Housing Court Decisions October 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 October 23-27, 2000
(5 cases)
- Case Caption:
- 433 West Associates v. Murdock
- Issues/Legal Principles:
- Failure to plead tenant's federal Section 8 status does not deprive Housing Court of
jurisdiction to hear the holdover proceeding.
- Keywords:
- Section 8; federal consent decree
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Howard Malatsky
- Date:
- October 23, 2000
- Citation:
- NYLJ, page 22, col 3
- Referred Statutes:
- 42 USC 1437f; RPAPL 741; Civil Court Act 110; CPLR 5015
- Summary:
- The landlord brought a holdover proceeding against the tenant on grounds of nuisance.
The lower court denied the tenant's motion to vacate a judgment of possession in favor of
landlord and to dismiss the petition. The Appellate Term, in affirming the lower court decision,
noted that landlord's holdover petition did indeed fail to plead that the petition and the predicate
notice were served upon the New York City Housing Authority as required by the Williams
federal consent decree for Section 8 tenancies where the landlord seeks to repossess the
apartment. Additionally, the petition failed to plead the tenant's Section 8 tenancy status.
Although the Court acknowledged that these were "essential elements" to landlord's prima facie
case, the Court held that such defenses do not implicate the Civil Court's subject matter
jurisdiction, so that the lower court could still entertain the case. The Appellate Division ruled
that the Civil Court's competence to hear a Section 8 holdover proceeding is derived from the
Civil Court Act, Section 110, not the Williams consent decree or federal regulation. Therefore,
these defenses can be waived. The Court further noted that the tenant in this case had twice
waived the defenses of landlord's prima facie case and again when tenant did not appeal the
judgment of possession. The Court also concluded that tenant's claim that the landlord accepted
a Section 8 subsidy in the "window period"" between termination and commencement of the
holdover proceeding likewise did not negate the court's jurisdiction to hear the matter.
- Case Caption:
- 21 West 58th Street Corp. v. Davydova
- Issues/Legal Principles:
- Testimony and photographs demonstrate that tenant cured the alleged breach of lease
regarding unauthorized alterations.
- Keywords:
- alterations; breach of lease; cure.
- Court:
- Appellate Term: First Department
- Judge:
- lower court: Hon. Laurie Lau
- Date:
- October 24, 2000
- Citation:
- NYLJ, page 26, col 4
- Referred Statutes:
- none cited
- Summary:
- Civil Court determined that tenant effected a cure of the breach of lease pertaining to
alterations in tenant's living room and bedroom. At a hearing the tenant testified and produced
photographs establishing that tenant proceeded with due diligence and in good faith to comply
with the court's order to restore the apartment to its condition prior to the alterations, including
replacement of walls, doors and moldings and restoration of the fireplace and living room floor.
Landlord's witness was unable to testify as to the conditions prior to the renovations which left
tenant's evidence essentially uncontested. The Court agreed with the trial judge that a fair
interpretation of the evidence supports the conclusion that the tenant timely remedied the breach
within the statutory cure period.
- Case Caption:
- Goldstein v. Sevastopolou
- Issues/Legal Principles:
- Son's eight-month contemporaneous co-occupancy with mother, the tenant of record,
does not satisfy the two-year minimum period necessary to establish succession rights.
- Keywords:
- succession rights; nonprimary residence; summary judgment
- Court:
- Appellate Term: First Department
- Judge:
- lower court: Hon. Brenda Spears
- Date:
- October 25, 2000
- Citation:
- NYLJ, page 28, col 3
- Referred Statutes:
- none cited
- Summary:
- Civil Court granted summary judgment in favor of landlord in a licensee proceeding.
The tenant of record's son failed to raise a triable issue of fact as to whether he resided with his
mother in the apartment as a primary residence for at least two years immediately prior to his
mother's death in November, 1997. The son claimed he moved into the apartment following
his mother's stroke in March, 1994. During this period, the mother was in Scotland in mid-
1994 and also for a time in November, 1994, and she suffered a stroke in Scotland in August,
1995. The tenant never returned to the apartment and died in Scotland in November, 1997
following a three-year absence from New York. The lower court correctly concluded that the
son's eight month contemporaneous co-occupancy with his mother (March, 1994 to November,
1994) did not satisfy the two-year minimum period necessary to establish succession rights to
the stabilized tenancy.
