Housing Court Decisions May 1998
edited by Colleen F. McGuire, Esq. and Linda Rzesniowiecki, Esq.
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New York Law Journal, decisions for the week of May 25-29, 1998
(8 cases)
- Case Caption:
- Katz v. Gelman
- Issues/Legal Principles:
- Nonprimary residence proceeding is dismissed against tenant who
returned to his loft after spending three years in residential facilities
for treatment of depression and substance abuse.
- Keywords:
- nonprimary residence; primary residence; interim multiple dwelling
- Court:
- Appellate Term, First Department
- Judge:
- lower court judge: Hon. Anne Katz
- Date:
- Tuesday May 26, 1998
- Citation:
- NYLJ, page 27, col 4
- Referred Statutes:
- none cited
- Summary:
- Landlord brought a nonprimary residence holdover proceeding against a
tenant protected by the Loft Law. The housing court granted the landlord a
judgment of possession, but the Appellate Term, First Department reversed
and dismissed the holdover proceeding. The tenant began occupying the loft
in 1978. From November 1993 through August 1996 tenant was
institutionalized in a residential facility for treatment of depression and
substance abuse. Tenant then returned to live in the loft and has not
suffered a relapse. The trial court found that tenant had given up the loft
as his primary residence during the period he was institutionalized. The
Appellate Court disagreed noting that the very purpose of the residential
facility was to prepare the patient for independent living and that the
tenant had in fact made a successful return to the loft. The Appellate
Court said that the tenant's absence was transitory, tenant had not
abandoned the premises (he kept his possessions at the premises) or
established a new residence and tenant had in fact resumed occupancy.
Tenant could not maintain "an ongoing, substantial, physical nexus with the
controlled premises for actual living purposes" because of his medical
condition. Under these circumstances, the tenant's absence from the
premises is excusable.
- Case Caption:
- Lin v. Rivas
- Issues/Legal Principles:
- Failure to allege that the premises is a multiple dwelling is an
amendable defect, so long as the multiple dwelling registration statement
was actually on file at the time the petition was commenced.
- Keywords:
- amendment to petition; multiple dwelling registration
- Court:
- Appellate Term, Second Department
- Judge:
- lower court judge: Hon. Harriet George
- Date:
- Tuesday May 26, 1998
- Citation:
- NYLJ, page 30, col 5
- Referred Statutes:
- none cited
- Summary:
- Landlord brought a holdover (eviction) proceeding against tenant. In
its first petition, landlord neglected to allege that the premises is a
multiple dwelling and neglected to set forth the required registration
information. Landlord then made a motion asking the Court for permission to
amend the petition to include the multiple dwelling registration ("MDR")
information. The court granted the motion and the landlord amended the
petition. Ultimately the court granted the landlord's petition and evicted
tenant.
Tenant appealed, arguing that the lower court should not have given landlord
permission to amend the petition. The Appellate Court upheld the lower
court's decision, saying that it was proper to allow the amendment of the
petition in this case, because an MDR was actually on file at the time the
petition was brought.
- Case Caption:
- Pledge v. Langham Mansions
- Issues/Legal Principles:
- DHCR's order of deregulation is vacated in a case where tenant promptly
responded to DHCR's high income / high rent deregulation order by filing a
PAR and providing DHCR with a certification that the household income is
under the threshold.
- Keywords:
- high income / high rent deregulation
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Gangel-Jacob
- Date:
- Wednesday May 27, 1998
- Citation:
- NYLJ, page 25, col 6
- Referred Statutes:
- RSL Section 26-504; NYS Tax Law Section 171-b(3)(b)
- Summary:
- Tenant failed to respond to the income certification form and petition
for deregulation which the owner filed with the Division of Housing and
Community Renewal of the State of New York ("DHCR"). Due to tenant's
failure to respond, DHCR issued an Order deregulating the rent. Tenant
filed a timely Petition for Administrative Review ("PAR") including a
certification that the household income was under the threshold. The DHCR
denied the PAR finding tenant's excuse for not responding inadequate. The
DHCR did not even consider the tenant's certification that their income was
under the threshold. The tenant then challenged the DHCR's ruling by filing
an Article 78 proceeding in the Supreme Court.
The Court ruled for tenant, finding that the DHCR's determination is
arbitrary. The Court held that under these circumstances, where the tenant
timely responds to the DHCR's order of deregulation (by an appeal: PAR) with
a certification that the household income is below the threshold, and the
DHCR simply has to seek verification of the tenant's income from state tax
authorities, it was arbitrary for the DHCR to deregulate the tenant's rent
stabilized apartment.
- Case Caption:
- Adee Tower Apartments, Inc. v. Levy
- Issues/Legal Principles:
- Landlord waived its right to enforce no-pet clause against tenant by
not objecting within three months of discovering that tenant was keeping a
pet.
- Keywords:
- no-pet clause; holdover, substantial obligation of tenancy
- Court:
- Housing Court, Bronx County
- Judge:
- Hon. Anthony Fiorella
- Date:
- Wednesday May 27, 1998
- Citation:
- NYLJ, page 27, col 1
- Referred Statutes:
- NYC Administrative Code Section 27-2009; 9 NYCRR Section 1727-5.3
- Summary:
- Landlord, a cooperative corporation, brought an eviction proceeding
against tenant / shareholder for harboring a pet (a cat) in violation of the
no-pet clause of the proprietary lease. The law provides that a landlord
must bring an eviction proceeding within three months of discovering the pet
in tenant's apartment, or the right to enforce the no-pet clause in the
lease is waived. In this case, the tenant had the cat for seven years
before landlord served a termination notice and, after trial, the Court
determined that the super and the managing agent knew about the cat for
years. The Court held that the landlord waived its right to object to the
cat, by not objecting in a timely fashion. The Court went a step further
and said that the landlord had failed to show that the harboring of a cat
was a substantial violation of the cooperative lease.
- Case Caption:
- River Terrace Apartments, Inc. v. Robinson
- Issues/Legal Principles:
- The Court granted a 50% rent abatement to tenants due to loud noise and
vibrations from adjacent laundry room.
