Housing Court Decisions November 1999
Editors: Colleen F. McGuire, Esq., Chief Editor
Linda Rzesniowiecki, Esq. and Robert E. Sokolski, Esq.
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New York Law Journal, decisions for the week of November 22-26, 1999 (7 cases)
- Case Caption:
- McCormick v. Moran
- Issues/Legal Principles:
- Landlord's costs for cleaning tobacco smoke residue resulting from tenant's heavy smoking was recoverable upon tenant's vacancy from apartment.
- Keywords:
- smoking; tobacco smoke residue; cleaning; excessive wear and tear; security deposit
- Court:
- City Court of Watertown
- Judge:
- Hon. Haberson
- Date:
- November 24, 1999
- Citation:
- NYLJ, page 35, col 3
- Referred Statutes:
- Public Health Law Article 13-E
- Summary:
- Upon vacating her apartment, tenant sued her landlord for the return of her $375.00 security deposit. The Landlord counterclaimed for $455.64, which the landlord paid to a local cleaning company for general cleaning of the apartment. The landlord claimed that the tenant's heavy smoking left a smelly residue on the floors, walls, windows, woodwork and carpets in the apartment which were above and beyond the "ordinary wear and tear" resulting from reasonable use of the premises by the tenant.
The court found that the tenant's excessive smoking and her failure to rectify the condition before she vacated created an offensive odor and a potential health risk that may arise to others who may use the premises. As evidence of the dangers caused by residue from smoking, the court cited Public Health Law Article 13-E, known as the "Clean Indoor Air Act," which allows hotel or motel operators to implement a smoking policy and if implemented, mandates the posting of notice as to the availability of non-smoking rooms. While the health statute itself is not applicable to private residences, the court awarded the landlord full costs of the cleaning, citing the lease provision which required the tenant to "use reasonable care to keep the premises in such condition as to prevent health and sanitation problems from arising." The court reasoned that the ordinary wear and tear "should not leave a leasehold in a condition that violates the warranty of habitability, which would be detrimental to the 'life, health or safety' of the next tenants, and subject the landlord to a violation of the warranty of habitability under Section 235-b of the Real Property Law."
- Case Caption:
- Yen v. Ramos
- Issues/Legal Principles:
- Absence of the words "primary residence" in landlord's notice of non-renewal is not fatal to an owner occupancy holdover proceeding.
- Keywords:
- owner occupancy; owner use; non-renewal notice;
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Carol H. Arber
- Date:
- November 24, 1999
- Citation:
- NYLJ, page 30, col 3
- Referred Statutes:
- RSC 2524.2(b)
- Summary:
- Landlord brought an owner occupancy holdover proceeding, based upon a notice of non- renewal which stated that the landlord "desires occupy [sic] for her own use and residence," and further explained the landlord's circumstances of the loss of her own New York apartment. The Housing Court, New York County dismissed the action, due to the landlord's failure to specify that she sought to use the premises as her "primary residence" in the non-renewal notice.
The Appellate Term, First Department reversed, and reinstated the petition, finding that the non-renewal notice conformed to the specificity required by Rent Stabilization Code 2524.2(b) and governing cases. The court reasoned that the words "primary residence" were terms of art and not specifically required, as long as the characterization of the intended use of the premises was "not inconsistent with its use as a primary residence."
- Case Caption:
- Change Tenants Association v. Carter
- Issues/Legal Principles:
- Relatives in Tenant Interim Lease buildings are not entitled to succession rights
- Keywords:
- TIL; tenant interim lease; succession rights
- Court:
- Housing Court, New York County
- Judge:
- Hon. Schachner
- Date:
- November 24, 1999
- Citation:
- NYLJ, page 32, col 4
- Referred Statutes:
- none cited
- Summary:
- After the record tenant in a Tenant Interim Lease ("TIL") building died, the landlord, a net lessee of the City of New York Department of Housing Preservation and Development ("HPD") pursuant to the TIL program, sought to evict the tenant's family members as licensees of the record tenant.
The Respondents claimed that they had succession rights to the TIL apartment. The court disagreed, noting that the regulations applicable to the TIL program, under the aegis of HPD's Division of Alternative Management Program, do not contain any provision for succession by a family member to the tenancy. Due to the regulation's silence on the issue of succession, and the fact that the City had adopted succession regulations for other types of HPD supervised buildings, the court was bound by the regulations, as well as prior case law rejecting TIL succession right claims. The court noted that the "failure of the City to address the issue of succession in its TIL regulations results in harsh consequences for family members of TIL tenants. It would certainly be appropriate for the City to establish guidelines for its TIL buildings on the issue of succession."
The Court granted summary judgment against the Respondents on their succession rights claim, but refused to dismiss the Respondent's claims for waiver and failure to name a necessary party, finding issues of fact that remained for trial and rejecting claims of petitioner's counsel that a prior judge had already dismissed the remaining claims.
- Case Caption:
- In re Yvonne Johnson v. New York City Housing Authority
- Issues/Legal Principles:
- Termination of public housing tenancy for violating stipulation excluding emancipated child from visiting the apartment was a penalty which shocked the conscience of the court, where the tenant was raising six children, relied upon public assistance for support and had an otherwise unblemished record in public housing.
- Keywords:
- public housing; termination; excessive penalty; excluded child
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Phyllis Gangel-Jacob
- Date:
- November 23, 1999
- Citation:
- NYLJ, page 24, col 4
- Referred Statutes:
- none cited
- Summary:
- A public housing tenant brought an Article 78 proceeding to challenge the New York City Housing Authority's termination of her tenancy based upon her violation of a stipulation of settlement in a prior nondesireability proceeding, where the tenant conditioned her eligibility upon the continued absence of her emancipated son from the apartment. The Supreme Court, New York County transferred the matter to the Appellate Division, First Department, pursuant to CPLR 7804(g), as the tenant presented issues of whether the Housing Authority's determination was supported by substantial evidence.
