Housing Court Decisions August 2001
Editors: Colleen F. McGuire, Esq., Chief Editor
and Robert E. Sokolski, Esq.
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Significant Cases
655 West Associates v. Asencio
Manning v. Brown
Derderian v. Lehmann
Marcano v. City of New York
New York Law Journal, decisions for the week of August 27-31, 2001
(3 cases)
- Case Caption:
- Marcano v. City of New York
- Issues/Legal Principles:
- Landlord breached the warranty of habitability by providing virtually no heat and tenant
was therefore justified in breaking the oral lease and leaving the apartment.
- Keywords:
- warranty of habitability; constructive eviction
- Court:
- Justice Court, Westchester County
- Judge:
- Hon. Shapiro
- Date:
- August 28, 2001
- Citation:
- NYLJ, page 23, col 2
- Referred Statutes:
- Real Property Law 235-b; Westchester County Sanitation Code 73.841; Uniform
Commercial Code 1-207
- Summary:
- Tenant brought a small claims action against her former landlord for the return of five
week's rent and that portion of her security deposit that was applied to the payment of a utility
bill. At trial the tenant proved that there was a serious lack of heat in the apartment. After
several weeks the tenant told the landlord of the problem and that she would not continue to live
in the apartment unless she had sufficient heat. The landlord tried to get heat to her, but was
unable to and the tenant vacated the apartment and demanded the return of all rent and the
security deposit that she had paid up to that point which amounted to $2,685.00.
Several weeks later the landlord gave the tenant a check for $1,587.79 with a notation
"paid in full." An attorney for tenant wrote the landlord to say that the check was being held
in his escrow account and would remain there until "final determination" of the landlord's
liability is determined. The letter noted that tenant was forced to move due to a total lack of
heat which is a breach of the warranty of habitability. The letter sought return of all tenant's
money, meaning the outstanding balance of $1,098.21.
The landlord responded by saying that the tenant did not complain of the absence of heat
until several weeks after moving in and on the date she complained the furnace was working
properly. No violations were issued against the landlord. The landlord concluded that the
tenant had broken the lease without justification and that the landlord was generous for returning
one month's security and one month's rent paid in advance, less the costs attributable to the gas
and electric bill.
The issue for the court was whether there was an accord and satisfaction. If so, then the
tenant's claim must be dismissed. Under the Uniform Commercial Code (UCC) a creditor may
preserve her right to the balance of a disputed claim by explicit reservation in her endorsement.
The tenant's endorsement of the tendered check for deposit in her attorney's escrow account
indicates that there was no accord and satisfaction. Additionally, the court ruled that the three
bedroom apartment was without heat except for one bedroom with an electric baseboard heater.
Tenant had to purchase her own heater for additional comfort. The radiator vents or valves
were frozen shut and encrusted with paint. The temperature had dropped to 47 degrees.
Consequently the court found that the conditions were dangerous and hazardous to the tenant's
health and violated the warranty of habitability. Further the landlord had sufficient notice of the
health hazard. The landlord's failure to timely remedy the situation was detrimental to tenant's
health and forced her to vacate the apartment which constitutes a constructive eviction. The
court concluded that the tenant was entitled to $825.00 additional to the sum already tendered
by landlord.
- Case Caption:
- Mandala LLC v. Lynch
- Issues/Legal Principles:
- Notice of petition which fails to state the court room and part where the case is first
returnable must be dismissed.
- Keywords:
- notice of petition; jurisdictional defect
- Court:
- Civil Court, New York County
- Judge:
- Hon. Doris Ling-Cohan
- Date:
- August 29, 2001
- Citation:
- NYLJ, page 18, col 2
- Referred Statutes:
- RPAPL 731(2), 732; CPLR 3212, 403(a)
- Summary:
- In this holdover proceeding, the landlord's notice of petition failed to specify the part,
floor and room number where the petition was returnable, and in light of this omission, the
petition must be dismissed. The landlord conceded that this information was omitted but argued
that the omission was harmless error which does not warrant the dismissal of the petition. The
court disagreed, holding that this notice of petition fails to apprise the tenant of the essential
purpose, the stated time and place where he is to appear and that these are basic elements of a
petition. The court ruled that this is a jurisdictional defect, particularly in Housing Court where
so many tenants appear without lawyers. This defect cannot be remedied by amendment.
