Housing Court Decisions January 2001
Editors: Colleen F. McGuire, Esq., Chief Editor
Robert E. Sokolski, Esq., Catherine Grad, Esq. and David Weinraub, Esq.
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New York Law Journal, decisions for the week of January 22-26, 2001
(4 cases)
- Case Caption:
- Clinton Corner HDFC v. Angel Lavergne; Michael Stepper, Esq. (Non-
party)
- Issues/Legal Principles:
- Supreme Court award of attorneys fees assessed against non-party attorney on ex parte
motion is improper.
- Keywords:
- sanctions, contempt, attorneys fees
- Court:
- Appellate Division, First Department
- Judge:
- lower Court, Hon. Lorraine Miller
- Date:
- January 22, 2001
- Citation:
- NYLJ, page 22, col 1
- Referred Statutes:
- 22 NYCRR 130-1; Judiciary Law 751
- Summary:
- The appeal was taken by attorney Steven Stepper who represented Clinton Corners
H.D.F.C. Mr. Stepper had been retained by a group of shareholders of the low income co-op
who claimed to be the Corporation's lawful Board of Directors. The Defendants are a second
group who also claim to be the Corporation's lawful board. A special Referee heard the issues
as to which group was the lawful board and determined that the Defendants constituted the
lawful board of directors. Additionally, the Referee determined that the "ousted board" who
used corporation funds to retain Mr. Stepper were personally liable for reimbursement of those
funds to the corporation.
On March 31, 2000 the Supreme Court ordered that the "ousted board" turn over all of
the corporation's books, records and funds to the "lawful board." Mr. Stepper filed a notice of
appeal of that order in the name of the corporation on behalf of the "ousted board," and was
granted a stay pending appeal that was ultimately vacated on May 22, 2000.
On May 22, 2000 the lawful board filed an Order to Show Cause requesting an order
directing the production of the corporation's books, records and funds in the "ousted board's"
possession, holding the ousted board and Mr. Stepper in contempt for violating the March 31,
2000 order, and awarding attorney's fees and court costs and disbursements. Mr. Stepper filed
an affirmation in opposition stating that he should not personally be held in contempt because
he is not a party to the action nor subject to any order and because he never had any of the
requested items in his possession.
On May 25, 2000 the parties entered into a stipulation regarding surrendering the books,
records, etc. to the lawful board and the court ordered that the remaining issues of attorney's
fees, costs and disbursements would be held in abeyance pending Mr. Stepper's compliance with
the court order and his providing a full accounting. Mr. Stepper delivered a letter to the Court
and opposing counsel stating that he received $20,417.09 in fees together with invoices and a
"Statement of Account." In response, the lawful board submitted an "Affirmation in Support
of Request for Legal Fees" dated June 26, 2000. It sought to recover $8,642.75 in legal fees
incurred by the lawful board since the January 13, 2000 order by the Special Referee. The
affirmation did not set a hearing date or return date. It was without a Notice of Motion and
appeared to be an ex parte application to the Supreme Court. The affirmation resulted in a
decision and order dated July 12, 2000 which held that Mr. Stepper "appears to have
participated in unnecessary, frivolous, and vexatious actions" and that the sum of $8,642.75
"shall be assessed against Michael Stepper, Esq. for engaging in frivolous and contumacious
litigation."
The Appellate Division states that it is "unclear" as to the grounds for the award against
Mr. Stepper. They state that "the initial fundamental error made by the motion court was the
decision to issue its order based upon ex parte communication without affording Stepper the
opportunity to reply." Further, the court held that if the award as a sanction pursuant to 22
NYCRR 130-1 it is improper because Mr. Stepper "was clearly not provided with a 'reasonable
opportunity to be heard'" and the motion court's order does not articulate the conduct upon
which the sanction is based.
Similarly, the Court held that the Supreme Court Order cannot stand as a sanction for
criminal or civil contempt. The award of more than $8,000 in attorney's fees is not an
appropriate sanction for criminal contempt as outlined in Judiciary Law 751 and there was no
personal service on Mr. Stepper. With regard to civil contempt the standard is, "the Court must
expressly find that the person's actions were calculated to or actually did defeat, impair, impede
or prejudice the rights or remedies of a party to civil proceeding." (citing Oppenheimer v. Oscar
Shoes, Inc., 111 AD 2d 28,29) Because this was not a finding of the motion court, the order
is "fatally defective."
- Case Caption:
- Gramercy Holding Corp. v. Spielman
- Issues/Legal Principles:
- In a holdover proceeding against the administratrix of a deceased tenant's estate, the
landlord is required to mail pleadings to the administratrix.
- Keywords:
- holdover, jurisdictional defect, improper service
- Court:
- Civil Housing Court, New York County
- Hon. Alpert
- Date:
- January 24, 2001
- Citation:
- NYLJ, page 27, col 4
- Referred Statutes:
- none cited
- Summary:
- Petitioner commenced holdover proceeding against the Administratrix of the Estate of
Ceil Gordon and Joseph Spielman. The premises at issue is a rent stabilized apartment, the
tenant of record of which is deceased (Ceil Gordon). Joseph Spielman is the occupant of the
apartment and the grandson of the deceased tenant of record. Spielman claims he is entitled to
a renewal lease because he says he has lived in the apartment with the deceased for two years
prior to her death. Respondents seek dismissal of the petition based on lack of jurisdiction due
to improper service of the notice of termination, notice of petition and petition.
The notice of termination, notice of petition and petition were served by conspicuous or
"nail & mail" service after prior attempts at service. All of the above documents were affixed
to the door of the deceased tenant's apartment and subsequently mailed to that address. The
respondent (administratrix of the decedent's estate) claims that since she was not served at her
address, the Court has failed to obtain jurisdiction over the estate. The respondent asserts that
she resides in the same apartment building as her deceased mother and that petitioner was aware
of this fact. Petitioner claims it has no obligation to serve the estate at any address other than
the demised premises and that as the fiduciary the respondent-administratrix was obligated to
check the demised premises.
The Court stated that it is well settled that before a landlord uses the method of
"conspicuous service" it is "required to demonstrate that upon reasonable application admittance
to the subject premises cannot be obtained and/or a proper person cannot be found to whom the
notice and petition may be delivered." Additionally, when a landlord is aware of an alternate
address where the tenant os residing, it is required to mail the termination notice and petition
to that alternate address. The Court states that the above-mentioned "alternative address"
situation is analogous to this case, because the real party in interest is the estate of the deceased
tenant. Petitioner in this case was aware of the administratrix's address yet failed to attempt
service there. The Court held that while there is no requirement that the petitioner first attempt
service on the administratrix at her address before resorting to conspicuous service, ..." under
the R.P.A.P.L. the petitioner was required to mail a copy of the termination notice and petition
and notice of petition to the administratrix at her address. The petitioner's failure to mail the
pleadings to the administratrix renders this proceeding jurisdictionally defective." Based upon
the improper service, respondents motion to dismiss for lack of jurisdiction was
granted.