While the Appellate Division found that substantial evidence supported the Housing Authority's determination that the tenant's excluded son visited the apartment, the Appellate Division also found that the penalty of termination shocked the conscience of the court, and vacated the penalty of termination, remanding the case back to the Housing Authority for imposition of a lesser penalty. The Appellate Division reasoned that the tenant had an otherwise unblemished record in public housing, the tenant was raising six children including an adopted son and daughter and three foster children, she relied on public assistance and her disabled son's social security for her support, and the violation arose from the isolated act of her emancipated son who did not reside with her.
- Case Caption:
- East 77th Realty LLC v. Alin
- Issues/Legal Principles:
- Alleged violation of Fair Debt Collection Practices Act in predicate rent demand notice does not require dismissal of nonpayment summary proceeding.
- Keywords:
- Fair Debt Collection Practices Act; FDCPA; nonpayment summary proceeding
- Court:
- Housing Court, New York County
- Judge:
- Hon. Howard L. Malatzky
- Date:
- November 24, 1999
- Citation:
- NYLJ, page 32, col 2
- Referred Statutes:
- 15 U.S.C. 1692; RPAPL 711(2)
- Summary:
- Tenant moved to dismiss a summary nonpayment proceeding, for failure to state a cause of action, and failure to comply with the Fair Debt Collection Practices Act, 15 U.S.C. 1692 ("FDCPA"). The predicate rent demand, which required payment of the alleged past due rent within three days, the minimum time required by RPAPL 711(2), was signed by a member of the petitioner. However, the rent demand notice was printed on the letterhead of petitioner's counsel.
The court denied the tenant's FDCPA claims, noting that it was bound by the Appellate Term's holding in Wilson Han Associates v. Arthur, 7/6/99 NYLJ 29, col. 4, which held that a rent demand notice which does not comply with the FDCPA may still be used as a predicate rent demand in a nonpayment summary proceeding. The Housing Court correctly noted that the effect of a debt collection communication upon a consumer is determined using the "least sophisticated consumer standard." However, the court then proceeded to find that the least sophisticated consumer who received a rent demand on an attorney's letterhead, would have no reason to believe that the demand was from the attorney, as the signature on the letter was the petitioner's.
The Housing Court further denied the tenant's motion to dismiss for failure to state a claim, noting that the predicate notice informed the tenant of the period for which the rent was sought, the amount claimed, the specific sums representing rent for specific months, and the expiration date of the three day notice.
- Notes:
- The FDCPA is a federal consumer protection law which requires that a consumer be given clear and effective written disclosure of certain items and their rights pursuant to 15 U.S.C. 1692g in the initial debt collection communication from a debt collector, or within five days from the debt collector's initial communication. The disclosure must inform the consumer of the amount of the debt and the name of the creditor. The consumer's rights include the right to dispute the debt within thirty days; the right to be provided a verification of the debt or a copy of the judgment by mail from the debt collector upon written request from the consumer within thirty days; and the right to be provided name and address of the original creditor, if different from the current creditor, upon the consumer's written request within thirty days. Moreover, if the consumer disputes the debt, the debt collector must cease collection efforts until verification of the debt is mailed to the consumer.
In Romea v. Heiberger and several related cases which are featured in the Romea Folder on this cite, the United States Court of Appeals for the Second Circuit and several United States District Courts held that the FDCPA applies to RPAPL 711(2) rent demand notices, if they are the initial communication from an attorney debt collector. The issue of whether rent demand notices which violate the FDCPA may still be used as a predicate in nonpayment summary proceedings has been, and will be, the subject of further litigation. In Wilson Han Associates v. Arthur, 7/6/99 NYLJ 29, col. 4, the Appellate Term for the Second and Eleventh Judicial Departments (covering Brooklyn and Queens), held that the notice could still be used in state court, despite the violations of federal law. At least two cases embracing this issue (amongst other issues) are currently pending post-argument before the Appellate Term, First Department (covering Manhattan), which has yet to speak on whether the state law (RPAPL) is preempted by the federal consumer protection law (FDCPA).
What is disconcerting about this particular case is not that the court followed the only existing Appellate Term decision which allows the notice as a predicate to nonpayment summary proceedings. Rather, the court, in a complete divergence from almost every single FDCPA case decided in state or federal courts across the country, speculates that the "least sophisticated consumer" could not be confused as to the origin of a demand letter written on an attorney's letterhead, but signed by the attorney's client.
Current FDCPA precedent squarely holds that the question of who signs the communication is irrelevant. The issue is who "communicated" the message or who the least sophisticated consumer could believe communicated the message. If there is more than one possible conclusion to be drawn, the letter is deceptive, per se. In fact, if the least sophisticated consumer would be led to believe that a debt collector was involved when it was not (such as here, where the creditor has signed the letterhead of the debt collector), both the creditor and the debt collector could become liable under, amongst other sections, 15 U.S.C. 1692j, entitled "Furnishing certain deceptive forms."
Despite the state courts' reluctance to protect and enforce federal consumer rights and protections, it must be emphasized that tenant-consumers may still enforce their FDCPA rights in federal court. The FDCPA allows for attorneys fees, actual damages and statutory awards for up to $1,000.00 per case (even in the absence of proven damage), even if only a single violation is proven. Private lawsuits are the primary enforcement mechanism for most federal consumer protection laws, including the FDCPA.