Accordingly, the court dismissed the petition.
- Notes:
- The case doesn't say whether the tenant made it to court on the first return date, or how
the tenant ascertained where the case was being held.
- Case Caption:
- Krem Realty Corp. v. Weeks
- Issues/Legal Principles:
- Landlord's motion fails to provide reasonable excuse why it was not ready to go forward
with an inquest due to lack of documentation, and therefore the landlord's request to re-calendar
the inquest is denied.
- Keywords:
- inquest; adjournment; law office failure
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Ava Alterman
- Date:
- August 29, 2001
- Citation:
- NYLJ, page 21, col 1
- Referred Statutes:
- none cited
- Summary:
- The landlord commenced a holdover proceeding against the tenant who did not appear.
The landlord had the case set for an inquest so that a judgment of possession could be obtained
against the tenant. However, when it came time to do the inquest the landlord's attorney
represented that his client did not have any of the certified documents necessary to support its
prima facie case to get an inquest. The attorney claims that the lack of readiness was due to law
office failure since the law office had relocated and "telephone lines were experiencing technical
difficulties" which led to the landlord's inability to communicate with the attorney about the
necessary documents.
The court noted that only the attorney submitted an affirmation to the motion to re-
calendar the inquest. Missing was an affidavit from the landlord or an affidavit from anyone
about efforts made to communicate. The court pointed out other defects with the motion and
concluded that the landlord did not adequately explain the failure to be ready on the inquest date
with the necessary documents, including the fact that if there were telephone difficulties in April,
how could that effect the inquest date in May? Additionally, although the multiple dwelling
registration statement is now produced, the document indicates that its registration had expired
on May 1, 2001. The building was not properly registered when the inquest was scheduled to
be heard and no excuse was provided by the attorney for this lapse in registration. Hence, even
had the inquest gone forward, the petition would have been dismissed due to lack of proper
registration. Thus, it is not possible to re-calendar the inquest. The court concluded that in this
case there were no special circumstances or surprises which might have excused the lack of
readiness on the inquest date. The court surmised that what happened here is simply that the
landlord and tenant did not confer with each other until the moment the inquest was to begin.
The court denied the motion to re-calendar the inquest.
New York Law Journal, decisions for the week of August 20-24, 2001
(1 case)
- Case Caption:
- 119 West 69th Street v. Rabban
- Issues/Legal Principles:
- Landlord is denied discovery of tenant's husband who is not a party to the nonprimary
residence proceeding.
- Keywords:
- nonprimary residence; discovery
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Alpert
- Date:
- August 22, 2001
- Citation:
- NYLJ, page 18, col 6
- Referred Statutes:
- CPLR 408
- Summary:
- The landlord brought a holdover proceeding against the tenant on grounds of nonprimary
residence and the landlord was granted permission to conduct discovery on the tenant. The case
was marked "off calendar" which discovery was conducted on the tenant. The landlord now
seeks to restore the case for the purpose of seeking discovery on the tenant's husband who is not
a party to this proceeding. The landlord claims that the tenant actually lives with her husband
who resides in New Jersey. At the tenant's deposition she admitted to living with her husband
some of the time.
The landlord argues that the husband has personal knowledge of his wife's whereabouts
and for this reason the landlord needs to depose the husband. The tenant argues that the
landlord should have sought to depose her husband in the initial request for discovery and that
he should now be barred from this request. The tenant also argues that the landlord's motion
failed to attach the relevant pages from her deposition which would have supposedly supported
the landlord's claim that the husband's testimony is necessary, and that the landlord is just
engaging in a fishing expedition.
