Housing Court Decisions March 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 March 26-30, 2001
(6 cases)
- Case Caption:
- Shared Equities Co. v. Roselle
- Issues/Legal Principles:
- Landlord's inadvertent acceptance of one month's rent check after terminating the
tenancy does not constitute a waiver where landlord consistently demonstrated an intent not to
reinstate the tenancy.
- Keywords:
- waiver; nonprimary residence
- Court:
- Appellate Term: First Department
- Judge:
- lower court: Hon. Larry S. Schachner
- Date:
- March 30, 2001
- Citation:
- NYLJ, page 20, col 1
- Referred Statutes:
- none cited
- Summary:
- Prior to the service of the holdover petition, the landlord inadvertently accepted rent for
one month. During the window period between termination of the tenancy on March 31, 1999
and commencement of the holdover proceeding in October, 1999 the tenant tendered and re-
tendered no fewer than 8 separate rent payments, even though landlord did not send a rent bill.
Except for June, 1999, the landlord returned all payments with a letter stating that litigation was
pending (more accurately, forthcoming). The Appellate Term held that "tenant's persistent
course of conduct in continuing to tender payments in the face of the landlord's repeated and
unequivocal rejections represented a transparent attempt to derail the landlord's nonprimary
residence claim and should not be rewarded." Accordingly, the Appellate Term ruled that the
acceptance of June, 1999 rent did not reinstate the tenancy which was terminated since landlord
never waived a right to proceed with the holdover proceeding.
- Case Caption:
- Meadow Glen Realty Co. v. State of New York Division of Housing and
Community Renewal
- Issues/Legal Principles:
- DHCR improperly denied landlord's application to restore the rent on grounds that the
landlord did not communicate with DHCR after an inspection date.
- Keywords:
- rent reduction; rent restoration
- Court:
- Supreme Court, Queens County
- Judge:
- Hon. Milano
- Date:
- March 28, 2001
- Citation:
- NYLJ, page 25, col 3
- Referred Statutes:
- none cited
- Summary:
- Landlord applied to DHCR to have tenant's rent restored after the DHCR had reduced
the rent due to violations. The DHCR Rent Administrator and the PAR Commissioner denied
landlord's request to restore the rent, and landlord appealed in an Article 78 to the Supreme
Court. Landlord's application to restore the rent alleged that the tenant unreasonably refused
to allow the landlord access to perform the necessary repairs (and thereupon get the rent
restored). On July 8, 1998, there was a "no access" inspection by the DHCR. The tenant was
present, as well as the landlord's representative and the landlord's worker. The purpose of this
meeting was to provide access to the owner for the purpose of attending to repairs and/or
restoration of service at this time. Tenant claimed that he purpose of the meeting was "strictly
a state inspection" and no repairs were done, even though landlord's workers were ready to
work. The basis for the DHCR's decision of denial of restoration of services is that the landlord
failed to communicate with the DHCR after July 8, 1998. The Supreme Court judge found that
the DHCR's decision was not rational. This was no proof in the record that tenant permitted
access on July 8, 1998 for the purpose of having the remaining repairs done.
- Case Caption:
- 104 Division Avenue, HDFC v. Lebovits
- Issues/Legal Principles:
- Stipulation requiring shareholder to occupy apartment is deemed violated when
undertenant continued to occupy apartment and owner's consent to purchase was withheld
reasonably.
- Keywords:
- sublet; waiver; stipulation
- Court:
- Appellate Term, Second and Eleventh Judicial Districts
- Judge:
- lower court: Hon. C. Bedford
- Date:
- March 30, 2001
- Citation:
- NYLJ, page 22, col 1
- Referred Statutes:
- none cited
- Summary:
- Landlord brought a holdover proceeding against tenant on grounds of illegal subletting.
In November, 1998, the parties settled the case wherein a judgment of possession was entered
against the tenant but the warrant was stayed for six months. The agreement provided that if
the tenant transferred his ownership shares in the cooperative apartment to his brother, the non-
party appellant, and if the apartment were vacant in six months except for occupancy by the
named shareholder and his immediate family, then the possessory judgment would be vacated.
The stipulation provided that if the non-party appellant wished to sell his shares to the named
undertenant in occupancy, the landlord would not unreasonably withhold consent. Six months
later, the apartment was still occupied by the undertenant whose application to purchase the
shares from the non-party appellant had been rejected due to incomplete and suspect responses.
About three months after the stipulation was signed, the appellant asked the court to
vacate the stipulation on grounds that the stock shares to the apartment were transferred to him
in December, 1998 (i.e., after the settlement), but he was not joined in the proceeding. He also
alleged that the landlord accepted rent from him from June to August, 1999 which created a new
tenancy. The Housing Court denied appellant's application to set aside the stipulation and the
Appellate Term affirmed. The Court noted that the record reflects at the time the shares were
transferred to appellant, he had full knowledge of the stipulation and its terms. Since the
stipulation was not complied with, appellant's possessory interest, if any, terminated and the
warrant could be executed after the six month deadline. The Court also rejected the notion that
a landlord-tenant relationship was created with the appellant, since all parties knew "or should
have known" that acceptance of the rent was without prejudice and was not intended to create
a tenancy.
- Notes:
- The Appellate Term found that where a prospective purchaser submits an incomplete
application to purchase a co-op, that this can be deemed a reasonable reason to deny the
application. By analogy, when a tenant submits a sublet application which requires that the
landlord may not "unreasonably withhold consent," tenants and their proposed subtenants are
advised to complete the entire information request. It is unfortunate that the decision does not
elaborate as to what constitutes a "suspect response" so that tenants can have greater insight into
what might be deemed a reasonable withholding of consent by a landlord. (Keep in mind, we
are analogizing, as opposed to applying, the facts of this case involving the purchase of a co-op
to a sublet request).
- Case Caption:
- Widerker v. Castro
- Issues/Legal Principles:
- New owner cannot evict tenant where tenant's previous relocation from another rent
controlled apartment at the request and for the convenience of the prior landlord allows her to
retain her rent control status in relocation apartment.
- Keywords:
- rent control; stipulation, certificate of occupancy
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Baynes
- Date:
- March 28, 2001
- Citation:
- NYLJ, page 25, col 2
- Referred Statutes:
- CPLR 3212, 3211(a)(7)
- Summary:
- Landlords purchased the building from Long Island College Hospital ("LICH"). Tenant
used to reside as a rent controlled tenant in another LICH building. In or about 1989, the back
wall of a third building collapsed which apparently impacted tenant's occupancy. As a result
the tenant was moved into the subject building on the ground floor. The agreement expressly
provided that the relocation was "at the request and for the convenience" of the landlord. LICH
agreed to register the apartment and her as rent controlled with DHCR and to renovate it so that
she could take possession in 1992. The agreement provided that upon LICH's default in timely
completing the required renovations, the tenant could stop paying rent at her current apartment
and would be compensated by LICH in the amount of $500 per month.