- Keywords:
- warranty of habitability; nonpayment; rent abatement; noise; vibrations
- Court:
- Civil Court, Bronx County
- Judge:
- Hon. Spears
- Date:
- Wednesday May 27, 1998
- Citation:
- NYLJ, page 27, col 3
- Referred Statutes:
- New York City Building Code (the relevant sections were not specified
in the court's opinion)
- Summary:
- After tenant-shareholder purchased a cooperative apartment adjacent to
the building's laundry room, the landlord (cooperative corporation) replaced
the machines. Tenant immediately complained to the Landlord about excessive
noise and vibrations. Landlord's engineer found that the noise in tenant's
apartment was 25-30 decibels above the level recommended by the NYC Building
Code for living spaces. Landlord attempted to lessen the noise by
installing padding under the machines, with no success. When the
tenant-shareholder withheld rent, the landlord brought a nonpayment
proceeding. Landlord admitted that the machines were noisy, but said that
as a co-op its duty was to the majority of the shareholders. Landlord
agreed that tenant's sole recourse was to take action calculated to replace
the Board of Directors or to put the issue to a shareholders vote. The
Court said that the co-operative corporation is a landlord and a landlord is
obligated to keep the premises habitable. The landlord cannot breach the
warranty of habitability owed to these tenants in order to benefit other
residents. The Court found that tenants are entitled to a 50% rent
abatement.
- Case Caption:
- Clifton Court v. Williams
- Issues/Legal Principles:
- Court refused to evict tenants after police recovered a small quantity
of illegal drugs from tenant's apartment on one single occasion because this
does not prove that the premises were used in the illegal drug trade.
- Keywords:
- holdover; illegal trade or business; illegal drugs; illegal use
- Court:
- Appellate Term, Second Department
- Judge:
- lower court judge: Gus Reichbach
- Date:
- May 27, 1998
- Citation:
- NYLJ, page 28, col 6
- Referred Statutes:
- RPAPL Section 711(5) and 715(1)
- Summary:
- The police executed a search warrant in tenant's rent-stabilized
apartment which revealed five dozen crack vials and drug paraphernalia. The
Landlord brought a holdover proceeding alleging that the premises were being
used to operate an illegal business or trade. The trial court held that
Landlord's evidence consisted only of an amount of drugs that could be
carried in a couple of pockets and that the Landlord had not proven that the
presence of certain persons in tenant's apartment was for a commercial
purpose (the sale of illegal drugs) rather than a social purpose. The trial
court dismissed the holdover petition and the Appellate Court affirmed.
- Case Caption:
- 247 Associates v. Rodriguez
- Issues/Legal Principles:
- Nonprimary residence proceeding is dismissed against loft tenant who
sublet her loft to take care of her sick mother in Puerto Rico.
- Keywords:
- nonprimary residence; primary residence; interim multiple dwelling
- Court:
- Appellate Term, First Department
- Judge:
- lower court judge: Hon. Arthur Birnbaum
- Date:
- Thursday May 28, 1998
- Citation:
- NYLJ, page 28, col 3
- Referred Statutes:
- (none cited)
- Summary:
- The trial court evicted tenant on grounds of non-primary residence and
the Appellate Court reversed. Tenant sublet her loft for 23 months, with
landlord's consent, in order to care for her sick mother in Puerto Rico.
When she returned, her subtenant refused to vacate. She commenced a
holdover proceeding against the subtenant who eventually vacated. While the
tenant's proceeding against subtenant was pending, the Landlord brought a
nonprimary residence proceeding against tenant. The Appellate Court held
that the proceeding against tenant should be dismissed, because tenant had
not established another permanent residence during her absence and tried to
re-occupy her loft after the sublease expired.
- Case Caption:
- Koppelman v. Sullivan
- Issues/Legal Principles:
- The Court limits the defenses which may be presented by an authorized
occupant (illegal subtenant) in an eviction proceeding brought against the
tenant.
- Keywords:
- illegal sublet; holdover proceeding
- Court:
- Appellate Term, First Department
- Judge:
- lower court judge: Hon. Ruben A. Martino
- Date:
- Thursday May 28, 1998
- Citation:
- NYLJ, page 28, col 4
- Referred Statutes:
- RPL Section 226-b
- Summary:
- The trial court dismissed the holdover proceeding against tenant and
the Appellate Court reversed. The evidence at trial showed that tenant,
without the Landlord's consent, sublet his apartment for an open-ended
period or assigned his apartment. The Appellate Court said that the
unauthorized occupant did not have the right to present a defense based upon
a "perceived variance" between the allegations in the petition and the proof
presented at trial.
New York Law Journal, decisions for the week of May 18-22, 1998
(5 cases)
- Case Caption:
- Fountainbleau Estates v. Aucock
- Issues/Legal Principles:
- Appointment of guardian ad litem ruled necessary at tenant's nuisance trial.
- Keywords:
- guardian ad litem; nuisance
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. James Grayshaw
- Date:
- May 20, 1998
- Citation:
- NYLJ, page 25, col 1
- Referred Statutes:
- CPLR 1201
- Summary:
- Landlord brought a holdover proceeding against the rent controlled tenant on grounds
that she had accumulated waste and debris (i.e., committing a nuisance). The lower court had
appointed a guardian ad litem, but the guardian withdrew because of the tenant's alleged failure
to cooperate. The court went ahead with the trial without tenant having benefit of a guardian.
The sole witness for the landlord was the managing agent. A judgment of possession was
granted against the tenant. After trial a guardian was appointed who tried to vacate the warrant
but the lower court refused because the conditions still existed. The appeal was delayed by an
Article 78 guardianship proceeding which did in fact result in the appointment of a special
guardian (and not just a guardian ad litem whose purpose is limited to the court proceedings).
The appeal was not heard until six years after the trial. The Appellate Term vacated the warrant
on grounds that the tenant did not have benefit of a guardian at trial, and remanded the matter
back to Housing Court to assess the present conditions of the apartment.
