Housing Court Decisions November 1998
edited by Colleen F. McGuire, Esq. and Linda Rzesniowiecki, Esq.
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New York Law Journal, decisions for the week of
November 23 - 27, 1998
(5 cases)
- Case Caption:
- Lang v. Pataki
- Issues/Legal Principles:
- The Rent Deposit Law is constitutional on its face but may be
unconstitutional as applied to certain tenants in certain situations.
- Keywords:
- Rent Deposit Law; constitutionality
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Lehner
- Date:
- November 25, 1998
- Citation:
- NYLJ, page 28, col 3
- Referred Statutes:
- RPAPL Sections 745(2), 745(c)(ii), 747-a and 749(3)
- Summary:
- Tenant brought a case seeking a declaration that certain sections of
the Rent Deposit Law of 1997 [RPAPL Section 745(2) and 747-a] are
unconstitutional on their face. The Court determined that both sections
were constitutional on their face but may be unconstitutional as applied to
certain tenants in certain situations. These determinations will be made on
a case-by-case basis. Section 745(c)(ii) of the Rent Deposit Law prohibits
the tenant from requesting an adjournment of the trial where tenant made a
deposit but fails to make a subsequent payment. The Judge said that this
section is facially constitutional, but would not be constitutional as
applied to a tenant who requested an adjournment because tenant could not be
physically present in court due to illness or other emergency such as death
or serious illness in the family. RPAPL Section 747-a prohibits the Court
from vacating a warrant without requiring the tenant to make a rent deposit.
This provision is constitutional because a judge still has the authority to
vacate a warrant "for good cause shown" and without requiring a deposit
pursuant to RPAPL Section 749(3).
- Notes:
- Justice Lehner's prior decision of March 30, 1998 can be accessed in
decisions for the month of March 1998.
- Case Caption:
- Massachusetts Mutual Life Insurance v. Shefferes
- Issues/Legal Principles:
- The automatic stay provisions of the bankruptcy code protect a tenant
from eviction by the housing court even when the warrant of eviction issued
prior to the tenant's filing of a bankruptcy petition.
- Keywords:
- automatic stay; eviction
- Court:
- Civil Court, New York County, Housing Part
- Judge:
- Hon. Judge Malatzky
- Date:
- November 25, 1998
- Citation:
- NYLJ, page 29, col 6
- Referred Statutes:
- 11 USC Sections 362(a), 541 and 1306; RPAPL Section 749(3)
- Summary:
- Landlord brought a nonpayment proceeding against tenant which was
eventually settled by a stipulation requiring tenant to make payments in
installments and authorized the issuance of a warrant of eviction if tenant
failed to make a payment. Tenant failed to make a payment, the warrant
issued on September 15, 1998 and the tenant filed a bankruptcy petition on
September 29, 1998. RPAPL Section 749(3) provides that "the issuing of a
warrant for the
removal of a tenant cancels the agreement under which the person removed
held the premises, and annuls the relation of landlord and tenant. . . . 11
USC Section 541 (a section of the bankruptcy code) states that the
commencement of a bankruptcy case creates an estate which includes "all
legal or equitable interests of the debtor in property as of the
commencement of the case." The bankruptcy code also includes a very
important "automatic stay" provision [11 USC
Section 362(a)]. The automatic stay provision prohibits the
debtor's creditors from commencing or continuing any proceeding against the
debtor. The creditor must apply to the bankruptcy court for relief against
the debtor. In this case, the warrant of eviction issued against the tenant
before the tenant filed a petition in bankruptcy court. Under similar facts
in another case, a housing court judge in Queens decided that automatic stay
protections do not apply to protect the tenancy, because the issuance of the
warrant ended the tenancy agreement and therefore the apartment is
not part of the bankruptcy estate. However, this court declined to follow
the Queens case, reasoning that the eviction of the tenant is actually the
continuation of the nonpayment proceeding and the automatic stay provision
prohibits not only the commencement but the continuation of any proceeding
against the debtor. Thus, the tenant's filing of a bankruptcy petition
prevents the housing court from allowing the landlord's marshal to execute
the warrant (evict the tenant). If landlord wants to evict tenant,
landlord's only
remedy is to apply to the bankruptcy court. Where federal law conflicts
with state law, federal law applies.
- Notes:
- Although this court's decision protects a tenant-debtor from eviction
in housing court when the warrant has issued, another court made a different
decision. A tenant with a nonpayment case pending who is also considering
bankruptcy should be certain to file the bankruptcy petition before the
warrant of eviction issues.
- Case Caption:
- City of New York v. Britt
- Issues/Legal Principles:
- Tenant is evicted for collecting and converting other tenants' rent
money without authorization.