Apparently, after the tenant moved in LICH never did register the apartment or tenancy
as rent controlled. Landlord tried to argue that because LICH did not register the premises with
DHCR and because tenant did not insist that LICH so register, tenant waived her right to claim
controlled status. The court held that LICH's failure to register has no bearing upon the
determination of whether or not the tenant is protected by rent control laws. DHCR forms are
not determinative of this, but rather the "fact of occupancy." The court recited the standard case
law that where rent control tenants relocate "at the request and for the convenience" of the
landlord, they retain the protections of rent control laws. For this reason, plus the fact that the
landlord takes the property subject to the obligations of its predecessor, the court dismissed the
petition. The court noted that the landlord could bring a proceeding based on the fact that the
tenant might be occupying two apartments in violation of the certificate of occupancy.
- Case Caption:
- Holder v. Williams
- Issues/Legal Principles:
- Owner who fails to register multiple dwelling is still entitled to evict tenants because
tenants agreed to pay the rent and defaulted, and because tenants' health and safety is not
impaired.
- Keywords:
- multiple dwelling; certificate of occupancy; stipulation
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Marton
- Date:
- March 28, 2001
- Citation:
- NYLJ, page 24, col 5
- Referred Statutes:
- MDL 2, 4(7), 4(1), 325(2); NYCRR 208.42(g); RPAPL 749(3), CPLR 2014, 5015;
CCA 110(c); Article 6, Section 15(b) of the NYS Constitution; RPAPL, Article 7; New York
City Civil Court Act (CCA)
- Summary:
- Owner has a two family dwelling with a basement and lives on the second floor.
Tenants rented the first floor apartment and stopped paying rent four months after they moved
in. In a nonpayment proceeding neither the owner nor tenants had an attorney. The tenants
agreed to pay the arrears, and demanded that repairs be made. Tenants defaulted, and the
parties entered into a second agreement for the tenants to pay the rent, but they defaulted a
second time. On the third time all parties came to court with attorneys. The tenants alleged that
the basement was being used as an apartment and therefore the building consisted of three units
which made it a multiple dwelling. Pursuant to the Multiple Dwelling Law, an unregistered
multiple dwelling required the petition's dismissal. Landlord insisted no one lived in the
basement. The court's inspector found that the basement was set up for residential living, but
apparently no one had been living there for a while since it smelled musty and there was no food
in the refrigerator. The owner said that this is how the basement looked when she purchased
it 11 years ago, and that she only uses it for storage or for her grandchildren to play in. The
court concluded that there was no residential usage and that the petition should not be dismissed.
The tenants moved to reargue on new evidence and the court held another hearing at
which time the landlord testified that the prior owner's children lived there, but while she owned
the building no one had lived there. The tenants alleged that the owner's goddaughter lived in
the basement, but the owner testified that the goddaughter lived elsewhere and only came to the
basement to babysit the owner's grandchildren. The tenant, however, testified that she had
procured a piece of mail (a weekly cable tv paper) addressed to the goddaughter at the basement
apartment, that she had seen it in the owner's mail, made a copy, and returned the original to
the owner's mail. The owner did not call her goddaughter to the witness stand. The tenants
offered no other evidence for occupancy of the basement, such as utility or phone bills.
The court recognized that it had incorrectly ruled that the building was not a multiple
dwelling simply because no one occupied the basement. Rather, the correct analysis is whether
or not there are three or more units that are "arranged or designed to be occupied" residentially.
Since that is the case here, the court concluded that the building is a de facto multiple dwelling.
Once the building is deemed a multiple dwelling, since it is not registered the court is obliged
to dismiss the nonpayment proceeding since rent cannot be collected from a tenant in a multiple
dwelling which has not been registered according to the Multiple Dwelling Laws. The court
noted that the Multiple Dwelling Laws were enacted to promote the health and safety of
residents of multiple dwellings. The court observed that had the tenants raised this issue in the
very beginning as the reason why they withheld rent, the court would have granted the relief
they requested which is to dismiss the petition and not permit owner to collect any rent until the
premises are registered as a multiple dwelling. However, in this case, the tenants entered into
two prior agreements to pay the rent and defaulted both times. The court concluded that the
tenants "relinquished" their Multiple Dwelling Law defense and further there was no good cause
to reinstate the tenancy or vacate the stipulation. The court concluded that the health and safety
purposes of the law would not be served by allowing the tenants to remain in the apartment and
not pay rent. Rather, tenants would enrich themselves and impoverish the landlord and landlord
would not be able to pay real estate taxes, make mortgage payments, provide heat and hot water,
and landlord would come perilously close to bankruptcy. The court ordered that the tenants'
eviction could go forward.
- Case Caption:
- Mayes v. UVI Holdings Inc.
- Issues/Legal Principles:
- Landlord's lawyer is liable for unlawful eviction of tenant where law firm used an
invalid warrant to obtain possession of the apartment.
- Keywords:
- unlawful eviction; collateral estoppel; damages; agent; city marshal
- Court:
- Appellate Division, First Department
- Judge:
- Hon. Israel Rubin
- Date:
- March 30, 2001
- Citation:
- NYLJ, page 17, col 2
- Referred Statutes:
- RPAPL 853
- Summary:
- On July 9, 1996, plaintiffs-tenants were wrongfully evicted from the apartment on an
invalid warrant. The tenant sued the corporate owner, the managing agent, the landlord's
lawyer, and the city marshal. The tenant sued for unlawful eviction, and other claims such as
intentional and negligent infliction of emotional distress, conversion, negligence, personal injury
sustained when a portion of a ceiling fell on her back several days before the eviction, and fraud
on the part of the law firm for obtaining an invalid warrant. The landlord cross-claimed against
the law firm for malpractice. The law firm sought indemnification and contribution from the
other defendants, and the marshal sought indemnification against the law firm for obtaining an
invalid warrant.
In February, 1996, the landlord commenced a nonpayment proceeding against the tenant
for rent owed from September, 1995 to February, 1996. Service was made by conspicuous
place service (attached to the apartment door) and a postcard from the court was sent to the
tenant. The tenant did not appear in court and the landlord obtained a judgment of possession
against her on default on April 15, 1996. She was served a 72 hour notice of eviction
(nowadays marshals serve 6 business days notices). Two days later she obtained an order to
show cause staying the proceedings. On May 5, 1996, the parties entered into a stipulation
which provided for a schedule of repairs to be made and periodic rent payments as the repairs
progressed. In June, the landlord moved for a final judgment on grounds that the rent wasn't
paid. The motion was served by mail, but tenant did not appear on the return date of the
motion, and thereupon the landlord was awarded a possessory judgment with a five day stay of
the issuance of the warrant of eviction. No further warrant was obtained.
