Housing Court Decisions February 2001
Editors: Colleen F. McGuire, Esq., Chief Editor
Robert E. Sokolski, Esq., Catherine Grad, Esq. and David Weinraub, Esq.
Return to current month
Return to main index
Return to 2001 index
New York Law Journal, decisions for the week of
February 26 to March 2, 2001 (5 cases)
- Case Caption:
- Sori-Goalya Realty LLC v. New York City Loft Board
- Issues/Legal Principles:
CPLR 213-a four year statute of limitations for rent
overcharge does not apply to Loft Board action to rent adjustment
application and Loft Board determinations of overcharge.
- Keywords:
Loft Board; rent adjustment; Rent Regulation Reform Act
of
1997.
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Solomon
- Date:
- February 28, 2001
- Citation:
- NYLJ, page 19, col 6
- Referred Statutes:
CPLR 213-a; MDL 280; 29 RCNY 1-01; 29 RCNY 1-06.1(c);
RRRA
46(1); MDL 282; RSL 26-516; MDL 286(3); 29 RCNY 206
- Summary:
- In 1998, tenant filed an application with the Loft Board
seeking a rent adjustment, claiming that illegal rent surcharges
were charged by her landlord in 1985, 1986 and 1987, and as a
result, her monthly rent was $113.17 higher than specified in her
lease. The Loft Board's administrative law judge ("ALJ") set the
legal maximum monthly rent and calculated that the tenant was
overcharged a total of $15,349.47. The Loft Board subsequently
adopted the ALJ's report and recommendation.
The landlord filed an Article 78 proceeding claiming that
the
Rent Regulation Reform Act of 1997 ("RRRA") and the RRRA's
creation
of the four year statute of limitations for rent overcharge
complaints set forth in CPLR 213-a barred the tenant's belated
1998
challenge to illegal surcharges in 1985, 1986 and 1987.
The Court disagreed, finding that neither the 1997 RRRA or
CPLR 213-a applied to proceedings before the Loft Board. First,
the Court noted that the CPLR is generally applicable to civil
proceedings, but not proceedings before an administrative body. (Although the DHCR is an administrative body, the agency may determine overcharges and is subject to the CPLR through the Rent Stabilization Code and its amendments).
Thus, the RRRA's amendment to CPLR had no effect upon the Loft
Board. Second, the Court credited the Loft Board's argument that
their legislative goals would be compromised, as it often takes
many years to convert commercial premises to residential
premises,
and a four year statute of limitations would be unrealistic, in
view of the unique nature of the Loft Board's responsibilities.
Moreover, the Court found that the Loft Law and Rent
Stabilization
laws, read together, did not require a contrary result, as the
Loft
Law governs units before they are subject to rent stabilization.
Finally, the Court found that the calculations employed by the
Loft
Board had a rational basis, and therefore, the Court denied and
dismissed the landlord's Article 78 Petition.
- Case Caption:
- River York Stratford, LLC v. Pelletier
- Issues/Legal Principles:
Appellate Term, First Department affirms dismissal of
violation of occupancy agreement holdover proceeding, and remands
for consideration of tenants' attorneys fees.
- Keywords:
- occupancy limitations; roommate
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Timmie Elsner
- Date:
- February 28, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
RPL 235-f
- Summary:
Landlord brought holdover proceeding against tenant,
alleging tenant violated limitation of occupancy provision of
lease
agreement, which limited occupancy to the tenant and member of
the
tenant's immediate family. The Housing Court dismissed, as such
a
provision is prohibited under Real Property Law ("RPL") 235-
f(2).
On appeal the Appellate Term, First Department rejected the
landlord's attempts to use RPL 235-f to limit the number of
roommates in the apartment, as RPL 235-f is remedial in nature
and
cannot be used to restrict the number of occupants. The
Appellate
Term modified the Housing Court's decision by granting tenant's
application for attorneys fees and remanded for consideration of
such award.
- Case Caption:
- River York Stratford LLC v. Pelletier
- Issues/Legal Principles:
Appellate Term affirms dismissal of illegal sublet where
tenant moved in with sublessees as roommates after sublet period.
- Keywords:
- sublet; roommate
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Jerald R. Klein
- Date:
- February 28, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
RPL 226-b, RPL 234
- Summary:
Landlord brought illegal sublet holdover proceeding
against
tenant, after authorized period of sublet had expired. Tenant
claimed that he and his family moved back into apartment with his
prior subtenants as roommates after the sublet had expired.
After
trial, Housing Court dismissed the action, finding the tenants'
testimony credible. On appeal, Appellate Term, First Department
affirmed, finding no basis for the claim of illegal sublet, as
the
tenant and his family returned to the premises after the sublet
period and thereafter lived there full time. The Court
emphasized
that the landlord failed to prove by a preponderance of the
evidence that the subtenants remained as the sole occupants of
the
apartment following the sublease term. Moreover, the Court
recognized that RPL 226-b does not prohibit a roommate
relationship
with a subtenant after expiration of the subtenancy. The Court
noted the tenant sent a pre-litigation letter to the landlord's
management, acknowledging the relationship (i.e. this was not a
"relationship" invented for purposes of litigation). The Court
modified the Housing Court's refusal to grant tenant his
attorney's
fees, although tenant was represented by a firm in which the
roommate/former subtenant was a named partner, and remanded for
such award.
- Case Caption:
- Benroal Realty Associates, LP v. Alexander
- Issues/Legal Principles:
Tenants entitled to new trial in Holdover proceeding
alleging breach of use restriction provision of lease, where
tenants attempted to prove landlord knew they would make
residential use of premises.
