own units.
- Keywords:
- electric usage
- Court:
- Appellate Division, 2nd Department
- Judge:
- lower court: Hon. Lane
- Date:
- January 16, 1997
- Citation:
- NYLJ, page 32, col. 2
- Referred Statutes:
- none cited
- Summary:
- Prior to 1984 the rents collected from the tenants included charges for electricity. The
building had a single meter and the landlord paid the utility bill and each tenant paid the landlord
for electricity pursuant to the terms of their lease. In 1984 the landlord applied for permission
to become an "electrical exclusion" multiple dwelling whereby each unit would have their own
electric meter and each tenant would pay their own utility bill. The DHCR granted the
application and the conversion took place. During the transitional period interim rent
adjustments were made and certain rent reductions were calculated. In 1989 the DHCR granted
the final application approving the conversion, setting the amounts to be deducted from the
monthly rents by a "per bedroom" formula and directed the landlord to cease collection of
unspecified "electrical inclusion allowances" factored into the rent of each unit by the Rent
Guidelines Board Orders. Landlord appealed. The court held that once the landlord no longer
supplied electricity to its tenants, it was no longer entitled to charge a premium "reflecting the
adjusted value of the service previously supplied and the DHCR was proper in directing the
elimination of the allowance.
- Case Caption:
- Quinn v. Kim
- Issues/Legal Principles:
- Tenants' damages include loss of quality of life where landlord's consistently refused
to repair fire-damaged building.
- Keywords:
- damages; attorney's fees
- Court:
- Civil Court, New York County
- Judge:
- Hon. Jay Stuart Dankberg
- Date:
- January 15, 1997
- Citation:
- NYLJ, page 26, col. 5
- Referred Statutes:
- Judiciary Law 773; Real Property Law 234
- Summary:
- Landlord refused to repair six residential apartments that suffered fire damage after being
held in contempt on three occasion and signing a stipulation and consent order agreeing to make
the repairs. The issue before the court was whether quality of life and pain and suffering
damages constitute "actual loss or injury" so as to be compensable in a contempt hearing. The
court found that the tenants suffered an actual loss or injury and were entitled to both out-of-
pocket actual monetary damages and all actual non-pecuniary damages for injuries demonstrated,
plus reasonable attorneys fees, costs and expenses. This case is very long and goes on at great
length analyzing the nature of the damages to which the tenants are entitled. It is a useful case
on the issue of damages where a landlord incorrigibly fails to make repairs.
New York Law Journal, decisions for the week of January 6 - 10, 1997 (8 cases)
- Case Caption:
- Matter of Dhiman v. Roldan
- Issues/Legal Principles:
- DHCR order upheld as rational; no grounds to transfer landlord's appeal of order to
Appellate Division.
- Keywords:
- DHCR; Article 78; substantial evidence
- Court:
- Supreme Court, Queens County
- Judge:
- Hon. Milano
- Date:
- January 6, 1997
- Citation:
- NYLJ, page 29, col 4
- Referred Statutes:
- Rent Stabilization Law 26-514, 26-516; Rent Stabilization Code 2520.6(r), 2523.4,
2523.5, 2525.1, 2525.2, 2525.5, 2526.2, 2527.5; CPLR 7804(g), 7803(4)
- Summary:
- The DHCR instituted proceedings to determine whether the landlords of a two family
home violated various provisions of the Rent Stabilization Law by harassing their rent stabilized
tenant who has lived in the apartment since 1951. At a hearing before an Administrative Law
Judge, evidence was presented that the landlords harassed their tenant by discontinuing basic
services, telling her that she had to move out because she was a squatter, putting a new lock on
the door and refusing to give her a key, leaving her without heat, failing to repair a leak in the
roof, and leaving her without a functioning refrigerator and stove. The Deputy Commissioner
imposed civil penalties on the landlords in the amount of $8,000. As a result, the landlords
brought an Article 78 proceeding to challenge the Commissioner's order. The DHCR brought
a cross motion to transfer the proceeding to the Appellate Division. The Court denied the
respondent's cross motion because a transfer to the Appellate Division is mandatory only when
a "substantial evidence issue is raised" at a formal, evidentiary hearing. The DHCR hearing
before the Administrative Law Judge was discretionary, therefore, the appropriate standard of
review in this instance is not whether the order was supported by substantial evidence, but
whether the agency's determination has a rational basis in the record. Moreover, the Court
dismissed the landlord's petition on its merits, finding that there was a rational basis for the
DHCR Order. The Court held that "the determination of an administrative agency will not be
judicially annulled unless it was arbitrary, capricious, or otherwise contrary to law."