The court observed that discovery is available when the party can show ample need. In
this case, the landlord failed to show ample need. First of all, without the benefit of the
deposition transcript the court was unable to determine exactly what the tenant said at the
deposition which prompted the landlord to seek her husband's deposition. Second, the court
believes that the real reason the landlord wants to depose the husband is to use him to impeach
the credibility of the tenant. A deposition of the husband would only be duplicative of testimony
that the tenant already provided. The court agreed with the tenant that the landlord was
engaging in a fishing expedition. The court also agreed that the landlord should have sought the
husband's deposition in the initial discovery request since the landlord alleged from the
beginning (i.e., in the non-renewal notice) that the New Jersey residence of the husband
constitutes the tenant's primary residence.
New York Law Journal, decisions for the week of August 13-17, 2001
(7 cases)
- Case Caption:
- New York City Housing Authority v. Nieves
- Issues/Legal Principles:
- City landlord who fails to have its petitions signed/certified by an attorney is not allowed
to obtain a default judgment against tenants.
- Keywords:
- default judgment; attorney certification
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Alterman
- Date:
- August 15, 2001
- Citation:
- NYLJ, page 20, col 2
- Referred Statutes:
- 22 NYCRR 130-1.1(a)
- Summary:
- The landlord, New York City Housing Authority, commenced a nonpayment proceeding
against the tenant for $92.65 for rent. The tenant failed to appear and NYCHA is asking the
court for a judgment on default. The papers presented by NYCHA, including the petition, and
requisition for a warrant, lack the signature/certification of an attorney which is required by 22
NYCRR 130-1.1(a). The purpose of an attorney signature is to obtain the attorney's certification
that they have reviewed the papers and this is not a frivolous action.
In a five month period the court reported that it denied NYCHA applications for default
judgments on 127 occasions because of the absence of an attorney signature/certification. The
court found at least 36 instances when NYCHA simply filed new proceedings without bothering
to discontinue the first proceeding, nor did the new proceedings bear signatures/certifications.
The court noted that the law provides that the court "shall" strike any unsigned paper if the
omission is not corrected promptly after being called to the attention of the attorney. The court
stated that NYCHA's attorney was notified 127 times of the omission. The court therefore
denied NYCHA's application for a default judgment.
- Case Caption:
- Binaku Realty Co. v. Penepede
- Issues/Legal Principles:
- Landlord's holdover proceeding against tenant for a washing machine that she had for
over twenty years is held to be simply a retaliatory eviction based on tenant's complaint to the
DHCR which was filed within six months of the notice to cure.
- Keywords:
- washing machine; retaliatory eviction
- Court:
- Civil Housing Court, Bronx County
- Judge:
- Hon. Anthony Fiorella
- Date:
- August 15, 2001
- Citation:
- NYLJ, page 19, col 3
- Referred Statutes:
- CPLR 3211(a); RPL 223(b)
- Summary:
- Landlord sought tenant's eviction on grounds that she violated the lease by having a
washing machine in the apartment. The tenant has lived in the apartment since 1976 and in 1977
had a washing machine installed professionally with the prior landlord's permission. A new
machine was installed in 1989. The current landlord bought the building in 1984. Landlord
accepted rent from tenant for the past 24 years. <
In December, 1999, tenant filed a complaint with the DHCR. Within six months
thereafter, the landlord served a notice to cure based on the washing machine. The landlord
then withdrew its first holdover petition and started a second one. The court dismissed the
current petition. The court held that the landlord waived a right to proceed against the tenant
on grounds of waiver. In other words, the landlord cannot accept rent all these years without
having heretofore complained about the washing machine. Further, the landlord steps into the
shoes of the old landlord who gave permission for the appliance. Additionally, the landlord
could offer no grounds for if or whether this washing machine has caused any damage, and
therefore, absent such proof there is no substantial violation of the lease. Further, there is
nothing in the language of the lease to indicate that the retention of a washing machine
constitutes a substantial violation of the tenancy.