- Keywords:
use restriction; commercial tenancy
- Court:
- Appellate Term, Ninth and Tenth Departments
- Judge:
- lower court: Hon.L. Siano
- Date:
- March 1, 2001
- Citation:
- NYLJ, page 21, col 3
- Referred Statutes:
- none cited
- Summary:
District Court, Nassau County rendered final judgment
against tenants, finding their residential use of premises, which
was intended for commercial use, violated lease agreement. The
District Court excluded the tenants' testimony and relied upon
the
use restriction clause in the lease agreement executed between
the
parties. The Appellate Term reversed and granted tenants a new
trial, recognizing that the issue in this holdover proceeding was
whether the landlord or its predecessor in interest knew of and
acquiesced in the tenants' residential use of the premises. The
Court also noted that while a use restriction is a factor to be
considered, it is not determinative, particularly where the
tenants
offered to prove their landlord induced them to relocate from
their
rent regulated apartment upstairs so they could expand their day-
care service they were operating for the children of the
building.
- Case Caption:
- New York City Housing Authority v. Jones
- Issues/Legal Principles:
New York City Housing Authority tenant not entitled to
new
trial to contest illegal use/drug holdover, despite tenant's
claim
of forced choice between Fifth Amendment rights and loss of
apartment.
- Keywords:
drug holdover; fifth amendment; NYCHA; criminal
proceeding
- Court:
- Appellate Term, Second and Eleventh Departments
- Judge:
- lower court: Hon. J. Rodriguez
- Date:
- March 1, 2001
- Citation:
- NYLJ, page 20, col 6
- Referred Statutes:
RPAPL 711(5); RPL 231(1)
- Summary:
New York City Housing Authority brought illegal use
holdover proceeding against tenant, alleging that execution of
search warrant recovered illegal drugs from apartment and that
tenant, and others who were acting with her knowledge, permission
or acquiescence, were using the premises and occupying them
illegally for storage, packaging and/or sale of controlled
substances. The tenant claimed that she was unfairly forced to
choose between preserving her fifth amendment rights against self
incrimination in a pending criminal matter and losing the summary
proceeding. The Housing Court denied the tenant's motion to
vacate
the final judgment in favor of the landlord and set the matter
down
for a new trial.
On appeal, Appellate Term unanimously affirmed, finding that
the tenant had already been given an opportunity to testify
concerning her lack of knowledge of the drug trade in her home or
to call character witnesses, but chose not to. The Court further
found that she was not entitled to a stay of the holdover
proceeding even though she might have been forced to choose
between
preserving her fifth amendment rights against self incrimination
or
losing the holdover proceeding. The Court also rejected the
tenant's belated claims of lack of knowledge based upon the facts
revealed in the record.
New York Law Journal, decisions for the week of February 19-23,
2001 (3 cases)
- Case Caption:
- Jones Street Associates v. Judith Keebler Beretta
- Issues/Legal Principles:
- Attorney-juror in trial of holdover proceeding who wrongly instructed other jurors on
law did not engage in juror misconduct.
- Keywords:
- juror misconduct, succession rights
- Court:
- Appellate Division, First Department
- Judge:
- lower court, Hon. Shirley Kornreich
- Date:
- February 20, 2001
- Citation:
- NYLJ, page 24, col 2
- Referred Statutes:
- none cited
- Summary:
- Landlord commenced holdover proceeding against tenant following her husband's death.
Tenant claimed she had a right of succession. At trial, the jury determined that tenant had
resided in the apartment as her primary residence for at least two years prior to her husband's
death. Landlord moved to set aside the verdict, upon learning that one of the jurors, an
attorney, had engaged in misconduct. Specifically, that the attorney-juror had wrongly instructed
his fellow jurors on the law. The Appellate Term reversed "finding that the attorney-juror's
reliance on his life experience and professional background, made known during voir dire, was
'outside the realm of impermissible influence.'"
Additionally, the Appellate Term noted that there was "an absence of persuasive evidence
that the jurors failed to follow Civil Court's instructions in reaching their verdict." The
Appellate Division upheld the Appellate Term's determination that the attorney-juror's statements
did not amount to misconduct.
- Case Caption:
- PIM Consultants Corp. v. Santos
- Issues/Legal Principles:
- In a narcotics holdover proceeding, judgment in favor of tenant when tenant has no
knowledge of unlawful activity in her apartment.
- Keywords:
- illegal usage; knowledge
- Court:
- Civil Housing Court, Bronx County
- Hon. Roman
- Date:
- February 21, 2001
- Citation:
- NYLJ, page 25, col 5
- Referred Statutes:
- RPAPL 711[5], RSC2524.3[d]
- Summary:
- Landlord commenced a holdover proceeding against tenant based upon allegations that
tenant conducted or allowed the apartment to be used for illegal purposes.
At a bench trial it was determined that on July 13, 2000 several members of the New
York City Bronx Narcotics Unit executed a search warrant for the subject premises. Two
hundred glassine envelopes of heroin were recovered from the pocket of a pair of jeans hanging
in the hall closet. At the time of the search, tenant was asleep in the rear bedroom. Tenant was
arrested and charged with criminal possession of a controlled substance in the 3rd degree.
Several hours later, tenant's grandson was also arrested and charged.
Approximately one week later, tenant's son came forward and admitted that the drugs were
his. The charges against tenant and her grandson were subsequently dismissed.
