Housing Court Decisions March 1997
edited by Colleen F. McGuire, Esq.
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New York Law Journal, decisions for the week of March 24-28, 1997 (7 cases)
- Case Caption:
- Podsiadlo v. Pacheco
- Issues/Legal Principles:
- Holdover notice cannot simultaneously accuse tenant of unlawful subletting and violation
of the roommate law; eviction is not a remedy for alleged violations of the roommate law.
- Keywords:
- sublet; roommate
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Peter Wendt
- Date:
- March 26, 1997
- Citation:
- NYLJ, page 31, col 1
- Referred Statutes:
- RPL 226-b & 235-f; RSC 2524.2(b) & 2524.3 & 2524.4; RPAPL 711
- Summary:
- Landlord brought a holdover proceeding against Rent Stabilized tenant on grounds of
unlawful subletting, in violation of RPL 226-b. The predicate notice also alleged that the tenant
failed to comply with RPL 235-f by not informing the landlord of the name of any additional
occupants in the premises (i.e., roommates) within 30 days of their occupancy. The notice
alleged nothing regarding the whereabouts of the prime tenant. The tenant moved to dismiss on
grounds that the notice was defective because it was contradictory in that a tenant cannot
simultaneously be accused of unlawful subletting (meaning the tenant resides elsewhere) and
accused of violating the roommate law (meaning the tenant lives with the occupants). To deflect
this contradiction, the landlord argued that the notice mentioned the tenant's alleged violation
of RPL 235-f as a way of stating that the tenant could not rely on the roommate law as a
defense. The court disagreed and stated that the notice clearly relies on RPL 235-f as a grounds
of termination. Further the court could not, as landlord suggested, sever RPL 235-f from the
notice as a grounds for eviction since predicate notices are not amendable. The court also
opined that any violation of RPL 235-f (such as having more roommates than permitted under
that law) could not be grounds for eviction because RPL 235-f does not provide for eviction as
a remedy in the event of a breach of the statute. The court dismissed the petition based on the
defective contradictory pleadings.
- Case Caption:
- Double A Property Assocs. v. DeLeon
- Issues/Legal Principles:
- Lower court's restoration of occupant/girlfriend to apartment after eviction was reversed
on appeal where landlord's agent denied that he agreed to restore her upon late payment of rent.
- Keywords:
- post-eviction
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Badillo
- Date:
- March 25, 1997
- Citation:
- NYLJ, page 29, col. 1
- Referred Statutes:
- none cited
- Summary:
- In a nonpayment proceeding, the occupant/girlfriend of the tenant of record defaulted in
making payments of the arrears pursuant to a stipulation and was subsequently evicted.
However, shortly after the eviction, the occupant paid the amount of the judgment to the
landlord's agent. The occupant claimed that the landlord's agent told her that upon payment of
the judgment, she would be restored to possession. The landlord's agent denied this allegation,
maintaining that he repeatedly told the occupant that under no circumstances would she be able
to move back in to the apartment. The lower court restored the occupant to possession, holding
that she was "under the impression" that she would get the apartment if she paid the judgment.
The Appellate Court reversed, holding that the trial court's decision was not justified by the
record and the post-eviction payment by the former occupant did not justify restoring her to
possession, and furthermore her payment was one month late under the stipulation schedule and
paid only after she was evicted.
- Case Caption:
- Matter of Miller v. DHCR
- Issues/Legal Principles:
- DHCR Rent reduction orders freeze the rent only as to statutory guideline rent increases,
not apartment improvement increases.
- Keywords:
- rent reduction orders
- Court:
- Supreme Court, Kings County
- Judge:
- Hon. Belen
- Date:
- March 26, 1997
- Citation:
- NYLJ, page 30, col 4
- Referred Statutes:
- RSC 2520.6, 2527.8, 2523.4
- Summary:
- Within four days of taking occupancy of the apartment, tenant filed a complaint for
decrease in services arguing that on the base date window screens were a required service and
landlord ceased to provide them. The DHCR reduced the rent to the level in effect prior to the
most recent guidelines increase, pursuant to sections 2520.6 and 2523.4 of the Code. The tenant
thereupon on his own determined that his rent should be reduced from $810 to $401.26, the
amount paid by the preceding tenant. Subsequently the DHCR ruled that the reduction pertained
solely to guidelines increases, and did not affect increases permitted to this or any landlord for
apartment improvements. The tenant appealed on various grounds including that a DHCR
internal memorandum statement "eliminating all intervening increases" should have been
interpreted to mean that even apartment improvement increases should not be granted a landlord
when a rent reduction order is in effect. Tenant further challenged DHCR's "arbitrary"
reopening of the case without notifying tenant and sought a contempt order, and challenged
DHCR's position that the internal memorandum should not be interpreted to encompass all
increases, but only guideline increases. The Supreme Court held on the side of the DHCR's
interpretation of its internal memo, i.e., that rent reduction orders were not intended to preclude
rent increases based on apartment improvements. The court also held that an internal memo did
not constitute a policy statement. The court dismissed the tenant's Article 78 appeal of the
DHCR order.
- TenantNet note:
- The decision in this matter did not fully clarify the issue in our view and it is
possible that owners might use this decision in the wrong way. TenantNet was
consulted in this case and we're familiar with the underlying facts and issues.
In this case there was no rent reduction in effect from prior tenants when the current tenant
took occupancy. The improvements at issue were installed prior to the effective date of the
rent reduction obtained by the current tenant, and therefore the court ruled that the
rent reduction order could not be used to reduce the rent to the rent in effect prior to the
point when the improvements were installed on the vacancy. In other cases that we've
seen (and in which we've been involved), if a prior tenant had obtained a rent reduction order
and the effective date of the order is prior to the vacancy, then that rent reduction and rent freeze
holds for the new tenant and (here's where the two situations differ), the costs of any improvements
cannot be passed on to the current tenant during the period the rent reduction order is in
effect. This can be a complicated issue and any tenant finding themselves in such a situation
should contact TenantNet as we even have a copy of a DHCR opinion letter backing our view on this.
- Case Caption:
- Diamond v. Ulrich
- Issues/Legal Principles:
- Tenants given credit on use and occupancy for discrepancies in water-sewer charges.
- Keywords:
- use and occupancy
- Court:
- Appellate Term, 9th & 10th Judicial Districts
- Judge:
- lower court: Hon. Kane, Jr.