The tenant maintains that the sole reason for this lawsuit is retaliatory eviction for the
complaint filed at DHCR regarding conditions in the apartment. The court held that the service
of the notice of cure within six months of the filing of the complaint raises a presumption of
retaliation. The landlord, according to the court, has failed to present a credible explanation of
a non-retaliatory motive for the holdover proceeding. By virtue of the timing, one can only
logically conclude that retaliatory eviction is present.
- Case Caption:
- Derderian v. Lehmann
- Issues/Legal Principles:
- Tenants who occupy two separate apartments as one single primary residence cannot be
evicted on owner occupancy grounds where one of the apartments is rent controlled due to the
twenty-year rule precluding the eviction of long-term tenants on owner occupancy grounds.
- Keywords:
- owner occupancy; primary residence; twenty-year rule
- Court:
- Civil Court, New York County
- Judge:
- Hon. Cavallo
- Date:
- August 15, 2001
- Citation:
- NYLJ, page 18, col 4
- Referred Statutes:
- RSC 2523.5(a); 9 NYCRR 2522.5(b)(1)
- Summary:
- Landlord brought a holdover proceeding on owner occupancy grounds as she intends to
use the apartment as her primary residence with her new baby, husband, toddler and nanny.
The tenants argue that the petition must be dismissed because they were offered a lease already
by the landlord's predecessor which was accepted. Additionally, the tenants occupy two
apartments as a single primary residence: the rent stabilized apartment in dispute and another
rent control apartment.
The principal of the prior corporate owner is the current landlord's husband. On June
28, 1999, the current landlord purchased the building. That same day she sent the tenants a
letter rescinding the prior owner's offer of a renewal lease, and instead served the tenants a
notice of nonrenewal. The tenants, however, returned the renewal lease, signed, and their
attorney later sent a letter rejecting the recision letter. The question for the court was whether
the landlord may rescind a lease offer which was made by her predecessor.
The court referred to appellate case law which held that a new landlord may not rescind
a lease renewal offer made by the prior landlord during a sixty day period in which the tenant
has to accept or reject the renewal lease. Here the tenant accepted the lease within two weeks.
Thus, on this ground alone, the court reasoned, the petition must be dismissed. The court went
on to rule that even if the landlord was not required to offer a renewal lease, the landlord's
holdover proceeding must still be dismissed due to the fact that a tenant residing in a rent
controlled unit for twenty years may not be evicted.
In order to reach this result of non-eviction the court had to determine whether the two
separate, non-contiguous units are used by the tenant as a single home and whether the owner
acquiesced in that usage. The court looked at the facts, including the tenant's claim that the
prior landlord helped ConEdison remove one of the kitchens, although the landlord's husband
denies this. The tenants' children are being raised in both apartments, and there is a
presumption that the residence of the children is the residence of their parents. The owner
offered case law indicating that a landlord may seek one of two apartments which a tenant
utilizes as a single primary residence. But the court distinguished that case from this one
because either one of those two units occupied as a single residence was recoverable, whereas
in this case, one of the two units (the rent controlled unit) is not possible to recover due to the
twenty-year rule protecting long-term tenancies in rent controlled units. The court essentially
concluded that the nature of these two units made them impossible to separate.
- Case Caption:
- Zenila Realty Corp. v. Margeta
- Issues/Legal Principles:
- Tenant proved that she stopped burning incense in the ten-day post-judgment cure
period, so that she didn't lose her apartment.
- Keywords:
- breach of lease; post-judgment cure
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Howard Malatzky
- Date:
- August 16, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- RPAPL 753(4)
- Summary:
- Tenant had previously gotten a judgment against her on grounds that she violated a
substantial obligation of the lease by permitting a strong and noxious odor to emanate from her
rent stabilized apartment as a result of burning incense daily [See Housing Court Decisions
Archives for April 23, 2001]. The warrant was stayed ten days to allow her an opportunity to
cure. A hearing was held to determine if the tenant timely cured and the lower court found that
she had discontinued the use of incense. The landlord appealed, but the Appellate Term upheld
the decision on grounds that there was ample evidence in the record, including testimony from
other tenants, to support her assertion that she had stopped burning incense.
