Housing Court Decisions June 2000
Editors: Colleen F. McGuire, Esq., Chief Editor
Robert E. Sokolski, Esq., Catherine Grad, Esq. and David Weinraub, Esq.
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New York Law Journal, decisions for the week of June 26-
June 30, 2000 (8 cases)
- Case Caption:
- Jones v. Allen
- Issues/Legal Principles:
- Appellate Term 2nd and 11th Jud. Dt. finds RPAPL Section 747-a
unconstitutional as it applies to temporary stays in orders to show cause
seeking relief from a final judgment or warrant
- Keywords:
- Rent Deposit Law; temporary stay
- Court:
- Appellate Term, 2nd and 11th Judicial Districts
- Judge:
- lower court: Hon. Mark Finkelstein
- Date:
- June 30, 2000
- Citation:
- NYLJ, page 30, col. 3
- Referred Statutes:
- RPAPL Section 747-a
- Summary:
- In this non payment proceeding, the parties had entered into a
Stipulation which granted the landlord a final judgment of possession,
stayed the execution of the warrant and required the tenant to pay rent
arrears by July 31, 2000. In August, the tenant moved by way of order to
show cause to stay the execution of the warrant. She demonstrated that she
had the money to pay the rent pursuant to the stipulation and explained
that she had not tendered the rent in a timely manner because DSS had
delayed in preparing the checks. The Court granted the tenant a temporary
stay of the execution of the warrant, pending determination of the motion.
The Court, on hearing the motion, ordered the landlord to accept payment
and vacated the warrant for good cause.
- On appeal, the issue was whether the court’s granting the temporary
stay pending determination of the motion violated of RPAPL Section 747-a,
the so-called Rent Deposit Law. RPAPL 747-a bars the granting of stays in
nonpayment proceedings five days after entry of judgment unless the amount
of the judgment has either been paid to the landlord or deposited into
court. The Court held that RPAPL Section 747-a is unconstitutional insofar
as it concerns temporary stays where the ultimate relief sought is the
vacatur of a judgment or warrant and affirmed the lower court. In striking
down Section 747-a, the court held that the Rent Deposit Law interferes
with the Court’s exercising its inherent power to relieve parties from its
own judgments and to achieve a just resolution. Although the Legislature
has the power to make procedural rules for the courts, where such
procedural rules interfere with the discretionary power of the court, the
procedural rules have no valid operation. One of the inherent powers of
the court is to grant relief from its own judgment and processes. The
Court found that the power to grant a temporary stay pending a
determination of a motion for relief from a judgment or warrant is a
necessary incident of the authority of the court to vacate its judgment or
warrant. It is a power which a court must have in order to preserve the
status quo until the motion has been determined and one which is necessary
if its subsequent disposition is not to be rendered a mere exercise in
futility. Because the Rent Deposit Law interferes with the exercise of the
Court’s inherent, discretionary power, the Court found that it is
unconstitutional and that the Court below acted within its authority in
granting the temporary stay.
- Notes:
- The First Department in Lang v. Pataki, __ A.D.2d __ , 707 N.Y.S.2d 90
(1st Dep’t 2000) held that RPAPL Section 747-a is not unconstitutional on
its face because it does not infringe upon the court’s fundamental decision
making authority.
- Case Caption:
- Parras v. Ricciardi
- Issues/Legal Principles:
- Failure of landlord’s lawyer to advise court that tenant may be
disabled, in hospital or nursing home constitutes misconduct
- Keywords:
- attorney misconduct; service or process; mental incapacity
- Court:
- Civil Court, New York County
- Judge:
- Hon. Silber
- Date:
- June 28, 2000
- Citation:
- NYLJ, page 33, col. 4
- Referred Statutes:
- R.P.A.P.L. Section 735; CPLR Sections 1201 and 1203
- Summary:
- Landlord brought a nonpayment proceeding against a tenant whom it knew
to be in a nursing home and to be incompetent. It moved for a default
judgment and warrant, without serving the tenant at the nursing home or
advising the court that the tenant suffered from a disability. The court,
unaware of these surrounding circumstances, nevertheless, denied the
request for a warrant, finding that both attempts at service were made
during working hours. The attorney for the landlord thereafter made a
motion to file a "duplicate affidavit of service" before a different judge.
This so-called duplicate affidavit was, in fact, a different affidavit of
service, reflecting different hours of service. The Court found that the
attorney for the landlord had engaged in three separate acts of misconduct
and dismissed the proceeding. The Court found that the motion to file a
duplicate affidavit constituted misconduct because it was misleading. The
attorney should have moved to file an amended affidavit of service and
included an affidavit from the process server, explaining the basis for the
amended affidavit. The Court found that the attorneys had engaged in
misconduct by failing to serve the tenant at the nursing home. The Court
held that the landlord must serve the tenant at the nursing home where the
landlord knows that the tenant is in a nursing home because Section 735
requires service at any other known residence of the tenant. In addition,
it held that it was improper to move for a default judgment where the
landlord knew that the tenant had not been properly served at the nursing
home. Finally, the court held that the attorneys had engaged in
misconduct by failing to advise the court that the tenant suffered from a
disability and seeking a default judgment against a tenant known to suffer
from a disability. The Court noted that the court had the inherent duty to
protect the rights of people suffering from a mental incapacity.
