Housing Court Decisions April 2001
Editors: Colleen F. McGuire, Esq., Chief Editor
Robert E. Sokolski, Esq., Catherine Grad, Esq. and David Weinraub, Esq.
Return to current month
Return to main index
Return to 2001 index
New York Law Journal, decisions for the week of April 23-27, 2001
(7 cases)
- Case Caption:
- 102-116 8th Avenue Associates v. Oyola
- Issues/Legal Principles:
- Court restored tenant to possession of apartment after eviction since tenant tried to pay
rent, although not the full amount, and landlord rejected the tender.
- Keywords:
- default; partial payment
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Timmie Elsner
- Date:
- April 23, 2001
- Citation:
- NYLJ, page 24, col 3
- Referred Statutes:
- RPAPL 747-a
- Summary:
- The tenant was evicted for alleged nonpayment of rent, but the lower court restored the
tenant to possession upon payment of all arrears, eviction costs and attorney's fees. The
Appellate Term upheld the decision finding that good cause for vacating the warrant was shown
here where the tenant attempted to pay the rental arrears, although not the full amount, and
landlord rejected the payment. Tenant paid only part of the rent because he did not have access
to his money orders which had been removed with his possessions upon his eviction the previous
day. The Appellate Term ruled that the relief fashioned by the court appropriately balanced the
interests of both parties.
- Case Caption:
- Zenila Realty Corp. v. Marget
- Issues/Legal Principles:
- Tenants who burn incense daily having a "strong and noxious" odor created an
annoyance to other tenants, thereby justifying judgment of possession to landlord.
- Keywords:
- nuisance
- Court:
- Appellate Term, First Department
- lower court: Hon Nicholas Figueroa
- Date:
- April 23, 2001
- Citation:
- NYLJ, page 24, col 3
- Referred Statutes:
- none cited
- Summary:
- Tenants admitted burning incense daily in their apartment and two of the other
residential tenants in the small building testified as to the strong and noxious smell emanating
from the premises. The lower court ruled the tenants should be evicted. The Appellate Term
upheld, holding that continually creating this odor could fairly be interpreted as a breach of a
substantial obligation of the lease, which by its terms forbid "annoying" smells and interference
with the comfort and rights of other tenants.
- Case Caption:
- Cornell University v. Gordon
- Issues/Legal Principles:
- Court allows tenant to cure illegal alteration regarding balcony, but tenant is not required
to cure illegal alteration of kitchen and bath fixtures because landlord did not mention these latter
items in the notice to cure.
- Keywords:
- illegal alterations; notice to cure; post judgment cure
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Howard Malatzky
- Date:
- April 25, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- none cited
- Summary:
- The landlord brought a holdover proceeding against the tenant on grounds of illegal
alterations. The lower court found that tenant had in fact materially altered the enclosure of her
balcony which enlarged her bedroom. The judge gave her an opportunity to cure, and she did
by removing the door to the balcony and an outer window. The judge inspected the apartment
after the cure to ensure that she had in fact removed the alteration complained of. The landlord,
however, appealed on grounds that the court should have also required her to remove the kitchen
and bathroom fixtures she installed, also allegedly illegally. The notice to cure, however, did
not mention this alteration, but rather mentioned only the balcony. The Appellate Term thus
rejected landlord's appeal. The Appellate Term also ruled that the tenant's cure was sufficient
even if not an exact restoration of the premises in every detail. Landlord failed to establish any
meaningful deviation from the pre-alteration condition of the apartment or that the work by
tenant was of inferior quality.
- Case Caption:
- Basch v. Schriber
- Issues/Legal Principles:
- Landlord may maintain current holdover proceeding because 1993 holdover proceeding
is deemed abandoned, as it was marked off calendar for over one year.
- Keywords:
- abandonment; nonprimary residency
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Jerald R. Klein
- Date:
- April 25, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- CPLR 3211(a)(4), 3404; 22 NYCRR 208.14(c)
- Summary:
- The landlord brought a holdover proceeding against the loft tenant on grounds of
nonprimary residence. A previous holdover on the same grounds occurred in 1993, but it was
marked off calendar to engage in discovery. Yet, the discovery never went forward. The lower
court dismissed the current proceeding as "barred" due to another action pending, i.e., the 1993
proceeding. Tenant argued that the landlord first had to request the court's permission to
discontinue the 1993 proceeding before commencing the recent proceeding. The Appellate Term
reversed the lower court on grounds that, since the 1993 case was marked off calendar for over
one year, it must be deemed abandoned. Therefore, landlord did not need any permission to
discontinue that case in order to commence the new holdover.
- Case Caption:
- 716 Lefferts House v. Goldstock
- Issues/Legal Principles:
- Stipulation vacated where landlord falsely alleged that the building was not subject to
rent regulation when in fact the landlord agreed to stabilize the building in exchange for
receiving J-51 tax abatements.
- Keywords:
- J-51 tax abatement; stipulation; fraud
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Dawn Jimenez
- Date:
- April 25, 2001
- Citation:
- NYLJ, page 22, col 6
- Referred Statutes:
- RPTL 421-a; RSC 2520.13
- Summary:
- Landlord brought a holdover proceeding and claimed in the petition that the building had
less than six units and was not subject to rent regulation. The entered into a settlement in
reliance on that representation by the landlord. Now the tenants have asked the court to set
aside the stipulation on grounds of fraud. The tenants discovered that they are rent stabilized
because the landlord accepted J-51 tax abatements since 1992 in exchange for making the
building subject to rent regulation for the period the abatements last. The landlord never
registered with the DHCR nor advised the tenants about their regulated status. Landlord does
not dispute tenant's claim, but asserts that since the tenants were represented by counsel at the
time the settlement was signed, they must be bound by its terms (implying that counsel could
have easily investigated the status of the premises).
The court observed that stipulations are not readily cast aside, particularly where all sides
are represented by counsel. However, where good cause exist, the fact that attorneys were
involved is not dispositive. The court found that the tenants have submitted a "compelling
argument" undisputed by the landlord for setting aside the stipulation of settlement. The court
held that the landlord would be rewarded were the status quo preserved, and that landlord was
duty bound to register the building with the DHCR. To enforce this stipulation would work a
gross injustice, according to the court, and would encourage other landlords to also evade the
rent stabilization laws. The court pointed out that tenants cannot waive their rent stabilization
protection, especially so where they never were told of their rights. Vacating the stipulation
does no more than return the parties to the status quo, given that the landlord never had a right
to evict the tenant on grounds that the tenant had no regulated status. Since the petition was
false and since no proper termination notice was served in this holdover proceeding, the court
not only set aside the stipulation, but dismissed the proceeding as well.
- Case Caption:
- In Matter of Linden-Rath
- Issues/Legal Principles:
- Guardian of elderly tenant succeeds in permanently staying notice of termination in
Supreme Court on grounds that no nuisance exists.
- Keywords:
- guardian; nuisance; termination notice; stay
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Diane Lebedeff
- Date:
- April 25, 2001
- Citation:
- NYLJ, page 18, col 2
- Referred Statutes:
- CPLR 1207, 1206, Mental Health Law 81.10(c)(3), 81.29(c)
- Summary:
- The tenant is a "remarkably vigorous and charming woman" of 103 years old, the
widow of a German county. For the past 50 years she has lived in the same rent control
apartment. In 1999, the landlord petitioned the Supreme Court to appoint a guardian for the
tenant because she had created a nuisance. The court evaluator's report confirmed that the
apartment was massively cluttered. A guardian was appointed, and a very costly deep clean was
successfully performed on the apartment. About a year or so later, the landlord complained to
the court that the tenant was continuing to bring junk into the apartment. The court conducted
an inspection and saw that the conditions had greatly improved. Further, the guardian reported
that the tenant then began to see that her clean apartment was "normal," and she began to take
pride in its appearance. Now, again a year later, the landlord has served a termination notice
on the tenant seeking to sue the guardian, and alleging nuisance. This would set in motion a
proceeding in Housing Court.
The tenant's guardian did not wait for the proceeding to come to Housing Court.
Rather, the guardian went to the Supreme Court judge seeking a stay on terminating the tenancy.