The marshal obtained legal possession on July 9th and on July 15th the tenant obtained
an order to show cause. The housing court judge ruled that the tenant was evicted illegally
because a new warrant was never issued for the second judgment, and ordered the tenant
restored to possession. The court noted that the landlord was offered an opportunity to implead
or call the marshal as a witness on an adjourned date, but the landlord twice declined to do so.
The tenant stated that by the time of her second order to show cause the apartment had
proceeded to the point where it had been gutted or "destroyed and all their belongings were
gone." No application was ever made by the law firm for a new warrant on the second
judgment. The law firm's secretary believed she had mailed a copy of the stipulation vacating
the first judgment and warrant to the marshal but offered no documentary proof. The law firm
sent the marshal a letter dated August 23, 1996 with a notation "good warrant 8-26-96." It is
not clear what the letter was intended to accomplish.
The Appellate Division held that whether the eviction was deliberate or inadvertent,
"there is no question that neither the landlord nor its attorneys can evade responsibility of the
wrongful eviction." Generally a landlord is not responsible for the manner in which a marshal
executes a warrant of eviction. The marshal only becomes the landlord's agent for legal purposes
when the process is irregular or unauthorized. When the housing judge ruled that the tenant was
illegally evicted based on a void warrant, the landlord was provided an opportunity to litigate
the full issue in Housing Court, but the landlord did not dispute its liability in Housing Court.
Therefore, the landlord is liable to the tenant for any damages sustained in the unlawful eviction.
The landlord is therefore estopped from now denying its liability. Likewise the law firm may
be chargeable with the misuse of process by agents employed to further the course of litigation,
even if the law firm's liability is only vicarious.
The Court concluded that the clients are relegated to relief against their former attorney
for any damages which the attorney's conduct may have caused the client where the liability
arises from some misconduct on the part of the attorney. As between the law firm and the
marshal, the Court ruled that the law firm was in control of the litigation and had superior
knowledge of the course of the litigation. Therefore, the firm bore the responsiblity to keep the
marshal informed as to the status of the warrant and its validity. The Court ruled that the
tenants are entitled to summary judgment as against the landlord and its attorneys, that the
landlord is entitled to summary judgment against the law firm for legal malpractice and the
marshal is entitled to summary judgment dismissing the complaint as against her. In a wrongful
eviction action, the Court noted that a plaintiff is permitted recovery of property damages and
damages for negligent infliction of emotional distress, in addition to traditional damages
measured by the loss of the value of the leasehold. In this case it appeared as if this plaintiff
tenant did not make a cognizable claim for damages against any of the parties as the tenant did
not recite causes of action in a proper form.
New York Law Journal, decisions for the week of March 19-23, 2001
(7 cases)
- Case Caption:
- Fort Holding Corp. v. Supple
- Issues/Legal Principles:
- Tenant is given no more chances to cure her nuisance.
- Keywords:
- nuisance
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Timmie Elsner
- Date:
- March 19, 2001
- Citation:
- NYLJ, page 24, col 5
- Referred Statutes:
- 9 NYCRR 2204.2(a)(2); RPAPL 753(4)
- Summary:
- Landlord commenced a nuisance holdover proceeding against the rent control tenant on
grounds that for a protracted period, the tenant had disturbed the other tenants with noise and
odors. In 1998 the tenant agreed to a one-year probation. In 1999, the housing court judge
made an inspection of the apartment and saw that the conditions still existed. The lower court
ruled that the tenant should be evicted, and the Appellate Term affirmed, holding that the tenant
can be given no more opportunities to cure, especially since the proceeding was based on
nuisance and not breach of lease (implying that a nuisance is not curable).
- Case Caption:
- Wheeler v. Andriani
- Issues/Legal Principles:
- Landlord's retention of security deposit is an issue independent from tenant's
withholding of last month's rent.
- Keywords:
- security deposit; attorney's fees
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Carol Arber
- Date:
- March 19, 2001
- Citation:
- NYLJ, page 24, col 5
- Referred Statutes:
- General Obligations Law 7-103
- Summary:
- When tenant-plaintiff left the apartment he stopped payment on the last month's rent
check. The defendant landlord refused to return tenant's security deposit because of alleged
damages to the apartment. After trial, the court granted judgment in tenant's favor in the
amount of the security deposit on grounds that the landlord had improperly commingled the
security deposit monies with her own funds, which constituted a conversion. The Appellate
Term reversed, holding that any such conversion did not constitute a defense to the landlord's
undisputed rent claim since a duty to pay the rent is independent from the landlord's duty to
refund the security deposit. The lower court erred in failing to set off the rent owed against
tenant's claim for a return on the security deposit. The Appellate Term also reversed the award
of attorney's fees to the tenant since the tenant only won less than half the amount he had sued
for which did not make him a prevailing party.
- Case Caption:
- Willows v. Tonkowich
- Issues/Legal Principles:
- Tenant who vacates after extension litigation and fails to pay $13,000 in rent is liable
for legal fees since landlord achieved the result intended, the recovery of the apartment.
- Keywords:
- abatement; legal fees
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Eardell Rashford
- Date:
- March 20, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- none cited
- Summary:
- After trial in this nonpayment proceeding, tenant was granted a 100% abatement for
a two year period based on DHPD's record violations and the landlord's failure to obtain a
certificate of occupancy for certain renovations within the apartment. For another two-ear
period tenant was given a 25% abatement. The lower court denied tenant's attorney's fees
request on grounds that the tenant was responsible for part of the delay in the correction of the
condition. The Appellate Term affirmed the lower court's decision on the fees, but for different
reasons. Ordinarily tenant would be deemed the prevailing party in this litigation based upon
a comparison of the amount of rent sought by the landlord and the amount recovered. However,
it is not disputed that upon entry of the final judgment for net arrears of roughly $13,000, the
tenant simply vacated the apartment leaving this entire amount unsatisfied. Landlord claims that
it would have been futile for it to appeal the judgment on the merits since the tenant had vacated
and even a successful appeal would only have resulted in the increase of a judgment that is
uncollectible. Since landlord ultimately obtained possession, landlord thus ultimately obtained
the central relief sought by it in the summary proceeding.
- Case Caption:
- Alimir Management Inc. v. Haberstroh
- Issues/Legal Principles:
- Landlord's holdover against tenant on grounds of unreasonably refusing landlord access
is dismissed due to the landlord's failure to produce witnesses at trial having personal knowledge
of tenant's alleged denial of access.