Additionally, the Court held that the landlord and/or its lawyer had the
obligation to inform the court of such circumstances so that the Court
could determine if it was proper to appoint a guardian ad litem to protect
the interests of the tenant.
- Case Caption:
- Surrey Hotel Associates LLC v. Sabin
- Issues/Legal Principles:
- Court has power to vacate default judgment entered against person
judicially declared to be incompetent although more than twenty days
elapsed since appointment of guardian.
- Keywords:
- incompetent; vacate default judgment
- Court:
- Civil Court, New York County
- Judge:
- Hon. Laurie Lau
- Date:
- June 29, 2000
- Citation:
- NYLJ, page 28, col. 4
- Referred Statutes:
- CPLR Sections 1203; 3211(a)(5); 309(b)
- Summary:
- The tenant defaulted in this holdover proceeding and the landlord
obtained a judgment of possession against the tenant after inquest.
Unbeknownst to the Judge in Housing Court, prior to entry of the default,
Supreme Court had found the tenant to be incompetent and appointed a
guardian. The guardian then moved to vacate the judgment on default.
Pursuant to CPLR Section 1203, a party can only obtain a default judgment
against a person judicially declared to be incompetent twenty days after
appointment of a guardian. Here, the Court held that, even though more
than twenty days had elapsed from date the Court appointed the guardian to
the date that the Court had entered the default, the Court has the power to
vacate default in light of the Court’s special duty to such litigants.
Additionally, the Court found that the landlord who has information tending
to show that a tenant suffers from a disability is under an obligation to
advise the court of this information. Here, the landlord knew that it was
receiving rent checks from PSA on behalf of the tenant and said that the
tenant was "strange." Since the landlord had failed to advise the Court
that the tenant might be disabled at the time that it sought a default
judgment, the Court found that it was appropriate to vacate the default,
even though more than twenty days had elapsed since the appointment of a
guardian. Moreover, the Court dismissed the petition because the landlord
did not serve the guardian, pursuant to CPLR Section 309(b).
- Case Caption:
- 595 Broadway Associates v. Bikman
- Issues/Legal Principles:
- On landlord’s motion for summary judgment, occupant claiming
succession rights must present evidence reflecting that she lived with
tenant.
- Keywords:
- summary judgment; succession rights
- Court:
- Civil Court, Housing Part, New York County
- Judge:
- Hon. Howard Malatzky
- Date:
- June 28, 2000
- Citation:
- NYLJ, page 26 col. 2
- Referred Statutes:
- Multiple Dwelling Law, Section 286(13)
- Summary:
- Landlord moved for summary judgment, seeking possession of a dwelling
unit subject to the Loft Law. The occupant of the Loft claimed to have
succession rights as the sister of the tenant. The Court did not decide if
family members have succession rights pursuant to the Loft Law, but assumed
that they did, for the sake of the motion. The Court granted the landlord
summary judgment against the occupant, finding that the occupant did not
present any evidence that she had actually resided with her sister, who was
the tenant of record.
- Case Caption:
- 327 Central Park West v. Vincent
- Issues/Legal Principles:
- Where the issue in a Housing Court proceeding is whether the tenant is
exempt from coverage under the Rent Stabilization Laws because the rent is
over $2000, the Court should stay the proceeding pending a determination of
a Fair Market Rent appeal since the outcome of the FMRA would determine the
tenant’s status.
- Keywords:
- stay; Fair Market Rent Appeal
- Court:
- Civil Court, New York County
- Judge:
- Judge Rodriguez
- Date:
- June 28, 2000
- Citation:
- NYLJ, page 28, col. 6
- Referred Statutes:
- CPLR 213-a; Rent Stabilization Law Section 26-504.2; RSL Section
26-516; Rent Stabilization Code Sections 2524.1(a)(1) and 2522.3
- Summary:
- Landlord sought to evict tenant at the end of lease term. Tenant
defended on the ground that his tenancy was subject to the Rent
Stabilization Laws and he was entitled to renewal lease. The landlord
claimed the tenancy was exempt because the rent was over $2000. The
landlord had raised the rent to over $2000 in 1994, after the rent
controlled tenant had vacated the premises. There was no evidence that the
landlord had served an RR1 on the first tenant who took possession after
the rent-controlled tenant. The first tenant who took possession after the
rent-controlled tenant did not challenge the rent. However, the tenant at
issue in this proceeding had commenced a Fair Market Rent Appeal before the
landlord had sought to evict him. The Court found that the landlord may
not be able to invoke the four-year statute of limitations, although more
than four years had elapsed, because the landlord had failed to comply with
filing requirements. The Court held that DHCR was the proper forum to
determine the rights of the tenant and stayed the proceeding, pending the
outcome of the Fair Market Rent Appeal.
- Case Caption:
- City of New York v. Utey
- Issues/Legal Principles:
- In order to obtain a stay pending appeal, an occupant need not post an
undertaking pursuant to Section CPLR Section 5519(a)(6) where the City
intended to demolish the premises since the purpose of an undertaking is to
protect property from damage or waste.