The Supreme Court granted the guardian's motion citing ample case law to substantiate the legal
standard that a guardian has a duty to attend to the ward's living situation, and keeping the
incapacitated person in the home is generally preferable. Hence, it was within the court's power
to stay the termination of the tenancy based on the guardian's duty.
The court conducted a hearing regarding the condition of the apartment. The evidence
established that the tenant's apartment is even more improved than when the court visited it
almost a year earlier. And a home attendant comes to the apartment to monitor and clean on
a regular basis. The landlord's photographs differed from the guardian's photographs. For
example, the rooms were painted in the guardian's pictures, and in need of paint in the
landlord's photos. The collecting activity continues, but it is reduced. The original excess of
possessions, however, has been eliminated. Hence, the court concluded that the landlord failed
to establish evidence of a current unreasonable accumulation of objects in the apartment on a
daily or continuous basis, vermin infestation or any condition endangering life, health or safety
of the ward or other tenants. The conditions simply do not establish a nuisance sufficient for
eviction upon the basis set forth in the termination notice. The court therefore permanently
stayed the notice of termination, and permission to sue the guardian based upon the termination's
notice was denied by the court.
- Case Caption:
- Caulfield v. Leung
- Issues/Legal Principles:
- An overcharge of the rent is not a necessary element in finding an illusory prime tenancy
scheme.
- Keywords:
- illusory prime tenant; overcharge; mixed usage
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Jerald Klein
- Date:
- April 25, 2001
- Citation:
- NYLJ, page 19, col 2
- Referred Statutes:
- RPAPL 741(2)
- Summary:
- The landlord brought a holdover proceeding against the alleged tenant and the alleged
subtenant on grounds that the subtenant was creating a nuisance by working out of the apartment
and using it as a fitness center in violation of the lease and the law. The subtenant, firstly,
vehemently refuted the accusations, arguing that she has some clients, but does not use the
apartment in the manner characterized by the landlord. Additionally, the subtenant asserts that
ten neighbors will testify that her usage of the premises does not constitute a nuisance. The
court denied the landlord's request for summary judgment because there are clearly issues of fact
as to how the premises are used. More significantly, the court denied the motion because the
subtenant made a cross-motion for summary judgment on grounds that this holdover proceeding
cannot go forward because there is an illusory prime tenancy scheme, and this subtenant is the
veritable tenant of record.
The subtenant informed the court that she never met or spoke with the alleged prime
tenant, and that in fact, according to a letter received from a principal of the prior owner, the
alleged prime tenant was a partner of the former corporate owner. The subtenant argued that
since the alleged prime tenant is a "phantom," the notices and the petition (continuing to name
the alleged prime tenant as a prime tenant) are all in violation of RPAPL 741 which requires a
landlord to set forth the interests of the parties. In this case, the subtenant is actually the tenant,
and the petition errs for not recognizing this. The landlord did not dispute the prior owner's
illusory prime tenancy scheme, but rather claimed that since the subtenant was not overcharged
there can be no illusory prime tenancy.
The narrow issue before the court was whether, to prove an illusory prime tenancy, there
must exist an overcharge. The court noted that an illusory prime tenancy occurs when a party
assumes the guise of a prime tenant, enters into a sublease and these acts have the effect of
directly or indirectly evading the requirements of the rent stabilization laws. The court noted
that the subtenant never met the prime tenant and that it seemed clear that the prime tenant did
not occupy the apartment as his primary residency, or intend to return at the end of the sublease.
The court noted that this landlord knew the occupant of the apartment was not the prime tenant,
and therefore should have inquired into the alleged prime tenant's prolonged absence when this
proceeding was commenced. The court held that profiteering was only one factor and not a
requirement in a finding of illusory prime tenancy, and that profiteering can occur by means
other than rent gouging. A rent stabilized tenancy involves more than just stabilizing the rent,
it also stabilizes the tenancy itself by guaranteeing continued occupancy, which is immeasurable
in value.
The court concluded that even though profiteering did not occur, there is not a good faith
tenancy here. The court declared the prime tenant an illusory prime tenant and therefore the
subtenant is entitled to the rent stabilized lease in her name with the identical terms and
conditions as the new lease with the exception of rent which must be the legal regulated rent
pursuant to rent stabilization guidelines and law. While the tenant is afforded the protection she
was wrongfully denied, she should not be entitled to an impermissible windfall. The court
preserved the tenant's claim for legal fees.
New York Law Journal, decisions for the week of April 16-20, 2001
(13 cases)
- Case Caption:
- Fullan v. 142 East 27th Street Assoc.
- Issues/Legal Principles:
- Tenant is entitled to recovery of Fair Market Rent Appeal award and attorneys fees as
against current landlord, and court refused to delay case pending outcome of landlord's cross-
claim for indemnification against former landlord.
- Keywords:
- Fair Market Rent Appeal; attorneys fees
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Sherry Heitler
- Date:
- April 16, 2001
- Citation:
- NYLJ, page 22, col 5
- Referred Statutes:
- none cited
- Summary:
- Tenants won a Fair Market Rent Appeal (FMRA) against their landlord via a DHCR
order in their favor. They commenced an action against the current landlord to recover roughly
$37,480 in excessive rent paid by them between 1985 and 1993 to their former landlord. The
lower court ruled that a current landlord is generally liable for overcharges collected by a
predecessor after April 1, 1984. The Appellate Division saw no reason to depart from this
general rule, and affirmed the lower court's award granting the tenants attorneys fees. The
Appellate Division held that had the current landlord engaged in due diligence, the FMRA could
have readily been ascertained prior to purchasing the property. Then the current landlord could
have avoided this enforcement action by the tenants had proper steps been taken, or at the very
least, avoided the financial consequences of successor liability (including attorneys fees). The
Appellate Division affirmed the lower court's ruling and likewise rejected the landlord's request
to delay the matter pending its cross claims against the former owner for indemnification.
- Case Caption:
- Alphonse Hotel Corp. v. Sayegrih
- Issues/Legal Principles:
- Tenant who attempted to vacate a default judgment had a meritorious defense to the
nonpayment proceeding on grounds that he didn't owe rent because the landlord owed him back
pay as a former employee.
- Keywords:
- default judgment; meritorious defense; reasonable excuse
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Walter Strauss
- Date:
- April 16, 2001
- Citation:
- NYLJ, page 24, col 1
- Referred Statutes:
- CPLR 5015
- Summary:
- Landlord brought a nonpayment proceeding against the tenant who did not appear on a
motion return date. The lower court denied the tenant's motion to vacate the default judgment
for unpaid rent on grounds that no rent is owed because he was an employee who occupied the
hotel room as an incident of his employment. The record reflected that New York State
Industrial Board of Appeals directed the landlord to pay tenant unpaid wages and penalties. The
Appellate Term held that this ruling evidences the tenant's potential meritorious defense. To
vacate a default judgment, generally, a party must show that had they appeared in court, rather
than defaulting, they would have had a meritorious defense. A second criteria to vacate a
default is a reasonable excuse why the party did not show up in court. In this case, the tenant
claimed he was unaware of landlord's motion to restore the case to the calendar. The Appellate
Term found this excuse credible in light of tenant's history of a prompt and vigorous defense
of the proceeding and his attorney's admission of possible "inadvertent law office failure." The
Appellate Term noted that no notice of entry was served, and the landlord failed to rebut tenant's
claim that he only first learned of the judgment at the time of the income execution three years
later. Hence, the court found the delay was excusable, but not willful. Guided by a strong
public policy for resolving cases on the merits and considering the apparent lack of willfulness
on the part of the tenant, coupled with a meritorious defense, the Appellate Term reversed the
lower court's denial of tenant's motion to vacate the default judgment.
- Case Caption:
- RVR Realty LLC v. Arbouin
- Issues/Legal Principles:
- Tenant's minimal electric usage and absence of gas and telephone service, with other
factors, led the court to conclude that the tenant utilized this apartment solely as a storage site
and to harbor her dog.