- Date:
- March 25, 1997
- Citation:
- NYLJ, page 28, col. 6
- Referred Statutes:
- none cited
- Summary:
- The lower court determined that the plaintiffs/tenants in this appeal were holdover tenants
and awarded use and occupancy to the landlord. The tenants appealed in order to reduce the
amount of the judgment for use and occupancy owed during the holdover period. The tenants
claimed that there were discrepancies as to the sewer and water bills in that they covered periods
after they surrendered possession of the premises. The Appellate Term held that the
documentary evidence submitted by the landlord in support of his claim for sewer and water
charges due by the former tenants contained discrepancies and modified the judgment by
reducing the amount of the landlord's award.
- Case Caption:
- 90-92 Wadsworth Avenue Tenant's Association v. City of New York Department
of Housing Preservation and Development
- Issues/Legal Principles:
- Tenants Association's complaint dismissed where it waited too long to challenge HPD's
approval of rehabilitation loan to landlord.
- Keywords:
- HPD rehabilitation loans; laches
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Harold Tompkins
- Date:
- March 24, 1997
- Citation:
- NYLJ, page 27, col. 4
- Referred Statutes:
- CPLR 217
- Summary:
- The Department of Housing Preservation and Development ("HPD") approved an Article
8A rehabilitation loan to the landlord for work on the premises. Sixteen months after the closing
of the loan and after work had already begun, the tenants association commenced an Article 78
proceeding to challenge HPD's approval of the loan. The tenants alleged that they were not
aware that the closing took place and that the landlord did not give them the required notice of
said closing. The lower court denied landlord's motion to dismiss the tenants' petition. The
Appellate Division unanimously reversed the lower court's ruling on both the law and the facts
of the case. The Court held that the tenants association's action was untimely in that they failed
to bring their action within 4 months from when they received notice of HPD's approval of the
rehabilitation loan. Furthermore, HPD was not required to send additional notice as to the
closing of the loan. Moreover, the Court held that not only did HPD comply with all of the
notice requirements to the tenants, the facts of the case showed that the tenants were guilty of
laches in that they waited over sixteen months to bring their claim and all the while construction
was taking place "throughout their building and all around their apartments".
- Case Caption:
- Villaronga v. Birch Brook Manor, Inc.
- Issues/Legal Principles:
- Prospective tenant entitled to return of security deposit where no lease or any other
agreement signed.
- Keywords:
- security deposit
- Court:
- Justice Court of Town of Ossining, Westchester County
- Judge:
- Town Justice Shapiro
- Date:
- March 26, 1997
- Citation:
- NYLJ, page 27, col. 4
- Referred Statutes:
- none cited
- Summary:
- Plaintiff was a former prospective tenant who paid the landlord's managing agent a
deposit toward the rental of an apartment, prior to executing a lease. The lease was to
commence on a certain date, however several days prior to that date plaintiff informed the
landlord's agent that there was a death in her family and that she would need an extension of
time. In the meantime, plaintiff lost her job and advised landlord's agent that she would not be
able to take the apartment. At this time, plaintiff requested return of her security deposit. She
was told that under the circumstances, the landlord relied on her commitment and the deposit
was not refundable. The Court held that "an agreement to agree to a future contract lacks the
essentials of a binding contract unless it specifies all of the material and essential terms, leaving
none to be agreed upon as the result of future negotiations." In addition, the Court looked at
the credibility of the testimony of both parties and concluded that both parties were not
completely blameless. Moreover, the nonrefundable nature of the deposit to cover the landlord's
damages, was not reduced to writing. The Court concluded that in light the landlord's position
as the owner of a "substantial apartment building" it must be "charged with knowledge of the
law." As a result, the Court held that the landlord had the means to adequately protect itself
from sustaining losses that result from changed circumstances and awarded plaintiff her deposit
back.
- Case Caption:
- Estate of Carl Harrison Jr. v. White
- Issues/Legal Principles:
- Petition bearing incorrect and non-existent address deprives court of jurisdiction and
warrants dismissal.
- Keywords:
- service of petition
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Callender
- Date:
- March 26, 1997
- Citation:
- NYLJ, page 31, col. 4
- Referred Statutes:
- RPAPL 741(3)
- Summary:
- The parties entered into a stipulation where the tenant agreed to a money judgment and
the immediate warrant of eviction could issue upon his default in the payout schedule.
Subsequently, the tenant failed to comply with the terms of the stipulation and made a motion
to dismiss the proceeding because the rent demand, notice of petition, petition and affidavits of
service failed to state the correct address of the subject premises. The tenant alleged that
notwithstanding the stipulation, this defect goes to the subject matter jurisdiction of the Court
and required that the petition must be dismissed. The address described in the papers was not
only incorrect, but nonexistent. The landlord argued that the error which indicated that the
premises was located on "Ocean Boulevard" as opposed to the correct address on "Ocean
Parkway," was at worst harmless. The Court dismissed the petition, holding that "since the
Court fails to possess jurisdiction over the non-existent property, the papers cannot later be
amended to give it power it never had in the first place."
New York Law Journal, decisions for the week of March 17-21, 1997 (13 cases)
- Case Caption:
- Brause v. Polonez Press Box, Inc.
- Issues/Legal Principles:
- New owner could eject tenant based on prior owner's judgment, but new owner had to
move to be substituted as a party to the action.
- Keywords:
- ejectment
- Court:
- Supreme Court, New York County
- Judge:
- Hon. David Saxe
- Date:
- March 19, 1997
- Citation:
- NYLJ, page 25, col 6
- Referred Statutes:
- RPL 223; CPLR 1018
- Summary:
- The old landlord won an order of ejectment to evict the tenant, but the tenant delayed
the eviction by twice filing for bankruptcy and due to an evaluation by Protective Services. The
new owner wants to enforce the judgment of ejectment. The court ruled that the successor
landlord succeeded to the rights of the prior landlord, including being able to enforce the
judgment, but the new owner must make a motion to be substituted as plaintiff in order to do
so. The court held so long as the new owner is joined as a party to the action, the new owner
did not have to initiate a new ejectment action against the tenant.
- Case Caption:
- New York City Housing Authority v. Fountain
- Issues/Legal Principles:
- Landlord's petition dismissed for failure to include zip code on service papers.
- Keywords:
- service of process
- Court:
- Civil Housing Court, Bronx County
- Judge:
- Hon. Ling-Cohan
- Date:
- March 19, 1997
- Citation:
- NYLJ, page 27, col 2
- Referred Statutes:
- RPAPL 735, 732(1) & (3)
- Summary:
- The landlord served two non-payments on two separate tenants by "nail and mail"
service. The papers contained no zip code of tenants' address. Both tenants defaulted and
landlord sought a judgment of possession. The court denied landlord the relief based on the fact
the Court could not say that it was "virtually certain" the petition arrived absent the zip code.
- Notes:
- The court provided a very lengthy discussion of the requirements of service of process.
