Housing Court Decisions June 97
edited by Colleen F. McGuire, Esq.
Return to current month
Return to main index
Return to 1997 index
New York Law Journal, decisions for the week of June 23-27, 1997 (5 cases)
- Case Caption:
- 90th Realty Company v. Winter
- Issues/Legal Principles:
- Tenant did not abandon apartment simply due to excessive time spent at her mother's
apartment taking care of her.
- Keywords:
- nonprimary residence
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Jerald R. Klein
- Date:
- June 24, 1997
- Citation:
- NYLJ, page 26, col 2
- Referred Statutes:
- none cited
- Summary:
- The Appellate Term upheld the lower court's dismissal of this nonprimary residency
proceeding after trial, based on the documentary and testimonial evidence presented by the
tenant. The Appellate Term looked to the record and noted that the tenant specified her address
at the subject premises during the relevant time period on various important documents,
including: 1) New York City resident income tax returns; 2) voter registration; 3) driver's
license; 4) motor vehicle registration; 5) bank statements; and 6) credit card statements.
Furthermore, the Court addressed tenant's testimony that although she was required to spend
considerable time at her mother's nearby home, it was in her capacity as primary caretaker. The
Court held that this circumstance alone does not mandate a finding of nonprimary residence.
Moreover, the Court noted that tenant maintained daily contact with the subject premises and
all her possessions remained there. As a result of the foregoing facts contained in the trial
court's record, the Appellate Term refused to disturb these findings of fact.
- Case Caption:
- New York City Housing Authority v. Sampson
- Issues/Legal Principles:
- Tenant lacked documentary proof of remaining family member status in City-owned
building.
- Keywords:
- succession rights
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Howard Sherman
- Date:
- June 24, 1997
- Citation:
- NYLJ, page 26, col 1
- Referred Statutes:
- no statutes cited
- Summary:
- The Appellate Term reversed the trial court's ruling that the tenant was entitled to
possession of his mother's apartment as a "remaining family member" pursuant to the provisions
of the Housing Authority's Management Manual. The Court looked to the record which
indicated that the tenant vacated the premises approximately 16 years prior to his mother's death.
Respondent testified that he returned to the subject premises five years prior to his mother's
death, however the Court noted that he was not listed on the annual statements of occupancy and
income filed after that date. Furthermore, the Court noted that there was no written notice to
the management of the subject premises, informing them of his occupancy. Moreover, the Court
emphasized that there was insufficient documentary evidence and/or supporting testimony from
third parties in the record as proof of the respondent's actual residence.
- Case Caption:
- Beattie v. Silvers
- Issues/Legal Principles:
- Order of landlord's imprisonment for failing to correct violations reversed on appeal on
grounds landlord subsequently conveyed the building.
- Keywords:
- consent order; civil contempt; imprisonment
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Jerald R. Klein
- Date:
- June 24, 1997
- Citation:
- NYLJ, page 26, col 1
- Referred Statutes:
- no statutes cited
- Summary:
- The trial court found landlord to be in civil contempt for his failure to comply with the
terms of a consent order requiring repairs to the fire-damaged subject premises. Landlord
argued that he was not aware of the extent of the fire or the cost of repairs. The trial court
found this argument "unbelievable." At the time of the negotiation and execution of the "so
ordered" settlement, the landlord was represented by counsel. The Appellate Term affirmed the
contempt order, but modified it in part, to the extent of the portion of the order imposing a
coercive sentence of imprisonment. The reason for this modification rests in the fact that the
sentence has been rendered moot since the landlord conveyed the building in the
meantime.
- Case Caption:
- Avon Bard Co. v. Aquarian Foundation
- Issues/Legal Principles:
- Notice of Non-renewal of lease defective where landlord religious organization not
registered as a charitable organization in New York State.
- Keywords:
- nonprimary residence; religious organizations
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Howard Malatzky
- Date:
- June 25, 1997
- Citation:
- NYLJ, page 27, col 5
- Referred Statutes:
- CPLR 3212; RSC 2524.4(c), 2524.2(b)
- Summary:
- Respondent/tenant, a religious organization entered into a rent stabilized lease for the
subject premises. The spiritual leader of this organization was the signatory to the lease and has
resided at the subject premises with his family since the inception of the tenancy over 17 years
ago. Over the years, the lease has been renewed approximately 7 times. In October, 1996,
landlord served respondent with a "Notice of Non-Renewal," as a predicate to this nonprimary
residency proceeding. The original lease for the apartment allowed the use of the subject
premises only by the tenant and the immediate family. However, the religious organization
(who is the respondent in this case), being a charitable entity, does not and cannot maintain the
rent stabilized apartment as a primary residence. Furthermore, the owner's search of New York
State Tax Records reveals that the religious organization is not registered as a charitable
foundation within the State of New York. Under these circumstances, there is no authorization
to conduct activity within the State of New York and therefore, the subject premises could not
be maintained as a primary residence. Respondents made a motion for summary judgment,
arguing that the Rent Stabilization Code requires that a notice of non-renewal of the lease contain
the ground as well as "the facts necessary to establish the existence of such ground for renewal."