- Case Caption:
- Envoy Towers Tenants Association v. Envoy Towers Associates
- Issues/Legal Principles:
- Supreme Court judge defers tenants' repair issues to Housing Court as a more
appropriate forum on this issue.
- Keywords:
- jurisdiction; repairs
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Franklin R. Weissberg
- Date:
- October 25, 2000
- Citation:
- NYLJ, page 29, col 3
- Referred Statutes:
- Housing Maintenance Code 27-2115(h); Civil Court Act 110
- Summary:
- Plaintiffs-Tenants brought an action in Supreme Court primarily to compel Defendant-
Landlord to repair defective conditions in their building. The landlord asked the judge to
dismiss the tenants' complaint on multiple grounds, including the contention that the complaint
should have been brought in Housing Court. The judge agreed, holding that the legislature
"expressly declared that the `effective enforcement of proper housing standards in the City of
New York will be greatly advanced' by having a single court, the Housing Court, address such
claims." The court concluded that the legislature has deemed it advisable that claims of this
nature be resolved in the Civil Court. The tenants argued that the Supreme court does in fact
have general jurisdiction over repair issues, which is true, but the more appropriate forum is
Housing Court concluded the judge.
- Notes:
- By and large, landlord tenant disputes (particularly residential disputes) are deferred to
Housing Court when commenced in Supreme Court. Only if the tenant (or landlord) cannot
obtain complete relief in Housing Court will a tenant's claim survive in Supreme Court. For
example, Housing Court does not have authority to rescind a lease, so a tenant may have to
litigate such a claim in Supreme Court.
- Case Caption:
- Edwards v. Morris
- Issues/Legal Principles:
- Provisions of the Administrative Code pertaining to lead-based paint are not applicable
if the premises do not constitute a multiple dwelling.
- Keywords:
- multiple dwelling; lead-based paint
- Court:
- Supreme Court, Kings County
- Judge:
- Hon. Edward M. Rappaport
- Date:
- October 25, 2000
- Citation:
- NYLJ, page 31, col 1
- Referred Statutes:
- CPLR 3212; Administrative Code of the City of New York 27-2056; Multiple Dwelling
Law 4(7)
- Summary:
- Plaintiffs are daughter and infant granddaughter of the defendant and are suing him for
damages for injuries allegedly sustained by the infant as a result of lead poisoning. The
landlord-defendant moved to dismiss the action on grounds that he was not provided a notice of
a hazardous condition. The infant and her mother have resided in the apartment since the
infant's birth in 1995. In 1997, the infant was found to have an elevated blood lead level. The
building consists of two stories and a basement. The plaintiffs reside in the basement apartment
and the upper two floors which have a single kitchen and living room were occupied by the
defendant, his wife and three other family members.
At depositions, the plaintiff mother testified that the basement apartment was mostly
paneled and the painted areas were intact. The defendant testified that the premises were pained
in 1985 before he moved in and he was not aware of the presence of any lead-based paint. Prior
to receiving notice from the Department of Health, he was unaware of any chipping or peeling
although he had the ceiling of the dining room repainted between 1995 and 1997. By order to
abate nuisance dated August 22, 1997, the defendant was advised of the presence of lead-based
paint in numerous areas of the first and second floor. The infant was removed from the upstairs
areas and relocated to New Jersey until the abatement work was completed. In support of his
motion to dismiss the action, the defendant claims that the Administrative Code (Local Rule 1)
pertaining to lead based paint are inapplicable to this case because the building is not a multiple
dwelling (three or more units whose residents live independent of each other), but rather
according to environmental inspection reports, a one-two family dwelling. Due to the
inapplicability of Local Law 1, the defendant argues that there can be no finding against him
because he did not have notice of the condition until he received the Notice to Abate Nuisance.