Despite the case's focus on zip codes, this case is actually extremely useful as a general
reference source for issues pertaining to service of process.
- Case Caption:
- Department of Housing Preservation and Development v. Cupid
- Issues/Legal Principles:
- Petition seeking civil penalties dismissed where no proof existed that the respondents,
former owners, had control or were sufficiently connected to the building during the time the
violations remained uncorrected.
- Keywords:
- HP action
- Court:
- Civil Housing Court, Bronx County
- Judge:
- Hon. Anthony Fiorella
- Date:
- March 19, 1997
- Citation:
- NYLJ, page 28, col. 2
- Referred Statutes:
- Housing Maintenance Code 27-2004(45)
- Summary:
- Nine violations were placed against the building beginning in January, 1995 and
remained uncorrected through November, 1996. Two of the respondents had owned the building
at one time with another individual. However, when they obtained a mortgage, the mortgagee
bank ordered the two respondents to terminate all connection with the property when a receiver
was appointed in 1991. The court ruled that these two respondents no longer had control of the
building for purposes of enforcing civil penalties against them. Further, there was no convincing
evidence that the other individual controlled or had connections the building upon being assigned
the mortgage in 1994. The court dismissed the petition.
- Case Caption:
- Root v. 650 Park Avenue Corp.
- Issues/Legal Principles:
- Co-op tenant denied injunction to stop garage noise when the unit was purchased "as is"
and tenant was aware of the noise at the time of purchase.
- Keywords:
- noise
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Tompkins
- Date:
- March 20, 1997
- Citation:
- NYLJ, page 27, col 4
- Referred Statutes:
- CPLR 3212(a)
- Summary:
- Plaintiff co-op tenant sought an injunction to close the garage located in the building
between 11 pm and 7 am because its elevator noise was extremely disruptive. The garage's
hours were 6 am to 2 am. The court took notice that apparently a prior tenant in the same
apartment had also filed a similar complaint. The court denied the injunction because the tenant
signed an agreement with the co-op corporation that he would take the premises on an "as is"
basis. The defendant argued that the garage elevator was in full operation at the time plaintiff
purchased the apartment, and the court held that the noise problem was thus one that could have
been discovered by plaintiff before purchase. The court noted that plaintiff had further been
living in the apartment for over two years before filing the complaint. The plaintiff claimed that
she was unable to sell the apartment due to the noise, but the court held that she could not
attribute the vagaries of the market place to the noise. Also, plaintiff failed to sue the garage
owner. The co-op corporation's cross-motion for summary judgment was denied but several of
plaintiff's claims were stricken, including punitive damages since they do not lie in a dispute
involving a private contract.
- Case Caption:
- Federal Deposit Insurance Corp. v 7 Brothers Construction Corp.
- Issues/Legal Principles:
- Receiver not entitled to rent paid by tenant to landlord's agent before receiver's
appointment, even if landlord didn't actually receive the rent at the time of appointment.
- Keywords:
- receivers
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Walter Schackman
- Date:
- March 20, 1997
- Citation:
- NYLJ, page 26, col 3
- Referred Statutes:
- none cited
- Summary:
- The receiver in a mortgage foreclosure action sought to hold defendant management
company in contempt for failure to turn over to him accrued rent money they had collected
before his appointment but not paid over to the owner until after his appointment. The lower
court denied the receiver's motion and the appellate court upheld, ruling that a receiver is not
entitled to accrued rent paid by a tenant to a managing agent before the receiver's appointment,
even though not actually received by the landlord at the time of the appointment.
- Case Caption:
- 298 15th Street Realty Corp. v. Fox
- Issues/Legal Principles:
- New owner entitled to judgment for rents where proper assignment made.
- Keywords:
- assignment of rents; substitution of owner
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Finkelstein
- Date:
- March 12, 1997
- Citation:
- NYLJ, page 30, col. 3
- Referred Statutes:
- CPLR 1018, 1021
- Summary:
- Landlord sold the building that was the subject of this nonpayment proceeding and his
successor moved to amend the petition and judgment to substitute himself as both the petitioner
and successor in interest. Tenant argued that the motion should be denied on several grounds:
(1) the assignment of rents was not between the petitioner and the proposed assignee; (2) there
was no landlord-tenant relationship between the current owner and respondent; (3) it appeared
that the original petitioner was not the proper party to initiate this proceeding; (4) ownership of
the premises were transferred more than 90 days ago; and (5) since an HP proceeding previously
brought by tenant against former landlord had been dismissed, this proceeding should have also
been dismissed. The Court held that substitution of landlord's successor normally requires proof
of an assignment of rents. The new owner must possess both actual title to the property and a
valid assignment of rents or a transfer of the right to rents from a property. The Court found
that the assignment of rents was not from the original landlord, but from a bank (the bank owned
the original petitioner's corporation) who was never involved in the proceeding. As a result,
the Court held that this assignment standing alone, would have supported tenant's first three
grounds for denial of the landlord's motion. However, the Court held that since the error with
regard to the assignment of rents was acknowledged and corrected, the tenant's first three
grounds for denial of the motion must fall. As to the tenant's fourth ground for dismissal, the
Court held that tenant was incorrect because "a successor-in-interest may be substituted as
petitioner even after entry of a final judgment granting possession" and that a 90 day rule is
inapplicable. Finally, as to the tenant's fifth ground for dismissal, the Court held that dismissal
of the HP action is irrelevant and does not form a basis to dismiss the instant proceeding.
- Case Caption:
- Committed Community Assoc. v. Croswell
- Issues/Legal Principles:
- Tenant entitled to abatement for period conditions last, not just for period landlord sues
for rent; Section 8 tenant's abatement based on contract rent, not just tenant's share of rent.