- Case Caption:
- Stahl Broadway Co. v. Haskins
- Issues/Legal Principles:
- Landlord denied a possessory judgment in a nonpayment proceeding based on rent
arrears that were discharged in a bankruptcy proceeding before the nonpayment proceeding
began.
- Keywords:
- bankruptcy; nonpayment; possessory judgment
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Marcy Friedman
- Date:
- May 20, 1998
- Citation:
- NYLJ, page 27, col 3
- Referred Statutes:
- RPAPL 751(1) & 711(4); 11 USC 365;
- Summary:
- Landlord brought a nonpayment proceeding against tenant, but her court appointed
guardian moved to dismiss on grounds that all the arrears at issue were discharged in a
bankruptcy proceeding filed on the tenant's behalf. The arrears sought by the landlord in
housing court accrued prior to the filing of the bankruptcy proceeding and were discharged on
April 7, 1997, which relieved tenant of the debt. The landlord, however, argued that while the
discharge of the rent debt prevents landlord from obtaining a money judgment against the tenant,
the discharge does not prevent landlord from obtaining a possessory judgment and warrant of
eviction based on the arrears. The tenant's attorney argued that a nonpayment proceeding is not
the proper means for landlord to obtain the remedy landlord seeks. The court observed that a
nonpayment proceeding is not a proceeding for possession only. In a nonpayment proceeding
a tenant can pay the rent and avoid an eviction. Although this landlord claims that it seeks only
a possessory judgment, the landlord did in fact serve a demand for the rent arrears even though
they were already extinguished in the bankruptcy proceeding. The issue before the court was
whether a landlord can commence a proceeding for a judgment of possession based solely on
rent arrears which were discharged and not now owed. The court held that the landlord could
not. The court held that the landlord could attempt to bring a holdover based on the tenant's
breach of the lease by not paying the rent, but the judge offered no opinion as to whether such
a holdover would succeed in obtaining the remedy the landlord sought: a possessory judgment
and the eviction of the tenant.
- Case Caption:
- Bellport-Brookhaven Historical Society, Inc. v. Evans
- Issues/Legal Principles:
- Caretaker of property who was fired after complaining that landlord failed to provide
protective equipment for lead paid is not entitled to a stay of an eviction proceeding pending his
complaint to the U.S. Department of Labor for wrongful discharge.
- Keywords:
- caretaker; retaliation
- Court:
- District Court, Suffolk County
- Judge:
- Hon. Santorelli
- Date:
- May 20, 1998
- Citation:
- NYLJ, page 31, col 2
- Referred Statutes:
- 29 USC 651; CPLR 2201; 22 NYCRR 130-1.1-a
- Summary:
- The respondent Evans was a caretaker of the property from 1990 to 1996 in exchange
for living on the property rent-free. On November 30, 1996, the parties entered into a written
agreement which allowed Evans to reside rent free in exchange for his caretaker services. In
January, 1997, Evans states that he fell ill and in June was diagnosed with lead poisoning which
he claims he contracted as a result of scraping paint from the interiors of certain buildings on
the premises. In September, he asked the landlord to provide him with federally required
protective equipment. Four days later, the landlord notified him that he was fired. Thereafter
the landlord brought a holdover proceeding to evict Evans. Later Evans filed a complaint with
the U.S. Department of Labor alleging that the landlord fired him in retaliation for his request
for proper equipment. Evans asked the housing court judge for a stay (freeze) of the holdover
proceeding against him until his federal complaint was determined. The court ruled that whether
Evan was wrongfully discharged from his job had no bearing on the holdover proceeding and
denied the stay.
- Case Caption:
- Semans Family Limited Partnership v. Kennedy
- Issues/Legal Principles:
- Landlord cannot bring holdover proceeding terminating the lease simply on grounds of
tenants' refusal to pay rent for breaches of the warranty of habitability.
- Keywords:
- warranty of habitability
- Court:
- Civil Court, New York County
- Judge:
- Hon. Michael Stallman
- Date:
- May 20, 1998
- Citation:
- NYLJ, page 27, col 5
- Referred Statutes:
- Real Property Law 235-b; CPLR 3217(b); Multiple Dwelling Law 302(1)(b)
- Summary:
- Tenant didn't pay the rent and the landlord brought a holdover proceeding against the
tenant based on the failure to pay the rent. In 1996, the parties entered into a lease for seven
years which required the landlord to make substantial construction to customize the apartment
for the tenants. The tenants refused to pay any rent because they contended that the construction
was not substantially completed. After about six months of not receiving rent, the landlord
served a notice cancelling the lease and terminating the tenancy on grounds of nonpayment of
rent, and thereafter brought a holdover proceeding. The tenants sought to dismiss the holdover,
arguing that it violated public policy to terminate a lease solely on the grounds that rent was not
paid. The court examined the lease and observed that it contained a conditional limitation which
provides that if there is a notice of default of the lease were sent, the lease would automatically
expire on the termination date set in the default notice. The court observed that if landlords are
not permitted to bring holdovers against tenants for chronic late payment of rent couched as a
violation of a tenancy (citing a Court of Appeals case), then the conditional limitation in this
case is also impermissible to terminate the tenancy simply on grounds of nonpayment of rent.
The court also observed that the only meaningful weapon a tenant has against a landlord who
refuses to maintain the premises in a habitable condition is to withhold rent. The court stated
that the type of conditional limitation in this lease would discourage a tenant from withholding
rent for breach of the warranty of habitability. Further, the conditional limitation of the lease
violates public policy because it does not allow the tenant to cure the alleged default by paying
the rent (and avoid an eviction) and further frustrates a tenant's right to litigate habitability
defenses (because if the rent were paid before the default notice was serve, the case would not
land up in court). The court dismissed the prejudice with prejudice which means the landlord
is forever barred from collecting the rent sought in this petition.
- Case Caption:
- City of New York v. Omolukum
- Issues/Legal Principles:
- City-Landlord lacked "good cause" to evict tenant whose ex-boyfriend engaged in illegal
activities long after the tenant ejected him from her apartment.
