Housing Court Decisions December 2001
Editors: Colleen F. McGuire, Esq., Chief Editor
and Robert E. Sokolski, Esq.
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New York Law Journal, decisions for the week of December 24-28,
2001 (8 cases)
- Case Caption:
- In Re Application for Dunbar Partners v. DHCR
- Issues/Legal Principles:
- Landlord, who has burden of proof, failed to show sufficient documentary proof of its
improvements which justified an increase in the rent and therefore DHCR was proper in ruling
that landlord overcharged tenant and awarded tenant treble damages.
- Keywords:
- overcharges; improvements
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Eileen Branston
- Date:
- December 24, 2001
- Citation:
- NYLJ, page 20, col 2
- Referred Statutes:
- none cited
- Summary:
- The DHCR found that the landlord had wilfully overcharged the tenant and ordered a
refund, treble damages and interest. The landlord claimed that improvements warranted the
increase in rent, but it failed to present documentary evidence to support the claim. Landlord
has the burden of proof to show that the improvements were lawful and apparently in this
sparsely reported decision landlord failed to show sufficient proof.
- Case Caption:
- Trustees of Columbia University v. Richman
- Issues/Legal Principles:
- Daughter who does not co-occupy the apartment with mother for a full two years is not
entitled to succession rights.
- Keywords:
- succession rights; nonprimary residency
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Brenda Spears
- Date:
- December 24, 2001
- Citation:
- NYLJ, page 20, col 5
- Referred Statutes:
- 9 NYCRR 2204.6(d)
- Summary:
- In this nonprimary residence case the tenant did not physically co-occupy the apartment
with the mother for two years before her death. The lower court rejected the daughter's
succession rights claim on grounds that co-occupancy means physical occupancy of the apartment
by both mother and daughter. In this case, the mother was in the hospital and then a type of
nursing home for almost the full two years. She returned home about two weeks before she
passed away. The stipulated facts presented to the trial judge set forth that the daughter did not
move in until the mother was hospitalized. The daughter argued that the apartment always
remained the tenant's primary residence despite her physical absence for medical reasons. The
Appellate Term rejected this argument, and now the Appellate Division has as well. The courts
require actual physical co-occupancy for succession rights application.
- Notes:
- Disclosure: The tenant hired McGuire & Zekaria to represent her at the Appellate Term
stage only which is why more facts are made available here than were presented in the sparsely
reported Appellate Division decision.
For complete coverage of this matter, see the tenant's web site at http://www.vicric.com.
- Case Caption:
- Carnegie Management Co. v. Oppenheimer
- Issues/Legal Principles:
- Estate of Tenant is not a necessary party in holdover proceeding where tenant died one
day after renewal lease term commenced.
- Keywords:
- lease term; estates; licensees
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Thomas Fitzpatrick
- Date:
- December 24, 2001
- Citation:
- NYLJ, page 21, col 2
- Referred Statutes:
- none cited
- Summary:
- The Appellate Term held that the Estate of the deceased tenant was not a necessary party
to the holdover proceeding against the licensee because the estate's possessory entitlement are
for "winding-up purposes only" and entail no right of occupancy after the end of the lease term
of a rent stabilized lease. In this case the tenant signed a renewal lease for a term from
December 1, 1999 to November 30, 2001. But the tenant died on November 30, 1999 one date
before the renewal lease term kicked in. Tenant's daughter occupies the apartment and claimed
that the petition should be dismissed because the Estate was not named as a party. The
Appellate Term disagreed since the new lease term did not kick in during tenant's lifetime. A
strong dissent from Justice Davis, however, argues that an option to renew the lease does not
create a new lease, but simply prolongs the original lease for a further period. Since the lease
and the renewal were not, as the majority implies, two separate lease terms but rather one lease
term extended through November 30, 2001, the Estate was a necessary party to that lease term.
The daughter has a separate succession rights claim.
- Case Caption:
- Williams v. Blacks
- Issues/Legal Principles:
- Landlord failed to get Housing Authority's approval before commencing eviction
proceeding against Section 8 tenant, and therefore the petition was dismissed.
- Keywords:
- Williams Consent Decree; Section 8; stipulations
- Court:
- Civil Housing Court, Queens County
- Judge:
- Hon. Grayshaw
- Date:
- December 26, 2001
- Citation:
- NYLJ, page 21, col 1
- Referred Statutes:
- CPLR 3211(a)(2)
- Summary:
- Tenant receives Section 8 assistance and did so until March 31, 2001. The subsidy was
suspended due to violations in the premises. Thereafter the landlord commenced a holdover
proceeding against the tenant to evict her (presumably because the landlord was no longer
receiving the Section 8 subsidy). The tenant pro se agreed to vacate the apartment, but when
she sought an extension of the vacate date and it was denied, she sought legal counsel. The
attorney now seeks to set aside her agreement on grounds that the landlord failed to comply with
the Williams Consent Decree which is a federal case mandating certain procedures regarding the
eviction of Section 8 tenants. The New York City Housing Authority notified the landlord that
the eviction proceeding against the tenant was improperly commenced because the owner failed
to certify to NYCHA that the grounds for eviction constitute a lawful basis under the Section
8 program. Since the landlord's holdover proceeding recited no grounds, the landlord clearly
failed to comply with the Williams Consent Decree and the judge therefore dismissed the
petition.
- Case Caption:
- Hempstead Village Housing Assoc. v. Calderone
- Issues/Legal Principles:
- Section 8 tenant who allowed his sister to visit the apartment despite evidence that she
caused a nuisance is evicted where tenant agreed and failed to keep his promise not to allow her
to return to the apartment.
- Keywords:
- nuisance; stipulations; Section 8
- Court:
- District Court, Nassau County
- Judge:
- Hon. Asarch
- Date:
- December 26, 2001
- Citation:
- NYLJ, page 21, col 4
- Referred Statutes:
- CPLR 2201
- Summary:
- The landlord commenced a holdover proceeding against the Section 8 tenant based on
an alleged nuisance caused by the tenant's sister who landlord claims resides in the apartment,
but tenant claims she does not. At court the tenant agreed that his sister would only come for
occasional visits and that no visitor would engage in conduct constituting a nuisance. The
landlord thereafter moved to restore the case to the calendar because apparently the sister was
in the apartment causing a disturbance. At this next court date the tenant agreed to a possessory
judgment in favor of the landlord, but an eviction was stayed so long as the sister was
permanently excluded from the apartment. The court read the settlement stipulation to the tenant
and he indicated that he understood that he would be evicted if his sister visited him at the
apartment.
