Housing Court Decisions March 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 March 27-31, 2000
(6 cases)
- Case Caption:
- Building Management Co, Inc. v. Antollino
- Issues/Legal Principles:
- Court refused to regard tenant as the prevailing party even though combining his award
of attorney's fees in a prior proceeding with an abatement awarded in this proceeding exceeded
the amount of the judgment obtained by the landlord.
- Keywords:
- attorneys fees
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Howard Malatsky
- Date:
- March 28, 2000
- Citation:
- NYLJ, page 26, col 1
- Referred Statutes:
- none cited
- Summary:
- Tenant had been the prevailing party in a prior holdover proceeding. The tenant
withheld rent as a means to recover his attorney's fees from the prior proceeding. The lower
court declined to award the tenant attorney's fees based on the prior holdover proceeding and
due to the tenant's award of a rent abatement of only 10 percent. The Appellate Term upheld
the lower court's holding, but a dissent by Justice McCooe held otherwise. He noted that the
attorney's fees from the prior proceeding, when coupled with a 10% abatement, exceeded the
judgment awarded to landlord, which would make the tenant the prevailing party. Justice
McCooe asserted that even if tenant's setoff amounted to only half the judgement, this would
still make the tenant the prevailing party. The justice also disagreed with the majority's opinion
that the award of attorney's fees is in the discretion of the trial judge. He held: "Generally, in
nonpayment proceedings involving an abatement, the prevailing party is determined by
computing the percentage of the claim actually recovered and discretion is not a factor." In this
case there was no special circumstance to justify departing from that rule (such as where there
has been a change in the law after the commencement of the proceeding.)
- Case Caption:
- Sol Goldman v. DHCR
- Issues/Legal Principles:
- DHCR's own delay in processing overcharge complaint is not grounds for exempting
the applicability of the 1997 law which enacted a four-year statute of limitations on filings.
- Keywords:
- overcharges; statute of limitations
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Emily Goodman
- Date:
- March 30, 2000
- Citation:
- NYLJ, page 26, col 4
- Referred Statutes:
- Rent Regulation Reform Act of 1997
- Summary:
- In a rent overcharge case that began at the DHCR, the lower court ruled that because
the DHCR delayed in processing the tenant's claim, the Rent Regulation Reform Act of 1997
should not apply. (Apparently, its applicability in this case defeats the tenant's overcharge claim
whose filing exceeded the four-year statute of limitations). The Appellate Division held that
absent a showing that the DHCR's delay arose out of negligence or wilfulness, the law must
apply since the law made no exception for delays of any kind.
- Case Caption:
- Frick Collection v. Meehan
- Issues/Legal Principles:
- Notice terminating a month to month tenancy must state unequivocally that if the tenant
does not move by the specified date, legal eviction proceedings will be commenced against the
tenant.
- Keywords:
- termination notice
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Schachner
- Date:
- March 29, 2000
- Citation:
- NYLJ, page 22, col 2
- Referred Statutes:
- CPLR 3211(a)(2) & (7), 408; RPL 232-a
- Summary:
- A holdover proceeding was brought against the tenant who resided in two rooms in the
building. In exchange for rent, the tenant engaged in caretaker services. The landlord's
attorney sought to terminate the tenancy. The termination notice states that they were the
attorneys of The Frick Collection and demand was made that the tenant vacate by October 31,
1999. The notice further then stated: "We trust that it will not be necessary to commence legal
proceedings in connection with the foregoing and do thank you for your cooperation." The court
dismissed the proceeding because of the inadequacy of the termination notice. A termination
notice must be equivocal and unambivalent in its intent to terminate the tenancy and commence
legal proceedings. This notice failed to state definitively, as RPL 232-a requires, to inform the
tenant that if the tenant does not timely vacate, summary proceedings will be commenced. This
notice was vague as to whether or not litigation would ensue if the tenant did not leave on time.
- Case Caption:
- South Second Realty v. Bracero
- Issues/Legal Principles:
- Landlord cannot collect past rent in excess of legal regulated rent due to landlord's late
filing of rent registration statements.
- Keywords:
- overcharges; rent registration
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Michael Pinckney
- Date:
- March 29, 2000
- Citation:
- NYLJ, page 30, col 6
- Referred Statutes:
- Rent Stabilization Law 26-517(a) and (e); RSC 2525.1
- Summary:
- Landlord brought a nonpayment proceeding seeking rent for three months at $450.28
per month. At the time the petition was served the landlord had not registered the building or
apartment with DHCR for the years 1997, 1998 and 1999. The tenant settled by agreeing to pay
all the rent due, anticipating continued DSS payments (i.e., public assistance). When the tenant
did not pay, the landlord sought a judgment and tenant then retained counsel and made a motion
to vacate the stipulation of settlement and dismiss the petition.
At the time the stipulation of settlement was made, the last registration on record was
in 1996 citing the rent as $383.21 per month. Thereafter the landlord registered the building
and the apartment for those years by rents which reflected the amounts in the tenant's written
leases. The tenant did not dispute those rents. The issue in tenant's motion is the ability of the
landlord to collect the increased rent for the period of time before the rents were registered.
The owner argued that the Rent Reform Act of 1993 permits retroactive collection of rent after
the filing of a late registration, so long as the rents sought are within guideline levels. The
tenant argues that the late filing of a registration permits prospective collection of the rent, but
prohibits any retroactive collection.
The court examined RSL 26-517(e) and observed that it provides that an owner filing
a late registration would not be found to have collected an overcharge before filing so long as
the rent charged and collected did not exceed the legal regulated rent the landlord would have
been able to collect but for the late registration. Therefore, such a rent collected by the landlord
would not have be paid back to the tenant. The landlord argued that if the Rent Reform Act of
1993 did not impose treble damages against a landlord for collecting the guidelines increases
before curing a late registration, then it would be contrary to the spirit of the statute to bar a
landlord from collecting the legal guideline increases retroactively.