- Case Caption:
- Harem Realty v. Walker
- Issues/Legal Principles:
- Sufficient good cause shown is a basis for vacating a stipulation of settlement and
judgment in non-payment proceeding.
- Keywords:
- nonpayment, stipulation vacated, good cause
- Court:
- City Housing Court, Kings County
- Judge:
- Hon. Marton
- Date:
- January 24, 2001
- Citation:
- NYLJ, page 29, col 2
- Referred Statutes:
- none cited
- Summary:
- Landlord brought nonpayment proceeding in July, 2000 to collect arrears dating from
December 1999. Tenant filed a form answer, pro se, alleging there were repairs needed. On
the first return date, August 3, 2000, the parties entered into a stipulation of settlement wherein
tenant agreed to move out by September 30, 2000. If she vacated timely, landlord would waive
the $1,278.00 which reflected tenants share of the rent arrears in the section 8 subsidized
apartment. The stipulation also states "Respondent represents she is intending to vacate the
apartment by September 30, 2000." The stipulation was "so ordered" by the Court and a
judgment entered for $1,278.00.
On October 18, 2000, the tenant moved (by notice of motion) for vacatur of the stipulation
and judgment. Tenant claimed that in acting pro se, she had "improvidently entered into the
stipulation, had unknowingly waived her defense of breach of the warranty of habitability, and
had not understood the operation of the section 8 subsidy."
The return date of the motion was November 20, 2000 and an inspection of the apartment
was ordered. On November 15, 2000 HPD conducted an inspection and discovered seven "B"
violations and three "C" violations. The motion was argued and submitted without any
opposition papers from the landlord.
The Court stated that ordinarily the courts will enforce stipulations that are entered into
freely. However, courts may vacate a stipulation where good cause to do so is shown, "such
as where it appears that a party, to his prejudice, 'has inadvertently, inadvisably, or
improvidently entered into an agreement which will take the case out of the due, and ordinary
course of [the] proceeding.'" (citing In Re Frutiger's Estate, 29 N.Y. 2d 143, 149-150)
The Court held that tenant has shown sufficient good cause to vacate the stipulation due
to the fact that severe violations existed and that the NYC Housing Authority had suspended
payment of its share of the section 8 subsidy because of the conditions existing in the apartment.
Thus, tenants defense of breach of the warranty of habitability is "substantial and meritorious."
Additionally, the record indicated that tenant did not understand the section 8 subsidy and its
transfer requirements which could not possibly have been met between August 8, 2000 and
September 30, 2000. The record also strongly suggested that tenant only agreed to move
because she believed that landlord would not cure the conditions in her apartment. The tenant's
motion was granted upon her showing of good cause to vacate the stipulation and
judgment.
- Case Caption:
- In Re Application of Fred Mengoni v. N.Y.S. Division of Housing and Community
Renewal
- Issues/Legal Principles:
- Tenant's ex parte communications to DHCR regarding landlord's fraud involving rent
overcharges did not taint proceedings, and lower court's decision in landlord's favor is reversed
by the Appellate Division.
- Keywords:
- DHCR, rent overcharge, ex parte communications
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Charles Ramos
- Date:
- January 25, 2001
- Citation:
- NYLJ, page 27, col 2
- Referred Statutes:
- none cited
- Summary:
- Tenant commenced this litigation in 1984 by filing a residential rent overcharge complaint
with DHCR's predecessor agency. In response, landlord submitted five leases outlining a "rent
history" in support of his position that the rent was legal. The local Rent Administrator agreed
with landlord and found the rent legal in 1986.
Tenant petitioned for administrative review in 1989 and the Deputy Commissioner directed
that an evidentiary hearing be conducted to address tenant's challenge of the authenticity of the
leases submitted by landlord. The hearings were held in May, June and August, 1990. Tenant
brought forth three witnesses who testified and provided documentary evidence which established
themselves as the genuine tenants of the apartment during the relevant periods. The
Administrative Law Judge found, based upon the evidence presented by tenant that the "leases
submitted by landlord were either sham fabrications or pertained to the letting of irrelevant office
space elsewhere." The Administrative Law Judge thus held that the fraudulent proof which had
been offered by landlord was evidence of "willfulness in overcharging rent." The tenant
prevailed.
Prior to the evidentiary hearings, the pro se tenant had "updated his investigations by
submitting some ex parte letters to the agency." Most, if not all of these materials were
forwarded by the Administrative Law Judge to landlord's attorney. Additionally, immediately
following the first hearing, landlord's attorney was given a full opportunity to inspect the entire
file. He did not do so until the day after the last hearing.
The lower court in this Article 78 proceeding, following oral argument held that, "the
tenant's ex parte communications had so tainted the 1990 hearings as to require a total vacatur
of the agency order and a trial de novo before a different Administrative Law Judge."
The Appellate Division disagreed and held that after a careful review of the record, the
Administrative Law Judge made a detailed determination based upon the compelling proof
offered by tenant that established the landlord's "egregious conduct." Furthermore, the
Administrative Law Judge was determined to be "wholly unaffected by the ex parte
submissions." Based upon the above, the Appellate Division reversed the decision of the lower
court, tenant's 1992 DHCR determination of willful rent overcharge and treble damage refund,
was reinstated and confirmed.
New York Law Journal, decisions for the week of January 15-19, 2001
(8 cases)
- Case Caption:
- Perlbinder v. Sweet
- Issues/Legal Principles:
- The evidence at trial in a nonprimary residence proceeding indicates that tenant lives
apart from her husband and occupies the apartment as her primary residence.
- Keywords:
- non-primary residence; witness credibility
- Court:
- Appellate Term: First Department
- Judge:
- lower court: Hon. Timmie Elsner
- Date:
- January 16, 2001
- Citation:
- NYLJ, page 25, col 3
- Referred Statutes:
- none cited
- Summary:
- Landlord brought a holdover proceeding against the tenant on nonprimary residence
grounds. The trial judge found that the witnesses for the landlord had an interest in the
proceeding, lacked personal knowledge and were less than credible. Thus, the judge determined
that the landlord failed to establish its case against the tenant by a preponderance of the
evidence. The Appellate Term upheld the decision on grounds that it was reached by a fair
interpretation of the evidence. The tenant files New York income taxes, maintains her only bank
account in New York and performs professionally in New York (and elsewhere) as a dancer.
Tenant and her husband live apart and have established two separate residences. Tenant's
limited use of the North Caroline property co-owned by the couple does not compel a fining of
nonprimary residence.
- Case Caption:
- Podsiadlo v. Ramos
- Issues/Legal Principles:
- Judge does not dismiss the nonpayment petition for valid Spiegel Defense, but freezes
the case for a compliance hearing at which time landlord must show the repairs are completed.
