Housing Court Decisions May 1999
edited by Colleen F. McGuire, Esq. and Linda Rzesniowiecki, Esq.
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New York Law Journal, decisions for the week of May 24-28, 1999
(5 cases)
- Case Caption:
- 1065 Lexington Avenue Associates v. Public Administrator
- Issues/Legal Principles:
- Deceased tenant's son seeking succession rights has no standing to challenge landlord's
failure to serve tenant's estate with notice to quit.
- Keywords:
- estates; notices; succession rights
- Court:
- Civil Court, New York County
- Judge:
- Hon. Acosta
- Date:
- May 26, 1999
- Citation:
- NYLJ, page 27, col 5
- Referred Statutes:
- RSC 2523.5(b)(1), 2524.3, 2524.4
- Summary:
- Landlord brought a holdover proceeding against the Public Administrator of the deceased
Rent Stabilized tenant's estate. The tenant's son sought succession rights to the apartment and
asked the court to dismiss the petition on grounds that the landlord failed to serve the estate and
him (the son) a notice to quit advising that litigation would be commenced. The Public
Administrator waived any possessory rights to the apartment and withdrew its challenge to the
landlord's failure to serve the notice. The landlord argued that the son has no standing to raise
the issue of the failure to serve the estate a predicate notice. Also, the tenant was in the midst
of negotiating a right to cure her failure to sign a renewal lease, but she passed away before
actually signing a renewal. The landlord therefore also argued that no predicate notice was
necessary since there was no signed renewal lease. The court found that the estate was entitled
to be a served a notice terminating the tenancy because the estate steps into the shoes of the
tenant upon the tenant's death, albeit without acquiring all the rights the tenant would have.
Since, however, the estate surrendered its interest, the issue before the court was whether the
son had a right to raise the issue that the landlord failed to serve a predicate notice before
commencing the proceeding. The court could find no prior cases on point, but referred to other
case law wherein undertenants do not have standing to assert rights which are conferred by
statute or a lease to the prime tenant. The undertenant son is not in "privity" with the landlord,
and has no independent possessory rights until his succession rights claim is determined. The
court concluded that the tenant did not have standing to raise an issue (lack of service of
predicate notice) that only the estate could raise, and denied the son's request to dismiss the
petition on this ground.
- Case Caption:
- Plainfield Inn Inc. v. Carson
- Issues/Legal Principles:
- Welfare recipients whose rent and room were negotiated by social services agency
resulted in a landlord-tenant relationship with the rooming house owner.
- Keywords:
- landlord-tenant relationship; agency; warranty of habitability; unlawful eviction;
constructive eviction
- Court:
- District Court, Nassau County
- Judge:
- Hon. Stack
- Date:
- May 26, 1999
- Citation:
- NYLJ, page 31, col 5
- Referred Statutes:
- RPAPL 731(2), 711(2), 853; CPLR 2104, 3025(c), 3211; 24 CFR 100.400; 42 USC
3613; Penal Law 240.26
- Summary:
- Landlord brought a non-payment proceeding against the occupants of a rooming house.
The occupants claimed that there was no landlord-tenant relationship due to the circumstances
of their occupancy. They were placed in the room by the Department of Social Services (DSS)
who was paying the rent. At some point DSS stopped paying the rent which triggered the
instant proceeding. The court found that DSS acted as the occupants' agents and at no time did
the tenants claim they were not tenants. Therefore, the court concluded a landlord-tenant
relationship existed. (A nonpayment proceeding cannot be maintained unless a landlord-tenant
relationship exists).
- The tenants also complained that the amount of the rent is unconscionable for the
smallness of the space and that they did not have an opportunity to accept or reject the room
since DSS did all the negotiations. The court held that the tenants did not offer any proof that
this size of room merits a lower rent, nor that the tenants had previously complained about the
room size. The court also found that the predicate rent demand was proper in form.
Additionally, the tenants raised warranty of habitability issues, including infestation of vermin,
garbage in the hallways, and unsanitary bathrooms. An inspector found no vermin, but did
confirm the other two conditions and also reported a fire egress violation. The court ended up
awarding the tenants a 20% abatement for the months the condition lasted. The tenants also
charged that the landlord unlawfully removed their possessions, including clothing and bed
linens. The court concluded that since the tenants themselves were not put out of their rooms,
this claim must fall. (The tenants commenced a property damage action in small claims court).
Additionally, the tenants claimed discrimination under the Fair Housing Act but the court found
insufficient evidence to support it.
- Case Caption:
- Samuel v. Villafane
- Issues/Legal Principles:
- Retaliatory eviction found where landlord increases tenant's rent by 18% a mere 12
days after a previous eviction proceeding resulted in dismissal on grounds of retaliatory eviction.
- Keywords:
- retaliatory eviction; warranty of habitability
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Eva Alterman
- Date:
- May 26, 1999
- Citation:
- NYLJ, page 30, col 5
- Referred Statutes:
- CPLR 3212, 3211; RPL 223-b
- Summary:
- Landlord brought a holdover proceeding against a non-regulated tenant by serving a 30
day notice of termination. The tenant raised the defense of retaliatory eviction. The court
examined a prior holdover proceeding which also involved a retaliatory eviction defense to
determine if retaliatory eviction was likewise present in this second proceeding. Tenant resided
in the premises for about 10 years, and in 1997, she began complaining about conditions in the
apartment and filed a complaint with Housing Preservation and Development ("HPD"). Within
six months after filing the complaint, the landlord brought a holdover proceeding against her in
early 1998. The retaliatory eviction law (Real Property Law 223-b) prohibits a landlord from
trying to evict the tenant in retaliation for a good faith complaint by a tenant to a governmental
authority regarding a landlord's violation of housing codes. The prior court ruled that retaliatory
eviction motivated the landlord's eviction proceeding, given that less than six month elapsed
from the date of tenant's complaint to HPD to landlord's commencement of the eviction action.
- A mere 12 days after the prior court's decision, the landlord advised tenant that her rent
was increasing from $550 to $650 (an 18% increase) and then served her a notice of termination
effective two months following the rent increase. During tenant's ten-year tenancy, her rent
had never been previously raised. One section of RPL 223-b prohibits retaliatory eviction where
the tenant acts in good faith to "secure or enforce any rights under the lease or rental
agreement," including rent gouging. The landlord represented to the court that the reason he
terminated the tenancy was because the tenant "failed and/or refused to continue her tenancy at
the apartment at a new rental rate of $650." Even though the landlord is entitled to charge
whatever rent he wants since the tenant is not protected by any rent regulation, the court found
that the circumstances have to be scrutinized. Given that the landlord did not raise the tenant's
rent for ten years, and now suddenly does, the burden must shift to the landlord to show that
his motives for ending the tenancy are not retaliatory. The landlord claimed that he increased
the rent because his costs had "skyrocketed." The court, however, pointed out that the landlord
did not provide one iota of evidence to corroborate this allegation. The court also noted that
another fact to consider in determining whether an action is retaliatory is to compare the
treatment accorded this tenant as opposed to other tenants. The court noted that the landlord
failed to indicate whether all the other tenants' received rent increases, too, or if only this tenant
did. In light of landlord's inability to rebut the presumption of retaliatory eviction, the court
held for the tenant finding that retaliatory eviction occurred for a second time, and thereupon
dismissed the petition.
- Case Caption:
- Port Realty Group v. Michel
- Issues/Legal Principles:
- Petition is dismissed for inaccurate description of the property's address.