- Keywords:
- nonprimary residence
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Laurie Lau
- Date:
- April 16, 2001
- Citation:
- NYLJ, page 24, col 1
- Referred Statutes:
- none cited
- Summary:
- Landlord brought a holdover proceeding against the rent controlled tenant on owner
occupancy grounds. The lower court ruled that the tenant did not maintain the apartment as a
primary residence because the unit was used for storage and to harbor her dog. The electric
usage was minimal and tenant had no gas service for approximately 5 years, and no telephone
service for longer than that. An accumulation of boxes, newspapers and old clothing was piled
approximately five feet high, with little empty floor space. These factors led the court to
conclude that the tenant was actually living with her mother in an adjoining building. The
Appellate Court affirmed, but did not elaborate the type of documentary evidence which
connected the tenant to the apartment.
- Notes:
- It seems the landlord probably got permission from the court (i.e., discovery) to get
access to the tenant's apartment to see the alleged accumulation of material. It doesn't seem that
the tenant's own testimony would have produced this information.
- Case Caption:
- Kuhn v. Siemens
- Issues/Legal Principles:
- Attorney who interacted with respondents for months on behalf of the landlord was
known to the respondents, and therefore the petition was not defective simply because the lawyer
failed to attach the power of attorney to the petition when he signed the petition on his client's
behalf.
- Keywords:
- power of attorney; defective petition
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Laurie Lau
- Date:
- April 12, 2001
- Citation:
- NYLJ, page 24, col 1
- Referred Statutes:
- RPAPL 721, 735(1)
- Summary:
- The petition was signed by the landlord's lawyer as attorney-in-fact, but the power of
attorney document was not attached to the petition. The lower court ruled that this did not make
the petition defective, and the Appellate Term agreed. The landlord, a proprietary lessee of the
cooperative apartment sublet the unit to the respondents. The attorney was well known to the
respondents as the landlord's attorney and representative. The attorney signed the sublease on
his client's behalf and the respondents mailed him the monthly rent and corresponded with him.
Thus, the respondents cannot claim that the attorney was an unknown entity to them, and that
the petition's failure to attach the power-of-attorney was defective. The Appellate Term upheld
the lower court's ruling, and further held that simply because the respondents vacated the
premises during the course of the litigation does not deprive the lower court of jurisdiction to
determine the amount of rent (use and occupancy) owed.
- Case Caption:
- Tenth Realty LLC v. Olle
- Issues/Legal Principles:
- Appellate Term sets guidelines (i.e., identifies specific common features) for establishing
a horizontal multiple dwelling.
- Keywords:
- horizontal multiple dwelling
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Timmie Elsner
- Date:
- April 17, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- Administrative Code of the City of New York 26-504, 26-505
- Summary:
- The Appellate Term upheld the lower court's finding that the two contiguous buildings
in question constitute a horizontal multiple dwelling subject to rent stabilization. (This means
that two buildings each do not have six or more units to warrant stabilization coverage, but if
they share enough key features and combined have six or more units, then the buildings will be
subject to rent stabilization). The record showed, among other things, a long history of common
ownership and management, common heating and plumbing systems, a common internal
passageway, a common facade and common front and rear fire escapes. The Appellate Term
held: "Although the landlord points to other factors which might support a different conclusion,
the presence of the common building features highlighted above is more than sufficient to
support a finding of horizontal multiple dwelling status."
- Notes:
- This is a useful case because tenants who want to prove a horizontal multiple dwelling
tend to try to gather a massive accumulation of evidence. This case provides a sort of threshold.
In other words, if the building has all the features mentioned above, then, according to the
Appellate Term, it should qualify as a horizontal multiple dwelling without more.
- Case Caption:
- Goldman v. Topping
- Issues/Legal Principles:
- Tenant is entitled to enforce Fair Market Rent Appeal award in Housing Court via a
counterclaim 6 months after DHCR's decision is rendered.
- Keywords:
- Fair Market Rent Appeal; counterclaim; legal fees
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Timmie Elsner
- Date:
- April 6, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- 22 NYCRR 208.14(c); RPAPL 743; RPL 234
- Summary:
- In a nonpayment proceeding the tenant interposed a counterclaim for a refund of excess
rent paid pursuant to a DHCR order regarding his Fair Market Rent Appeal. The parties agreed
to mark the case off calendar pending landlord's appeal of the DHCR order. Landlord appealed
all the way to the Court of Appeals, unsuccessful each step of the way. 17 months after the case
was marked off calendar, the tenant made a motion to restore the case to the calendar for a
hearing on his attorney's fees. Landlord opposed. Usually a proceeding marked off calendar
for longer than a year is deemed abandoned, but in this case the court held that the landlord's
pursuit of an appeal is the only reason the case was marked off calendar for so long. The
Appellate Term affirmed, also adding that the counterclaim had merit, the tenant had no intent
to abandon the counterclaim and there was no prejudice to the landlord.
Landlord appealed on grounds that the lower court did not have jurisdiction to hear the
Fair Market Rent Appeal. The Appellate Term rejected this argument, holding that since a tenant
is entitled to bring a plenary action to enforce a Fair Market Rent Appeal adjustment order
where excess rent has not been fully refunded within six months, the lower court had jurisdiction
to entertain tenant's counterclaim and render judgment for the amount due. Since the amount
due was not in dispute, the lower court properly rendered summary judgment in favor of the
tenant. The lower court also ruled that the tenant is not entitled to attorneys fees in defense of
landlord's appeal of the DHCR order in an Article 78 proceeding (and up to the Court of
Appeals). The Appellate Term, however, ruled that the tenant is entitled to fees in connection
with his action to enforce the order and a hearing on fees was appropriately held to that extent
by the lower court.
- Case Caption:
- Miller v. Vosooghi
- Issues/Legal Principles:
- Tenant is granted discovery to determine landlord's good faith intentions in owner
occupancy proceeding.
- Keywords:
- owner occupancy; discovery; nonrenewal notice
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Jean Schneider
- Date:
- April 18, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- none cited
- Summary:
- In an owner occupancy proceeding, the lower court allowed the tenant to conduct
discovery on the owner to determine the owner's good faith in seeking to recover the tenant's
apartment for the owner's son's use. Discovery is allowed because the "operative facts" as to
the owner's intentions are within the owner's "exclusive knowledge." The lower court denied
tenant's motion to dismiss the petition on grounds that the nonrenewal notice contained a fatal
defect. The notice was signed by the owner who is the record owner. The fact that the owner's
trade name was listed on the lease does not make the notice defective. Tenant's argument that
he will be prevented from "fairly assessing his prospect at trial" is specious because the record
shows that the tenant has dealt with the landlord as owner for many years. The Appellate Term
upheld the denial of the dismissal of the petition on grounds that the notice was "reasonable in
view of all attendant circumstances" which is the standard for assessing the adequacy of a
nonrenewal notice.
- Case Caption:
- Kulick and Rheingold, LLC v. Stewart
- Issues/Legal Principles:
- Tenant's retaliatory eviction claim does not constitute a waiver of tenant's jury demand,
since a retaliatory eviction claim is not deemed "equitable relief."
- Keywords:
- retaliatory eviction; jury demand
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Thomas Fitzpatrick
- Date:
- April 18, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- RPL 223-b; RPAPL 745
- Summary:
- Tenant raised the defense of retaliatory eviction, and by doing so tenant did not waive
the right to a jury trial since no affirmative equitable relief was sought and the substance of the
proceeding involves landlord-tenant issues triable by jury. Further, no contractual waiver of the
right to jury trial is claimed (i.e., such as a lease clause prohibiting a jury).
- Case Caption:
- Notre Dame Leasing LLC v. Rosario
- Issues/Legal Principles:
- Tenant who withholds rent due to violations based on the Spiegel Law defense must
show that Social Service officials likewise withheld their portion of the rent, too, (i.e., the public
subsidy portion of the rent).