- Keywords:
- access
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Laurie Lau
- Date:
- March 20, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- CPLR 5013, 9 NYCRR 2204.2(a)(6)
- Summary:
- In this holdover proceeding against a rent controlled tenant, the trial court dismissed the
petition without prejudice at the close of the landlord's case on grounds that the landlord failed
to prove that the tenant had "unreasonably refused" the landlord access to the apartment for the
purpose of making necessary repairs or improvements required by law. The sole witness
produced (landlord's managing agent) had no particularized knowledge concerning the claimed
denial of access for the installation of new windows in tenant's apartment as part of a building-
wide program. The Appellate Term upheld the dismissal.
- Case Caption:
- Central Living LLC v. Payton
- Issues/Legal Principles:
- Landlord who served timely predicate notices in a nonprimary residency proceeding is
not subject to a DHCR order directing landlord to commence nonprimary residence proceeding
within thirty days.
- Keywords:
- nonprimary residency; primary jurisdiction; waiver; discovery
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Julia Rodriguez
- Date:
- March 21, 2001
- Citation:
- NYLJ, page 19, col 3
- Referred Statutes:
- CPLR 3211(b), 3212; RSL 26-504(a)(i)(f); RSC 2524.4(c), 2524.2(c)(2)
- Summary:
- On April 26, 2000, Landlord timely served tenant a notice that it was commencing a
nonprimary residency action against her and would not renew her lease when it expired on
August 31, 2000. In response the tenant filed a complaint with the DHCR that the landlord
refused to renew her lease, and that she did reside in the apartment but had to be in Romania
to attend to her sick mother and that it was hoped a cousin would be able to take over care-
taking in several months.
On August 8, 2000, the DHCR issued an order directing the landlord to commence a
proceeding within 30 days in a court of competent jurisdiction and such additional time as may
be required by law for service of various notices. The DHCR ruled that if the owner failed to
commence a proceeding within the prescribed time period, the owner must tender the tenant a
renewal lease. On September 22nd, the owner served tenant the holdover petition. The tenant
argued that the landlord failed to comply with the 30 day period set by the DHCR, in that the
petition was not served by September 7th. Landlord argued that it timely served the nonrenewal
notice.
The court rejected tenant's argument based on the doctrine of primary jurisdiction, since
a landlord can proceed to evict a regulated tenant in Housing Court without first obtaining
permission from the DHCR. The rent laws require an owner to serve a Golub Notice 90 to 120
days before the lease expires, plus a 30 day notice of intent to commence a proceeding, and the
two notices may be combined. The court found that in this case the landlord had complied with
both notice requirements, and therefore the landlord's holdover proceeding in Housing Court was
proper.
A second issue addressed by the court involved the landlord's acceptance of rent on
September 14th, which was after the termination date but prior to the commencement of the
proceeding. The rent check was from someone other than the tenant (seemingly the tenant's
daughter). The court, however, declined to dismiss the petition on the ground that the landlord
had recognized this person as the new tenant. In this case, the landlord's agent immediately
caught the error and refunded the check the very day it was deposited. This fact was not
disputed. The court concluded that in these circumstances it cannot be said that the landlord
intended to accept this person as a tenant.
The final issue involved landlord's request to conduct discovery on the tenant and her
daughter. The court ruled that discovery of the tenant was permissible, but not of her daughter
because the daughter "adamantly denies that an issue of succession will be raised" or that she
has any interest in the apartment. Since the daughter purports to have zero claim to the
apartment, the court ruled that discovery from her was inappropriate.
- Case Caption:
- Davis v. Waterside Housing Company, Inc.
- Issues/Legal Principles:
- Tenants' efforts to challenge voluntary dissolution of Mitchell-Lama housing fails on
procedural grounds and tenants failure to join Housing Preservation and Development (HPD)
as a party.
- Keywords:
- Mitchell-Lama; primary jurisdiction; Article 78; deregulation
- Court:
- Supreme Court, New York County
- Judge:
- lower court: Hon. Weissberg
- Date:
- March 19, 2001
- Citation:
- NYLJ, page 25, col 2
- Referred Statutes:
- RSC 2520.11(c); Rules of the City of New York 3-14(k)(5); CPLR 103(c); Private
Housing Finance Law 35(2)
- Summary:
- The plaintiff tenants reside in a Mitchell-Lama complex consisting of four buildings
constructed in the 1970s. The Mitchell-Lama program was designed to encourage the primate
development of law and middle income housing by offering developers long term, low interest
government mortgage loans and real estate tax abatements in return for which the developers
agree to regulations limiting, for example their profits and rent. Under the Private Housing
Finance Law, an owner of a Mitchell-Lama project which received loans under the program
after 1959 may leave the program 20 years after the building's "occupancy date" so long as the
owner pays any outstanding mortgage and expenses incurred in the dissolution of its Mitchell-
Lama status. The Rent Stabilization Code is silent as to whether a Mitchell-Lama building
completed after 1974 is to be subject to rent regulation after the owner dissolves its participation
in the program.
The defendant owner took the position that the four buildings together constitute a
horizontal multiple dwelling, two of which were constructed and received certificates of
occupancy after 1974, and as one building it should be dissolved from the Mitchell-Lama
program as one building. The landlord then filed an application to the DHCR seeking an order
as to whether some or all of the units in the four buildings are subject to rent stabilization once
they leave the Mitchell-Lama program. The tenants association agreed that the four buildings
should be treated as one unit, but argued that the date of the earliest certificate of occupancy,
issued prior to January 1, 1974 should be applied to all buildings so as to make them subject to
rent stabilization.
While the DHCR proceeding was pending, the tenants commenced a Supreme Court
action seeking a declaration on the very issue the DHCR was in the midst of deciding. The
tenants asked the court to stay DHCR from issuing a ruling. The landlord asked the Supreme
Court to dismiss the tenants' complaint on grounds that the DHCR has primary jurisdiction over
the issue of whether the buildings are to be subject to rent stabilization. The court denied the
defendants' request to dismiss the complaint and granted the tenants' request to stay DHCR from
rendering a decision. The Appellate Division, however, reversed and dismissed the complaint,
ruling that the DHCR has primary jurisdiction on this issue.
In the meantime, in August, 2000 the owner filed an application with Housing
Preservation and Development (HPD) to dissolve the Mitchell-Lama on March 1, 2001. A
Mitchell-Lama owner is required to serve the tenants notice of the dissolution and specify a date
and location for a "public information meeting" to discuss the proposed dissolution and its
effects on their rent stabilized right and obligations. The laws require HPD to issue a Letter of
No Objection to the owner's filing of a Certificate of Dissolution with the New York State
Secretary of State. In January, 2001, the tenants asked HPD to find that the owner's letter is
defective because it referred to the possibility that some or all of their apartments may not be
subject to rent stabilization after the dissolution. Further, the tenants argued that the letter fails
to show that all apartments were registered with DHCR. HPD rejected tenants' position on
grounds that HPD's rule regarding the public information meeting was enacted "before any
Mitchell-Lama housing companies owning buildings completed after January 1, 1974 became
eligible for voluntary dissolution" and thus did not "specifically address the post-dissolution rent
stabilization status of post 1974 properties."