- Keywords:
- petition
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Callender
- Date:
- May 26, 1999
- Citation:
- NYLJ, page 30, col 6
- Referred Statutes:
- RPAPL 741(3)
- Summary:
- The landlord brought a holdover proceeding against the tenant who appeared, answered
and signed a stipulation consenting to personal jurisdiction. The court, however dismissed the
proceeding because the petition listed the property as 460 Linwood Avenue, when in fact the
proper address is 460 Linwood Street. The landlord argued that there was no prejudice because
the tenant in fact appeared, and therefore must have received the petition, so the defect is
harmless. The court ruled that a proper and accurate description of the property must exist for
the court to maintain jurisdiction and that an incorrect description is more than a minor
ministerial error.
- Case Caption:
- Park West Village Associates v. Nishioka
- Issues/Legal Principles:
- Interpretation of Martin Act relating to tenants renting unsold condo or co-op units does
not create right of indefinite tenancy.
- Keywords:
- co-ops & condos; evictions
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Bruce Kramer
- Date:
- May 26, 1999
- Citation:
- NYLJ, page 27, col 3
- Referred Statutes:
- General Business Law 352-eeee
- Summary:
- The petitioner in this proceeding is the owner of a condominium unit which was rented
to the tenant after the conversion of the building. Petitioner was also the sponsor of the plan
converting the building. After the tenant's lease expired, the owner brought a holdover
proceeding. The tenant argued that he is a "non-purchasing tenant" under the Martin Act (i.e.,
the co-op and condo law). The owner argues that the tenant is not a "non-purchasing tenant"
pursuant to the Martin Act definition, but rather a mere month to month tenant entitled to no
more than a 30 day notice of termination. It was important for the tenant to establish that he
is a "non-purchasing tenant" because under the Martin Act, a non-purchasing tenant cannot be
evicted except for good cause. Such an interpretation of the Martin Act would in effect carve
out a huge new class of tenants accorded somewhat less protections than Rent Stabilized tenants,
but somewhat more protections than a month to month market rent tenant.
- In Paikoff v. Harris, 679 NYS2d 251 (Civ. Ct. Kings Co. 1998), a Brooklyn Housing
judge ruled that tenants who rented a co-op apartment from the sponsor and holder of unsold
shares after a non-eviction conversion plan were in fact "non-purchasing tenants' and entitled
to the protections of the Martin Act. Judge Kramer declined to follow Judge Marc Finkelstein's
sweeping (and eyebrow raising) decision. Judge Kramer systematically parsed the statute to
reach his determination that the Martin Act does not protect tenants renting sponsor-held
condominium units because such tenants do not rise to the status of a "non-purchasing tenant"
and because the sponsor is a "purchaser under the plan."
- The Martin Act defines a purchaser under the plan as a "person who owns the shares
allocated to the dwelling unit or who owns such dwelling unit itself." It is undisputed that the
petitioner-landlord is the owner of this dwelling unit. The Martin Act defines "non-purchasing
tenant" as a "person who sublets a dwelling unit from the purchaser . . ." The court analyzed
the legislative history of the Martin Act and determined that there was no mention of an intent
to provide continued occupancy protection for tenants who sublet a sponsor owned condominium
or cooperative unit. The court also held that statutory construction compels such a result
(meaning that the language of the Martin Act is clear on its face justifying this judge's
interpretation of the Act).
- Notes:
- Word has it that the parties in Paikoff v. Harris settled, and therefore that decision will
not be reviewed an appellate court. It is not yet known whether the tenant in this case will
appeal Judge Kramer's decision.
New York Law Journal, decisions for the week of May 17-21, 1999
(8 cases)
- Case Caption:
- Rima 106 LLP v. Alvarez
- Issues/Legal Principles:
- Court finds clauses in certain rent stabilized leases void as violative of public policy; the clauses gave the tenants unlimited rights to sublet and assign and the right to continued occupancy despite non-primary residency.
- Keywords
- public policy; void or voidable lease
- Court:
- Appellate Division, First Department
- Judge:
- lower court judge: Leland DeGrasse
- Date:
- Monday May 17, 1999
- Citation:
- NYLJ, page 25, col 3
- Referred Statutes:
- RPL Section 226-b; RSL Section 26-511(c)(12); Debtor & Creditor Law Sections 273 and 276; Public Housing Law Section 14(4)(a).
- Summary:
- Landlord's predecessor-in-interest gave two tenants (Alvarez and
Clark) leases which contained "sweetheart" clauses, permitting them to
sublet and assign, without limitation, and to occupy their apartments
as occasional residences rather than primary residences. The former
landlord gave a "sweetheart lease" to Clark in order to satisfy an
unpaid plumbing bill of approximately $40,000.00 and gave the other
"sweetheart lease" to Alvarez, because she was the niece of one of the
partners. Shortly thereafter, the property was foreclosed upon. The
new landlord brought an action against the tenants (Alvarez and Clark)
seeking a court order (1) declaring that the tenants are not primary
residents, (2) ejecting (evicting) the tenants; (3) declaring that the
unrestricted subletting, assignment and residency provisions of the
leases are void or voidable and (4) awarding damages and attorney's
fees. The Supreme Court refused to declare the leases void or
voidable, finding that a landlord could waive its rights under the
rent stabilization law (such as the right to evict a tenant for
non-primary residency or for illegal subletting or assignment). The
Appellate Division, First Department overturned the Supreme Court's
decision and found the lease clauses at issue void as violative of public policy and
the rent control and rent stabilization laws. The rent control and
rent stabilization laws were enacted to protect tenants in the midst
of a severe housing shortage. They were not meant to protect tenants
who wish to sublet or assign their leases for a profit or to give
non-primary residents the ability to keep their apartments for their
convenience. Non-primary residents should give up their apartments
for possible re-rental to someone who needs to use it as a primary
residence. These tenants only serve to worsen the shortage of
affordable housing. For these public policy reasons, the appellate
court held that the sweetheart provisions of these leases (but not the
entire leases) are null and void. The appellate court, however,
refused to eject the tenants without a trial. The court commented
that the tenants may have equitable rights because of the substantial
renovations they made to their apartments to make them habitable. In
addition, Clark's daughter, Melissa Stein, may prove at trial that she
has succession rights to Clark's apartment.
- Case Caption:
- Handwerker v. Ensley
- Issues/Legal Principles:
- Absent extraordinary circumstances, the Supreme Court should not enjoin a landlord from commencing a summary nonpayment proceeding in the housing part of the civil court.
- Keywords:
- injunction, roommates, rent overcharge, profiteering
- Court:
- Appellate Division, First Department
- Judge:
- Lower court judge: Hon. Emily Goodman
- Date:
- May 17, 1999
- Citation:
- NYLJ, page 27, col 1
- Referred Statutes:
- Civil Court Act Section 208
- Summary:
- Ensley is the tenant of a loft studio/apartment in Soho. In February 1994 she entered into a two-year "roommate(s) studio and/or living agreement" with Handwerker. After this agreement expired, the parties entered into a nine-month agreement and a seven-month agreement. Handwerker stopped paying rent after the last agreement and Ensley served him with a notice of termination / notice to quit in November 1997. Then Handwerker brought a Supreme Court action seeking to enjoin Ensley from commencing a summary holdover proceeding in housing court. Handwerker also claimed rent overcharge and harassment. The Supreme Court enjoined Ensley, as requested by Handwerker. The Appellate Division, First Department reversed. Although the agreement is a "roommate" agreement, Ensley and Handwerker were in a landlord-tenant relationship. Absent extraordinary circumstances, a nonpayment dispute is a summary proceeding that should be brought in the housing part of the civil court. The Supreme Court should not enjoin such proceedings unless the civil court is without jurisdiction. In addition, the appellate court noted that a roommate couldn't sue a roommate for rent overcharge or rent profiteering. The appellate court's decision leaves Ensley free to commence a summary nonpayment proceeding against Handwerker in the housing part of the civil court.