- Notes:
- Burning incense is not necessarily a violation of a tenant's lease. But if, as apparently
the case here, the tenant burned excessive and noxious incense on a daily basis to the point that
she interfered with the peace and enjoyment of other tenants, then it would rise to the level of
a breach of the lease. It is unclear which provision of this tenant's lease was breached.
- Case Caption:
- 136 East 56th Street Owners Corp. v. Langan
- Issues/Legal Principles:
- Even though landlord was able to commence proceeding by way of order to show cause,
the petition was dismissed for failure to obtain personal jurisdiction over the tenant.
- Keywords:
- personal service; jurisdiction
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Faviolo Soto
- Date:
- August 16, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- RPAPL 733(2), 735; New York City Administrative Code 27-2009.1(b); CPLR 403(d)
- Summary:
- The landlord brought a petition by order to show cause which accelerated the return date
(which is usually five to twelve days after service of the petition on the tenant). Serving the
petition by way of show cause, however, does not dispense with the service requirements of
RPAPL 735 which requires several attempts at personal service. This petition was properly
dismissed, according to the Appellate Term, because the tenant was not personally served, nor
did landlord show that it was impracticable to personally serve the tenant.
- Case Caption:
- Simkowitz v. Birden
- Issues/Legal Principles:
- When tenant's status as prevailing party in the nonpayment proceeding was reversed on
appeal, at that time, in that appeal, the landlord should have sought to be deemed prevailing
party and cannot ask the court for that status afterwards.
- Keywords:
- attorney's fees; prevailing party; abatement
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Laurie Lau
- Date:
- August 16, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- none cited
- Summary:
- After trial in the nonpayment proceeding, the landlord recovered $5,388.25 in rent and
the tenant received an abatement of $1,239.30 and was accorded the status of prevailing party
which would, after a hearing, entitle the tenant to the reimbursement of her legal fees by the
landlord. The landlord appealed and the Appellate Term ruled that attorney's fees were not
appropriate for the tenant since the abatement represented a minimal percentage of the rent over
a four year period. The sole issue on the first appeal was whether the tenant was properly
deemed the prevailing party. After the appeal the landlord then asked the trial court to declare
the landlord the prevailing party. The court denied the motion, holding that the "garden variety
action should have been settled at its inception" and that the litigants "operated in a mode
anticipating litigation." The landlord appealed, but on this second appeal, the Appellate Term
upheld the lower court's decision that the landlord was not the prevailing party. The Appellate
Term held that neither party should be deemed the prevailing party. One justice held that the
denial should not have been for the reasons set forth in the lower court's decision necessarily,
but rather because this issue, whether the landlord was the prevailing party, should have been
preserved in the first appeal and could not now be litigated.
- Case Caption:
- Jules v. Douglas
- Issues/Legal Principles:
- Tenants' request for a 7-A Administrator is denied for several reasons including that
tenants failed to show one-third of the buildings' tenants supported the action.
- Keywords:
- 7-A Administrator; conditions; access
- Court:
- City Court, Westchester County
- Judge:
- Hon. Duffy
- Date:
- August 17, 2001
- Citation:
- NYLJ, page 21, col 5
- Referred Statutes:
- RPAPL 770, 775(a), 776; Emergency Tenant Protection Regulations 2502.6, 2507
- Summary:
- The tenants sought the appointment of an administrator (known as a 7-A Administrator)
for the various apartment buildings to collect rents and repair conditions. The court made an
on-site inspection of the premises over the landlord's objection. The court also had occasion to
hear two non-payment proceedings involving two tenants and a matter involving a city fine
against the landlord. The court took these other matters into account when deciding whether to
appoint a 7-A Administrator for the building.
The court declined to appoint an administrator for several reasons: (1) the conditions
complained of by the tenants had been removed or remedied, (2) repairs that the landlord had
repeatedly made were vandalized by unknown parties who were provided access to the building,
(c) some of the tenants had denied the landlord access to do repairs, and (4) the tenants failed
to demonstrate that they had the requisite one-third of the building tenants supporting the
appointment of a 7-A Administrator.