Respondents allege that none of the purported facts stated in the notice are true, rendering it
defective and accordingly the petition must be dismissed. In support of this argument,
respondents state that petitioner's "reasonable belief" that respondent is a charitable foundation
has no basis in fact--the organization is a church and not a charitable entity. Respondent
maintained that this fact could have been ascertained with minimal effort on the landlord's part.
The Court held in favor of the respondent and dismissed the petition.
- Case Caption:
- McAnulty v. Townan Realty Co.
- Issues/Legal Principles:
- Where landlord failed to file proper forms when apartment became subject to rent
stabilization, tenant cannot raise that issue after DHCR later exempted the apartment from
regulation on grounds of "luxury" decontrol since it was not raised in the DHCR
proceeding.
- Keywords:
- overcharges; luxury decontrol
- Court:
- Supreme Court, New York County
- Judge:
- Hon. McMahon
- Date:
- June 25, 1997
- Citation:
- NYLJ, page 27, col 2
- Referred Statutes:
- Adm. Code 26-504.1, 26-504.3(b), 26-504(c)(1), 26-513(d); RSC 2529.2, 2523.1,
2522.3, 2520.13; CPLR 3011
- Summary:
- In this action, tenant sought a judgment for treble damages and back rent against her
landlord for overcharges paid since the beginning of her first lease in October, 1993.
Plaintiff/tenant later joined DHCR as a necessary party/defendant since the agency previously
issued an order that the subject premises should be decontrolled on grounds that tenant's income
exceeded $250,000 per year and the rent was $2,000 or more a month. Tenant argued that when
the apartment went from rent control to rent stabilization (during a previous tenancy) the
landlord failed to file the RR-1 notice to the first stabilized tenant. Absent the service of such
a notice, the tenant argued that the rent should have reverted back to the rent control rent. She
argued that the landlord could never have won a "luxury" decontrol of the apartment since the
rent would never have been $2000 a month based on the failure to file the RR-1. And thus, the
DHCR's decision was error and must be invalidated. Landlord moved to dismiss on the grounds
that the tenant failed to exhaust her administrative remedies by not filing a timely Petition for
Administrative Review (PAR) challenging DHCR's decision to deregulate the apartment. In
response, tenant claims that she is not opposing the DHCR order, instead she is bringing a
plenary action against the landlord for overcharges of rent. The Court held that the tenant's
claims are barred by res judicata and dismissed her attempt to overturn DHCR's deregulation
of the subject premises.
New York Law Journal, decisions for the week of June 16-20, 1997 (8 cases)
- Case Caption:
- Bedford Gardens Company v. Ausch
- Issues/Legal Principles:
- Landlord faulted for not advising court that HUD never issued an opinion as to whether
tenant engaged in fraud in obtaining rent subsidies.
- Keywords:
- HUD terminations; necessary parties
- Court:
- Appellate Term, Second and Eleventh Judicial Districts
- Judge:
- lower court: Hon. M. Friedman
- Date:
- June 17, 1997
- Citation:
- NYLJ, page 27, col 4
- Referred Statutes:
- CPLR 5015[a][3] and [a][4]
- Summary:
- Tenant's HUD rent subsidies were terminated in January, 1989 and the lower court
awarded landlord a judgment of possession for unpaid rent by the tenant. The tenant was evicted
and thereafter moved to be restored to the apartment on grounds that landlord made
misrepresentations to the court. The tenant's wife was not made a party to the proceeding and
moved for dismissal of the petition for failing to name her as a necessary party. The lower
court dismissed the tenants' claims, holding that landlord's misstatements were a "matter of
interpretation with the permissible bounds of advocacy" and that the wife's application was
barred by laches (excessive passage of time). The Appellate Term reversed. The HUD
Handbook provides that a tenancy can only be terminated on the ground of fraud after the
regional inspector investigates the fraud and issues an opinion that the tenant's acts were
fraudulent. In this case, the inspector conducted an investigation but issued no opinion. The
Appellate Term held that landlord should have informed the court that no HUD opinion was
issued regarding the tenant. The court dismissed the petition on this ground. It did not rule on
the issue of whether a wife who is not a signatory to a lease and not obligated to pay rent is "a
necessary party" to an eviction proceeding. The Appellate Term allowed the wife to intervene
on her own motion for restoration based on her real and substantial interest in the outcome of
the proceedings. The case was remanded to the trial court for a hearing on restoration, and
whether or not a new tenant was leased the premises. There was a lengthy dissent by one of
the justices who observed that the tenant also did not mention to the court that no opinion issued
from the HUD investigator, which made the lower court's action reasonable.