- Keywords:
- illegal usage
- Court:
- Civil Housing Court, Bronx County
dt>Judge:
- Hon. Halprin
- Date:
- May 20, 1998
- Citation:
- NYLJ, page 28, col 3
- Referred Statutes:
- RPAPL 711(1); RPL 232(a)
- Summary:
- Landlord brought a holdover proceeding against tenant on grounds of alleged illegal
usage in the premises. The tenant lived with her then boyfriend, but after he began drinking and
engaging in violent behavior she ejected him from the apartment and removed him completely
(including his property) in January 1996. In October and twice in November of 1996 her ex-
boyfriend was arrested in the lobby and near the building for narcotics and gave the tenant's
apartment as his address. At trial, the tenant offered detailed proof of her diligent efforts to
keep the ex-boyfriend out of her life. She also testified that her new boyfriend moved in with
her in September, 1996, well before the ex-boyfriend committed the crimes which tenant is now
being held liable for and having her apartment in jeopardy. The court first noted that the City
of New York was required to show "good cause" for the grounds of the eviction, although the
City disputed that they should be held to this standard. The court also determined that the City
failed to find a sufficient nexus between the tenant and her ex-boyfriend's illegal activity. The
court found that this tenant "used all legally permissible means to rectify a bad situation" and
the court felt that to evict her was an improper response to her efforts. The court dismissed the
petition.
New York Law Journal, decisions for the week of May 11-15, 1998
(9 cases)
- Case Caption:
- Soho Tribeca Space Corp. v. Mills
- Issues/Legal Principles:
- Three day rent demand signed by landlord's attorney violates the
federal law, the Fair Debt Collection Practices Act which requires a
thirty-day notice to debtors/tenants.
- Keywords:
- Fair Debt Collection Practices Act; three-day notice; thirty-day
notice; motion to dismiss
- Court:
- Civil Court, New York County
- Judge:
- Hon. Ruben Martino
- Date:
- Wednesday May 13, 1998
- Citation:
- NYLJ, page 28, col 6
- Referred Statutes:
- 15 USC Section 1692 et. seq. (Fair Debt Collection Practices Act); MDL
Section 284; RPAPL Section 711; USCA Const. Art. VI, clause 2 (the Supremacy
Clause).
- Summary:
- Landlord brought a non-payment proceeding against tenant after serving
a three-day rent demand notice signed by the landlord's attorney. The
proceeding was dismissed for failure to comply with the Fair Debt
Collections Practices Act (FDCPA), a federal statute enacted to protect
consumers from abusive conduct by debt collectors. In December, 1997,
Federal Judge Lewis Kaplan ruled in Romea v. Heiberger & Associates,
that an attorney can be deemed a "debt collector" and the three-day rent
demand is an initial "communication" as those terms are defined the FDCPA.
The FDCPA requires that debt collectors give debtors a thirty-day notice and
opportunity to dispute the validity of all or a portion of the debt.
Although state law (RPAPL Section 711) merely requires the service of a
three-day notice demanding the rent before the tenant be taken to court,
this law is preempted by the federal law (FDCPA) which requires a thirty-day
notice. This is because the supremacy clause of the U.S. Constitution
provides that the U.S. Congress has the right to preempt state law, which is
what they did when they enacted the FDCPA.
- Notes
- Disclosure: Colleen McGuire's firm, McGuire & Zekaria, P.C., along
with co-counsel Robert E. Sokolski, Esq., P.C. represent the plaintiff in
the precedent setting case of Romea v. Heiberger & Associates. The
federal court ruled that rent is a debt under the FDCPA and attorney's who
attempt to collect the debt on behalf of their landlord-clients are debt
collectors under the FDCPA and must comply with the FDCPA's requirements,
one of which is that the consumer (i.e., tenant) be given 30 days to dispute
the debt. Judge Ruben Martino is the first judge in Housing Court to apply
the FDCPA to a summary proceeding. The attorneys who represented the tenant
in this case were Karlsson & Ng.
- Case Caption:
- In Re John Mauro v. DHCR
- Issues/Legal Principles:
- It is neither illegal nor inappropriate for the DHCR to impose multiple
penalties for many individual acts of harassment which were all part of a
larger course of conduct, resulting in a civil penalty of $33,000.00.
- Keywords:
- harassment; civil penalties; due process; administrative agencies
- Court:
- Supreme Court, Appellate Division, First Department
- Judge:
- lower court judge: Supreme Court Justice Marilyn Diamond
- Date:
- Monday May 11, 1998
- Citation:
- NYLJ, page 26, col 4
- Referred Statutes:
- CPLR Article 78
- Summary:
- The Court upheld the DHCR's determination that landlord engaged in a
course of conduct constituting harassment and upheld the DHCR's order that
landlord should pay $33,000.00 in civil penalties. The Court said that it
was "neither illegal nor inappropriate" for the DHCR to impose multiple
penalties for many individual acts of harassment which were all part of a
larger course of conduct. The Court decided that the landlord's
constitutional right to due process of law was not violated because both the
attorney who prosecuted the case and the hearing officer who heard the case
were employed by the DHCR. The fact that the transcript of the hearing was
not yet available to the landlord before landlord was presenting its
administrative appeal to the DHCR does not violate due process because tape
recordings of the entire hearing were available.
- Case Caption:
- Rosario v. 288 St. Nicholas Realty, Inc.
- Issues/Legal Principles:
- Tenants were "prevailing parties" and therefore entitled to an award of
attorneys fees because the proceeding they brought was resolved by a
court-ordered stipulation which was wholly favorable to tenants.
- Keywords:
- attorney's fees; prevailing party; stipulation of settlement; lead
paint violations; housing part proceedings; HP proceedings
- Court:
- Appellate Term, First Department
- Judge:
- lower court judge: Jerald R. Klein
- Date:
- Monday May 11, 1998
- Citation:
- NYLJ, page 27, col 4
- Referred Statutes:
- RPL Section 234; 42 USC Section 1988
- Summary:
- Tenants brought an "HP" (housing part) proceeding against the landlord
seeking correction of lead paint violations. Landlord entered into a
stipulation of settlement to correct the violations and completed the work.