The obligations of the owner of a multiple dwelling in New York City with regard to lead
paint include removal or properly covering paint containing an excess of the designated amounts
of lead in any unit which a child under 6 resides. The law creates a rebuttable presumption that
in any unit within a multiple dwelling erected before 1960 in which a child under 6 resides, any
peeling paint contains more than the acceptable designated levels of lead. Local Law 1 classifies
the existence of paint containing more than the designated levels of lead in multiple dwelling
units in which a child under 6 resides as a hazardous condition requiring correction.
The court stated that the language of Local Law 1 makes it clear that it applies only to
multiple dwellings. It was not disputed that the premises in question consists of two dwelling
units with one family occupying the two upper floors. The court found that the defendant
proved that his sharing the premises did not make the building a multiple dwelling as a matter
of law. The court held that the plaintiffs are not entitled to the presumption that any peeling
paint contains more than the acceptable designated levels of lead as created by Local Law 1
since this presumption only applies to multiple dwellings. The court ruled that the defendant
could only be held liable for a defective lead-based paint condition if he had actual or
constructive notice of the condition for a reasonable period of time that in the exercise of
reasonable care he should have corrected it. In granting defendant's motion for summary
judgment, the court held that the defendant did not have notice of the hazard prior to the time
the infant plaintiff was diagnosed and that he acted reasonably in correcting the condition after
he did receive notice.
New York Law Journal, decisions for the week of October 16-20, 2000
(4 cases)
- Case Caption:
- Korobkin v. Brand-X, Inc.
- Issues/Legal Principles:
- Corporate tenant's claim of self-dealing where landlord, an attorney, once represented
tenant constituted a valid equitable defense.
- Keywords:
- nonprimary residence; corporate tenant; self-dealing
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Bruce Kramer
- Date:
- October 16, 2000
- Citation:
- NYLJ, page 25, col 1
- Referred Statutes:
- none cited
- Summary:
- The landlord brought a nonprimary residence proceeding against a corporate tenant
whose principal officer resided in the apartment. Apparently the landlord is an attorney and
once represented the corporation's officer in corporate matters at the time the lease was
executed. The tenant raised the issue of fraudulent misrepresentation and self-dealing and the
Appellate Term ruled that these were valid equitable defenses. The case was sent back to
Housing Court for a trial on these issues.
- Case Caption:
- Ansonia Associates v. Bozza
- Issues/Legal Principles:
- Landlord is not entitled to collect use and occupancy (i.e., rent) at a market rate if the
apartment was never deregulated, but rather is only entitled to regulated increases.
- Keywords:
- use and occupancy; cure; mixed usage; lease violation
- Court:
- Appellate Term: First Department
- Judge:
- lower court: Hon. Martin Shulman
- Date:
- October 20, 2000
- Citation:
- NYLJ, page 31, col 3
- Referred Statutes:
- RSC 2520.11(n)
- Summary:
- The landlord brought a holdover proceeding against the tenant on grounds that he
improperly used the premises as a music studio. The tenant cured the conduct complained of
and therefore the tenant, who had lived in the apartment since 1960, did not lose his lease. The
court noted that the tenant had always lived in the apartment in addition to using it has a music
studio. In other words, he did not use the premises solely for commercial purposes. The
tenant's last rent before the landlord terminated the lease was $711. During the 45 month period
the matter was being litigated the trial judge ruled that the tenant was bound to pay use and
occupancy (i.e., rent) at the market rate of $5100 to $5,865 per month. The Appellate Term,
however, reversed and ruled that since the apartment was never deregulated (i.e., the tenant
cured the breach and the tenant resided in the apartment), the landlord was not entitled to a
market use and occupancy. The landlord was only entitled to applicable guidelines increases.
- Case Caption:
- 23 Jones Street Assoc. v. Keebler-Beretta
- Issues/Legal Principles:
- Recently wed wife wins succession rights to her 82 year old husband's rent control
apartment based on the credibility of her testimony and her witnesses, but Appellate Term
dissent vigorously disagrees with the majority's affirmance of the jury verdict in favor of the
wife.