- Case Caption:
- Siafakas v. Danzy
- Issues/Legal Principles:
- Tenant who had paid all rent prior to issuance of warrant was restored to possession.
- Keywords:
- post-eviction hearings
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. D. Thomas
- Date:
- June 18, 1997
- Citation:
- NYLJ, page 31, col. 6
- Referred Statutes:
- CPLR 2221(a); 5015(a)
- Summary:
- Tenant sought restoration to premises after eviction, stating that she didn't answer the
petition because she had paid all the rent demanded in the petition. After receiving a 72-hour
notice, she made an order to show cause and the matter went before Judge Arthur Birnbaum.
The tenant claimed that Judge Birnbaum told her to pay the rent that accrued up to that point,
which she did by certified mail. The landlord denied that the judge resolved the matter in this
way. The tenant was then evicted. The judge held that since there was no record of the
exchange with Judge Birnbaum, and since the tenant had paid all the rent, it was not necessary
that the case go back to Judge Birnbaum since he was relocated to the Bronx Criminal Court.
The court held a hearing and restored the tenant to possession upon her proof of rents paid prior
to judgment, and that the landlord failed to admit prior to the execution of the warrant that it
had received rent from the tenant. The court dismissed the petition.
- Case Caption:
- Swett v. Batraville
- Issues/Legal Principles:
- Tenant not deemed to harbor "boarders" as defined by the law, and could not be evicted
for rent gouging absent any other stabilization violations.
- Keywords:
- boarders; rent gouging
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Bruce Gould
- Date:
- June 18, 1997
- Citation:
- NYLJ, page 30, col. 4
- Referred Statutes:
- RPL 235-b; Roommate Law RPL 235-f; RSC 2525.1; Penal Code 180.54-57; MDL 248;
HMC 27-2078; HMC 27-2004(4);
- Summary:
- Landlord brought a holdover against tenant, not on grounds of unlawful sublet, nor on
grounds of violation of the roommate law. Rather landlord claimed that tenant was conducting
an unlawful "rooming house" business for at least six months in violation of the certificate of
occupancy, the Multiple Dwelling Law, the Housing Maintenance Code, and that the tenant
collected more than 10% of the rent for this rent stabilized apartment which has four bedrooms.
The landlord argued that the tenant violated the Penal Code against rent gouging. The court
parsed the language of the Multiple Dwelling Law and the Housing Maintenance Code and found
the former inapplicable. Although the HMC is more restrictive, the court noted that the tenant
had not been given notice of the HMC provision nor an opportunity to cure. After trial the
court held that the tenant did not provide "boarders" as defined by the MDL. The court also
noted that since rent gouging is not in and of itself a ground for eviction, the petition was
dismissed.
- Case Caption:
- Conboy v. Mauro
- Issues/Legal Principles:
- Judge relies on DHCR harassment hearings report to uphold tenants' Supreme Court
lawsuit for harassment.
- Keywords:
- harassment
- Court:
- Supreme Court, New York County
- Judge:
- Hon. L. Miller
- Date:
- June 181, 1997
- Citation:
- NYLJ, page 29, col. 3
- Referred Statutes:
- CPLR 3212
- Summary:
- Plaintiffs tenants sued landlord for breach of lease, unlawful eviction, assault, breach
of warranty of habitability and nuisance. The DHCR had previously issued a 137-page report
finding that the testimony of various tenants corroborated landlord's extensive and ongoing
harassment. The landlord argued that since the DHCR had already issued a decision, the
Supreme Court was precluded from relying on it and sought dismissal of the complaint. (The
legal theory used by the landlord is called collateral estoppel). The court disagreed, citing case
law to hold that it was the landlord who could assert new facts which were not made during the
DHCR harassment hearings. Relying on the DHCR's report, the judge granted the tenants
summary judgment on their claims against the landlord, and set the matter down for a hearing
on damages.
- Case Caption:
- 99 Commercial Street v. Llewellyn
- Issues/Legal Principles:
- Landlord allowed to evict loft tenant for lack of certificate of occupancy even though Loft
Laws require landlord to obtain the certificate as a step towards bringing lofts into the rent
stabilization scheme.
- Keywords:
- Lofts
- Court:
- Appellate Term, Second Department
- Judge:
- lower court: Barasch
- Date:
- June 13, 1997
- Citation:
- NYLJ, page 33, col 4
- Referred Statutes:
- Multiple Dwelling Law 284(1), 286(2), 302
- Summary:
- In 1996 Landlord plaintiff brought an action for ejectment in the Supreme Court against
the tenants who reside in a loft dwelling. The owner had been attempting since 1989 to get a
certificate of occupancy for the property, which it still did not have. The tenant has resided in
the premises since 1978. The Appellate Division held that the lower court was wrong to deny
the owner a judgment of possession against the tenant, but ruled that because no certificate of
occupancy existed, the tenant was not liable for rent. The court held that the absence of the
certificate of occupancy does not bar a landlord from recovering possession in an ejectment
action.