- Keywords:
- Section 8; warranty of habitability
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower court: Hon. Calender
- Date:
- March 12, 1997
- Citation:
- NYLJ, page 29, col 2
- Referred Statutes:
- 24 CFR 880; RPAPL 743; 42 USC 1437f(c)(1)
- Summary:
- Landlord brought a non-payment proceeding against a Section 8 tenant. Tenant's
subsidized rent payments were $218 per month, while the total monthly rent was $1,419. The
landlord sued to recover tenant's portion of the rent for which she was in arrears. Tenant
counterclaim for warranty of habitability from the inception of her tenancy in 1992. In a pre-
trial motion, the lower court ruled that the value of the apartment was to be measured based on
the contract rent rather than the tenant's share of the contract rent. The court found that $2,398
in rent was owed and the conditions in the apartment justified an abatement to tenant of $2,300,
leaving landlord a judgment of $98. The lower court also limited the tenant's time period for
recovery to only the months for which rent was not paid, not prior months. The Appellate Term
first held that tenants are entitled to counterclaim for breach of warranty of habitability for
monies paid under the lease; in other words, tenants can get an abatement for rents already paid
and not be limited to an abatement for just those months the landlord was suing for. However,
since the parties did not present this issue to the appellate court, the Court was compelled to
limit the abatement to the months the landlord sued for. The Court also ruled that the
diminution in the value of the apartment must be measured by reference to the contract rent, and
not tenant's portion, because the former represents the market value of the apartment. "The
application of a measure of damages based only on tenant's share of the rent would result in
landlord's recovery of rent in excess of the value of what he has provided tenant." The Court
did not accept tenant's argument that a tenant should be allowed to recover damages for breach
of the warranty of habitability in excess of his share of the rent. In this case, tenant's abatement
was $98 less than the amount of rent due. The Appellate Term indicated that if the abatement
were more than the rent owed, or more than the tenant's share, it would not be inclined to grant
the tenant an abatement in excess of her share of the rent, such as if the rent owed was $2300
and tenant was given a $2400 abatement. The Appellate Term seemed to balk at giving the
tenant the $100 beyond the amount owed. (The decision was conflicting and not sufficiently
articulated).
- Case Caption:
- DeCamp v. Dawson
- Issues/Legal Principles:
- Landlord sanctioned $1,000 for filing false affidavit of non-military service.
- Keywords:
- sanctions
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Callender
- Date:
- March 12, 1997
- Citation:
- NYLJ, page 30, col 4
- Referred Statutes:
- Uniform Rules of Trial Court 130
- Summary:
- Wife of the tenant brought a post-eviction order to show cause to be restored to
possession. The landlord then agreed to allow the wife to remain in the apartment. The matter
was set down for a sanctions hearing because the landlord signed a document, an affidavit of
non-military service, falsely stating that he spoke with the tenant on September 23, 1995. In
fact, the tenant was in prison on that date and the landlord was in Pennsylvania. The landlord
claimed that he signed the document but didn't read its contents when it was presented to him.
The court imposed $1,000 in sanctions and $100 in court costs.
- Case Caption:
- One Sickles Street Co. v. Vasquez
- Issues/Legal Principles:
- Military affidavit of service must be acceptable before court will grant possessory
judgment on default.
- Keywords:
- service of process
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Richard Braun
- Date:
- March 19, 1997
- Citation:
- NYLJ, page 26, col 3
- Referred Statutes:
- 50 U.S.C. Appendix 520(1), (2); N.Y. Military Law 303(3), 309(2), (3); 10 U.S.C.
1251(a); 32 U.S.C. 313(a); Military Law 21(1)
- Summary:
- Landlord applied for a default final judgment in nonpayment proceeding. A military
status affidavit is required in any type of action or proceeding both in State and Federal Courts
when a party is in default. Judgement may not be entered against a party that is in the military
service. The Court will appoint an attorney to protect his/her interests. Likewise, when a
tenant has totally defaulted, a landlord's application for a judgement of possession or money
judgment will not be signed by the clerk if a proper military status affidavit is not filed. "A
military status affidavit is not acceptable where it does not contain a sufficient factual basis for
an investigator's opinion that a respondent is not in the military service." The Court noted that
the scope of this requirement extends to members of the reserves as well as active members of
the military. The Court held that the landlord's investigator's affidavit was insufficient, as it
merely stated that the tenant was between 40-50 and was regularly employed. These facts do
not establish that the respondent was not in the military. The Court noted persons within the
respondent's age bracket can be members of the military. Moreover, a member of the reserves
may be regularly employed, however they are "particularly susceptible to having their lives
disrupted by a sudden call up to active duty." In addition, the Court stated that "resourceful
investigators have located a person at the Pentagon or personnel at the various branches of the
armed services who will inform a caller as to the military status of a person." Therefore, the
final judgment was signed, but the clerk was directed not to enter the judgment until the landlord
provides a "non-conclusory military status affidavit with the clerk of the court."
- Case Caption:
- Berman v. 300 West 108 Owners Group
- Issues/Legal Principles:
- Co-op tenant must post bond of 80% of maintenance owed to obtain injunction.
- Keywords:
- co-op warranty of habitability; liens
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Lebedeff
- Date:
- March 19, 1997
- Citation:
- NYLJ, page 25, col. 2
- Referred Statutes:
- CPLR 325 (c); (d)
- Summary:
- Plaintiff/shareholder is the proprietary lessee of residential shares in a cooperative
apartment building. Plaintiff suffers from asthma and has been unable to live in her apartment
due to persistent dampness caused by recurrent leaks in her unit. As a result, plaintiff ceased
paying maintenance fees, alleging that the Corporation breached the warranty of habitability.
The Corporation served plaintiffs with a Notice of Default and a Notice of Cancellation and
Termination which stated that the Corporation would terminate the proprietary lease and cancel
the plaintiff's shares in the corporation if plaintiffs did not cure their default of over $13,000 in
unpaid maintenance fees. The Corporation argued that the plaintiff's shares were personal
property whereby the Corporation had a lien on the plaintiff's apartment for the unpaid
maintenance. Plaintiffs moved for a preliminary injunction. Plaintiff argued that the
Corporation had impermissibly circumvented a law which provides that a landlord may not apply
a conditional limitation to terminate a tenancy when there is a nonpayment of rent or
maintenance because of a claimed breach of warranty of habitability. In its holding, the Court
did not reach the question as to whether a corporation may proceed against a residential
shareholder by utilizing "Lien Law" remedies. Instead, the Court granted the plaintiff's motion
for a preliminary injunction, but required that plaintiffs post an undertaking in the amount of
80% of the accrued maintenance as an injunction bond. As an aside, the Court encouraged the
plaintiff to commence an HP proceeding in Housing Court to compel the correction of violation
as "a less expensive and more expeditious path to secure that end than Supreme Court
litigation." The Court further noted that if that step were taken, the issues raised in the
Supreme Court action could be fully addressed by the Civil Court, either by summary
proceeding or pursuant to remand.
- Case Caption:
- Eight-17 Associates v. Geran
- Issues/Legal Principles:
- Tenant granted stay of eviction upon filing tenant's filing for bankruptcy despite tenant's
signing of stipulation that she would be evicted if the rent was not paid.