- Summary:
- The case does not explain why Rent Stabilization laws are applicable to a tenant in a two-
family home, since as a general rule Rent Stabilized tenants reside in buildings containing six
or more units. The court probably meant the rent control laws were applicable given that the
tenant resided in her apartment since 1951.
- Case Caption:
- 200-218 Soundview Realty Corp. v. Sherlock
- Issues/Legal Principles:
- Rent Stabilization laws apply to tenant/owner of unique class of Bronx housing.
- Keywords:
- primary residence; rent stabilization
- Court:
- Civil Housing Court, Bronx County
- Judge:
- Hon. Heymann
- Date:
- January 6, 1997
- Citation:
- NYLJ, page 27, col. 3
- Referred Statutes:
- Rent Stabilization Code 2524.4(c)
- Summary:
- The subject premises in this proceeding, the Glenz Estates in the Bronx, is a unique class
of housing in the City of New York where the dwelling unit is owned by one party and the land
is owned by another party. On May 1, 1992, the DHCR determined that depending on each
individual home owner's initial date of occupancy, those that took occupancy prior to June 30,
1971 are considered Rent Controlled and those that took occupancy after this date are considered
Rent Stabilized. At the time of the DHCR determination, the tenant/owner who resided in the
subject premises was deemed to be Rent Stabilized. DHCR established the legal regulated rent
to be $50.00/month, to be paid to the owner of the land. On November 8, 1994 the estate of
the original tenant/owner sold the premises for $6,000. On the same day, the purchasers
negotiated a new Bill of Sale, wherein they "resold" the premises for $6,000 to themselves and
their son-in-law. The parties negotiated a payment schedule for the amount of the purchase
price. On October 30, 1996, the parties re-executed another Bill of Sale, where the original
purchasers relinquished all rights to the subject premises in consideration of $1.00. At the
present time, the son-in-law is the only party with an interest in the subject premises. Petitioner
who owns the land in the instant case, brought a holdover proceeding against the current owner
of the subject unit on the grounds that he does not occupy it as his primary residence. In
seeking to obtain a judgment of possession, petitioner asserts that since the previous purchasers
never intended to reside in the subject premises as their primary residence, the rent stabilization
chain is broken. The Court rejected this contention and held that since the current owner
occupied the premises as his primary residence, he was protected by rent stabilization. In
reaching this decision, the Court looked to how this issue would be resolved in a standard non-
primary residence holdover proceeding. The Court determined that unless otherwise changed
by statute, it is the premises, not the tenancy which remains rent stabilized. Applying this
reasoning, the Court held that the intentions and/or conduct of the original purchasers did not
divest the current owner/tenant of rent stabilization protection. In addition, the Court found basis
for this determination in the "legislative declaration" which accompanied the law creating this
special class of housing.
- Case Caption:
- Giffuni Bros. v. Schlamb
- Issues/Legal Principles:
- Remaining roommate not entitled to stay in premises even if he pays all rent owed by
prime tenant who vacated.