- Keywords:
- stay pending appeal br>
- Court:
- Civil Court, Kings County
- Judge:
- Judge Eva Alterman
- Date:
- June 28, 2000
- Citation:
- NYLJ, page 33, col. 3
- Referred Statutes:
- CPLR Section 5519(a)(6)
- Summary:
- In a squatter proceeding, the Court had granted the City of New York a
judgment of possession against occupants of a house. The occupants had
sought a stay of the execution of the warrant pending appeal. The Court had
denied the stay pursuant to CPLR Section 5519(c) without prejudice to a
stay pursuant to CPLR Section 5519(a)(6), which provides for a stay pending
appeal in actions regarding real property upon the setting of an
undertaking against waste and use and occupancy. Respondents then moved
for the setting of an undertaking and use and occupancy. The Court held
that there was no need to set an undertaking in this case since the City of
New York intended to demolish the property and the sole purpose of the
undertaking was to protect against possible damages from physical
alteration or destruction of real property. The Court, however, did set
use and occupancy at the rate requested by the City of New York. The Court
held that use and occupancy should reflect the current rental value of the
premises. It rejected the occupants’ argument that the use and occupancy
should not reflect the improvements that the occupants made to the
property. It also rejected the occupants’ argument that the use and
occupancy should reflect the loss that the owner stands to suffer as a
result of the occupant’s continued presence in the premises, as opposed to
the benefit that the occupant derives from its use.
- Case Caption:
- 626 East 9 Street HDFC v. Collins
- Issues/Legal Principles:
- Tenant of HDFC can cure non-primary residence where lease provision
allows for a cure.
- Keywords:
- Cure; non primary residence; adverse possession
- Court:
- Civil Court, County of New York
- Judge:
- Judge Hagler
- Date:
- June 28, 2000
- Citation:
- NYLJ, page 28, col. 1
- Referred Statutes:
- CPLR Sections 3211 3025(b), 408
- Summary:
- In a non-primary residence proceeding, the Landlord, an HDFC, moved to
dismiss the tenant’s defenses and for summary judgment against the tenant.
The tenant in his answer alleged that he had cured the alleged default of
non-primary residence within the applicable time period and also alleged
that the actual tenant of the premises was someone other than himself,
based upon the doctrine of adverse possession. In this case, the court
found that the tenant’s proprietary lease allowed for a cure of non-primary
residence. Thus, the Court held that the tenant in this case could cure
such an alleged default and denied the motion to dismiss this defense. The
Court, however, did dismiss the defense of adverse possession since it
found that the occupant had had the tenant’s permission to live in the
apartment: one of the elements of adverse possession is that the possession
must be "hostile" and without permission. The Court noted that the tenant,
in the guise of a defense premised upon adverse possession, actually wanted
the Court to declare the occupant’s ownership rights. However, the Court
held that it did not have the power to decide such a declaratory judgment
action. The Court also granted the landlord’s motion for discovery and
denied without prejudice the tenant’s motion to amend his answer because
the tenant failed to include an affidavit in support of that motion.
- Case Caption:
- Solow Management Corp. v. Lovelac
- Issues/Legal Principles:
- Where landlord agrees to seek to re-let apartment, it must act in good
faith in seeking a new tenant.
- Keywords:
- mitigation of damages
- Court:
- Civil Court, County of New York
- Judge:
- Hon. Debra Samuels
- Date:
- June 28, 2000
- Citation:
- NYLJ, page 27, col. 6
- Referred Statutes:
- None cited
- Summary:
- Landlord sued tenant in Civil Court for rent arrears. The tenant, who
had moved from the residential premises, had entered into an agreement with
the landlord prior to moving in which the landlord agreed to attempt to
re-let the apartment on the condition that the tenant remove all of his
possessions from the apartment and pay any costs in connection with the
re-letting of the apartment. The landlord claimed that it could not re-let
the apartment and sued the tenant for the remainder of the term under the
lease. The landlord then moved for summary judgment. The Court denied the
motion. It found that there was a question of fact as to whether the
landlord had made a good faith effort to re-let the premises where it
sought a rent increase of 22% to 44% for the apartment upon re-letting.
Court also found that there was a question of fact regarding tenant’s
defense of laches since the landlord waited seven months to sue under the
lease.
New York Law Journal, decisions for the week of June 19-June 23,
2000 (6 cases)
- Case Caption:
- Stribula v. Quinn
- Issues/Legal Principles:
- Jury waiver clause in lease that predates the passage of nonprimary residency laws is
deemed valid.
- Keywords:
- jury waiver clause; nonprimary residency
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Larry Schachner
- Date:
- June 21, 2000
- Citation:
- NYLJ, page 30, col 4
- Referred Statutes:
- none cited
- Summary:
- The Court granted the landlord's motion to strike tenant's jury demand as the 1978 lease
contained a jury waiver clause. Tenant argued that since the lease predated the passage of the
nonprimary residency laws, he could not have waived his right to a trial by jury in this instance.
The Court upheld the validity of the jury waiver clause in that the nonprimary residency
proceeding directly related to the occupancy of the tenant as well as the landlord's right to
recover possession of the subject apartment. Moreover, the Court held that the lease clause
contemplates passage of future laws potentially affecting the tenancy.
- Case Caption:
- 200 West 15th Street LLC v. Nunez
- Issues/Legal Principles:
- A tenant who raises a DHCR fair market rent appeal award as a counterclaim in a
nonpayment summary proceeding is entitled to prejudgment interest and attorney's fees.