- Case Caption:
- In Re Dupont Associates v. DHCR
- Issues/Legal Principles:
- DHCR determination - that discontinuance of storage space is a failure to maintain a building-wide service - is upheld by appellate court.
- Keywords:
- building-wide service; rent reduction; order to restore service; storage space
- Court:
- Appellate Division, First Department
- Judge:
- Hon. Elliott Wilk
- Date:
- May 17, 1999
- Citation:
- NYLJ, page 28, col 2
- Referred Statutes:
- (none cited)
- Summary:
- The DHCR determined that landlord had reduced building-wide
services by discontinuing basement storage space available to tenants.
DHCR ordered a rent reduction and ordered landlord to restore the
service. The Supreme Court, by order dated July 11, 1997, refused the
landlord's application to annul the DHCR's determination. The
Appellate Division, First Department, affirmed the Supreme Court's
order. The appellate court noted that the DHCR's determination was
supported by an inspection report; tenants' claims of the existence of
storage bins in the basement and tenants' photographs confirm these
claims. Therefore, the DHCR was not required to hold a hearing to
reach its determination.
- Case Caption:
- Minors v. Valley Storage
- Issues/Legal Principles:
- Landlord, New York City Marshal and the moving company are all potentially liable to evicted tenant for damage to and loss of tenant's personal property.
- Keywords:
- full eviction; legal possession; city marshal; negligence
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Justice Bransten
- Date:
- May 19, 1999
- Citation:
- NYLJ, page 26, col 6
- Referred Statutes:
- General Business Law Article 29-1; City of New York, Marshals Handbook
- Summary:
- Minors was evicted from her rent-controlled apartment on the grounds of nuisance, that is, that she permitted her apartment to become overly cluttered. After her eviction, Minors sued the landlord, the City Marshal and the moving company alleging that many valuable possessions had been stolen or destroyed at the time of her eviction. She alleged negligence, conversion and violations of the General Business Law. The landlord, the city marshal and the moving company all made motions for summary judgment, each alleging that they are not liable to plaintiff, as a matter of law. The court denied summary judgment to all three defendants, stating that the dispute must be resolved at trial. THE LANDLORD The landlord was obliged to give tenant the right to remove her possessions from the apartment, after the landlord obtained legal possession. Tenant claims that landlord did not give her this opportunity. Landlord also hired an independent contractor to remove tenant's possessions, rather than asking the marshal to do a full legal eviction. Landlord is therefore liable to tenant if he did not exercise reasonable care in hiring and supervising the independent contractors. THE CITY MARSHAL The Marshal gave landlord "legal possession" of the apartment but did not perform a "full eviction" (a removal of tenant's possessions as well as tenant herself). However, the marshal is obliged to inventory the property and provide a copy of the inventory form to the tenant. Tenant claims that the marshal did not perform a complete and accurate inventory. Tenant's claim can only be resolved after trial. THE MOVING COMPANY The tenant alleges that her property was stuffed into plastic bags and that her belongings were found broken when the plastic bags were unpacked. The court held that a trial was needed to resolve this issue.
- Case Caption:
- New York City Housing Authority v. Carter
- Issues/Legal Principles:
- If a remaining family member in an apartment in a public housing project is not eligible to remain in the apartment for some reason (for example, a failed criminal background check), then the remaining family member must be granted a formal "due process" hearing before a NYCHA hearing officer.
- Keywords:
- undesirability; succession rights; NYCHA tenants; right to Escalera hearing; right to due process hearing
- Court:
- Housing Part of the Civil Court, Kings County
- Judge:
- Hon. Judge Sikowitz
- Date:
- May 19, 1999
- Citation:
- NYLJ, page 30, col 3
- Referred Statutes:
- NYCHA Management Manual; Public Housing Law Sections 37(1)(k) and (w) and 156; 24 CFR Sections 5.403(l)(6), 966.4(B), 966.50, 966.53(f), 966.55(c) and (e)
- Summary:
- In January 1997, Edith Carter, a NYCHA tenant, filed an application with NYCHA requesting that her daughter, Dawn Carter, be permitted to live with her on a permanent basis. In February 1997, the project manager granted such permission. Edith Carter died in December 1997. However, in February 1998, the project manager reversed position and denied permission to Dawn Carter due to a failed criminal background check. (Dawn Carter committed a Class B misdemeanor in October 1996 for which she served a sentence of four days' community service). NYCHA's project manager and Dawn Carter had a "grievance meeting" on March 1998, after which the project manager once again concluded that Dawn Carter is ineligible to become a permanent tenant. NYCHA's District Manager approved this decision. However, NYCHA did not give Dawn Carter a "due process" hearing before a NYCHA hearing officer. Instead, NYCHA went directly to court and brought an eviction proceeding against Dawn Carter. NYCHA alleged that respondent, Dawn Carter, was a licensee (rather than a tenant) whose license to live in the apartment expired. Respondent argued that she is a tenant, that NYCHA is essentially attempting to evict her on grounds of undesirability and that she cannot be evicted on such grounds unless and until she is granted a "due process" hearing before a NYCHA hearing officer. Such hearings are required by the consent decree signed in Escalera v. NYCHA. The Court agreed with the respondent's arguments. The Court found that Dawn Carter is a "remaining family member" in accordance with the Public Housing Law. She qualifies as a "remaining family member" because she moved in, with the project manager's written approval, and remained in continuous occupancy up until the tenant's death. If a remaining family member is not eligible to live in public housing for some reason (for example, a failed criminal background check), then the remaining family member is entitled to a formal "due process" hearing before a NYCHA hearing officer. The Court granted the respondent's summary judgment motion and dismissed NYCHA's eviction case against her. However, the Court said that NYCHA can bring another eviction case against Dawn Carter, but only after she is given a due process hearing before a NYCHA hearing officer. NYCHA argued that respondent was not entitled to a "due process" hearing because (1) she did not formally request such a hearing and (2) because she was not current on "use and occupancy" payments. The Court rejected NYCHA's arguments.
- Case Caption:
- Eastern Estates LLC v. McPherson
- Issues/Legal Principles:
- Court finds "good cause" to vacate stipulation that was signed by pro se tenant who had inadvertently waived substantial defenses to landlord's nonpayment proceeding.
- Keywords:
- vacating stipulations
- Court:
- Housing Part of the Civil Court, Kings County
- Judge:
- Hon. Judge D. Thomas
- Date:
- May 19, 1999
- Citation:
- NYLJ, page 30, col 2
- Referred Statutes:
- CPLR Sections 3025(b), 3211(a)(7), 3212 and 402; Social Services Law Section 143-b
- Summary:
- Pro se (unrepresented) tenant entered into a stipulation with landlord settling a nonpayment proceeding on June 11, 1998. Tenant made certain payments pursuant to the stipulation, but apparently did not make all payments. As a result, landlord applied to the Court for entry of judgment against tenant for a sum certain and the issuance of a warrant of eviction. Tenant, now represented by attorney, responded by making a motion for a court order (a) vacating the stipulation, (b) permitting her to file an amended answer to the nonpayment petition, (c) granting summary judgement to tenant and (d) setting a hearing date where tenant's warranty of habitability and Spiegel Law defenses may be heard. The court refused to grant tenant's application for summary judgment, but granted the tenant's motion in all other respects. Summary judgment is not appropriate because the parties disagree about the facts. Therefore, a trial is needed to determine the facts. The court vacated the stipulation because the pro se tenant "has inadvertently waived substantial defenses in this proceeding, thus establishing good cause upon which to vacate the stipulation." Such defenses include rent overcharge, rent abatement on the grounds of landlord's alleged violations of the warranty of habitability and a Spiegel Law defense based upon the fact that the tenant is a welfare applicant and that there are serious breaches of the warranty of habitability. The Court noted that the tenant never asserted these "sophisticated" defenses because she was not represented by an attorney. The Court directed the tenant to file an amended answer by a date certain and directed a court appearance on a date certain for referral to a trial judge.