New York Law Journal, decisions for the week of August 6-10, 2001
(6 cases)
- Case Caption:
- Bourdouris v. Caravella
- Issues/Legal Principles:
- Landlord who files divorce petition but still maintains active relationship with marital
home fails to establish owner occupancy grounds against tenant.
- Keywords:
- owner occupancy
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Ava Alterman
- Date:
- August 8, 2001
- Citation:
- NYLJ, page 19, col 5
- Referred Statutes:
- RSC 2524.4(a); Domestic Relations Law 170
- Summary:
- Landlord brought a holdover proceeding based on owner occupancy against a tenant who
had resided in the premises for 23 years. The court noted that to recover an apartment on
personal use grounds, the owner must show a "genuine intention" to recover the apartment for
personal use and this intention "must be actual and genuine and not a subterfuge to remove
occupant tenants, only to replace the premises on the market a short time thereafter."
In this case the landlord alleged that he had been separated from his wife for roughly two
years and was living with his brother in Staten Island or his mother's apartment which is in the
subject building. The owner, however, does not have a written separation agreement with his
wife, he continues to live in the marital home for periods of time, pays the mortgage on the
house, files his tax returns and receives mail from the house and maintains the telephone in his
name and keeps clothing and belongings there. The tenant called him several times at the house
to request repairs and he answered. The owner says he remains on decent terms with his wife.
The owner did not file a petition for divorce until the eve of trial. Since there is no
separation agreement, the grounds for the divorce would be cruelty or abandonment, but the
court did not know which since the owner failed to produce a copy of the divorce complaint at
trial. The court concluded that the divorce petition was a sham since the other evidence
contradicts the alleged grounds for the owner's divorce. The court drew negative inferences by
the fact that neither the brother or mother of the owner came to testify. During the period he
allegedly separated from his wife, all four of the remaining apartments in the building became
vacant, but the owner did not move into any of them. (The mother and this tenant occupy the
other two units.) Based on the totality of the facts, the court denied the owner's petition to evict
the tenant on owner occupancy grounds.
- Case Caption:
- Jokubowitz v. Sharrad
- Issues/Legal Principles:
- Landlord's nonrenewal notice fails to specify proper statute as basis for owner
occupancy proceeding, and therefore the petition is dismissed.
- Keywords:
- owner occupancy; nonrenewal notice
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Ressos
- Date:
- August 8, 2001
- Citation:
- NYLJ, page 19, col 6
- Referred Statutes:
- RSC 2524.4(c), 2524.2, 2524.3
- Summary:
- The owner served tenant a notice dated October 11, 2000 stating that he needs the
tenant's apartment for his own use, citing Rent Stabilization Code, Section 2524.4(c) as the legal
basis for the proceeding. The notice alleged that the lease expired July 1, 2000, but this date
was marked out and replaced with 2/28/01.
The court observed that RSC 2524.4(c) does not refer to owner occupancy proceedings,
but rather nonprimary residency proceedings. Thus, the owner failed to cite the legal ground
on which the proceeding is based. The court found the notice deficient as well because it failed
to state the factual grounds on which the petition was based since only a conclusory statement
was asserted that the owner needed the apartment for personal use without stating further
supporting facts. Therefore the court dismissed the petition.
- Notes:
- The court was correct to dismiss the petition for failure to cite the proper legal ground.
With respect to the absence of sufficient factual statements in the notice, many appellate court
decisions have held that an owner merely need state that the premises are for his/her own usage
as a primary residence, and this statement alone constitutes a sufficient notice. The rationale
for permitting such a succinct notice is that tenants would be able to learn more through the
discovery process. The courts, however, fail to consider that discovery can be an expensive
course for tenants to pursue to defend their home.
- Case Caption:
- Suraci v. Mucktar
- Issues/Legal Principles:
- Court finds tenant's testimony credible that landlord signed 14 year lease to loft unit
with tenant, and no fraud occurred.