- Notes:
- This decision is unusual. The reason landlords are required to get certificates of
occupancy for loft dwellings is to bring those dwellings up to building code standards. Loft
tenants are supposed to be covered by the Rent Stabilization Code once the certificate of
occupancy is acquired. This decision appears to allow loft landlords to evade the Code by
simply failing to obtain a certificate of occupancy. It is not understood how this Court
overlooked the Rent Stabilization laws in this case. It is hardly relief that the tenant is not liable
for rent when the tenant is also evicted from their loft home.
- Case Caption:
- Moscowitz v. Rassbach
- Issues/Legal Principles:
- Appellate Court reinstates nonpayment petition so that landlord may show it took all
reasonable and necessary action to bring loft apartment up to Code.
- Keywords:
- Lofts
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Margaret Taylor
- Date:
- June 20, 1997
- Citation:
- NYLJ, page 25, col 4
- Referred Statutes:
- MDL 284(1)(i); 302(1);
- Summary:
- The lower court dismissed landlord's claim for rental arrears prior to July, 1992 on
grounds that the landlord failed to take all reasonable and necessary action to legalize the loft
premises. Under Multiple Dwelling Law 284(1), failure to secure a certificate of occupancy
deprives a loft landlord of rent. The Appellate Term reversed holding that a question of fact
existed to determine whether all reasonable and necessary action was taken. Justice Helen
Freedman dissented stating that while the landlord filed a timely alteration application in 1982,
"little else was done" to bring the building up to Code standards.
- Case Caption:
- 300 East 34th Street Co. v. Paleias
- Issues/Legal Principles:
- Tenant's unsuccessful motion to dismiss the petition represented delay of the
proceedings, making it incumbent upon tenant to pay ongoing rent during the litigation.
- Keywords:
- use and occupancy
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Richard Braun
- Date:
- June 20, 1997
- Citation:
- NYLJ, page 25, col 5
- Referred Statutes:
- RPAPL 745[2]
- Summary:
- The lower court denied landlord's application for ongoing use and occupancy (rent
payment) pending the litigation of this holdover proceeding based on an unlawful sublet
allegation. The Appellate Term reversed holding that because tenant had made a prior motion
to dismiss (which was not granted), the tenant had triggered delay of the litigation to landlord's
prejudice.
- Case Caption:
- 211 West 56 Associates v. Nager
- Issues/Legal Principles:
- Tenant denied overcharge claim in housing court because tenant failed to make a DHCR
complaint when landlord failed to provide tenant a copy of the renewal lease.
- Keywords:
- overcharges; lease renewals
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Bruce Gould
- Date:
- June 20, 1997
- Citation:
- NYLJ, page 25, col 6
- Referred Statutes:
- RSC 2523.5(a), 2522.5[b][2]
- Summary:
- Tenant signed a renewal lease, but withheld rent on grounds that the prior renewal
lease's rent was an overcharge. The lower court allowed the tenant to state an overcharge claim
based on the prior lease because the landlord failed to furnish the tenant a copy of that renewal
lease. The Appellate Term reversed, holding that an owner is not barred from collecting rent
guideline increases on renewal leases unless DHCR, upon complaint of the tenant, directs the
owner to furnish a copy of the renewal lease and the owner fails to comply within 20 days of
the agency's order. Since the tenant filed no complaint to DHCR for failure to receive a lease,
the landlord was not precluded from collecting lawfully increased rent nor could it be held liable
for overcharge penalties in this circumstance.
- Case Caption:
- Gracecor Realty Co. v. Hargrove
- Issues/Legal Principles:
- Keywords:
-
- Court:
- Court of Appeals
- Judge:
-
- Date:
- June 18, 1997
- Citation:
- NYLJ, page 27, col 3
- Referred Statutes:
- McKinney's Uncons Laws 8623(a), 8634 (ETPA); Administrative Code 26-504(b) &
2520.6(j) ; Multiple Dwelling Law 4(9); RPAPL 711
- Summary:
- The tenant occupied a lodging house (rooming house) in the Palace Hotel. The issue
was whether the room was subject to Rent Stabilization. The owner brought a holdover
proceeding by terminating what it claimed was a month to month tenancy. The tenant moved
to dismiss the petition on grounds that the space was subject to Rent Stabilization Laws. The
lower court dismissed the petition, the Appellate Term affirmed, with one dissent, and the
Appellate Division affirmed. The Court of Appeals likewise affirmed, holding that Rent
Stabilization laws cover Class B multiple dwellings. The Court ruled that the tenant's one room
space fell into the category of "housing accommodation" as defined by the Code, which
definition was not limited by any physical or structural requirements such as minimum square
footage. The Court also held that other factors for consideration included the permanency of
the residence, whether the occupant has any other residence, and any limitations relating to an
occupant's use and control of the premise which have been imposed and enforced by the
landlord. The Court also noted that the Court looks to the tenant's intent as to whether the space
is their residence. Here the tenant occupied the room for a continuous period of two years and
the tenant had no other residence. The Court held that it was irrelevant that the landlord could
have limited the length of the tenant's stay to less than one week at a time since the actual length
of continuous occupancy was significantly longer. Also, the tenant had a key which allowed the
tenant to exclude others from the living space. The Court completely rejected the owner's
contention that the room could not be subject to the Rent Stabilization laws due to its structural
configuration. The owner also tried to argue that the DHCR has already ruled that lodging
rooms are exempt from Rent Stabilization, but the Court found that the two cases cited by the
owner were unclear as to their applicability to the Palace Hotel. The DHCR argued in a friend
of the court brief that partitioned space cannot be a housing accommodation, but the Court of
Appeals ruled that this position is unreasonable and inconsistent with applicable statutes,
specifically since the definition of "housing accommodations" fits this case.