- Keywords:
- Spiegel Defense; violations
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower court: Hon. U. Leverett
- Date:
- April 18, 2001
- Citation:
- NYLJ, page 22, col 1
- Referred Statutes:
- Social Services Law 143-b
- Summary:
- Tenants sought to dismiss landlord's nonpayment petition under the Spiegel Law and the
lower court granted to the extent of staying the proceeding until such time as landlord "submits
satisfactory proof to this court that conditions constituting pending "B" violations that are
dangerous, hazardous and detrimental to life and health have been corrected." The Appellate
Term reversed, holding that the Spiegel Law defense is available to a tenant only after the
appropriate Social Services official has withhold rent payments based on the existence of
hazardous violations in the building. In other words, it is not enough just for the tenant to
withhold the rent, the Social Services department must also withhold their portion of the rent
payment to the landlord. This is because the Spiegel Law authorizes "public welfare officials
to withhold rents in cases of recipients of public assistance who are tenants in buildings in which
dangerous violations exist . . ." The appellate court ruled that since the tenants failed to show
that Social Services also withheld the rent, the motion to stay the proceeding should not have
been granted.
- Case Caption:
- Palacci v. Tuccio
- Issues/Legal Principles:
- Trial needed to determine if tenant's occupancy of apartment in 1965 satisfies rent
control laws, such as whether the unit became vacant on or after April 1, 1953 and whether the
unit was "not occupied for other than single family occupancy."
- Keywords:
- rent control
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower court: Hon. Thomas
- Date:
- April 19, 2001
- Citation:
- NYLJ, page 22, col 6
- Referred Statutes:
- Administrative Code of the City of New York 26-403(e) (New York City Rent and
Rehabilitation Law)
- Summary:
- Landlord commenced a holdover proceeding to recover possession of the apartment.
The petition alleged that the apartment was not subject to rent control because it is located in
a two-family house which became vacant subsequent to April 1, 1953, that the tenant was a
month to month tenant and that the tenancy expired by a thirty day notice. Tenant made a
motion for summary judgment stating that she moved into the apartment owned by her husband's
family in 1965 and that the building contained two other apartments occupied by other family
members at that time, and thus is was subject to rent control. The lower court dismissed the
petition, but the Appellate Term reversed. The Court held that the tenant has not established
as a matter of law that the unit is rent controlled. Questions of fact exist as to whether the
apartment became vacant on or after April 1, 1953 and whether the unit was "not occupied for
other than single family occupancy." Since tenant has exclusive knowledge of the facts
concerning the apartment when she moved in, the Court ruled that she must establish her status
as a rent control tenant by testimony subject to cross-examination (rather than in an affidavit on
a motion which is not susceptible to cross-examination).
- Case Caption:
- East 82 LLC v. Friedman
- Issues/Legal Principles:
- Tenant occupying illegal space which does not conform to residential certificate of
occupancy may be evicted since it is impossible to correct the illegal condition, but landlord is
not entitled to collect the rent.
- Keywords:
- certificate of occupancy; illegal usage; ejectment action; infeasability
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Martin Shoenfeld
- Date:
- April 19, 2001
- Citation:
- NYLJ, page 18, col 5
- Referred Statutes:
- RPL 234; RSC 2524.2(a), 2524.3(c); Multiple Dwelling Law 302(1), 34(6)
- Summary:
- The prior landlord leased Apartment A to the tenant pursuant to a lease running from
February 1998 to February 1999 "for living purposes only." Shortly before the current landlord
purchased the building in April, 1999, the tenant stopped paying rent after finding out that the
certificate of occupancy did not list her apartment for residential purposes. Instead Apartment
A was listed as a cellar with boiler room, meter rooms, laundry room and doctor's office.
During heavy storms water would flood into tenant's apartment. In May 1999, the landlord
began a nonpayment proceeding in Housing Court, but tenant argued that she was not required
to pay rent where there was no certificate of occupancy for her apartment and her suffered rent
impairing violations (the flooding). In January, 2000 the boiler caught fire due a gas leak.
Landlord's architect submits that it is not feasible for the landlord to obtain an amended
certificate of occupancy. This is because in order for this unit to be given legal residential
status, its ceiling must be a certain height but it is not possible to raise the ceiling of this cellar
apartment. Hence, the landlord is required to bring an ejectment proceeding in Supreme Court
based on illegal occupancy, but landlord is precluded from accepting the rent as the occupancy
usage violates the Multiple Dwelling Law. The landlord did bring an ejectment action in
Supreme Court. Tenant's first argument is that landlord did not serve tenant a proper
termination notice as required by the rent stabilization law. But the court analyzed the common
law and prior case law and ruled that a termination notice is not a prerequisite to an ejectment
action in Supreme Court (although it is a requirement for a summary proceeding in Housing
Court). Tenant further argues that where a tenancy is illegal, the remedy is for the landlord to
cure the problem rather than evict the tenant. But landlord's architect submits that it is
impossible to satisfy numerous legal requirements to convert the unit to proper residential
standards, citing Zoning Regulations and the Multiple Dwelling Law. The tenant submitted a
counter affidavit from her architect who stated that he did not have sufficient time to determine
whether the apartment can be legalized. The court, however, found that since the time of
submission until the decision was written, there was ample time to submit additional papers, but
in any event, parts of the landlord's architect's position appear "incontrovertible."
The court concluded that the tenant's occupancy is illegal and dangerous, even if the
tenant did not know that when she moved in. The court held that in addition to the law, legal
decisions should follow common sense. Here a greedy, or very uninformed, landlord rented out
as residential space a basement area designed as office space. A new landlord bought the
building around the time the tenant stopped paying the rent because the space was illegally
inhabited. The landlord's nonpayment proceeding was foiled because the tenant was not required
to pay rent to an illegal apartment. The illegality was not a mere technical defect, but inherent
in the design and nature of the building which would subject the new landlord to fines and
penalties and subjected the tenant to risk of injury and death. Common sense dictates that the
landlord be given the space back but not be allowed to collect the rent normally due if the space
had been legally occupied. For these reasons the court granted landlord's motion for summary
judgment.
- Case Caption:
- Del Gigante v. Danilova
- Issues/Legal Principles:
- Landlord's rental for 20 years of an illegal cellar apartment does not result in dismissal
of holdover petition, but landlord will possibly have to prove why legalization for residential
usage is not feasible.
- Keywords:
- certificate of occupancy; illegal tenancy; unclean hands; ejectment
- Court:
- Civil Housing Court, Bronx County
- Judge:
- Hon. Gonzalez
- Date:
- April 18, 2001
- Citation:
- NYLJ, page 21, col 2
- Referred Statutes:
- Multiple Dwelling Law 2, 34, 301(1)(b), 302; 27 NYCRR 217; RPAPL 741(3), 711;
Civil Court Act 110(a); NY Constitution Article 6, Section 7; 26 NYCRR 126.1; 9 NYCRR
2524.3(c), 2524.2
- Summary:
- The building consists of 6 legal apartments. This tenant lives in Apartment A, a cellar
apartment, which was never legalized, it lacks a certificate of residential occupancy, and its
permitted usage is for storage or boiler room, laundry or doctor's office. The DHCR records
Apartment A as a rent stabilized tenant. The Department of Buildings issued a violation to the
landlord for renting Apartment A to residential tenants. Landlord has rented out Apartment A
to residents for twenty years. The landlord was told by an architect that legalizing the apartment
is not feasible. The landlord has now commenced an eviction proceeding against the tenant.
The petition characterizes Apartment A as an illegal apartment. The court looked to the Rent
Stabilization Code which provides that an owner may evict a tenant where occupancy of the
housing accommodation by the tenant is illegal and the owner is subject to civil or criminal
penalties. This, the court found, is exactly the situation in the case at bar. Indeed, the
Department of Buildings held a hearing and imposed an $800 fine on landlord for the illegal
tenancy.
Apparently, tenant argued that the landlord has acted with unclean hands by collecting
rent for all these years knowing that the apartment's certificate of occupancy did not permit
residential tenants. To that, the court held that the landlord could be made to go to Supreme
Court in an ejectment action. But weighing the equities it is clear that public policy compels that
in this instance the Housing Court prioritize the well-being of the tenant, firefighters or the
public if "calamity" struck, so the expeditious nature of Housing Court is preferable to the slow-
moving Supreme Court. The court declined to dismiss the petition, but set the matter down for
a hearing, presumably to determine whether "legalization of the premises is a remedy available
to the tenant."