- Keywords:
- Spiegel Law; warranty of habitability; stale rent
- Court:
- Civil Court, Kings County
- Judge:
- Hon. Loren Baily-Schiffman
- Date:
- January 17, 2001
- Citation:
- NYLJ, page 30, col 1
- Referred Statutes:
- Social Services Law 143-b(5)(c)
- Summary:
- The Spiegel Law defense applies in a nonpayment proceeding against a welfare recipient
where housing violations have been reported to the appropriate public welfare department by the
appropriate department or agency having jurisdiction over violations. In such cases, the tenant
may assert a defense for why rent was not paid and the petition is subject to dismissal. In this
case, the violations did exist, but the court declined to dismiss the nonpayment petition. Instead
the court stayed the proceeding (i.e., froze it) until the landlord repairs the conditions in the
apartment. The court will then hold a compliance hearing to determine if the repairs were done,
and if so only then will the court require that the tenant pay the rent due, subject to any
abatements. However, also in this case the tenant made a claim of stale rent (i.e., laches). The
landlord allowed the rent to accumulate for four years before bringing the tenant into court and
apparently has no excuse for the passage of time. Thus, any rent the landlord is granted after
a compliance hearing can only be collected in a plenary action. In other words, if the tenant
does not pay it, maybe the tenant's wages can be garnered or bank account restrained, but the
tenant cannot be evicted from her home.
- Case Caption:
- DHPD v. Etingin
- Issues/Legal Principles:
- Lower court erred in failing to allow HPD access to roof to inspect leak.
- Keywords:
- access; collateral estoppel
- Court:
- Appellate Term, First Department
- lower court: Hon. Jerald Klein
- Date:
- January 16, 2001
- Citation:
- NYLJ, page 25, col 2
- Referred Statutes:
- none cited
- Summary:
- Department of Housing Preservation and Development commenced a proceeding against
a residential cooperative to permit inspection and emergency repair of a hazardous C violation
roof leak discovered in 1997 and confirmed in 1998. The leak affected the proprietary lessee
of a penthouse apartment. Without conducting a hearing the Civil Court denied HPD's
application seeking access to inspect and make emergency repairs and summarily dismissed the
petition. The Appellate Term held that the judge improperly relied upon "other judicial
determinations" in the private litigation between the cooperative and the lessee, which the court
perceived as unfavorable to the lessee and deemed HPD's proceeding "superfluous." HPD was
not a party to that other litigation nor in privity with the lessee. The Appellate Term held that
the government is not bound by private litigation to which it is a stranger, so the lower court's
reference to collateral estoppel is inapplicable. The Court remanded the case to determine
whether the violation had been remedied.
- Case Caption:
- Tan Holding Corp. v. Wallace
- Issues/Legal Principles:
- Lower court erred in declaring loft units (exempt from the Loft Laws) subject to rent
stabilization where, for one, the units have not been legalized in that the building still lacks a
certificate of occupancy.
- Keywords:
- lofts; stabilization; ETPA; substantial rehabilitation; certificate of occupancy
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Douglas Hoffman
- Date:
- January 16, 2001
- Citation:
- NYLJ, page 25, col 3
- Referred Statutes:
- Multiple Dwelling Law, Article 7C, 286(13); Emergency Tenant Protection Act of
1974, 8625(a)(5)
- Summary:
- Tenants took possession of loft units by commercial leases which have since expired.
It is not disputed that tenants also resided in the units with landlord's knowledge and
acquiescence, even though the leases specified office or studio use. The tenants concede that
the units do not qualify as lofts. The issue is whether these units situated in a building
constructed prior to 1974 containing six dwelling units qualifies for rent stabilization protection
under the Emergency Tenant Protection Act. The lower court noted that the ETPA is
"inclusive" and may provide regulation for "all housing accommodations which it does not
expressly exempt, including previously unregulated accommodations." The lower court granted
the tenants' motion for summary judgment that they are protected by the rent regulatory laws.
In reversing the lower court, the Appellate Term held that permanent coverage under a rent
regulatory scheme should not, however, attach to dwelling units which have not been legalized
or are incapable of being legalized. In this regard, no residential certificate of occupancy has
yet been obtained for the building.
The claim, apparently by landlord, that residential use is prohibited because the building
is situated in a "light manufacturing district" does not, without more evidence, definitively
resolve whether the residential use or joint living/working use of the lofts dating back to 1981
would qualify as a permitted use under the applicable zoning resolutions, even if new residential
development is now excluded in the district. The Appellate Term regarded these questions as
unanswered on the record, thereby precluding a summary judgment determination.
The Appellate Term held: "Assuming without deciding that ETPA coverage applies to
the lofts, a further issue for determination is landlord's claim to the `substantial rehabilitation'
exemption." The Court concluded that the landlord's motion for renewal (submitting additional
evidence) on this issue should have been granted since there are triable issues as to the scope
of the rehabilitation and whether this is a case where the cost of the rehabilitation was
substantially borne by the tenants. Hence, the Appellate Term remanded the proceeding for
determination on these outstanding issues.
- Case Caption:
- Dovere v. Marsh
- Issues/Legal Principles:
- Landlord's non-renewal notice on owner occupancy grounds fails to set forth sufficient
facts.
- Keywords:
- owner occupancy; nonrenewal notice
- Court:
- Civil Court, New York County
- Judge:
- Hon. Julia Rodriguez
- Date:
- January 17, 2001
- Citation:
- NYLJ, page 28, col 1
- Referred Statutes:
- NYCRR 2524.4; CPLR 3212
- Summary:
- The landlord served a nonrenewal notice on tenant declining to renew the rent stabilized
lease on owner occupancy grounds. The facts of the notice merely stated that the landlord
intends to use the apartment "for occupancy by herself and/or a member of her immediate family
as a primary residence." The Court ruled that the notice was insufficient in that it failed to state
"the facts necessary to establish the grounds" for eviction as required by the Rent Stabilization
Code. The judge held that the notice failed to indicate "which member of the owner's family
will occupy the apartment, why the apartment is the one targeted or suited for the owner's
occupancy, when such need arose and why other units at the premises are unsuitable." The
court cited various case law in support of her dismissal of the petition on grounds of a factual
insufficient notice in an owner occupancy case.
- Notes:
- Tenants should be aware that judges can and do cite to other appellate cases which
support a conclusory allegation in an owner occupancy nonrenewal notice that simply states the
owner or his/her family will use the apartment as their primary residence. The court's rationale
(for a conclusory notice as opposed to a more detailed factual notice) is that the tenant can ask
for discovery to further find out the facts. Discovery is done by the tenant asking the landlord
questions under oath before a stenographer and making the landlord produce documentation,
and/or making the landlord answer written questions and also supplying documentation. But,
if the tenant is lacking financial resources and cannot exercise this avenue, then such a tenant
would be prejudiced by the lack of more factual information in the nonrenewal notice. For this
reason, tenants must continue to insist that nonrenewal notices in owner occupancy cases contain
sufficient facts. Tenants should also be aware that the state of the law today is such that
appellate courts do not require an owner to specify why other units, vacant or not, are unsuitable
for the owner's personal use. Hopefully this can be challenged in a case so that landlords would
be required to state why they are going after a particular tenant's apartment if, for example,
there are already other vacant units in the building.