- Case Caption:
- In Re Langsam Property Services Corp. v. McCarthy
- Issues/Legal Principles:
- City agency's service of notices of violation upon employees of landlord's managing agent - rather than upon landlord - is good and sufficient service.
- Keywords:
- service of notices of violation; owner defined
- Court:
- Appellate Division, First Department
- Judge:
- lower court judge: Hon. Lewis Friedman
- Date:
- May 20, 1999
- Citation:
- NYLJ, page 26, col 1
- Referred Statutes:
- NYC Charter Section 1404(d); CPLR Sections 7803 and 7804; MDL Sections 4(44) and 304(11)
- Summary:
- The Environmental Control Board of the City of New York ("ECB") served certain notices of violation ("NOV's") upon landlord, Langsam Property Services Corp., by serving them upon certain employees of the landlord's managing agent. Langsam did not appear on the appointed hearing date, and a default judgement for a sum certain (penalties for the violations) issued against Langsam. The sheriff eventually served a levy (probably upon one of Langsam's bank accounts) and the landlord brought an Article 78 proceeding before the Supreme Court, New York County to vacate the default judgment. The landlord claimed that the default judgement should be vacated because service of the NOVs was improper - service should have been made upon one of Langsam's employees, rather than an employee of its managing agent. The lower court rejected landlord's arguments and upheld the ECB's default judgment. The appellate court upheld the lower court's order but disagreed with the lower court's reasoning. The appellate court cited to MDL Section 4(44). This section defines "owner" very broadly. The "owner" of a building includes an "agent, or any other person, firm or corporation, directly or indirectly in control of the building." The Landlord argued that NYC Charter Section 1404(d) requires that NOVs be served upon "a person employed by the respondent." The Court held that MDL Section 4(44) must be read in conjunction with NYC Charter Section 1404(d). When these sections are read together, the distinction between a person employed by the owner and a person employed by the managing agent does not have any legal significance. Therefore, service upon a person employed by the respondent's managing agent, who was in control of the premises at the time of service, constitutes proper service of the NOVs. The ECB's default judgment against the landlord is therefore valid.
- Case Caption:
- In Re Multiverse Real Estate, Inc. v. DHCR
- Issues/Legal Principles:
- DHCR's decision to deny landlord's application for rent restoration is upheld because it is rationally based on the report of a DHCR inspector.
- Keywords:
- rent restoration application; DHCR inspection report
- Court:
- Appellate Division, First Department
- Judge:
- lower court judge: Hon. Judge Joseph Giamboi
- Date:
- May 20, 1999
- Citation:
- NYLJ, page 28, col 4
- Referred Statutes:
- DHCR Policy Statement 96-1
- Summary:
- DHCR issued an order reducing tenants' rent due to certain conditions. The landlord, claiming that it had corrected the conditions, applied to the DHCR for an order restoring the rent. The DHCR denied landlord's application. The landlord then brought an Article 78 proceeding before the Supreme Court, Bronx County (the lower court) and the lower court denied the landlord's petition. The appellate court affirmed. The DHCR's decision that landlord failed to restore required services was based upon the report of its inspector. Therefore the DHCR's decision was rationally based and should not be overturned.
New York Law Journal, decisions for the week of May 10-14, 1999
(8 cases)
- Case Caption:
- Dworman v. DHCR
- Issues/Legal Principles:
- Luxury deregulation of apartment is rejected on appeal on grounds of default where
tenant submitted answer to landlord's luxury deregulation petition 11 months after the deadline,
but before the DHCR rendered a decision, particularly when tenant earned less than the statutory
income amount.
- Keywords:
- luxury deregulation
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Robert Lippman
- Date:
- May 11, 1999
- Citation:
- NYLJ, page 32, col 3
- Referred Statutes:
- Administrative Code of City of New York 26-504.1 & 504.3
- Summary:
- Landlord sought to deregulate the apartment on grounds that the rent exceeded $2,000
per month and the tenant's income exceeded $250,000 per year. (As of June, 1997, the
threshold was lowered to $175,000). The Appellate Division held that there is a factual
distinction between cases where a tenant never responds to the DHCR notice to tenant to answer
the landlord's luxury deregulation petition, and cases where a tenant does answer, but after the
60 day time period, although before the DHCR renders a decision. In the latter situations, the
Appellate Division held that the statute's language does not mandate that a failure to submit the
verification within the 60 days must result in deregulation by default, especially where the
default is excusable and occurs at the administrative level. To deregulate the apartment by
default in such circumstances is arbitrary and capricious. In this case the tenant's answer was
submitted 11 months late, but before the DHCR rendered a decision, and the tenant's income
did not exceed $250,000. Therefore the Appellate Division remanded the deregulation decision
back to the DHCR for a determination on the merits. The DHCR order will assuredly be
reversed and tenant's stabilization status reinstated in light of the tenant's income falling below
$250,000.
- Case Caption:
- Paganuzzi v. Primrose Management Co.
- Issues/Legal Principles:
- Interest and attorney's fees are granted to tenant in action involving judgment on a
previously won Fair Market Rent Appeal on the basis of contract law.
- Keywords:
- Fair Market Rent Appeal; attorney's fees; interest award
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Eileen Bransten
- Date:
- May 12, 1999
- Citation:
- NYLJ, page 30, col 5
- Referred Statutes:
- RPL 234; RSC 2650; CPLR 5001
- Summary:
- The plaintiff-tenants won an overcharge award at the DHCR against their landlord based
on a fair market rent appeal ("FMRA"). The amount of the award was about $19,000. When
plaintiff filed a lawsuit against the landlord seeking a money judgment, the landlord paid the
$19,000. The issues left for the trial court was whether plaintiff was entitled to interest on the
$19,000, whether plaintiff was entitled to attorney's fees, and whether plaintiff could obtain a
judgment jointly and severally against the landlord and the managing agent. The court relied on
an Appellate Division case for the principle that a managing agent cannot be held liable for
overcharges when acting as agent for a disclosed principal.
>dd> With respect to plaintiff's demand for pre-judgment interest, the landlord argued that
interest is not awarded in a FMRA award. The court, however, awarded interest on grounds
that plaintiff's interest award does not derive out of the FMRA, but rather upon breach of
performance of a contract under CPLR 5001. The landlord breached an implied covenant of the
lease contract not to charge in excess of the legal regulated rent. An action sounding in breach
of contract allows for an interest award. Although generally a FMRA award does not entitle
the tenant to recover attorney's fees, the court did note its authority to grant fees in connection
with a plenary action brought to enter judgment on a FMRA award (citing various case law),
so long as the standards of RPL 234 are satisfied. This statute pertains to when a tenant may
recover attorney's fees. Since the parties' lease contains an attorney's fees provision, and since
the FMRA award derives from landlord's breach of the lease, the court concluded that the tenant
is entitled to legal fees.
- Case Caption:
- 111 East 88th Partners v. Reich
- Issues/Legal Principles:
- Knowledge of tenant's dog by building doormen is imputed to tenant's landlord who is
the owner of the condominium unit.