- Case Caption:
- Draper v. Georgia Properties, Inc.
- Issues/Legal Principles:
- Court of Appeals affirms rent overcharge and denial of landlord's request for discovery, despite landlord's claims of non-primary usage and provisions of non-primary residential lease.
- Keywords:
- non-primary; de-regulation; overcharge
- Court:
- Court of Appeals
- Judge:
- lower court: not cited
- Date:
- November 24, 1999
- Citation:
- NYLJ, page 28, col 5
- Referred Statutes:
- RSC 2525.3(b);RSC 2520.13; RSL 26-403
- Summary:
- Trial Court awarded tenant summary judgment and denied landlord's application for discovery on her rent overcharge claims, and the award was affirmed by the Appellate Division. The landlord appealed to the Court of Appeals (as of right on a two-justice dissent), arguing that it should have been allowed to conduct discovery concerning the tenant's primary residence, particularly since her lease stated that she would not use the apartment as her primary residence.
The Court of Appeals affirmed the award of summary judgment, inasmuch as the Rent Stabilization Code 2525.3(b) expressly prohibits an owner from requiring a respective tenant "to represent or agree as a condition of renting a housing accommodation that the housing accommodation shall not be used as the . . . prospective tenant's primary residence." The Court of Appeals further noted that Rent Stabilization Code 2320.13 provides that "[a]n agreement by the tenant to waive the benefit of any provision of the [Rent Stabilization Law] or this Code is void." The Court rejected the landlord's attempt to de-regulate the apartment by contract, emphasizing that de-regulation was available through "regular, officially authorized means [citing RSL 26-403]."
As to the landlord's application for discovery, the Court affirmed the lower court's denial of discovery, noting that the tenant's submission of her affidavit and cogent and complete documentary evidence negated the necessity for discovery and fully supported summary judgment. Moreover, since the tenant provided copies of her driver's license, voter registration card, tax returns, utility bills, an enrollment contract for her son at a nearby private school and other letters to her by the landlord and others, all noting the subject premises as her address, the Court found that landlord could neither discover nor present evidence to overcome the tenant's position that no triable issue of fact was present as to her primary residence.
- Case Caption:
- Brinckerhoff v. New York State Division of Housing and Community Renewal
- Issues/Legal Principles:
- Landlord's failure to file an initial apartment registration (RR-1) has no effect upon the four year statute of limitations precluding the DHCR from examining the rental history of the apartment prior to the four years preceding the filing of an overcharge complaint.
- Keywords:
- overcharge complaint; RR-1; initial registration; 1997 RRRA
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Beverly Cohen
- Date:
- November 24, 1999
- Citation:
- NYLJ, page 30, col 4
- Referred Statutes:
- RSL 26-516(a); CPLR 213-a; RSL 26-516(a)(2); CPLR 3001; 42 U.S.C 1983
- Summary:
- Tenant filed an overcharge complaint on April 6, 1989, which resulted in an "Order and Determination Finding Rent Overcharge Where Owner Failed to Initially Register," rendered by the Rent Administrator on January 21, 1994, awarding the tenant $86,763.99 (trebling the award of $28,921.33) and rejecting the landlord's claims to rent increases due to renovations. The landlord filed a Petition for Administrative Review ("PAR"), which was granted, vacating the overcharge finding in its entirety. The PAR's finding of no rent overcharge was based upon a prohibition of Rent Regulation Reform Act of 1997 ("1997 RRRA"), which precludes the DHCR, or any court, from examining the rental history of a housing accommodation for more than four years preceding the filing of an overcharge complaint.
The tenant brought an Article 78 proceeding, which the Supreme Court, New York County resolved by affirming the PAR, finding that the 1997 RRRA's four year statute of limitations and prohibitions against examination of the rental history for more than four years prior to the overcharge complaint applied, notwithstanding that the landlord did not file the initial apartment registration ("RR-1") until November 9, 1992. The Court rejected the tenant's argument that it would be inappropriate to apply the 1997 RRRA where the owner failed to file the RR-1 before the overcharge claim was brought, and affirmed the base date of April 6, 1985 (four years prior to the April 6, 1989 overcharge complaint).
The court also rejected the tenant's claims that the 1997 RRRA was unconstitutional as retroactively applied, noting that the tenant did not have a property right in the Rent Administrator's order of January 21, 1994, which was rendered intermediate and nonbinding upon the filing of the PAR.
- Notes:
- Curiously missing from this case is whether the tenant filed a Fair Market Rent Appeal ("FMRA") within 90 days after the owner filed the initial apartment registration (RR-1) on November 9, 1992. The FMRA would have given the tenant a second means of challenging the registered rent.
New York Law Journal, decisions for the week of November
15-19, 1999
(5 cases)
- Case Caption:
- Zumo Management Inc. v. DHCR
- Issues/Legal Principles:
- An owner is prohibited from collecting any rent increase - including
guidelines, vacancy and 1/40th increases - after the DHCR issues a rent
reduction order.
- Keywords
- rent reduction order; rent increases
- Court:
- Supreme Court, Queens County
- Judge:
- Justice LaTorella
- Date:
- November 17, 1999
- Citation:
- NYLJ, page 32, col 1
- Referred Statutes:
- RSL Sections 26-511[a], 26-514 and 26-516; RSC Section 2526.1[a][1];
Operational Bulletin 95-1
- Summary:
- In February 1993, in response to a tenant complaint of a decrease in
services, DHCR issued a rent reduction order and ordered a rent rollback.