- Case Caption:
- Chelsea Inn v. Worthy
- Issues/Legal Principles:
- Examination of rental history in overcharge claim may go beyond four year period if
prior rental periods were not registered until four years ago.
- Keywords:
- overcharges, rent registration, SRO
- Court:
- Civil Court, New York County
- Judge:
- Hon. Milton Tingling
- Date:
- January 17, 2001
- Citation:
- NYLJ, page 27, col 4
- Referred Statutes:
- RSL 26-516(a); RSC 2522.5(c)(2)
- Summary:
- The facts of the nonpayment proceeding are not in dispute. The tenant moved into the
building in June, 1997 and into this particular SRO unit around October, 1998. The tenant
alleges rent overcharges from June 1997 onward while the landlord argues that the tenant is time
barred from asserting an overcharge claim. The overcharge is based on the last legal regulated
rent on file with the DHCR. The court queried which rent registration is applicable in this case.
The tenant claims the 1985 registration is applicable while the landlord claims that registrations
from the last four years only are applicable. The court cited to two Appellate Term cases where
the rent history beyond four years was examined because the rent registration for the last four
years and beyond were all registered within the last four years and thus all were subject to be
challenged. The Appellate Term enunciated that although the tenant filed the overcharge claim
in 1998, the tenant could assert the base rent as that rent registered in 1992, reasoning that the
1993-1998 registrations were all filed within the last four years and all these registrations were
subject to challenge. (Citing 319 West LLC v. Florence Baylor, NYLJ, 2-16-00, 26:4,
Appellate Term, First Department, and 319 West LLC v. Cabrera Rojas, NYLJ, 2-16-00, 26:2,
Appellate Term, First Department).
The filing date of rent registrations is significant and controlling, not the
contents of the filings. A party may not collect any alleged overcharges past the four years from
the allegation of the rent overcharge, however, this does not preclude the examination of the
registered rent beyond the four year period. The court observed: "To limit a review of the
registered rent period to a four year period is impractical and would in essence allow a landlord
to profit by not registering the premises for a four year period. If this were the case then every
landlord not registering the premises would be allowed essentially to circumvent the rent
stabilized program and set its own rent with no repercussions or incentive to comply with the
DHCR requirements."
In this case the apartment registration for the years 1985 through 1995 were registered
in 1995. This period would allow these all registrations to be challenged since they were only
filed within the last four years. The question whether changing rooms in this SRO results in a
new tolling of time for rent stabilization purposes is moot as the time frame used to measure the
permanency of the tenant's stay is when the tenant moves into the building, not a particular unit
therein. When a tenant is not given a copy of the Notice of Rights and Duties of Hotel Owners
and Occupants, that tenant is deemed to be a permanent tenant from the day they moved in to
the subject premises. In this case the landlord failed to provide the tenant with the necessary
notice, but the court ruled that this did not diminish the tenant's rights to claim permanent
resident status in the subject premises.
Based on the facts of this case, the court held that it is clear that it is required to examine
the rent history beyond the four years and look beyond the said term to 1985 when the last
unchallengeable registration was filed. The registered rent for 1985 is $229, and lawful
increases since then bring the legal rent to $270.84. Since the tenant paid $186 in rent, the
overcharges amount to $5,681 which was granted to tenant as a judgment against the landlord.
The tenant's claim of a treble damages (whether the overcharge was wilful) was set down for
a separate hearing date.
- Case Caption:
- 176 East 3rd Street v. Wright
- Issues/Legal Principles:
- Despite paucity of documentary evidence, nontraditional family member succeeds to
deceased tenant's lease based on witnesses' credible testimony of their emotional and financial
interrelationship.
- Keywords:
- succession rights
- Court:
- Appellate Term: First Department
- Judge:
- lower court: Hon. Ruben Martino
- Date:
- January 19, 2001
- Citation:
- NYLJ, page 26, col 6
- Referred Statutes:
- 9 NYCRR 2523.5(e), 2520.6(o)(2)
- Summary:
- The Appellate Term affirmed the lower court's decision that the respondent established
her succession rights to the rent stabilized apartment in this nontraditional family relationship
case. The respondent moved into the apartment in 1995 and the tenant of record died in 1998.
They held themselves out as a committed couple to their families, friends and neighbors, and
the tenant treated respondent's children (who eventually moved into the premises) as part of the
family. The couple traveled together, attended social functions together and relied on each other
for daily tasks. Relatives and neighbors testified that the couple were always together and
functioned as husband and wife. The landlord argued that there was insufficient documentation
of financial and emotional interdependence, but respondent submitted photographs and greeting
cards attesting to the familial relationship the couple enjoyed. The Appellate Term noted that
in any event a paucity of documentary evidence is not fatal to a valid succession claim where
credible testimony as to respondent's residence and her relationship with the tenant of record is
presented at trial. Given the couple's modest income, the court noted that the absence of joint
accounts or financial transactions is not dispositive.
- Case Caption:
- Village Management Inc. v. Giddio
- Issues/Legal Principles:
- Tenant's filing of a bankruptcy petition does not mean that landlord is excused from
serving a nonrenewal of lease notice based on nonprimary residency.
- Keywords:
- Golub Notice; nonprimary residency; bankruptcy stay
- Court:
- Appellate Term: First Department
- Judge:
- lower court: Hon. Arlene Hahn
- Date:
- January 19, 2001
- Citation:
- NYLJ, page 26, col 5
- Referred Statutes:
- CPLR 5501(a); RSC 2524.2(c)(2), 2524.4(c); 11 USC 362(a)
- Summary:
- The landlord brought a holdover proceeding based on nonprimary residence of the
tenant. The tenant made a motion to dismiss the proceeding on grounds that the landlord failed
to serve a notice of non-renewal of lease (called a Golub Notice) before commencing the
proceeding. The tenant agreed to a final judgment, but expressly reserved his right to appeal
the court's order denying the motion to dismiss. The Appellate Term reversed the court's
failure to dismiss the petition, holding that service of a Golub Notice is required prior to
commencing a nonprimary residence proceeding. Landlord had argued that in light of tenant's
filing of a petition in bankruptcy, service of the Golub Notice would have "violated" the
automatic stay provisions of the Bankruptcy Code. The court, however, noted that the notice
merely preserves a landlord's inchoate right to maintain an eviction proceeding in the future, but
does not effect a termination of the tenant's leasehold interest. Nor does service of the Golub
Notice interfere with the tenant/debtor's property in a manner warranting application of the
automatic stay provision in the bankruptcy court. Thus, landlord was not excused from
complying with the Golub Notice requirements. The Appellate Term reversed and dismissed
the holdover petition against the tenant, thereby reinstating the tenant's tenancy. The court
further noted that to the extent landlord deemed itself stayed form serving a Golub Notice, it did
not seek any relief in the bankruptcy court.