The court, however, noted that the current prohibition barring a landlord from
retroactively collecting an increased amount upon the filing of a late registration is not so drastic
a measure as imposing treble damages. The court noted that in fact the prohibition encourages
owners to file annually and allowing retroactive collection would weaken the incentive.
Moreover, the court noted that if the prohibition is contrary to the "spirit" of the Act, it is not
contrary to the "body" of the Act which specifically retained the word "prospectively." In other
words, even though the owner eventually files registration for years it missed, it cannot
retroactively seek to collect rent in excess of the legal regulated rent for those years. The court
held: "if the Act intended to allow an owner to apply for and collect retroactively, it could have
eliminated the word `prospective.'"
- Case Caption:
- 601 West 160 Realty Corp. v. Henry
- Issues/Legal Principles:
- Tenant who is active in the tenants' association as president is allowed to assert
retaliatory eviction defense in a nonpayment proceeding where the landlord sued for rent that
the tenant had unequivocally paid, and tenant awarded $3,000 in civil damages.
- Keywords:
- retaliatory eviction; tenants association
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Sikowitz
- Date:
- March 29, 2000
- Citation:
- NYLJ, page 31, col
- Referred Statutes:
- RPL 223-b
- Summary:
- The tenant, a resident since 1980, is actively involved in the tenant's association as
president since 1989 when the building was converted to a cooperative after litigation with the
tenants of the building. The landlord brought a nonpayment proceeding in 1997 even though
the tenant had paid the rent. In the instant case, again the landlord brought a nonpayment
proceeding but the tenant had paid the rent. The tenant interposed a counterclaim of retaliatory
eviction even though that defense is specifically confined to holdover proceedings, not
nonpayment proceedings. The court queried whether a tenant can assert retaliatory eviction in
a nonpayment proceeding. The court held that based on the specific fact pattern at bar, the
tenant may assert such a defense.
At a hearing on this issue, the tenant called one of the landlord's employees as his first
witness. This employee had custody of the rent records and confirmed that the tenant had
indeed paid the rent which was demanded in the petition for this time period as well as 1997.
In fact, the employee testified that the tenant "pays his rent timely and consistently." The agent
said he believed that an "error" must have been made to account for the commencement of
meritless legal proceedings. The tenant testified at length as to warranty of habitability issues
for which the court awarded the tenant a 15% abatement.
The retaliatory eviction statute prohibits a landlord from serving a notice to quit or
commencing a holdover proceeding in retaliation for, in this case, a tenant's participation in a
tenant's association. The statute creates a rebuttable presumption but is not applicable to
nonpayment proceedings. The court however found that where the alleged nonpayment of rent
is manufactured by the landlord to harass the tenant, that this is "precisely the type of landlord
behavior the statutory defense and presumption was enacted by the legislature to combat." The
statute was enacted to restore a balance in landlord tenant relationships and to ensure that
landlords will not have an unfair advantage over tenants. Although two Appellate Term cases
specifically ruled that tenants are not allowed to assert a retaliatory eviction defense in
nonpayment proceedings, the court distinguished the facts in those cases because those tenants
owed rent whereas the tenant in this case did not owe any rent but was nonetheless wrongly sued
for same by the landlord. Thus, the tenant's assertion of this defense was not utilized for the
purpose of relieving him of his obligation to pay rent. The court concluded that the landlord's
actions arose as a direct result of the tenant's active role in the tenants association. The landlord
offered no credible explanation of a non-retaliatory motive for its conduct. Hence the court
awarded the tenant civil damages in the amount of $3,000 plus attorneys fees.
- Case Caption:
- MHM Sponsors Co. v. Millman
- Issues/Legal Principles:
- Lease dated 1971 with jury waiver clause is enforceable against occupants' demand for
a jury even though landlords could not sue tenants for nonprimary residency in Housing Court
until 1984.
- Keywords:
- nonprimary residency; Golub Notice; jury demand;
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Shlomo Hagler
- Date:
- March 29, 2000
- Citation:
- NYLJ, page 27, col 3
- Referred Statutes:
- General Construction Law 20; 9 NYCRR 2524.2; RPAPL 735; Rent Control Laws
8605; former RSC 54(e)
- Summary:
- Landlord brought a nonprimary residency proceeding against the tenant of record who
died in May, 1999. Landlord alleged that at the time of his death, the tenant did not reside in
the apartment as his primary residence. The respondents in occupancy (seemingly unrelated to
the deceased tenant), made a motion to dismiss the petition on several grounds. One ground was
that the "Golub Notice" was not timely served. A Golub Notice is a landlord's notice to a rent
stabilized tenant that their lease will not be renewed, in this case on nonprimary residency
grounds. A Golub Notice must be served no later than 150 days and no earlier than 120 days
before the lease's expiration date. In this case, the Golub Notice was served on September 2,
1999 and the lease renewal expired on December 31, 1999. The respondents argued that the
Golub Notice was served only 119 days prior to the lease's expiration. To reach this result the
respondents excluded the first day (September 2, 1999) and last day (December 31, 1999) period
when they counted up the days. The court, however, noted that while the General Construction
Law excludes the first day in the counting, the statute specifically includes the last day in the
computation, thereby in this case adding up to 120 days, making this Golub Notice timely
served. The respondents also argued that the holdover petition was untimely served. Service
of the papers must be completed at least 5 days before the return date. In this case, the service
was completed on January 14, 2000 and the petition noticed to be heard on January 19, 2000.
The respondents tried to exclude the first and last day in their argument that the return date
occurred only 4 days after service. But by the court's computation pursuant to the statute 5 days
existed.