- Keywords:
- nuisance
- Court:
- Civil Court, Kings County, Housing Part
- Judge:
- Hon. Judge Alterman
- Date:
- November 25, 1998
- Citation:
- NYLJ, page 31, col 2
- Referred Statutes:
- none cited
- Summary:
- City of New York served tenant with a thirty-day notice that his
month-to-month tenancy was terminated because he had illegally collected and
converted other tenants' rent money. (Although the apartment is not
rent-stabilized or rent-controlled, a government landlord must notify a
tenant of the alleged cause for termination before bringing an eviction
proceeding.) The prior private landlord had defaulted on its mortgage and
the property came into the control of the mortgagees. On 1991, tenant was
authorized to collect rent on behalf of the mortgagees. Eventually, in
October 1992, the City of New York became the owner of the building but the
respondent-tenant continued to collect rent from the other tenants. The
Court understood the respondent-tenant's confusion, since the City of New
York did not notify him that it was the landlord and certain departmental
violations were addressed to him. However, the Court held that
respondent-tenant's confusion should have ended in September 1996, when the
City of New York sued two tenants of the building for nonpayment of rent and
respondent-tenant accompanied them to Court. At that time, the landlord's
attorney and the judge informed him that New York City was the landlord.
Nevertheless, respondent continued to collect rent for at least one
additional year and did not even turn over the rents collected to the City.
The Court held that the respondent's tenancy should be terminated.
Respondent placed other tenants in danger of eviction, because their payment
of rent to him did not relieve them of their obligation to pay rent to the
City of New York. The Court found that tenant was a menace to the other
tenants in the building.
- Notes:
- When the City of New York takes over a building, it should immediately
inform all tenants, so that they do not fall victim to unscrupulous
individuals such as the respondent in this case, and so they know who to
call regarding repairs and maintenance.
- Case Caption:
- In Re Hampton Management v. DHCR
- Issues/Legal Principles:
- Landlord's application to the DHCR for a Major Capitol Improvement
("MCI") rent increase is denied, because landlord did not file application
within two years of completing the work.
- Keywords:
- major capitol improvement rent increase
- Court:
- Appellate Division, First Department
- Judge:
- lower court judge: Hon. Justice Harold Tompkins
- Date:
- November 27, 1998
- Citation:
- NYLJ, page 27, col 5
- Referred Statutes:
- RSC Section 2522.4(a)(8)
- Summary:
- Landlord completed a major capitol improvement ("MCI") to the building
in March 1990, but did not file an application for an increase with the DHCR
for more than two years thereafter, although the RSC requires landlords who
wish to obtain an increase to file within two years. The DHCR denied
landlord's application, the landlord filed an Article 78 proceeding with the
Supreme Court, the Supreme Court upheld the DHCR's decision and was affirmed
by the Appellate Division, First Department.
- Case Caption:
- 2340-2341-2342-2343-2344 BLF Realty Holding Corp. v. Miguel Cano
- Issues/Legal Principles:
- Default judgment of possession upheld where tenant failed to establish
a meritorious defense or a reasonable excuse for failure to answer the
landlord's complaint.
- Keywords:
- default judgments; motions to vacate default judgments
- Court:
- Appellate Division, First Department
- Judge:
- lower court judge: Hon. Justice Edward Lehner
- Date:
- November 27, 1998
- Citation:
- NYLJ, page 28, col 1
- Referred Statutes:
- CPLR 5015(a)
- Summary:
- Landlord sued tenant for nonpayment of rent. Tenant failed to appear
and landlord obtained a default judgment for possession of the premises and
rent arrears. Landlord moved to enter the judgment and tenant opposed. The
lower court found that the default judgment should not be vacated because
the tenant failed to establish a meritorious defense or a reasonable excuse
for failure to answer the complaint and the appellate court affirmed. The
opinion of the court does not discuss the reasons the tenant offered in
support of vacating the default judgment.
New York Law Journal, decisions for the week of November 16-20,
1998 (6 cases)
- Case Caption:
- Crosdale v. Crosdale
- Issues/Legal Principles:
- Owner-Husband can maintain eviction proceeding against ex-wife when separation
agreement spells out the rights of the parties.
- Keywords:
- licensee; necessary parties
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. D. Thomas
- Date:
- November 18, 1998
- Citation:
- NYLJ, page 32, col 2
- Referred Statutes:
- CPLR 3211(a)(2); RPAPL 741(4)
- Summary:
- The husband is one of the owners of the house where his former wife lives. They
received a judgment of divorce on March 19, 1998 based on a separation agreement. The court
noted that summary proceedings to remove a spouse may not lie under the RPAPL when the
marital status and rights under the marital relationship have not been dissolved or determined
by a court of appropriate jurisdiction, prior to the commencement of the summary proceeding.
The court held that this case was an exception because the couple had voluntarily separated
pursuant to an agreement and their rights were incorporated into the subsequent divorce. The
court looked to the agreement to determine if the husband had a right to maintain the
proceeding. The agreement was silent as to how long the wife could remain in the house. On
the one hand, this could be interpreted as allowing the husband to commence a licensee eviction
proceeding at any time. On the other hand, the agreement provided that the husband would be
responsible for the carrying charges and his share of the mortgage payments for two years. The
court presumed that the agreement intended for the wife to remain in the house for two years.
The court therefore concluded that the husband was authorized to commence the eviction
proceeding within two years after the separation agreement was entered into, or after June 21,
1998.