- Keywords:
- Roommate Law
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Marian C. Doherty
- Date:
- January 7, 1997
- Citation:
- NYLJ, page 25, col. 1
- Referred Statutes:
- RPAPL 749(3); RPL 235-f[6]
- Summary:
- The tenant of record abandoned his apartment leaving his roommate who was apparently
evicted after the landlord obtained a warrant of eviction in a nonpayment proceeding. The lower
court granted the roommate's motion to be restored to possession provided he pay $8,000 in
rent arrears owed by the tenant. The roommate paid the arrears and the landlord appealed. The
Appellate Term reversed holding that the issuance of the warrant annulled the landlord/tenant
relationship. Since there was no legal relationship between the parties, the tenant of record's
roommate is not entitled to possession of the premises, or permitted to tender rent arrears since
this act would create a tenancy. The Court referred to the "Roommate Law" which provides
that the respondent was not entitled to continue in occupancy upon the tenant's vacatur from the
premises. In addition, the Court noted that the respondent did not claim or establish succession
rights.
- Case Caption:
- New York City Housing Authority v. Manley
- Issues/Legal Principles:
- Petition alleging narcotics usage need only show inference that premises were used for
illegal purposes, not proof of commission of specific illegal acts.
- Keywords:
- illegal usage
- Court:
- Civil Court, New York County
- Judge:
- Hon. Gische
- Date:
- January 8, 1997
- Citation:
- NYLJ, page 26, col. 2
- Referred Statutes:
- RPAPL 711, 715; RPL 231(1); CPLR 3211(a)(7); CPLR 408; CPL 240.20; CPLR
405(a); CPLR 3024[b]
- Summary:
- On December 18, 1995 a police officer obtained a search warrant of respondent's
apartment based on hearsay statements of a confidential informant. Following a search of the
premises, the police officer seized heroin and assorted drug paraphernalia. At the time of the
arrest, respondent and others were present in the apartment. Thereafter, the New York City
Housing Authority brought a holdover proceeding to recover possession of respondent's
apartment pursuant to a statute which permits an eviction where "the tenant herself, or others
acting with the tenant's knowledge, permission or acquiescence, use the premises for an illegal
trade or business." Respondent made a pre-trial motion seeking (a) to dismiss the petition, (b)
suppress the evidence seized in what she claimed was an illegal search, (c) discovery and (d) an
order to strike scandalous materials from the petition from information taken in the search
warrant. Respondent's motion to dismiss was on grounds that the petition failed to state facts
supporting an "inference" of narcotics usage for sale (as opposed to personal usage). Respondent
claimed that the small amount of narcotics seized by the police do not support a conclusion that
she was engaged in the narcotics trade. Respondent acknowledged that at best, the amount of
heroin seized supported an inference of personal use. Respondent also argued that the seizure
included "common household items" which cannot serve as a basis for the conclusion that the
premises were used to sell heroin. In denying this motion, the Court held that the amount of
narcotics recovered is not dispositive and "there is no magical formula or threshold amount of
drugs that must be recovered in order to state a cause of action for eviction based on illegal trade
of controlled substances." The court also noted that the heroin seized was in 80 separate
glassine envelopes, a fact supporting possession for sale rather than personal consumption (the
latter is not a grounds for a holdover under RPAPL 711(5)). The respondent also argued that
there were no specific factual allegations in the petition to support her consent to any alleged
illegal drug trade in the apartment. The Court held that the petitioner need not prove that the
respondent was actually involved in the illegal business, only that she had either "constructive
knowledge" or "passive acquiescence" of such activity. The fact that the property was recovered
from an apartment that was under respondent's dominion and control was sufficient to satisfy
the petitioner's burden. Instead, the Court looked to the all of the facts taken together in order
to determine that a sufficient inference existed in the petition that an "illegal trade or business"
was being conducted. Secondly, the Court also denied respondent's motion to suppress the
evidence which she argued was obtained without probable cause. The Court refused to apply
the exclusionary rule, which would suppress the use of such evidence, in the civil context.
Thirdly, the Court denied respondent's request for pre-trial discovery because her request was
not specific and did not demonstrate "ample need" for material that was not within her personal
knowledge. Furthermore, the Court noted that "the granting of discovery is still the exception,
not the norm in summary eviction proceedings." Finally, the Court denied respondent's motion
to strike from the petition, references to and copies of, the search warrant. The Court held that
such references were material to the petition and are not the type of allegations which should be
stricken.