The tenants commenced a lawsuit seeking a declaration that the owners' notice of public
information meeting was void and sought an injunction against the owners from taking any
further steps to dissolve the housing company until all the apartment units were registered with
the DHCR and to enjoin the owners from holding the information meeting. The tenants'
requests to stay the information meeting was granted pending the outcome of this motion. In
opposition, the owners argued that since HPD had not yet issued a Letter of No Objection, the
tenants' lawsuit was premature as all the procedural steps had not been exhausted. The tenants
argued that HPD's response to their January, 2001 request to reject the owner's notice clearly
indicated that HPD would not side with them (implying that HPD was going to issue a Letter
of No Objection). The court ruled that regardless of whether or not HPD had issued a final
decision or not, the proper procedure was not a declaratory judgment action, but rather an
Article 78 proceeding specifically naming HPD as a party. The tenants did not name HPD as
a party in this current action.
The court held that the requirements of an information meeting and whether or not the
units should be registered with the DHCR are issues which arise in the context of an
administrative hearing. A party aggrieved by an administrative agency's decision(s) cannot seek
a "second, superseding opinion in a plenary action" brought against the prevailing party in the
administrative process, much less in an action where the administrative agency is not even
named and thereby not given the opportunity to defend its decision. The exclusive remedy when
a party is aggrieved by an administrative decision is to file an Article 78 proceeding. The court
declined to add HPD as a party to the declaratory judgment action, finding it would be
inappropriate as new pleadings would be needed and this would entail a fundamental
transformation of the action.
In dicta, the court concluded that the tenants' motive was effectively to restrain the
owners from satisfying the preconditions for dissolution required by law. The purpose of the
lawsuit was to preserve the status quo until the DHCR rendered a decision. The court, however,
declined to allow that to happen. The court also noted there is no prejudice to the tenants were
the owners to go forward with the information meeting. The court dismissed the complaint
without prejudice to the tenants' commencement of an Article 78 proceeding.
- Case Caption:
- Robinson v. Lindsay Park Housing Corp.
- Issues/Legal Principles:
- Tenants' complaint alleging violation of their constitutional was dismissed because the
owner is a private corporation, not a government entity.
- Keywords:
- federal equal protection, federal due process, succession rights, Section 8
- Court:
- United States District Court, Southern District of New York
- Judge:
- Hon. Nickerson
- Date:
- March 23, 2001
- Citation:
- NYLJ, page 27, col 2
- Referred Statutes:
- United States Housing Act of 1937, 42 U.S.C. 1437a(d)(3), 1437a(f)(2); FRCP 72(b)
- Summary:
- Plaintiffs are a mother and daughter who claim that they used to live with their
mother/grandmother in the subject apartment before she died. They made at least two
applications for succession rights to the apartment before the Department of Housing
Preservation and Development, both of which were denied. One of the decisions was appealed
in an Article 78, but the attorney they retainedžand firedžapparently missed court dates which
resulted in a warrant issuing and the plaintiffs being evicted from the apartment. In this action,
the plaintiffs seek damages they incurred arising out of the eviction. Plaintiffs also seek
damages on grounds that their constitutional rights were violated under the due process and equal
protection clauses of the 14th Amendment, and federal rights under the federal Fair Housing
Act. However, the owner is a private housing company and not a State actor to which
constitutional claims are applicable. Had plaintiffs been beneficiaries of a federal subsidy
themselves, they could have amended their complaint to argue that a more flexible standard for
succession be applied to them, even in private housing.
New York Law Journal, decisions for the week of March 12-16, 2001
(7 cases)
- Case Caption:
- In Re 57th Street Operating v. DHPD
- Issues/Legal Principles:
- Landlord fails to obtain certificate of no harassment from HPD in light of tenants'
testimony of harassment.
- Keywords:
- SRO; certificate of no harassment; harassment
- Court:
- Appellate Division: First Department
- Judge:
- lower court: Hon. Harold Tompkins
- Date:
- March 12, 2001
- Citation:
- NYLJ, page 24, col 1
- Referred Statutes:
- CPLR Article 78
- Summary:
- Landlord sought a certificate of no harassment from the City's Department of Housing
Preservation and Development ("HPD") regarding the building located at 130 East 57th Street,
New York, New York. At a hearing HPD found that the landlord had harassed the tenants out
of their SRO (single room occupancy hotel) by illegally locking them out, abusing them verbally,
wrongfully refusing to offer them leases, failing to make necessary repairs and failing to
maintain the communal baths and toilets in sanitary condition. HPD further found that by such
harassment, the landlord intended to cause the tenants to vacate their rooms or otherwise waive
their occupancy rights. The tenants, staff of the SRO and other witnesses testified. Landlord
appealed, but lost on grounds that the findings were supported by substantial evidence.
- Notes:
- Without a certificate of no harassment, landlord's ability to use the property as desired
is constrained. For example, landlord cannot lease out the apartments, even if newly renovated,
as deregulated units.
- Case Caption:
- Evans v. Schneider
- Issues/Legal Principles:
- The automatic stay provisions in tenant's bankruptcy proceeding do not conflict with or
are applicable to landlord's notice of non-renewal of lease on owner occupancy grounds.
- Keywords:
- owner occupancy; nonrenewal notice; bankruptcy
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Douglas Hoffman
- Date:
- March 12, 2001
- Citation:
- NYLJ, page 24, col 4
- Referred Statutes:
- RSC 2524.4(a)(4), 2524.2(c)(3): 11 USC 362(a)
- Summary:
- The landlord brought an owner occupancy proceeding and sent the 120-150 day notice
of nonrenewal of lease. Landlord did not know that at the time tenant had a pending, but since
concluded bankruptcy proceeding. The lower court held that the notice was not in conflict with,
nor voided by, the automatic stay provision of the United States Bankruptcy Code. The
Appellate Term affirmed, holding that the notice is preliminary only and does not constitute the
initiation of litigation, and does not interfere with the tenant-debtor's property in a manner
warranting application of the automatic stay provision. In other words, the holdover proceeding
could still go forward.
- Case Caption:
- Soho Village Realty, Inc. v. Gaffney
- Issues/Legal Principles:
- Landlord is prevailing party entitled to legal fees against tenant who voluntarily
surrendered the apartment after 18 months of litigation.