- The wife also argued that the husband failed to join the children as necessary parties to
the proceeding. The court rejected this position on grounds that the children do not have an
independent possessory right to occupy the apartment. In this case, the children's rights are
derived and flow from their mother and therefore they need not be named. The court also
rejected the wife's argument that the husband failed to attach a copy of the separation agreement
to the holdover petition, since this is not a legal prerequisite to the holdover proceeding. The
petition must set forth the facts, but it need not attach documents.
- Case Caption:
- Dafjan NY Ltd. v. Mishiyev
- Issues/Legal Principles:
- Court denies landlord's initial request for judgments because the submitted affidavits of
non-military service lack sufficient information to determine if tenants' defaults arose while
serving in the military.
- Keywords:
- affidavit of non-military service
- Court:
- Civil Court, Kings County
- Judge:
- Hon. Acosta
- Date:
- November 18, 1998
- Citation:
- NYLJ, page 32, col 3
- Referred Statutes:
- New York Military Law 303(3); 50 USCA 520(1)
- Summary:
- The landlord seeks a judgment of possession and warrant of eviction against various
tenants whose cases are unrelated and all of whom have failed to appear (have defaulted). The
issue the court examines is whether the landlord's affidavits of non-military service related to
each tenant is sufficient to permit the court to grant judgments. The court observed that each
affidavit is virtually identical in form, except for the names of the tenants. The purpose of the
law requiring such affidavits is to prevent default judgments from being entered against members
of the Armed Services in circumstances where they might be unable to defend themselves. The
court noted that a proper affidavit can derive information from the super or neighbors or state
the age of the tenant (i.e., a senior citizen would presumably not be in the miliary) that would
infer that the tenant is not in the military service. The affidavits in these cases were woefully
inadequate because there was insufficient information to permit a court to draw a conclusion as
to whether the tenant was in the service or not. The court therefore "sua sponte" (i.e., on its
own initiative) denied the landlord's request for judgments and warrants without prejudice to
request again upon the submission of proper affidavits.
- Case Caption:
- NYCHA v. Freytes
- Issues/Legal Principles:
- NYCHA respondents fail to establish claim to their deceased mother's apartment.
- Keywords:
- succession rights
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Howard Sherman
- Date:
- November 19, 1998
- Citation:
- NYLJ, page 32, col 5
- Referred Statutes:
- none cited
- Summary:
- The Appellate Term reversed the lower court's decision and found that the respondents
failed to establish their entitle to possession as "remaining family members" of the Housing
Authority following the death of their mother, the tenant of record. The case does not state why
the tenants failed to show succession rights claim, but it did note that the tenants did not pay rent
for roughly 11 months after their mother died, and also noted that they could prove no ability
to pay rent or the source of any income. The final observation seemed dispositive: one of the
respondents was arrested twice for marijuana possession and criminal trespass on the housing
project grounds.
- Case Caption:
- 321 West 16th Street Assoc. v. Wiesner
- Issues/Legal Principles:
- Tenant charged with nuisance is denied rights to vacate a stipulation settling the case.
- Keywords:
- stipulations; nuisance
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Walter Strauss
- Date:
- November 19, 1998
- Citation:
- NYLJ, page 32, col 4
- Referred Statutes:
- none cited
- Summary:
- The Appellate Term upheld the lower court's decision to deny tenant's motion to vacate
a stipulation. The Court held that the "tenant was afforded considerable latitude to clear the
long-standing nuisance she had created in the dwelling's common areas." The Appellate Term
ruled that the lower court was obligated to protect the rights of other building tenants whose
health and safety ere at risk particularly given the evidence of a fire in the first floor hallway
where tenant had stored boxes of refuse, clothes and other flammables. Presumably, tenant's
stipulation sought to deter her eviction.
- Case Caption:
- City of New York v. Hernandez
- Issues/Legal Principles:
- .
- Keywords:
-
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Howard Sherman
- Date:
- November 19, 1998
- Citation:
- NYLJ, page 32, col 4
- Referred Statutes:
- none cited
- Summary:
- The Appellate Term reversed the lower court's decision which involved the tenant's
alleged illegal use of the apartment. The Court held that the trial court improperly permitted
the landlord to introduce evidence of events unrelated in time or substance to the acts stated in
the notice of termination and petition as grounds for eviction. The trial court also erred in
taking judicial notice of an unrelated holdover proceeding brought against the tenant roughly
three years earlier (in which the tenant prevailed on the merits), and expressly basing its negative
assessment of the tenant's credibility in the instant case on the facts derived from the prior
proceeding. Although the unrepresented tenant did not object to these errors at trial, they were
clearly prejudicial, according to the Court, in the context of this "close case" which stemmed
from two occurrences that took place outside the building premises and involved no claim of
active misconduct on the part of the tenant personally. (The occurrences are not
described.)
- Case Caption:
- Daniel v. NYS DHCR
- Issues/Legal Principles:
- Four year statute of limitation on tenants' overcharge complaints is upheld, even where
tenants allege fraud by prior owner.