Thereafter the landlord served a five day notice of default that the warrant of eviction
would be executed on grounds that the sister visited the apartment after the stipulation was
signed. The tenant obtained an order to show cause staying the eviction and a hearing was on
the matter and on tenant's request that the stipulation be vacated. A neighboring tenant testified
that the sister did come to the apartment and blasted music and had an altercation with that
tenant. The neighbor testified that he heard her voice on at least ten separate occasions,
meaning ten visits to the apartment. The brother, however, testified that his sister only came
to the apartment twice, both times without his consent, although one of the times he wanted her
to retrieve her belongings. The police were called to the premises, and the sister left ten
minutes later.
The court concluded that the tenant knowingly signed the stipulation and the
overwhelming evidence indicates that the stipulation was violated. The court found credible the
neighbor's testimony. The court believed that the tenant would violate the stipulation again and
allow his sister to return. Therefore, the court ruled that the tenant be evicted but a four month
stay was granted.
- Case Caption:
- S & P Associates v. Fredericks
- Issues/Legal Principles:
- Wife who remains in apartment after leaseholder husband vacates at end of lease term
in nonregulated apartment is not entitled to thirty day notice of termination.
- Keywords:
- tenancy at sufferance;
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Paul Alpert
- Date:
- December 26, 2001
- Citation:
- NYLJ, page 18, col 6
- Referred Statutes:
- none cited
- Summary:
- Husband and wife lived in a nonregulated apartment and husband was the tenant of
record who signed the lease which expired in August. In March, the husband began divorce
proceedings and before August moved into another apartment owned by the landlord while the
wife remained in the premises. When the lease expired the landlord brought a holdover
proceeding without serving any predicate notices. The husband moved to dismiss the proceeding
as against him because he said he moved out and surrendered before the lease expired. The wife
moved to dismiss the proceeding on grounds that she is a tenant at sufferance and was entitled
to a thirty day notice of termination. The landlord moved for summary judgment on the ground
that the lease expired by its own terms and neither husband or wife has a right to remain in the
premises.
The court denied the husband's motion since the husband, although vacating the
apartment, has not returned full possession to the landlord since he left his wife in there. It is
the leaseholder's responsiblity to surrender an apartment clear and clean of occupants. The
husband could have commenced a holdover proceeding against the wife or raised the issue in the
divorce action. Hence, the husband is not off the hook. The court also rejected the wife's
argument since no new independent rights were created when the lease expired, criteria which
could create a tenancy at sufferance. Since the husband was not entitled to a thirty day notice
of termination, then likewise neither was the wife. The court granted the landlord's motion for
summary judgment since neither the husband or wife proved any evidence that an issue of fact
exists so as to require a trial. The court granted the landlord a judgment of possession and
allowed the landlord to submit a motion for legal fees.
- Case Caption:
- 7 Dunham Place Realty, Inc. v. Arndt
- Issues/Legal Principles:
- Landlord who leases a commercial space to tenant and knows and acquiesces in the
tenant's residential usage of the space cannot evict the tenant in a commercial holdover
proceeding.
- Keywords:
- commercial-residential lease
- Court:
- Civil Court, Kings County
- Judge:
- Hon. Silber
- Date:
- December 26, 2001
- Citation:
- NYLJ, page 20, col 2
- Referred Statutes:
- Multiple Dwelling Law 301 & 302
- Summary:
- A holdover proceeding was brought in the commercial part of civil court and the trial
judge dismissed the proceeding with prejudice. The facts at trial show that the building consists
of 9 residential unit which makes it rent stabilized. The tenant originally rented a third floor
apartment in 1994. In 1998, the tenant leased a vacant unit from the landlord which is listed
as a store on the certificate of occupancy. An officer of the landlord corporation testified that
she prepares all the leases, collects the rent and attends to the corporate books. She testified that
she prepared a residential Blumberg form lease for a rent stabilized apartment which she
prepared which clearly contemplates residential use for the ground floor unit, identified in the
lease as "store front." Both parties signed the lease and the tenant moved from the third floor
to the ground floor "store front." The tenant never paid rent twice and moved all her personal
possessions down to the ground floor. The landlord renewed the lease twice, and then
commenced a holdover proceeding by serving the tenant a thirty day notice terminating the
"commercial lease."
There was some dispute as to the facts at trial, including the extent of renovations
undertaken by the tenant. She claimed that she only installed a wood counter in the kitchen area
and that there was already a refrigerator, stove and shower. The super testified that he saw her
move her possessions down to the ground apartment and that sometimes at night he'd knock on
her door and remind her she was parked on the wrong side of the street. Tenant testified that
she and the landlord agreed that she was just exchanging one residential space for another, and
even her security deposit was transferred to the new lease. The landlord testified there was
never an intent to give her a stabilized lease, despite the rider's reference to all things
residential. The landlord disputed tenant's claim that two other residential tenants lived in the
ground floor space before her.
The court observed that where a landlord knew or acquiesced in the tenant's residential
use of a storefront, a commercial holdover proceeding must be dismissed. The court reviewed
a number of cases which supported this conclusion. The court looked at the four corners of the
residential lease and discerned absolutely no reference to a commercial tenancy. Further, the
court held that no commercial activity occurred. The court acknowledged that the lease itself
does not make the apartment subject to rent stabilization laws. The court, however, analyzed
those cases where a rent stabilized lease was inadvertently given for residential units which were
for various reasons exempt and stated that those owners came to court with clean hands. This
case is distinguishable to the court.
The distinguishing feature is that the Multiple Dwelling Law precludes an owner from
collecting rent on an apartment which is not in conformity with the certificate of occupancy (and
thereby invariably not in accord with building code standards for a residential unit). The court
held: "There is an unambiguous implication that a property owner who rents a unit to someone
that is not legal (and presumably not safe) for habitation, has committed a wrong to the tenant
and to society, and for public policy reasons, should be punished." The court regarded this
landlord as coming to court with unclean hands and that the illegal leasing of the storefront
requires the dismissal of the petition. Since the landlord totally knew, in the court's opinion,
that the ground floor would be used for residential purposes, this landlord has no business
commencing a commercial proceeding. There was no testimony whatsoever that the premises
were used as a storefront art studio (sculpturing, painting and carpentry), as the petition falsely
alleged.