- Keywords:
- bankruptcy
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Arthur Birnbaum
- Date:
- March 19, 1997
- Citation:
- NYLJ, page 26, col. 4
- Referred Statutes:
- CPLR 2004 & 2001, Administrative Code 26-501, 502; 11 USC 362
- Summary:
- In this nonpayment proceeding, landlord requested and was granted a warrant of eviction
and pursuant to a stipulation, the warrant was stayed on condition of the tenant paying the
arrears. Shortly thereafter, the tenant filed for bankruptcy. As a result, landlord served a 72
hour notice. Tenant moved to vacate this notice because she was up to date with payments to
the Bankruptcy Trustee and that moreover, she is entitled to an automatic stay until her
confirmation in the Bankruptcy Court. Landlord asserted that the automatic bankruptcy stay is
inapplicable because final judgment was entered in the landlord's favor and a warrant was issued
prior to respondent's filing for bankruptcy. The Court reviewed the applicable law and held that
the bankruptcy stay was effective "[d]ue to the special circumstances of the rent-stabilized
tenancy, the tenant remaining in possession, the filing of the petition during such possession and
the policy that in rent-stabilized cases until after actual eviction the matter is deemed to be
pending even after the issuance of a warrant . . .."
- Case Caption:
- Dice v. Inwood Hills Condominium
- Issues/Legal Principles:
- General non-waiver clause in condo by-laws does not necessarily allow condo board to
enforce no pets provision against tenant owner.
- Keywords:
- pets; waiver
- Court:
- Appellate Division, Second Department
- Judge:
- lower court: Hon. Owen
- Date:
- March 21, 1997
- Citation:
- NYLJ, page 21, col. 5
- Referred Statutes:
- none cited
- Summary:
- Plaintiff, owner of a condo unit, brought an action regarding the Condominium Board's
attempt to prohibit his ownership of a pet. Defendant argued that the existence of a general non-
waiver clause in the condominum by laws meant that it was not precluded from enforcing a
provision of the by-laws. The Court ruled that a waiver is the voluntary abandonment of a
known right, and the existence of the non-waiver clause in the by-laws was not dispositive. The
case would have to be tried to determine if the Board waived a right to enforce the non-pet
clause against this plaintiff.
- Case Caption:
- Tracto Equipment Corp. v. White
- Issues/Legal Principles:
- Loft tenant entitled to Rent Stabilized renewal lease because tenant was covered by the
loft law.
- Keywords:
- Loft Law; Rent Stabilization; certificates of occupancy
- Court:
- Appellate Division, Second Department
- Judge:
- lower court: Hon. Mason
- Date:
- March 21, 1997
- Citation:
- NYLJ, page 36, col. 4
- Referred Statutes:
- Multiple Dwelling Law 281(1)
- Summary:
- Landlord brought a holdover proceeding after the expiration of tenant's lease. Tenant
claimed that he was entitled to a renewal lease and that his apartment was covered by the Rent
Stabilization Law. The trial court found that the building was an Interim Multiple Dwelling
(i.e., a loft), thereby the tenant was entitled to a renewal lease and the landlord appealed. The
Appellate Division agreed with the lower court's factual finding in that the lease between the
parties contemplated the conversion of commercial space to residential space on the condition
the conversion complied with the Rent Stabilization Code. The Appellate Court was faced with
the issue as to whether the enactment of the "Loft Law" which requires that "nonresidential
space shall be offered for residential use only after the obtaining of a residential certificate of
occupancy for such space." The Court held that although the landlord was correct in arguing that
the new law required a finding in its favor, the lease indicated the intention of the parties to
create a residential living area prior to the landlord obtaining a certificate of occupancy for the
area. Moreover, since the tenant converted the space pursuant to the lease agreement and paid
for many of the repairs and renovations itself, the Court held that the tenant was entitled to a
renewal lease.
New York Law Journal, decisions for the week of March 10-14, 1997 (8 cases)
- Case Caption:
- Spitzer v. Nancy J. Schneider, Ltd.
- Issues/Legal Principles:
- Landlord's non-renewal notice not deemed defective for naming individual officer as
tenant instead of the actual corporate tenant.
- Keywords:
- non-primary residency; corporate tenant; discovery
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Salvador Collazo
- Date:
- March 11, 1997
- Citation:
- NYLJ, page 25, col 2
- Referred Statutes:
- RSC 2524.2(b)
- Summary:
- The Appellate Court reversed the lower court's denial of the landlord's cross-motion to
conduct discovery on the tenant and to amend the caption to name Nancy J. Schneider as a
party. Nancy J. Schneider, Ltd, a New York corporation, leased a Rent Stabilized apartment
for the intended occupancy of its president, Nancy J. Schneider. The landlord served a non-
renewal notice on non-primary residency grounds and addressed it to Schneider, not her
corporation. The tenant moved to dismiss the petition because the notice failed to designate the
actual tenant and alleged insufficient facts. The Appellate Term reversed the lower court's
dismissal of the petition, holding that the tenant's argument "merely serves to elevate form over
substance." The Court also held that the appropriate test for a facially sufficient notice is
"reasonable in view of the attendant circumstances, and only in circumstances where such a
notice contains substantial and prejudicial misstatements will it be subject to strict construction
as a matter of equity." The Court held that putting the corporate name as opposed to
Schneider's individual name could not have materially misled or confused the corporate tenant
or its officers or hindered their defense preparation. The Court also found that naming Nancy
Schneider as a "Jane Doe" in the petition was an amendable defect. The Court granted the
landlord discovery of the tenant.
- Case Caption:
- Heywood Towers Inc. Valdes
- Issues/Legal Principles:
- Rent demand is defective for failure to specify the period for which the rent is sought.
- Keywords:
- rent demand
- Court:
- Civil Court, New York County
- Judge:
- Hon. Richard Braun
- Date:
- March 12, 1997
- Citation:
- NYLJ, page 27, col 1
- Referred Statutes:
- CPLR 3211(a) & 3213(a); RPAPL 711(2)
- Summary:
- In this nonpayment proceeding, the tenant moved to dismiss the petition on grounds of
defective notice. The apartment was subject to HUD regulations. The ten day rent demand
sought $4,700 due to "No Certification," and $2,330 due to HUD "excesses." The tenant
argued that she recertified every year and did not know what the excesses were about. The
Court dismissed the petition because of the landlord's failure to set forth with specificity the
period for which the rent was sought, especially in light of letters sent to the tenant's attorney
which alleged a different amount of rent due.
- Case Caption:
- Washington v. Gulbreath
- Issues/Legal Principles:
- Rent demand valid even if miscellaneous charges are not itemized, so long as the rent
itself is itemized.
- Keywords:
- rent demand
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower court: Hon. Callender
- Date:
- March 12, 1997
- Citation:
- NYLJ, page 29, col. 1
- Referred Statutes:
- RPAPL 711
- Summary:
- Tenant entered into a stipulation to pay six months of rent and miscellaneous charges of
$1,343.78. When tenant defaulted, landlord moved for a final judgment. Tenant retained
counsel who cross-moved to vacate the stipulation on grounds that the rent demand was defective
for failing to itemize the miscellaneous charges. The lower court vacated the stipulation and
dismissed the petition. The Appellate Term reversed holding that the failure to itemize
miscellaneous charges was not a major issue since the notice did itemize the rent owed and the
rent is what is important.