New York Law Journal,
decisions for the week of January 8-12 2001 (7 cases)
- Case Caption:
- ATM One, LLC. V. Landaverde
- Issues/Legal Principles:
- Ten day notice to cure was improperly served when it was
mailed ten
days prior to cure period.
- Keywords:
- Holdover Ten Day Notice to cure
- Court:
- Second Judicial Department, Nassau County District Court
- Judge:
- Hon. Janowitz
- Date:
- January 10, 2001
- Citation:
- N.Y.L.J. page 32, column 1
- Referred Statutes:
- 9 N.Y.C.R.R. 2508.1
- Summary:
- Tenant made a motion to dismiss on the grounds that he or she
recieved
the notice on September 9th and was supposed to cure wrongful acts
by September
18. The landlord said that it mailed the notice on September 8th.
The court
followed CPLR 2103(B)(2), holding that the Notice to Cure is
served on the
day that it is mailed, but five days must be added to the cure
period to
allow for mailing.
- Case Caption:
- 32-34 Greene Associates LLC v. Liebars
- Issues/Legal Principles:
- Question whether tenant paid for costs when loft was converted from commercial to residential usage which could then make the unit subject to rent stabilization.
- Keywords:
- loft law; certificate of occupancy; substantial rehabilitation br>
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Timmie Elsner
- Date:
- January 8, 2001
- Citation:
- N.Y.L.J. page 27, column 6
- Referred Statutes:
- MDL 281(3).
- Summary:
- Tenants in licensee holdover proceedings moved to dismiss,
arguing that
the subject premises should be deemed rent stabilized, and
qualified for
protection under the Loft Law, based upon their use for
residential purposes,
prior to the issuance of a residential certificate of occupancy
or, alternatively
because the work necessary to convert the premises was
substantially paid
for by tenants. After reviewing section 281(3) of the Loft Law,
the court
denied the tenants' motion. The court held that no legal authority
exists
to support the tenants' assertion that a premises is subject to
rent stabilization
and the loft law merely because it was used for residential
purposes prior
to the issuance of a certificate of occupancy.
- Case Caption:
- Evangelista v. Jane Doe
- Issues/Legal Principles:
- Tenant's partial ownership of apartment does not entitle the
landlord to decontrol of the unit.
- Keywords:
- rent decontrol; tenant ownership
- Court:
- Civil Court, Kings County
- Judge:
- Hon.: Thomas
- Date:
- January 10, 2001
- Citation:
- N.Y.L.J. page 28, column 6
- Referred Statutes:
- CPLR 3212; RPAPL 741; RPAPL 735
- Summary:
- Landlord instituted a licensee holdover proceeding alleging
that the
apartment had been destabilized. Tenant has occupied the premises
as a rent-controlled
tenant since 1943. She purchased the premises with her two
daughters in
1978 and transferred her interest to her daughters in 1987. The
court dismissed
the landlord's holdover petition. The Second Department has held
that the
vesting of partial ownership interest in a tenant, who continues
to reside
in the apartment and pay rent, is insufficient to justify the
decontrol
of that unit. Klein v. Herman, 17 A.D.2d 652 (2d Dept. 1962). For
the rent
control exemption requirements of 9 N.Y.C.R.R. section
2200.2(f)(11) to
apply, there must be a vacature by the owner-occupant and a
re-renting to
a third party. See e.g. Sanchez v. Yulke, 164 N.Y.S.2d 567 (Mun.
Ct. Bx.
Co. 1957).
- Case Caption:
- Vanderveer Estates Holding LLC v. Nelson
- Issues/Legal Principles:
- Tenant may invoke the Spiegel Law after the signing of a
stipulation by moving for the case to be restored.
- Keywords:
- Spiegel Law; stipulation
- Court:
- Civil Court, Kings County
- Judge:
- Hon. Michael Pinckney
- Date:
- January 10, 2001
- Citation:
- N.Y.L.J. page 30, column 5
- Referred Statutes:
- Spiegel Law Social Services Law 143-b(5)
- Summary:
- On July 17, 2000, respondent tenant and petitioner landlord
entered into
a stipulation settling a nonpayment proceeding. The arrears at
that time
totaled $5,517 and tenant agreed to pay that amount by Aug.
17, 2000.
Landlord reserved the right to restore the proceeding to the
calendar,
in the event of default. Landlord has now moved to restore the
proceeding
to the calendar for judgment based on respondent's failure to pay.
Tenant is now seeking a court order staying the award of a monetary
judgment against
respondent or dismissing the instant nonpayment proceeding
pursuant to
Social Services Law 143-b(5), Spiegel Law. After examining the
case and
the Spiegel Law, the court granted landlord's motion to the
extent that
the proceeding was restored to calender. It also vacated the
stipulation
between the parties.
- Case Caption:
- City of New York v. DHCR
- Issues/Legal Principles:
- The City Council is permitted to create property valuation
formulas that
result in lower maximum base rents for rent controlled
tenants.
- Keywords:
- Rent Control; MBRs
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Leland DeGrasse
- Date:
- January 11, 01
- Citation:
- NYLJ page 27 column 1
- Referred Statutes:
- NYAC section 26-405(a)(3), Local Law 73
- Summary:
- In order to calculate rent increases for rent controlled
apartments in
New York City, a yearly assessment is made of the aggregate value
of all
properties in the city. In 1997, the Appellate Division, Third
Department
determined that the New York City Council must use a particular
formula
for assessing the property value. This formula resulted in DHCR
setting
a 7.5 percent annual increase in maximum base rents for rent
controlled
tenants. Subsequently, the City Council then passed Local Law 73,
which
established a different classification formula, resulting in
smaller increases.
The First Department agreed that Local Law 73 was permissible
under state
law, rejecting the landlords' argument that Local Law 73 is more
restrictive
than the statewide rent laws. Therefore, DHCR is ordered to issue
recalculations
of maximum base rents to all rent controlled tenants for the
1996/1997 rent
cycle, up to the present, resulting in lower maximum base rents.
- Case Caption:
- Rosenberg v. Gettes
- Issues/Legal Principles:
- Super's apartment is counted in the determination that an
apartment building
has six housing accomodations and is thus subject to rent
stabilization
law, despite the facts that (1) the super's apartment is itself
exempt from
rent stabilization, and (2) the super's apartment was demolished
following
the last certificate of occupancy.
- Keywords:
- Rent Stabilization
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Shlomo Hagler
- Date:
- January 12, 2001
- Citation:
- January 12, 2001 NYLJ page 26 column 1
- Referred Statutes:
- RSC 2520.11
- Summary:
- The building in question has five stories, with one apartment
on each
floor, plus a cellar apartment. The cellar unit was exempt from
rent stabilization
because it was used as a superintendant's apartment. The apartment
was occupied
by the superintendant for many years, and then was recently
demolished.