- Keywords:
- nonprimary residence; attorney's fees
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Larry Schachner
- Date:
- March 14, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- none cited
- Summary:
- After 18 months of litigation in this nonprimary residency proceeding, tenant voluntarily
vacated the apartment. Two dismissal motions were brought by the tenant, the matter went up
on appeal, and motions were made by the landlord to compel tenant's compliance with orders
to pay the rent. Around the time a deposition was scheduled, tenant vacated the apartment. In
light of tenant's decision not to contest the matter further, the "ultimate outcome" was wholly
favorable to the landlord because the relief landlord sought, i.e., recovery of the apartment, was
eventually obtained when tenant surrendered the apartment. In these circumstances the Appellate
Term held that the landlord was the prevailing party entitled to recover from the tenant the legal
fees incurred.
- Case Caption:
- South Shore Estates Inc. v. Olsen
- Issues/Legal Principles:
- Even though first nonprimary residence proceeding in 1995 was not terminated on its
merits, landlord cannot rely on the 1995 Golub Notice as the basis for a second holdover
proceeding in 2000.
- Keywords:
- Golub Notice; nonprimary residency; discovery
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Shlomo Hagler
- Date:
- March 14, 2001
- Citation:
- NYLJ, page 20, col 3
- Referred Statutes:
- CPLR 408, 3211; 9 NYCRR 2524.2, 2524.4, 2523.5; RPL 232-a
- Summary:
- Landlord sought discovery from the tenants and the tenants cross-moved to dismiss the
petition. This is the second nonprimary residence proceeding against the tenants. In 1995, the
tenants sere served a Golub Notice (i.e., non-renewal of lease notice on grounds of primary
residence). In June, 1995, the tenants filed a complaint at the DHCR on grounds that the owner
had not renewed the lease. The DHCR terminated the proceeding on grounds that the owner
had a proceeding pending in Housing Court. The DHCR ruled that if the proceeding turned out
in tenant's favor, the owner was required to offer the tenant a renewal lease. In that first
proceeding the court denied landlord discovery because no affidavit was submitted and the court
concluded it was just a fishing expedition.
Meanwhile, landlord appealed the DHCR decision. But based on the court's denial of
discovery, the PAR Commissioner mistakenly concluded that the court had reached a final
disposition in the case, and therefore denied the appeal, and terminated the appeal in tenant's
favor, which meant landlord was required to give tenant a lease. In April, 2000 (5 years after
landlord's discovery motion), landlord moved to renew the motion for discovery, which the
initial judge said it could do if it re-submitted proper papers. A subsequent judge, however,
ruled that the landlord had effectively abandoned the proceeding. Instead of offering tenants a
renewal lease, the landlord instead served a thirty day notice terminating the tenancy and
intention to recover the premises on nonprimary residence grounds. No new Golub Notice was
served (nor could one be served until the tenants received a new lease). The issue for the court
to determine is whether the landlord could rely on the 1995 Golub Notice in bringing this second
holdover proceeding.
Landlord argued that it was not required to serve a new Golub Notice because the
DHCR's order effectively stayed all proceedings until a court of competent jurisdiction rendered
a determination on the merits, and to date, the merits of the case had not been addressed.
Hence, landlord is only required to serve a thirty day notice of termination under Real Property
Law 232-a, in effect treating the tenants as month to month tenants for the past five years. The
court pointed out that regulated tenancies are governed by statute which entitle a tenant to a
renewal lease at the expiration of the lease term. If the landlord does not want to renew the
lease, the landlord must sent a notice of nonrenewal in the window period (120 to 150 days prior
to the lease's expiration, although as of December 20, 2000, the period is 90 to 150 days). If
the landlord fails to serve this notice, known as a Golub Notice, landlord must wait until the
next window period.
The court analyzed the history of case law as to whether a notice of termination survives
dismissal of a proceeding. The general rule is that when a holdover proceeding is dismissed,
a new termination notice is needed. A wealth of case law follows this precedent. The only
exception is Arol Development Corp. v. Goodie Brand Packing Corp, 324 NYS2d 324, aff'd
378 NYS2d 231 (App. Term), aff'd 382 NYS2d 215 (App. Div., 1st Dept. 1976) which held
that the case is not dismissed if the second proceeding is brought promptly and before the first
proceeding is dismissed. This doctrine likewise applies to Golub Notices which do not terminate
the tenancy per se, but rather the landlord declines to continue the tenancy by nonrenewal of the
lease. In conclusion, the court held that the five year old Golub Notice cannot be used as the
basis for the second nonprimary residency proceeding. Otherwise, the Golub could hang like
a sword of Damocles over the tenants' heads for five years. The court ruled that the tenants are
entitled to a "certain peace of mind." The court rejected the landlord's argument that Arol
Development applied, because the second proceeding was not promptly brought. The Golub
Notice was stale by the time the second proceeding was commenced. It would be prejudicial
to allow the tenants to have to answer to a 1995 Golub Notice regarding their residential
whereabouts for the years 1992-1995.
- Case Caption:
- Kuttas v. Condon
- Issues/Legal Principles:
- Plaintiff tenant not entitled to legal fees in declaratory judgment action since basis of
landlord's notices to tenant did not constitute a failure to perform a covenant or agreement under
the lease.
- Keywords:
- attorneys fees; declaratory judgment
- Court:
- Supreme Court, Westchester County
- Judge:
- Hon. Lefkowitz
- Date:
- March 14, 2001
- Citation:
- NYLJ, page 23, col 1
- Referred Statutes:
- RPL 234
- Summary:
- Real Property Law 234 grants a tenant legal fees where a lease between the parties
grants legal fees to the landlord in two instances: (a) failure to perform any covenant or
agreement under the lease, or (b) in the successful defense of any action commenced by the
landlord against the tenant. The lease in this case gives the landlord the right to collect legal
fees on any default of the tenant. The plaintiff tenant commenced a declaratory judgment action
to ward off landlord's notice to cure and to surrender possession. The court held that attorney's
fees may be awarded in a tenant's declaratory judgment action. However, the lease provision
in this case does not apply because the landlord's notice did not constitute a failure to perform
a covenant or agreement. The court concluded that the landlord acted in good faith in claiming
that the tenancy was allegedly in violation of the Emergency Tenant Protection Act.
- Case Caption:
- Delavan v. Spirounias
- Issues/Legal Principles:
- Landlords fail to prove good faith regarding the transfer of the property from a prior
corporate owner to individuals, and court concludes that the transfer was done to evade the rent
stabilization laws.