Tenants then brought a motion for the assessment of the attorney's fees they
incurred and their motion was denied by the Court because the landlord was
diligent in correcting the condition and minimal court intervention was
required.
The appellate court reversed the trial court's determination and ordered the
trial court to hold a hearing to assess the amount of attorney's fees
incurred in the lower court and in the appellate court. The Court said that
a party does not have to win a case after trial in order to be a "prevailing
party" and therefore entitled to attorney's fees. In this case, the tenants
were the prevailing party because they achieved the results they sought in a
stipulation of settlement.
- Case Caption:
- Golden Properties, Inc. v. Knox
- Issues/Legal Principles:
- Rent-stabilized tenant is not entitled to receive notice and
opportunity to cure prior to landlord's commencement of eviction proceeding
for rent-gouging her subtenant.
- Keywords:
- holdover proceedings; notice to cure; notice of termination;
rent-gouging; rent-profiteering; subletting; summary judgment motion
- Court:
- Civil Court, New York County
- Judge:
- Hon. Strauss
- Date:
- Wednesday May 13, 1998
- Citation:
- NYLJ, page 29, col 1
- Referred Statutes:
- RSC Section 2525.6(b); Administrative Code Section 4451-1.0; RPAPL
Section 741(4)
- Summary:
- Landlord served rent-stabilized tenant with a termination notice
alleging that she has been charging her subtenant rent which is three times
greater than the legal regulated rent. Landlord's evidence consisted of an
affidavit from the subtenant in which he stated how much rent he paid to
tenant. In defense, the tenant said that the landlord should have served
her with a notice to cure the rent-gouging prior to commencing the
proceeding; the violation has in fact been cured because the subtenant has
vacated; and seven and one-half months of overcharging a subtenant is not a
sufficient level of rent-gouging to end her forty-year tenancy. The Court
rejected the tenant's defenses and granted the landlord's motion for summary
judgment.
The Court said that "(t)he Rent Stabilization Law was designed, in part, to
prevent profiteering and speculation by tenants receiving the benefit of
statutory regulated rents. Respondent's agreement and conduct with her
subtenant is in direct contravention to RSC Section 2525.6(b) and ground for
termination of her tenancy."
- Case Caption:
- Obloj v. Shaw
- Issues/Legal Principles:
- Landlord's personal use holdover is dismissed because landlord failed
to demonstrate a good faith desire to recover the premises.
- Keywords:
- holdover proceedings; personal use holdover; good faith
- Court:
- Civil Court, Kings County
- Judge:
- Hon. Peter Wendt
- Date:
- Wednesday May 13, 1998
- Citation:
- NYLJ, page 31, col 2
- Referred Statutes:
- RSC Section 2524.4(a)(1); RSC Section 2500.2(m)
- Summary:
- Landlord refused to offer a lease renewal to his rent stabilized
tenant, alleging that he seeks to recover possession of the apartment for
the personal use of a member of his immediate family, namely his
granddaughter. Landlord then commenced a holdover proceeding against tenant
which proceeded to trial. The court said that the landlord is "not required
to prove a need for the apartment, but only a good faith desire to recover
the premises." There were so many omissions and inconsistencies in the
testimony of witnesses for the landlord that the court decided that landlord
did not have a good faith desire to recover the apartment. The court found
credible the testimony of a witness for the tenant. This witness testified
that the landlord made disparaging remarks about the tenant's Korean wife
and said that he does not want Koreans living in his building. The court
found that this remark supported the tenant's claim that the landlord is not
proceeding in good faith. The court dismissed the landlord's case, because
the landlord was not able to establish that he is seeking the tenant's
apartment for the use of a family member in good faith.
- Case Caption:
- 2326 Grand Association v. Moran
- Issues/Legal Principles:
- Social Services Law Section 143 (the Spiegel Law) provides a defense
for welfare recipients/tenants against nonpayment proceedings only when
violations have been reported; tenant who denies access to her apartment for
inspections and repairs cannot use Spiegel Law as a defense to a nonpayment
proceeding.
- Keywords:
- Spiegel Law; nonpayment proceedings; social services recipient; motion
to vacate judgment
- Court:
- Civil Court, Bronx County
- Judge:
- Hon. Fiorella
- Date:
- Wednesday May 13, 1998
- Citation:
- NYLJ, page 29, col 5
- Referred Statutes:
- CPLR Section 5015; Social Services Law Section 143-B
- Summary:
- On 8/12/97, the parties entered into a stipulation whereby the tenant
promised to pay the rent she owed by 9/12/97. At that time, the Human
Resources Administration ("HRA") advised the Court that it needed additional
time to evaluate the rent arrears. On 10/6/97, the Court issued a final
judgment, on the consent of both parties, providing that rent arrears should
be paid by a date certain and staying execution of the warrant of eviction
until 10/30/97. The final judgment also provided that tenant was to provide
access to the landlord, on certain dates and times, in order to make repairs.
Months later, tenant moved for an order vacating the court's judgment dated
10/6/97 and asked the Court to schedule a court-ordered inspection and an
abatement hearing. Tenant cited to Social Services Law Section 143 (the
Spiegel Law), which states that it's a defense to a non-payment proceeding
if a welfare recipient can show that there are violations in the apartment
which are dangerous, hazardous and detrimental to life, health and safety.
The Spiegel Law also requires that the violations were reported to Social
Services by the Department of Housing Preservation and Development ("DHPD").
The Court denied the tenant's motion, because the tenant could not prove
that the alleged violations had been reported to Social Services by DHPD.
The Court noted that the tenant had failed to provide access to inspectors
on prior occasions and had also failed to provide access to landlord's
workmen when they arrived to make repairs. The Court stayed the execution
of the warrant until 4/9/98.
- Case Caption:
- Cruz v. Lanas
- Issues/Legal Principles:
- Default judgment should not have been taken against a tenant who had
previously filed a bankruptcy proceeding.