New York Law Journal, decisions for the week of June 9-13, 1997 (8 cases)
- Case Caption:
- Bronx District Attorney v. Jackson
- Issues/Legal Principles:
- No waiver exists where landlord accepts tenant's rent after District Attorney's office
obtained a possessory judgment against tenant for illegal usage.
- Keywords:
- illegal usage; waiver
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Howard Sherman
- Date:
- June 10, 1997
- Citation:
- NYLJ, page 25, col 2
- Referred Statutes:
- RPAPL 715 & 711(5); RPL 231(1)
- Summary:
- The Bronx District Attorney obtained a final judgment of possession against the tenant
based on the tenantžs illegal narcotics trade in the apartment. Thereafter, the City/landlord
commenced a nonpayment proceeding and accepted rent from the tenant. The lower court
denied tenantžs motion to vacate the possessory judgment obtained by the DAžs office on
grounds that the prosecution of the nonpayment proceeding vitiated the holdover and revived the
landlord tenant relationship. The Appellate Term upheld the denial on grounds that the DAžs
office acted separately and independently from the City/landlord, and because a tenancy cannot
be reinstated where it was rendered void by virtue of illegal or criminal conduct. Thus, waiver
(by accepting the rent) had no effect on the possessory judgment against the tenant.
- Case Caption:
- Whitehouse Estates, Inc. v. Post
- Issues/Legal Principles:
- Landlord has no duty to find a new tenant when tenant breaks lease prematurely.
- Keywords:
- mitigation of damages; leases
- Court:
- Appellate Term, First Department
- Judge:
- Hon. Jose Padilla
- Date:
- June 10, 1997
- Citation:
- NYLJ, page 27, col. 6
- Referred Statutes:
- none cited
- Summary:
- The defendant tenant vacated the apartment about three months before the lease expired.
The landlord sued the ex-tenant for rent arrears in civil court. The lower court dismissed the
complaint because the landlord failed to show it had mitigated damages (i.e., that it made all
reasonable efforts to find a new tenant after the ex-tenant vacated). The Appellate Term
reversed citing a Court of Appeals case which held that the tenantžs obligation to pay the rent
is fixed and the landlord is under no obligation or duty to relet or attempt to relet abandoned
premises. The Appellate Term held that it made no difference that the Court of Appeals case
involved a commercial tenancy.
- Notes:
- This is a devastating decision for tenants who wish to break their leases early. It
basically says that a landlord can let the apartment sit until the end of the lease term (which
could be six months, or one year, down the road) and the tenant will be responsible for the rent.
There are numerous cases which hold to the contrary, but the Appellate Term stated that since
the Appellate Division has not applied the rule that a landlord must mitigate damages when a
tenant breaks the lease, it would follow the Court of Appeals case--- even though that case
involved a commercial lease! Courts frequently distinguish between commercial and residential
leases, and it is amazing and unfortunate that the Appellate Term declined to do so when given
the opportunity in this case. One hopes and prays that the tenant here will appeal to the
Appellate Division for a reversal, since there are frequent occasions when tenants need or desire
to break their leases. This Appellate Term decision will make it more onerous for tenants to
do so.
- Case Caption:
- Yorkville Towers Associates v. Mourino
- Issues/Legal Principles:
- Administrative hearings concerning subsidized housing cannot be relitigated in Housing
Court.
- Keywords:
- jurisdiction; Mitchell Lama tenants
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Saralee Evans
- Date:
- June 9, 1997
- Citation:
- NYLJ, page 29, col. 3
- Referred Statutes:
- 28 RCNY 3-02(P)(2)(ii)
- Summary:
- Tenants who defaulted in a hearing pertaining to the Mitchell Lama apartment had no
right to challenge the landlordžs holdover proceeding in Housing Court. The Appellate Court
affirmed the lower court's decision that the proper remedy was to file an Article 78 in Supreme
Court appealing the City's administrative decision at the hearing.