The court held that, although the cellar apartment is exempt from
rent stabilization,
it is nevertheless counted in determining that the building as a
whole has
the requisite six housing units entitling the building to rent
stabilization
protection. Further, any attempt by the landlord to reduce the
number of
units in the building does not exempt it from stabilization.
- Case Caption:
- Dee v. PWV Acquisition LLC
- Issues/Legal Principles:
- (a) Treasurer of tenant association lacks standing to commence
lawsuit
on behalf of tenants against landlord for reduction of services.
(b) Complaints
for reduction in services were not properly brought in state
supreme court,
but should be adjudicated by DHCR (injunctive relief can be had in
housing
court).
- Keywords:
- tenant association; reduction in services
- Court:
- Supreme Court, New York county
- Judge:
- Hon. Tolub
- Date:
- January 12, 2001
- Citation:
- NYLJ page 27, column 3
- Referred Statutes:
- CPLR 3211(a)
- Summary:
- Treasurer of tenant assocation filed a suit in state supreme
court on
behalf of rent stabilized tenants who complained of reduction in
essential
services in the building. The tenants alleged that they were being
erroneously
charged for rent arrears, their lease renewals had been rejected,
and they
were being required to obtain photo identification cards by the
landlord.
The court dismissed the action for two independent reasons. First,
the treasurer
lacked standing, in that she did not stand in a landlord-tenant
relationship
to the landlord. Although the treasurer herself is a tenant, she
had no
individual complaints with the landlord, but brought charges
affecting other
tenants. The second reason is that the court held that the supreme
court's
role is not to determine what constitutes essential services
within the
meaning of the rent laws. Instead, rent control and rent
stabilization law
provides for DHCR to address such issues. Any injunctive relief,
holds this
court, could be sought in the Housing Court.
New York Law Journal, decisions for the week of January 1-5, 2001
(11 cases)
- Case Caption:
- Haberman v. Wright
- Issues/Legal Principles:
- Apartments subject to rent control due to J-51 tax exemption/abatement from 1974
remain controlled due to landlord's failure to notify of termination of regulation as required by
1985 amendment.
- Keywords:
- J-51; J-51 tax abatement; expiration of J-51
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Weissberg
- Date:
- January 2, 2001
- Citation:
- NYLJ, page 29, col 6
- Referred Statutes:
- 9 NYCRR 2200.2(e)(3); Real Property Tax Law 489(7)(b)(2); RCNY, tit. 10, 5-
03(f)(3)(1)
- Summary:
- The landlord brought an action seeking a declaratory judgment that the rent control status
of four cooperative apartments which he owned had terminated, based upon the expiration of J-
51 tax abatement benefits.
The four units were allegedly vacant from 1969 through 1972, when the owner claimed
the building was completely renovated from a class "B" single room hotel into a class "A"
building with 89 units. When renovation was completed, the owner applied for a real estate tax
exemption and abatement pursuant to section J.51-2.5 of the Administrative Code of the City
of New York, which was granted in 1974. At that time, the J-51 program required that all
residential units be rent controlled for the duration of the exemption/abatement. Thereafter, the
building was converted to cooperative ownership under a noneviction plan, and the owner
became shareholder and proprietary lessee of the four units. The tenants continued to reside in
the four units under rent control. As of June 30, 1986, the building no longer received benefits
from the J-51 tax program.
Twelve years later, the owner sought to have the four units decontrolled. However, in
1985 a statute was enacted which provided that a unit previously subject to rent regulation as
a result of a J-51 tax abatement and/or exemption would continue to be subject to such
regulation until the first vacancy of the unit after the benefits ended, unless the tenant had
received notice in the initial lease and the subsequent renewal leases that rent regulation of the
unit would terminate upon expiration of the J-51 benefits.
When the owner moved for summary judgment, the Court refused to decontrol the units,
as the owner failed to prove that the tenants were notified that regulation of their J-51 units
would expire. Instead the Court granted the tenants' cross-motions for summary judgment, and
declared that the four units would be rent controlled until there were vacant. The Court rejected
the owner's argument that he was denied equal protection of the law, or that the owner's reliance
on the representations made to him in the law as it existed in 1974 excused him from the effects
of the 1985 amendments.
- Case Caption:
- Ennismore Apartments v. Valenti
- Issues/Legal Principles:
- Rent Regulation Reform Act of 1997's prohibition of the examination of rental history
for more than four years prior to the most recent registration statement applies to the service of
any earlier registration, even initial rent registration statement.
- Keywords:
- overcharge claim; fair market rent appeal; Rent Regulation Reform Act of 1997; RR-1;
initial rent registration statement
- Court:
- Appellate Term, First Department
- lower court: Hon. Douglas Hoffman
- Date:
- January 2, 2001
- Citation:
- NYLJ, page 29, col 2
- Referred Statutes:
- RSL 26517(e), 26516(g)
- Summary:
- Landlord commenced a nonpayment proceeding in November, 1998. Tenants answered
claiming an overcharge as the landlord failed to prove service of an initial rent registration
statement (RR-1) in 1992 and thus, the landlord was only entitled to collect the rent as paid by
the previous rent controlled tenant. However, the record showed that upon the tenant's
execution of a vacancy lease at $1,700.00 per month, the landlord timely filed annual rent
registrations for the years 1993 through 1997. Thus, the lower court's decision rejecting the
tenant's claim that the landlord failed to file an RR-1 in 1992 as being barred by the four-year
statute of limitations of the Rent Regulation Reform Act of 1997 (RRRA) was upheld. The
Court noted that the RRRA's prohibition of the examination of the rental history of an apartment
for more than four years prior to the most recent registration statement applied to fair market
rent appeals, overcharge claims and the failure to properly file initial rent registration statements.
- Case Caption:
- Pamela Equities Corp. v. Koski
- Issues/Legal Principles:
- Court awards tenant attorney's fees despite 20 month delay in requesting same.
- Keywords:
- attorney's fees; unfair surprise; prevailing party
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Arlene Hahn
- Date:
- January 2, 2001
- Citation:
- NYLJ, page 29, col 2
- Referred Statutes:
- 22 NYCRR 208.14(c)
- Summary:
- At a succession rights trial, the tenants won and succeeded to the rent stabilized subject
premises. In its decision, the trial court failed to address the tenants' counterclaim for legal
fees. Approximately twenty months later, tenants made a motion seeking recovery of its
attorney's fees as it was the prevailing party to the underlying action. The lower court denied
tenants' motion on the ground that pursuant to 22 NYCRR 208.14(c), the proceeding had been
"effectively marked off calendar and that the landlord would suffer prejudice if the matter were
restored." The appellate court reversed holding that even if this provision were procedurally
applicable, the Court may exercise its discretion in light of the unsettled state of the law with
respect to successors' right to fees. The Court further noted that both sides sought attorney's
fees in their pleadings, thereby defeating the landlord's claim of unfair surprise.