Tenant testified that she had no knowledge that her son had stored drugs in her apartment
or that he had been involved in drug trafficking. She stated that her son routinely visited her,
sometimes on weekends, but not for extended periods of time. Her son did not reside in her
apartment but rather, elsewhere with his father.
Tenant's testimony was corroborated by that of her son who stated that he resided with
his father and that he did not have a key to his mother's apartment. Additionally, tenant's son
testified that he stored drugs in his mother's apartment without her consent or knowledge and
that he did so when no one was looking. Tenant's son also testified that no drugs were ever sold
from within the apartment or building.
RPAPL711[5] provides that a tenant may be removed from an apartment based upon
conducting illegal activities therein.
RSC2524.3[d] allows landlord to sever the landlord tenant relationship if tenant permits
the premises to be used for illegal or immoral purposes. Landlord has the burden of establishing
its allegations by a preponderance of the evidence. However, landlord does not need to establish
that tenant was directly involved with the activity, only that tenant knew and/or acquiesced to
the activity.
In this case it is undisputed that the apartment was used for illegal activity. It is also
undisputed that tenant was not involved directly or indirectly in storing the drugs in her
apartment. The issue is whether tenant knew or should have known of the illegal activity.
The Court relies on various factors in determining this issue: knowledge of prior drug
arrests/activity or addiction, a tenant pleading/admitting guilt to attempted possession of
narcotics (evidencing direct involvement), and overwhelming proof of unlawful narcotic activity
conducted in the premises.
The Court determined that none of the above-mentioned factors existed in this case, and
thus that landlord failed to meet its burden of establishing that tenant knew or acquiesced to the
illegal activity.
- Case Caption:
- Davidson 1992 Associates v. Corbett
- Issues/Legal Principles:
- Resident in a HUD Section 8 apartment may be a "non-traditional family member" of
decedent tenant of record for purposes of succession rights, but she cannot satisfy the Section
8 laws which do not recognize non-traditional family relationships as a ground for succeeding
to the aparment.
- Keywords:succession rights, non-traditional family member, licensee
holdover proceeding
- Court:
- Civil Housing Court, Bronx County
- Judge:
- Hon. Howard Malatsky
- Date:
- February 21, 2001
- Citation:
- NYLJ, page 25, col 6
- Referred Statutes:
- 24 CFR 982.551
- Summary:
- The subject apartment was leased pursuant to a HUD-administered 8 housing program
between 12/91 and 8/00 to Alfonso Perez who is deceased. The subsidy remained in effect so
long as Mr. Perez was a tenant in the subject apartment and required yearly recertifications.
In 1995 tenant Corbett began to reside with Mr. Perez in the capacity of his home health
attendant. At some point, tenant Corbett and Mr. Perez developed a personal relationship
however, during the time she occupied the apartment she was listed on Mr. Perez's
recertifications as "live-in attendant." On the 2000 recertification tenant listed herself as
"spouse." Landlord rejected the lease before it took effect.
At trial, tenant denied an employer/employee relationship but was unable to produce any
bank statements, utility bills, etc. evidencing that she resided in the apartment. Tenant Corbett
and Mr. Perez were never married. Tenant's attorney argues that tenant should be deemed a
"non-traditional family member" pursuant to the test articulated in Braschi v. Stahl. Landlord
claims that Braschi does not apply because the apartment is not subject to rent control or rent
stabilization.
The Court of Appeals held in Evans v. Franco that Federal law controls and the issue is
whether or not the tenant is entitled to continuation of the subsidy under federal law.
The apartment at issue is operated by landlord pursuant to agreement with HUD. The
federal regulations are contained in 24CFR 982.551 which provides, "the family must request
HA approval to add any other family member as an occupant of the unit. No other person...
may reside in the unit (except for a foster child or live in aide as provided in paragraph (h)(4)
of this section)."
With regard to live in aides, the HUD public housing occupancy handbook states, "A care
attendant would not be listed on the lease and could not become a family member for continued
occupancy purposes. The income of a care attendant would not be counted in determining the
family's income."
The Court states that the clear language of the regulation indicates that home aides are
a "separate class of occupants from 'family members'." However, in this case tenant states that
there exists a question of fact as to the true nature of tenant's relationship with the decedent.
Tenant makes a three-part argument: (1) she meets the Braschi criteria for succession rights as
a "non-traditional family member" (2) Federal law does not preempt applying Braschi (3) The
holding in Evans v. Franco is not to the contrary.
The Court agreed that tenant Corbett meets the criteria of Braschi and can be considered
a "non-traditional family member." However the Court notes that the holding of Braschi was
never codified in the federal statute and therefore does not apply to federally subsidized Section
8 housing. Further, the Court finds there is a conflict between tenant's arguments and the
language of the HUD Public Housing Occupancy Handbook which establishes that live in aides
cannot succeed to tenancy rights. Accordingly, the Court held that the "Section 8 regulations
supercede any contrary state law."
New York Law Journal, decisions for the week of February 12-16,
2001 (4 cases)
- Case Caption:
- IG 2nd Generation Partners v. Ficarotta
- Issues/Legal Principles:
- Tenant wins succession rights to his mother's rent controlled apartment, where he served
as her caretaker, and alternate apartment he maintains in building is only for storage and
evidence shows he did not reside with his wife who lived with her adult son.