- Notes:
- Presumably, landlord's architect will have to testify why it is not "feasible" to legalize
the cellar unit into a residential apartment. Tenant would be advised to hire her own expert
architect to show, if possible, why landlord must be made to legalize the apartment to suit a
residential tenancy, rather than evict the tenant.
- Case Caption:
- Aspenly Co LLC v. Prastien
- Issues/Legal Principles:
- In claiming succession rights to the apartment, respondent is unable to satisfy the
requisite time period for contemporaneous co-occupancy with the deceased tenants of record,
and does not satisfy the legal definition of a "disabled person."
- Keywords:
- succession rights; disability; primary residence
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Shlomo Hagler
- Date:
- April 18, 2001
- Citation:
- NYLJ, page 20, col 3
- Referred Statutes:
- 9 NYCRR 2523.5(b)(1), 2524.4(a)(1), 2520.6(q); 42 USCA 12102(2)(A); 29 CFR
1630.2
- Summary:
- Upon the death of respondent's mother in January of 2000, one of the rent stabilized
tenants of record, respondent claimed succession rights when landlord brought a licensee
holdover proceeding against him. (The other tenant of record was respondent's step-father who
also died). Respondent, as well as a nurse who cared for his mother and stepfather, testified that
he moved into the apartment in mid-July 1998, after his stepfather had died. He initially stayed
several days a week, then gradually increased his visits from five days to seven days a week in
or about December, 1998. All the documentary evidence, however, places respondent in New
Jersey where he had a marital home at least until June, 2000. Accordingly, the court concluded
that respondent was unable to establish two-year contemporaneous co-occupancy. If respondent
were deemed disabled, he only has to establish one-year contemporaneous co-occupancy.
The court analyzed the history of the term "disabled" as applied to owner occupancy
proceedings and succession rights cases. The definition focused on an impairment which was
expected to be permanent and prevented a person ". . . from engaging in any substantial
employment." Later, the law changed and broadened with respect to succession rights so that
one could be employed and still come within the ambit of the definition of a "disabled person."
Now the term has four elements: (1) an impairment resulting from anatomical, physiological or
psychological conditions, (2) demonstrable by medically acceptable clinical and laboratory
diagnostic techniques, (3) which are expected to be permanent, and (4) substantially limit one
or more of such person's major life activities.
The court noted that there are no decisions interpreting "disabled person" in succession
rights cases. The court turned to a federal statute, the Americans for Disabilities Act, which
has a wealth of reported cases, and whose definition is quite similar to that in the succession
rights statute. The court analyzed many of those cases and their holdings as to what constitutes
a disability. An impairment cannot be trivial, such as obesity which limits walking, lifting,
bending and other physical activity, but not necessarily impair a major life activity. The
impairment, rather, must be substantial and affect a major life activity, such as employment.
In the case at bar, the respondent testified that he suffers from depression, diabetes, chronic
fatigue syndrome, ankylosing spondylitis and arthritis. Respondent's doctor testified that he
began treating his patient more than a year ago after respondent had already been diagnosed with
these afflictions by other physicians.
In essence, respondent's testimony addressed how his major life activity of working was
affected by his disabilities. He claimed that his impairment limits his ability to adequately
perform work as a plumber and/or steam fitter. But he has been gainfully employed with a
corporation which he formed in 1997 to provide certain plumbing and/or steam fitting services.
He is the sole shareholder and president of the corporation which contracts with the Department
of Corrections to inspect its extensive sprinkler systems. Respondent received a salary and filed
New Jersey tax returns, yet he received no private or government disability benefits. The court
thus concluded that respondent cannot be regarded as substantially limited in the major life
activity of working because as a plumber and/or steam fitting. His employment actually involves
a broader class of work that requires and utilizes his knowledge of plumbing and/or steam fitting
(i.e. without necessarily involving physical labor on his part). The court determined that his
alleged disqualification from performing certain specific plumbing work and/or steam fitting as
well as his inability to perform any single particular job is not substantially limiting to qualify
him as a "disabled person" under the Rent Stabilization Code's definition. Whatever other
limitations the respondent suffers, such as difficulty to lift or run and jog, cannot be classified
as a substantial limitation of a major life activity. The court concluded that even if the
respondent were legally disabled, he still cannot satisfy the one-year contemporaneous co-
occupancy because all his documentation places him in New Jersey.
New York Law Journal, decisions for the week of April 9-13, 2001
(4 cases)
- Case Caption:
- Emel Realty Corp. v. Carey
- Issues/Legal Principles:
- Tenant's unexplained, inexcusable absence from premises results in nonprimary
residency, even though landlord did not identify an alternate address.
- Keywords:
- nonprimary residence
- Court:
- Appellate Term, First Department
- Judge:
- lower court Hon. Andres Martino
- Date:
- April 11, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- none cited
- Summary:
- Landlord commenced a nonprimary residence holdover proceeding against tenant and
the court held for the tenant despite finding that the tenant is "underutilizing" the apartment,
having only stayed all night there seven times in a one-year period. The court also found that
the tenant's friend spent months in the apartment during this period. During most of the period,
the tenant was in Florida staying with either parents or friends, and when in New York she
stayed with an intimate male friend, rather than the apartment, allegedly because the apartment
had asbestosþalthough the court did not find this reason credible. Despite these findings of fact,
the court ruled in her favor on grounds that "underutilization alone is not sufficient to show non
primary residence" and landlord failed to "identify another place other than the subject premises
where the respondent [tenant] primarily resides."
The Appellate Term reversed, holding that the tenant's minimal occupancy did not
constitute the type of ongoing, substantial physical nexus with the apartment that is necessary
to maintain rent regulated status. The Court acknowledged that simply because a tenant spends
relatively little time in their apartment does not automatically result in a nonprimary residency
finding because there are absences which are excusable (e.g., military service, full-time
academic study, hospitalization). In this case, the Court agreed with the trial court that the
tenant's grounds for absenceþconstructive eviction due to asbestosþwas not credible. Her
testimony that her singing career, itinerant and unsubstantiated, was not addressed by the lower
court, but had it been, the Appellate Term opined that it was not an excusable reason for her
absence. Finally, the Court noted that a landlord is not obliged to identify or pinpoint with
certainty the precise location of a tenant's primary residence in a situation where, as here, the
tenant is shown to spend considerable amounts of time at several different alternate addresses.
It was sufficient for the landlord to show that the tenant did not actively use the apartment for
dwelling purposes, but rather regularly lived elsewhere.
- Case Caption:
- Sessler v. DHCR
- Issues/Legal Principles:
- DHCR properly refused to consider tenant's overcharge complaint filed in 1997 beyond
a four year period (i.e., back to 1993) even though no rent registration statement had been filed
since 1989.
- Keywords:
- overcharges; statute of limitations
- Court:
- Appellate Division, First Department
- lower court: Hon Nicholas Figueroa
- Date:
- April 12, 2001
- Citation:
- NYLJ, page 20, col 4
- Referred Statutes:
- 26-516(a)(2); CPLR 213-a
- Summary:
- Tenant's overcharge complaint was denied by the DHCR and he appealed in an Article
78, lost, and appealed further to the Appellate Division which upheld the denial. The Court
ruled that DHCR properly refused to consider the rent history of the apartment beyond the four-
year period measured from tenant's commencement of the rent overcharge proceeding on March
31, 1997 (i.e., beyond March 31, 1993). The Court ruled that it did not matter that the last rent
registration statement filed by the landlord before the complaint was filed was in 1989, two years
before the tenant took occupancy in July 1991.
- Case Caption:
- Miller v. Margab Realty LLC
- Issues/Legal Principles:
- Residential units in a commercial district not subject to Loft Board coverage may still
receive rent stabilization status through the Emergency Tenant Protection Act.