The court refused to make a finding as to whether the storefront must be converted into
a legal dwelling unit, whether an ejectment action would be proper, whether a declaratory
judgment action by the tenant would be found to have merit, or whether the landlord would have
to amend the certificate of occupancy to convert the storefront to a residential unit. The tenant
filed a complaint at DHCR for failure to renew lease and the court opined that perhaps DHCR's
outcome would guide the parties. The court acknowledged that a tenant cannot be permitted to
confer stabilized status on herself, but the case law is clear that such is the result if the landlord
has knowledge for the residential use of a nonresidential space, allows the occupant to expend
significant sums to convert the property into a residence and acquiesces or looks the other way
with knowledge of what is going on.
- Case Caption:
- Liburd v. Leto
- Issues/Legal Principles:
- Where landlord and unregulated tenant do not agree on an increased rent amount, tenant
continues to pay old rent in a nonpayment proceeding.
- Keywords:
- use and occupancy; holdover
- Court:
- District Court, Nassau County
- Judge:
- Hon. Gartner
- Date:
- December 26, 2001
- Citation:
- NYLJ, page 21, col 6
- Referred Statutes:
- RPL 232-b
- Summary:
- Tenant lives in a nonregulated apartment and paid $625 a month. In September a new
owner purchased the property. The tenant represented that when the owner purchased the
property he told tenant he could stay at the apartment until March but at a higher rent. The
owner disputes the contents of this discussion. The court determined that if there was no
agreement to pay a higher rent then the owner's remedy is a holdover proceeding. However,
the owner has commenced a nonpayment proceeding at $950 per month, but since there was no
meeting of the minds as to the new rent, the old rent of $625 must remain.
Further, if the prior landlord failed to turn security posted by the tenant over to the
landlord, the old landlord remains liable to the tenant for the return of the tenant's security and
the new landlord has no liability.
New York Law Journal, decisions for the week of December 17-21,
2001 (7 cases)
- Case Caption:
- Crystal World Realty Corp. v. Sze
- Issues/Legal Principles:
- Landlord who prevailed in prior unlawful sublet proceeding cannot start new eviction
action based solely on tenant's failure or refusal to pay the legal fees accrued from that past
case.
- Keywords:
- breach of lease; legal fees; cure
- Court:
- Appellate Term, First Department
- Judge:
- lower Court: Hon. Howard Malatzky
- Date:
- December 19, 2001
- Citation:
- NYLJ, page 22, col 6
- Referred Statutes:
- RPAPL 753(4)
- Summary:
- Landlord was granted a final judgment of possession on a previous appeal based on
tenant's unlawful subletting. The tenant cured the breach of lease within ten days after
judgment. Now landlord has commenced a new proceeding solely to recover the $62,000 in
legal fees accrued in the prior matter. The lower court denied this relief. The Appellate Term
held that in eviction proceedings regarding a regulated tenancy, attorneys fees may not be
considered rent or be awarded as additional rent in order to enable landlord to obtain a
possessory judgment. In short, the court held that the landlord should sue tenant in a plenary
action in civil court to recover its alleged fees, a forum where landlord cannot recover
possession of the apartment in the event tenant failed to pay the legal fees, since the legal fees
are not deemed "rent."
- Case Caption:
- New York City v. New York State Division of Housing and Community Renewal
- Issues/Legal Principles:
- New York City is not precluded by Urstadt Law (which limits the City from extending
or expanding rent regulation) from adopting a new method for calculating capital value for rent
control apartments which limits landlords' profits on rents.
- Keywords:
- rent control; capital value; Urstadt Law; MBRs
- Court:
- Court of Appeals
- Judge:
- unstated
- Date:
- December 21, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
-
- Summary:
- The decision is long and significant, written by the Chief Judge Judith Kay, which the
New York Law Journal characterized as "an 18-page tutorial-like opinion that seeks to make
intelligible a half-century of befuddling law, public policy, tradition and precedent. For reports and links to the full
decision, see
http://tenant.net/pipermail/nytenants-online/2001-December/000128.html. Additional news reports may be in subsequent NYtenants Online newsletters, available on TenantNet.
- Case Caption:
- Metropolitan Life Insurance Co. v. Butler
- Issues/Legal Principles:
- Where landlord knows identity of alleged subtenant and their relationship to prime
tenant, landlord's discovery request in an unlawful sublet proceeding for information solely
regarding prime tenant's primary residence is denied.
- Keywords:
- nonprimary residency; illegal sublet; cure; discovery
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Michelle Schreiber
- Date:
- December 19, 2001
- Citation:
- NYLJ, page 24, col 2
- Referred Statutes:
- Real Property Law 235-f & 226-b
- Summary:
- Landlord brought an unlawful sublet proceeding and sought discovery on the issue of
who is residing in the apartment, as well as what is the primary residence of the tenant. The
court reviewed past case law and determined that in a nonprimary residency action, a
presumption exists in favor of discovery, but this is not the case for an unlawful sublet
proceeding. In instances where the landlord does not know the occupant of the premises (i.e,
the illegal subtenant), then limited discovery is appropriate on this issue. In a case where the
tenant alleged that an illegal sublet has been cured, the Appellate Term recently affirmed the
denial of discovery because the landlord was unable to show that after the cure period the
apartment was occupied by anyone other than the immediate family of the tenant.
In the case before the court, the landlord is aware of the identity of the tenant and the
alleged subtenant, the latter being the son of the former. The landlord does not dispute this and
does not need discovery to ascertain the identity of the alleged subtenant nor his relationship to
the prime tenant. The landlord, however, claims that discovery is needed solely on the issue
of the tenant's primary residency. The court found that the landlord's request was directed at
establishing the factual basis for a future nonprimary residency case. In fact, a nonprimary
residence action was commenced but discontinued due to a technicality. Hence, this court
regards the current request for discovery as nothing more than a fishing expedition.
Accordingly, the court denied the landlord's discovery request.
- Case Caption:
- Melohn v. Franklin
- Issues/Legal Principles:
- Despite separate bank accounts, life partner proves nontraditional family relationship
with deceased tenant that lasted for 35 years.
- Keywords:
- succession rights; nontraditional family relationship
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Peter Wendt
- Date:
- December 19, 2001
- Citation:
- NYLJ, page 23, col 5
- Referred Statutes:
- New York City Rent and Eviction Regulations 2204.6(d); CPLR 3212
- Summary:
- Landlord brought a licensee proceeding against an occupant who remained in the rent
control premises after the prime tenant had died. After the landlord conducted discovery on the
occupant, the occupant made a motion for summary judgment seeking succession rights to the
apartment based on nontraditional family relationship, and refuted that he was a caretaker as the
landlord claims. Since the occupant is a senior citizen, he need show only one year of co-
occupancy with the deceased tenant.
In this case, the occupant claims co-occupancy with the deceased tenant for 35 years.