- Case Caption:
- Jones v. Peterson
- Issues/Legal Principles:
- Landlord could not bring legal proceedings against non-regulated tenant when she denied
landlord entry to enter her apartment to conduct an appraisal.
- Keywords:
- access to apartment; life estate; illegal business;
- Court:
- Supreme Court, Nassau County
- Judge:
- Hon. R. Schmidt
- Date:
- January 8, 1997
- Citation:
- NYLJ, page 28, col. 3
- Referred Statutes:
- CPLR 3211(a)(7), (8); CPLR 103(c); CPLR 403(d); RPL 231(1); RPAPL 711(5)
- Summary:
- Petitioner brought this proceeding by an order to show cause for an order granting access
to the leased premises for the purpose of obtaining an appraisal. The petitioner contested the
respondent's claim that she has a life estate in the subject premises. As a result, the respondent
made a cross motion to dismiss the petition for lack of jurisdiction and on the grounds that it
fails to state a cause of action. The Court converted the proceeding into an action because
although there is no statutory authorization for a landlord to commence a special proceeding to
gain access to the leased premises, the proceeding was properly commenced by service of the
order to show cause in lieu of a petition. The Court denied landlord's request for access,
holding that at a minimum, there exists a landlord/tenant relationship between the parties.
Absent a contrary lease provision, the tenant has "sole and exclusive right to occupation and
control of the premises." The Court noted that there are several instances where a landlord may
enter the premises: when the right to do so is reserved in a lease; when the tenant consents to
such an entry; to make repairs; and to demand rent. A landlord, however, must obtain the
tenant's consent in order to enter the subject premises. Furthermore, the Court stated that the
petitioner's appropriate remedy would be to commence a proceeding to dispossess a tenant who
is wrongfully denying possession. In such a proceeding, the Court would determine the status
of the respective parties. Finally, the Court addressed the petitioner's claim that the lease was
void because the respondent was allegedly subleasing an illegal basement apartment on the
premises. Petitioner relied on a law which prohibited "illegal trade or business." The Court
held that petitioner's reliance on this law was misplaced. The alleged collection of rent for an
illegal basement apartment is not an "illegal trade or business" within the meaning of the statute
and was an insufficient ground for eviction.
- Case Caption:
- 225 Eastern Parkway Associates LP v. Mitchell
- Issues/Legal Principles:
- Landlord's mistaken tender of lease renewal during pendency of holdover proceeding,
does not nullify the holdover proceeding.
- Keywords:
- illegal sublet; non-primary residence; succession rights
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Finkelstein
- Date:
- January 8, 1997
- Citation:
- NYLJ, page 27, col. 5
- Referred Statutes:
- RSC 2523.5(b)(1); RPL 235-f(3)
- Summary:
- Landlord brought a holdover proceeding against named tenant, alleging he was in
violation of a substantial obligation of his tenancy for subletting or assigning his interest in the
premises without permission of the landlord. The tenant's daughter appeared pro se and claimed
to be the rightful tenant of the apartment, which she occupied as her primary residence for many
years. Thereafter, landlord requested permission to conduct an oral deposition of the tenant's
daughter, as is customary practice in non-primary residency cases. Thereafter tenant's daughter
retained counsel who moved to dismiss the proceeding with prejudice based on a variety of legal
theories, none of which passed muster with the court which held that the facts required a full-
fledged trial before a judge. There was no dispute that the lease for the subject premises had
always been sent in her father's name. However, Ms. Mitchell alleged that she has lived there
with her parents until their divorce many years ago. After the divorce she continued to reside
at the premises with her mother who died in 1995. She claimed that since her parents' divorce,
although all renewal leases were issued in her father's name, it was her mother alone who signed
them. After terminating Mr. Mitchell's tenancy, landlord mistakenly sent a renewal lease which
Mr. Mitchell and his daughter signed and returned. In support of her motion to dismiss, Ms.