- Keywords:
- pets; condos
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Maria Milin
- Date:
- May 12, 1999
- Citation:
- NYLJ, page 31, col 3
- Referred Statutes:
- Administrative Code of City of New York 27-2009.1(b); General Business Law 352-
eeee(3)
- Summary:
- The landlord brought a holdover proceeding against the tenant on grounds that the tenant
was harboring a dog in violation of the lease. The issue before the court was whether the
landlord waived its objection to the pet by failing to taken action within three months of
discovering the pet. The tenant stated in motion papers that he openly and notoriously harbored
the dog, to wit; by walking the dog three times a day and passing through the building's only
exit where the building's doormen perforce had to witness tenant with his 65 pound dog named
Orion. The landlord, however, argues that he did not discover the dog when the dog first came
to the premises. Rather, it was not until much later, and then upon his discovery of the dog,
the landlord timely commenced the action. The landlord is not the owner of the building, but
rather an individual owner of the condominium apartment where the tenant resides. The
landlord argued that the knowledge of the doormen, who are not his employees, should not be
imputed to him. The landlord further stated that neither the building employees or
condominium, nor the building's managing agent, ever brought the dog's presence to his
attention.
- The court looked to statutory language involving the establishment of co-ops and
condominiums: "All dwelling units occupied by non-purchasing tenants shall be managed by
the same managing agent who manages all other dwelling units in the building or group of
buildings or development." The court held that the statute is unequivocal in requiring one
managing agent and one set of building personnel. The statute's purpose is to insure that tenants
in condominium buildings (i.e., non-owners) receive the same services and amenities as
individual condo owners. The court rejected the landlord's argument that the building personnel
had no duty to report the dog to the condo owner. She held that to follow this argument to its
logical conclusion, the condominium board could be held liable for a breach of the warranty of
habitability occurring in a tenant's apartment, although this is a legal impossibility because there
is no landlord-tenant relationship between the condominium and the tenants. Only the condo
owner can be held liable for a breach of the warranty of habitability which occurs in a tenant's
apartment. "If that is the case, then there must be a duty on the part of the building personnel
to advise petitioner regarding conditions in the premises in much the same manner as there is
a duty to report to the condominium. Accordingly, knowledge of the dog by building employees
may, therefore, be imputed to petitioner." The court dismissed the petition and set the matter
down for a hearing on the tenant's attorney's fees.
- Case Caption:
- 16 Maujer Avenue HDFC v. Maisonet
- Issues/Legal Principles:
- Low-income co-op landlord who evicts non-purchasing tenant must allege a "good
cause" for the eviction because of the intimate role of the City of New York in the operation of
the building.
- Keywords:
- low-income co-ops; termination notice
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Delores Thomas
- Date:
- May 12, 1999
- Citation:
- NYLJ, page 33, col 4
- Referred Statutes:
- Article XI of the private Housing Finance Law Section 576
- Summary:
- The landlord is a low income cooperative corporation. Tenant resided in the building
before the cooperative conversion occurred. She chose not to purchase shares to her apartment
and was given a two-year lease. After it expired the landlord served her a 30 day termination
notice as a mere month to month tenant and then sought to evict her in Housing Court. The
landlord claims that the conversion was an "evict plan" and since tenant chose not to purchase,
and upon expiration of her lease, the landlord was entitled to evict her. The tenant claims that
the City of New York is so entwined with the operation of the building that due process requires
that the standards of when the City evicts a tenant in a City-owned building should apply in
tenant's case as well. An example of the City's "entwinement" includes the fact that if the
building is sold during the first 25 years of tenant-ownership, the City receives 40% of the
profit. The court referred to Appellate Division case law which held that where the City is so
entwined with a building, the owner was required to provide "good cause" for evicting a tenant
(which is the standard when a tenant in a City-owned building faces eviction.) Simply because
the tenant's lease has expired is not good cause according to the judge. The holdover petition
was thereupon dismissed.
- Case Caption:
- Matter of Law v. Franco
- Issues/Legal Principles:
- Tenants who withhold rent to enforce City to correct violations cannot be penalized by
termination of their tenancies on grounds of alleged chronic nonpayment of rent.
- Keywords:
- warranty of habitability; chronic nonpayment
- Court:
- Supreme Court, Bronx County
- Judge:
- Hon. G. Friedman
- Date:
- May 12, 1999
- Citation:
- NYLJ, page 31, col 5
- Referred Statutes:
- RPAPL 745(2); RPL 235-b; CPLR 7804(g)
- Summary:
- Tenants in City Housing had egregious conditions in their apartments, including a
leaking waste pipe and vermin infestation. They brought an HP action and had to restore it to
for a contempt order when the City failed to make the repairs. The tenants also withheld rent
and were awarded a 50% abatement. At one point the trial judge personally inspected the
premises and found a continuing moisture problem. In the ensuing months the tenants continued
to withhold rent resulting in additional nonpayment proceedings wherein a 50% abatement was
again awarded. In the midst of this, the City advised the tenants that if they did not pay their
rent they would be charged with "chronic rent delinquency" which is a ground for terminating
their tenancies. The issue before the court was whether these tenants had a right to withhold
rent in response to the City's failure to make repairs.
- At the administrative hearing on the chronic nonpayment cases, the hearing officer ruled
against the tenants and refused to allow testimony concerning the reasons why rent was withheld
(i.e., the conditions in the premises). The hearing officer determined the tenants should pay
their rent regardless of their dispute with the landlord over the repairs. On an Article 78 appeal,
the court ruled that the hearing officer's position was arbitrary and capricious. The court
acknowledged another case wherein that judge held that tenants are not entitled to withhold rent.
Rather tenants' remedy should lie in an HP action or a lawsuit seeking an abatement, and that
rent should be paid during the dispute. This court rejected that reasoning. The court observed
that it was archaic common law that obligated a tenant to pay rent regardless of the conditions
of the leased space. The court belittled the concept that a tenant's duty to pay rent is
independent from a landlord's obligation to maintain the premises. Rather, this court held that
the statutory warranty of habitability makes the parties' obligations mutual and interdependent.
Further, a tenant should not be penalized in efforts to enforce housing standards and penalization
might be implied in a chronic nonpayment charge. Withholding of rent is a weapon the tenants
have to force the landlord to do repairs and this weapon should not result in punitive action by
the landlord.
- Case Caption:
- Stahl Broadway Co. v. Haskins
- Issues/Legal Principles:
- Landlord cannot bring a nonpayment proceeding where tenant's rental arrears had been
discharged in bankruptcy prior to the commencement of the proceeding.
- Keywords:
- judgment; arrears; bankruptcy
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Marcy Friedman
- Date:
- May 12, 1999
- Citation:
- NYLJ, page 28, col 6
- Referred Statutes:
- RPAPL 711(2)
- Summary:
- The landlord brought a nonpayment proceeding against the tenant, but the rent arrears
sought had previously been discharged in a bankruptcy proceeding. The landlord claimed that
it did not seek a monetary judgment, but only sought a possessory judgment and warrant of
eviction based on the failure to pay the arrears. The lower court dismissed the petition on
grounds that a nonpayment proceeding may only be brought when rental arrears are owed at the
time of the commencement of the proceeding. The Appellate Term affirmed the decision and
distinguished these facts from one where it was previously held that a subsequent discharge in
bankruptcy did not render unenforceable a pre-existing state court judgment of possession.
- Notes:
- The lower court's full decision can be found in the May 18-22, 1998 Housing Court
Decisions Archives of Tenant.Net.
- Case Caption:
- Edelman v. Omayad
- Issues/Legal Principles:
- At trial the court ruled that landlord was permitted to look at notes to refresh his
recollection as to the amount of rent owed.