The occupant's affidavit states that he initially moved in 40 years ago as a boarder, but when
the tenant's husband died he and the tenant became intimate and he moved into the master
bedroom. He submitted in his affidavit that for 35 years the coupled shared all household
expenses which the tenant paid and he would reimburse her for his half of the bills. Only the
renter's insurance policy had both their names on it. They maintained separate bank accounts
but he had a power of attorney over the tenant's account since 1993. There were money markets
where they designated each other as joint tenants with right of survivorship. There were other
finances the court examined and ultimately concluded that the couple had their own money and
were not required to be dependent on one another financially for daily expenses, yet if either one
needed financial assistance, the other would gladly help out. A key indicator of their financial
interrelationship is the fact that the tenant left a substantial portion of her estate to her partner
and bequeathed $5,000 to his sister, "a good indicator" that there was indeed a family-type
relationship between the occupant and the tenant. In addition to the financial interrelationship,
the court also examined the emotional interrelationship, another requirement for the occupant
to prove in claiming that a nontraditional family relationship existed. In this instance, affidavits
from the tenant's two children and grandson attested to the close relationship. Other evidence,
such as photographs and correspondence, helped the court to conclude that a nontraditional
family relationship existed.
- Case Caption:
- 9 Montague Terrace Assoc. v. Feurer
- Issues/Legal Principles:
- Landlord who fails to register the building as a multiple dwelling at the time the
proceeding is commenced, but thereafter cures the problem, may proceed with the collection of
rent in a nonpayment proceeding.
- Keywords:
- multiple dwelling; registration statement; stays; abatements
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower court: Hon. Banks
- Date:
- December 19, 2001
- Citation:
- NYLJ, page 26, col 4
- Referred Statutes:
- Housing Maintenance Code 27-2107(b); Multiple Dwelling Law 325(2)
- Summary:
- Landlord brought a nonpayment proceeding and tenants moved to dismiss on grounds
that the building was not registered as a multiple dwelling, Landlord showed that it had now
cured the objection by registering the building. The lower court dismissed the proceeding
(without prejudice) because the building was not registered at the time the proceeding was
commenced. Tenants appeal on grounds that the dismissal should have been with prejudice. A
dismissal with prejudice means that the owner could never again sue for those rents demanded
in that dismissed petition. A dismissal without prejudice means that the owner can sue again so
long as its papers and registration are in order.
The primary relevant law is Section 27-2107(b) of the Housing Maintenance Code which
provides that "An owner who is required to file a statement of registration under this article and
who fails to file as required shall be denied the right to recover possession fo the premises for
nonpayment of rent during the period of noncompliance and shall in the discretion of the court,
suffer a stay of proceedings to recover rents, during such period." The court interpreted the
statute as meaning that by its terms the section bars the recovery of possession during the period
of noncompliance and provides for a stay of proceedings to collect rent during that period, but
does not provide for an abatement of the rents which accrue during the period of
noncompliance.
An earlier draft of this law explicitly authorized the court to grant an abatement of rents
and such abatement would be discretionary with the court, not mandatory. The omission from
the final draft of the law to award even such a discretionary abatement clearly indicates a
legislative intent that there be no abatement of the rent which accrue during the period of
noncompliance. Multiple Dwelling Law 325(2) does not, according to the Appellate Term,
result in a contrary conclusion. That statute states that " . . . no rent shall be recovered by the
owner of a multiple dwelling who fails to comply with such registration requirements until he
complies with such requirements." Standing alone this provision may be ambiguous as to
whether a stay or an abatement of rents is intended. However, the fact that this provision was
enacted at the behest of the City to "clarify and confirm the power of the City to enact" Section
27-2107 of the Housing Maintenance Code indicates that the Legislature intended only to
confirm the power of the City to preclude the recovery of possession and to provide for a stay
of proceedings to collect rent during the period of noncompliance. The court concluded that
upon registering an owner is entitled to recover the rents which accrued during the period of
noncompliance and can recover possession based on such nonpayment.
- Notes:
- Since 1980, the Appellate Term, Second Department for Brooklyn and Queens ruled
that if a landlord belatedly filed a multiple dwelling registration statement after a nonpayment
proceeding was already commenced, the landlord would be precluded from collecting the back
rent. The Appellate Term, First Department for Manhattan and the Bronx had long allowed a
judgment in nonpayment regardless of when the landlord filed the registration, so long as by trial
the registration was proper. After over two decades, the Second Department has now changed
to comport with the First Department.
- Case Caption:
- Seward Park Housing Corp. v. Cohen
- Issues/Legal Principles:
- Owner is imputed with knowledge of pet where owner's agents and employees see tenant
with dog on a daily basis, and in such circumstances, if owner does not commence a holdover
proceeding within three months of such knowledge based on an alleged violation of the lease
(harboring a pet), the owner is precluded from evicting the tenant on this ground.
- Keywords:
- pet law; imputed knowledge; breach of lease; harboring pets
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Howard Malatzky
- Date:
- December 19, 2001
- Citation:
- NYLJ, page 17, col 3
- Referred Statutes:
- New York City Administrative Code 27-2009.1; Real Property Law 260; CPLR 212(a);
RPAPL 501; McKinney's Statutes 236
- Summary:
- The landlord brought a holdover proceeding against the tenant based on an unalleged
unlawful harboring of a dog in violation of a lease clause prohibiting same without landlord's
consent. Section 27-2009.1 provides: "Where a tenant . . . openly and notoriously for a period
of three months . . .harbors . . a household pet . . .and the owner or his or her agent has
knowledge of this fact and such owner fails within this three month period to commence a
summary proceeding or action to enforce a lease provision prohibiting the keeping of such
household pets, such lease provision shall be deemed waived." The lower court dismissed the
petition on grounds that the building employees and managing agent knew of the tenant's dog,
Rocky, and therefore this knowledge was imputed to the owner. The Appellate Term reversed
and held that employee's knowledge is not to be imputed. The Appellate Division reversed
again and affirmed the trial court's decision.
The issues before the Appellate Division were (1) where a tenant openly and notoriously
harbors a pet for three months, with the actual knowledge of servants and employees at the
building who are not required by the landlord to report this harboring, does the non-resident
managing agent, nevertheless, by ordinance, have imputed knowledge of such harboring? (2)
Where the managing agent has such imputed knowledge but fails to commence a proceeding to
enforce a no-et covenant within the three month time limitation of the ordinance, has the
landlord thereby waived its right to enforce the covenant? The Appellate Division answered both
these questions in the affirmative, and therefore upheld the dismissal of the petition.