- Keywords:
- succession rights; SCRIE
- Court:
- Appellate Term: First Department
- Judge:
- lower court: Hon. Douglas Hoffman
- Date:
- February 14, 2001
- Citation:
- NYLJ, page 29, col 3
- Referred Statutes:
- New York City Rent and Evictions Regulations 2204.6(d)(1)
- Summary:
- Landlord brought a holdover proceeding against the occupant after his mother, the rent
controlled tenant died. Occupant proved at trial that he resided with and served as the primary
caretaker of his infirm mother for at least two years before her death. His documentation
confirmed his residence at the subject apartment. Landlord "presented no witnesses with any
personal knowledge" to controvert occupant's documented succession claim or overcome the
occupant's "sincere testimony." The landlord tried to show that occupant lived in another
apartment which he rented in the building. However, this unit was proven to be used for storage
purposes. The tenant's wife lived nearby but she occupied her apartment with her adult son.
Affirming the trial court's decision, the Appellate Term held that "the evidence permitted a
finding that tenant and his wife established two separate residences for convenience, if not
necessity." The Appellate Term also held that simply because the occupant's mother failed to
report him on the Senior Citizen Rent Income Execution (SCRIE) filing, "cannot impair
respondent's own demonstrated entitlement to succession."
- Notes:
- Disclosure: McGuire & Zekaria represented the occupant at trial and in the appeal. The
Appellate Term neglected to note that Mr. Ficarotta is a senior citizen himself and therefore only
had to prove contemporaneous co-occupancy with his mother for one year, not two years.
- Case Caption:
- 142 East 49th Street Owners Corp. v. Stewart
- Issues/Legal Principles:
- Tenant's ConEdison account shows minimal usage at the apartment which helped support
a finding of nonprimary residency against the tenant.
- Keywords:
- nonprimary residence
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Laurie Lau
- Date:
- February 16, 2001
- Citation:
- NYLJ, page 27, col 1
- Referred Statutes:
- none cited
- Summary:
- At trial during this holdover proceeding based on nonprimary residence, the trial court
concluded that the tenant did not maintain "an ongoing substantial, physical nexus with the
controlled premises for actual living purposes." The record shows that the 64-year old primarily
resides in East Hampton where she lives with her life partner in a house co-owned by them and
where she works part-time. Tenant's social security checks are deposited directly into her bank
account in East Hampton. Her electrical usage at the New York City apartment was minimal.
The Appellate Term upheld the trial court's decision to award possession of the apartment to the
landlord.
- Case Caption:
- Benroal Realty LP v. Nassau County Rent Guidelines Board
- Issues/Legal Principles:
- Nassau County Rent Guidelines Board cannot extend SCRIE benefits (i.e., rent increase
exemptions) to non-eligible senior citizens.
- Keywords:
- SCRIE
- Court:
- Supreme Court, Nassau County
- Judge:
- Hon. Franco
- Date:
- February 16, 2001
- Citation:
- NYLJ, page 31, col 6
- Referred Statutes:
- Real Property Tax Law 467-b; Emergency Tenant Protection Act 4(b); Unconsolidated
Laws 8624(b); Real Property Law 467(b)
- Summary:
- Plaintiffs are owners of buildings housing rent regulated tenants and brought an action
seeking to invalidate a portion of Order No. 34 passed by the Nassau County Rent Guidelines
Board ("Board"), adopted June 24, 1999. This order provides for a 1.5% increase in rent for
a one-year renewal lease and 3.5% for a two-year renewal for all tenants having Senior Citizen
Rent Increase Exemptions (SCRIE). The SCRIE program requires landlords to take property
tax abatements rather than increased rent from senior citizens, defined as 62 years and older with
an income of less than $20,000 per year.
Plaintiffs seek to invalidate that portion of Order 34 which provides for a 1% reduction
from the regular county rent guidelines in the rent increase for all tenants and not just eligible
senior citizens in the Villages of Great Neck Plaza and Hempstead. They argue that there is no
rational basis to explain how the adoption in a municipality of a SCRIE program for eligible
seniors only should result in a rent reduction of 1% for all tenants in that municipality, even for
those tenants who are not even eligible for the SCRIE program. Although landlords are
reimbursed for rent reductions by the municipalities taken by SCRIE seniors, they are not
reimbursed for the reductions taken by all tenants, even non-SCRIE tenants. The minutes of
the Board indicate that Order 34 was passed to give municipalities a strong incentive to pass the
SCRIE programs and was based on the village's concern for senior citizens.
The court noted that the Board's authority derives from the ETPA which grants it the
right to set rent increases pursuant to the procedures expressly set forth in the ETPA. Senior
citizen rent affordability is a legitimate concern for the Board and there is no question that rent
adjustments may be varied and different within the jurisdiction of the Board. However, the
SCRIE program is a creature of state legislation. The eligibility requirements are clear: 62 years
and older and income less than $20,000 per year. The Court ruled that the Board has no
statutory or inherent authority to extend the state statutory benefits of SCRIE for eligible seniors
to noneligible seniors generally. Even if well intentioned, such action goes beyond the authority
of the Board. The effect of the Board's rollback is that for SCRIE-eligible seniors the rent
increase will be returned to landlords and for all other tenants the landlords lose a 1% increase.
The court held: "The Board simply does not have the power to make the landlords pay for the
adoption of SCRIE and its attempt to do so must be vacated as arbitrary and capricious."
- Case Caption:
- Romero v. Martinez
- Issues/Legal Principles:
- Tenancy is terminated of public housing tenant who agreed to permanently exclude her
son's presence in apartment (after he assaulted other tenant) when Housing Authorities allegedly
discovered the son at the apartment in a surprise visit.