The respondents also sought to make a jury demand. The lease between the deceased
tenant and the initial landlord was dated December 23, 1971 and it contained a jury waiver
clause which would not allow a jury trial. The respondents argue, however, that the lease was
executed before a nonprimary residency law was enacted for rent stabilized tenants. They cited
a number of cases for the principal that since the cause of action to evict a rent regulated tenant
for nonprimary residency based on nonprimary residence did not exist until 1984, then jury
waiver clauses existing in leases executed before 1984 need not be enforced. The court did not
analyze in depth those cases, but merely stated their conclusions. The court disagreed with those
judges' decisions analysis and instead relied upon three cases decided by Hon. Marin Shulman.
The court outlined Justice Shulman's position at length: rent stabilized tenants were historically
required to maintain their apartment as their primary residence. Thus, the 1984 law did not
create a new cause of action based on nonprimary residence because such requirement "always
existed" in that the old law provided that apartments not occupied by the tenant as their primary
residence were exempt from rent regulation laws. The only difference made by the 1984 statute
(the Omnibus Housing Act) was that before a landlord had to apply to a time-consuming
administrative agency (forerunner of the DHCR) to get a certificate of eviction before the
landlord could take the tenant to court on this ground. By contrast, after 1984, a landlord could
go directly to Housing Court with its case. Hence the court found the jury waiver clause
enforceable and denied the respondents' request for a jury.
- Notes:
- Housing Court Judge Hagler neglected to note that before his recent appointment as a
judge, he served as Justice Martin Shulman's court attorney for years.
New York Law Journal, decisions for the week of March 20-24, 2000
(6 cases)
- Case Caption:
- Rzeznik v. Lewandowski
- Issues/Legal Principles:
- Tenant's dispute of rent set forth lease renewal does not justify refusal to sign renewal
lease.
- Keywords:
- renewal lease
- Court:
- Appellate Term, 2nd & 11th Judicial District
- Judge:
- lower court: Hon. Bruce Gould
- Date:
- March 20, 2000
- Citation:
- NYLJ, page 29, col 3
- Referred Statutes:
- RSC 2523.5(c); RPAPL 753(4)
- Summary:
- Landlord brought a holdover proceeding because tenant failed to sign a renewal lease.
Landlord, however, conceded that the notice failed to comply with the 150-120 day window
period. The lower court, however, held that the late service of the renewal lease was a de
minimus error (lease mailed October 5, 1995 for a term commencing on February 1, 1996).
The court ordered the tenant to sign the renewal lease in 30 days or face a judgment of
possession. The tenant failed to sign the lease and the landlord sought a judgment. The lower
court granted the judgment, and the appellate court upheld on grounds that the "landlord's failure
to comply with the 120 day window period did not render the lease renewal a nullity." It seems
that tenant refused to sign the lease because the tenant disputed the rent term. The court,
however, noted that there was a DHCR order involving the rent and that the tenant should
pursue its challenge to the rent in that proceeding by a way of an Article 78 in Supreme Court
rather than through the lease renewal issue in Housing Court. The tenant was given 10 days to
cure and sign the lease.
- Notes:
- Tenants should sign renewal leases. If tenants dispute some aspect of the lease, for
example, the amount of rent or the lateness of the offer, tenants should sign "under protest" or
"without prejudice" and indicate in writing on the lease (or in an attached letter) the terms which
are disputed in the lease.
- Case Caption:
- Ric-Mar Equity Ventures v. Murrell
- Issues/Legal Principles:
- Where landlord illegally evicted tenant after the dismissal of landlord's case, tenant
cannot seek restoration through landlord's dismissed case but must commence an illegal lock-out
proceeding by naming and serving the landlord as a party.
- Keywords:
- nuisance; default; lock-out
- Court:
- Appellate Term, 2nd & 11th Judicial District
- Judge:
- lower court: Hon. W. Guzman
- Date:
- March 20, 2000
- Citation:
- NYLJ, page 29, col 2
- Referred Statutes:
- RPAPL 713(10); CPLR 103(c) & 5015(d)
- Summary:
- Landlord commenced a nuisance holdover proceeding against the tenant who failed to
appear in court. Landlord then sought a judgment of possession to the apartment at an inquest,
but the lower court denied the landlord this relief and dismissed the petition on the ground that
the deed showed that someone other than landlord was the title owner. Landlord made a motion
to reargue to show its proof, but the court refused to grant the motion. Even though the
proceeding was dismissed, tenant made two motions to be restored to possession on grounds that
the landlord had locked her out. The lower court restored tenant to possession and the landlord
appealed this decision. The appellate court reversed the lower court, holding that where the
tenant is not removed pursuant to a judgment or order of the court, the court lacks authority to
direct the landlord to restore the tenant to possession. The tenant's remedy in these
circumstances is to commence an unlawful lock-out proceeding pursuant to RPAPL 713(10) to
be restored to possession. No such proceeding was ever commenced and therefore the court
never had jurisdiction over the landlord. In the absence of jurisdiction over the landlord, the
court lacked power to direct the landlord to restore the tenant to possession.
- Case Caption:
- Primrose Management Co. v. Jaffe
- Issues/Legal Principles:
- Tenant who maintained lease and utilities account at another residence failed to establish
succession rights to her father's rent controlled apartment.
- Keywords:
- succession rights
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Ruben Martino
- Date:
- March 20, 2000
- Citation:
- NYLJ, page 24, col 4
- Referred Statutes:
- Rent and Eviction Regulations 2204.6(d)
- Summary:
- A holdover proceeding was brought against the daughter of the tenant of record. The
lower court held that the daughter did not maintain the apartment with her father as her primary
residence. The court found that she had an apartment elsewhere where she had a lease in her
name and maintained utility and telephone accounts during the period she supposedly lived with
her father. She also used her apartment on a resume and received mail there. The super lived
beneath the apartment and regularly interacted with the tenant and his nurses and testified that
he never saw the daughter at the building while her father lived there. The appellant court
upheld the trial court's findings of fact.