- Keywords:
- prejudgment interest; fair market rent appeal; attorney's fees
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Shlomo Hagler
- Date:
- June 21, 2000
- Citation:
- NYLJ, page 30, col 5
- Referred Statutes:
- CPLR 5001(a); RPL 234; RSC 2522.3(a) and (d); RSC 2526.1
- Summary:
- This nonpayment summary proceeding involved the question of whether a tenant who
raised a counterclaim for an award of overcharge resulting from a fair market rent appeal was
entitled to prejudgment interest. The Court found that prejudgment interest was available
pursuant to CPLR 5001(a), even though the Rent Stabilization Code 2522.3 (pertaining to fair
market rent appeals) made no provision for a tenant to recover such interest. The Court cited
two recent decisions from the Appellate Division, First Department, which squarely held that
a tenant compelled to bring an action to enforce a fair market rent appeal order is entitled to
prejudgment interest, computed from the date of the Rent Administrator's order, as well as
attorney's fees under Real Property Law 234.
In this case, the Court held that once the tenant was forced to assert a counterclaim to
enforce the DHCR's fair market rent appeal order, it automatically triggered the tenant's right
to prejudgment interest pursuant to CPLR 5001(a) and attorney's fees pursuant to RPL 234. The
tenant was granted a judgment in the sum of $8,161.72, plus interest at the legal rate of nine
percent (9%) over eleven (11) years, computed from the Rent Administrator's Order dated June
7, 1989.
- Case Caption:
- Matter of 500 West End Avenue Owners LP v. New York State Div. of Housing
and Community Renewal
- Issues/Legal Principles:
- Tenant may recover overcharge and treble damages from new owner where overcharges
were collected by the prior owner.
- Keywords:
- overcharge; treble damages; predecessor-in-interest
- Court:
- Supreme Court, New York County
- Judge:
- Justice Atlas
- Date:
- June 21, 2000
- Citation:
- NYLJ, page 29, col 5
- Referred Statutes:
- 9 NYCRR 2526; 2526.1(a)(1); 2526(f)
- Summary:
- Landlord brought an Article 78 proceeding in which it sought to challenge the
determination of the DHCR that the landlord was responsible for treble damages awarded on an
overcharge collected by the prior owner. The landlord claimed that since it did not participate
in the collection of any overcharge, that it could not be considered to have acted willfully, a
predicate to the assessment of treble damages. The Court disagreed. Parting ways with a
decision rendered by the Supreme Court, Appellate Term, Second Department, the Court held
that the new owner was fully responsible for the overcharge award and treble damages despite
its non-participation in the collection of excess rent. The Court reasoned that the purchasing
owner had the opportunity to review the rent records of its predecessor to determine whether
overcharges were collected. Moreover, the new owner could and did protect itself against
liability for such damages by inserting an indemnification clause in the sales contract, allowing
the new owner to look to the prior owner for reimbursement. Finally, the Court found this
result completely in harmony with the Rent Stabilization Law, inasmuch as this result prohibits
the offender from avoiding liability for rent overcharges by transferring title and absconding and
also provides tenants with a simplified procedure for recovering overcharges.
- Case Caption:
- Anosike v. Ceesar
- Issues/Legal Principles:
- Landlord cannot collect rent in a de facto multiple dwelling in that the certificate of
occupancy does not conform with the usage of the premises.
- Keywords:
- certificate of occupancy; de facto multiple dwelling; use and occupancy
- Court:
- Civil Court, Kings County
- Judge:
- Hon. Baily-Schiffman
- Date:
- June 21, 2000
- Citation:
- NYLJ, page 32, col 4
- Referred Statutes:
- MDL 301, 302
- Summary:
- Defendant-Tenant failed to appear in an ejectment action. At the inquest, Plaintiff-
Landlord sought both a judgment of possession as well as a monetary judgment for use and
occupancy. The landlord's testimony indicated that the premises is a "de facto" multiple dwelling
in that the tenants lived on the second floor of a two-family house, which currently housed three
families. The certificate of occupancy only permits occupancy of two families. As a result, the
Court denied the landlord's request for a money judgment holding that the law prohibits the
landlord from collecting rent nor maintaining a proceeding where the multiple dwelling in
question is occupied in violation of the legal requirement that there exist a proper certificate of
occupancy.
- Case Caption:
- Village Development Associates LLC v. Walker
- Issues/Legal Principles:
- Tenant's failure to file New York State tax returns is not dispositive of primary
residency when an ongoing, substantial, physical nexus for actual living purposes is established
with the subject apartment.
- Keywords:
- nonprimary residence; taxes; substantial physical nexus
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Ruben Andres Martino
- Date:
- June 22, 2000
- Citation:
- NYLJ, page 28, col 6
- Referred Statutes:
- none cited
- Summary:
- The Appellate Court upheld the trial court's factual finding that the tenant established
her primary residence at the subject apartment as opposed to her New Jersey condominium. At
trial, tenant established her primary residence by testifying-proving the following: full-time
employment is within walking distance of the subject apartment; telephone, utility and banking
records were consistent with a presence at subject apartment; and credible witnesses place tenant
at the subject premises on a daily basis. The lower court held that the tenants established "an
ongoing, substantial, physical nexus with the controlled premises for actual living purposes."