- Case Caption:
- SJP Broadway Associates v. Smith
- Issues/Legal Principles:
- Where tenant defaults in a Supreme Court ejectment action, a hearing is necessary before
landlord can obtain a default judgment.
- Keywords:
- defaults; ejectment
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Alice Schlesinger
- Date:
- June 11, 1997
- Citation:
- NYLJ, page 30, col. 1
- Referred Statutes:
- CPLR 3215(b); RPAPL 732(3)
- Summary:
- Landlord sought a default judgment to evict the tenant from a basement apartment in an
ejectment action in Supreme Court. (Default means the tenant did not make an appearance in
the action). The landlord claimed that prior to purchasing the building the previous owner and
super informed him that no one lived in the basement, and therefore concluded that the defendant
took occupancy recently. Since there was no certificate of occupancy for usage of the basement
as a residence, the landlord sought a warrant of eviction. The court, however, found that the
landlord's mere affidavit was insufficient absent any documentary proof of illegal occupancy.
The judge ordered that a hearing should be held on the matter and that the landlord was not
entitled to a judgment on its mere affidavit in an ejectment action (unlike a summary proceeding
in Housing Court where a default judgment could be obtained on the landlord's affidavit alone).
- Case Caption:
- Resolution GGY OY v. Mixon
- Issues/Legal Principles:
- Landlord ordered to pay tenants various monetary damages for refusing to comply with
court order to make essential repairs; landlord's power of attorney was ordered to jail and the
landlord was restrained from selling the building.
- Keywords:
- contempt
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Callender
- Date:
- June 11, 1997
- Citation:
- NYLJ, page 32, col 6
- Referred Statutes:
- Judiciary Law 773
- Summary:
- A prior court order required the landlord to provide water, gas and repairs by certain set
dates. The tenants moved for civil contempt against the landlord for failing to comply with the
order, but the landlord didn't appear for the hearing. Since the landlord had appeared in the past
in the case, the court ruled that it retained jurisdiction over the landlord. The court found that
the landlord displayed a complete indifference towards complying with the court order to supply
essential services and make repairs. The tenants had to vacate their homes due to the
apartments' unhabitability. The court granted the tenants various monetary relief for diminution
of quality of life, mental suffering, reimbursements for expenses paid by the tenants to make
their homes habitable, and civil contempt fees against the landlord. The court also ordered the
person serving as power of attorney for the landlord be arrested as a contemnor of the court's
order and brought to jail (the person resides in Texas). The court also restrained the landlord
from selling the property and threatened future civil and criminal contempt if the order was not
complied with.
- Case Caption:
- Pald Enterprises, Inc. v. Gonzalez
- Issues/Legal Principles:
- Tenant not bound to pay a rent stabilized rent until tenant signed a rent stabilized lease.
- Keywords:
- rent stabilization
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower court: Hon. James Grayshaw
- Date:
- June 12, 1997
- Citation:
- NYLJ, page 31, col 1
- Referred Statutes:
- none cited
- Summary:
- In January 1987 DHPD (City agency) set the rent at $425 per month. Before landlord
rehabilitated the building, tenant had been paying a rent controlled rent of $83.91 per month.
Various tenants in the building brought a Supreme Court action to contest the rents set by
DHPD. All the tenants settled and accepted Rent Stabilized leases, except for the tenant in this
proceeding who refused to sign a lease and continued to pay the lower rent while continuing to
file challenges of the higher rent with DHPD and the DHCR. During a 1994 holdover
proceeding, however, the tenant signed a rent stabilized lease at $446.25 per month beginning
May, 1994. Thereafter, landlord brought a nonpayment proceeding to recover the difference
in rent that the tenant refused to pay over the years (since 1987) prior to settling. Tenant
defended on grounds of laches and the statute of limitations had passed. The lower court held
for the landlord. The Appellate Term reversed holding that the landlord was not entitled to
recover the arrears claimed from 1987 and prior to the period when she finally consented to be
a rent stabilized tenant. The court ruled that the tenant was not bound to pay the stabilized rent
during the period she did not agree to pay it, and during a time she never had a rent stabilized
lease, and during a time she continued to challenge the higher rent. The proper remedy for her
refusal to sign a rent stabilized lease was to bring a holdover against her (which the landlord
eventually did in 1994).
- Case Caption:
- Ted Zane v. Barry Kellner
- Issues/Legal Principles:
- Tenant ordered to deposit rent with the court until landlord obtained a certificate of
occupancy.
- Keywords:
- certificate of occupancy
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Harold Tompkins
- Date:
- June 12, 1997
- Citation:
- NYLJ, page 26, col 6
- Referred Statutes:
- CPLR 325; Multiple Dwelling Law 301
- Summary:
- The landlord in this case offered a residential lease to its tenant, while aware that the
building lacked a residential certificate of occupancy. As a result, the tenant withheld his rental
payments. The lower court granted the landlord's motion for use and occupancy and denied
tenant's cross motion to dismiss the causes of action for rent arrears and use and occupancy.