- Case Caption:
- Chelsea 19 Associates v. Smith
- Issues/Legal Principles:
- Tenant's profiteering off subtenants is curable since it only lasted for three months.
- Keywords:
- overcharge; profiteering; cure; sublet
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Howard Malatzky
- Date:
- March 22, 2000
- Citation:
- NYLJ, page 26, col 1
- Referred Statutes:
- RSC 2526.6(b); RPL 226-b; RPAPL 753(4)
- Summary:
- Tenant sublet the apartment for three months and landlord claimed that tenant engaged
in profiteering. The appellate court recognized that the sublease rent was unlawful. Tenant's
defense was a misapprehension on the amount that a tenant can charge a subtenant for a
furnished apartment. (10% surcharge is allowed if apartment is fully furnished). The
overcharge was resolved between the tenant and subtenants in the first month of the subtenancy
in that no further payments were made beyond the first month of the sublet. When the security
deposit was returned, there was no overcharge and in fact the subtenants abandoned their claim
of overcharges. The Appellate Term held that on this fact pattern, the termination of a stabilized
tenancy of over 25 years duration was not warranted. The court distinguished other cases due
to misrepresentations made in those cases to the landlord and the lack of restitution there. The
Appellate Term reversed the lower court by accepting the tenant's cure of the violation. Justice
McCooe, however, issued a lengthy dissent. He noted that the tenant charged $3,000 per month
when the rent was only $1,000 per month. The tenant failed to pay the rent and the landlord
had to bring a nonpayment proceeding. Once the subtenants contacted the landlord's lawyer,
a holdover proceeding was brought. The dissent noted that the profiteering was short "only
because the tenant got caught." The dissent further observed that ignorance is no defense or
excuse under the law especially where the tenant had the advice of a rental agent. The dissent
objected to the court's discretion in issuing a permanent stay to the tenant because there is a
public policy against rent profiteering.
- Notes:
- Tenants should NOT regard this case as a green light to overcharge subtenants if the
sublease is for a short duration. The result of this case, that the tenant got to keep her
apartment, is unusual. She must have had a very good lawyer.
- Case Caption:
- Spergel v. Kaufman
- Issues/Legal Principles:
- Landlord cannot bring several small claims actions for rent when taken together the
actions exceed $3,000.
- Keywords:
- rent arrears; jurisdictional limitation
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Cheryl Chambers
- Date:
- March 22, 2000
- Citation:
- NYLJ, page 26, col 2
- Referred Statutes:
- Civil Court Act 1801, 1805(b)
- Summary:
- Landlord began two separate small claims against tenant seeking rent arrears. One
action sought $2,880 for May, 1998 rent and the other sought $3,000 for June, 1998 rent. The
appellate court recognized that landlord essentially had one single claim for two months rent
which totalled more than $3,000 which he arbitrarily split into two individual actions in order
to qualify for small claims treatment. The jurisdictional limit of a small claims action is $3,000.
The Appellate Term granted the tenant's motion to have the two cases consolidated and
transferred to regular Civil Court.
- Case Caption:
- BLJ Realty Holding v. Kasher
- Issues/Legal Principles:
- Action for declaratory relief commenced in Supreme Court cannot be sustained when
it is transferred to Civil Court because Civil Court lacks jurisdiction to issue a declaratory
judgment award.
- Keywords:
- declaratory judgment; jurisdiction
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Douglas Hoffman
- Date:
- March 22, 2000
- Citation:
- NYLJ, page 26, col 1
- Referred Statutes:
- CPLR 325(d), 3001; Civil Court Act 212-a
- Summary:
- Landlord commenced a declaratory judgment action in Supreme Court seeking a
declaration that the defendant tenant had unlawfully sublet a portion of his loft in excess of the
legal regulated rent and that this violation was not curable. The Supreme Court retained
jurisdiction over the action rather than referring same to Housing Court, but later another
Supreme Court judge later transferred the action to Housing Court. In Housing Court the
tenant won the case on grounds that he did not sublet the apartment but rather proved that any
additional occupants were his roommates, not subtenants.
Throughout the proceeding the matter was treated as a declaratory judgment action. It
was not a possessory proceeding because it was not commenced by a notice of petition and
petition. The problem is that declaratory relief is not available in the Civil Court. The
Appellate Term ruled that it was forced to vacate the decision, but without prejudice for an
application to Supreme Court to re-transfer the action back to the Supreme Court.
New York Law Journal, decisions for the week of March 13-17 (5 cases)
- Case Caption:
- In Re Darryl Davis v. Ruben Franco
- Issues/Legal Principles:
- Appeals court rules that public housing tenant who did not receive
written approval before moving into sister’s apartment, is not a remaining
family member entitled to tenancy rights.
- Keywords:
- remaining family member, NYCHA
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Carol Huff
- Date:
- March 13, 2000
- Citation:
- NYLJ, page 27, col 5
- Referred Statutes:
-
- Summary:
- Tenant moved into his sister’s NYCHA apartment without permission from
management. After his sister moved out, he was not allowed to continue
occupancy of the apartment. The Court held that management’s decision not
to give him permission to live in the apartment as a brother of the tenant,
despite his application, was binding. The fact that he lived there for a
period of time after his sister’s departure, does not make him the
tenant.
- Case Caption:
- 668 Realty Co., LLC v. Clyde
- Issues/Legal Principles:
- Prior stipulation binding on successor landlord
- Keywords:
- collateral estoppel, stipulation
- Court:
- Civil Court, New York County
- Judge:
- Hon. Maria Milin
- Date:
- March 15, 2000
- Citation:
- NYLJ, page 27 col 3
- Referred Statutes:
-
CPLR Section 3211; Real Property Law Section 234;
- Summary:
- Petitioner commenced a licensee proceeding alleging that respondent
did not have the right to stay in her mother’s apartment after her mother
died. However, in 1993, the former landlord (a court appointed receiver)
had signed a stipulation agreeing to give the daughter of the tenant a
renewal lease in her own name. The landlord and his attorney signed the
stipulation. The Court held that even if the new landlord did not have any
knowledge of the prior stipulation, that someone who takes possession of
real property is subject to any conditions or tenancy rights agreed to by
the predecessor landlord.