- Keywords:
- owner occupancy; good faith
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Cavallo
- Date:
- March 14, 2001
- Citation:
- NYLJ, page 19, col 5
- Referred Statutes:
- Emergency Tenant Protection Act 2500.4; 9 NYCRR 2524.4(a)(3); RPAPL 741(1) and
(4); RPL 244; CPLR 4540, 2105, 4538; Multiple Dwelling Law 325
- Summary:
- Two landlords, Rice & Delavan, brought a holdover proceeding on owner occupancy
grounds because Rice intends to use the apartment as his primary residence. The tenant has
resided in this apartment since 1979. The deed was initially in the name of a corporation, but
in July, 1999 it was transferred to Delavan and Rice. The court held that a deed is necessary in
establishing an owner's prima facie case to recover the apartment, and in this instance the
landlords lacked credibility concerning the alleged transfer of the deed. Delavan testified at trial
that he purchased the deed in the name of Weston Renwick corporation which he alone owns
and controls. He stated that he moved into an empty apartment on the second floor with Rice
in July, 1999. They are not domestic partners. Delavan claimed that in July, 1999 he learned
that a corporation could not claim an occupied apartment under the owner use section of the
Rent Stabilization Code. As a result, he had a lawyer prepare a deed which transferred title
from the corporation to Delavan (51% interest) and Rice (49% interest). Rice testified that he
has no copy of the deed. He testified that he paid for the 49% interest but produced no proof
of payment, but claimed on cross-examination that Delavan lent him the money. Over the years,
Rice gave $160,000 to Delavan and at least $90,000 was a repayment of a lease and $15,000
may have been a gift. The owners presented an undated deed that was never recorded and there
was no credible testimony that the transfer of title from the corporation to the individual owners
ever took place.
The court ruled that the landlords may very well have made some deal concerning the
building, but they failed to meet their burden concerning the validity of the transfer and hence
ownership. The court likened Rice to an illusory owner. He allegedly paid roughly $70,000
for a 49% interest in a 1.3 million dollar property. The court held this is an extraordinary deal
if the transfer occurred. Further, the original mortgage naming the initial corporate owner is
still in existence. The corporation is listed as the managing agent. In other words, Delavan in
a corporate guise still manages the building. The DHCR filing lists Delavan alone as the owner.
The court concluded that Rice's sole function as "owner" seems to be that of a petitioner in this
case. The landlords argued that this is a case of technical errors. If Delavan had just conveyed
the apartment to himself, they argued, he would have been lawfully able to recover the
apartment for himself. The court, however, noted that had he done this and then installed Rice,
a friend without any family ties, he would have been in direct violation of the Code because this
is exactly the type of circumstance courts have found problematic: an owner who manipulates
the rent laws to oust bona fide tenants in favor of persons who would not otherwise be entitled
to possession under the owner occupancy laws.
- Case Caption:
- Eugenis v. Felipe
- Issues/Legal Principles:
- Landlord cannot obtain a monetary judgment against a tenant who never appears in a
proceeding unless the tenant was personally handed the nonpayment petition.
- Keywords:
- service of process; default; substitute service
- Court:
- Civil Court, Kings County
- Judge:
- Hon. Silber
- Date:
- March 14, 2001
- Citation:
- NYLJ, page 21, col 6
- Referred Statutes:
- RPAPL 735; CPLR 308(2), 320(a)
- Summary:
- Landlord brought a nonpayment proceeding brought against two tenants, Delacruz and
Felipe, by substitute service. Substitute service is where a person of suitable age and discretion
who resides at the premises and is willing to accept legal papers for each individual party is
personally handed the court papers. Felipe appeared in court, Delacruz did not, and the court
awarded the landlord possession as well as a monetary judgment against both tenants in the
amount of $3,068. Months later, Delacruz, brought an order to show cause claiming that she
was not a party to the nonpayment proceeding, had not been served with that petition and had
not lived in the apartment for three years. She asked the court to direct the landlord to unfreeze
her bank account which was frozen (i.e., restrained) when the landlord attempted to collect on
the money judgment. The court asked the parties to submit briefs on the issue of whether the
landlord properly obtained jurisdiction over Delacruz in order to bind her to the monetary
judgment in the nonpayment proceeding.
The landlord argued that Delacruz, as a co-tenant, was jointly and severally liable for
the rent unless she properly surrendered the apartment. The court, noted, however that the co-
tenant did not sign renewal leases. More significantly, the landlord did not properly serve
Delacruz to enable the court to render a money judgment against her. The court then analyzed
how service of process was made. The nonpayment petition was served by substitute service
on Marcus Doe, and copies were mailed to each tenant by regular and certified mail. But no
receipt of the certified mailings was attached to the affidavit of service. While the service that
took place here may be sufficient for a judgment of possession (since Felipe appeared), the court
held it was insufficient for a money judgment against Delacruz. The court differentiated service
of process in regular civil actions, as opposed to service in landlord-tenant cases. In order to
obtain a monetary judgment against a tenant in Housing Court, personal service of the petition
must be made if the tenant defaults or never appears. Substitute service is not acceptable to
obtain a money judgment (although it is in a civil court action).
New York Law Journal, decisions for the week of March 5-9, 2001
- Case Caption:
- Braka v. Mejia
- Issues/Legal Principles:
- A Notice to Cure in an owner use holdover proceeding was not insufficient on the basis that landlord already had an apartment in the same county in which he intends to take over tenant's apartment.
- Keywords:
- owner use, notice to cure
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Alpert
- Date:
- March 5, 2001
- Citation:
- NYLJ page 19, column 6
- Referred Statutes:
- 9 NYCRR 2524.4(a)(1)
- Summary:
Judge Alpert of the housing court granted a motion to dismiss a landlord's petition on the basis that the notice to cure failed to allege sufficient facts supporting his good faith intention to occupy the tenant's premises in an owner use holdover proceeding. Appellate Term reversed, holding that Landlord stated sufficient facts in notice to cure, i.e., that he intends on moving into subject apartment in Manhattan, and intends on renting out his present residence in Manhattan.
- Case Caption:
- Tedaldi v. Pratts
- Issues/Legal Principles:
- In an ejectment action, a 30-day notice of termination is required.
- Keywords:
- ejectment, notice
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Held br>
- Date:
- March 7, 2001
- Citation:
- NYLJ page 22, column 6
- Referred Statutes:
- none
- Summary:
Landlord commenced an ejectment action against a month-to-month tenant who was occupying an illegal apartment. Tenant moved to dismiss, saying that a 30-day notice of termination of tenancy should have been served. Landlord claimed that the notice of termination was unnecessary in an action for ejectment, where a tenant holds over beyond expiration of a tenancy if the tenancy is for a definite term. Since the tenancy was month-to-month, the court held that the tenancy was for an indefinite term, and therefore, a 30-day notice of termination was required. Thus, the action was dismissed. Further, the court held that the landlord was not entitled to use and occupancy because the apartment was illegal.