At trial the landlord's only witness was the managing agent and he testified that
employees were not required to report tenant's harboring of a pet. Nor are the co-op board's
members required to so report on this issue. The managing agent does not reside at the building
nor maintain an office there, and has actually been to the building only once in the last 2 years.
He testified that he had no knowledge, nor did the security guards, that the tenant had harbored
Rocky. The tenants, and neighboring tenants, testified that they walked Rocky in and about the
building three times a day since getting the dog, starting from the 19th floor and walking past
all security guards and building workers. The trial court concluded that the overwhelming
evidence at trial indicates that the dog was exposed to and seen by building personnel on a
regular basis and therefore knowledge of the dog must be imputed to the owner.
The Appellate Division analyzed the legislative history of the Pet Law and concluded that
it was intended to impute knowledge to an owner through the owner's employees or agents. The
court also upheld precedent that the Pet Law applies to co-operative buildings, such as the one
in this case. The Court held that if tenants had to prove actual knowledge on the part of the
owner they might never be able to do so, and that common sense dictates that building owners
have agents who regularly monitor the property. Thus, tenants need only show that they "openly
and notoriously" harbored the dog in full and plain view of one and all, including the employees
and agents of an owner. The Court found that the landlord "would have had to close its eyes,
cover its ears and hold its breath to have remained ignorant of the presence of [tenant's]
puppy."
There was, however, a vigorous dissent from Justice Friedman who argued that the Pet
Law should not apply to co-ops and condos which conflicts with long-held case law that courts
should generally not intrude into the business decisions of co-ops and condos. The dissent also
made the point that the purpose of the Pet Law was to preclude landlords from using the no-pet
provision of a lease as a retaliatory device to evict otherwise non-breaching tenants. In this
case, argued the dissent, there was no reason to believe that the co-op board's decision to
commence the proceeding were based on any ulterior motives.
- Notes:
- This case will surely be cited often in the future. The decision is very long and speaks
at length of the purpose of the Pet Law and its parameters. Since the dissent was so vigorous,
however, it should come as no surprise if this matter made it to the Court of Appeals.
Hopefully, it will be upheld because it seems just plain common sense that if an owner's
employees and agents see a tenant with a dog on a daily basis, then why should that knowledge
not be imputed to the owner? It would be impossible to charge the actual landlord with
knowledge of a pet if the actual landlord rarely, if ever, comes to the building.
- Case Caption:
- Classic Equities v. Garrity
- Issues/Legal Principles:
- Landlord's "amended" registrations are rejected since they were filed after tenant's
overcharge claims were filed, and because landlord failed to show that the rents listed in the
original statements were merely preferential rents.
- Keywords:
- overcharge; registration statements
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Howard Malatzky
- Date:
- December 18, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- Rent Stabilization Law 26-516-a
- Summary:
- The lower court determined that the last legal registered rent prior to the 1999 lease was
$887 as set forth in the 1998 registration statement. It is conceded that the value of
improvements within the apartment was not sufficient to reach the $2,000 threshold for vacancy
deregulation and therefore the premises remained rent stabilized and tenants were granted
judgment for their rent overcharge claim. The lower court rejected landlord's series of
"amended" registrations, filed only after tenants asserted an overcharge claim. The Appellate
Term affirmed the court's rejection of the registrations since the original registrations filed over
several years were consistent with rent guidelines orders and landlord failed to establish by
preponderant evidence that the rentals set forth in the original registrations were merely
preferential rents.
New York Law Journal, decisions for the week of December 10-14,
2001 (9 cases)
- Case Caption:
- West 110th Realty LLC v. Brown
- Issues/Legal Principles:
- Despite absence of documentation, brother of the tenant succeeds to the apartment based
on two-year co-occupancy.
- Keywords:
- succession rights
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Debra James
- Date:
- December 12, 2001
- Citation:
- NYLJ, page 19, col 2
- Referred Statutes:
- RSC 2523.5(b)(1)
- Summary:
- Landlord brought a holdover proceeding on grounds that the tenant of record Michael
Brown unlawfully sublet the apartment to his brother-in-law Albert Harrison, without the
landlord's consent. Albert's sister Alma is married to Michael Brown, which makes Albert
Michael's brother-in-law. In 1986 Michael and Alma moved into the subject apartment and
Albert moved in with them. The couple, however, moved out in 1988 when they bought a co-
op, although they continued to sign renewal leases to the apartment. In the 1993 renewal lease
Albert attempted to sign the renewal lease but the landlord rejected it and the name was stricken.
In 1993 Albert tendered rent and the owner's predecessor accepted it without reservation.
Apparently several checks were accepted. The court concluded after trial that the owner and/or
its predecessor had knowledge of Albert's occupancy via the stricken name on the lease and the
acceptance of rent. Additionally, the parade of witnesses on Albert's behalf corroborated that
he resided with his sister and brother-in-law for the two years they lived in the apartment.
Thus, even though Albert has insufficient documentation, he proved succession rights via
credible witness testimony.
- Case Caption:
- Estate of Laura Marcus v. Davis
- Issues/Legal Principles:
- Executor of Landlord Estate cannot bring an owner occupancy proceeding against the
tenant.
- Keywords:
- nonprimary residency; owner occupancy; estates; executors
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Waithe
- Date:
- December 12, 2001
- Citation:
- NYLJ, page 19, col 4
- Referred Statutes:
- CPLR 3211(a)(2), RSC 2524.2, 2524.3, 2524.4; EPTL 11-1.1
- Summary:
- The landlord, the Estate of Laura Marcus, brought a holdover proceeding against the
tenant on grounds of nonprimary residence and owner occupancy. The tenant argued that the
landlord lacked standing because the estate is not a natural person (a necessary prerequisite in
an owner occupancy proceeding). The landlord sought to substitute Martin Marcus as the
executor, since Mrs. Marcus (the prior executor) died after the notice of nonrenewal was signed.
The tenant also argues that an executor or beneficiary of the estate cannot maintain an owner
occupancy proceeding since the estate is the landlord and the estate is not a natural person.
The court dismissed the portion of the petition seeking owner occupancy on grounds that
owner occupancy proceedings may only be brought by natural persons, and not, for example,
corporations, partnerships or trustees. Further, an executor only acquires the rights of the estate
in a representative capacity. In the court's view an executor is not acting in an individual
capacity which is required in an owner occupancy proceeding. The Estate here is not a natural
person. The court did, however, grant the landlord's motion to substitute Mr. Marcus as the
executor. Hence, that portion of the proceeding dealing with nonprimary residency was not
dismissed and will still continue. An executor is authorized to "take possession of, collect rents
from and manage . . . any property or estate therein owned by the estate." Mr. Marcus can
perform this role as executor regarding the nonprimary residency portion of the petition.