Mitchell's claimed that when the landlord offered to renew her father's lease (after commencing
the holdover proceeding), the instant action was voluntarily terminated. The Court held that "the
mere offer to renew a lease does not vitiate a holdover action". Ms. Mitchell also asserted that
the landlord's allegation that her father illegally sublet the premises to her supported her claim
that she has succession rights to the premises. In addition, Ms. Mitchell claimed that since she
lived with her now deceased mother for the requisite period of time required by law, she is
entitled to a lease in her name. The Court rejected this contention because the tenant of record,
Mr. Mitchell must have "permanently vacated" the apartment. Although Mr. Mitchell may have
another residence, there is no evidence that he has relinquished his interest in the subject
premises. The Court also looked at the fact that Mr. Mitchell "apparently signed the latest
renewal lease." The Court emphasized that the landlord presented evidence that Ms. Mitchell
in fact lived at a different address at the time of her mother's death. The Court denied the
motion to dismiss, holding that there were "genuine, substantial issues of fact which require a
trial on the merits."
- Case Caption:
- Annivan v. Lijen Realty Corp.
- Issues/Legal Principles:
- Small Claims Court found that Landlord's wrongful removal of tenant's possessions gave
rise to treble damages and gave tenant option to transfer case to Civil Court.
- Keywords:
- treble damages; small claims; warrant of eviction; subject matter jurisdiction
- Court:
- City Court of Mount Vernon, Westchester County
- Judge:
- Hon. Seiden
- Date:
- January 8, 1997
- Citation:
- NYLJ, page 28, col. 5
- Referred Statutes:
- RPAPL 853; UCCA 1805(a),(b)
- Summary:
- Plaintiff in this Small Claims action was one of two named tenants in defendant's
apartment. The lease required that the "tenant" pay the monthly rent. However, the landlord
accepted and recorded their payments separately. Plaintiff's roommate often did not pay his
share at all or paid less than the amount due. As a result, the landlord brought a non-payment
proceeding seeking possession of the premises against plaintiff's roommate only. The landlord's
books showed that the plaintiff paid his full share of the rent during the period in question.
After the warrant of eviction was issued, the defaulting tenant moved out of the apartment and
plaintiff remained in possession. Thereafter, landlord entered the apartment and put all of its
contents out on the curb. Although plaintiff suffered a loss greater than $3,000, he limited his
damages so that he could proceed in Small Claims Court. The landlord conceded that the
warrant was not intended for the plaintiff, however he counterclaimed for the unpaid rent. The
Court held that "there is no question that in the absence of a warrant of eviction against plaintiff,
there were no lawful grounds for defendant entering and removing plaintiff's belongings." In
addition, the Court recognized that a judge may award the plaintiff treble damages. Moreover,
in determining whether treble damages would be an appropriate remedy, the Court pointed out
that the landlord did not dispossess the tenant by unlawful means, rather he intentionally
obtained a warrant against one tenant and then proceeded to "knowingly" remove all of the
plaintiff's possessions from the apartment. However, the Court stated that Small Claims Court
is under a jurisdictional limitation and may not award the plaintiff more than $3,000. However,
the Court gave the plaintiff the option of accepting damages minus rent arrears or transferring
his case to Civil Court where he treble damages could exceed $3,000.