The landlord filed an application for rent restoration on February 6, 1996
and it was granted by DHCR on May 7, 1997 and made effective as of April 1,
1996. Thus, the rent reduction order was in effect from February 1993
until April 1, 1996.
In January 1994 a tenant vacated and the landlord made improvements to
the apartment. When Wilma Ruiz became the tenant in March 1994, the
landlord charged a vacancy increase and increased the rent by 1/40th the
cost of the improvements. In February 1997, tenant Ruiz filed a rent
overcharge complaint and the DHCR determined that she had been overcharged
because the landlord should not have collected a vacancy increase,
guidelines increase or 1/40th increase from tenant Ruiz while the rent
reduction order was in effect. Landlord filed an Article 78 proceeding
with the Supreme Court and the Supreme Court upheld the DHCR's
determination. Both RSL Section 26-514 and the DHCR's Operational Bulletin
95-1 clearly state that the owner is prohibited from collecting any rent
increase once a rent reduction order issues.
The landlord cited to cases where the landlord was permitted to collect
a 1/40th rent increase despite the existence of a rent reduction order. In
those cases, the landlord had completed the improvements and the tenant
began paying the 1/40th rent increase before the rent reduction order
issued. This case is different. The landlord made the improvements and
began charging the 1/40th increase after the rent reduction order issued.
In other words, in this case, the landlord ignored the rent reduction
order. The Supreme Court upheld the DHCR's overcharge award.
- Case Caption:
- Metz v. Duenas
- Issues/Legal Principles:
- Landlord must give tenant a clear and unequivocal demand for rent in a
specified amount prior to serving a notice of petition and petition upon
tenant.
- Keywords:
- rent demand
- Court:
- District Court, Nassau County
- Judge:
- Hon. Slano
- Date:
- November 17, 1999
- Citation:
- NYLJ, page 33, col 2
- Referred Statutes:
- RPAPL Sections 711 and 743; CPLR Sections 3018(b) and 3211
- Summary:
- Landlord brought a nonpayment proceeding against tenant predicated
upon an oral rent demand. Landlord - Ms. Metz - testified that she orally
demanded rent from tenant but could not recall whether she demanded the
rent in late March, April or early May. She offered no testimony about the
amount of rent she demanded. Ms. Metz, who does not understand Spanish,
said that her Spanish-speaking secretary made a rent demand in Spanish, but
the secretary did not testify at the hearing. The tenant testified,
through a Spanish translator, that she had discussions about the rent with
the secretary and Ms. Metz's brother but offered no testimony to the effect
that an actual rent demand was made. The Court granted the tenant's motion
to dismiss the case. The landlord did not comply with RPAPL Section 711,
which requires that landlord give tenant a clear and unequivocal demand for
rent in a specified amount prior to serving a notice of petition and
petition upon tenant. The Court further held that the Spanish-speaking
tenant should have received a rent demand in Spanish.
- Case Caption:
- Ardache Corporation v. Shea
- Issues/Legal Principles:
- Attorneys' fees may not be awarded to subtenant who prevailed in
litigation against landlord.
- Keywords:
- attorneys' fees
- Court:
- Civil Court, New York County
- Judge:
- Hon. Peter Wendt
- Date:
- November 17, 1999
- Citation:
- NYLJ, page 28, col 3
- Referred Statutes:
- RPL Section 234; CPLR Section 5519(c)
- Summary:
- Landlord brought a proceeding against tenant Shea for illegally
subletting the apartment to respondent Lawson. Lawson defeated the
landlord's case by proving that the landlord had waived any objections it
had to the sublet. Lawson then asked the court to award attorney's fees to
Lawson because he was the prevailing party in the litigation. The court
refused to do so.
The Court explained that the lease does contain a clause that permits
the landlord to obtain attorney's fees if the landlord is successful in
litigation against tenant. As a result, RPL Section 234 would allow the
tenant to obtain attorney's fees against landlord, if tenant is successful
in litigation against landlord. However Lawson is not the tenant but the
subtenant. As the subtenant, he is not the person who entered into the
contract with the landlord. Therefore, attorneys' fees may not be awarded
to Lawson. Furthermore, although the courts have held that a successor to
the tenant may be awarded attorneys fees, Lawson is a subtenant - not a
successor to the tenant - and may not be awarded attorney's fees on this
basis.
- Case Caption:
- Broome Realty Associates v. Eng
- Issues/Legal Principles:
- Housing Court judge may not order landlord to remove surveillance
camera pointed at tenant's door.
- Keywords:
- injunctive relief
- Court:
- Appellate Term, First Department
- Judge:
- lower court judge: Hon. Douglas E. Hoffman
- Date:
- November 15, 1999
- Citation:
- NYLJ, page 26, col 1
- Referred Statutes:
- Civil Court Act Sections 110[a][4] and 203[o]
- Summary:
- Landlord brought a nonprimary residence proceeding against tenant.
Tenant asked the housing court judge to issue an order requiring landlord
to remove a surveillance camera located on the wall opposite tenant's door.
The judge issued the order but the appellate court reversed, explaining
that it is inappropriate for the housing court to grant injunctive relief.
(Injunctive relief consists of a court order requiring a person to do
something or refrain from doing something). The housing court may grant
injunctive relief only under limited circumstances, such as to enforce
housing standards (e.g., order the correction of violations) or for certain
provisional remedies allowed by Section 209(b) of the Civil Court Act.
- Notes:
- The Appellate Term is not saying that the tenant has no right to
challenge the surveillance camera under an invasion of privacy argument.