- Case Caption:
- Wuzlo v. Guido
- Issues/Legal Principles:
- Landlord can be sanctioned for frivolous motion conduct if the petition falsely alleges that a rent-controlled tenancy is not subject to rent regulation.
- Keywords:
- sanctions
- Court:
- Housing Court, New York County
- Judge:
- Hon. Bruce Sheckowitz
- Date:
- March 7, 2001
- Citation:
- 3/7/01 NYLJ p. 21, col. 2
- Referred Statutes:
- 22 NYCRR 130-1.2
- Summary:
Landlord commenced a holdover proceeding, alleging that the premises was not subject to rent control or rent stabilization. Court found that, five years prior to commencing the action, the landlord and the tenant were involved in a prior court action in which the court held that the tenants were rent-controlled. In that same prior proceeding, landlord had signed a stipulation settling the tenant's sanctions motion by agreeing to bring no further holdover proceedings based on allegations of decontrol of the apartment unless landlord first serves a decision from DHCR on tenant's attorney stating that tenant's apartment is no longer rent-controlled. The court granted $2500 in sanctions, $221.00 in costs; civil and criminal contempt were denied because the court found that such a sanction would be repetitive.
- Case Caption:
- 18th Street LLC v. Cardigan
- Issues/Legal Principles:
- Landlord's counsel conducted impermissible discovery when, after losing its motions for leave to take a depositioni of tenants doctor, counsel telephoned tenant's doctor and asked for nonconfidential patient information.
- Keywords:
- discovery, sanctions
- Court:
- Housing Court, NY County
- Judge:
- Hon. Julia Rodriguez
- Date:
- March 7, 2001
- Citation:
- NYLJ page 21, column 2
- Referred Statutes:
- CPLR 4504(a), 3101(b)
- Summary:
The court entertained a motion for sanctions against a landlord's attorney for a conversation with a tenant's doctor. In a holdover proceeding, landlord had alleged that tenant was in a nursing home and therefore does not occupy her apartment as her primary residence. After several discovery motions, limited discovery had been granted for the landlord to serve interrogatories, but the landlord's request to hold a deposition of tenant's doctor was denied. Tenant made a successful motion for summary judgment, alleging that tenant was preparing to leave the nursing home and to return to the apartment. As part of its motion, tenant included an affidavit from her doctor, stating that she was preparing to leave the nursing home. The court held that landlord's counsel engaged in unauthorized discovery and breached the rules of acceptable conduct by telephoning the doctor, and asking about the facts alleged in the affidavit. The court, however, declined to impose sanctions or disqualify landlord's counsel, because counsel did not conceal his conduct, nor did he use the information obtained to any unfair advantage. Further, the attorney did not obtain confidential or privileged information, but simply obtained a confirmation of the same facts alleged in the affidavit.
- Case Caption:
- Glorious 84 Realty Co. v. Daly
- Issues/Legal Principles:
- In a disputed decision, landlord was held to be the prevailing party in a nonpayment proceeding despite that fact that tenant won an abatement for roach infestation.
- Keywords:
- legal fees; abatement
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Carol Arber
- Date:
- March 7, 2001
- Citation:
- NYLJ page 18, column 1
- Referred Statutes:
- RPL 234
- Summary:
Landlord in a nonpayment proceeding was properly accorded the status of prevailing party in legal fees motion despite the fact that tenant had won a 5 percent abatement of the rent for failure of the landlord to abate roach condition. Court held that landlord prevailed by limiting tenant's recovery on the abatement claim to 5 percent. Court was not swayed by the fact that tenant tendered $6000 of $7200 in claimed rent arrears prior to trial as undisputed rent.
DISSENT: Judge McCooe wrote a lengthy dissent, pointing out that the tenant had in good faith paid the undisputed rent, and that, based on the facts, no party could be considered the prevailing party, and therefore no party should be awarded legal fees.
- Case Caption:
- Missionary Sisters of Sacred Heart v. DHCR
- Issues/Legal Principles:
- Limitation of laundry room hours constituted reduction of services.
- Keywords:
- reduction of services
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Elliot Wilk
- Date:
- March 7, 2001
- Citation:
- NYLJ page 19, column 2
- Referred Statutes:
- none
- Summary:
In this Article 78 proceeding, landlord appealed DHCR's decision that changing laundry room hours from 24 hours a day to 15 hours constituted reduction in services. According to a new rule by the landlord, the laundry room was closed between 11 p.m. to 8 a.m. After testimony, DHCR held that the reduction of hours caused overcrowding, pileups, and consequently, longer waiting times. The administrative decision was upheld on appeal in the Article 78. Landlord will be obligated to restore the services, presumably 24 hour access to the laundry room.
- Case Caption:
- Zada Assoiates v. Seven
- Issues/Legal Principles:
- Landlord's predecessor knew and acknowledged that tenant resided in commercial space, so current landlord cannot evict tenant on the grounds that the premises is a commercial space since she resided in the premises for 25 years.
- Keywords:
- residential usage; summary judgment; waiver
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Milton Tingling
- Date:
- March 8, 2001
- Citation:
- NYLJ page 19, column 6
- Referred Statutes:
- none cited
- Summary:
Landlord brought a holdover proceeding in the commercial part of civil housing court against a tenant who the landlord knew resided in the premises. The petition alleged, incorrectly, that the premises were rented for commercial purposes only. In a summary judgment motion, the Appellate Term held that the landlord presented no facts which disputed the tenant's positioin that the premises were used residentially, and that she has lived there for 25 years. In 1981 a prior landlord had brought a proceeding against the tenant on a similar ground and it was discontinued with prejudice and the prior landlord acknowledged that the tenant resided there. Since the current landlord is bound by the acts and knowledge of its predecessors, the landlord must accept the tenant's position and therefore the tenant should have won her summary judgment motion according to the Appellate Term.
- Case Caption:
- Vukovic v. Wilson
- Issues/Legal Principles:
- Landlord failed to show prima facie case of injurious conduct where it failed to produce testimony of neighbors allegedly affected by the tenant's "rude and offensive" behavior.
- Keywords:
- nuisance, witness testimony
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Howard Malatzky
- Date:
- March 8, 2001
- Citation:
- NYLJ page 19, column 6
- Referred Statutes:
- 9 NYCRR 2524.3(b)
- Summary:
Landlord brought a holdover proceeding against a tenant on grounds of nuisance. The housing court judge ruled against the tenant and ordered her eviction. The Appellate Term reversed and dismissed the holdover petition. Landlord alleged in notice of termination that neighbors had complained about confrontations with tenant. Since no neighbors were produced to testify, Appellate Term reversed the trial court and held that landlord failed to establish a course of conduct substantially injurious to the comfort and safety of other building occupants.
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