Housing Court Decisions November 2001
Editors: Colleen F. McGuire, Esq., Chief Editor
and Robert E. Sokolski, Esq.
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New York Law Journal, decisions for the week of November 26-30,
2001 (5 cases)
- Case Caption:
- Sunset Housing Assoc. v. Caban
- Issues/Legal Principles:
- Court denied nephew's succession rights claim to Section 8 apartment in the absence of
a showing that tenant listed nephew on income certifications during relevant time period.
- Keywords:
- Section 8; succession rights; subsidy; remaining family member; income certifications;
household composition
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Marton
- Date:
- November 28, 2001
- Citation:
- NYLJ, page 27, col 6
- Referred Statutes:
- 24 CFR Part 983, 982.4, 982.201(c); 42 USC 1437(f)
- Summary:
- The Court denied succession rights claim asserted by Section 8 tenant's nephew as a
remaining family member. The nephew lived with the tenant for four years until she
permanently vacated the subject apartment. However, since the nephew was never listed as an
occupant on the required household composition and income certifications, the court awarded
the landlord possession of the apartment. The court reasoned that to allow succession rights at
the fair market rent without a claim to the subsidy in effect removes the apartment from the
Section 8 program. Further, the court reasoned that to permit the nephew to claim succession
rights would open the door to the possibility of fraudulent claims and a "wholesale disregard of
the intent of the subsidy program."
- Case Caption:
- Matter of Germosen v. NYS DHCR
- Issues/Legal Principles:
- Landlord's late registration prior to rent administrator's order could not form the basis
of a rent freeze and overcharge award.
- Keywords:
- Article 78; overcharge; rent freeze; MCI; rent registration
- Court:
- Supreme Court, New York County
- Judge:
- Hon. McCooe
- Date:
- November 28, 2001
- Citation:
- NYLJ, page 20, col 6
- Referred Statutes:
- RSC 2528.4, 2522.5(d); Admin. Code of the City of NY 26-517(e); 9 NYCRR
2825.4(a)
- Summary:
- Tenant commenced an Article 78 proceeding to challenge DHCR's reversal of its finding
of an overcharge by its Rent Administator. The Court dismissed tenant's petition, holding that
DHCR's reversal of the overcharge award was not arbitrary and capricious and had a rational
basis in the record. Tenant filed the underlying rent overcharge complaint on April 3, 1992 in
response to the landlord's request for an major capital improvement (MCI) increase. The
landlord submitted copies of the annual apartment registration for 1985 as well as the three
leases covering the period 1987 through 1993. The Court noted that all leases provided that the
rent could be increased or decreased pursuant to a DHCR order. The landlord also submitted
an order which identified certain improvements (i.e. pointing, elevator, doors, windows, etc.)
and the cost of same. The order granted a rent increase to the landlord and computed retroactive
rent arrears. The rent administrator froze the rent since the landlord did not register the subject
premises for 1992 and 1995, resulting in an overcharge and treble damages. However, in 1996
and prior to the rent administrator's order, the landlord filed late registrations for 1992 and
1995. As a result, DHCR reversed itself on PAR (administrative appeal) holding that the 1992
and 1995 registrations could not form the basis of a rent freeze and subsequent overcharge award
since they were corrected prior to the rent administrator's order. The Supreme Court upheld
DHCR's PAR decision citing to the New York City Administrative Code.
- Case Caption:
- Pagano v. Cohen
- Issues/Legal Principles:
- Pendency of prior unlawful sublet proceeding does not bar maintenance of nonprimary
residency proceeding.
- Keywords:
- doctrine of prior proceeding; judicial estoppel
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower Court: Hon. Jackman-Brown
- Date:
- November 29, 2001
- Citation:
- NYLJ, page 23, col 4
- Referred Statutes:
- CPLR 3211(a)(4), 3014
- Summary:
- The Appellate Term upheld the lower court's ruling that the pendency of a prior illegal
sublet proceeding did not bar the maintenance of a nonprimary residency proceeding. The Court
held that the doctrine of prior proceeding pending applies when the two proceedings are based
on the same actionable wrong. Unlawful sublet and nonprimary residency proceedings look to
similar facts, yet they are based on different actionable wrongs. The Court also rejected tenant's
argument that the doctrine of judicial estoppel precludes the landlord from asserting inconsistent
termination dates since the landlord did not obtain a judgment in the prior proceeding.