- Case Caption:
- Massey v. Gupta
- Issues/Legal Principles:
- General covenant to renew lease must be definite and certain as to the term and rent.
- Keywords:
- covenant to renew; renewal leases; reversible error; necessary party
- Court:
- Appellate Term, 2nd and 11th Judicial Districts
- Judge:
- lower court: Hon. R. Hollie
- Date:
- January 2, 2001
- Citation:
- NYLJ, page 30, col 4
- Referred Statutes:
- none cited
- Summary:
- The tenant (non-rent regulated) argued that the landlord was obligated to offer a renewal
lease, relying on the parties' general covenant to renew provision in the prior lease. The
appellate court held that in order to be enforceable, a covenant to renew must be "either
reasonably definite and certain as to the term and the rent, or must contain a definite method
whereby such term and rent may be determined." The Court held that the trial court correctly
interpreted that the lease at issue failed to contain a valid renewal provision insofar as it failed
to provide for the term of the renewal period and the amount of rent to be paid as not
enforceable. The Court further held that since the lower court determined the enforceability of
the renewal clause pre-trial, it's refusal to introduce the agreement in question into evidence at
trial was not reversible error. Finally, the Court disagreed with the tenant's position that
reversal is required since the petition named an occupant of the premises, who was not a
necessary party to the action. The Court held that this occupant was a proper party to the action
"because his derivative right to occupy a portion of subject premises was in dispute."
- Case Caption:
- Byros v. Zupan
- Issues/Legal Principles:
- Tenant not entitled to 20 Year Rule of EPTA, where tenant's rent stabilized tenancy,
which began on July 1, 1974, arose from Rent Stabilization Law and Code.
- Keywords:
- ETPA; "20-year rule"; owner-occupancy
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Bruce Scheckowitz
- Date:
- January 3, 2001
- Citation:
- NYLJ, page 24, col 6
- Referred Statutes:
- RSC 2524.4(a); ETPA, L. 1974, c. 576, sec. 4; ETPR 2504.4(a)(2); Administrative
Code of the City of New York 26-408(b)(1)
- Summary:
- Landlord brought an owner occupancy proceeding against a rent stabilized tenant,
claiming that he required the premises for the primary residence of his son. The tenant moved
to dismiss, claiming that she was protected by the 20 year rule of the Emergency Tenant
Protection Act (ETPA) and Emergency Tenant Protection Regulations (ETPR), which prohibits
owner occupancy proceedings against ETPA rent stabilized tenants who have been a tenant in
the building for twenty years or more.
The Court disagreed. While noting Housing Court decisions which have found that
tenants whose rent stabilized tenancies became stabilized solely as a result of the ETPA -- i.e.
tenancies which commenced as unregulated tenancies between July 1, 1971 and May 29, 1974,
the period between vacancy decontrol and the effective date of the ETPA -- the tenant in this
case did not take occupancy until July 1, 1974, and thus, her apartment was stabilized due to
the Rent Stabilization Law and Code, not solely due to the ETPA. Therefore, the tenant took
occupancy too late for ETPA protection to apply, and the Court denied tenant's motion to
dismiss and permitted the action to proceed.
- Case Caption:
- 302-304 Met. Assoc., Inc. v. Butler
- Issues/Legal Principles:
- No de facto multiple dwelling or rent stabilization may be found in commercial loft used
as residence which does not qualify for Loft Law protection.
- Keywords:
- Loft Law; de facto multiple dwelling; commercial tenancy
- Court:
- Supreme Court, Kings County
- Judge:
- Hon. Knipel
- Date:
- January 3, 2001
- Citation:
- NYLJ, page 24, col 1
- Referred Statutes:
- CPLR 5015(a); CPLR 2005; Multiple Dwelling Law Article 7, L1982 ch 349; Multiple
Dwelling Law 281(1); MDL 281(2); 9 NYCRR 8625(a)(5)
- Summary:
- Landlord brought an ejectment action against a commercial loft tenant for expiration of
the lease agreement, and tenant answered, claiming the protection of the rent stabilization law
and multiple dwelling law. After the tenant failed to appear at a scheduled argument of
landlord's motion to compel discovery, the Court struck the tenant's pleadings and ordered an
inquest.
The tenants moved to vacate their default, attempting to show the required factors of a)
an excusable default, and b) a meritorious defense. Tenant's counsel stated that he was not
informed of the adjourned date of the landlord's motion until after the appearance. Moreover,
the tenants argued that they were entitled to the protections of rent stabilization, and further that
the landlord was not entitled to use and occupancy, for its failure to file a multiple dwelling
registration statement, as the landlord knew that at least six (6) separate tenants were using their
units as residences.
While the Court found the default excusable, it also found that the tenants did not
demonstrate a meritorious defense, and therefore, the tenant's motion to vacate the default was
denied. First, the Court found that the tenants could not qualify for Loft Law protection, since
the building was vacant from 1945 until 1994. Second, the building was gutted by fire in 1988
and thereafter the new owner completely renovated the building, replacing more than 75 percent
of the building-wide systems. Thus, even if the building were subject to rent stabilization --
which is doubtful, as the residential use violated zoning requirements -- the building would have
been exempt from rent stabilization. The Court expressly rejected the tenant's argument that
a de facto multiple dwelling could be found in a commercial building not subject to the Loft
Law, particularly where residential use was prohibited by zoning requirements. The Court noted
that pre-Loft Law cases, which previously permitted de facto multiple dwelling claims in
commercial buildings, were superseded by the Loft Law, and thus, since the tenant could not
satisfy the Loft Law's requirements, there was no protection for the tenant's residential tenancy
in the commercial building.
- Case Caption:
- Tzifil Realty Corp. v. NY State Division of Housing and Community Renewal
- Issues/Legal Principles:
- DHCR may convert overcharge complaint to Fair Market Rent Appeal and reject
landlord's comparability data of apartments with fewer rooms.
- Keywords:
- FMRA; Fair Market Rent Appeal; comparability data
- Court:
- Supreme Court, Queens County
- Judge:
- Hon. Milano
- Date:
- January 3, 2001
- Citation:
- NYLJ, page 25, col 1
- Referred Statutes:
- 9 NYCRR 2523.1, 2522.3(b)(1) and (e)(1)
- Summary:
- Landlord brought an Article 78 proceeding, challenging the DHCR's decision granting
a tenant's Fair Market Rent Appeal (FMRA) and finding that the initial regulated rent charged
by the landlord exceeded the fair market rent for the decontrolled unit, resulting in an
overcharge.
The landlord argued that DHCR had no authority to convert the tenant's complaint, which
was initially filed as an overcharge complaint, to a FMRA, that the DHCR unlawfully failed to
consider comparability data submitted by the landlord, and that the DHCR violated the equal
protection and due process rights of the landlord by failing to permit the landlord to submit
additional data in support of the initial rent charged.