- Keywords:
- overcharges; statute of limitations; class action; mandamus
- Court:
- Supreme Court, New York County
- Judge:
- Hon. William Davis
- Date:
- November 18, 1998
- Citation:
- NYLJ, page 26, col 3
- Referred Statutes:
- Rent Regulation Reform Act of 1997 ("RRRA"); RSC 2529.11 & 2510.10 & 2529.2 &
2527.6 & 2530.1; CPLR 7801; Administrative Code of the City of New York 26-516 & 26-517;
CPLR 213-a
- Summary:
- Petitioners are a small group of tenants who filed 8 separate overcharge complaints with
the DHCR in 1992. Although some of the complaints have culminated in a final determination
by the agency, most of the complaints are still pending at the PAR stage within the DHCR. The
petitioner-tenants charge in their Supreme Court Article 78 proceeding that the DHCR has
uniformly denied legitimate overcharge complaints by engaging in improper and wrongful
conduct, as follows: (1) denying any complaint based on overcharges occurring more than four
years prior to the filing of the complaint; (2) deliberately ignoring binding law which requires
the agency to consider evidence of overcharges occurring more than four years prior the filing
of the complaint; (3) unlawfully delaying decisions for four years or more; and (4) relying upon
the Rent Regulations Reform Act of 1997 (RRRA) which the tenants charge is unconstitutional.
- Petitioners' Article 78 proceeding is not an appeal of DHCR decisions. Rather, it is
a mandamus. They are asking the Supreme Court to direct and compel the DHCR to render a
decision in their cases. Their Article 78 proceeding also seeks class action certification and
reversal of thousands of decisions made by DHCR which denied overcharges based on events
occurring more than four years prior to the filing of the action. The tenants also seek a
declaration that RRRA is unconstitutional because it prevents inquiry into events occurring more
than four years prior to the filing of the overcharge complaint.
- The court held that it cannot determine Petitioners' complaints until Petitioners have
exhausted the administrative remedies. In other words, they cannot seek relief in the Supreme
Court until the DHCR decides their cases (some of which have been pending for five years).
The Court ordered the DHCR to decide the PARs and the initial complaints that are pending
within 90 days. The Court denied the tenants' request to certify their complaint with class action
status. The Court stated that "there is no single issue of fact or law common to the proposed
class which predominates over any questions affecting only individual members."
- One of the eight overcharge complaints denied on PAR was ripe for the Supreme Court
to hear. The Court examined the Wollman/Schmertz overcharge claim. The Wollmans
commenced occupancy on May 1, 1986 paying $822.00 per month. The Schmertz's moved in
after them in March, 1989 and paid $1,024.46 per month in rent. Both couples charge that the
landlord failed to serve the first rent stabilized tenant with a Notice of Initial Legal Registered
Rent by certified mail (which would preclude the owner from increasing the rent from the prior
rent control rent to a first stabilized market rent). The landlord fraudulently listed the last rent
paid on the Wollman's rider as $721.06, when in fact the last tenant paid $499.06. The Rent
Administrator found no overcharge in the Wollman case (i.e., the rent of $822 was valid), but
found that the Schmertz's rent should have been only $994.62 per month, which resulted in
overcharges of $2,369.13.
- The Wollmans and the Schmertzs filed PARs. The Commissioner upheld both decisions
of the Rent Administrator. The Wollmans filed their complaint on December 1, 1992, making
the base date December 1, 1988 at which time the registered rent was $822.00. The
Commission also rejected the Wollmans' claim that the first stabilized tenant was not served with
the initial rent registration, finding that the owner had properly served the RR1 form and that
tenant did not challenge the rent within 90 days of service. The Commissioner also rejected the
fraud claim because the Rider stated that the rent was also based on improvements. Finally the
Commissioner agreed with the Administrator that RRRA limits the DHCR's examination to a
period of four years prior to the filing of the complaint. The Commission did not disturb the
Administrator's finding of overcharge in the Schmertz's case. The Court ruled that the DHCR
was correct to adhere to the RRRA's four-year rule and that the DHCR had no authority to
examine the rental history beyond four years from the date the complaint was filed. The Court
further stated that even an allegation of fraud cannot circumvent the four-year statute of
limitations!.
- In assessing Petitioners' challenge of the constitutionality of the RRRA, the Court
preliminary outlined the judicial and legislative history of the statute. The Court determined that
the new law "neither created nor diminished nor abrogated the tenants' right to commence and
maintain an overcharge proceeding under the Rent Stabilization Law. Since Petitioners had the
full four years to bring a proceeding, no statutory right was abridged. The [new law] merely
clarified the law to limit the examination of the rental history to the same four year period. An
individual does not have a vested interest in any rule of law or legislative policy which entitled
him to have such law or policy remain unaltered for his or her own benefit." The Court
concluded that RRRA is constitutional.
- Notes:
- Let us pray these tenants fight the "good fight" on behalf of all New York City tenants
and take their case up to the Appellate Division. It is outrageous that a landlord could engage
in fraud and be shielded by the four-year rule of this statute. It is not hard to imagine scenarios
where the landlord installs a fake tenant paying a rent in gross excess above the prior rent. All
the landlord has to do is allow this "straw man" to remain in occupancy for four years, and then
landlord has it made. No other future tenants could ever challenge the excess rent due to the
four year statute of limitations. Apparently this Court has no problems with such inequitable
practices.