- Keywords:
- loft; fixtures; fraud; jury demand; stabilization coverage
- Court:
- Civil Court, New York County
- Judge:
- Hon. Lucy Billings
- Date:
- August 8, 2001
- Citation:
- NYLJ, page 18, col 3
- Referred Statutes:
- CPLR 3211(a), 3212(b), 2218, 4536; Multiple Dwelling Law 286(6); RPAPL 745(1);
New York City Civil Court Act 1303(a)
- Summary:
- The issue at trial in this holdover proceeding against a loft tenant who claims that the
loft is subject to rent stabilization is: (1) Did the landlord purchase fixtures in the tenant's loft
unit from a prior outgoing tenant for fair market value, so as to remove the unit from rent
stabilization coverage? and (2) Was the lease extending to January 2011 a forgery or a valid
lease executed by both parties?
After a trial the court concluded, with respect to the first issue, that the landlord
purchased the fixtures from the outgoing tenant in 1988 for fair market value. This purchase
removed the unit from any rent regulation. The court rejected the landlord's demand, after
many days of trial and extended passage of time, to have a jury hear the case.
With respect to the forgery issue, the court found that the tenant and the tenant's
handwriting expert who also testified were credible. The tenant testified that he observed the
landlord sign a 14-year renewal lease in 1997, and his expert concluded (by comparing the
signatures on the rent checks to the lease) that the lease bore the landlord's signature. Further,
the court observed that a 14 year lease was consistent with the tenant's testimony that he wanted
security for his family. By contrast, the landlord's testimony was not credible. He could not
remember "anything before yesterday," and amazingly appeared to take pride in his lack of
recollection as a senior citizen. Further, his testimony fell far short of credibility in general.
As a result, the court concluded that the lease is valid and not a product of fraud or undue
influence. Even if the lease were a product of mistake on the landlord's part, to invalidate the
lease the mistake must be mutual, and yet there was no evidence of a mistake on either party's
part. The court therefore dismissed the petition.
- Case Caption:
- Arlit Flushing Associates v. Randle
- Issues/Legal Principles:
- Tenant's rider stating that rent increases would be at 1% more than rent stabilization rent
increases did not make the apartment subject to rent stabilization protection.
- Keywords:
- rent stabilization coverage; rider
- Court:
- Appellate Term, First Department
- Judge:
- lower Court: Hon. Thomas Fitzpatrick
- Date:
- August 10, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- none cited
- Summary:
- A rider to tenant's original 1990 lease provided that any offer made by landlord to renew
the lease would be at a rent increase not exceeding one percent more than rent stabilization
guidelines. But his language did not, as tenant argued, mean that the apartment was subject to
rent stabilization. The rider conspicuously stated that "tenant understands that this unit is not
subject to rent stabilization."
- Notes:
- A landlord and tenant, on their own, cannot contract to make an apartment subject to
rent stabilization protection. It either is subject or it is not based on objective criteria, such as,
generally, the building must have six or more units and have been constructed prior to 1974.
(There are of course a number of exceptions).
- Case Caption:
- Houston Village Apartments v. Zitin
- Issues/Legal Principles:
- In nonprimary residency proceeding, landlord is allowed to conduct discovery on
tenant's wife who maintains a separate apartment in the city which is where landlord claims
tenant actually resides.
- Keywords:
- nonprimary residency; discovery
- Court:
- Appellate Term, First Department
- Judge:
- lower Court: Hon. Thomas Fitzpatrick
- Date:
- August 10, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- none cited
- Summary:
- Landlord sought to terminate tenant's rent controlled tenancy on grounds that the tenant
had impermissibly sublet the apartment and resides elsewhere in the city with his wife and son.
The lower court denied the landlord's motion to conduct discovery on the wife. The Appellate
Term reversed, holding that the denial was an "improvident exercise of discretion." The
Appellate Term found that the tenants' wife possesses particular knowledge which could shed
light on the issue of tenant's connection to her apartment, particularly in light of tenant's own
vague answers.