The Appellate Term is simply ruling that the tenant cannot raise that issue
in Housing Court. The tenant could go to Supreme Court to challenge the
surveillance camera, although that would be a relatively costly proceeding.
- Case Caption:
- Rudd and Klein v. Devine
- Issues/Legal Principles:
- where two or more landlords own a builidng, only one landlord may seek
to recover an apartment for personal use.
- Keywords:
- owner occupancy proceeding
- Court:
- Appellate Term, First Department
- Judge:
- lower court judge: Hon. Norman C. Ryp
- Date:
- November 15, 1999
- Citation:
- NYLJ, page 26, col 1
- Referred Statutes:
- RSC Section 2524.4(a)(3)
- Summary:
- Rudd and Klein sued tenant Devine in order to recover an apartment for
the personal use of Klein or one of his immediate family members. The
trial court dismissed the landlord's petition and the appellate term upheld
the dismissal. Since landlord previously commenced a proceeding against
another tenant to recover an apartment for the personal use of Rudd,
landlord may not now recover an apartment for the personal use of Klein.
This is because RSC Section 2524.4(a)(3) provides that only one individual
building owner (in this case Rudd) may recover possession of an apartment
for personal use.
New York Law Journal, decisions for the week of November 8-12, 1999 (4 cases)
- Case Caption:
- Matter of IG Second Generation Partners LP v. DHCR
- Issues/Legal Principles:
- Landlords must declare the amount of the last rent controlled rent when registering the
first rent stabilized rent, and the failure to set forth the last rent constitutes a defective notice;
tenant is not obligated to file a Fair Market Rent Appeal until tenant is served a proper notice
of the first rent stabilized rent.
- Keywords:
- Fair Market Rent Appeal
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Weissberg
- Date:
- November 10, 1999
- Citation:
- NYLJ, page 27, col 5
- Referred Statutes:
- RSC 2521.1, 2522.3, 2522.4, 2528.2; Administrative Code of City of New York 26-
513, 26-511
- Summary:
- The tenant's apartment was formerly rent controlled and was decontrolled in 1986
when the first rent stabilized tenant took occupancy. As the first rent stabilized tenant, the
tenant filed a Fair Market Rent Appeal (FMRA) to determine the legality of the first stabilized
rent. The DHCR ruled that the first rent charged by the landlord was not a fair market rent,
and thereupon reduced her rent by about $900 and ordered the landlord to refund tenant the
excess rent which she had paid above the reduced rent (which amounted to about $11,000). The
landlord filed a PAR which held for the tenant, and then the landlord filed an Article 78 which
is a form of an appeal of the DHCR decision to the Supreme Court.
The first point made by the landlord in support of its argument that the rent charged
the tenant was proper was that the DHCR failed to consider the landlord's appraisal report in
determining the fair market rent. The report was evidence of prevailing rents for substantially
similar housing in the community in which the apartment is located. The Supreme Court judge,
however, agreed with the DHCR that the apartments discussed in the appraisal report were much
larger than the tenant's apartment and differed too much in their layout so as to provide a proper
comparison for the purpose of setting the tenant's first stabilized rent. Further, DHCR granted
the landlord the 1/40th MCI rent increases, but not for those which could not be directly linked
to the tenant's apartment.
The landlord also argued that it had created a new dwelling space and can charge a
higher first rent as a "new rent." The evidence, however, indicated that the alleged new
dwelling space, referred to by landlord as a "sun room," was really no more than a glass
enclosure around a terrace which had already been available to the previous tenants of the
apartment. The Supreme Court ruled that simply because the DHCR found the tenant's affidavit
more credible on this issue than the superintendent's did not make the decision arbitrary or
capricious (which is the standard for overturning a DHCR decision). The Court also ruled that
DHCR's refusal to hold a hearing on the FMRA issue is not a denial of due process because the
landlord had an opportunity to be heard via documentary submissions. The Court also held that
the agency was correct to rule that landlords registering a newly decontrolled unit must report
the last maximum base rent charged for the apartment when it was subject to rent control.
Failure to do this constitutes a defective registration and the tenant's right to file a FMRA
remains open until such time as a proper registration is filed.
- Case Caption:
- ACP 150 West End Ave. Associates v. Rosendahl
- Issues/Legal Principles:
- A trial is needed to determine whether 90-year old tenant who does not own a car may
continue to hold lease to a parking lot space.
- Keywords:
- parking lot; ancillary service
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Debra James
- Date:
- November 10, 1999
- Citation:
- NYLJ, page 28, col 4
- Referred Statutes:
- CPLR 33211(c); RSC 2520.6(r)(4)(xi); RPAPL 743
- Summary:
- The tenant is 90 years old. The landlord commenced a holdover proceeding in the
Commercial Part of Housing Court to seek a judgment of possession of the tenant's parking
space. The case was sent to the Housing Court for determination. The tenant is a rent
stabilized tenant whose lease includes a rider that confers her a parking spot but solely for her
usage. The landlord sent tenant a notice of non-renewal of lease for her parking lot space on
grounds that the tenant does not own or use a car and the space is used by persons not entitled
to occupancy of the space. Noting that the space is subject to the rent stabilization laws, the
landlord made an argument analogous to the non-primary residency laws. The landlord's
alternative argument was that since there is no common ownership between the operator of the
car and the tenant of the parking space, the landlord is no longer required to lease the space to
tenant as an "ancillary service."