- Keywords:
- rent stabilization coverage; illusory prime tenancy; certificate of occupancy; Loft Law;
substantial rehabilitation
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Alice Schlesinger
- Date:
- April 11, 2001
- Citation:
- NYLJ, page 19, col 2
- Referred Statutes:
- Zoning Resolution 4100(b), Section 72-20; Multiple Dwelling Law 281(4); McKinney's
Unconsolidated Laws 8625(a)(5)
- Summary:
- The plaintiffs-tenants brought a lawsuit against their landlord on grounds that their
apartments are subject to the Rent Stabilization Law, the Emergency Tenant Protection Act of
1974 or alternatively the Loft Law. Landlord argues that the apartments are commercial lofts
not subject to rent regulation. The building is a commercial loft structure located in a light
manufacturing district (M1-5) and lacks a residential certificate of occupancy. The tenants claim
that they have continuously occupied their respective apartments as their primary residences for
years, as far back as 1989, and as recently as 1998. The tenants' complaint alleges that Tony
Marra has leases to the 12th, 14th and 15th floor lofts executed with the prior owner, and that
since he is not occupying all three units, he is engaging in an illusory prime tenancy scheme.
They allege the 9th floor prime tenant is also illusory because that tenant has never occupied the
floor as a primary residence.
The new owner maintains that once he took over operation of the building he began to
legalize the 15th floor which had previously been designated an "interim multiple dwelling" (i.e.,
a loft) by the Loft Board in 1993. He contends that he didn't initially know the 9th, 12th and
14th floors were sublet and used residentially when there was no residential certificate of
occupancy, and this was done without his consent.
The court was faced with several issues. First, does the location of the building in a M1-
5 zoning district foreclose coverage under the rent laws? Landlord argues that the building is
located in a location which strictly prohibits residential use. The tenants, however, argue that
the Zoning Resolution's residential restrictions do not necessarily mean that the units are not
protected from rent regulation. The court cited to Tan Holding v. Wallace (NYLJ,
January 16, 2001), an Appellate Term case which held that rent stabilization protection cannot
be absolutely excluded simply based on the zoning classification. The court chose to follow the
Appellate Term's holding, and noted that if variances for other residences have been granted in
this neighborhood, as tenants maintain, then a variance granted to this building would not
necessarily "alter the essential character of the neighborhood," the legal reason why a variance
would otherwise be denied.
The next question the court asked is: Are residential units that are not covered by the
Loft Law subject to the Emergency Tenant Protection Act ("ETPA")? Landlord argues that
because the building was declared to be an interim multiple dwelling (IMD) (i.e., a loft), then
it is governed exclusively by the Loft Laws. The landlord also argues that once a certificate of
occupancy is obtained and a final rent order declared by the Loft Board, then only the 15th floor
will receive the protections of the Rent Stabilization Law. The landlord further argues that in
enacting the Loft Law, the Legislature narrowed the reach of the EPTA to protect only tenants
who are covered under the Loft Law. (Coverage under the Loft Law entails, among other
elements, a window period in the early 1980s, or continuous occupancy through 1987). Since
only the 15th floor is deemed an IMD, then the other tenants cannot claim Loft Law protection,
and thereupon cannot claim rent regulated status. Finally, the owner argues that because there
were less than six residential units in the building on January 1, 1974, the tenants cannot receive
the protections of the Rent Stabilization Law.
The tenants argue that the owner has subsequently added residential units, so that now
there are more than 6 units, and this makes their tenancies protected by the ETPA. The statute
applies to any housing accommodation except those specifically excluded. It does not contain
an exemption for non-IMD units. The court rejected the landlord's argument that the Legislature
narrowed the applicability of the EPTA to residential tenants covered by the Loft Law because
at the time the Loft Law was passed, it was settled law that the EPTA applied to all residentially
occupied commercial lofts as well. Thus, had the Legislature intended to exclude non-IMD
units, the EPTA would have been explicitly amended creating a further exemption. The court
noted a line of cases that recognize that the EPTA extends rent stabilization protection to loft
units that were not covered by the Loft Law. The court ruled that coverage applies to these
tenants, and the factual issue is merely whether the current landlord acquiesced in the residential
usage of the units. The final issue is whether the building is exempt from the ETPA because
it was substantially rehabilitated after 1974. The tenants argue that the purpose of exemption
on this ground is to increase the number of habitable family units, the best evidence of which
is a residential certificate of occupancy. Since the building still lacks a certificate of occupancy,
it is not entitled to the exemption. The tenants also argue that they contributed to the substantial
rehabilitation, but the owner disputes this. The court ruled that this is a question of fact
necessitating a trial.
- Case Caption:
- Duane Thomas LLC v. Emma Dear Productions, Inc.
- Issues/Legal Principles:
- Loft tenant claiming rent stabilization status is not entitled to regain physical possession
of the unit pending litigation.
- Keywords:
- Lofts; rent stabilization; preliminary injunction; primary residency; high rent
deregulation; profiteering; substantial rehabilitation; certificate of occupancy
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Walter Tolub
- Date:
- April 11, 2001
- Citation:
- NYLJ, page 18, col 5
- Referred Statutes:
- CPLR 6301: RSC 2520.11(e), 2524.3(h), 2525.6 ; RSL 26-504.2; Multiple Dwelling
Law 286; McKinney's Unconsolidated Laws 8625(a)(5)
- Summary:
- The plaintiff-landlord made a motion to the court for a preliminary injunction to restrain
Emma Dear Productions, Inc. and Mel Gorham from regaining physical possession of Unit 206
on the second floor of a five-story building located on Duane Street. The tenants cross-move
to dismiss the complaint. In 1995, the Loft Board determined that the building consisted of nine
interim multiple dwellings (IMD) (i.e., lofts). Unit 206 was not accorded loft status. In
February, 2000, the landlord obtained a certificate of occupancy solely for those units designated
by the Loft Board as entitled to IMD status. Landlord's predecessor entered into a lease with
Emma Dear Productions, Inc. for a two year period from June, 1996 to May 1998. In June,
2000 the current landlord served a 30 day notice of termination on the tenant and commenced
a commercial holdover proceeding in Civil Court to terminate the tenant's month to month
tenancy. The Civil Court dismissed the proceeding on grounds that the petition falsely stated
that the premises were used exclusively for commercial purposes, and noted that the landlord
did not dispute tenant's allegations that the premises were rented and used openly for residential
purposes. The Civil Court did not make a determination whether Unit 206 was rent stabilized.
While the Civil Court action was pending, the landlord discovered that the tenant vacated
to California and unlawfully sublet the premises. Apparently the tenant and subtenant had a
dispute which went to court and it was resolved between them that the subtenant agreed to vacate
the premises on April 1, 2001 at which time the prime tenant would re-take possession. The
landlord began this action seeking, inter alia, a declaration to preclude the tenant from re-taking
possession, and for a declaration that the Unit 206 is not subject to the Rent Stabilization Law.
The landlord argued that Unit 206 was never subject to Loft Board coverage, and even if it
were, the unit is now deregulated and cannot be stabilized because (a) it was substantially
rehabilitated, (b) the rent is over $2,000 per month, (c) the tenant profiteered by overcharging
the subtenants, and (d) the tenant did not occupy the unit as a primary residence.
The court cited to Tan Holding v. Wallace (NYLJ, January 16, 2001), an
Appellate Term case, for the principal that commercial lofts converted to residential use after
the Loft Law "window period could be subject to rent stabilization if (1) the lofts were capable
of legalization and (2) the tenant "substantially bore" the cost of conversion. The court noted
that the landlord failed to offer evidence why the Loft Board excluded Unit 206 and that the
Civil Court's decision gives rise to an inference that Unit 206 is capable of being legalized by
the Loft Board. The court also found problematic landlord's claim of substantial rehabilitation.
Thus, on those first two preliminary questions, the court held that landlord's likelihood of
success on the merits of its complaint was far from clear. (A likelihood of success on the merits
is one of the criteria a party must prove when seeking a preliminary injunction).
If it was determined that the unit was subject to regulation, the court went on to examine
whether the unit would then be deregulated. The court ruled that in order for the deregulation
to occur based on the rent being over $2,000 a month, the tenant had to have vacated the
apartment. [The tenant's initial rent, however, was above $2,000 when the tenant took
possession, so the judge's ruling here that a vacatur first has to occur seems contrary to the law].