- Case Caption:
- 182 Fifth Avenue LLC v. Design Development Concepts, Inc.
- Issues/Legal Principles:
- Even if loft unit is no longer subject to the Loft law, it may still be subject to rent
stabilization via the Emergency Tenant Protection Act of 1974.
- Keywords:
- Lofts; rent stabilization status; fixtures; illegal alterations
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Leland DeGrasse
- Date:
- December 12, 2001
- Citation:
- NYLJ, page 18, col 2
- Referred Statutes:
- RPAPL 753(4); Emergency Tenant Protection Act of 1974; MDL 285(12); 29 RCNY
2-10; McKinney's Unconsolidated Laws 8625(a); Administrative Code of the City of New York
26-504.2
- Summary:
- The tenant signed a commercial lease with the prior landlord for commercial space.
However, the prior landlord knew that the tenant resided in the premises with his family.
Tenant asserts that the current landlord knows this as well. The landlord sought to evict the
tenant on grounds of nonpayment of rent as well as illegal alterations. The tenant had installed
a kitchen without obtaining prior written consent. The tenant defended the lawsuit on grounds
that, not only have this and the prior owner been aware of his residential status, but he is a
protected tenant under the Loft Law and the Emergency Tenant Protection Act of 1974 (ETPA).
The landlord moved to dismiss the tenant's affirmative defenses. The court denied most
of the motion. The court found that the building had at one time more than six residential units
and was built after 1974. Therefore it was subject to the ETPA and thus qualified under rent
stabilization. The landlord, however, argued that since the prior tenant sold the right to the unit
to the prior owner, this act removed the unit from rent stabilization. The court, however, ruled
that the sale of rights ended the unit's eligibility for rent stabilization under the Loft Laws only.
If tenant's facts prove true, the unit's regulated status could arise via the ETPA. The ETPA
contains a number of specific exceptions to its coverage, but lofts are not one of them.
Moreover, sufficient case law holds that lofts are subject to the ETPA. Thus, the court ruled
that tenant's defense of regulated status will not be dismissed.
The landlord also attempted to argue that since the rent was over $2,000 a month when
the tenant took occupancy, the unit is automatically decontrolled as a result of the Rent
Stabilization Law's luxury deregulation statute. The court, however, ruled that this is so only
if the $2,000 is a "legal regulated rent," and it is unclear from the facts currently before the
court in the motion papers whether the rent charged was a "legal regulated rent." Thus, the
court preserved this defense as well.
The tenant also argues that the 1986 sale of the prior tenant's rights was ineffective
because the owner never filed a record of the sale with the Loft Board. The court, however,
referred to the law's penalty which is not nullification of the sale, but rather a fine by the Loft
Board of up to $1,000. The record is unclear whether the unit was used for non-residential
purposes after the sale which would have made it incumbent upon the owner to remove all
residential fixtures and provide for a Loft Board inspection. Pending the outcome of the trial,
the court directed the tenant to continue to pay ongoing use and occupancy.
- Case Caption:
- Thelma Realty Co. v. Harvey
- Issues/Legal Principles:
- Landlord is under an ongoing obligation to enforce a DHCR rent reduction order and
therefore if landlord charges a higher rent landlord is liable for overcharges; even if the rent
reduction order became effective more than four years ago, the statute of limitations is not
applicable in such circumstances.
- Keywords:
- overcharges; statute of limitations; rent reduction order
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower court: Hon. Michael Pinckney
- Date:
- December 14, 2001
- Citation:
- NYLJ, page 23, col 5
- Referred Statutes:
- Administrative Code of the City of New York 26-514; Rent Regulation Reform Act of
1997; CPLR 213-a
- Summary:
- On November 30, 1987, the DHCR reduced the tenant's rent based on the landlord's
failure to provide services. The order froze tenant's rent at $327.80. Landlord, however,
continued to collect the higher rent and increases thereafter. In 1999 the landlord brought a
nonpayment proceeding against the tenant for rent owed at the monthly rate of $609. The tenant
appeared pro se and was allegedly unaware of the legal effect of the DHCR order and entered
into a settlement agreement to pay the arrears at the higher rate. The landlord obtained a final
judgment against the tenant when the tenant failed to comply with the agreement, even though
tenant had by then become aware of the DHCR order reducing the rent.
Tenant thereafter retained counsel who sought to vacate the stipulation on grounds that
the landlord is under an ongoing obligation to uphold the DHCR order and that the landlord's
defense of the four year statute of limitations is inapplicable. In applying the DHCR order,
tenant owes no rent and in fact has been overcharged. The landlord had in the meantime
registered the higher rent every year and thus argued that the law precluded an examination of
the rent registered more than four years ago.
The lower court and the Appellate Term both held that the rent reduction order remained
in effect despite landlord's filing of subsequent registrations and that it is not part of the rent
history. A rent reduction order imposes a continuing obligation on an owner to reduce the rent
and to refrain from collecting increases until the owner obtains an order restoring the rent.
Where the duty imposed prior to a limitations period is a continuing one, the statute of
limitations is not a defense to actions based on breaches of that duty occurring within the
limitations period. The court noted that here the tenant's claim is not predicated on an
overcharge occurring prior to the registration statement filed four years before the most recent
statement, but rather upon breaches by landlord within the four-year period of a duty which
continued into that period and thus the statute of limitations does not bar the claim. The
Appellate Term concluded that the Housing Court properly vacated the stipulation, but rejected
the lower court's permitting the case to be marked off calendar to enable the landlord to go
DHCR to obtain a rent restoration order.
- Case Caption:
- Apolinar v. Massaquai
- Issues/Legal Principles:
- Tenant who takes a year to become current in rent is no longer entitled to remain in the
apartment.
- Keywords:
- nonpayment; default
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower court: Hon. Ava Alterman
- Date:
- December 14, 2001
- Citation:
- NYLJ, page 23, col 6
- Referred Statutes:
- none cited
- Summary:
- The nonpayment proceeding was commenced in May 2000 seeking rent from February
through May. Tenant defaulted on the return date and a default judgment was entered in July.
Thereafter tenant submitted numerous applications for orders to show cause many of which were
signed and tenant was given several extensions of time to pay. However tenant continued to
default and did not become current in rent until January 2001 and then only after the landlord
had repeatedly been forced to incur additional marshal fees. In view of tenant's many defaults,
the Appellate Term reversed and held that it was improper of the lower court to vacate the
warrant of eviction. A dissent at the Appellate Term noted that the landlord did not present its
claim of marshal fees in writing, but had landlord done so, the lower court could have ordered
these itemized fees to be paid by the tenant. This would have been a preferable result to evicting
the tenant.