The tenant argued that the parking space is an ancillary service under the Rent
Stabilization Code and that she is entitled to a renewal lease of the space. She further argued
that even if she is not using the space herself, she is entitled to it because it is an ancillary
service, and primary residency laws are irrelevant. The managing agent's affidavit indicates that
the landlord, the proprietary lessee of the co-operative apartment, might be a mere licensee with
respect to the parking lot. This is because excerpts from the co-op plan appear to make usage
of the parking lot subject to renewal rights of tenants (akin to lease renewal rights for regulated
apartments). The court denied landlord's application for a judgment because there were
questions of fact regarding a common ownership between the tenant's apartment and the parking
space. (The court did not address the parties' dispute as to whether the parking lot constitutes
an ancillary service).
- Case Caption:
- Mazda Realty Associates v. Green
- Issues/Legal Principles:
- Loft unit does not become subject to rent stabilization until the Loft Board issues a final
rent order.
- Keywords:
- Lofts; nonprimary residency; rent stabilization; discovery
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Schlomo Hagler
- Date:
- November 10, 1999
- Citation:
- NYLJ, page 28, col 1
- Referred Statutes:
- CPLR 408, 3211(a); MDL 286(2)(i); 29 RCNY 2-08(j), 2-01; RPAPL 745
- Summary:
- Landlord brought a holdover proceeding against tenant on grounds of nonprimary
residency. The tenant is a Loft tenant since 1976. Landlord served tenant a thirty-day notice
of termination as if tenant were a mere month to month tenant. All apartments declared to be
lofts are supposed to be brought up to the Building Code standards and move into the rent
regulatory system so that eventually each loft tenant becomes a rent stabilized tenant.
In 1996 the landlord obtained a certificate of occupancy from the Department of
Buildings. Once a certificate of occupancy is obtained, the Loft Board rules allow the landlord
to start seeking an increased rent from the tenant and those rent increases are to correspond to
the percentage rent increases applicable to one-year or two-year leases akin to rent stabilization
increases. The law provides that the increase will be binding for the entire prior "prior to
registration of the building with the DHCR." The landlord wrote tenant a letter asking whether
tenant wanted a one-year or two-year increase and tenant opted for a two-year increase. In July,
1998, the landlord submitted an application to the Loft Board for a final determination of the
rent status of the tenants of the building, although for reasons unknown that application was
withdrawn by June, 1999.
The issue before the Court was: at what point does a Loft become a rent stabilized unit?
The tenant argued that rent stabilization status kicks in at the time the landlord obtains a
certificate of occupancy. If the tenant's argument is correct, the petition would have to be
dismissed because the landlord did not send a notice that the lease would not be renewed on non-
primary residency grounds (commonly known as a Golub Notice). The landlord argued that rent
stabilization rights do not vest until after the Loft Board issues a final rent adjustment order
setting the initial legal rent for a Loft tenant. Since the Loft Board has not done this as yet in
this case, the landlord would not be obliged to serve the tenant a Golub Notice and could
proceed on its nonprimary residency claim.
The court analyzed the Loft Law and its recent amendments. It used to be that an
initial regulated rent could not be set by the Loft Board until the owner set the process in
motion. Previously there was no impetus for the owner to do so because there was no deadline.
The new law, effective May 7, 1999, imposes a deadline. Within 9 months after obtaining a
certificate of occupancy, the owner must file for "code compliance rent adjustments" or by
February 1, 2000 whichever is later. If the owner does not file in a timely manner, the law
deems the owner to have waived the right to seek rent adjustments. The law also now allows
the Loft Board to set the initial regulated rent even if the owner has not applied to do so. The
court surmised that the landlord's mandatory obligation to offer a rent stabilized lease
"presumably will occur only after the Loft Board sets the rent."
The court also disagreed with the tenant who claimed that the document given to her by
the landlord which sought a rent increase was a rent stabilized lease. The court held that it was
not a rent stabilized lease, but rather "an election to pay interim RGB [rent guidelines board]
increases pending the completion of the Loft Board's procedure to set the initial legal regulated
rent and to transfer its jurisdiction over the IMD [interim multiple dwelling, i.e., a loft] to the
DHCR." The court held that the tenant's interpretation of the document, as well as the Loft
laws, do not conform with the legislative intent of the law to expedite the transition of the lofts
into the rent stabilization scheme. The court concluded that since no final rent order had been
issued by the Loft Board and the landlord's time to do so had not expired, the Loft is not
covered by rent stabilization at this time, and thus the landlord was not required to serve a
Golub Notice on tenant to commence a nonprimary residency proceeding. The court further
granted the landlord's application for discovery upon the tenant. The court rejected tenant's
request for discovery on the landlord because no ample need was shown and the information
necessary to litigate a nonprimary residency case is "peculiarly within the tenant's knowledge."
- Notes:
- It would seem that the reason the landlord withdrew its application to the Loft Board for
a final determination of the rents is because the landlord would then, upon said determination,
be required to give the tenant a rent stabilized lease. The landlord would have to wait until that
lease is expired in two years before the landlord could then commence a nonprimary residency
proceeding against the tenant. Whereas now, in the absence of a final rent determination, the
landlord need only serve a thirty day notice to start the eviction proceeding based on nonprimary
residence.
- Case Caption:
- Blalock v. Amityville Senior Development Corporation
- Issues/Legal Principles:
- Court concluded that landlord discriminated against mentally ill tenant by refusing to
tender a renewal lease after two incidents of vandalism.
- Keywords:
- discrimination; handicaps; fair housing
- Court:
- U.S. District Court for the Eastern District of New York
- Judge:
- Hon. Hurley
- Date:
- November 12, 1999
- Citation:
- NYLJ, page 36, col 3
- Referred Statutes:
- 42 USC 3601 et seq.