- Case Caption:
- Central Park South Associates v. Haynes
- Issues/Legal Principles:
- First Rent Stabilized tenants of decontrolled apartment lose stabilization rights where the
rent exceeds $2,000 per month
- Keywords:
- rent control; vacancy de-control; overcharge
- Court:
- Civil Court, New York County
- Judge:
- Hon. Jay Stuart Dankberg
- Date:
- January 10, 1997
- Citation:
- NYLJ, page 26, col. 5
- Referred Statutes:
- Admin. Code 26-504.1 & 26-403(e)(2)(k); McKinney's Unconsolidated Law
8629(e);
- Summary:
- The tenants took possession in June, 1995 pursuant to a one-year lease which clearly
stated that the apartment was not subject to Rent Stabilization laws. The prior tenant was rent
controlled and was decontrolled upon her vacancy (which occurred by way of her death) in
1995. DHCR records show that at the time of her death the maximum base rent was $1,588.83.
In 1995, the NYC Rent Guidelines Board authorized an increase of 35% above the maximum
base rent as the permitted initial regulated rent. The new tenant's rent was placed at $2,144.92
per month which the landlord argued was legal and permissible due to Local Law #4 (Section
504.1 of the Rent Stabilization Law), an amendment to the Rent Stabilization Code, which
provides that apartments becoming vacant after April 1, 1994 having regulated rents exceeding
$2,000 per month are excluded from future regulation. The tenants claim that the $2,144.92
is an overcharge and that they should be subject to Rent Stabilization and given a renewal lease.
The landlord refused to renew the lease and brought a holdover. They argue that since the
building was built in New York City before 1947, the first applicable rent regulation was the
NYC Rent Control Law and that upon vacancy the apartment became decontrolled through the
Emergency Tenant Protection Act of 1974 (ETPA). Unlike 504.1 of the Rent Stabilization Law,
the ETPA excludes from protection only those apartments becoming vacant between July 7, 1993
and October 1, 1993 and having a legal regulated rent of $2,000 as of October 1, 1993. The
tenants argued that since the vacancy occurred after the window period (as defined by the ETPA)
and since the legal regulated rent was not $2,000 or more as of October 1, 1993, the ETPA high
rent deregulation is inapplicable, making the tenants covered under rent stabilization through the
ETPA. The court held that the application of the ETPA resulted in the previously rent
controlled apartment becoming subject to Rent Stabilization Law upon vacancy in 1995. But,
it then became deregulated when the rent exceeded $2000. The tenants argued that although
their apartment appears to fit the statute's definition of exclusion from Rent Stabilization, that
this law should never be applied to the first stabilized tenant after an apartment is decontrolled.
Rather it should only be applicable (i.e., deregulate when rent exceeds $2000 per month) when
a there's a vacancy in an already stabilized apartment. The court analyzed the ETPA's
relationship to the Rent Stabilization Law, as well as DHCR's position on the new law, and
ruled against the tenants, holding that there was no reason to extend the tenants different
treatment simply because they were the first rent stabilized tenant when the statute's criteria is
otherwise applicable to their apartment. The court noted that it would have been wise if the
landlord had filed appropriate forms with the DHCR to deregulate the vacancy decontrolled
apartment, but failing to do so did not effect landlord's holdover proceeding.
- TenantNet Notes:
- In this case the court views the apartment as going from rent controlled and then for an instant
becoming Rent Stabilized at a rent higher than $2,000, and then simultaneously becoming deregulated.
In the court's view the apartment is instantly exempted from the Rent Stabilization Law when the
rent is set above the $2,000 threshold amount, a provision of the Rent Regulation "Reform" Act
of 1993 and NYC Local Law 4 of 1994. The legislative enactments were quite clear that two things
must occur before an apartment may be deregulated pursuant to the "High Rent" provisions: a) the
rent must be higher than $2,000 and b) the tenant must vacate the unit. In a situation where a tenant
vacates a unit that was renting for under $2,000 and the landlord is able to raise the rent, either
through normal guideline increases or improvements, the rent would then become more than $2,000, but the
second requirement does not exist as the new tenant would then be in occupancy. So, in the way the law
is written, the unit cannot become deregulated until the next vacancy occurs.
However DHCR, at the behest of a particular landlord law firm, changed their interpretation of the law
in 1995 stating the agency would "deem" the increase took place and "deem" the new rent was over $2,000
at the moment the prior tenant vacates.