- Notes:
- The inquiry in a nonprimary residency proceeding is where the tenant primarily resides.
If the Court finds that the tenant does not maintain the rent stabilized apartment as his or her
primary residence, then the tenant may not cure (i.e. move back in). The landlord may only
commence such a proceeding at the expiration of the lease. The inquiry in an unlawful sublet
proceeding is whether the tenant has sublet his or her apartment by allowing a third party to
reside at the apartment without the landlord's consent. If the tenant can prove that a third party
does not have use of the apartment, then an inquiry into tenant's residence should not be
permitted. However, in instances where a third party utilizes the apartment and the tenant has
an alternate address the tenant's residence becomes a relevant issue. Often, the defense asserted
is that the occupant is a roommate and not a subtenant. Accordingly, the Court will allow the
landlord to inquire as to the tenant's primary residence in order to determine whether the tenant
does not utilize the apartment, thereby engaging in subletting or whether the tenant resides at
the apartment with the third party, thereby engaging in a roommate situation.
- Case Caption:
- Decarvalhosa v. Adler
- Issues/Legal Principles:
- Notice of dismissal of prior proceeding does not contstitute adjudication on the merits
in the absence of a finding of harassment.
- Keywords:
- discontinuance; notice of dismissal
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Larry S. Schachner
- Date:
- November 30, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- CPLR 3217(c)
- Summary:
- Appellate Term upheld the lower court's denial of tenant's motion to dismiss underlying
nonpayment proceeding. The tenant argued that pursuant to CPLR 3217(c), the instant
proceeding was barred by the landlord's notice of discontinuance of a prior nonpayment
proceeding. The Court held that the purpose of CPLR 3217(c) is to curb the use of
discontinuance as a means of harassment. However, when the record is clear that the party
discontinuing a case has no harassment in mind, then such a discontinuance shall not operate as
an adjudication on the merits.
- Case Caption:
- Second-82nd Street Corp. v. Vrionis
- Issues/Legal Principles:
- Testimony of building superintendant who worked limited morning shift was insufficient
evidence to meet landlord's burden of proving tenant's nonprimary residence.
- Keywords:
- nonprimary residence; burden of proof
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Larry S. Schachner
- Date:
- November 30, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- none cited
- Summary:
- Appellate Term upheld trial court's dismissal of nonprimary residency proceeding
holding that the landlord failed to meet its burden of proving that the tenant did not use the
subject premises for actual dwelling purposes. The Court noted that the landlord's trial
submission was sparse and lacked competent evidence. The building superintendant was the only
witness called by the landlord who had knowledge of the tenant's usage of the apartment. The
super testified that he only saw the tenant sporadically during his limited morning shift. He
further testifed that he believed that the tenant lived "somewhere in Westchester County" and
that other occupants (which the super described as roommates) lived in the subject apartment.
However, the super did not have actual knowledge of an alternate address.
New York Law Journal, decisions for the week of November 19-23,
2001 (4 cases)
- Case Caption:
- 88-09 Realty v. Hill
- Issues/Legal Principles:
- Tenant's knowledge of her son and grandson's sale and preparation of narcotics from
her apartment may be inferred from the evidence resulting in her eviction.