- Keywords:
- evidence; laches; service of process
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Anne Katz
- Date:
- May 12, 1999
- Citation:
- NYLJ, page 28, col 6
- Referred Statutes:
- RPAPL 735; CPLR 1018
- Summary:
- In this trial during a nonpayment proceeding, tenant appealed various rulings by the
judge. The Appellate Term affirmed the lower court's decision that the landlord presented a
prima facie case of the rent that was owed. The lower court ruled that it was proper for the
landlord to refer to notes to refresh his recollection as to the amount of rent owed. The
Appellate Term held that the credibility of the landlord's testimony was a matter for the trial
court to assess. The court rejected tenant's laches defense ("stale rent") in light of the absence
of demonstrated prejudice and the history of litigation between the parties. The Appellate Term
ruled that tenant's brother who was familiar with the tenant's signature, kept his books and
records, and had custody of his checks after they were negotiated by the landlord was a
competent authenticating witness. In that regard, the Appellate Term remanded the case for the
trial court to redetermine the rent after crediting the tenant with certain payments made as
evidenced by cancelled checks. The court rejected tenant's argument that the landlord should
have served him at a foreign address because the tenant failed to provide specific written
information as to this alternative address.
- Case Caption:
- Mettler v. Re
- Issues/Legal Principles:
- Private citizens cannot sue other private citizens to seek enforcement of the Multiple
Dwelling Laws.
- Keywords:
- certificate of occupancy
- Court:
- Supreme Court, Queens County
- Judge:
- Hon. Milano
- Date:
- May 12, 1999
- Citation:
- NYLJ, page 33, col 5
- Referred Statutes:
- Multiple Dwelling Law 56(2) & 303 & 306
- Summary:
- Owners of one building brought a declaratory judgment in Supreme Court against
owners of a building across the street. The plaintiffs alleged that defendants were in violation
of the multiple dwelling law by the usage of the basement which contained three residential
units. Plaintiffs alleged that defendants lacked a proper certificate of occupancy. The building
is an SRO and defendant had obtained permits from the Department of Buildings to do certain
construction work. The court ruled that the plaintiffs lacked standing to seek enforcement of
the Multiple Dwelling Law since the law provides that the duty for enforcing the provisions of
the law rest solely with the department charged with enforcing its regulations. In other words,
private citizens cannot sue under the Multiple Dwelling Law to compel a party to comply with
the law's provisions. Further, plaintiffs did not make any appeals of the Department of
Building's decision to issue defendants the permits granted.
- Notes:
- The case does not provide insight as to why the plaintiffs felt compelled to sue the
defendants over the defendants' use of the basement space. Although this case does not on its
face involve tenants, it is significant for its holding that private citizens (i.e., including tenants)
do not have a right to seek enforcement of the Multiple Dwelling Laws. Presumably, this is
applicable only when a private party sues another to seek enforcement of the Law, because
tenants have a right to raise as a defense in an eviction proceeding a landlord's
violation of Multiple Dwelling Laws (e.g., lack of a proper certificate of occupancy).
New York Law Journal, decisions for the week of May 3-7, 1999
(8 cases)
- Case Caption:
- In Re 140 West 57th Street Corp. v. DHCR
- Issues/Legal Principles:
- DHCR's order reducing rent due to a reduction of certain building-wide
services is upheld.
- Keywords
- rent reduction; building-wide services
- Court:
- Supreme Court, Appellate Division, First Department
- Judge:
- lower court judge: Luis Gonzalez
- Date:
- May 3, 1999
- Citation:
- NYLJ, page 27, col 6
- Referred Statutes:
- CPLR Article 78
- Summary:
- After holding a hearing, DHCR determined that the landlord had reduced
building services and amenities. DHCR ordered a rent reduction and a
restoration of services. The Supreme Court upheld the DHCR's determination
and the Appellate Division, First Department affirmed. The Court found
that there was ample rational basis for the DHCR's findings. The DHCR
properly held a hearing to determine the factual question of whether
services had been reduced. The DHCR found that services had been reduced
and that the reduction were not de minimis (that is, minimal) only after
hearing the tenants' testimony and finding their testimony credible.
Therefore, both the Supreme Court and the Appellate Court upheld the DHCR's
order.
- Notes:
- A trial court or agency determination which is based upon
determinations of fact and credibility of witnesses will generally not be
overturned by an appellate court. The appellate court did not hear and
observe the witnesses and is in no position to make factual or credibility
determinations which differ from the determinations of the trial court or
agency.
- Case Caption:
- Negron v. Goldman
- Issues/Legal Principles:
- Tenants' recovery on their rent overcharge claim is limited to the
four-year period immediately preceding commencement of the action.
- Keywords:
- rent overcharge; four-year statute of limitations
- Court:
- Appellate Term, First Department
- Judge:
- lower court judge: Hon. Doris Ling-Cohan
- Date:
- May 4, 1999
- Citation:
- NYLJ, page 26, col 2
- Referred Statutes:
- RRRA of 1997; CPLR Section 231-a and RSL Section 26-516(a)
- Summary:
- On December 1, 1995, tenants asserted a claim alleging that they have
been overcharged since April 1, 1991. The landlord asserted an affirmative
defense based upon the four-year statute of limitations. However the
landlord did not file its initial (1984) registration statement until 1996.
The trial court dismissed the landlord's affirmative defense, holding that
the statute of limitations did not begin to run until the landlord filed
the initial registration statement in 1996. The appellate court modified
the trial court's order, in accordance with CPLR Section 213-a, limiting
tenants' recovery on their claim for rent overcharge to the four-year
period immediately preceding commencement of the action, that is, from
December 1991 through December 1995. In every other respect, the appellate
court affirmed the trial court's finding.
- Notes:
- A summary of the trial court's decision appears in tenant.net's
housing court decisions for the month of February 1998. This summary is
based upon the decisions of the trial court and the appellate court.
- Case Caption:
- Martha H. Washington Hotel v. Prince
- Issues/Legal Principles:
- Hotel unit is no longer subject to rent regulation due to occupancy by
transient tenants - who paid rent in excess of $2,000 per month - for four
years prior to the date tenant asserted an overcharge claim.
- Keywords:
- rent overcharge; luxury deregulation; hotel tenant
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Malatzky
- Date:
- May 5, 1999
- Citation:
- NYLJ, page 29, col 6
- Referred Statutes:
- CPLR Sections 213-a, 321 and 3212; RSL Sections 26-506 and 26-516; RSC
Sections 2520.11(g), 2520.6, 2521.1(b)(2)and 2422.5; RRRA of 1997.
- Summary:
- Landlord brought a holdover (eviction) proceeding against the tenant
of a room in a Class B hotel, alleging that that the premises is no longer
subject to rent regulation because of luxury deregulation: the rent exceeds
$2,000.00 per month. Tenant moved to dismiss the petition because it
failed to allege that the room is subject to rent regulation and also
claimed rent overcharge; landlord argued that the petition properly alleges
that the premises is not subject to rent regulation and moved for summary
judgment. The Court found for the landlord.
Certain hotel rooms are subject to rent stabilization. RSL Section 26-506
states as follows: "...this law shall apply to dwelling units in all hotels
except hotels erected after [July 1, 1969], whether classified as a class A
or a Class B multiple dwelling, containing six or more dwelling units,
provided that the rent charged for the individual dwelling units on [May
31, 1968] was not more than [$350/month] or [$88/week]." There are two
types of hotel occupants: (a) a transient tenant who is not protected by
rent stabilization and (b) a permanent tenant, who is protected by rent
stabilization. A transient tenant is someone who occupies a hotel room for
less than six months and who has not requested a lease from the landlord.
A transient tenant may become a permanent tenant by asking the landlord to
issue a lease for a period of six months or more. A transient tenant may
also become a permanent tenant by occupying a hotel room for six months or
more. In the instant case, the occupant of the hotel room took occupancy
on October 9, 1998 at the rate of $115 per day (which amounts to $3,450.00
per month). She asked for a lease on October 14, 1998 and alleges that she
become a permanent tenant on that date, entitling her to a legal regulated
rent of $161.14 per week, the rent that the landlord has always registered
with the DHCR. The landlord argues that the legal regulated rent is $115
per day.