- Case Caption:
- Kent v. Bedford Apartments
- Issues/Legal Principles:
- Roommate bound by stipulation which gave her a rent stabilized lease but also waived
her rights to challenge rent overcharges
- Keywords:
- overcharges
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Charles Ramos
- Date:
- March 13, 1997
- Citation:
- NYLJ, page 26, col 1
- Referred Statutes:
- RSC 2520.13
- Summary:
- The plaintiff had previously entered into a stipulation of settlement in a holdover
proceeding against the landlord, who was the defendant in this Supreme Court action. The
plaintiff was a roommate of the deceased tenant of record. In the stipulation, the plaintiff was
given a rent stabilized lease to the apartment, but waived any right to challenge the rent.
Although the Code prohibits a waiver under any and all circumstances of a tenant's rights under
the Rent Stabilization Law, including waiver of an unlawful rent, the court below ruled that
plaintiff was not a rent stabilized tenant at the time she entered into the stipulation. Therefore,
she had no rent stabilization rights to waive. The lower court granted the landlord's motion to
dismiss plaintiff's complaint for rent overcharges, and the Appellate Division upheld. The Court
ruled that plaintiff had a choice either to obtain a judicial declaration of her status and the legal
rent, or enter into the stipulation which conferred rent stabilization status upon her, albeit in
consideration of waiving her rights to challenge the rent.
- Case Caption:
- Goldman v. Zaccaro
- Issues/Legal Principles:
- Nonprimary residence proceeding dismissed because termination notice did not contain
sufficient facts.
- Keywords:
- nonprimary residence
- Court:
- Civil Court, New York County
- Judge:
- Hon. Marilyn Schafer
- Date:
- March 10, 1997
- Citation:
- NYLJ, page 27, col 1
- Referred Statutes:
- New York City Rent and Eviction Regulations [9 NYCRR] 2204.3[b]
- Summary:
- Landlord brought holdover proceeding to recover possession of a rent-controlled
apartment, alleging that the tenant did not occupy the premises as his primary residence.
Landlord had no knowledge of any other apartment where the tenant may be residing,
nonetheless, landlord made a motion requesting the Court's permission to depose the tenant.
Tenant cross moved to dismiss the petition, alleging that the 30-day termination notice failed to
state sufficient facts to support a claim of nonprimary residence. The Court held that in
nonprimary residence proceedings, "the notice of termination must state not only the ground for
eviction but also the facts necessary to establish the existence of such a ground." Landlord
argued that the predicate notices were adequate because they stated that the tenant has not been
seen at the subject premises for quite some time. The Court disagreed with the landlord,
holding that the predicate notices were "devoid of specific facts or particularized allegations" and
dismissed the petition. In deciding these motions, the Court seemed to take notice of the fact
that it was undisputed that Mr. Zaccaro occupied the subject premises, and had paid rent since
the late 1970's. Moreover, since the landlord purchased the building, the conditions drastically
deteriorated (ie: no security; no mailboxes; heat and hot water are sporadic), so that only two
of the twenty-three residential rooms were occupied.
- Case Caption:
- 298 15th Street Realty Corp. v. Fox
- Issues/Legal Principles:
- New owner entitled to judgment for rents where proper assignment made.
- Keywords:
- assignment of rents; substitution of owner
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Finkelstein
- Date:
- March 12, 1997
- Citation:
- NYLJ, page 30, col. 3
- Referred Statutes:
- CPLR 1018, 1021
- Summary:
- Landlord sold the building that was the subject of this nonpayment proceeding and his
successor moved to amend the petition and judgment to substitute himself as both the petitioner
and successor in interest. Tenant argued that the motion should be denied on several grounds:
(1) the assignment of rents was not between the petitioner and the proposed assignee; (2) there
was no landlord-tenant relationship between the current owner and respondent; (3) it appeared
that the original petitioner was not the proper party to initiate this proceeding; (4) ownership of
the premises were transferred more than 90 days ago; and (5) since an HP proceeding previously
brought by tenant against former landlord had been dismissed, this proceeding should have also
been dismissed. The Court held that substitution of landlord's successor normally requires proof
of an assignment of rents. The new owner must possess both actual title to the property and a
valid assignment of rents or a transfer of the right to rents from a property. The Court found
that the assignment of rents was not from the original landlord, but from a bank (the bank owned
the original petitioner's corporation) who was never involved in the proceeding. As a result,
the Court held that this assignment standing alone, would have supported tenant's first three
grounds for denial of the landlord's motion. However, the Court held that since the error with
regard to the assignment of rents was acknowledged and corrected, the tenant's first three
grounds for denial of the motion must fall. As to the tenant's fourth ground for dismissal, the
Court held that tenant was incorrect because "a successor-in-interest may be substituted as
petitioner even after entry of a final judgment granting possession" and that a 90 day rule is
inapplicable. Finally, as to the tenant's fifth ground for dismissal, the Court held that dismissal
of the HP action is irrelevant and does not form a basis to dismiss the instant proceeding.
- Case Caption:
- Committed Community Assoc. v. Croswell
- Issues/Legal Principles:
- Tenant entitled to abatement for period conditions last, not just for period landlord sues
for rent; Section 8 tenant's abatement based on contract rent, not just tenant's share of rent.
- Keywords:
- Section 8; warranty of habitability
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower court: Hon. Calender
- Date:
- March 12, 1997
- Citation:
- NYLJ, page 29, col 2
- Referred Statutes:
- 24 CFR 880; RPAPL 743; 42 USC 1437f(c)(1)
- Summary:
- Landlord brought a non-payment proceeding against a Section 8 tenant. Tenant's
subsidized rent payments were $218 per month, while the total monthly rent was $1,419. The
landlord sued to recover tenant's portion of the rent for which she was in arrears. Tenant
counterclaim for warranty of habitability from the inception of her tenancy in 1992. In a pre-
trial motion, the lower court ruled that the value of the apartment was to be measured based on
the contract rent rather than the tenant's share of the contract rent. The court found that $2,398
in rent was owed and the conditions in the apartment justified an abatement to tenant of $2,300,
leaving landlord a judgment of $98. The lower court also limited the tenant's time period for
recovery to only the months for which rent was not paid, not prior months. The Appellate Term
first held that tenants are entitled to counterclaim for breach of warranty of habitability for
monies paid under the lease; in other words, tenants can get an abatement for rents already paid
and not be limited to an abatement for just those months the landlord was suing for. However,
since the parties did not present this issue to the appellate court, the Court was compelled to
limit the abatement to the months the landlord sued for. The Court also ruled that the
diminution in the value of the apartment must be measured by reference to the contract rent, and
not tenant's portion, because the former represents the market value of the apartment. "The
application of a measure of damages based only on tenant's share of the rent would result in
landlord's recovery of rent in excess of the value of what he has provided tenant." The Court
did not accept tenant's argument that a tenant should be allowed to recover damages for breach
of the warranty of habitability in excess of his share of the rent. In this case, tenant's abatement
was $98 less than the amount of rent due. The Appellate Term indicated that if the abatement
were more than the rent owed, or more than the tenant's share, it would not be inclined to grant
the tenant an abatement in excess of her share of the rent, such as if the rent owed was $2300
and tenant was given a $2400 abatement. The Appellate Term seemed to balk at giving the
tenant the $100 beyond the amount owed. (The decision was conflicting and not sufficiently
articulated).