The Court denied and dismissed the landlord's Article 78 Petition, finding that the DHCR
had the authority to convert a rent overcharge complaint to a FMRA, holding that the tenant was
not required to state specific statutory language in such a complaint. Moreover, the tenant
alleged that the rent he was initially charged was excessive, and the landlord never produced
evidence that it served a DC-2 form (which notifies tenants of the change of regulation status
for their apartment and their right to file a FMRA). The Court also found that the DHCR's
rejection of comparability data was supported by statute (which requires comparability data from
comparable units which initial legal regulated rents are charged or determined within four (4)
years prior to, or one year after, the commencement date of the initial lease for the apartment
considered in the FMRA), and DHCR's rational policy, as none of the units satisfied the statute,
and the DHCR was entitled to reject apartments with fewer rooms (and higher rents) than the
subject apartment. Finally, the Court upheld DHCR's use of its special guidelines, and its strict
review of renovations claimed by the landlord, where the DHCR rejected all such claims which
were not directly provable for the subject apartment by clear invoices and check receipts noting
exactly what the payments were for (as some checks and invoices were for services performed
to units other than the subject unit). The Court also found that DHCR gave the owner ample
opportunity to submit its comparability data.
- Case Caption:
- Trustees of Columbia University v. Richman
- Issues/Legal Principles:
- Tenants claiming succession rights could not demonstrate they resided with the tenant
of record for the requisite two-year period insofar as the court found that tenant's hospitalization
two weeks before successors took occupancy was a permanent vacatur.
- Keywords:
- permanent vacatur; succession rights; hospitalization
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Brenda Spears
- Date:
- January 3, 2001
- Citation:
- NYLJ, page 24, col 1
- Referred Statutes:
- 9 NYCRR 2204.6(d)(1)
- Summary:
- For reasons set forth in the lower court's decision, the appellate term affirmed the denial
of respondents' succession rights claim. The Court further held that pursuant to the stipulation
of facts entered into by the parties, the tenant must be deemed to have permanently vacated the
premises upon her hospitalization on July 17, 1996. Moreover, the Court noted that respondents
came into possession on July 31, 1996, approximately two weeks after the tenant of record
entered the hospital. Accordingly, the Court held that contemporaneous occupancy is a
requirement for succession rights and accordingly, respondents could not demonstrate that they
"resided with" the tenant of record in the premises for two years immediately prior to the
tenant's permanent vacatur.
- Case Caption:
- New York City Housing Authority v. Lambert
- Issues/Legal Principles:
- Niece cannot succeed to aunt's apartment where her occupancy was authorized by the
Housing Authority as temporary and she moved into apartment less than one year prior to aunt's
permanent vacatur.
- Keywords:
- succession rights; remaining family member; interests of justice; estoppel
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Howard Sherman
- Date:
- January 4, 2001
- Citation:
- NYLJ, page 26, col 2
- Referred Statutes:
- NYC Housing Authority Manual (Ch VII[E][11](a))
- Summary:
- In this succession rights case, the appellate term reversed the trial court's decision and
awarded possession of the subject apartment to the Housing Authority. The Court held that the
record revealed that respondent moved into the subject apartment less than one year prior to the
permanent departure of respondent's aunt, the tenant of record. Moreover, the Court
emphasized that when respondent moved into the subject apartment, she obtained written
approval from the project management to occupy the apartment temporarily and not as a
permanent member of the tenant's family, with continued occupancy rights. Accordingly, the
Court held that respondent failed to establish her entitlement to possession of the apartment as
a remaining family member of the departed tenant and that both the "interests of justice"
standard adopted by the lower court as well as the doctrine of estoppel may not be used in the
present case to create tenancy rights.
- Case Caption:
- Emel Realty Corp. v. Carey
- Issues/Legal Principles:
- Appellate Term reverses trial court's decision in nonprimary residency case where video
tapes show tenant's sporadic visitation to apartment.
- Keywords:
- nonprimary residency; video tapes; burden of proof
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Ruben Andres Martino
- Date:
- January 4, 2001
- Citation:
- NYLJ, page 26, col 1
- Referred Statutes:
- none cited
- Summary:
- Landlord appealed the trial court's decision in a nonprimary residency proceeding and
the Appellate Term reversed the decision awarding possession to the landlord. The trial court
apparently relied on documentary evidence which linked the tenant to the subject apartment. In
its decision, the appellate court adopted the factual findings of the trial court and nonetheless
found that the landlord in fact met its burden of proof in establishing the tenant's non-primary
residence. The appellate court looked to video tapes introduced at trial (the landlord installed
a video camera opposite the entry door of the subject apartment), which proved that the tenant
visited the apartment sporadically and stayed overnight at the subject apartment only seven times
in a fifteen month period. Moreover, the video tapes proved that another person occupied the
apartment for a substantial part of the period in question. The trial court record reflected that
the tenant spent half of the year at her parent's residence in Florida, where she also worked as
a musician. Further, the appellate court noted that the tenant regularly stays with a friend at a
nearby apartment when she is in New York. The Court noted that the trial judge properly
observed that "respondent's claim that she left her apartment because of an asbestos condition
is not credible and belied by the fact that another person occupied the apartment" as well as that
the apartment is "underutilized" and that the tenant "spends relatively little time there."
- Case Caption:
- Goldman v. Hirsch
- Issues/Legal Principles:
- Appellate Term reverses and remands motion to vacate default where tenant was
unaware of the lower court's discovery order and its preclusive effect.
- Keywords:
- vacating defaults; discovery
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Ruben Andres Martino
- Date:
- January 4, 2001
- Citation:
- NYLJ, page 26, col 1
- Referred Statutes:
- none cited
- Summary:
- After tenant failed to comply with a discovery order, the landlord made a motion to
place the underlying nonprimary residency proceeding on the inquest calendar so as to hold her
in default. The tenant's attorney did not oppose this motion and instead cross-moved to be
discharged from representation on grounds that he had been unable to communicate with and was
not paid by his client. The appellate court noted that the attorney's affidavit failed to specify
in detail the attempts made to contact the tenant. As a result of the tenant's failure to respond
to the discovery order, the lower court awarded possession of the apartment to the landlord.
Upon receiving the marshall's notice of eviction, the tenant made a pro se motion to vacate the
default judgment. The tenant advised the court that while she was in Texas attending to family
matters, she experienced medical problems. The lower court denied tenant's motion to vacate
the judgment of possession finding that its prior order conditionally striking the tenant's answer
precluded it from providing relief from the defaults. The appellate court disagreed with the
lower court's reasoning and held that the lower court erred in not permitting the tenant to
present a meritorious defense based upon her primary residence. In reaching its decision to
reverse and remand the motion, the appellate court further noted that "it is clear from the
colloquy on the motion that the tenant as not cognizant of the discovery order or its preclusive
effect."
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