The Appellate Division modified the order to direct that use and occupancy be paid directly into
the court rather than the plaintiff/landlord until such a time when the landlord obtains a
certificate of occupancy for the subject building. In reaching their determination, the Appellate
Division recognized that the landlord was aware that the building lacked a certificate of
occupancy and made no effort to comply with the law. However, the Court also looked to the
fact that the tenant did not claim that the conditions in the building posed a threat to his health
and safety. Additionally, the tenant did not express a desire to vacate the premises.
- Case Caption:
- Commercial Street, Inc. v. Kim Llewellyn
- Issues/Legal Principles:
- In the absence of a residential certificate of occupancy, landlord is not entitled to use and
occupancy but may bring an action in ejectment.
- Keywords:
- certificate of occupancy; interim multiple dwelling; Loft Law
- Court:
- Appellate Division, Second Department
- Judge:
- lower court: Hon. Barasch
- Date:
- June 13, 1997
- Citation:
- NYLJ, page 33, col 4
- Referred Statutes:
- Multiple Dwelling Law 281, 284(1), 286[2], 302, 302[1][b]
- Summary:
- Plaintiff/landlord is the owner of an interim multiple dwelling. Under the new Loft Law,
owners of such properties are given a sufficient amount of time in which to convert their
commercial space to residential use. During this transitory period, tenants of such property are
entitled to a right to occupy the premises while the owner of the building obtains the residential
certificate of occupancy. However, the law prevents an owner from recovering rent when the
premises are occupied without a residential certificate of occupancy. In the present case, the
owner was attempting to obtain a certificate of occupancy since 1989. Due to the alleged
inaction of the City, the owner has not yet recieved a certificate of occupancy. The tenants have
withheld rent since 1989. As a result, in 1996 the landlord brought an action in ejectment to
recover possession of the premises. The tenants argued that no action or proceeding for the
recovery of rent may be maintained in the absence of a residential certificate of occupancy. The
lower court denied the landlord's motion to eject the tenants and recover use and occupancy.
The Appellate Division modified the holding and ordered that the landlord was in fact entitled
to recover possession of the premises. However, the Court upheld the lower court's ruling that
the landlord was not entitled to recover use and occupancy in the absence of a residential
certificate of occupancy. The Appellate Division held that the tenant's argument would have
merit if the landlord commenced a nonpayment proceeding. Since this was an action to recover
possession of the property the absence of the residential certificate of occupancy did not preclude
the landlord from commencing the instant proceeding.
New York Law Journal, decisions for the week of June 2-6, 1997 (4 cases)
- Case Caption:
- 390 West End Associates v. Pearl
- Issues/Legal Principles:
- Keywords:
-
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Arthur Birnbaum
- Date:
- June 5, 1997
- Citation:
- NYLJ, page 30, col 3
- Referred Statutes:
- 9 NYCRR 2524.5(b) & 2523.5(b); RPAPL 853
- Summary:
- Landlord initially brought a nonpayment proceeding against the tenant of record, but did
not notify the wife wife. The landlord obtained a warrant and judgment of possession but this
was vacated when the wife brought an order to show cause and paid all the rent, and she was
restored to possession. She claimed that she resided with her husband in the apartment for 22
years, but that she temporarily vacated the apartment because her husband was abusing her.
Also, her son was attending college and was residing in a dormitory. The landlord then brought
a holdover against her, her husband having surrendered possession, and she asserted succession
rights on behalf of herself and her son. The court ruled that the son clearly was entitled to a
lease in his name because under the Code, his enrollment in school exempts him from the two-
year primary residence requirements (for the period he is in school) necessary for a family
member to succeed to the lease. The Code also has a catch-all provision where primary
residency requirements are interrupted for "other reasonable grounds." The court ruled that the
wife's absence from the apartment for the sole reason that her husband, the tenant, abused her
constituted other reasonable grounds, so that such absence would not defeat her succession rights
claim. The wife wrote the landlord a letter informing the landlord the reason she was
temporarily vacating. The landlord argued that she failed to prove abuse, but rather there was
simply "marital discord." The record, however, reflected that the wife took out an order of
protection against her husband. The court held, "It would be unjustiable reasoning to demand
that a spouse put her life or physical safety in jeopardy in order to preserve a home otherwise
her's by law. " The court also found it was unreasonable for the landlord to dispose of all
property in the apartment knowing that via her letter that the wife still held a claim to the
apartment (even though she was absent at the time her husband surrendered possession.) The
court put the matter down for a hearing on treble damages for an unlawful eviction and
attorney's fees.
- Case Caption:
- Century Apartments Associates v. Postel
- Issues/Legal Principles:
- Chronic non-payment case based on nuisance is defective.