- Keywords:
- motion to vacate judgment; default judgment; bankruptcy proceeding;
bankruptcy stay
- Court:
- Appellate Term, 2nd Dept.
- Judge:
- lower court judge: Grayshaw
- Date:
- Wednesday May 13, 1998
- Citation:
- NYLJ, page 30, col 5
- Referred Statutes:
- none cited
- Summary:
- The tenant's motion to vacate a default judgment is granted and the
case is remanded to the trial court for further proceedings. The default
judgment should not have been issued because the tenant had filed a
bankruptcy proceeding. As a result of the bankruptcy proceeding, a stay of
all proceedings pending against tenant was in effect.
- Case Caption:
- Sedgwick Avenue Associates v. Constantine Kehaya
- Issues/Legal Principles:
- Where attorney failed to inform his adversary and the Court about a
prior Court Order which evicted his client, and the parties then entered
into a stipulation in which the landlord conceded that attorney's client was
a tenant, the stipulation should be vacated.
- Keywords:
- stipulations; motion to vacate stipulation; unilateral mistake
- Court:
- Appellate Term, First Department
- Judge:
- lower court judge: Martin Shulman
- Date:
- Thursday May 14, 1998
- Citation:
- NYLJ, page 25, col 5
- Referred Statutes:
- none cited
- Summary:
- In 1992, the housing court issued an order evicting C. Kehaya on the
grounds of nuisance. The Appellate Term, First Department affirmed the
trial court's decision and denied the tenant's motion for leave to appeal to
the Appellate Division, First Department. Tenant's attorney was fully aware
of these proceedings, having represented the tenant throughout.
The landlord then hired a new managing agent and a new attorney. They were
apparently unaware of the court order evicting C. Kehaya. The new attorney
brought a nonpayment proceeding against T. Kehaya (C. Kehaya's deceased
father). The tenant's attorney did not tell the landlord's new attorney -
or the Court - that C. Kehaya had been evicted. Instead, the tenant's
attorney told landlord's attorney that T. Kehaya had died and that C.
Kehaya, his son, was the tenant. The parties then entered into a
court-ordered stipulation in which landlord agreed that C. Kehaya was the
tenant. Tenant's attorney then brought a copy of the stipulation to
landlord's former attorney, who decided that he could not proceed to evict
C. Kehaya because of the stipulation in which landlord admitted that C.
Kehaya was the tenant.
When landlord's new attorney found out about the prior judgment of eviction
against C. Kehaya, he made a motion asking the Court to vacate the
stipulation, arguing that the stipulation should be vacated due to
"unilateral mistake." The trial court denied the motion and the Appellate
Term, First Department affirmed the denial. The Appellate Term, First
Department reversed. Tenant's attorney told landlord's attorney that C.
Kehaya was the tenant even though he knew that C. Kehaya was no longer a
tenant because he was evicted. The Appellate Term, First Department said
that "this was a fraud practiced on the new attorney for the landlord and
the court and should not be allowed." The stipulation (which said that C.
Kehaya was a tenant) should be vacated on the grounds of unilateral mistake.
- Case Caption:
- In Re Donnel Stern v. DHCR
- Issues/Legal Principles:
- DHCR's decision - which allowed landlord to submit evidence, for the
first time, in the context of a petition for administrative review ("PAR") -
is upheld.
- Keywords:
- DHCR; petitions for administrative review; evidence admissible during
administrative appeal
- Court:
- Appellate Division, First Department
- Judge:
- lower court judge: Supreme Court Justice David Saxe
- Date:
- Thursday May 14, 1998
- Citation:
- NYLJ, page 26, col 1
- Referred Statutes:
- RSC Sections 2529.6, 2522.3(e),(f) and 2523.1
- Summary:
- DHCR's rent administrator did not give landlord an opportunity to
submit certain evidence. When a petition for administrative review ("PAR")
was filed, DHCR's commissioner gave landlord an opportunity to submit the
evidence, citing RSC Section 2529.6, which states that the DHCR may accept
evidence during a PAR proceeding that "could not reasonably have been
offered or included in the proceeding prior to the issuance of the order."
The Appellate Division, First Department upheld the decision of DHCR's
commissioner, finding that the determination was rationally based, in
compliance with DHCR's regulations and was not arbitrary and capricious.
New York Law Journal, decisions for the week of May 4-8, 1998 (8
cases)
- Case Caption:
- In the Matter of Mennella v. Margarita Lopez Torres
- Issues/Legal Principles:
- Civil Court judges have no authority to condition a judgment of possession by requiring
landlords to serve a copy of the judgment on tenants who fail to appear in housing court
proceedings.
- Keywords:
- judgments; warrants; notice
- Court:
- Court of Appeals
- Judge:
- Hon. Levine; Hon. Ciparick concurring
- Date:
- May 6, 1998
- Citation:
- NYLJ, page 27, col 1
- Referred Statutes:
- RPAPL 749(3) & 732(3) & 731; 22 NYCRR 208.37(b) & 208.42.(i)
- Summary:
- The issue before the Court was the authority of Civil Court judges to impose additional
procedural hurdles upon landlords before obtaining an eviction when a tenant fails to appear or
answer in a summary proceeding. In this case the commercial tenant was properly served and
landlord filed papers seeking a judgment of possession. The judge (the respondent in this action)
rendered a default judgment with the words: "Final judgment of possession only. Warrant may
issue 5 days after service of copy of the judgment upon the tenant by regular mail with a post
office certificate of mailing to be filed with the clerk of court." The landlord then commenced
an Article 78 proceeding for a mandamus to compel the judge to issue a warrant of eviction
without requiring the landlord to mail a copy of the judgment upon the tenant. The judge then
issued the warrant but amended the judgment to stay the execution of the warrant upon the same
conditions of mailing and filing proof of mailing with the court clerk. The Supreme Court
dismissed the landlord's petition, but the Appellate Division reversed relying upon a previous
decision, Matter of Brusco v. Braun, 84 NY2d 674. The Court of Appeals upheld
the Appellate Division's decision. The Court ascertained that the judge's general policy was to
require additional safeguards, however the Court ruled that the judge had no statutory authority
to condition the issuance or the execution of the warrant by requiring the landlord to first mail
a copy of the judgment to the tenant, particularly since the statutory language of RPAPL 732(3)
directs that the court "shall" issue a warrant when a final judgment for a landlord is awarded.