- Case Caption:
- Lindsay Park Housing Corp. v. Grant
- Issues/Legal Principles:
- Decisions issued by Housing Preservation and Development (HPD) involving Mitchell
Lama apartments cannot be challenged in Housing Court.
- Keywords:
- Mitchell Lama; succession rights
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower court: Hon. A. Fisher-Rubin
- Date:
- December 14, 2001
- Citation:
- NYLJ, page 23, col 6
- Referred Statutes:
- 28 RCNY 3-02
- Summary:
- The apartment at issue is a Mitchell Lama unit. Proceedings involving Mitchell Lama
units are first litigated at the Department of Housing Preservation and Development which has
exclusive (i.e., sole) jurisdiction to determine succession rights claims for Mitchell Lama units.
In this case the landlord obtained a certificate of eviction from HPD against the tenant and the
occupant seeking succession rights. The tenant tried to challenge the HPD decision in Housing
Court, but the only forum for doing so is an Article 78 petition in Supreme Court.
- Case Caption:
- New York City Housing Authority v. Velazquez
- Issues/Legal Principles:
- Tenant in New York City Housing Authority unit cannot obtain ten-day postjudgment
cure in Housing Court after NYCHA hearing terminates her tenancy.
- Keywords:
- post-judgment cure; breach of lease; nondesireability
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower court: Hon. Bedford
- Date:
- December 14, 2001
- Citation:
- NYLJ, page 24, col 1
- Referred Statutes:
- RPAPL 753(4);
- Summary:
- The claim that a tenant is ineligible to continued housing in a NYCHA apartment is
determined solely by the Housing Authority, and its determination subject to review only in an
Article 78 proceeding in Supreme Court. Having obtained a decision against the tenant at the
Housing Authority, NYCHA then goes to Housing Court to obtain a warrant of eviction by
serving a thirty day notice. This housing proceeding is therefore not based on a breach of lease
and therefore the ten-day postjudgment cure provisions of RPAPL 753(4) are not triggered. The
Appellate Term held that a broad interpretation of RPAPL 753(4) would permit the Civil Court
to grant a cure period and to reinstate a tenancy despite if an appellate review upholds the
agency's determination that the tenant is no longer eligible for continuation. A cure in Housing
Court would contradict such appellate review.
- Case Caption:
- Remeeder H.D.F.C. v. Francis
- Issues/Legal Principles:
- Eviction of tenant is upheld on appeal because tenant's son engages in illegal drug
activity, even though dissent argues that no evidence exists to determine that tenant knew of or
acquiesced in the son's activity, and further argues that this element of proof must be necessary
for landlord to obtain an eviction.
- Keywords:
- illegal activity; nondesireability
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower court: Hon. Bedford
- Date:
- December 14, 2001
- Citation:
- NYLJ, page 24, col 2
- Referred Statutes:
- 42 USC 1437; 24 CFR 966.4; RPAPL 711(5)
- Summary:
- Tenant resides in a federally subsidized housing project. Congress has mandated that
leases for such apartments provide that certain criminal activity be grounds for termination of
the tenancy. The two applicable federal statutes both seem to make the tenant liable for the
conduct of their dependents and guests. But there is a controversy as to whether federally
subsidized tenants may be evicted without a determination that they knew of or acquiesced to
the criminal or drug related activity. In this case, the majority on appeal found that the record
establishes that the tenant did know of or acquiesce in her son's drug related activity and thus
the court properly awarded the landlord a final judgment of possession.
A strong dissent argued that the law requires that an element of the landlord's burden of
proof must be to show that the tenant in fact participated or acquiesced in the illegal business
which led to the eviction proceedings. The dissent opined that the level of knowledge does not
exist in this case in large part because the son's activity took place, not in the apartment, but
rather in another unit in the building four floors below. Even though the police recovered a
weapon and cocaine in that apartment, these illegal items were not found on the son's person.
The dissent adamantly found that there was no evidence that the tenant knew of or acquiesced
to her son's illegal activity and therefore should not be subject to eviction.
- Case Caption:
- 227 East 178 Realty Co LLC v. Morillo
- Issues/Legal Principles:
- Landlord cannot vacate a stipulation made three years ago wherein his counsel agreed
to offer the tenant's daughter a lease at a certain rent.
- Keywords:
- stipulations
- Court:
- Civil Housing Court, Bronx County
- Judge:
- Hon. Heymann
- Date:
- December 12, 2001
- Citation:
- NYLJ, page 20, col 2
- Referred Statutes:
- none cited
- Summary:
- In 1998, the landlord commenced a nonpayment proceeding against Luz Morillo, the
mother of the current tenant. In that case the daughter appeared pro se and represented that her
mother had left the apartment two years earlier. The daughter entered into a settlement wherein
the owner would "consider" giving her a lease in her name if she paid the rent. The daughter
failed to pay and a warrant was obtained. The daughter now obtained counsel and entered into
another agreement so that the warrant was stayed to give her sufficient time to pay the rent. The
agreement stated: "Pet. attorney to speak with pet. re new lease at 668.75 for 2 yr period
changing tenant from Morillo to [daughter]." The daughter obtained Jiggets relief, but the
income center was backlogged so that she could not pay timely. Her attorney brought another
order to show cause to stay the matter. In March the attorneys drafted an agreement to resolve
the matter wherein the landlord "promised to change lease" from the mother's name to the
daughter's upon payment. The landlord's acceptance of the Jiggett's rent was stated to be the
consideration for the lease to be put in the daughter's name.
The landlord's attorney now seeks to vacate the stipulation on grounds that he made a
mistake in stipulating to a monthly rent of $688.75 based upon a "miscommunication" with his
client. The lawyer claimed that he thought his client meant this sum would be the base rent and
that lawful increases would be allowed. The court refused to vacate the stipulation especially
since both parties were represented by counsel and the agreement occurred three years after the
initial settlement to set the rent took place. Further, the court regarded the attorney as having
the authority to bind his client. Any "miscommunication" should have been done months ago.
The court concluded, "He who snoozes, loses."
New York Law Journal, decisions for the week of December 3-7, 2001
(4 cases)
- Case Caption:
- Fannie Mae v. Lourdes
- Issues/Legal Principles:
- Tenant's 3 year lease was invalid as against a new owner of the building because the
lease was not recorded, and leases in excess of three years require recording to be valid as
against a future purchaser.