Regarding the legal regulated rent of a hotel unit, RSC Section
2521.1(b)(2) provides as follows: "if any vacant housing accommodation is
rented on or after August 15, 1983, the initial legal registered rent shall
be the lawful rent paid by the most recent prior tenant plus any subsequent
lawful increases and adjustments, if there has never been a prior tenant,
the initial legal registered rent shall be the rent paid by the most recent
hotel occupant, plus any subsequent lawful increases and adjustment."
The Court adopted the landlord's argument in its decision. Although the
rent was registered at $161.14 per week, it was also registered as
"vacant." The nature of the occupancy (transient versus permanent) - not
the registered rent - is controlling. The landlord presented evidence that
there has been no permanent (rent stabilized) tenant of the unit for the
four years prior to the present occupant's filing of an overcharge
complaint. A hotel unit is exempt from rent regulation during a period of
transient occupation. RSC Section 2520.11(g)(1). The Court is prohibited
from examining rent history that is more than four years old. RSL Section
26-516; CPLR Section 213-a. Therefore, the legal rent must be set at $115
per day, the last rent paid by the most recent hotel occupant and the
"first rent" agreed to by respondent-hotel occupant. The rate of $115 per
day ($3,450 per month) exempts the unit from rent regulation pursuant to
the luxury deregulation law because the monthly rent exceeds $2,000.00 per
month. The Court granted landlord's petition and ordered the issuance of a
warrant of eviction and a money judgment.
- Case Caption:
- West 69th Street Partners v. Elgindi
- Issues/Legal Principles:
- Holdover proceeding is dismissed because landlord accepted rent after
service of the notice of termination and before commencement of the
proceeding; since landlord bypassed its own computer blocking system in
order to make the deposit, the acceptance was not inadvertent.
- Keywords:
- termination notice; acceptance of rent
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Chin
- Date:
- May 5, 1999
- Citation:
- NYLJ, page 30, col 2
- Referred Statutes:
- none cited
- Summary:
- Landlord served tenant with a notice of termination that terminated
the tenancy effective December 31, 1998. The Landlord commenced a holdover
proceeding on January 6, 1999, by filing a petition and notice of petition
with the clerk of the court. After the date of termination and before the
commencement date of the proceeding, the tenant paid and the landlord
accepted tenant's rent for the month of January 1999. The Court held that
by accepting the rent, the landlord vitiated (canceled) the termination
notice and therefore granted the tenant's motion to dismiss the holdover
petition. The landlord unsuccessfully argued that it "inadvertently"
accepted the check and returned the money to the tenant "without
unreasonable delay." Landlord used a computerized rent collection system
and, in December 1998, entered a "block" to alert the computer operator not
to accept rent payments from the respondent-tenant. The landlord utilized
this system because he was aware that the courts dismiss holdover petitions
if rent is accepted after the tenancy has been terminated. Nevertheless,
the landlord purposely bypassed the computer block and deposited tenant's
check because landlord was short on cash and need the money to pay bills.
Under these facts, the landlord's acceptance of the check was not
inadvertent.
- Case Caption:
- 145-47 Morningside Avenue HDFC v. Yann
- Issues/Legal Principles:
- The landlord's failure to allege regulatory status beyond the bare
statement that petition is an HDFC requires dismissal of the petition.
- Keywords:
- Housing Development Fund Corporation; HDFCs; rent regulatory status;
dismissal of petition
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Billings
- Date:
- May 5, 1999
- Citation:
- NYLJ, page 30, col 3
- Referred Statutes:
- CPLR Section 3211; RPAPL Section 741; RPL Section 232-a; General
Business Law Section 352-eeee; Private Housing Finance Law Section 570 et
seq; RSL Section 26-504(a); ETPA Section 8621 et seq.
- Summary:
- Landlord, a housing development fund corporation ("HDFC") served
tenant with a "notice to tenant of non-renewal of lease, termination of
tenancy and intention to recover possession." Landlord then served tenant
with a holdover petition seeking eviction on the grounds that the tenant's
lease has expired. Tenant moved to dismiss because of various alleged
defects in the petition, including failure to allege proof of service of
the termination notice and failure to identify the rent regulatory status
of the premises with particularity. The Court rejected the tenant's first
argument. Tenant does not claim prejudice due to the petition's failure to
allege the manner in which the termination notice was served. Nor does
tenant deny timely receipt of the notice. Therefore the failure to allege
the manner of service "is a non-material and therefore de minimus variation
that is not fatal to the court's jurisdiction." (The court implied that if
the petition had failed to allege service of a predicate termination
notice, this would be grounds for dismissal of the petition). The Court
accepted the tenant's second argument (failure to identify rent regulatory
status with particularity) and dismissed the petition. The caption of the
proceeding identifies the landlord as an HDFC. However, the body of the
petition does not even allege that petitioner is an HDFC nor does it
further describe its HDFC status. HDFCs are funded by federal, state or
city assisted mortgages. Sometimes this financial backing comes with
"strings attached," that is, the housing may be subject to certain
tenant-protection regulations. In some types of HDFCs, a tenant may not be
evicted without a showing of "good cause." In these instances, the
expiration of a lease is not sufficient cause for eviction. Since the
landlord did not describe the nature of its HDFC status with particularity
in its petition, the tenant was unable to determine whether he had any
rights and defenses flowing from statutory or regulatory provisions which
relate to some HDFCs. This failure also prevented the court from
determining whether the termination notice upon which the holdover petition
is predicated is adequate. Although the landlord sought to amend its
petition, alleging its HDFC status and the reasons why the tenant has no
regulatory, statutory or due process rights based on government regulation
or involvement, it is too late. Even if the court were to grant the
landlord's requested amendment to the petition, it does not change the fact
that this valuable information was not included in the termination notice.
Amending the petition cannot cure a defect in the termination notice upon
which the holdover petition is based. Chinatown Apartments v. Chu Cho Lam.
In addition, the court held that the petition's failure to include
information pertaining to HDFC status is a fatal and unamendable defect
because it is "fundamental" and "implicates a potential defense to the
proceeding."
- Case Caption:
- Mauro v. Callender
- Issues/Legal Principles:
- The Supreme Court refuses to issue a "writ of prohibition" to prevent
a Judge of the Housing Court from proceeding with a civil contempt hearing
against a landlord.
- Keywords:
- civil contempt; writ of prohibition
- Court:
- Supreme Court, Kings County
- Judge:
- Hon. Justice Dowd
- Date:
- May 5, 1999
- Citation:
- NYLJ, page 31, col 6
- Referred Statutes:
- CPLR Section 7804(f); CPLR Section 3211(a)(2) and (7); Judiciary Law
Section 753(A); NYCCCA Section 212 and 1701.
- Summary:
- On January 22, 1999, Judge Callender of the Housing Part of the Civil
Court, Kings County issued a decision an order scheduling a civil contempt
trial against landlord Yvonmils, Inc. (a corporation) and William Mauro
(the corporate president) to determine the allegation that they had
violated two court orders. The first order was issued by the Supreme
Court, Kings County. It prohibited the landlord Yvonmils from collecting
rents and profits generated by the premises and appointed Millman the
receiver of the premises (that is, the person entitled to collect the rents
and profits). The second order was issued by a Bankruptcy Court. It also
appointed a receiver and prohibited Yvonmils from interfering with the
duties of the receiver. Yvonmils and Mauro violated both court orders by
commencing nonpayment proceedings against certain tenants in housing court.