In this case, the tenant did not vacate because he intended to come back as evidenced by his suit
against the subtenant to recover possession. With respect to overcharging the subtenant, the
court ruled that the rent stabilization laws require a forfeiture of the apartment based on
profiteering, but there is nothing in the Loft Law rules that require a similar result. Also, it is
not clear yet if the unit is even subject to the rent stabilization law. The court ruled that tenant's
absence from the premises for a period greater than two years does not necessarily add up to a
nonprimary residence, since the tenant alleges that the absence is for work related
reasons.
In granting a party's motion for preliminary injunction, the court must weigh the
equities. The landlord has not demonstrated irreparable harm if the tenant is able to re-gain
possession pending the outcome of the landlord's lawsuit that the premises are not subject to rent
regulation. On the other hand, the tenant has not been in the apartment for two years so a delay
while the litigation is pending should not prejudice the tenant. Since the balance of equities is
equal the court ruled that the sensible resolution would be to maintain the status quo until the
issues of the case are resolved. The tenant was not allowed to re-possess the apartment, but was
allowed to use the court order to evict the subtenants. The landlord and tenant both had to post
a $20,000 bond to cover the other in the event of loss.
New York Law Journal, decisions for the week of April 2-6, 2001 (7
cases)
- Case Caption:
- 34 Hillside Avenue LLC v. Zuniga
- Issues/Legal Principles:
- Landlord is denied additional discovery from elderly tenant since court finds that extra
discovery is just a fishing expedition.
- Keywords:
- discovery; nonprimary residence
- Court:
- Civil Housing Court, New York county
- Judge:
- Hon. Timmie Elsner
- Date:
- April 4, 2001
- Citation:
- NYLJ, page 21, col 4
- Referred Statutes:
- none cited
- Summary:
- Landlord commenced a nonprimary residence proceeding against the 72 year old rent
controlled tenant in November 1999. In February, 2000 the tenant agreed in a stipulation to
undergo a deposition (i.e., attorney asks tenant questions under oath). The landlord now asks
the court for additional depositions of the tenant, even though she already appeared twice for
depositions. She did not, however, initially produce all the documents demanded by the landlord
because many were still in Costa Rica. Once she produced the documents, the landlord now
argues that their production raises more questions that necessitate another deposition of the
tenant.
The court denied the landlord additional discovery. The court held that the landlord failed
to satisfy the six criteria necessary for "ample need" for discovery: (1) whether there are
sufficient facts to establish a cause of action, (2) whether there is a need to determine
information directly related to the case, (3) whether the discovery request is carefully tailored
to clarify disputed facts, (4) whether prejudice will result if discovery is granted, (5) whether
the prejudice can be diminished by an order fashioned by the court, and (6) whether the
discovery can be structured by the court so that pro se tenants can be protected and not adversely
affected by a landlord's discovery request. In this case, the landlord seeks discovery for the
period January 1989 to December 1996 (which is eight years prior to what the tenant agreed to
testify to). The court found that the request is just a fishing expedition to pinpoint the period
of tenant's absence from the apartment. The court, however, ordered the tenant to produce
certain documents, including her 1997 tax returns. The court denied the landlord a right to
collect the past rent that has accrued since the delay in this matter (and accumulation of rent)
has been caused by the landlord's discovery demands.
- Case Caption:
- 1111 Realty Assoc. v. Doe
- Issues/Legal Principles:
- Landlord's attorney may face sanctions for having the legal papers served only at the
apartment when the attorney knew that the tenant had died and the executor of the tenant's estate
resided elsewhere.
- Keywords:
- estates; personal jurisdiction; sanctions
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Marton
- Date:
- April 4, 2001
- Citation:
- NYLJ, page 23, col 4
- Referred Statutes:
- RPAPL 731; 22 NYCRR Part 130-1.1
- Summary:
- The licensee holdover petition was served in January and no one appeared on behalf of
the tenant. An inquest was conducted, a warrant issued and the landlord obtained possession
and removed all contents from the apartment. Apparently the apartment was re-let to a new
tenant. The old tenant did not appear in court because he was dead. Thereafter the executor
of the estate of the tenant brought an order to show cause to vacate the judgment and warrant
on grounds that the estate was not properly served (i.e., service on the executor). A lease is
personal property that falls to the estate for the remainder of the lease's term after the tenant
dies. (This does not apply to rent controlled tenants because they do not have a lease). The
executor alleged that he had been in numerous conversations with the landlord's attorney and
that the landlord's attorney knew where he lived and that no one occupied the apartment, so it
was a futile gesture to serve the legal papers at the apartment.
The landlord's attorney did not substantially dispute the executor's claim, but argued that
the executor's motion should be denied for failure to name the current occupant as a party. The
court disagreed, holding that had the executor sought to recover possession of the apartment,
then in that instance, it would be necessary to add the occupant as a party to protect that
occupant's due process rights. Landlord also argued that the executor abandoned its claim
because he waited nine months to make this motion. The court also disagreed with this position
because the executor had previously brought an action for conversion with respect to the
property removed from the apartment, but that action was dismissed without prejudice. The
court looked to prior case law that held that where a landlord knows the tenant has died, the
landlord must obtain personal jurisdiction over the estate, and if it is known that no one is at the
property to receive legal papers on behalf of the estate, the petition must be dismissed if papers
are served only at the property. The court set the matter down for a hearing on whether
sanctions and costs may be imposed against the landlord's counsel.
- Case Caption:
- Verni v. Owens-Kennedy
- Issues/Legal Principles:
- ETPA tenant who has lived in the apartment for over 20 years cannot be evicted in
landlord's owner occupancy proceeding.
- Keywords:
- owner occupancy
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Jerald Klein
- Date:
- April 4, 2001
- Citation:
- NYLJ, page 21, col 5
- Referred Statutes:
- Emergency Tenant Protection Regulation 2504.4(a)(2)
- Summary:
- Landlord brought a holdover on owner occupancy grounds against a tenant who moved
into the apartment in January, 1974. Due to the date the tenant took occupancy, the tenant
became a rent stabilized tenant by virtue not of the rent stabilization law (which, by and large,
did not take effect until after July, 1974), but rather by virtue of the Emergency Tenant
Protection Act (ETPA) of 1974. The rules governing ETPA are the Emergency Tenant
Protection Regulations (ETPR) which has a provision that if a tenant has resided in the premises
for over twenty years, or is a senior citizen, or disabled, then the landlord cannot evict the
tenant at all on owner occupancy grounds. The Rent Stabilization Code, on the other hand,
provides that a landlord must relocate a senior citizen or disabled tenant to a comparable
apartment where recovery of the unit is sought on owner occupancy grounds. The Code makes
no mention of the twenty-year rule. The court followed the precedent of four other lower court
cases, starting with Brusco v. Armstrong that upheld the applicability of the ETPA
to New York City tenants. Landlords argue that the ETPR are only applicable in cities having
less than one million people.
- Notes:
- Disclosure: Editor Colleen McGuire's law firm, McGuire & Zekaria, litigated the case
of Brusco v. Armstrong. The landlord-appellant has filed its brief and the case is
now going up on appeal to the Appellate Term.
- Case Caption:
- Mayourian v. Tanaka
- Issues/Legal Principles:
- Tenant receives a 100% abatement, and is released from the lease, for odors emanating
from a dumpster landlord placed in front of tenant's apartment.
- Keywords:
- warranty of habitability; odors
- Court:
- Appellate Term, 9th & 10th Judicial Districts
- Judge:
- lower court: Hon. Dwyer
- Date:
- April 4, 2001
- Citation:
- NYLJ, page 23, col 1
- Referred Statutes:
- RPL 227, 235-b
- Summary:
- Tenant-defendant rented the plaintiff-landlord's townhouse in Glen Cove for $2,300 a
month pursuant to a two-year lease. However, after ten months the tenant left the apartment on
grounds that the landlord had installed a garbage dumpster directly in front of the premises,
which was used by the other residents in the complex, and that the odors emanating from the
dumpster were horrendous. The odors required tenant to keep the windows closed, caused
tenant's family to become ill and substantially interfered with the usage of the terrace or having
visitors. The landlord did not obtain a new tenant for three months. The landlord sued the
tenant for three months rent. The court held that the tenant was not liable for those months and
was entitled to a 100% abatement due to the condition based on the warranty of habitability.