The Appellate Court held that "there is no cause to disturb the court's factual finding." The
concurring opinion points out that although the tenants listed their New Jersey apartment as their
primary residency in their mortgage application and on their federal income taxes for the
purposes of avoiding New York State and City taxes, such failure is not determinative of the
issue of primary residence where other factors which establish a physical nexus with the
premises are present. The record further reflected that the driver's license lists a New Jersey
address and that their automobile was registered in New Jersey.
- Case Caption:
- Battery Park Management Corp. v. Tabachnick
- Issues/Legal Principles:
- Tenant waived jurisdictional objection to usage of "John Doe" after full trial on the
merits.
- Keywords:
- "John Doe"; jurisdiction; nonprimary residence
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Arlene Hahn
- Date:
- June 23, 2000
- Citation:
- NYLJ, page 26, col 3
- Referred Statutes:
- CPLR 320(b)
- Summary:
- In the underlying non-primary residency proceeding, the prime tenant acknowledged that
the subject apartment was not his primary residence and consented to the entry of a final
judgment of possession. At trial, undertenant Michael Bandler unsuccessfully asserted a
succession rights claim. The trial court further held that Mr. Bandler also unlawfully sublet the
apartment to his son for a two-year period and later engaged in profiteering by subletting to a
third party. After trial, Mr. Bandler made a motion to dismiss the proceeding as the notice of
petition and petition named him as "John" Bandler rather than by his correct name of Michael
Bandler. The usage of "John" or "John Doe" is commonly employed when the full name of an
occupant is unknown at the time the proceeding is commenced. The Appellate Court upheld the
lower court's ruling that under the circumstances, the usage of "John" Bandler gave the
undertenant sufficient notice of the underlying nonprimary residence proceeding. The Court
further held that Mr. Bandler waived any jurisdictional objections by testifying at trial and
presenting a full defense, while represented by counsel.
New York Law Journal, decisions for the week of June 12-16, 2000
(3 cases)
- Case Caption:
- Avenue A at St. Marks Partners v. Strachnyi
- Issues/Legal Principles:
- Stipulation where grandson agreed to leave apartment is set aside since he did not know
that he had succession rights.
- Keywords:
- stipulations; succession rights
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Michelle D. Schreiber
- Date:
- June 13, 2000
- Citation:
- NYLJ, page 26, col. 1
- Referred Statutes:
- 9 NYCRR 2204.6(d)
- Summary:
- A Russian emigre not fluent in English or conversant with landlord-tenant law appeared
pro se in Housing Court and signed a stipulation agreeing to leave the apartment within three
months. He then got an attorney and promptly went back to court to get the stipulation vacated.
His meritorious claim was that he had lived with the rent controlled tenant, his grandfather, for
more than two years prior to his death. The lower court vacated the stipulation and allowed him
to succeed to his grandfather's tenancy. The Appellate Term affirmed, holding that the emigre
"inadvertently, inadvisably or improvidently entered into an agreement which will take the case
out of the due and ordinary course of proceeding in the action and works to his prejudice."
- Notes:
- The grandson here must have presented very formidable evidence in support of his
claim, because stipulations are not lightly set aside. The written decision does not indicate what
evidence the tenant submitted. It was, however, a unanimous decision which indicates that the
grandson's evidence was probably very strong. Tenants should not, absent strong evidence, get
the idea that it is easy to vacate a stipulation: in fact it is usually quite difficult.
- Case Caption:
- Brussels Leasing LP v. Young
- Issues/Legal Principles:
- Wheelbound tenant who vacated apartment for lack of ingress/egress ramp in building
is entitled to have her warranty of ability and constructive eviction claims on this issue heard in
Housing Court and not exclusively at the Human Rights Commission.
- Keywords:
- SCRIE, laches, warranty of habitability, constructive eviction, punitive damages,
abatements
- Court:
- Civil Housing Court, Queens County
- Judge:
- Hon. Bruce Kramer
- Date:
- June 14, 2000
- Citation:
- NYLJ, page 34, col. 1
- Referred Statutes:
- NYC Administrative Code 8-107(5)(a)(2) & 8-109, 26-509; RPAPL 743; RPL 235-b;
9 NYCRR 2202.20
- Summary:
- Tenant is an 80 year old rent stabilized tenant receiving SCRIE benefits (senior citizen
rent exemptions for rent increases which are paid by the city). She has been confined to a
wheelchair for the past three years. In April, 1999, she vacated the apartment and relocated to
an assisted living facility because she claimed she could not get in and out of the building due
to the absence of a ramp or other viable means of ingress and egress for her wheelchair. While
away from her apartment, the tenant's SCRIE benefits lapsed. (SCRIE benefits must be renewed
(recertified) every two years with the city. The tenant returned home in October, 1999 around
the time that the landlord built a temporary ramp. The landlord is in the process of building a
permanent ramp.