Case Caption:
Petty v. Handy
Issues/Legal Principles:
Tenant who buys or lives in New Jersey condo during sublet cannot, as a matter of law,
be deemed to have established an alternative primary residence.
Keywords:
sublet
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Shirley Kornreich
Date:
November 13, 1998
Citation:
NYLJ, page 28, col 3
Referred Statutes:
RSC 2525.6(a); RPL 226-b
Summary:
This case appears to be based on an alleged unlawful sublet. The rent stabilized tenant sought to sublet his apartment in order to pursue an investment
opportunity. The landlord apparently denied the tenant's sublet request and commenced a
holdover proceeding. The lower court granted the landlord a judgment of possession against the
tenant. The Appellate Term reversed, holding that the tenant's purchase of and/or residence in
a condo in New Jersey during the period of the sublet does not as a matter of law establish that
the tenant will be unable to reoccupy the apartment at the end of the sublease period. The Court
took note that the tenant expressed his intent to return to the premises and landlord's assertions
to the contrary "do no more than raise issues of fact and credibility." The Appellate Term
remanded the matter back to the Housing Court and allowed the landlord to undertake discovery
on the tenant.
Notes:
There seems something peculiar about a court allowing discovery in a proceeding based
on a denial of a sublet request. The law provides that a landlord cannot unreasonably deny a
tenant's request to sublet the premises. The sublet request must show that the tenant intends to
return at the end of the sublet's expiration. For example, if a tenant requests to sublet for one-
year because their employer is temporarily locating him or her to California for one year, a
letter from the tenant's employer confirming the duration of the out-of-town employment would
lend credence to the tenant's stated intent to return at the end of the one-year period. A landlord
may request such a letter as part of its entitlement to additional information from the tenant and
subtenant, provided the additional information is sought within ten days of the date of the sublet
request. The request itself, plus the additional information, constitutes the material on which
the landlord makes a decision whether to accept or reject the sublet request. If the landlord
rejects the request and takes the tenant to court, the standard in determining whether the landlord
acted reasonable or unreasonably requires an examination of the documents on which the
landlord relied in making its decision. To allow depositions once the case is in court is like
Monday morning quarterbacking. In short, the reasonableness or unreasonableness of a
landlord's decision to deny a sublet request should be based solely on the materials given to the
landlord before its thirty day period expired. A court reviewing those same documents should,
it is submitted, render a decision about the sublet on the face of the documents alone, and not
permit additional discovery which was not available to the landlord at the time he/she was
deciding whether to accept or reject sublet.
New York Law Journal, decisions for the week of November 9-13, 1998
(4 cases)
- Case Caption:
- George Jalinos v. Ramjen Ramkalup, et. al.
- Issues/Legal Principles:
- The owner of a legal two-family house which is actually being used illegally (contrary to the certificate of occupancy) by three families cannot recover rent or use and occupancy from nonpaying tenant.
- Keywords:
- de facto multiple dwelling; certificate of occupancy; multiple dwelling registration
- Court:
- Appellate Division, Second Department
- Judge:
- lower court judge: Justice Garson
- Date:
- November 10, 1998
- Citation:
- NYLJ, page 31, col 1
- Referred Statutes:
- MDL Sections 4, 302 and 325
- Summary:
- The plaintiff-landlord of a legal two-family house which was actually being used illegally as a three-family house brought an ejectment action in the lower court (Supreme Court, Kings County) against one of his three tenants. The ejectment action requested (1) the eviction of the tenant and (2) a judgment for unpaid use and occupancy. The lower court granted the landlord's summary judgment motion for use and occupancy and the appellate court reversed.
The appellate court said that the building is a multiple dwelling because it contains three separate apartments. However, the owner never obtained a Certificate of Occupancy for the building from the Department of Buildings permitting its use as a three-family dwelling and failed to register the building with the Department of Housing Preservation and Development ("DHPD") as a multiple dwelling. For this reason, it is an illegal or "de facto" multiple dwelling. The Multiple Dwelling Law provides that the owner of a de facto multiple dwelling cannot bring any action or proceeding to recover rent or use and occupancy from his tenants. Therefore, the lower court made a mistake when it granted the landlord a judgment against the tenant for unpaid use and occupancy.
- Case Caption:
- Matter of Alshooler v. DHCR
- Issues/Legal Principles:
- DHCR acted arbitrarily in requiring tenant to produce postal certificate as
proof that tenant timely sent DHCR luxury deregulation form by regular mail.
- Keywords:
- luxury deregulation; high rent - high income deregulation; proof of mailing
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Justice Leo
- Date:
- November 12, 1998
- Citation:
- NYLJ, page 26, col 2
- Referred Statutes:
- CPLR Article 78; RSC Section 26-504
- Summary:
- The owner filed a petition with the DHCR seeking deregulation of tenant's rent stabilized apartment on the grounds that the rent for the apartment exceeded $2,000 per month and that the tenant's annual income for each of the past two years exceeded the limit set forth in the Rent Stabilization Code. The DHCR then served a copy of "A Notice to Provide Information for Verification of Household Income" upon the DHCR, advising tenant that if he did not mail his response within sixty (60) days, the DHCR would find him in "default" and deregulate the apartment.