The judge argued that the court has inherent powers in the interest of justice to stay or place
conditions upon the execution of a warrant of eviction. The Court agreed that there might be
such occasions, such as when a tenant seeks to vacate a warrant or there's a stay pending appeal
from a judgment of eviction. But in the case at bar, the Civil Court stayed the judgment "for
no particular reason arising out of the circumstances of this case." Rather it was based solely
on the judge's propensity or personal policy to add a general notice requirement. The Court of
Appeals ruled that the judge lacked discretionary legal authority to fashion such an additional
procedural safeguard as a matter of policy for defaulting tenants.
- Case Caption:
- Bathija v. Chaudhry
- Issues/Legal Principles:
- Occupant who came into possession with permission is not a squatter.
- Keywords:
- licensees; squatters; collateral estoppel
- Court:
- Appellate Term, 2nd & 11th Judicial District
- Judge:
- lower court: Hon. Grayshaw
- Date:
- May 6, 1998
- Citation:
- NYLJ, page 31, col 5
- Referred Statutes:
- RPAPL 711
- Summary:
- Landlord served tenant a 10 day notice to quit claiming that the occupant was a
trespasser-squatter. Another action was pending in the Supreme Court by the occupant against
the landlord and the landlord's grantor. The Supreme Court case resulted in a stipulation where
the parties agreed that the housing court proceeding could go forward on condition that the
occupant be permitted to assert claims against the landlord and the grantor in the housing court
proceeding. When the matter came for trial, however, the housing court refused to allow
occupant to submit proof with respect to his claims and ruled that a prior housing court
proceeding between the parties had conclusively established that the occupant was a licensee.
The court awarded judgment to the landlord, but the appellate court reversed holding that the
issue of whether the occupant was a licensee was not at issue in the previous case because that
case merely determined that no landlord-tenant relationship existed between the parties. The
appellate court also found that the parties were not bound by that prior proceeding because
collateral estoppel can be waived, and was waived by the Supreme Court stipulation which
allowed the occupant to interpose his claims as defenses. (Collateral estoppel means that the
parties cannot re-litigate an issue of fact or law that was previously litigated.) The appellate
court found, that in any event, this proceeding should be dismissed because the occupant was
certainly not a squatter because he came into the apartment with permission, whereas a squatter
is someone who did not receive anyone's permission to be in possession of an apartment.
- Case Caption:
- Northwood Village Inc. v. Curet
- Issues/Legal Principles:
- Tenant is given 100% rent abatement for conditions in apartment; landlord precluded
from collecting future rent until conditions are cured.
- Keywords:
- warranty of habitability; abatement
- Court:
- District Court, Suffolk County
- Judge:
- Hon. Spinner
- Date:
- May 6, 1998
- Citation:
- NYLJ, page 34, col 4
- Referred Statutes:
- RPL 235-b
- Summary:
- Tenant admitted owing the landlord rent from July 1997 through the date of trial April,
1998, amounting to $5,342.90. The landlord testified that the Department of Social Services
("DSS") discontinued rental assistance payments on the tenant's behalf in July, 1997, but the
tenant produced certified copies of DSS payment lists showing that the landlord had actually
received monthly payments for the rent from DSS through December, 1997. The tenant also
testified to various unsafe and unsanitary conditions in the apartment, including roach and
vermin infestation, broken tiles which caused his daughter to injure herself and sustain stitches
to her nose, leaks, falling plaster and "most appalling" the rupture of a flex pipe when landlord's
workers were installing a stove in the apartment below. The ruptured pipe caused gas to fill up
in tenant's apartment and compelled him and his family to vacate and the gas company to shut
off all gas service. Over and over the tenant asked the landlord to restore his service, but the
landlord refused and at one point used near force to remove the tenant from his office. The gas
was still not turned on by the time of the trial. The court directed that all rent owed through
the date of trial be abated, and further ordered that no future rent could be collected until all
conditions in the apartment were cured.
- Case Caption:
- 1286 First Realty v. Malatinksy
- Issues/Legal Principles:
- Elderly tenant in nursing home fails to establish proof of intent to return to the
apartment; court rules that tenant forfeited the apartment as his primary residency.
- Keywords:
- nonprimary residency
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Eardell Rashford
- Date:
- May 4, 1998
- Citation:
- NYLJ, page 29, col 2
- Referred Statutes:
- none cited
- Summary:
- In this nonprimary residency proceeding, the parties stipulated to the facts. The facts
demonstrated that the rent controlled tenant has not resided in his apartment since June, 1995
because he lived at a health care facility for approximately one year and then at an address in
Queens. The stipulated facts also show that the tenant has not filed resident tax returns or voted
from his Manhattan address since 1995. No telephone or cable television service is provided to
the apartment and the utility service is at a bare minimum. The lower court held for the tenant
on grounds that "there is no evidence presented to state that respondent shall be unable to return
to the premises." The Appellate Term reversed and ruled that the tenant failed to make any
representation as to his intention or ability to resume occupancy of the apartment and in light
of the prolonged absence from the apartment, a vaguely articulated intent to return at some
unspecified time in the future is insufficient to defend a nonprimary residency claim. The
Appellate Term noted that the tenant failed to file an appellate brief, so only the landlord's
position was argued before the appellate court.
- Case Caption:
- In Re 91 Fifth Avenue Corp. v. New York City Loft Board
- Issues/Legal Principles:
- Units subject to the Loft Law may be rent stabilized even though the units are in a
building having less than six residential apartments.