- Summary:
- Plaintiffs-Tenants (a father and son) brought a motion before the court asking that the
defendant-landlord be stayed from evicting the son in state court. The facts were not in dispute
by the parties. The tenants lived as co-tenants in the apartment for the past three years during
which time the landlord received two complaints which accused the son of vandalism in the
recreation room and turning off the electrical power to several other apartments. The father
testified that when his wife suffered a stroke their son neglected to take the medication
prescribed for his schizophrenic illness which caused him to become agitated and disoriented.
The son was hospitalized and released with a doctor and caseworker assigned to him to visit him
at home on a regular basis and monitor his condition. The father also testified that his son had
never been violent and that they were unable to afford alternative housing given their survival
on disability payments totaling only about $1,500 per month. The landlord accused them of not
making sufficient efforts to find alternative housing, but the court believed the father that they
had been diligently looking.
A witness from the treatment program testified that the son's condition has been stable
since his discharge and that the father has been a valuable resource in his son's treatments. She
declined to attribute the vandalism to his mental illness, but did note that he was significantly
impaired both socially and in his ability to function in the workplace. The son's testimony
largely paralleled his father's. The superintendent of the building, who is also a minister of
religion, testified about the complaints against the son, but confirmed that since his release from
the hospital the son has not engaged in any further violent acts. A tenant testified to witnessing
one act of violence (discharging a fire extinguisher in the recreation room) and felt afraid of the
son. Another witness with experience in rentals testified it would be unlikely for the plaintiff
to be able to obtain an affordable comparable apartment if evicted.
Based on all the evidence, the court concluded that the plaintiffs established their burden
for a preliminary injunction to stay the landlord from evicting the son during the pendency of
this federal action. The court determined that the son is a "covered person" under the Fair
Housing Amendment Act which prohibits discrimination based on, among other things, tenants
with handicaps. The son's "handicap" is his mental impairment of paranoid schizophrenic which
substantially limits his ability to work and socialize, both of which constitute "major life
activities." The father is also a protected person under the statute based on his association with
his son. The "reasonable accommodation" required to be made by defendant dictates that the
father and son, co-tenants of the now expired lease, not be separated given the father' pivotal
role in his son's treatment. (It was not disputed that the statute applies to a renewal lease and
not just an initial lease). For the plaintiffs to prevail, they must establish that the vandalism is
traceable to the son's handicap.
The court reviewed the evidence, including that the vandalism incidents occurred before
hospitalization and no similar complaints have been made since. The court held that it is
reasonable to conclude that the two incidents underlying defendant's refusal to renew plaintiffs'
lease were attributable to the son's handicap. The court also held that the landlord failed to offer
a "reasonable accommodation to Plaintiffs or to demonstrate that no reasonable accommodation
may be fashioned under the circumstances." The landlord argued that it was not in violation of
the statute because it would not have renewed the lease of a non-handicapped person under the
same circumstances. The court, however, noted that certain protections are provided to
handicapped persons that are not applicable to non-handicapped persons, and reminded the
landlord that it had still offered no reasonable accommodation. The court also rejected
landlord's argument that to keep the plaintiffs as tenants would be injurious to the property. The
court observed that no tenants have vacated the apartment complex because of the son's past
behavior. Further, the evidence suggests that the conduct is unlikely to recur given the
procedures in place to monitor the son's medication and behavior. Irreparable harm would
befall the plaintiffs if they were evicted because they would assuredly succumb to homelessness.
New York Law Journal, decisions for the week of November 1-5, 1999 (4 cases)
- Case Caption:
- 166 E. 82 Street, L.L.C. v. Hara
- Issues/Legal Principles:
- Tenant failed to prove landlord's actual or constructive notice of her harboring a dog
sufficient to trigger the Pet Law's three month waiver rule, where she was unable to show that
a part-time, off-site superintendent ever actually saw her pet at any time prior to the three
months preceding the landlord's Notice to Cure.
- Keywords:
- Pet Law; pet; waiver
- Court:
- Housing Court, New York County
- Judge:
- Hon. Howard Malatzky
- Date:
- November 3, 1999
- Citation:
- NYLJ, page 28, col 5
- Referred Statutes:
- Administrative Code of the City of New York 27-2009.1(b)
- Summary:
- Tenant breached a substantial obligation of her tenancy by harboring a dog in her
apartment without the landlord's consent. The tenant claimed that the landlord waived her
breach of the no pet provision pursuant to the Administrative Code of the City of New York 27-
2009.1(b) ("Pet Law"), which provides that where a tenant of a multiple dwelling openly and
notoriously harbors a pet for a period of three months or more and the owner or his agent has
knowledge of this fact and fails to commence a summary proceeding to enforce the no pet lease
provision, that such lease provision shall be deemed waived by the landlord. However, the
tenant failed to produce sufficient proof at trial that the part-time, off-site superintendent (who
lived across the street) ever saw the dog at any time prior to the three months preceding the
summary proceeding. There were no on-site employees regularly attending the five story "walk
up" building. The trial court distinguished between "on site" employees (where constructive
notice would be more likely due to regular contacts with the building), and "off cite" employees
(who would have lesser, sporadic contacts with the building), and found that the tenant failed
to show that the off-site superintendent knew about her dog, and when he knew of it. Moreover,
the managing agent, who took over management some three months before the proceedings
began, testified that the first predicate notice was served within two months of the agent's actual
notice of the dog. The trial court found that the tenant failed to sustain her burden of proof on
her affirmative defense of waiver, but granted her thirty days to find a home for her pet or to
vacate the premises.