- Case Caption:
- Castle Apartment Corp. v. Mesrie
- Issues/Legal Principles:
- Petitioner may not bring a holdover based upon a tenant’s failure to
pay rent even though the lease may list failure to pay rent as a ground of
default.
- Keywords:
- holdover; nonpayment; breach of lease
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Kenneth Bedford
- Date:
- March 15, 2000
- Citation:
- NYLJ, page 27, col 2
- Referred Statutes:
- RPAPL 753 (4)
- Summary:
- The landlord, a cooperative corporation, brought a holdover against a
shareholder in the coop, who had not paid the maintenance. The landlord
alleged a breach of the lease as a basis for the holdover proceeding. The
Court dismissed the proceeding holding that where a tenant does not pay
rent, a landlord must bring a non-payment proceeding.
- Case Caption:
- SMJ Associates v. Stalling
- Issues/Legal Principles:
- Landlord’s acceptance of third party checks after the execution of the
warrant and the eviction of the tenant held not to re-instate the tenancy.
- Keywords:
- warrant; acceptance of rent
- Court:
- Civil Housing Court
- Judge:
- Judge Marton
- Date:
- March 15, 2000
- Citation:
- NYLJ, page 28, col 6
- Referred Statutes:
-
- Summary:
- Landlord brought a non-payment proceeding that tenant settled by
signing a stipulation agreeing to pay the arrears. After the tenant failed
to pay the arrears, a warrant issued and tenant was evicted. After the
tenant was evicted he/she sought to vacate the warrant and be restored to
possession arguing that the landlord continued to accept Department of
Social Service checks, on behalf of respondent, after the warrant was
issued. The landlord argued that such acceptance was inadvertent and
offered to return the money to DSS. The Court found that the issuance of
the warrant terminates the tenancy and subsequent acceptance of rent does
not automatically restore the landlord-tenant relationship and revive the
tenancy, although in some situations it could restore the tenancy. The
Court found that the landlord had to repay the money that it had accepted
after the issuance of the warrant to the Department of Social Services.
The Court found for the landlord and did not vacate the warrant and restore
the tenant to his/her apartment because there was no ground to vacate the
warrant, such as, excusable default, new evidence, fraud, misrepresentation
or misconduct of adverse party or lack of subject matter jurisdiction.
- Case Caption:
- Luna v. Gjokaj
- Issues/Legal Principles:
- A tenant can collect on a rent overcharge judgment against a
successor landlord where the building had not been sold at a foreclosure
sale and where the prior owner had provided a complete rental history to
the new owner upon the sale of the building.
- Keywords:
- Fair Market Rent Appeal
- Court:
- Civil Housing Court, Bronx County
- Judge:
- Hon. Judge Tolchin
- Date:
- March 15, 2000
- Citation:
- NYLJ, page 28, col 1
- Referred Statutes:
- RSC Section 2526.1;
- Summary:
- Tenant filed a rent overcharge complaint against the landlord. A
foreclosure proceeding was commenced against the landlord and subsequently,
the landlord filed a chapter 11 Bankruptcy proceeding (which is a
proceeding seeking re-organization). The bankruptcy filing resulted in a
re-organization by the bankruptcy Court. Following re-organization, but
not a judicial sale, the building was sold and the tenant moved out. The
tenant sought to enforce the DHCR rent overcharge award against the new
owner or against the former owner/agent. The Court held that the issue of
whether the former agent is personally liable cannot be decided without a
trial and such a determination is based upon traditional agency principles.
Generally, an agent will not be held liable unless there is explicit
evidence that the agent intended to add personal liability to that of the
principal. The Court also found that the new owner would be liable for the
rent overcharge award because the building was not purchased at judicial
sale and the new owner was on notice of the overcharge claim by virtue of
its possession of the entire rental history.
New York Law Journal, decisions for the week of March 6-10, 2000
(5 cases)
- Case Caption:
- Adria Realty Investment Associates v. New York State Department of Housing and
Community Renewal
- Issues/Legal Principles:
- Where landlord was unable to substantiate rent increase with documentation of alleged
improvements, finding of willful overcharge entitled Tenant to treble damages.
- Keywords:
- overcharge; treble damages; improvements
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Colleen McMahon
- Date:
- March 9, 2000
- Citation:
- NYLJ, page 28, col 1
- Referred Statutes:
- none cited
- Summary:
- Landlord sought annulment of DHCR finding of willful overcharge and imposition of
treble damages. On review Appellate Division upheld DHCR's finding that the landlord had
improperly imposed a rent increase for claimed improvements which the landlord's
documentation did not support. The Court also found that the landlord was not entitled to a
hearing in lieu of producing the proper documentation. Nor was the landlord entitled to a
hearing on whether the overcharge was willful as the record reflected a rational basis for the
DHCR's finding of willfulness hence, treble damages were properly imposed .
- Case Caption:
- Uptown Realty Unlimited, LLC v. Svoboda
- Issues/Legal Principles:
- Where tenant failed on rent overcharge counterclaim and prevailed in part on breach
of warranty of habitability counterclaim, mixed outcome did not qualify tenant as a prevailing
party entitled to award of attorneys fees.