- Case Caption:
- DeCamp v. Dawson
- Issues/Legal Principles:
- Landlord sanctioned $1,000 for filing false affidavit of non-military service.
- Keywords:
- sanctions
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Callender
- Date:
- March 12, 1997
- Citation:
- NYLJ, page 30, col 4
- Referred Statutes:
- Uniform Rules of Trial Court 130
- Summary:
- Wife of the tenant brought a post-eviction order to show cause to be restored to
possession. The landlord then agreed to allow the wife to remain in the apartment. The matter
was set down for a sanctions hearing because the landlord signed a document, an affidavit of
non-military service, falsely stating that he spoke with the tenant on September 23, 1995. In
fact, the tenant was in prison on that date and the landlord was in Pennsylvania. The landlord
claimed that he signed the document but didn't read its contents when it was presented to him.
The court imposed $1,000 in sanctions and $100 in court costs.
New York Law Journal, decisions for the week of March 3-7, 1997 (9 cases)
- Case Caption:
- 102-116 Eighth Ave. Assoc. v. Tapia
- Issues/Legal Principles:
- Trial needed to determine if tenant's unlawful sublet is non-curable due to tenant's
charging excessive rent to subtenant.
- Keywords:
- overcharge; subletting
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Salvador Collazo
- Date:
- March 3, 1997
- Citation:
- NYLJ, page 27, col 3
- Referred Statutes:
- RPAPL 753(4)
- Summary:
- The Appellate Court reversed the lower court's ruling of summary judgment in
landlord's favor because there were too many issues of fact that could not be determined on
papers alone. The lower court found that as a matter of law that the tenant had sublet the
premises without the landlord's consent and that the lease violation was not curable because the
tenant charged rent to the occupant in excess of the legal regulated rent. The various questions
of fact that necessitated a trial included whether the occupant, who originally entered the
premises as a roommate of a previous subtenant, was in fact a sublessee, and whether the
landlord knew about the occupant's occupancy when the landlord accepted rent from the tenant
(which would be a known waiver of a violation).
- Case Caption:
- Capital Holding Corp. v. Ward
- Issues/Legal Principles:
- Late tender of rent by 2 days does not justify forfeiting 30 year rent controlled
tenancy.
- Keywords:
- stipulations
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Anne Katz
- Date:
- March 3, 1997
- Citation:
- NYLJ, page 27, col 3
- Referred Statutes:
- none cited
- Summary:
- In this nonpayment proceeding, the parties reached a settlement whereby the tenant
agreed to pay the arrears by a specified date, including monthly installments for the landlord's
attorney's fees. Two days after the stipulated date, the tenant tendered a certified check for the
lump sum due to the landlord. However, the landlord rejected the tender as untimely and sought
to execute the warrant of eviction. The lower court held in favor of the landlord and the
Appellate Term unanimously reversed, stating that the violation was "de minimus"and should
not result in the forfeiture of a 30 year, rent controlled tenancy.
- Notes:
- Judge Anne Katz is known for her harsh application of due dates of rents owed.
Hopefully, this case will prompt her to be more flexible and look at the entire circumstances,
such as here where a 30 year rent controlled tenancy was almost lost by a mere 2 days. There
are other means to penalize a tenant for lateness, such as costs or attorney's fees for the tenant's
2 day delay. One can imagine the terror, fear and hassle this tenant went through by having to
appeal this decision.
- Case Caption:
- 240 Associates v. Theodor
- Issues/Legal Principles:
- Landlord's refusal of tenant's sublet request deemed unreasonable because tenant could
return to apartment at the end of the sublease term.
- Keywords:
- sublet
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Marian C. Doherty
- Date:
- March 3, 1997
- Citation:
- NYLJ, page 28, col. 5
- Referred Statutes:
- Real Property Law s 226-b[2][a]; Rent Stabilization Code s 2525.6[c]; CPLR s
3212[b]
- Summary:
- Tenant attempted to sublet her apartment when she was offered out of state employment.
Landlord refused this request, stating that tenant "does not intend to return to the apartment upon
conclusion of the sublet period." The lower court held that the landlord's refusal was
"unreasonable as a matter of law" and granted summary judgment in favor of the tenant. In
reaching its conclusion, the Court noted that the employment was "at will" and therefore the
tenant remained free to return to New York within 2 years (ie: at the end of the sublet term).
The Appellate Term upheld this decision.
- Case Caption:
- Stanford Realty Assoc. v. Markell
- Issues/Legal Principles:
- Wife who returned to apartment is not entitled to succession rights as a matter of law;
trial is necessary to determine wife's primary residency.
- Keywords:
- succession rights; sublet; primary residency
- Court:
- Appellate Term: First Department
- Judge:
- lower court: Hon. Louis York
- Date:
- March 4, 1997
- Citation:
- NYLJ, page 25, col 2
- Referred Statutes:
- Real Property Law 226-b and 235-f
- Summary:
- Landlord brought a holdover alleging that the prime tenant vacated the apartment in
December, 1993 and installed DeSouza in possession. DeSouza was the wife of Markell, the
prime tenant. The lower court dismissed the petition on grounds that as a matter of law a
proceeding could not be maintained against DeSouza because, as the spouse of the prime tenant,
she was a lawful occupant of the apartment. The Appellate Term reversed, noting that the
couple maintained separate residences during their marriage, they never lived together in the
apartment, and DeSouza moved in after she had previously permanently vacated the apartment.
DeSouza alleged that during her marriage the apartment remained her primary residency. The
Court noted that succession rights contemplates "concurrent occupancy" with the prime tenant,
and that her primary residency is an issue that must be heard at trial, and that the case should
not have been dismissed without a trial.
- Case Caption:
- NYC DHPD v. 1805-1815 Univ. Ave. Assoc.