The landlord brought a nonpayment proceeding against the tenant and the tenant defended
her nonpayment of the rent on grounds that she was constructively evicted by not having
wheelchair access to the apartment which led to her forced relocation. The landlord moved to
dismiss the tenant's defense that she was constructively evicted for the lack of access, arguing
that the Human Rights Commission is the proper forum for hearing this issue and that it was
created to, among other things, ensure compliance with New York City laws as they pertain to
housing for disabled persons. The Court rejected this argument, finding that Housing Court has
jurisdiction to entertain any legal or equitable defense or counterclaim interposed pursuant to
RPAPL 743. The tenant's claim arises out of the Administrative Code of the City of New York
which specifically created a private cause of action, and hence is one that can be heard in a court
of law such as Housing Court. Thus, the Court allowed the tenant's constructive eviction claim
to stand. The court found that warranty of habitability claims are valid and inextricable with
the landlord's right to collect rent, and hence both must be heard in the same forum.
Tenant also opposes landlord's demand for alleged rent resulting from when her SCRIE
benefits lapsed, arguing that these monies must be recovered in a plenary action. Landlord,
however, claimed that the tenant allowed her SCRIE benefits to lapse after she relocated to an
assisted living facility without notifying the landlord who was then back billed by the City for
benefits issued during the termination period. In other words, landlord would not have continued
to accept the SCRIE abatements had it known that the tenant was no longer getting SCRIE
benefits. Since the landlord had to re-pay the City, the landlord is demanding the refund from
the tenant via this nonpayment proceeding. The Court noted that in this case, unlike other cases
cited to by the tenant, the landlord is seeking to recover current rent from the actual SCRIE
recipient due to her own failure to recertify. As such the landlord should not be barred from
seeking these monies (as "rent") in this nonpayment proceeding.
The landlord asked the court to dismiss tenant's laches defense, i.e., that the landlord
waited too long to collect the rent and therefore the rent now due is "stale." The court could
not determine this issue on a motion and reserved it for trial. The court struck the tenant's
demand for $17,000 in compensatory damages, $10,000 in damages for emotion distress and
punitive damages as not applicable in a Housing Court proceeding.
- Case Caption:
- Parkchester Preservation Co. v. Molina
- Issues/Legal Principles:
- Since Housing Court lacks authority to compel landlord to replace entire plumbing
system, tenants cannot obtain a contempt order for breach of warranty of habitability (ongoing
leaks) on this issue.
- Keywords:
- breach of warranty of habitability; leaks; abatements; contempt
- Court:
- Civil Housing Court, Bronx County
- Judge:
- Hon. Heymann
- Date:
- June 14, 2000
- Citation:
- NYLJ, page 31, col. 3
- Referred Statutes:
- none cited
- Summary:
- During a four month period the court conducted 10 trials out of 27 nonpayment
proceeding with an HP proceeding. The issue in the HP portion of the trials was whether the
court had the statutory authority to order the landlord to replace the entire plumbing system in
each of the buildings where the tenants lived. In a prior decision, the court ruled that it was
constrained by statute to limit its relief to the correction of violations as they arise, as opposed
to ordering the wholesale replacement of the entire plumbing system for each of the buildings
where the tenants reside. There were no outstanding violations regarding the plumbing at the
time the HP action was dismissed. Thereupon the landlord agreed to provide each litigating
tenant a 33% abatement for breach of the warranty of habitability for roughly one year. The
parties also agreed that landlord would make other necessary repairs. Thereafter the tenants
sought to restore the cases to the calendar because the landlord was not making the repairs, and
they sought additional abatements because of same. In that vein, another judge directed the
parties to proceed to trial on the issue of the additional abatements. The other judge also held
that if the plumbing system continued to break down, the tenants (in his opinion) were entitled
to additional abatements. In that regard, yet another judge conducted a consolidated trial
involving 26 nonpayment proceedings, and thereupon found that there were no common
conditions throughout any of the apartments to warrant an overall award of damages for a
particular condition. The second judge determined that the landlord had indeed breached the
warranty of habitability.
The tenants now return to court (to the original trial judge) to revisit the judge's
resolution of their cases by seeking an order of contempt against the landlord for its failure to
make repairs under the initial February, 1999 settlement stipulation, and damages for the breach
of that stipulation. The court ruled that since it could not order the replumbing systemwide, it
was anticipated that future plumbing problems would arise and the tenants would continually
seek periodic abatements as those problems occur . . . which was the basis of the second trial
wherein abatements were awarded. Thus, the court refused to hold the landlord in contempt for
issues involving the plumbing. The court, however, refused to also award the landlord attorneys
fees because in the court's opinion the landlord came to the court with unclean hands and noted
that the second trial judge ruled that the landlord did not "effectuate proper
repairs."
New York Law Journal, decisions for the week June 5-9, 2000
(5 cases)
- Case Caption:
- In re Kay Hakim v. DHCR
- Issues/Legal Principles:
- Reduction in services does not exist where landlord eliminates storage
in basement if such space is "de minimus" in nature, unless the tenant’s
lease has a provision guaranteeing storage or tenant had used formal
storage space in boxes or bins.
- Keywords:
- reduction in services, DHCR
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Richard Braun
- Date:
- June 5, 2000
- Citation:
- NYLJ, page 22, col 2
- Referred Statutes:
- none cited
- Summary:
- DHCR had found reduction in services due to owner’s elimination of
basement storage space which the tenants had used. Supreme Court agreed.
The Appellate Division reversed finding that DHCR’s "inter-office"
memorandum that stated that "de-minimus" (small) reduction in services
should not result in a reduction of services finding. This type of
elimination is listed in the DHCR memorandum as "deminimus". Accordingly,
the Appellate Division reversed the lower Court and remanded the case to
the DHCR for a new decision based upon the memorandum.