- Case Caption:
- Greene Avenue Associates v. Reape
- Issues/Legal Principles:
- Absence of tenant's son's name on tenant's mandatory recertification for tenancy in a
apartment receiving a "project-based" Section 8 federal subsidy is not dispositive as to the issue
of son's succession rights to occupy the unit. The court distinguished between succession rights
to a Section 8 "tenant-based" subsidy, and succession rights to occupy a unit receiving a
"project-based" Section 8 subsidy.
- Keywords:
- succession rights; Section 8; recertification
- Court:
- Housing Court, Kings County
- Judge:
- Hon. Bally-Shiffman
- Date:
- November 3, 1999
- Citation:
- NYLJ, page 33, col 4
- Referred Statutes:
- RSC 2523.5(b)(4); RSC 2523.5(b)(1); 24 CFR 982
- Summary:
- Landlord brought squatter holdover proceeding against respondent, alleging that
respondent came into occupancy of apartment after the death of his mother. Respondent claimed
succession rights to the unit, which was receiving a "project-based" Section 8 subsidy, applicable
to the building which housed elderly and disabled residents. The landlord claimed that under
Evans v. Franco, 93 N.Y.2d 823 (1999) the failure of the tenant to list her son in a 1997
mandatory recertification was dispositive as to the respondent's tenancy rights. While the court
found that the respondent failed to show that he lived with his mother for one year prior to her
death [as respondent was disabled, a one year residency, rather than two years is required for
succession rights pursuant to RSC 2523.5(b)(1), 9 NYCRR 2523.5(b)(1)], the court disagreed
that Evans v. Franco controlled, pointing out that the subsidy at issue in Evans was a "tenant-
based" Section 8 subsidy, governed by 24 CFR 982 rather that a "project-based" Section 8
federal subsidy in this case. Thus, the issue was not continuation of a subsidy under federal
law, but rather, the respondent's succession rights to occupy the apartment under state law. The
court noted that the issue of respondent's entitlement to receive a subsidy was not properly
before the court.
- Case Caption:
- Horowitz v. NYS Division of Housing and Community Renewal
- Issues/Legal Principles:
- DHCR must serve rent stabilization tenants with a copy of the landlord's entire
application for a rental increase based upon major capital improvements rather than a simple
form which summarizes the capital improvement rent increase application.
- Keywords:
- MCI; rent increase; DHCR
- Court:
- Supreme Court, Queens County
- Judge:
- Hon. Luther V. Dye
- Date:
- November 3, 1999
- Citation:
- NYLJ, page 34, col 1
- Referred Statutes:
- 9 NYCRR 2527.3(a)
- Summary:
- Tenants brought Article 78 Petition to reverse the decision of the DHCR, which denied
their Petition for Administrative Review ("PAR") seeking to annul the decision of the Rent
Administrator granting the landlord's application for a MCI rental increase. DHCR denied the
PAR on the basis that the tenants failed to oppose the application while it was pending before
the Rent Administrator, and thus, their challenge could not be made for the first time on appeal.
The court disagreed, finding that the notices sent by the DHCR, which complied with the
agency's mailing practices, were clearly insufficient, as they failed to comply with 9 NYCRR
2527.3(a), which requires the DHCR to serve all adversely affected parties with a copy of the
application. The DHCR's notice, which merely summarized the owner's MCI application and
informed the tenant that the MCI application and supporting documentation could be examined
at the DHCR's offices or at the owner's rental office, violated 9 NYCRR 2527.3(a) and could
not be relied upon by the DHCR in order to deny the tenants' PAR. While the court granted
the petitioners' application to vacate and remand the decision, the Supreme Court declined to
issue an injunction prohibiting the DHCR from using the form notice throughout the state and
enjoining any proceedings in which the MCI notification form was used by the
DHCR.
- Case Caption:
- Buhagiar v. Henrichs
- Issues/Legal Principles:
- Apartment unit in building which was part of a horizontal multiple dwelling in 1974,
when the Emergency Tenant Protection Act ("ETPA") was adopted, was still subject to Rent
Stabilization, notwithstanding fact that Tenant entered into occupancy in 1993, after the buildings
were divided in 1981.
- Keywords:
- horizontal multiple dwelling; rent stabilization;
conversion
- Court:
- Supreme Court, New York County
- Judge:
- Justice Lehner
- Date:
- November 3, 1999
- Citation:
- NYLJ, page 27, col 2
- Referred Statutes:
- ETPA 8625a(4)(a); RSL 11(d); NYCRR 2520.11, RSL 26-505
- Summary:
- Landlord brought an Article 78 proceeding seeking to annul the determination of the
DHCR that the subject building, which was formerly part of a horizontal multiple dwelling, was
still subject to rent stabilization after its change in circumstances and separation in ownership
and service from all other buildings in or about 1981. The DHCR, in adopting RSL 11(d)
(NYCRR 2520.11), set June 30, 1974 (the effective date of the ETPA) as the base date for
determination of the building's regulation status. Thus, since the building was part of a
horizontal multiple dwelling on June 30, 1974, the DHCR found that the building was subject
to rent stabilization, notwithstanding the fact that the building was separated and no longer part
of a horizontal multiple dwelling and contained only five units since 1981. The current tenant,
who took possession in 1993, was still rent stabilized by virtue of the application of the June 30,
1974 base date. The court upheld the DHCR's determination and application of the base date,
finding that separating common ownership and services was no more reason for exempting the
building from rent regulation under the ETPA then a reduction in the number of units to less
than 6 (noting prior cases which held the reduction in units not to exempt buildings from rent
regulation).
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