This is oxymoronic and the problem with DHCR's (and now the court's) analysis is that it
fails to take into account the fact that there is no rent until a new lease is signed, and there can be no
"legal regulated rent" unless reserved in a lease. How could it be otherwise? Neither the landlord
nor a potential tenant knows beforehand if the new tenant will take a one or two year lease, so
there's no way of knowing what the new rent will be. Moreover, as per the Rent Stabilization Law,
guideline increases can only be taken "pursuant to a lease."
If a rent controlled apartment is decontrolled upon vacancy, the owner can make
all the renovations it wants in order to increase the rent. However, the new rent will not take
effect or be registered just nakedly on its own. The rent does not become the legal rent until
the owner signs a lease with a tenant in order to give that rent legitimacy. That lease must be
a Rent Stabilized lease. Once a lease is in effect, then according to the High Rent provisions of
the law, an owner can exempt the premises if the rent in the lease exceeds the lawful amount, but
only on the next vacancy. As an initial Rent Stabilized leaseholder
the tenant would have the right to take a claim to the DHCR for overcharge. This case is
significant because it attempts to deprive the tenant in circumstances like this to challenge rent
which allegedly exempts premises from stabilization coverage in the courts or at the DHCR. It should
also be noted that the Judge in this matter, Hon. Jay Stuart Dankburg, left the bench on December
31, 1996 and reportedly took a new job at a NYC Landlord law firm. This is a grave set-back to tenant's rights.
New York Law Journal,
decisions for the week of December 30, 1996 to January 3, 1997 (4 cases)
- Case Caption:
- Sorkin v. Verdoliva
- Issues/Legal Principles:
- Tender of rent for period after termination notice expired vitiated the termination notice's
effectiveness.
- Keywords:
- termination notice; waiver
- Court:
- Civil Court, Kings County
- Judge:
- Hon. Finkelstein
- Date:
- December 30, 1996
- Citation:
- NYLJ, page 25, col 3
- Referred Statutes:
- RPAPL 735(2)(b)
- Summary:
- Landlord brought a licensee holdover proceeding
against respondent, who is the son of the deceased tenant. The respondent made a motion to
dismiss on the grounds that the termination notice was vitiated by his tender of rent which
covered a period after the termination notice expired (November 27, 1995). Prior to the tenant
of record's death in October, 1995, he had paid all rent owed through October 31, 1995.
Subsequently, on October 27, 1995, the deceased's son tendered two money orders equaling the
monthly rent. Furthermore, on December 5, 1995, the respondent sent the landlord a personal
check in the amount of the monthly rent. On both occasions the landlord accepted the tenders.
The Court granted respondent's motion to dismiss the termination notice. Although the money
orders did not indicate the time period that their payment was intended to cover, the Court
looked to the fact that respondent's father was fully current in rent payments at the time of his
death and concluded that "it is obvious they were full payment of rent for the month of
November, 1995". There can be no termination notice if the landlord accepts rent for any
period of time after the termination notice becomes effective. For this reason the court
dismissed the petition on grounds of waiver. (The court noted that it was not deciding the issue
of whether the landlord's acceptance of rent from the son constituted a waiver issue so as to
grant the son succession rights to the apartment. These are two distinct type of waiver
issues.)
- Case Caption:
- U.E.S.S. Leasing Corp. v. Santiago
- Issues/Legal Principles:
- Court awarded landlord possession of the premises because prime tenant's abandonment
of their children contributed to the acts of nuisance complained of by the landlord.