- Case Caption:
- 655 West Associates v. Asencio
- Issues/Legal Principles:
- Tenant who tried for three years to get landlord to repair her rotted out walls and
ceilings, defective wiring, and apartment fixtures was not in violation of "no alterations" clause
of lease since landlord ignored her continued requests.
- Keywords:
- alterations; repairs
- Court:
- Appellate Term, First Department
- Judge:
- lower Court: Hon. Howard Malatzky
- Date:
- August 10, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- none cited
- Summary:
- The Appellate Term upheld the lower court's dismissal of the petition against the tenant,
which apparently was a holdover proceeding based on tenant's alterations in the premises in
violation of the "no alterations" clause of the lease. The Appellate Term ruled that there was
ample evidence to conclude that tenant's original apartment fixtures had fallen into a state of
disrepair and that tenant's requests for repairs over a three year period were ignored.
Consequently, tenant's repair and replacement of rotted out walls and ceilings and defective
electric outlets was not a violation of the "no alterations" clause of the lease (a clause which
usually requires landlord's written consent). Additionally the work complained of was
performed by landlord's own on-site building employees.
New York Law Journal, decisions for the week of July 30 to August
3, 2001 (2 cases)
- Case Caption:
- Manning v. Brown
- Issues/Legal Principles:
- Tenant's motion to be restored to the apartment after eviction is denied where tenant
fails to pay all arrears and the costs of eviction, including landlord's legal fees.
- Keywords:
- post-eviction restoration
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Julia Rodriguez
- Date:
- July 31, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- none cited
- Summary:
- The tenant was evicted for failure to pay the rent as set forth in a pay-out settlement.
Apparently this was the third motion tenant made for restoration. The court initially denied the
tenant's motion for restoration and then granted reargument on condition that the tenant pay all
arrears plus landlord's eviction costs and legal fees. Tenant failed to comply with that
preliminary order. The tenant's motion was made six weeks after the eviction and the record
evidence shows that the landlord had executed a new lease with a new tenant. In these
circumstances, the Appellate Term ruled that the lower court did not abuse its discretion in
denying the tenant's motion for restoration.
- Case Caption:
- 326-330 East 35th Street Assoc. v. Sofizade
- Issues/Legal Principles:
- Chronic nonpayment proceeding brought as a substantial violation of the lease requires
the service of a notice to cure.
- Keywords:
- chronic nonpayment of rent; nuisance; breach of lease
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Michelle Schreiber
- Date:
- August 1, 2001
- Citation:
- NYLJ, page 18, col 4
- Referred Statutes:
- RSC 2524.3(a); RPAPL 753(4)
- Summary:
- Landlord brought a holdover proceeding on grounds that the tenant engaged in chronic
nonpayment of rent. Landlord only served a notice of termination based on tenant's breach of
a substantial obligation of his tenancy. Tenant made a motion to the court to dismiss the
proceeding on grounds that the landlord failed to serve a notice to cure as required by the lease
and the Rent Stabilization Code.
The court analyzed the history of case law pertaining to chronic nonpayment of rent.
A Court of Appeals case, Sharp v. Norwood, held that the landlord proceeded by
way of a nuisance, but failed to satisfy the higher standards of proof necessary. A nuisance
proceeding does not require a notice to cure. The court noted that a body of case law developed
wherein chronic nonpayment cases were dealt with as a violation of a substantial obligation of
the tenancy and the case law held that no notice to cure was needed. The court, however,
observed that these cases preceeded the enactment of RPAPL 753(4) which allows a tenant a
post-judgment cure of a default of the lease.
If a post-judgment cure of a lease default allows a tenant to cure after judgment, then
there must be an opportunity to cure prior to the judgment. The lease in this case calls for a
cure period and the Rent Stabilization Code does as well when the landlord accuses the tenant
of violating a subtantial obligation of the tenancy. For this reason the court dismissed the
petition for failure to serve a notice to cure. The court also noted that some case law provides
that a course of conduct was developed over the years where landlord routinely accepted late
payments and the landlord's change in position (i.e., no longer accepting late payments) warrants
a notice to the tenant and an opportunty for a comcomitant change in practice on the tenant's
part.
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