- Issues/Legal Principles:
- Owner who transferred property after falsely certifying that violations were corrected
is still liable for civil penalties.
- Keywords:
- HP proceeding; civil penalties
- Court:
- Civil Housing Court, Bronx County
- Judge:
- Hon. Anthony Fiorella
- Date:
- March 5, 1997
- Citation:
- NYLJ, page 27, col 3
- Referred Statutes:
- Housing Maintenance Code 27-2116(b) & 27-2004(a)(45) & 27-2005(b); Multiple
Dwelling Law 4(44); CPLR 214
- Summary:
- HPD sought civil penalties against the respondent-owner for falsely certifying that
violations were corrected when they were not. Respondent moved to dismiss the proceeding on
grounds that 1805-1815 University Ave. Assoc. is not the actual owner of the premises because
the property was transferred about two months after HPD made its motion for civil penalties.
The court, however, noted that the false certifications occurred in 1995 when the respondent did
own the property. The court refused to dismiss HPD's motion on this ground.
- Case Caption:
- 757 East 169th Street HDFC v. Haney
- Issues/Legal Principles:
- Grandson of deceased tenant of record who never purchased the apartment when it
converted into a low income co-operative cannot assert succession rights.
- Keywords:
- succession rights; licensee
- Court:
- Civil Housing Court, Bronx County
- Judge:
- Hon. Heymann
- Date:
- March 5, 1997
- Citation:
- NYLJ, page 27, col 4
- Referred Statutes:
- General Business Law 352 eeee; Article 11 Private Housing Finance Law
- Summary:
- Landlord brought a licensee holdover against the grandson of the deceased tenant of
record. The building was converted to low income co-op units, but the tenant of record never
purchased his unit and remained a month-to-month tenant until his death. The grandson stated
that he lived with his grandfather for thirty years. He moved to set aside the default judgment
and dismiss the petition for its failure to set forth the cause and basis of eviction. The tenant
cited to 512 East 11th Street HDFC v. Grimmet, 581 NYS 2d 24 (App. Div. 1st Dept. 1992)
for the principle that a reason or cause (such as nuisance, for example) must be stated before
an eviction can be had. However, the court noted that Grimmet was the tenant of record, unlike
the grandson in this case, and even Grimmet held that Rent Stabilization is inapplicable to co-op
conversions. Therefore, the grandson has no succession rights.
- Case Caption:
- King v. Sinclair
- Issues/Legal Principles:
- Landlord's rent demand to tenant was basis for court to recognize the latter's tenancy
status and restore him to his rented room in apartment.
- Keywords:
- lock-out
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Finkelstein
- Date:
- March 5, 1997
- Citation:
- NYLJ, page 29, col 1
- Referred Statutes:
- none cited
- Summary:
- Landlord and tenant both brought orders to show causes alleging a lock-out. The
landlord is a resident of the building and the same apartment as tenant. The tenant claimed the
landlord locked him out, he brought a proceeding, she didn't appear in court, and after a hearing
upon landlord's default, he was awarded restoration to the room he leased from landlord. The
court also had ordered that he be given a key to the building, that the door to his room be put
back and his possessions returned. Apparently, the landlord refused to comply with the court
order so the tenant restored the case to the calendar for a contempt hearing. Neither side
appeared for that show cause. The landlord alleges in her show cause that the tenant locked her
out of the building, claiming that the tenant changed the building entrance door and she is unable
to enter her house. In response to the tenant's show cause, the landlord stated that she was
never served it and that the tenant is not her tenant at all, that he's just a friend of a prior tenant,
and is just shaking her down for money. Both parties claimed that they have been threatened
by each other and their respective friends. The landlord procured an order of protection against
the tenant. The court found that there was little documentary evidence to indicate that the tenant
was ever a tenant in the building, except a notice sent by the landlord to him demanding the
rent. Based on the notice the court restored him to possession, and issued other relief pertaining
to the parties' behavior toward each other.
- Case Caption:
- Riverbend Housing Co., Inc. v. Stephenson
- Issues/Legal Principles:
- Co-op can collect equity increases or assessments as "rent" in a summary
proceeding.
- Keywords:
- coops; equity increase; capital improvements
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Marilyn Schafer
- Date:
- March 4, 1997
- Citation:
- NYLJ, page 25, col 1
- Referred Statutes:
- RPAPL 711(2)
- Summary:
- Landlord brought a nonpayment proceeding as a result of tenant/shareholder's failure to
pay the "equity increase" (for necessary capital improvements) that was approved by the
cooperators of the tenant's Mitchell Lama housing company and subsequently authorized by the
DHPD. The lower court dismissed the proceeding on grounds that the equity increase did not
constitute rent or additional rent as required by law in nonpayment proceedings. The Appellate
Term reversed, holding that nonpayment of an equity increase constitutes rent and a landlord is
entitled to invoke its possessory remedy for default in payment. In reaching this conclusion, the
Court looked to the governing occupancy agreement which requires the tenant/shareholders to
pay as annual rent, their proportionate shares of the cash requirements of the company. Cash
requirements were broadly defined as including all reasonable and necessary expenses growing
out of or connected with the ownership, maintenance and operation of the building. Moreover,
the Court noted that it was clear from the record that if the equity increase had not been
approved, the cooperative board would have sought a carrying charge increase (which would
constitute additional rent) in order to pay for the necessary improvements. In sum, the appellate
court ruled that the landlord did not have to collect an equity increase in a plenary action, but
could recover this money in a summary proceeding.
- Case Caption:
- 24 Realty Corp. v. Urena
- Issues/Legal Principles:
- Tenant who vacates apartment retains right to challenge a court stipulation made before
the tenant had moved.
- Keywords:
- overcharge
- Court:
- Appellate Term, 2nd & 11th Judicial District
- Judge:
- lower court: Hon. Harriet George
- Date:
- March 7, 1997
- Citation:
- NYLJ, page 31, col 2
- Referred Statutes:
- CPLR 5015
- Summary:
- Tenant defaulted on a stipulation in a non-payment proceeding and moved out of the
apartment after the warrant issued and a 72 hour notice was served. Thereafter, tenant moved
to vacate the stipulation on grounds that the landlord illegally charged a high rent and that the
landlord, a corporation, improperly commenced the proceeding without an attorney. The lower
court denied tenant's motion, stating that the tenant lacked standing since she was out of
possession of the apartment. The Appellate Term reversed and ruled that the court retains
jurisdiction to grant relief from its judgments even after the tenant is no longer in possession
pursuant to CPLR 5015. The Court also ruled that the tenant's relief should have been granted
since the landlord, as a corporation, should have had an attorney.
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