- Keywords:
- lofts; rent stabilization
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Herman Cahn
- Date:
- May 4, 1998
- Citation:
- NYLJ, page 28, col 3
- Referred Statutes:
- Multiple Dwelling Law 286, McKinney's Consolidated Laws, Statutes 254
- Summary:
- The Appellate Division upheld the lower court's ruling that even though a loft apartment
may be in a building with less than six units, if it is subject to Loft Law coverage, then the unit
may be subject to rent stabilization (even though rent stabilized units normally must be in
buildings having six or more residential units). The lower court ordered the landlord to offer
tenants stabilized leases and to register the apartments with the DHCR.
- Case Caption:
- 110-20 Road Apts Inc. v. Oberlander
- Issues/Legal Principles:
- Rent paid after tenancy terminated but prior to service of holdover petition leads to
dismissal of holdover petition, since acceptance of rent during this time period reinstates the
tenancy.
- Keywords:
- waiver; acceptance of rent
- Court:
- Civil Housing Court, Queens county
- Judge:
- Hon. James Grayshaw
- Date:
- May 6, 1998
- Citation:
- NYLJ, page 33, col 2
- Referred Statutes:
- none cited
- Summary:
- The tenants are shareholders of a co-op apartment and faced a holdover proceeding. The
tenants argued that the case should be dismissed against them on the technicality that the co-op
corporation (their "landlord") accepted maintenance ("rent") from them after the termination of
their lease but prior to the commencement of the holdover proceeding. If this were true, then
the acceptance of rent would contradict, and thereby nullify, the termination notice's intent to
terminate the tenancy. At the hearing, the bookkeeper testified that she deposited the tenant's
maintenance check on December 2nd and that she had authority whether or not to accept the
tender of the check. The holdover proceeding was commenced on December 4th. On December
15th, the management company sent the tenants a "replacement check" with a cover letter
explaining that the check had been cashed inadvertently through a lock box; court testimony
proved this to be a false statement. The court dismissed the holdover on grounds that the checks
was not cashed through a lock box but rather was done consciously by the corporation's own
bookkeeper.
- Notes:
- Tenants need to be clear when a waiver argue will be a winning one in court. First, the
time period in which the landlord cashes the rent check must occur after the termination notice
expires and before the holdover proceeding begins. If the check is cashed after the holdover
proceeding begins, courts have held that this is not cause to dismiss the petition. Also, if the
landlord quickly returns the rent money with another check and explains in a letter that the
cashing of the rent was an inadvertent mistake, the Appellate Division has ruled that this
scenario likewise will not result in the dismissal of the petition.
- Case Caption:
- Hotel Preservation v. Byrne
- Issues/Legal Principles:
- Court refuses to vacate warrant of eviction against tenant even though guardian ad litems
did not sign an affidavit upon their appointment.
- Keywords:
- guardian ad litem; possessory judgments
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Timmie Elsner
- Date:
- May 6, 1998
- Citation:
- NYLJ, page 30, col 2
- Referred Statutes:
- CPLR 1202
- Summary:
- A nonpayment proceeding was commenced against the tenant and she defaulted.
Thereafter the Department of Social Services (DSS)/Protective Services for Adults (PSA) sought
to set aside the default and sought to have a guardian ad litem appointed for the tenant.
Thereafter the parties entered into a stipulation which was signed by an attorney for PSA and
a guardian ad litem was appointed for the tenant. The stipulation did not mandate a filing of an
affidavit pursuant to CPLR 1202, nor did the guardian file one. The affidavit must state that
the guardian consents to the appointment and facts showing his or her inability to answer for any
damage sustained by his or her negligence or misconduct. The warrant and judgment remained
in full force and effect and the tenant failed to comply with the stipulation to pay the rent. A
year later an order to show cause was made to stay an eviction and another guardian ad litem
was appointed for the tenant. She did not file an affidavit pursuant to CPLR 1202 either. Then
the guardian commenced a bankruptcy proceeding on her ward's behalf which further prolonged
the stay against an eviction. The debt was discharged in 1997. The current motion made on
the tenant's behalf argues that since the two guardians never filed an affidavit, the stipulation
should not be binding on the tenant (who defaulted in paying the rent). The tenant also argued
that the bankruptcy decree rendered the landlord's possessory judgment void. The court ruled
that it would not vacate the judgment simply because the guardians failed to sign affidavits
pursuant to CPLR 1202 because the stipulations did not condition the appointments upon the
signing of the affidavits. The court also noted that the signing of such an affidavit is a mere
technicality and does not void the actions of either guardian. The court also cited case law for
the principle that a bankruptcy discharge does not vitiate a landlord's possessory judgment. The
court refused to vacate the warrant against the tenant, but gave the tenant a ten-day stay.
- Case Caption:
- Montauk Partners Realty Assoc. v. Fischetta
- Issues/Legal Principles:
- Petition which does not state landlord's actual corporate status is dismissed.
- Keywords:
- corporate status
- Court:
- Civil Court, Kings County
- Judge:
- Hon. Gustin Reichbach
- Date:
- May 6, 1998
- Citation:
- NYLJ, page 32, col 6
- Referred Statutes:
- General Business Law 130; RPAPL 741(1); CPLR 3-15(b) & 402
- Summary:
- Landlord brought a holdover proceeding against the rent controlled tenants by service
of thirty day notice, then a holdover petition. The notice was signed by Owner, Montauk
Partners Realty Assoc., by George Spada, agent. The petition also alleged that Montauk
Partners Realty Assoc. owned the premises. The tenants claim that the landlord failed to file
a business certificate pursuant to the General Business Law, but the owner responded that no
such filing is needed because the owner is not a partnership but a corporation. The owner
attached a copy of the deed which states that the property is owned by Montauk Partners Realty
Assoc., Inc. The court found that the landlord failed to state its interest in the premises as
required by RPAPL 741(1). The court noted that it would appear by the name of the owner in
the petition (where no "Inc." was used) that the entity is a partnership, when in fact it is not.
The appearance of a partnership was heightened by the fact that the notice was signed by an
agent of the owner not a corporate officer. Since the tenants have filed counterclaims, the court
observed that they would not be able to properly obtain judgments if the status of the owner
were not properly ascertained. Under these circumstances, the court ruled that the petition was
not subject to amendment, but rather to dismissal.
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