- Keywords:
- nondesireability; stipulations
- Court:
- Appellate Division First Department
- Judge:
- lower court: Hon. Edward Lehner
- Date:
- February 16, 2001
- Citation:
- NYLJ, page 21, col 3
- Referred Statutes:
- none cited
- Summary:
- The tenant has lived in a federally funded public housing unit for 23 years where she
raised her four children. In 1995, one of her sons, Jimmy, assaulted another tenant in that
tenant's apartment causing physical injury. The Housing Authority charged the tenant with
nondesirability and breach of rules and regulations and scheduled a termination hearing. Instead
of proceeding with the hearing (testimony and evidence), she agreed in writing that Jimmy would
not be permitted to reside in or even visit her at the apartment. Her tenancy was also placed
on probation for one year conditioned on Jimmy's continued absence from the apartment.
The Housing Authority held four unscheduled visits and Jimmy was not found.
However, on November 17, 1997, the Authority went and found a young man in bed who
identified himself as Eladio (another son). When asked his birthday, he said July 14, 1967
which is Jimmy's birthday. This prompted the Authority to bring new charges against the tenant
for violation of the permanent exclusion and the Authority sought to terminate her tenancy. At
the hearing the Housing investigator was shown Jimmy's photograph and testified that it was
Jimmy who answered the door on November 17, 1997. The tenant said Jimmy lived elsewhere,
and produced a notarized statement from Eladio that it was he who was present on November
17th. The daughter testified that Jimmy lived next door to her in Long Island and was there on
November 17th. The hearing officer recommended termination of tenancy, although his decision
acknowledged that photographs of the two boys revealed that they looked closely similar and that
one could be mistaken for the other. However, he made a negative inference because the tenant
did not produce either son to testify. The Authority adopted the hearing office's decision to
terminate and did so prompting the tenant to bring an Article 78 challenging the termination of
her tenancy. She lost and is now appealing the termination of her tenancy to the Appellate
Division.
The court ruled that the Housing Authority satisfied its burden of proof. The tenant
could then come forward with her version to refute the landlord's case, but this did not mean
that the burden of proof switched to the tenant. Rather, it simply reflected her consequent duty
to come forward with evidence to the contrary. The Appellate Division agreed with the lower
court that the tenant's evidence was insufficient to rebut the landlord's evidence. The only
evidence directly contradicting the finding that Jimmy was found in the apartment was the
notarized statement of Eladio, but a piece of paper cannot be cross-examined so his testimony
was less compelling.
More significantly, the tenant now takes the position that the stipulation is unenforceable
to the extent that it purports to prohibit Jimmy from visiting the apartment, so that the proof that
Jimmy was visiting her was insufficient to demonstrate a violation of the stipulation. Tenant was
trying to establish that the stipulation should be interpreted to mean that she would be deemed
in violation of its terms only if Jimmy took up residence live with her. The Appellate Division
disagreed. The Court reviewed other cases which involved "no visitation" clauses and whose
courts determined that such clauses were unreasonable and an impermissible burden. The Court
held that although this might be true if the tenant were expected to monitor the family member's
presence throughout a housing complex, common lobby or other tenant's apartments. However,
in this case the tenant is only responsible for the permanent exclusion of her son from her own
apartment and this is certainly within her capability and she would in all likelihood know
whether her son was present or not in her apartment. Hence, the Court refused to set aside the
stipulation of permanent exclusion of Jimmy from the apartment and upheld the termination of
the tenant's tenancy.
New York Law Journal, decisions for the week of February
5-9, 2001
- Case Caption:
- Lipschitz v. Garfinkel
- Issues/Legal Principles:
- A person remaining in a house after it is sold is considered a
tenant at will of the new owner, necessitating a 30-day notice of
termination prior to commencing a holdover proceeding.
- Keywords:
- closing, tenant at will
- Court:
- Civil Court of the County of Rockland, Town of Ramapo
- Judge:
- Hon. Etelson
- Date:
- February 7, 2001
- Citation:
- NYLJ, page 31, col. 3
- Referred Statutes:
- RPL section 228
- Summary:
- Real Property Law section 228 states that a tenancy at will or by
sufferance, however created, may be terminated only upon service of a
thirty-day notice. This summary holdover proceeding was commenced on an
occupant following the service of a ten-day notice to vacate, as opposed
to the thirty-day notice. Landlord's justification for the use of the
shorter ten-day notice is that it claimed that the occupant was merely a
licensee of the house. Occupant was in the house because he was the
brother of the former owner, and had remained in the house after the
house was sold. Court examined the case law and held that the occupant
more resembled a tenant at will than a licensee. "'Where one enters
upon the land by permission of the owner, without reservation of rent or
designation of tenure, he is by implication of law, a tenant at will,
and the conventional relationship of landlord exists between the
parties.'" Since the occupant entered the premises with the permission
of the former owner, he was found to be a tenant at will and a 30-day
notice was required.
- Case Caption:
- Bernstein v. Eastwood Towers Corp.
- Issues/Legal Principles:
- DHCR has the right to remit a case back to its own administrative
processes for reconsideration of its decision.