- Keywords:
- succession rights; nonprimary residence; jury verdict
- Court:
- Appellate Term: First Department
- Judge:
- lower court: Hon. Shirley Werner Kornreich
- Date:
- October 16, 2000
- Citation:
- NYLJ, page 24, col 6
- Referred Statutes:
- 9 NYCRR 2204.6(d)(1)
- Summary:
- The recently wed wife of the now deceased rent control tenant seeks succession rights
to the apartment. She had a jury trial and won, and this was affirmed on appeal to the Appellate
Term. A vigorous dissent, however, was presented by Justice McCooe who provided a lengthy
outline of the facts (missing in the majority's decision). The wife was 34 years old when she
married the 82 year old tenant of record on April 2, 1992, having met him the previous year.
He died in December, 1995 leaving an apartment with a monthly rent of $56. The issue was
whether she resided with him at 23 Jones Street or in another apartment up the street, 7 Jones
Street, where she was the tenant of record. Since the wife had a legal disability, she only had
to prove that she lived with her husband one year prior to his death. She continued to receive
her mail at 7 Jones Street, but testified that the 23 Jones Street mailbox was broken. She had
no documentary evidence linking her to 23 Jones Street, but the majority ruled that she and her
witnesses were credible. The wife testified that she slept in a little room in the back because
her husband had a 24 hour home care attendant staying in the room up front where he slept.
Her witnesses included a longtime friend who came to the apartment and saw her clothes there,
but he never testified that she resided there. Her other witnesses just saw her coming in and out
of the building, but never testified that she resided there.
The wife's documentary evidence, including hospital records during the period of her
marriage, placed her at 7 Jones Street. The super of 7 Jones Street and 23 Jones Street testified
that she resided at 7 Jones Street. The lower court declined to charge the jury with a negative
inference over the fact that the wife did not produce the husband's home care attendants who
would have personal knowledge where the wife lived. In addition to the absence of any
documentary evidence, the dissent regarded the failure to produce key witnesses, such as the
home care attendant or a certain identified male tenant at 7 Jones Street who supposedly would
have testified that she did not reside there, as evidence of the wife's inability to prove her case.
The dissent noted that "while the absence of documentary evidence is not fatal to a primary
residence case, there should be a preponderance of credible personal testimony." The dissent
held that the only evidence supporting the wife's position that she resided with her husband was
her testimony alone. He held that her testimony was contradicted by the documentary evidence
and the super's testimony. The jury ruled 5 to 1 that she resided with her husband for the
relevant period. The landlord moved to set aside the jury's verdict as against the weight of the
evidence, but the lower court refused to do so. The Appellate Term upheld, but given Justice
McCooe's vigorous dissent it is likely this case will go up to the Appellate Division.
- Case Caption:
- 365 West End Avenue LLC v. Gallagher
- Issues/Legal Principles:
- Landlord cannot seek to enforce 1975 lease provision that doesn't allow the tenant to
have roommates in violation of RPL 235-f, the roommate law.
- Keywords:
- roommate; lease clause
- Court:
- Appellate Term: First Department
- Judge:
- lower court: Hon. Shlomo Hagler
- Date:
- October 16, 2000
- Citation:
- NYLJ, page 25, col 1
- Referred Statutes:
- RPL 235-f
- Summary:
- Landlord brought a holdover proceeding against the tenant based on the tenant's alleged
violation of the 1975 lease. That provision, which limits occupancy of the apartment to the
tenant and immediate family members, is unenforceable as against public policy due to RPL 235-
f which allows tenants the right to have roommates. A lease provision cannot be enforced to
the extent that it violates the minimum protections afforded tenants under the roommate law.
The Appellate Term upheld the lower court's dismissal of the proceeding for failure to state a
cause of action.
New York Law Journal, decisions for the week of October 9-13, 2000
(8 cases)
- Case Caption:
- 467 42nd Street, Inc. v. Decker
- Issues/Legal Principles:
- Tenant who paid judgment in full, plus the following month's rent, was entitled to be
restored to the apartment after the landlord unlawfully evicted her since the acceptance of
September's rent reinstated her tenancy.