- Keywords:
- attorney's fees; warranty of habitability; abatement; substantial relief
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Kibbie F. Payne
- Date:
- March 6, 2000
- Citation:
- NYLJ, page 24, col 6
- Referred Statutes:
- none cited
- Summary:
- In non-payment proceeding landlord recovered 18 months of rent arrears totaling
$12,559.96, minus a stipulated credit of rents held in escrow. Tenant did not succeed on her rent
overcharge counterclaim but did succeeded in part on breach of warranty of habitability claim,
recovering an abatement of $2,138.00. Appellate Term held that mixed outcome of the litigation
was not "substantially favorable" nor could it reasonably be said that either side received
"substantial relief", as such tenant did not qualify as a prevailing party entitled to payment for
attorney's fees.
- Case Caption:
- Fifth Avenue Development Co., LLC v. Kerin
- Issues/Legal Principles:
- Tenant did not meet its burden of proving that a lease was executed which provided
for the payment of attorneys' fees where the original lease was never produced. As such, the
reciprocity provisions of the Real Property Law 234 which allow for the recovery of litigation
costs to a prevailing party were not triggered.
- Keywords:
- attorney's fees; recovery of litigation costs
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Carol H. Arber
- Date:
- March 6, 2000
- Citation:
- NYLJ, page 24, col 5
- Referred Statutes:
- Real Property Law 234
- Summary:
- Appellate term held that Tenant was not entitled to an award of attorney's fees where
there was no factual basis for the conclusion that the original lease contained an attorneys' fee
clause. Neither party was able to produce the original lease containing a provision for the
payment of litigation costs which was signed sometime prior to 1974. Further, the landlord's
application for "the value of fair use and occupancy, interest and legal fees" would not be
construed as a legal admission that the original lease contained an attorney's fee clause.
Therefore, Real Property Law 234 which allows for the reciprocal recovery of litigation fees was
not triggered.
- Case Caption:
- Matter of Bell v. Martinez
- Issues/Legal Principles:
- Tenant's disability provided good cause for failure to recertify her continuing eligibility
for federal Section 8 subsidy
- Keywords:
- Section 8 recertification, ADA, statute of limitations
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Elliot Wilk
- Date:
- March 8, 2000
- Citation:
- NYLJ, page 27, col 1
- Referred Statutes:
- 42 U.S.C. 794 (Americans with Disabilities Act); 42 USC 3601 (Fair Housing Act);
24 C.F.R 982.552(a)(c); CPLR 217; CPLR 208
- Summary:
- Petitioner-Tenant had experienced a number of strokes, was hospitalized and thereafter,
confined to a nursing home for a period of seven months. During her stay in the nursing home
the tenant's supplemental social security benefits were reduced from $528.00 to $35.00 per
month. Her Section 8 subsidy was never adjusted to reflect her reduction in income. As a
result, rent arrears began to accrue in November of 1998 and a non-payment proceeding was
brought against the Tenant in March of 1999.
It was alleged that several notices had been sent to tenant's home address which stated
NYCHA's intention to terminate the tenant's federal Section 8 housing subsidy for failure to
recertify her eligibility for Section 8 benefits. The tenant claimed she never received the notices.
On March 31, 1999 the tenant's Section 8 subsidy was terminated. The tenant never appeared
in the non-payment proceeding in Housing Court and a default judgment was taken against her
and a notice of eviction issued. The tenant's attorney was unable to settle the eviction
proceedings because New York City Housing Authority (NYCHA) refused to retroactively
restore the Section 8 housing benefits, although NYCHA did agree to consider her reinstatement
to the Section 8 program.
The tenant brought this Article 78 proceeding in Supreme Court seeking the annulment
of NYCHA's decision to terminate her Section 8 benefits, reinstatement of the Section 8
benefits, full retroactive subsidy for the period of November 1998 through June 1999 and an
adjustment of the Section 8 subsidy to retroactively reflect the tenant's decrease in income for
the same period. NYCHA countered that the four month statute of limitations within which the
tenant could bring her Article 78 proceeding had run and the tenant's claim was thus untimely
and could not be heard by the court. Relying on Dworman v. Division of Housing and
Community Renewal, 1999 WL 1240812 (1999) the court found that there existed an excusable
procedural default for the tenant's failure to recertify her continued eligibility for Section 8
benefits. 24 CFR 982.552 (c) requires that: "in deciding whether to deny or terminate assistance
because of action or failure to act by members of the family the PHA has discretion to consider
all of the circumstances of each case, including the seriousness of the case, the extent of the
participation or culpability of individual family members and the effects of denial or termination
of assistance on other family members who were not involved in the action or failure."
Noting that the tenant was away from her home, seriously ill and unaware of the existence
any notices and that potential disruption to her family was extremely serious, the court found
it reasonably clear that she failed to recertify for good cause rather than inadvertent neglect.
Therefore, the tenant should be given another opportunity to recertify to continue getting the rent
benefits. Further the court held that the statute of limitations did not bar the tenant's claim as
she was under a disability and pursuant to CPLR 208 tolling of the statute of limitations occurs
where a party is under a disability because of infancy or insanity. The court determined that the
tenant's situation applied because she was "under a disability because of her overall inability to
function." The matter was remanded to NYCHA and a stay was granted in the non-payment
proceeding pending the agency 's reconsideration consistent with the Court's decision.
- Case Caption:
- 90-10 149th Street LLC v. Badillo
- Issues/Legal Principles:
- Holdover proceeding was stayed pending determination by State Division of Human
Rights as to whether landlord engaged in unlawful discriminatory practice in terminating tenant's
lease for keeping a dog who tenant regarded as a "comfort animal" and beneficial in alleviating
depression resulting from her disabilities.