- Keywords:
- chronic non-payment
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Marcy Friedman
- Date:
- June 3, 1997
- Citation:
- NYLJ, page 25, col 2
- Referred Statutes:
- 9 NYCRR 2524.3(a) & (b)
- Summary:
- Landlord brought a holdover against the tenant on grounds of chronic non-payment of
rent in that landlord was compelled to commence four nonpayment proceedings from March
1994 to August 1995 to recover rent that had accrued over a period of about 2« years. (Tenant
resided in the apartment for over ten years). Tenant alleged temporary financial hardship and
ultimately paid the entire amount sought. The lower court granted landlord's summary judgment
motion, but the Appellate Term reversed and dismissed because the holdover was based on a
nuisance theory, and the recent Court of Appeals case, Sharp v. Norwood held that
non-payment or late payment of rent in and of itself is not conduct which causes damage to the
building or threatens the comfort and safety of the owner or other tenants. Instead of a nuisance
proceeding, the appropriate legal theory for such holdovers is on grounds that tenant violated
a substantial obligation of the tenancy.
- Case Caption:
- Broadway Inwood Corp. v. Kellner
- Issues/Legal Principles:
- Absence of qualified super living in the building constituted a rent impairing violation,
relieving the tenant from payment of rent.
- Keywords:
- supers
- Court:
- Civil Court, New York County
- Judge:
- Hon. Bruce Gould
- Date:
- June 4, 1997
- Citation:
- NYLJ, page 27, col. 6
- Referred Statutes:
- MDL 302(a), Housing Maintenance Code 27-2054; Administrative Code 27-2052, 2053
& 2054;
- Summary:
- The superintendent of the building did not reside in the building during the period in
which the landlord sued tenant for unpaid rent. A super is required to reside in or within one
block or two hundred feet of any apartment building with nine or more units. A rent impairing
violation was found because the super lived three blocks from the building. An assistant who
resided in the super's apartment was not qualified to and did not take care of the building's
central heating and hot water system. The frequent lack of hot water was never corrected until
the super would arrive at the building between 7:30 and 9:00 am. Shortly after he arrived, the
heat and hot water would go on. The court ruled that no rent would be recovered for the period
of time that the building lacked a qualified super, and due to the existence of a plethora of other
rent impairing violations. The tenant was awarded attorney's fees.
- Case Caption:
- Auletti v. Chemical Bank
- Issues/Legal Principles:
- Tenants seeking recovery of embezzled rent deposits cannot seek claims on behalf of
tenants who did not join the lawsuit.
- Keywords:
- escrow rents; attorney disqualification
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Carol Arber
- Date:
- June 4, 1997
- Citation:
- NYLJ, page 25, col. 5
- Referred Statutes:
- Code of Professional Responsibility DR 5-102(A)
- Summary:
- Various members of the Tenants Association at 215 East 66th Street brought an action
in Supreme Court to recover rent money embezzled by its former leader, Steven Delit, to whom
the tenants had given their rent. A defendant law firm, Finder Novick, sued to dismiss the
complaint with respect to plaintiffs' efforts to recover monies lost by tenants who were not
parties to this Supreme Court case, and for attorney's fees in another action, Solow v. Delit.
Alternatively, they moved to disqualify the law firm of Karlsson & Ng (K&N) who were
plaintiffs' attorneys in the Solow v. Delit action from representing plaintiffs in this action.
Chemical Bank moved for the same relief. The tenants had gone on a rent strike and the court
ordered that their rent monies be deposited in an escrow account. Delit was in charge of the
account. Ultimately $1,820.519.56 was deposited, of which Delit embezzled $616,974. The
landlord, Solow, sued the tenants for the return of the money in the case called Solow v. Delit,
but that case was dismissed because the court ruled that the money belonged to the tenants. This
Supreme Court case was begun by 39 of the 65 units which had participated in the rent strike.
26 units chose not to participate. The plaintiffs claim that the defendant law firm and the bank
failed to safeguard the funds. They seek damages for the rent money deposited and lost by
themselves, as well as other tenants not a party to this case, plus reimbursement of attorney's
fees against Finder, Novick, arguing that the law firm's negligence caused Solow to initiate the
lawsuit against Delit and the tenants, and the tenants had to pay K&N to represent them in that
suit. The court ruled that the plaintiffs, including the Tenants Association, cannot recover rent
money lost by other tenants who are not parties to this action, and granted Finder Novick's
motion on this issue. The court denied Finder Novick's motion to dismiss the plaintiffs'
attorney's fees claim because the court stated a trial was required to determine if it should have
been foreseeable on the law firm's part that the landlord would sue. Finally, the court denied
Finder Novick's argument that the plaintiffs' attorney K&N should be disqualified because they
could be called as witnesses. The judge held that there is nothing to support the conclusion that
K&N ought to be called as witnesses.
|
|