- Keywords:
- restoration to possession; post-judgment rent
- Court:
- Appellate Term; 2 & 11th Judicial District
- Judge:
- lower court: Hon. Bruce Kramer and C. Callendar
- Date:
- October 13, 2000
- Citation:
- NYLJ, page 27, col 5
- Referred Statutes:
- Civil Court Act 212; CPLR 5015(d)
- Summary:
- The lower court restored the tenant to possession of the apartment even after the warrant
was executed. This is because the landlord accepted the September, 1998 rent after the
judgment had been paid. This acceptance reinstated the tenant's tenancy which had previously
been terminated. The acceptance of the rent vitiated landlord's right to evict pursuant to the
judgment. Inasmuch as the warrant was executed after the right to execute it had been lost by
the acceptance of rent, the court did not abuse its discretion in restoring the tenant to the
apartment after eviction.
- Case Caption:
- Sendowski v. Pilzer
- Issues/Legal Principles:
- Court vacates warrant against tenant whose affidavit was accompanied by proof of
payment by bank check of the judgment amount.
- Keywords:
- judgment; warrant
- Court:
- Appellate Term: First Department
- Judge:
- lower court: Hon. Faviola Soto
- Date:
- October 12, 2000
- Citation:
- NYLJ, page 28, col 4
- Referred Statutes:
- RPAPL 747-a
- Summary:
- The lower court vacated the warrant against the tenant and landlord appealed. Landlord
argued that the court did not have authority to vacate the warrant. The Appellate Term,
however, upheld because the tenant's affidavit was accompanied by copies of two bank checks
covering the balance due on the judgment plus additional rent which had accrued since the date
of the judgment. Moreover, the tenant did not inordinately delay in satisfying the judgment.
- Case Caption:
- Palmer v. Bobolia
- Issues/Legal Principles:
- Holdover proceeding cannot be maintained if tenant abandoned the apartment before the
proceeding began.
- Keywords:
- abandonment; jurisdiction
- Court:
- Appellate Term: 9th & 10th Judicial Districts
- Judge:
- lower court: Hon. W. Maher
- Date:
- October 11, 2000
- Citation:
- NYLJ, page 28, col 1
- Referred Statutes:
- none cited
- Summary:
- Landlord's own testimony indicated that tenant had abandoned the apartment before the
court proceedings began. The Appellate Term reversed the judgment granted to the landlord by
the lower court and held that a summary proceeding to recover possession may not be
commenced if a tenant had already left the premises.
- Case Caption:
- In Re Dormitory Authority of the State of New York v. Davis
- Issues/Legal Principles:
- Rent controlled tenant is not entitled to monetary compensation for having to give up
his apartment because the building was condemned.
- Keywords:
- condemnation
- Court:
- Appellate Division; First Department
- Judge:
- lower court: Hon. Stanley Parness
- Date:
- October 10, 2000
- Citation:
- NYLJ, page 23, col 5
- Referred Statutes:
- none cited
- Summary:
- The rent controlled tenant lived in a building that was legally condemned and so he had
to relocate and find a new apartment. The court ruled that the tenant was not entitled to a
compensable property interest in the apartment where he was a tenant or to monetary benefits
equivalent to the loss of his rent control status.
- Case Caption:
- 25 Realty LLC v. Perdomo
- Issues/Legal Principles:
- Landlord's case should not be dismissed where its agent was present to testify as to the
mailing of the renewal notice of the lease.
- Keywords:
- evidence; renewal notice
- Court:
- Appellate Term: First Department
- Judge:
- lower court: Hon. Jerald R. Klein
- Date:
- October 12, 2000
- Citation:
- NYLJ, page 28, col 3
- Referred Statutes:
- none cited
- Summary:
- The Appellate Term ruled that landlord's motion to reopen its case to introduce
additional testimony to cure an alleged deficiency in its prima facie case should have been
granted in the absence of prejudice to the tenant. No adjournment to produce the evidence
would have been necessary because the witness with personal knowledge of the mailing of the
renewal lease was present in the courtroom. Tenant's defense of the action on the merits of the
case (rather than a technical dismissal where the merits are not yet reached) does not amount to
prejudice sufficient to deprive the landlord of its day in court.