- Keywords:
- DHCR, reconsideration, income recertification
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Marilyn Shafer
- Date:
- February 7, 2001
- Citation:
- NYLJ p. 27, Col. 2
- Referred Statutes:
- RSC section 2529.9
- Summary:
- Tenant's apartment was deregulated because he allegedly failed to
answer a 60-day demand for income information. Tenant, who is 82 years
old and has resided in the apartment since 1993, argued that he never
received the notice. Tenant also claimed that his income is not high
enough to qualify for deregulation of his apartment. DHCR moved for
remittance of the case back to the agency for reconsideration. Court
found that DHCR had the right to remit the proceedings back to its
administrative processes for reconsideration. RSC section 2529.9
permits DHCR to modify or revoke its own order, upon application of a
party or sua sponte. However, tenant's action against DHCR is not
dismissed, but merely stayed until DHCR files its final
determination.
- Case Caption:
- Bunn v. Sayles
- Issues/Legal Principles:
- Dispute between "landlord" and "tenant" as to who inherits the property must be decided in Surrogate's Court.
- Keywords:
- deed, joint tenancy, tenancy by the entirety, tenancy in common
- Court:
- Housing Court, New York County
- Judge:
- Hon. Howard Malatsky
- Date:
- February 7, 2001
- Citation:
- NYLJ p. 28, Col. 3
- Referred Statutes:
- EPTL 6-2.2
- Summary:
- The deceased owner of the property lived with Constance Bunn,
although they were not married. After the owner's death, Bunn commenced
a licensee holdover proceeding, claiming ownership of the property and
seeking to evict the decedent's daughter. Bunn claimed that the deed,
which purports to transfer the property from the Keith N. Matthews, Sr.
to Keith N. Matthews, Sr. and Constance Bunn, 'surviving tenants by the
entirety of Keith Matthews,' created a joint tenancy in which Bunn
succeeded as the owner of the entire property after Mr. Matthews' death.
(The words just quoted were scribbled in handwriting on the deed.)
Court found that the language of the deed did not create a joint
tenancy, but instead a tenancy in common. EPTL 6-2.2(a) provides that a
joint tenancy is created only if the instrument expressly declares it.
Since the deed did not expressly declare that the tenancy to be a joint
tenancy, the court found that none was created. The handwritten words
referring to a "tenancy by the entirety' were insufficient, because a
tenancy by the entirety is only available between husband and wife.
That being the case, the daughter occupying the apartment may have
rights to her father's estate. Thus, the court dismissed the holdover
proceeding with leave for Bunn to renew it after the Surrogates Court
has ruled on the interests of the parties' claims in Matthews
estate.
- Case Caption:
- 1325 Parkway Estates LLC v. Ellis
- Issues/Legal Principles:
- Once rent is restored after rent reduction order, landlord is entitled to prospectively charge the full rent that could have been charged had there been no freezing of the rent.
- Keywords:
- rent reduction order
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower court: Hon. J. Baynes
- Date:
- February 9, 2001
- Citation:
- NYLJ p. 30 col. 6
- Referred Statutes:
- Administrative Code of City of New York 26-514; RSC 2523.4
- Summary:
- The tenant filed a rent reduction order with the DHCR and the owner eventually had the rent restored (presumably after having made the repairs which led to the rent's reduction). The Appellate Term held that once the rent restoration order came into effect, the owner was entitled to prospectively charge the full rent that could have been charged had there been no freezing of the rent, including all lawful interim increases.
- Notes:
- Although the owner can charge the full rent, plus increases, once a rent restoration is served, the owner is not entitled to collect the back rent increases (as if they were arrears), or else that would defeat the purpose of the rent reduction order.
New York Law Journal, decisions for the week of January 29 - February 2, 2001
(8 cases)
- Case Caption:
- East 82nd Realty LLC v. Schwartz
- Issues/Legal Principles:
- Technical defect in landlord's petition does not warrant dismissal of holdover
proceeding.
- Keywords:
- amendment; petition; pleadings
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Bruce Scheckowitz
- Date:
- January 31, 2001
- Citation:
- NYLJ, page 26, col 1
- Referred Statutes:
- CCA 909; CPLR 103(b), 404(a)
- Summary:
- In a holdover proceeding landlord served an amended petition during the pendency of
tenant's motion to dismiss. The lower court dismissed the petition because the initial petition
neglected certain words in the pleadings: respondents continue in possession of the apartment
after the expiration of the term of their written lease. The amended petition contained the
words. The Appellate Term reversed the decision, holding that a petition which contains
pleading infirmities may be readily corrected by amendment (i.e., done without delay) and does
not render the proceeding jurisdictionally defective. This is not a case where the status of the
apartment or other pleadings have been fundamentally misrepresented. The landlord also did
not need to serve a motion seeking the court's request to amend the petition because amendment
was available as of right. The appellate court reinstated the petition.
- Case Caption:
- Edwards v. Chavannes
- Issues/Legal Principles:
- Landlord is not entitled to possessory judgment where the holdover proceeding was
settled and the case postponed solely to determine amount of rent owed; tenant not entitled to
an abatement during the period abatement claims were waived in the stipulation.
- Keywords:
- stipulation; abatement; waiver; judgment
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower court: Hon. D. Watrous
- Date:
- February 2, 2001
- Citation:
- NYLJ, page 29, col 5
- Referred Statutes:
- RPL 235-f
- Summary:
- The landlord and tenant entered into a stipulation in a holdover proceeding which
provided that the holdover claims were settled (discontinued) and the matter was postponed for
a hearing to determine the number of months for which outstanding rent was owed. Such a
stipulation did not justify an award to landlord of a possessory judgment. The Appellate Court
struck down the possessory judgment awarded to landlord. The Appellate Term refused to set
aside tenant's waiver in the stipulation of her claim for an abatement of rent. The claim was
for money only and not an agreement prospectively to accept substandard living conditions. A
waiver of a claim for money only, even if the claim arises from a breach of the warranty of
habitability is not precluded when made as part of a stipulation settling a bona fide dispute.