(Apparently, the tenant paid all the rent up to the point of vacatur).
- Case Caption:
- Matter of Lumberger v. Rodan
- Issues/Legal Principles:
- Landlord not obliged to provide electric service since tenant did not have this service
on the base date (i.e., the date she became subject to rent stabilization protection).
- Keywords:
- rent reduction order
- Court:
- Supreme Court, Queens County
- Judge:
- Hon. Milano
- Date:
- April 4, 2001
- Citation:
- NYLJ, page 23, col 6
- Referred Statutes:
- RSC 2520.6(r)
- Summary:
- The landlord filed an application with the DHCR to modify the tenant's services so that
the tenant would pay for electricity and cooking gas. The application was made at the behest
of the Civil Court so that the court could assess tenant's rent adjustments, if any, and tenant's
actual rent based on the exclusion of those services from the base rent. The owners gave tenant
her own gas and electric meters. The building consists of a two-family house with the tenant
occupying the first floor. The premises were previously a garden apartment complex which
underwent a conversion to individual ownership. In 1989, with DHCR overseeing the situation,
the remaining tenants, including the tenant in this proceeding, were deemed to be rent stabilized
via a stipulation signed by the prior owner and the tenants and approved by DHCR.
In the stipulation the owner agreed to install and pay for electric stoves and electric
accounts and waived any right to a rent increase or terminate the electric account for the electric
stoves. In 1988, the tenant was provided with a gas fuel cooking stove that has an electric
ignition. In 1993 the tenant began paying for her own cooking gas when the owner unilaterally
eliminated the service and installed a separate gas meter for the first floor apartment. The tenant
had also paid electricity for a shared meter that included common areas and boiler. Finally, in
1992 the owner installed a separate electric meter and the tenant only paid electric charges for
her own apartment. In Civil Court the parties agreed to refer to the DHCR for determination
what amount of the rent reduction, if any, was appropriate for the gas exclusion and the owner's
assumption of electric charges previously paid by the tenant.
The DHCR issued an order permitting the owner to exclude electric current service from
the rent, granted the tenant a rent adjustment and permitted the owner to eliminate cooking gas
and provided the tenant with a 10% reduction of the rent for the cooking gas. The tenant
appealed the DHCR's decision, but she filed too late so the appeal was dismissed. The owner,
however, did appeal on grounds that there should be no rent adjustment for the exclusion of
electricity as the tenant had always paid for her own electricity and it was not a service included
in her rent, and the 10% decrease in rent was excessive. The Commissioner issued a decision
in which he found that the provision of electricity was not a service provided by the owner on
the base date of January 1, 1989 (i.e., when the tenant obtained stabilized status), and therefore,
the Rent Administrator should not have granted a rent reduction for electrical inclusion. He did
find, however, that cooking gas was a service provided by the owner on the base day of January
1, 1989 and that the tenant had not filed a PAR objecting to the elimination of cooking gas. In
reviewing her account records, the Commissioner determined that her median monthly gas
payment was $23.58, and therefore the 10% reduction was excessive. The adjustment was
modified to $24 a month beginning August 12, 1997.
Tenant appealed this decision in an Article 78 proceeding to the Supreme Court. She
states that the owner was required to pay for the electricity that ignites her cooking stove under
the stipulation and that the amount of the reduction in rent for the elimination of the cooking gas
service was too little, and as a senior citizen her current rent is barely affordable. DHCR
responded that the issue of the tenant's permission to modify or eliminate the gas and electric
service had already been settled in Civil Court and that the only issue for the agency to
determine was the proper rent. She responded that she should have received an electric stove
in 1989, paid for by the landlord and that the dollar amount of the rent reduction set by the
landlord is arbitrary.
The Supreme Court disagreed holding that the Code requires services as including a
service that was maintained on the base date or that was provided by the owner thereafter. The
tenant and owner agreed to make January 1, 1989 the base date and the Commissioner properly
determined that the electricity usage of the apartment was not included in the rent on January
1, 1989, and therefore it was proper fro him to correct the Rent Administrator's order which
granted a rent reduction based on the elimination of electrical usage. The court also ruled that
the Commissioner properly determined that the cooking gas was a service provided by the owner
on January 1, 1989 and that the parties agreed to eliminate this service and that the rent
reduction of 10% for the gas meter modification was excessive, as it would, in effect, reduce
the rent by nearly double the average monthly amount the tenant paid for cooking gas. In
examining the tenant's bills, the Commissioner arrived at $24 as a medium amount, and the
court found this accurate and reasonable. The court noted that the tenant admitted in her papers
that her gas bills would be higher sometimes because she turned on the stove to keep warm in
winter. This act does not entitle her to any greater reduction in rent based on the elimination
of cooking gas. The court held that if the tenant has heat complaints she should file them with
the appropriate agency. If the tenant claims that the owner failed to provide her with an electric
stove pursuant to the stipulation, she may commence an action to enforce the stipulation, or for
breach of contact. The court denied tenant's request to vacate the DHCR's order.
- Case Caption:
- Parkchester Apartments v. Barr
- Issues/Legal Principles:
- Attorneys fees are waived if not preserved in a settlement stipulation.
- Keywords:
- stipulation; legal fees
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Jean Schneider
- Date:
- April 6, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- none cited
- Summary:
- In a nonpayment proceeding, the landlord and pro se tenant signed a stipulation of
settlement awarding landlord a possessory judgment and setting forth a payment and repair
schedule which ultimately provided for the vacatur of the judgment upon full payment of the
rent. Neither party reserved any rights to attorney's fees. Therefore, the Appelate Term held
that the lower court properly denied landlord's motion for attorney's fees, notwithstanding
landlord's partial success on an appeal which took place before the stipulation was signed. A
the time of the argument of landlord's prior appeal, at which tenant did not appear, the Appellate
Term noted that it advised the settlement of the proceeding.
- Case Caption:
- Goldman v. Topping
- Issues/Legal Principles:
- Tenant is entitled to enforce Fair Market Rent Appeal award in Housing Court via a
counterclaim 6 months after DHCR's decision is rendered.
- Keywords:
- Fair Market Rent Appeal; counterclaim; legal fees
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Timmie Elsner
- Date:
- April 6, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- 22 NYCRR 208.14(c); RPAPL 743; RPL 234
- Summary:
- In a nonpayment proceeding the tenant interposed a counterclaim for a refund of excess
rent paid pursuant to a DHCR order regarding his Fair Market Rent Appeal. The parties agreed
to mark the case off calendar pending landlord's appeal of the DHCR order. Landlord appealed
all the way to the Court of Appeals, unsuccessful each step of the way. 17 months after the case
was marked off calendar, the tenant made a motion to restore the case to the calendar for a
hearing on his attorney's fees. Landlord opposed. Usually a proceeding marked off calendar
for longer than a year is deemed abandoned, but in this case the court held that the landlord's
pursuit of an appeal is the only reason the case was marked off calendar for so long. The
Appellate Term affirmed, also adding that the counterclaim had merit, the tenant had no intent
to abandon the counterclaim and there was no prejudice to the landlord.
Landlord appealed on grounds that the lower court did not have jurisdiction to hear the
Fair Market Rent Appeal. The Appellate Term rejected this argument, holding that since a tenant
is entitled to bring a plenary action to enforce a Fair Market Rent Appeal adjustment order
where excess rent has not been fully refunded within six months, the lower court had jurisdiction
to entertain tenant's counterclaim and render judgment for the amount due. Since the amount
due was not in dispute, the lower court properly rendered summary judgment in favor of the
tenant. The lower court also ruled that the tenant is not entitled to attorneys fees in defense of
landlord's appeal of the DHCR order in an Article 78 proceeding (and up to the Court of
Appeals). The Appellate Term, however, ruled that the tenant is entitled to fees in connection
with his action to enforce the order and a hearing on fees was appropriately held to that extent
by the lower court.
|
|