- Case Caption:
- Surfside Investment Co. v. Golding-Ochsner
- Issues/Legal Principles:
- By interposing a counterclaim for legal fees in a nonprimary residency proceeding,
tenant does not waive defense that legal papers were improperly served.
- Keywords:
- counterclaims; personal jurisdiction; nonprimary residence
- Court:
- Appellate Term: First Department
- Judge:
- lower court: Hon. Maria Milin
- Date:
- October 12, 2000
- Citation:
- NYLJ, page 28, col 3
- Referred Statutes:
- RPL 234
- Summary:
- The Appellate Term affirmed the lower court's ruling that the tenants did not waive their
affirmative defense of lack of jurisdiction by interposing a related counterclaim for attorneys'
fees in this nonprimary residence proceeding. The counterclaim, the reciprocal of landlord's
own demand for legal fees in the notice of petition "is inextricably linked to and arises out of
the holdover proceeding." The Court held that the resolution of the holdover proceeding is
decisive of the issue raised in the counterclaim.
- Notes:
- Tenants need to be careful in interposing counterclaims if they also want to retain a
challenge to the service of the legal papers. The standard is whether the counterclaim is
"inextricably linked to and arises out of the holdover proceeding."
- Case Caption:
- 318 East 93, LLC v. Ward
- Issues/Legal Principles:
- In a "close-call" case, court must decide against the party who has the burden of proof.
- Keywords:
- nonprimary residence; negative inference
- Court:
- Appellate Term: First Department
- Judge:
- lower court: Hon. Ruben Martino
- Date:
- October 10, 2000
- Citation:
- NYLJ, page 23, col 2
- Referred Statutes:
- none cited
- Summary:
- The Appellate Term affirmed the lower court's ruling which dismissed the nonprimary
residency proceeding against the rent controlled tenant. This was a close call case and the trial
judge sided with the tenant, which led the Appellate Term to hold that when "the trial evidence
weighs so evenly as not to preponderate on either side, the court must decide against the party
with the burden," and here landlord had the burden of proof. The lower court refused to draw
a negative inference based upon the tenant's failure to call her daughter at trial, and the
Appellate Term ruled that this was a proper exercise of discretion. The inference that a trier
of fact draws from a missing witness charge is not mandatory, but merely permissive.
- Case Caption:
- 444 West 58th Realty v. Barth
- Issues/Legal Principles:
- Deceased tenant's daughter proves succession rights to rent controlled apartment, and
is awarded attorney's fees.
- Keywords:
- nonprimary residence; succession rights; legal fees
- Court:
- Appellate Term: First Department
- Judge:
- lower court: Hon. Ruben Martino
- Date:
- October 11, 2000
- Citation:
- NYLJ, page 26, col 1
- Referred Statutes:
- 9 NYCRR 2204.6(d); Real Property Law, 234
- Summary:
- The daughter of the deceased rent control tenant sought succession rights and the lower
court ruled that she satisfied her burden of proof. The Appellate Term affirmed, finding that
she produced proof of a lifelong connection to the apartment and maintained it as her primary
residence for two years before her father's death. The documents included a form signed by the
tenant listing the daughter as the "secondary tenant" of the apartment. Although landlord
produced documents linking her to her boyfriend's apartment in Rocky Point, Long Island for
a period of several months, the landlord failed to establish that this alternative address ever
became the daughter's residence. The Court noted that the trial judge found the boyfriend's
brother's testimony to be credible that the daughter kept returning to Manhattan for her then
drug addiction. The daughter was awarded legal fees since there was a clause in her parents rent
controlled lease that awarded fees to the landlord in the event the tenant defaulted under the
lease, and Real Property Law 234 made this lease clause reciprocal.
New York Law Journal, decisions for the week of October 2-6, 2000
(0 cases)
No cases were reported this week
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