- Keywords:
- nuisance
- Court:
- Civil Court, Queens County
- Judge:
- Hon. Sheila Franke
- Date:
- December 30, 1996
- Citation:
- NYLJ, page 25, col. 5
- Referred Statutes:
- none cited
- Summary:
- Landlord commenced a holdover proceeding against the tenants of a rent stabilized
apartment on grounds of nuisance. The landlord claimed that the prime tenant's son engaged
in two instances of misconduct: he urinated over the side of the terrace, directly above the
downstairs neighbor's terrace and he threw cigar fillings and ashes over the side of the terrace
which landed on their neighbor's terrace below during a party, falling on the guest's plates. The
prime tenants moved out of the subject premises two and a half years ago, leaving behind their
daughter, aged nineteen or twenty, and their son, aged fifteen or sixteen who already had a
criminal record. By the time of the litigation, the son had moved out and the daughter along
with her two infant children remained the sole occupants. The Court awarded the landlord a
judgment of possession but stayed the execution of the warrant to October 31, 1997. The Court
further held that the landlord may move to accelerate the execution of the warrant if future
incidents of nuisance arise, and the landlord can prove same. In reaching its determination, the
Court felt it was "significant to note the irresponsibility of the prime tenants". The Court
equated their conduct with abandonment of their children, especially in light of their son's
history of illegal behavior.
- Case Caption:
- 51 Spring St. Limited Partnership v. Lobro Associates
- Issues/Legal Principles:
- Foreclosure proceeding must notify new owners of tenant's overcharge award.
- Keywords:
- overcharge; foreclosure; good faith purchaser
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Gangel-Jacob
- Date:
- December 30, 1996
- Citation:
- NYLJ, page 21, col. 5
- Referred Statutes:
- FILL IN
- Summary:
- Plaintiff acquired by assignment a prior bank's lien interest in the building owned by the
defendant, Lobro Associates, who had defaulted on the mortgage. Plaintiff moved for summary
judgment in lieu of a complaint for a judgment of foreclosure. The rent stabilized tenant
opposed the motion because plaintiff had taken the position that a DHCR overcharge order in
tenant's favor was not binding on plaintiff, that plaintiff's mortgage lien foreclosed the tenant's
subsequent judgment and therefore the tenant had no right to offset the amount of the DHCR
order against rent the tenant owed to plaintiff. Plaintiff argued that the tenant was required to
go after Lobro to collect the overcharges. The Court disagreed and held that plaintiff was
required to notify any prospective purchasers of the existence of the DHCR order as well as the
amount of the judgment and the prospective liability for the overcharge. The Court further held
that any judgment of foreclosure entered in the main action must include a provision for the
preservation of the DHCR order in the amount due to the tenant. The Court also ordered that
any monies owed to the tenant be placed in escrow pending further order of the Court.
- Case Caption:
- Joseph Conforti v. Indu Goradia
- Issues/Legal Principles:
- Tenant's affidavit that terrace was part of premises from the time tenant took possession
years ago constituted sufficient evidence for summary judgment motion.
- Keywords:
- leasehold
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Beverly Cohen
- Date:
- January 3, 1997
- Citation:
- NYLJ, page 27, col. 1
- Referred Statutes:
- CPLR 3001; CPLR 2701[2]
- Summary:
- Plaintiff was granted a declaration that he was the rent stabilized tenant of record, that
he was entitled to a renewal lease and that his penthouse apartment included a terrace. The
defendant landlord appealed on grounds that in the absence of any documentary evidence that
the terrace was part of the leased space, summary judgment was inappropriate. The Appellate
Division, however, affirmed, holding that the plaintiff-tenant's affidavit constituted evidence.
The affidavit set forth that he had been a tenant since 1974 and that the apartment consisted of
a large terrace whose boundary was defined as the roof covered by a wooden deck, and that this
was in existence prior to when he moved in. The Appellate Division dismissed landlord's
argument that lack of a building permit indicates lack of permission to erect the wooden deck.
The Court held: "To the contrary, the existence of the structure for so long a period of time
gives rise to a presumption that prior owners of the building acquiesced in its use by the tenant
as part of the leasehold." The Court noted that the landlord failed to come forward with any
proof to the contrary, and the lower court was justified in holding that the terrace was included
as a part of the premises. The Court remanded to the Civil Court for a determination of the
legal issue of whether the roof deck is in compliance with governing law and regulations,
rejecting the tenant's argument that Civil Court did not have jurisdiction to determine this
remaining issue. The Court also directed the tenant to deposit all outstanding rent with the
court.
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