- Keywords:
- foreclosure, recording statutes
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Sikowitz
- Date:
- December 5, 2001
- Citation:
- NYLJ, page 23, col 3
- Referred Statutes:
- Real Property Law 291
- Summary:
- The owner of a two family house obtained title to the property through a foreclosure
action. The tenants reside in the second floor pursuant to a lease whose term is for three and
one-half years. The lease terminates on September 30, 2002. The new owner notified the
tenants that they had to vacate the apartment and when they did not do so, the owner
commenced a holdover proceeding. The tenants argue that the owner's purchase of the property
is subordinate to her tenancy rights because she has a lease. The owner argues that the lease
was not recorded and that the transfer of any interest in real property in excess of three years
must be recorded in order to supercede the rights of a subsequent purchaser.
The tenant argues that only a good faith purchaser may take advantage of the fact that a
lease is unrecorded and the owner is not a good faith purchaser. Since the property is a two-
family dwelling the owner should have at least inquired about the existence of a lease. The
failure to inquire negates the owner's status as a good faith purchaser. The court, however,
rejected the tenant's argument and held that a lack of inquiry is irrelevant. The tenant's rights
of possession are subordinate to the mortgage and are extinguished by the foreclosure sale.
Since the lease (a conveyance of over three years) was not recorded, it is void as against this
owner's subsequent purchase of the property. The court awarded the owner a possessory
judgment, but held that a hearing was needed to determine the market rent of the apartment.
Since the lease is void, the lease rent of $400 is no longer valid.
- Notes:
- Since Rent Stabilized leases can be no greater than two years, rent stabilized tenants do
not need to consider recording issues.
- Case Caption:
- Benabi Realty Management Co. LLC v. Vandoorne
- Issues/Legal Principles:
- Landlord's affidavit of military service fails to provide sufficient information to enable
the court to determine whether or not tenant is currently serving in the military, and therefore
landlord's request for a default judgment is denied.
- Keywords:
- military service; affidavit of service; defaults
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Schachner
- Date:
- December 5, 2001
- Citation:
- NYLJ, page 18, col 5
- Referred Statutes:
- Federal Soldiers and Sailors Civil Relief Act of 1940; 50 USCA 309(1); New York State
Military Law 309(1)
- Summary:
- A federal law requires that, before defaulting a defendant (e.g., a tenant) courts must
inquire if the defaulting party is in military service or not. Thus, process servers are required
to state in their affidavits of service of the legal papers whether or not an investigation was made
to ascertain whether the tenant is in the military. In this case, on August 23, 2001 the property
manager called the apartment and spoke with the tenant's roommate who allegedly replied that
the tenant was not in the military service or dependent on anyone in the military. As a result
of the events of September 11, 2001, the investigation was required to be repeated, but this time
the property manager could not locate the tenant nor the roommate, despite several attempts to
do so. The number of visits made to the apartment or the dates of the attempts to investigate
were not enumerated in the property manager's affidavit. Since the landlord is trying to obtain
a default judgment against the tenant, the court held that the affidavit is insufficient for the court
to reasonably conclude whether or not the tenant is in the military. No dates are supplied, no
attempt was made to speak with any neighbors, or co-workers or the superintendent. The
paucity of information led the court to deny the landlord's request for a default against the
tenant. The court noted that the landlord can obtain a tenant's military status by contacting the
military service directly.
- Notes:
- It seems that these days Housing Court is putting off cases for 90 days if the tenant is
currently serving in the military.
- Case Caption:
- Beaux Arts Realty II, LLC v. Council
- Issues/Legal Principles:
- Tenant who stipulates to cure date of alleged unlawful sublet, but fails to cure and
instead installs new unlawful sublet, is evicted from the apartment.
- Keywords:
- unlawful sublet, cure
- Court:
- Appellate Term, First Department
- Judge:
- lower Court: Hon. Laurie Lau
- Date:
- December 5, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- none cited
- Summary:
- The landlord brought an illegal sublet proceeding against the tenant. The matter was
settled by a stipulation wherein the tenant agreed to resume occupancy of the apartment by June
1, 2000. The evidence indicated that the tenant did not resume occupancy, but rather she sublet
the apartment to a new illegal subtenant in May, 2000 without landlord's written consent.
Further, the tenant charged more than double the legal rent. The lower court ordered the
tenant's eviction and the Appellate Term upheld.
On appeal the tenant's sole argument was that a new predicate notice relating to the new
illegal subtenancy was required. But the Court held that this argument had no merit because the
stipulation gave the landlord the right to restore the proceeding and litigate tenant's compliance
with the stipulation. The ongoing compliance of the stipulation was something the court was
permitted to monitor and thus this new breach fell under the purview of the court.
- Case Caption:
- Allerton Associates v. Paschall
- Issues/Legal Principles:
- Tenant who is evicted can be restored to possession upon a showing of sufficient good
cause.
- Keywords:
- post-eviction; restoration to premises.
- Court:
- Civil Housing Court, Bronx County
- Judge:
- lower Court: Hon. Gonzalez
- Date:
- December 5, 2001
- Citation:
- NYLJ, page 20, col 4
- Referred Statutes:
- RPAPL 749(3) & 747-a; Real Property Law 251; Civil Court Act 212
- Summary:
- The landlord brought a nonpayment proceeding and entered into an agreement with the
tenant in June wherein installment payments were to be made. In August, the tenant sought to
renegotiate the terms of agreement. Thereafter, in failing to abide by the new terms, the tenant
was evicted. The tenant sought to be restored to possession by a post-eviction order to show
cause. The court granted the motion for good cause: the tenant had $3,428.55 in DSS checks
representing all rent owed through October, is ill and is on regular dialysis, and two days later
was scheduled to be heard at a worker's compensation hearing relating to lumbar and spinal
injuries sustained in a work related accident. The Court directed that the tenant be restored to
the apartment for good cause dependent on the tenant paying $4,937.54 representing all rent
through October, $700 legal fees, $675 moving fees and $125 marshal fees.
Thereafter the tenant returned to court on a second post-eviction show cause alleging that
the owner and rejected their tender of the rent and fees. The tenants remained out of possession
pending the hearing of the motion and landlord's cross-motion to reargue the issue. At oral
argument the landlord took the position that the court did not have the authority to restore the
tenant to possession. But the court cited case law showing that where sufficient good cause
exists, courts are allowed judicial discretion on this issue, and in this court's opinion sufficient
cause exists to allow the tenant to be restored to possession upon payment of the arrears and
costs.
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