DHCR's instructions on the pre-printed "Notice" form advised tenant that he could mail his response by "regular, certified or registered mail." Tenant timely sent his response to the DHCR by regular mail. The DHCR did not receive the tenant's response and issued an order deregulating the apartment.
The tenant then filed a Petition for Administrative Review ("PAR") accompanied by an affirmation that he had timely mailed his response by regular mail and a copy of the answer he swore he mailed. The DHCR then asked the tenant for proof of mailing in the form of US Post Office receipt indicating that it was mailed certified, registered or by regular mail with proof of mailing. The tenant responded by reiterating that he had no such proof because he had simply sent his response by regular mail, as indicated in his affirmation. The DHCR denied the tenant's PAR and upheld the order of deregulation, stating that the "mere assertion by the tenant that something was mailed to the agency is insufficient to rebut the presumption of regularity" of the DHCR's procedures concerning receipt of mail.
The Supreme Court overturned the DHCR's decision because it was "arbitrary and capricious" and remanded the proceeding to the DHCR. The Court explained that the DHCR is an administrative agency that routinely deals with unrepresented parties. The DHCR's notice form advised the tenant that he could sent his response by "regular mail" and did not advise the tenant that he must obtain written a postal document proving mailing. When the tenant affirmed that he sent his response by regular mail, the DHCR did not even consider the possibility that the response was not delivered by the post office or lost within DHCR's offices (e.g., by conducting a hearing on the issue). Instead, the DHCR demanded that the tenant produce a postal document proving mailing and then denied the tenant's PAR when the tenant failed to do so. DHCR's decision was arbitrary and capricious in light of the fact that its notice form advised that service by regular mail was acceptable but did not warn the tenant to obtain a postal document proving mailing.
- Case Caption:
- Bedford Equities v. John Doe or Jane Doe
- Issues/Legal Principles:
- Landlord may bring an eviction proceeding against tenant for keeping a pet even though landlord did not previously object to pets kept by tenant.
- Keywords:
- Pets
- Court:
- Appellate Term; First Department
- Judge:
- Hon. Arlene H. Hahn
- Date:
- November 13, 1998
- Citation:
- NYLJ, page 28, col 3
- Referred Statutes:
- NYC Admin. Code Section 27-2009.1[b]; RPAPL Section 753[4]
- Summary:
- Landlord brought an eviction proceeding against tenant for keeping a pet in violation of a "no pet" clause in the lease. Tenant argued that the landlord should not be permitted to object to the pet, because the landlord did not object to pets previously kept by tenant.
The lower court rejected tenant's argument and the appellate court agreed, explaining that the "no pet" clause in tenant's lease required tenant to obtain landlord's written consent "in each instance" (that is, for each pet tenant wishes to keep). By failing to object to previous pets, landlord did not waive its right to object to this pet, so long as landlord timely commences a holdover proceeding as required by the NYC Administrative Code.
New York Law Journal, decisions for the week of November 2-5, 1998
(5 cases)
- Case Caption:
- Schippers v. Mass
- Issues/Legal Principles:
- Landlord's acceptance of rent after expiration of lease makes tenant a month to month
tenant and vitiates landlord's Golub notice.
- Keywords:
- owner occupancy; rent waiver
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Jose Rodriguez
-
- Date:
- November 4, 1998
- Citation:
- NYLJ, page 29, col 1
- Referred Statutes:
- RSC 2524.4(a)(1) & 2524.2(a) & 2520.65(p); CPLR 3212; RPL 232-c
- Summary:
- Landlord brought a holdover against the tenant seeking to recover the tenant's apartment
for personal use for herself and her family. The tenant is a senior citizen, although the notice
did not specify that the owner offered the tenant comparable housing in the proximate
neighborhood (which is required in an owner-occupancy proceeding for senior citizens or
disabled persons). The owner terminated the tenancy on March 31, 1998 by a Golub notice
(which is a nonrenewal of lease notice). However, two weeks earlier the owner had cashed
tenant's April, 1998 rent which was tendered and paid early, even though it was clearly
denominated as "April Rent '98." The owner cashed the check and never reissued another
check, but simply advised the court that she did not realize in cashing it that it was rent for
April. The tenant moved for summary judgment to have the petition dismissed. The court held
that when a landlord accepts rent after the expiration of a lease, a month to month tenancy is
created. Upon such creation the landlord is required to terminate a month to month tenancy by
a 30-day notice of termination. The court dismissed the petition, but did not compel the landlord
to tender a renewal lease. The court mentioned that the tenant has a right to commence a
proceeding to compel the landlord to tender a renewal lease, and the tenant cannot be evicted
simply because the tenant lacks a lease.
- Notes:
- It seems very clear that the court's decision was swayed by the senior citizen status of
the tenant. Since the court dismissed the petition on tenant's summary judgment motion, this
means that the owner cannot recommence another personal use proceeding against this tenant.
In such circumstances, it seems strange that the court did not explicitly order the landlord to
tender a renewal lease to the tenant.