- Keywords:
- pets; discrimination; human rights; disability
- Court:
- Civil Housing Court, Queens County
- Judge:
- Hon. Ulysses Leverett
- Date:
- March 8, 2000
- Citation:
- NYLJ, page 30, col 5
- Referred Statutes:
-
- Summary:
- A holdover proceeding was brought against tenant based on breach of proprietary lease
in that tenant was keeping a dog in violation of the "no pet" clause of the lease. Following the
commencement of the holdover proceeding tenant filed a disability discrimination complaint with
the State Division of Human Rights. In the complaint the tenant stated that the his wife had been
diagnosed with end stage renal disease, diabetes and retinal detachment of the left eye rendering
her legally blind, and that the dog was a "comfort animal" who helped alleviate his wife's
depression over her disabilities. The court held that in the event that the State Division of
Human Rights finds that the landlord was acting in a discriminatory manner, the holdover
proceeding would not lie and that based on the doctrine of "primary jurisdiction" which
"generally enjoins the court from deciding matters within an administrative agency's particular
technical expertise and specialized experience" it would stay the summary holdover proceeding
pending a decision from the State Division of Human Rights.
New York Law Journal, decisions for the week of February
28-March 3, 2000 (6 cases)
- Case Caption:
- Chechak v. Hakim
- Issues/Legal Principles:
- Tenant who is compelled to bring a plenary action to enforce a fair
market rent appeal order is entitled to attorney’s fees..
- Keywords:
- Fair Market Rent Appeal; attorney’s fees; prejudgment interest; rent
offset
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Sheila Abdus-Salaam
- Date:
- March 2, 2000
- Citation:
- NYLJ, page 27, col 6
- Referred Statutes:
- RPL Section 234; CPLR Section 5001(a)
- Summary:
- Tenant commenced an action against landlord to enforce a DHCR Fair
Market Rent appeal order, which directed a refund of excess rent. Tenant
and landlord moved for summary judgment. The trial court granted summary
judgment in favor of the tenant, and awarded the tenant the excess rent
found by DHCR without offset for alleged rent arrears, awarded the tenant
prejudgment interest on the excess rent from the date of the Rent
Administrator’s order and awarded the tenant her reasonable attorney’s
fees.
On appeal, the Appellate Division First Department affirmed the lower
court’s order. The Court held that a tenant compelled to bring a plenary
action to enforce a fair market rent appeal order is entitled to attorney’s
fees, pursuant to RPL Section 234, and prejudgment interest, pursuant to
CPLR 5001(a). Moreover, the Court found that the landlord was not entitled
to offset rent that the tenant had subsequently withheld since it was clear
that the tenant had withheld rent in connection with two rent strikes and
not in an effort to recoup the DHCR award.
- Notes:
- It has previously been held that tenants who prevail in fair market
rent appeals are not entitled to recover attorney’s fees. See for example,
Rogers v. Rhodes Building Management, Inc., NYLJ, March 25, 1998, 27:3
(Civ. Ct. NY Co.), citing Matter of Ista Mgt., 161 AD2d 424 (1st Dept.
1990). This decision is good news since more tenants with a fair market
rent appeal cases will be prone to retaining professional assistance
knowing that their attorney’s fees could be recouped.
- Case Caption:
- Seward Park Housing Corp. v. Chen
- Issues/Legal Principles:
- Maintenance staff’s or security personnel’s knowledge that tenant
harbored dog in apartment not, in and of itself, adequate to establish that
landlord had waived no-pet clause of lease.
- Keywords:
- pet law
- Court:
- Appellate Term, First Department
- Judge:
- Lower Court, Hon. Howard Malatzky
- Date:
- March 2, 2000
- Citation:
- NYLJ, page 28, col 6
- Referred Statutes:
- Administrative Code of the City of New York, Section 27-2009.1,
- Summary:
- Tenants had a no-pet provision in their lease. They got a dog without
the landlord’s permission. The lower court dismissed the proceeding after
trial, pursuant to New York City Administrative Code, Section 27-2009-1,
finding that the landlord had waived the lease restriction since it had
failed to commence a summary proceeding within three months from the time
it learned that the tenants had the dog.
Appellate Term reversed. Although the tenant had walked the dog in and
out of the premises, and security personnel and maintenance staff observed
the dog, the appellate court held that there was no evidence that the
landlord knew or should have known of the dog’s presence from the outset.
In making this decision, the Court relied, in part on the size of the
building, which was in a complex containing over 1700 apartments. The
Court stated that "[p]articularly in a project of this size, the mere fact
that certain unidentified security personnel (employed by an independent
agency) or members of the large maintenance staff may have casually
observed tenant with their dog from time to time does not equate with a
finding that the owner knew or should have known of the dog’s presence from
the outset." At trial, there was testimony that these personnel did not
have any responsibility to report unauthorized pets.
In addition, the Court relied upon the period of time that the dog was
in the building and distinguished this case from cases where the tenant had
had the dog for an extended period of time. In this case, the landlord
learned about the dog within two months of its arrival and promptly
asserted its rights by serving a notice to cure and thereafter commencing a
summary proceeding.
Justice William J. Davis filed a long dissent. He argued that landlords
could just hire oustide security personnel, resist imputing knowledge to
them and thereby relinquish any responsibility of knowledge. This would
allow a landlord to be able to go after a tenant’s dog for an indefinite
open period of time all along claiming lack of knowledge. Justice Davis
argued that this conduct violated the spirit of the statute.
- Case Caption:
- P.T.V. Realty Corp. v. Mesa
- Issues/Legal Principles:
- Landlord of tenant in Section 8 housing need not give the appropriate
Section 8 authority notice of non-payment proceeding; tenant has defense
of laches where landlord seeks to collect rent that started accruing five
years before proceeding commenced
- Keywords:
- Section 8; laches
- Court:
- Civil Court, Housing Part, Bronx County
- Judge:
- Hon. Gonzalez
- Date:
- March 1, 2000
- Citation:
- NYLJ, page 31, col 1
- Referred Statutes:
- 24 CFR Section 982
- Summary:
- In a non-payment proceeding, Section 8 tenant moved to dismiss a
proceeding on the ground that the landlord failed to serve the appropriate
Section 8 authority with the petition or, in the alternative, to sever all
rent arrears accrued between April 1994 and April 1998 on the ground of
laches.