- Case Caption:
- Gloveman Realty Corp. v. Jefferys
- Issues/Legal Principles:
- Where the tenants convert a former commercial or manufacturing
building into a residential building with six or more units, the units are
subject to rent stabilization.
- Keywords:
- rent stabilization; lofts
- Court:
- Supreme Court, Kings Cty
- Judge:
- Hon. Judge Clemente
- Date:
- June 7, 2000
- Citation:
- NYLJ, page 29, col 5
- Referred Statutes:
- MDL Article 7C, (The Loft Law); MDL Section 286; Emergency Tenant
Protection Act Section, Section 5
- Summary:
- The landlord rented out a former manufacturing building to three
tenants with long term leases. The tenants then subdivided the building
and converted the building, at their cost, into apartments and sub-let them
out to "sub-tenants". There were twelve units in the building. The
landlord then sued, saying that the units were being used residentially in
violation of the lease and that it had received violations from
Environmental Control Board and Department of Buildings. The Court held
that if the landlord knew and acquiesced to the conversion (which was done
by the tenants) and that since more than six units were created, that the
building would be subject to the Emergency Tenant Protection Act and Rent
Stabilization. In this case there was a factual matter as to whether the
landlord knew and acquiesced, so the court set the case down for trial.
- Case Caption:
- NYCHA v. McLinton
- Issues/Legal Principles:
- Housing Authority tenancy, terminated for failure to submit financial
data, is not curable. RPAPL Section 753(4) which allows a tenant to cure
for lease violations does not apply to a Housing Authority tenant who has
exhausted his/her administrative appeals.
- Keywords:
- post-judgment ten-day cure
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Howard Sherman
- Date:
- June 7, 2000
- Citation:
- NYLJ, page 26, col 1
- Referred Statutes:
- RPAPL Section 753(4)
- Summary:
- A NYCHA tenant failed to submit the required financial information and
lost a hearing at the administrative level. Then NYCHA commenced an
eviction action against the tenant in Housing Court. The Housing Court
judge found that since she had provided all the required financial
information after losing the administrative hearing, that she had "cured"
and that RPAPL 753(4) allows a post-judgment cure. The Appellate Term
reversed and found that the RPAPL cure provision does not apply where a
tenancy is terminated by the Housing Authority.
- Notes:
- There is a strong dissent which argues that the RPAPL 753 (4) should
be liberally applied and include housing authority tenants.
- Case Caption:
- Pomeroy Co. v. Thompson
- Issues/Legal Principles:
- Waiver is established when landlord accepts rent directly from the
tenant for eight years
- Keywords:
- waiver
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Maria Milin
- Date:
- February 7, 2000
- Citation:
- NYLJ, page 28, col 3
- Referred Statutes:
- none cited
- Summary:
- Respondent moved into apartment with tenant of record in 1955. In
1964 tenant moved out and respondent paid rent in tenants name until 1991,
at which time she paid rent in her own name. In 1996 the landlord actually
settled an HP action with the respondent. In 1998, owner commenced
holdover proceeding and the Court found that the landlord had waived its
right to object to her tenancy because at least since 1991 the landlord had
been on notice of her occupancy of the apartment and payment of rent in her
name. One of the justices dissents on grounds that the landlord had asked
the respondent to produce proof of her claimed marriage to the tenant which
was never produced. In the interim the landlord accepted her rent "without
prejudice." To the dissent, the landlord’s were justified and never created
a landlord tenant relationship, but the majority held otherwise.
- Case Caption:
- Holiday v. Franco
- Issues/Legal Principles:
- In a NYCHA building the misdeeds of an adult emancipated son, who
lives at a different address, should not be imputed to the parent.
- Keywords:
- NYCHA
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Kapnick
- Date:
- February 8, 2000
- Citation:
- NYLJ, page 25, col 3
- Referred Statutes:
- none cited
- Summary:
- The son of a tenant of record broke down the door to his mother’s
apartment and demanded money to buy drugs. The tenant, called the police
who came to the apartment and arrested the son. Shortly afterward, NYCHA
brought a termination proceeding against the mother who signed an agreement
barring the son from her home. Two years later, while the tenant was at
work, one of her other children allowed the son to come in to the
apartment. NYCHA inspected and found the son in the apartment without the
knowledge or permission of the tenant. Since the tenant had signed an
agreement permanently barring her son from her apartment, the hearing
officer found against the tenant and ordered her eviction. The tenant
appealed and the Court reversed finding that charges brought against the
tenant for actions of her emancipated children who do not live with her are
"manifestly unfair". Since petitioner was guilty of no misconduct,
probation was not justified. Accordingly, the tenant should not be evicted.
New York Law Journal, decisions for the week of May 29-June 2, 2000
(3 cases)
- Case Caption:
- Matter of G. Polise Realty Corp. v. Roldan
- Issues/Legal Principles:
- Waiver of pending overcharge claim is deemed null and void absent DHCR or Court
approval.