- Case Caption:
- 319 West LLC v. Rojas
- Issues/Legal Principles:
- Tenant's overcharge claims greater than four years were rendered moot once landlord
filed proper rent registrations, even though the statements were not filed until after the
nonpayment proceeding was commenced.
- Keywords:
- overcharges; rent registration
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Timmie Elsner
- Date:
- November 4, 1998
- Citation:
- NYLJ, page 26, col 3
- Referred Statutes:
- CPLR 213-a; RSC 2526.1; RSL 516(a)
- Summary:
- The tenant moved into the apartment in December 1996, paying $110 per week for the
apartment (which appears to be a rooming house, given the weekly payment of rent). The tenant
stopped paying rent in April, 1997 and the landlord commenced this proceeding in November,
1997. The tenant answered orally, then retained counsel, who made a motion seeking (a)
permission to amend the answer to assert a claim for overcharges, and (b) granting tenant
summary judgment on the overcharge issue. Tenant asserted that the rent should be $179.29 per
month (or approximately $42.50 per week). The apartment was initially registered in 1984 at
$152 per month. It was registered every year through 1992, and the rent was raised every year
during those periods as well. The last rent in 1992 was $273.16 per month. No registrations
were filed for the years 1993-1997. The court held that the recent amendments to the four years
statute of limitation on overcharge claims is applicable in this case. The statute explicitly
precludes any examination of a unit's rental history prior to the four year period immediately
proceeding the commencement of tenant's overcharge claim. The tenant tried to argue that the
Rent Stabilization Law allows review of registration statements beyond the four year statute of
limitations. The law states that "the legal regulated rent for purposes of determining an
overcharge shall be the rent indicated in the annual registration statement filed four years prior
to the most recent registration statement . . . plus in each case any subsequent lawful increases
and adjustments." Before the nonpayment proceeding was commenced, the most recent
registration was in 1992. Thus, to determine the legal regulated rent, one would start with the
rent set forth in the 1988 registration (4 years prior to 1992), and add the subsequent increases
for each year thereafter. In this case, it appears that in applying this formula there would be
an overcharge. However, the judge noted that after the nonpayment proceeding was commenced
the landlord filed registrations statements retroactively from 1993 to date. The court noted that
the rent stabilization law provides that an owner's late filing wipes away any and all
overcharges, if the overcharges "are based solely upon a failure to file registrations." As a
result the court found that the tenant's claim for overcharges was not viable as to any claims
which arose over four years ago. The court set the matter for a trial on a question of fact as
to what rent was paid in December, 1993.
- Notes:
- This is such an unfortunate case for tenants because it eviscerates all overcharges the
minute the landlord files the registration statements, even though when the landlord commenced
the proceeding the lack of registrations rendered the rent demand unlawful. A more pro-tenant
decision would have at least dismissed the proceeding against the landlord, without prejudice,
on grounds that at the time the proceeding was commenced the registrations were not in order.
- Case Caption:
- Fleming v. Flanagan
- Issues/Legal Principles:
- Landlord granted a monetary judgment against tenant who made no personal appearance
in court, but tenant allegedly evaded service of the nonpayment petition.
- Keywords:
- judgments
- Court:
- Justice Court of Ramapo, Rockland County
- Judge:
- Hon. Etelson
- Date:
- November 4, 1998
- Citation:
- NYLJ, page 30, col 2
- Referred Statutes:
- CPLR 308(4) & 3012(a); RPAPL 735 & 733 & 749
- Summary:
- Landlord brought a nonpayment proceeding, but the tenant failed to appear. The issue
before the court was whether the landlord was entitled to a money judgment. Usually, a
monetary judgment is not granted against a tenant who never appears in court. The landlord
would only receive a possessory judgment (i.e., recovery of the premises). The landlord would
have to sue in regular Civil Court to obtain a monetary judgment against the tenant. In this
case, the landlord brought a nonpayment petition, but it was dismissed on tenant's motion that
he was not properly served the petition. The landlord commenced a second action, but did so
by order to show cause asking that service be made by conspicuous place service (on or under
the door) with regular and certified mailings within 24 hours. The landlord claimed that he
could not obtain personal service because the tenant was evading service with "a complex
security system and surveillance cameras." For this reason, the landlord sought the court's
imprimatur to serve the tenant by conspicuous place service. The order to show cause was
signed and the tenant was served in that manner. The tenant failed to appear in court and the
landlord sought a monetary judgment upon his default. The court held that in the circumstances
the landlord should not be precluded from a monetary judgment, provided the affidavit of the
process server can show due diligence. There was an issue of whether a landlord in a summary
proceeding can resort to the standard of "due diligence" efforts to serve, which is the Civil
Court CPLR 308(4) standard. The court held that the landlord's method of service via court
order and a due diligence standard should apply in this summary proceeding. The court also
limited the landlord's judgment of rent against tenant to the date the warrant issued. This is
because the issuance of the warrant cancels the landlord-tenant relationship and the lease. It
appears as if the landlord attempted to obtain a judgment for the remainder of the month's rent
for the month in which the petition was brought. The judge denied the landlord this relief, but
granted a judgment based on all past rent owed, plus attorney's fees, costs and interest.