The Court held that 24 CFR Section 982.10, which requires an owner to
give the appropriate Section 8 authority a copy of any eviction notice,
applies to holdover proceedings and not to non-payment proceedings.
However, the Court granted respondent’s request to sever claims for rent
that accrued prior to 1998. Applying the four-prong test to establish
laches, the Court held that the landlord could not obtain a possessory
judgment for rent arrears that accrued in the years of 1994 through 1997.
The Court noted that it was unlikely that the NYS Department of Social
Services would pay such "stale" rent claims.
- Case Caption:
- DHPD v. Absolum Hunter and Dorothy Hunter
- Issues/Legal Principles:
- Landlord is guilty of criminal contempt where he willfully fails to
provide tenants with heat in winter in violation of court order; evidence
regarding landlord’s misconduct at other building is admissible in
evidence to establish allegations in HP action under Molineux theory.
- Keywords:
- contempt; evidence of prior bad acts
- Court:
- Civil Court, Housing Part, Bronx County
- Judge:
- Hon. Eva Alterman
- Date:
- March 1, 2000
- Citation:
- NYLJ, page 33, col 2
- Referred Statutes:
- Judiciary Law Section 750; Judiciary Law Section 751; Judiciary Law
Section 753; Judiciary Law Section 773; Judiciary Law Section 774
- Summary:
- DHPD commenced proceeding against landlords for lack of services. The
parties entered into a consent order, directing the landlords to provide
heat, hot water and access to the boiler. After entry of order, DHPD
alleged that landlords failed to provide heat in the winter. At a hearing,
tenants testified that there was only sporadic heat in the winter and that
there was heat in the summer. A DHPD inspector testified that the
temperature in the building reached 110 degrees in the summer. DHPD offered
into evidence a determination of harassment against the landlords for the
landlords’ conduct at another building. In the harassment decision, there
was a finding that the landlords had provided heat in the summer time at
this other building. In addition, HPD admitted into evidence a tape from
an evening new program in which one of the landlords stated that the
landlord wanted the tenants to move from this other building because they
did not pay rent.
The Court held that evidence regarding the landlord’s misconduct at the
other building and the statement of one of the landlords were admissible to
establish misconduct at this building because the bad acts were similar and
the evidence was relevant to establishing the landlord’s motive, intent and
lack of mistake.
After the hearing, the Court found that one of the landlords was guilty
of criminal contempt and fined him $1000 and sentenced him to thirty days’
imprisonment. It found both landlords guilty of civil contempt and fined
them $250. In addition, pursuant to the finding of Civil Contempt, the
Court ordered that one of the landlords be committed to jail until such
time as he provided heat and paid the fine, such commitment not to exceed
six months.
- Case Caption:
- 101 West 70th Street Associates v. DHCR
- Issues/Legal Principles:
- DHCR has power to review fair market rent of an apartment where the
rent exceeds $2000 upon decontrol of the apartment.
- Keywords:
- Fair Market Rent Appeal
- Court:
- First Department, Appellate Division
- Judge:
- Hon. Beatrice Shainswit
- Date:
- February 28, 2000
- Citation:
- NYLJ, page 27, col 5
- Referred Statutes:
- RSL 26-513;RSL Section 26-504.2
- Summary:
- Landlord, in an Article 78 proceeding, moved to restrain DHCR from
hearing tenants’ fair market rent appeal. Court granted DHCR cross-motion
to dismiss the petition for failure to state a cause of action.
Court affirmed lower court. The Court held that there is no merit to
the landlord’s argument that DHCR lacks jurisdiction to establish the fair
market rent of an apartment rented for more than $2000 upon the apartment’s
decontrol. The Court noted that, were the Court to so-limit DHCR’s
jurisdiction, a landlord could exempt itself from initial rent regulations
of a decontrolled apartment simply by pegging the rent at a level above
$2000. The Court declined to reach such a result, finding that the fair
market rent procedures did not specifically exempt high rent apartments.
- Notes:
- This is a very important decision. Otherwise, landlords could simply
raise the rent over $2,000, and circumvent DHCR oversight. The Appellate
Division’s requirement that DHCR review the legality of a $2,000-plus rent
is a welcome antidote to DHCR’s unacceptable inclination to give landlord’s
free rein to set their own rents with no oversight.
- Case Caption:
- One-Three Eight Seven Assoc. v. DHCR
- Issues/Legal Principles:
- Landlord liable for excess rent collected by the prior landlord as
well as by itself; for purpose of calculating four-year statute of
limitations, action commenced when tenant filed rent overcharge complaint,
not when DHCR converted complaint to Fair Market Rent Appeal.
- Keywords:
- Fair Market Rent Appeal; refund excess rent; successor landlord;
statute of limitations
- Court:
- First Department, Appellate Division
- Judge:
- Hon. Lottie Wilkins
- Date:
- February 28, 2000
- Citation:
- NYLJ, page 26, col 2
- Referred Statutes:
- RSL 26-513
- Summary:
- Landlord purchased building only few months before DHCR fixed fair
market rent and directed petitioner and two prior landlords to refund to
the tenant the excess rent collected from the tenant since 1985. On PAR,
DHCR directed petitioner to refund to the tenant all excess rent collected
by it as well as by two prior landlords. Appellate Division affirmed the
lower court. It held that DHCR’s decision to require current landlord to
refund all excess rent collected since 1985 was not arbitrary and
capricious and was consistent with DHCR policy. Court finds neither
prejudice nor hardship to landlord and notes that landlord should have been
escrowing rent that it collected in excess of fair market rent, as
determined by District Rent Administrator. In addition, Court held that,
for purpose or calculating when action was commenced, four years should be
measured from time tenant filed rent overcharge claim, not from time that
DHCR converted proceeding to a fair market rent appeal.
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