- Keywords:
- treble damages; rent overcharge; waiver; withdrawal of claim
- Court:
- Supreme Court, New York County
- Judge:
- Justice LaTorella
- Date:
- May 31, 2000
- Citation:
- NYLJ, page 30, col 1
- Referred Statutes:
- RSC 2529.6, 2520.13; NYC Admin. Code 26516(a)
- Summary:
- In this Article 78 proceeding, the landlord sought an appeal of DHCR's finding of rent
overcharge and imposition of treble damages. The landlord claimed that the tenant withdrew
its overcharge complaint. The Supreme Court determined that both the finding of rent
overcharge and imposition of treble damages by the DHCR was proper. The Court held that
although the landlord alleged that the tenant withdrew its objection to the rent in the proceeding
below, there was no evidence introduced to support this allegation. The Court further held that
" . . . any such withdrawal of a pending overcharge complaint by the tenant would be void
absent approval of respondent DHCR or a court of competent jurisdiction." Finally, the Court
held that upon a finding of rent overcharge, DHCR properly imposed treble damages since the
landlord failed to establish by a preponderance of the evidence that such overcharges were not
willful.
- Case Caption:
- Rivergate LP v. Nonaka
- Issues/Legal Principles:
- Landlord's request for a waiver of nonmilitary investigation in nonpayment case is
denied.
- Keywords:
- nonmilitary service affidavit; nonmilitary investigation; waiver of requirement
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Howard Malatzky
- Date:
- May 31, 2000
- Citation:
- NYLJ, page 27, col 3
- Referred Statutes:
- Soldiers' and Sailors' Civil Relief Act of 1940, as amended, 50 U.S.C. App. 520: Mi.L.
300-328 as enacted by L.1951 ch. 728
- Summary:
- After the tenant's failure to answer in a residential nonpayment proceeding, the landlord
sought to obtain a default judgment. However, prior to obtaining this relief, the landlord must
demonstrate that an investigation was conducted to determine whether the tenant is either in the
military or a dependant of a person in the service. Generally this is accomplished by an attorney
affidavit that such an investigation was conducted. In this case, the landlord failed to conduct
this investigation and sought the court's permission to dispense with the requirement to conduct
a nonmilitary investigation and/or file the nonmilitary affidavit. The landlord claimed that "it
cannot investigate the issue of respondent's military status because the building is large and none
of its employees remember the respondent." Moreover, the landlord alleges that since its files
reflect that respondent is not a United States Citizen (in a "Certificate of Foreign Status), he
cannot possibly be in the military. In support of this application, the landlord argued that the law
no longer requires a formal filing of the affidavit. The Court held that while the filing of a
nonmilitary affidavit may not be required, the requirement to submit proof of an investigation
may not be waived. The Court noted that the Certificate of Foreign Status was inadmissible as
such proof since it predated the petition and the default by respondent. Accordingly, the
circumstances could have changed. The Court further noted that the landlord could have easily
investigated the tenant's military status by writing a letter of inquiry to each branch of the
service for a fee of approximately $3.50.
- Case Caption:
- HKAL 34th Street Limited Partnership v. Fran Taylor Inc.
- Issues/Legal Principles:
- Trial needed to determine if landlord acquiesced in tenant's installation of a door to
connect two apartments and make it one residential unit.
- Keywords:
- nonprimary residency; renewal lease; corporate tenant
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Douglas Hoffman
- Date:
- May 31, 2000
- Citation:
- NYLJ, page 27, col 1
- Referred Statutes:
- CPLR 3211(a)(1), (a)(2), (a)(7); CPLR 3211(c)
- Summary:
- Landlord brought a holdover proceeding seeking to recover possession of apartment 33-C
upon the grounds that the only tenant of record was a corporation named Fran Taylor, Inc.. The
tenant, Fran Taylor defended, claiming that her tenancy in the adjoining apartment 33-D and the
combination of the two apartments (which was accomplished by placing a door within the
common wall separating the two premises), rendered both apartments a single unit as a matter
of law. The adjoining apartment, 33-D also listed Fran Taylor, Inc. as the corporate tenant but
designated Fran Taylor and/or Stanley Rapp as the sole occupants. The subject apartment (33-C)
was leased to Fran Taylor, Inc. in October, 1978 and the adjoining apartment (33-D) was leased
to Fran Taylor, Inc. in April, 1981.
The landlord claimed that since the corporate lease for apartment 33-C did not designate
an individual as an occupant, the landlord was not required to issue a renewal lease as a matter
of law. The landlord pointed out that it never gave permission for the tenant to erect a door,
joining the two apartments. Moreover, the landlord registered both apartments as separate units
with DHCR and renewed leases to each apartment separately. Moreover, the tenants paid rent
for each apartment separately and each apartment had a separate electric meter. The tenant
claimed that the landlord's acquiescence to the doorway between the apartments operated as a
waiver and estoppel to the landlord's claims that both units were separate. Both parties moved
for judgment as a matter of law.
The Court denied both parties' motions, finding that a trial would be necessary to
determine whether the landlord acquiesced in or waived any objection to the combination of the
two apartments and whether the two apartments should be considered a single residential unit
based upon the intentions of the tenants and the use the tenants made of the two apartments.
The Court did grant the landlord's motion for a money judgment, representing use and
occupancy which the tenant's agreed to pay without prejudice but failed to do so. However, the
Court denied the landlord's motion for a judgment of possession due to the nonpayment of use
and occupancy, and instead ordered an immediate trial.
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