- Case Caption:
- Pomeranz v. Tauber
- Issues/Legal Principles:
- Tenant's lawsuit against landlords on grounds of fraud is not dismissed and tenant may
proceed forward on his claim that landlords misrepresented to tenant their owner occupancy
claims and induced tenant to surrender the apartment, yet landlords did not occupy the apartment
for the requisite three years, but rather unlawfully installed a new tenant.
- Keywords:
- owner occupancy; fraud; treble damages; misrepresentation
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Alice Schlesinger
- Date:
- January 29, 2001
- Citation:
- NYLJ, page 24, col 6
- Referred Statutes:
- 9 NYCRR 2106.1(d); Administrative Code of City of New York 26-413(d)(1)
- Summary:
- Tenant sued his landlords alleging fraud and sought to rescind an agreement the parties
made wherein the tenant vacated and surrendered his rights to the apartment in reliance on the
landlords' representation that they intended to occupy the apartment for personal use.
Apparently, the owner did not use the apartment for owner occupancy purposes for at least three
years as required by the statute. The lower court denied the defendant landlords' motion to
dismiss the complaint and permitted the tenant to amend the complaint to include the newly
installed tenant as a party-defendant. The Appellate Division upheld the lower court's refusal
to dismiss the tenant's complaint for fraud. The landlords had served a termination notice on
owner occupancy grounds and made oral representations to the tenant about their personal use
of the premises. The Appellate Division ruled: Such specific allegations of a false present
intent not to act as represented are sufficient to state a cause of action for fraud. Since the
landlords never obtained a certificate of eviction from the DHCR (necessary in an owner
occupancy case commenced to recover a rent controlled apartment), the Court ruled that tenant
could not make a claim for treble damages or attorney's fees since the tenant's surrender was
voluntary (albeit under fraudulent pretenses) and not due to a court or administrative order of
eviction.
- Case Caption:
- Solow Management Corp. v. Reincke
- Issues/Legal Principles:
- Tenant is liable for 8 months of rent representing the period from when tenant broke the
lease by leaving one year early until the time landlord was able to re-rent the apartment to a new
tenant.
- Keywords:
- abatement; breach of warranty of habitability; constructive eviction
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Carol Arber
- Date:
- January 29, 2001
- Citation:
- NYLJ, page 26, col 1
- Referred Statutes:
- CPLR 3025
- Summary:
- Landlord sued tenant for rent in a plenary action. Defendant tenant had ceased paying
rent because of leaks from a living room skylight and ceiling and the loss of air conditioning
during the summer of 1995 in the master bedroom of a two-bedroom luxury duplex apartment
of roughly 2000 square feet. Tenant's 36-month lease commenced August 1, 1993, but he
moved out in August, 1995, about one year before the lease was to expire on July 31, 1996. The
landlord re-rented the apartment on April 2, 1996. The lower court awarded tenant an
abatement of $3,000 per month for the eight-month period from December 1994 to July 1995.
The Appellate Term held that the abatement was excessive and that the conditions complained
of warranted a rent abatement no greater than 15% of the rent or $963.00 per month for the
breach of warranty of habitability. The trial court's finding that the tenant was constructively
evicted from April 1995 thereby excusing his remaining contractual liability under the lease had
no basis, according to the appellate court. The tenant did not interpose a counterclaim or
defense for constructive eviction, nor was this legal position established. The water leaks and
defective air condition affected only a small portion of tenant's living space and did not justify
his abandonment of possession of the entire apartment. The Appellate Division increased
landlord's monetary award for rent from $1,819.06 to $49,587.63.
- Notes:
- When a tenant breaks the lease and leaves early, usually a landlord will have to prove
that it mitigated its damages, i.e., that the landlord made reasonable efforts to find a new
tenant. Here eight months elapsed from the time the tenant left until the apartment was re-let.
The case does not say what efforts, if any, the landlord made to seek a new tenant in that
interval.
- Case Caption:
- Zada Associates v. Seven
- Issues/Legal Principles:
- Tenant who lived in premises for 25 years with prior landlord's knowledge wins
summary judgment because current landlord could not disprove her facts and wrongly
commenced the proceeding in the commercial part simply because she had a commercial lease.
- Keywords:
- waiver; commercial lease
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Milton Tingling
- Date:
- February 1, 2001
- Citation:
- NYLJ, page 28, col 3
- Referred Statutes:
- none cited
- Summary:
- Landlord knew that the apartment was used for residential purposes, yet commenced the
holdover proceeding in the non-housing part of civil court and incorrectly alleged that the
premises is used for commercial purposes only. Tenant submitted an affidavit and
documentation showing that, notwithstanding her commercial lease, the premises was
residentially equipped (e.g., a kitchen) when she moved into the multiple dwelling and that she
has resided there for 25 years. In 1981 a prior landlord had discontinued a holdover proceeding
against her brought on similar grounds. In that proceeding the tenant expressly alleged that the
apartment was her home and she made warranty of habitability counterclaims. The lower court
denied tenant's motion for summary judgment, but the Appellate Term reversed holding that
landlord offered no refutation of tenant's facts. Further, the Court held that a landlord is bound
by the knowledge and waivers of its predecessors. The court dismissed the petition with
prejudice, meaning that the landlord can never evict the tenant on grounds that she is a mere
commercial tenant.