The Receiver, Millman, brought a nonpayment proceeding in housing court
against a tenant named Jack (Millman v. Jack). In the context of that
proceeding, the receiver made a motion to hold Yvonmils and Mauro in
contempt for violating the court orders. The housing court judge, Judge
Callender, decided that the Housing Court had the authority to punish
Yvonmils and Mauro for civil contempt although (1) the orders violated were
not orders of the housing court, (2) Mauro was not named as a party in
either the bankruptcy proceeding or the Supreme Court proceeding, and (3)
Yvonmils and Mauro were not parties to the nonpayment proceeding Millman v.
Jack. Judge Callender's decision relied upon Judiciary Law Section 753(A),
which grants a court of record the power to punish for civil contempt a
failure to obey a lawful mandate of a court "by which a right or remedy of
a party to a civil action or special proceeding, pending in the court may
be defeated, impaired, impeded, or prejudiced, in any of the following
cases *** (2) A party to the action or special proceeding *** for any
deceit or abuse of a mandate or proceeding of the court." Judge Callender
found that Yvonmils and Mauro, by bringing nonpayment proceedings against
tenants of the premises, had impaired the rights of the receiver. Judge
Callender then scheduled a civil contempt trial. The trial was interrupted
when Mauro brought an Article 78 proceeding in the Supreme Court, Kings
County and a Justice of that court signed an Order to Show Cause at the
request of Mauro. The Order to Show Cause temporarily interrupted the
contempt proceedings in Housing Court while the Supreme Court decided
whether or not these proceedings should be permanently interrupted (that
is, whether a "writ of prohibition" should issue). Mauro simultaneously
filed an Article 78 proceeding asking the Supreme Court to find that Judge
Callender had exceeded his jurisdiction and authority. The Supreme Court
refused to issue the writ of prohibition, which is an extraordinary remedy,
and agreed with the reasoning in Judge Callender's decision. The Supreme
Court further explained that when Judge Callender makes a final decision on
the civil contempt issue (for example, if he finds Yvonmils and Mauro in
civil contempt), that Yvonmils and Mauro could appeal Judge Calendar's
decision to the Appellate Term, First Department.
- Case Caption:
- Giaio v. Greco
- Issues/Legal Principles:
- Court vacates stipulations settling nonpayment proceedings, final
judgment and warrant of eviction issued against tenant because landlord's
attorney failed to give a predicate thirty-day notice as required by the
FDCPA.
- Keywords:
- FDCPA; thirty-day notice
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Callender
- Date:
- May 5, 1999
- Citation:
- NYLJ, page 32, col 4
- Referred Statutes:
- Fair Debt Collection Practices Act ("FDCPA"), 15 USC Section 1692;
RPAPL Section 711(2); US Constitution Art. VI Clause 2
- Summary:
- Respondent-tenant entered into two separate stipulations settling
nonpayment proceedings (August 1998 and October 1998). In each
stipulation, he consented to the issuance of a final judgement of
possession. Tenant now moves to vacate the stipulations (and the final
judgment and warrant of execution which issued as a result of the
stipulations) because the nonpayment proceedings were predicated upon a
three-day notice (as permitted by state law) rather than a thirty-day
notice (as required by federal law, specifically the FDCPA). The Court
granted the tenant's motion in full. The Court found that the FDCPA
applies to the facts of this case. The landlord's attorney (rather than
the landlord) signed the three-day notice. An attorney's activities are
covered by the FDCPA. That is, when an attorney signs a three-day notice
(rather than the landlord), the notice must give the tenant-debtor thirty
days to dispute the debt, as required by the FDCPA. The Court cited to
Romea v. Heiberger and subsequent cases. The Court further explained that
the FDCPA was also intended to protect consumers from statute laws that are
unfair and inconsistent with the FDCPA and that federal law always
supersedes conflicting state law. The Court reached its decision
notwithstanding the fact that the tenant owed about $6,000 in rent arrears
as of the date the Court's decision was written.
- Notes:
- Dearie v. Hunter is a similar case where Judge Ruben Martino vacated a
stipulation with a judgment, and dismissed the non-payment petition on
grounds that it violated the FDCPA. That case was appealled by the
landlord and was argued in the Appellate Term for the May, 1999 term.
Dearie v. Hunter will be the Appellate Term's first opportunity to hear an
FDCPA case coming from Housing Court, and therefore the decision will be
particular important.
- Case Caption:
- Pembroke Square Associates v. Coppola
- Issues/Legal Principles:
- A tenant of a cooperative apartment leased from the sponsor after
title has passed to the cooperative corporation may be evicted at the end
of the lease without cause; such a tenant is not entitled to the protection
of the Martin Act.
- Keywords:
- the Martin Act; non-purchasing tenant; "purchaser under the plan"
- Court:
- Housing Part of the Civil Court, Queens County
- Judge:
- Hon. Judge Franke
- Date:
- May 5, 1999
- Citation:
- NYLJ, page 32, col 6
- Referred Statutes:
- General Business Law Section 352.eeee ("The Martin Act")
- Summary:
- The premises which is the subject of this holdover (eviction)
proceeding is a cooperative apartment. The landlord of the subject
apartment owns the shares and was also the sponsor of the plan to convert
the building to cooperative ownership. (In other words, the landlord of
the subject apartment used to be the owner of the entire building). When
the building owner conveyed title to the cooperative corporation, the
shares to the subject apartment (and the shares to all other apartments
that were not otherwise sold) were conveyed back to the sponsor. Seven
years later, the landlord leased the subject apartment to tenant Coppola,
and upon expiration of the most recent sublease, commenced a holdover
proceeding against tenant on the grounds that the lease had expired. Both
the landlord and the tenant moved for summary judgment. The tenant argued
that the landlord was not entitled to evict him without cause, because he
is a "non-purchasing tenant" protected by the Martin Act. A
"non-purchasing tenant" cannot be evicted without cause. In support of his
argument, tenant cited to a recent favorable decision made by a housing
court judge in Kings County called Paikoff v. Harris. The Court determined
that it was not bound by a decision of a housing court judge in another
county, found that the tenant was not protected by the Martin Act, granted
summary judgment (and a judgment of possession) to landlord. The Martin
Act protects a tenant if the tenant is a "non-purchasing tenant" and the
landlord is a "purchaser under the plan" as those terms are defined in the
Martin Act. The Court quoted the Martin Act's definition of "purchaser
under the plan" as follows: "A person who owns the shares allocated to a
dwelling unit or who owns such dwelling unit itself." The Court held that
the landlord in this case satisfied this definition, since he owns the
shares to the subject apartment. (The Paikoff court decided that the
sponsor could not possibly be a purchaser under the plan but is, instead,
the sponsor and a "holder of unsold shares"). The Court also quoted the
Martin Act's definition of "non-purchasing tenant" as follows: "A person
who has not purchased under the plan and who is a tenant entitled to
possession at the time the plan is declared effective or a person to whom a
dwelling unit is rented subsequent to the effective date. A person who
sublets a dwelling unit from a purchaser under the plan shall not be deemed
a non-purchasing tenant." The last sentence of this definition persuaded
the Court that the tenant in this case is not a non-purchasing tenant,
because the tenant in this case is renting from the landlord, who is a
"purchaser under the plan."
- Notes:
- The law on this issue will remain unsettled until this case or a
similar case is appealed. Rumor had it that Paikoff (a Second Department
case) was being appealed by the landlord, but further rumor has it, that
Paikoff has settled. The Coppola case is another Second Department case.
No judge in the First Department (Manhattan/Bronx) has yet ruled on a
similar Martin Act case, although it is known that Judge Bruce Kramer is on
the verge of rendering a decision in several cases pending before him. Any
decision from a First Department judge will be watched, especially now in
light of the split in the Second Department between the Coppola and Paikoff
decisions.
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