- Case Caption:
- Center for Modern Psychoanalytic Studies v. John Doe and Jane Doe
- Issues/Legal Principles:
- Landlord's nonprimary residency proceeding dismissed against tenant, even though
tenant resides in Florida for approximately six months of the year in winter months.
- Keywords:
- nonprimary residence
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Douglas Hoffman
- Date:
- November 6, 1998
- Citation:
- NYLJ, page 21, col 1
- Referred Statutes:
- none cited
- Summary:
- The Appellate Term affirmed the lower court's decision that dismissed the landlord's
nonprimary residency proceeding against the tenant. The trial evidence supported the Housing
Court's determination that the tenant was utilizing her rent control apartment as her primary
residence. Many of her documents and the evidence at trial (including ongoing care from New
York City physicians and her activity in community based organizations) established that she had
a sufficient nexus to her Manhattan apartment, even though she owned a cooperative apartment
in Florida and spent approximately one-half the year there during winter months.
- Notes:
- The case does not state the age of the tenant, but most likely she is a senior citizen. It
is not explained why the tenant's name is unknown, and a John Doe/Jane Doe used.
- Case Caption:
- City of New York v. Scott
- Issues/Legal Principles:
- Remaining family member permitted to litigate succession rights claim in Housing Court
despite City's claim that prior administrative hearing on this issue deprives Housing Court of
jurisdiction to entertain the claim, or related aspects to the claim.
- Keywords:
- succession rights; appeals; judgments; stipulations
- Court:
- Civil Housing Court, Bronx County
- Judge:
- Hon. Howard Sherman
- Date:
- November 4, 1998
- Citation:
- NYLJ, page 27, col 1
- Referred Statutes:
- CPLR 5703(a) & 1018 & 5601(c) & 5602(b) & 5522(a) & 5524(b)
- Summary:
- The landlord, the City of New York, brought a licensee proceeding against the occupant
Scott, but Scott claimed he had succession rights to his mother's apartment. It is undisputed that
Scott lived with his mother from 1985 until she died in 1991, then lived alone thereafter. The
City denied Scott's application for a tenancy in his own name and his pro se administrative
appeal, but the City failed to advise him that he had a right to appeal the administrative hearing
by way of an Article 78 in the Supreme Court. The City made a motion to strike Scott's
defense of succession rights at the holdover proceeding upon grounds that Scott already litigated
that issue in an administrative hearing, and therefore Housing Court lacked jurisdiction to hear
the matter. At trial, the judge allowed Scott to submit evidence of proof as to his succession
rights. The City merely alleged at trial that Scott was ineligible to become the tenant because
he allegedly engaged in drug trafficking in the vicinity of the premises. The trial judge
dismissed the petition on grounds that Scott was a remaining family member entitled to
succession rights and that he was entitled to a hearing on the denial of his administrative appeal
since the City had not specified a reason in the administrative decision why Scott's application
was denied.
- In August, 1995, the Appellate Term reversed the trial judge's decision, ordered a new
trial and directed a hearing on the issue of whether Scott's activities disqualified him from
eviction protection as a successor tenant. The Appellate Term held that there should be a
determination on this particular issue before Scott's status is finally resolved. Both the Appellate
Term and the Appellate Division rejected the City's position that during a holdover proceeding
in Housing Court the City is not required to set forth or justify or share its determinations made
at the administrative level. The City was so certain that the Housing Court had no right to
second guess the administrative proceedings, that as a result, no evidence as to what went on
at the City administrative hearing was put forth in the Housing Court record. The appellate
courts held that a new trial should be had to remedy the undeveloped record and elucidate this
issue (i.e., Scott's eligibility due to alleged illegal activities) at a new trial.
- As a condition to appealing to the Appellate Division, the parties entered into a
stipulation before the Appellate Term which provided that if the Appellate Term allowed the City
to appeal to the Appelate Division, "judgment absolute may be entered against petitioner [City]
in the event that this Court's order is affirmed. The Appellate Term's order was affirmed by
the Appellate Division, and the case sent back to Housing Court for a trial to deal with the
issues of Scott's alleged unacceptable activity. Additionally, the building was transferred to a
private owner which obviated the need for Scott to bring an Article 78 to challenge the City's
administrative hearing decision. The Housing Court judge who received the case after it was sent back from the
appellate courts was faced with the issue of whether the Appellate Division's remand language
providing for a new trial supersedes the stipulation permitting entry of judgment absolute against
the City upon affirmance of the Appellate Term order. The court also wondered if a new trial
should be held, whether the owner can maintain the proceeding now that titled has been
transferred to a private owner. The court engaged in a lengthy analysis of the first esoteric
legal issue and concluded that it was bound by the Appellate Division's order that a new trial
be had. The court therefore rejected Scott's motion that the petition be dismissed because the
Stipulation provided for that a judgment against the City be absolute. The Appellate Division's
order trumped the Appellate Term stipulation. Further the Appellate Division already ruled that
the trial could go forward despite the fact that the building is now in private hands.
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