- Case Caption:
- Zemach Corp. v. John
- Issues/Legal Principles:
- Landlord gave occupants keys to the apartment and agreed to make a lease, but since
ultimately a lease was never signed, the occupants remained mere licensees, not tenants; an
agreement to enter into a lease is not the same as entering into a lease.
- Keywords:
- licensee
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Howard Malatzky
- Date:
- February 2, 2001
- Citation:
- NYLJ, page 26, col 1
- Referred Statutes:
- RPAPL 713(3)
- Summary:
- The occupants were licensees whose license was properly terminated by a ten day notice
to quit. The owner agreed with the occupants to give them access to the apartment but the keys
and access were transferred to them based upon the assumption that the parties would agree on
lease terms and that the lease would be concluded. The agreement, however, stated that if the
lease was not completed it was understood that the occupants had to return the keys promptly.
The lease negotiations broke down, but the occupants did not leave even though they never paid
rent (except for the initial deposit). Since there was no lease, but only an agreement to make
a lease, no tenancy rights ripened for the occupants. Thus, there was no landlord-tenant
relationship and landlord's holdover proceeding against the occupants was proper.
- Case Caption:
- N'Tuli v. Rinaldi
- Issues/Legal Principles:
- Landlord unlawfully evicted tenant without court proceedings, but court does not restore
tenant to possession because new tenants, innocent parties, would be harmed.
- Keywords:
- abandonment; unlawful eviction; fire
- Court:
- Civil Court, Richmond County
- Judge:
- Hon. Kenneth Bedford
- Date:
- January 31, 2001
- Citation:
- NYLJ, page 32, col 2
- Referred Statutes:
- RPAPL 713(10); CPLR 103(c)
- Summary:
- Tenant moved by order to show cause to be restored to the apartment following her
claim that the landlord illegal evicted her. The landlord claimed that the tenant abandoned the
apartment. The building is a two family dwelling and on June 3, 2000 there was a fire which
rendered the building uninhabitable. It was boarded up but tenant was given access to remove
some of her possessions on June 5th and again on June 21st. Tenant claims that she clearly told
landlord that she intended to reoccupy the apartment after reconstruction and that landlord may
not terminate her tenancy for which she had a lease not set to expire until November 2000.
The court found that landlord's claim of abandonment had no basis in fact other than
landlord's mere allegation of same based on tenant's removal of possessions. The court believed
tenant's version that her removal of possessions was not to give up the apartment but rather to
facilitate the renovation process. Tenant's letters and phone calls to landlord all demanded
restoration, including her attorney's demand for restoration, and belie abandonment. Landlord
also claims that he terminated the tenancy by notice dated July 21, 2000 on grounds that the
lease permits termination in cases of destruction of premises by fire. However, a mere
termination notice sent to the tenant has no effect of depriving the tenant of possession unless
and until the landlord then takes the tenant to court to effectuate the termination, i.e., legalize
it through a judge's order of possession. Absent legal process, an unlawful eviction occurs.
Even though the landlord did not provide tenant due process by commencing a holdover
proceeding, the court declined to restore the tenant to the apartment. New tenants were put into
possession by the landlord and the court balanced the equities in their favor since they had no
knowledge of what had transpired and are innocent parties. Besides, since the premises is not
rent regulated, if tenant were restored now, her lease had already expired and she would be
subject to an immediate holdover anyway. To dislocate the tenants in occupancy and restore the
tenant "does not serve the interest of justice." The court relegated the tenant to an action for
damages in civil court.
- Case Caption:
- Federal National Mortgage Association v. Wagshcal
- Issues/Legal Principles:
- Attorney's certification of copy of original deed (as opposed to court clerk's
certification) satisfies statutory requirement that foreclosing mortgagee attach a certified copy
of deed to termination notice.
- Keywords:
- foreclosure; certification; deeds
- Court:
- Civil Court, Kings County
- Judge:
- Hon. Wright
- Date:
- January 31, 2001
- Citation:
- NYLJ, page 31, col 5
- Referred Statutes:
- RPAPL 713(5); CPLR 4520, 2105; 9 NYCRR 2524.4; Disciplinary Rule 9-101, 1-102
- Summary:
- The foreclosing mortgagee brought a holdover proceeding which prompted a legal
question: what form of notice satisfies the requirements of RPAPL 713(5)? The current owner
obtained title to the property in a foreclosure sale when the prior owner, the respondent herein,
defaulted on his mortgage. To commence a proceeding against the resident, the owner must
serve a termination notice together with a certified copy of the referee's deed indicating that the
current owner has title to the foreclosed property. The copies of the deed in this case were
merely copies of the attorneys' certification that the deed was an accurate copy of the original.
The court queried whether these copies sufficed to satisfy the statute. The respondent (i.e., prior
owner) argues that the copy of the deed must bear an original certification from the City
Register. The court held that to require the service of original certifications would, in case of
a large multiple dwelling, stultify the purpose of allowing officials to make certifications, since
a clerk would have to dedicate several hours to certifying a 100 or more copies of deeds where
there has been a foreclosure on a building with 50 or more apartments. It is besides the point
that the building in question is small. To insist on original certifications, the court ruled,
constitutes an undue burden where the purpose of the certification is to advise a potential
respondent with the current owner's claim. An attorney's certification can accomplish this same
result. If the attorney's certification of the deed proves false and the new owner does not
actually own the building, that information will be revealed at trial. The court concluded that
the papers attached to the termination notice were legally sufficient and upheld the resident's
eviction.
|
|