- Keywords:
- narcotics; crack cocaine; drugs
- Court:
- Appellate Term, 2nd & 11th Districts
- Judge:
- lower Court: Hon. P. Jackman-Brown
- Date:
- November 19, 2001
- Citation:
- NYLJ, page 31, col 3
- Referred Statutes:
- RPAPL 711(5)
- Summary:
- Landlord commenced proceeding seeking to evict tenant whose grandson resided at and
sold drugs from her apartment. The lower court awarded the landlord possession as against the
grandson but not against the tenant. The landlord appealed that portion of the decision which
dismissed the petition against the tenant. The Appellate Court reversed holding that the evidence
inferred that the tenant knew of and acquiesced in the apartment's regular use for the preparation
and sale of narcotics and that her contrary claim cannot be credited. The evidence reflected that
in April, 1999 the police recovered the following items which evidence that narcotics were
prepared and/or sold from the apartment: nine bags of crack cocaine, a silver razor on which
there was crack cocaine residue, two scales, a shoebox containing drug paraphernalia and three
beepers. Tenant's son was arrested during this search. In June, 1999 the police executed on
another search warrant finding a small amount of contraband in the living room couch. During
this search, the police arrested the father of tenant's grandson. At the time of both arrests,
tenant's son and her grandson's father informed the police that the subject apartment was their
address. The evidence further reflected that tenant works consecutive 24-hour shifts, leaving
her home early on Wednesday and returning on Sunday. While the tenant was at work, her son
was in her apartment. Prior to the issuance of the first search warrant, the tenant obtained an
order of protection excluding her son from her home. Moreover, there was no evidence of
illegal activity occurring at the apartment when the tenant was present. Notwithstanding, the
appellate court found that the evidence imputed knowledge to the tenant that her apartment was
being used for the sale and/or preparation of narcotics.
- Notes:
- The entirety of the case was not published in this decision, but nonetheless, the facts that
were published render a harsh result. The fact that this tenant obtained an order of protection
shows that she made a genuine effort to deal with male family members who were jeopardizing
her apartment. She should not be penalized for these men's actions.
- Case Caption:
- In Re Application of 201 East 81st Street Associates v. DHCR and Gould
- Issues/Legal Principles:
- Landlord who admits renovations costs were inflated is liable for overcharges and treble
damages.
- Keywords:
- improvements; treble damages; overcharge
- Court:
- Appellate Division, First Department
- Judge:
- lower Court: Hon. Lottie Wilkins
- Date:
- November 19, 2001
- Citation:
- NYLJ, page 23, col 6
- Referred Statutes:
- none cited
- Summary:
- The landlord appealed the Supreme Court's denial of an application to annul DHCR's
finding of rent overcharge and treble damages. The Appellate Division held that DHCR's
finding was based largely on the credibility of four witnesses (architect, plumber, electrician and
carpenter) who testified that no plumbing or rewiring work was done in areas other than the
kitchen. Further, they testified that the painting, plastering and demolition were largely routine
and therefore not a permissible cost for the purposes of obtaining a rent increase. Moreover,
they testified that the charges for other work performed was excessive compared to the costs for
similar work done by the contractor on a similar apartment in the building one year prior as well
as what the witnesses themselves would charge for such work. The landlord's contractor
testified that he knew that the charges were inflated but that he was trying to recoup its losses
on the prior job. The Court held that this admission alone constitutes a basis for treble damages.
- Case Caption:
- West Waverly Equities Group v. Lieff
- Issues/Legal Principles:
- Prior unlawful sublet proceeding and acceptance of rent payment after termination of
tenancy did not nullify nonprimary residency proceeding.
- Keywords:
- nonprimary residency; termination notice; waiver
- Court:
- Appellate Term, First Department
- Judge:
- lower Court: Hon. Deighton S. Waithe
- Date:
- November 19, 2001
- Citation:
- NYLJ, page 24, col 5
- Referred Statutes:
- CPLR 3211
- Summary:
- Appellate Term reversed the lower court's dismissal of nonprimary residency
proceeding based on landlord's previous prosecution of an unlawful sublet proceeding that was
discontinued on consent. The Court held that the prior proceeding is not inconsistent with the
present claim of nonprimary residence and did not nullify the termination notice. In addition,
the Court held that the record did not establish that the landlord intended to relinquish a known
right when it accepted a single unsolicited rent payment from tenant after serving termination
notice and prior to commencement of the instant proceeding.
- Case Caption:
- Chelsmore Apts., LLC v. Garcia
- Issues/Legal Principles:
- Underutilization of rent stabilized apartment as a result of work related travel is not by
itself grounds for nonprimary residence proceeding.
- Keywords:
- merchant marine; travel; nonprimary residence
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Shlomo Hagler
- Date:
- November 21, 2001
- Citation:
- NYLJ, page 22, col 3
- Referred Statutes:
- none cited
- Summary:
- In this nonprimary residency proceeding, both tenant and her husband are employed by
the merchant marine, requiring them to be at sea for extended periods of time. Tenant's
husband stipulated that Spain was his primary residence. The court dismissed the petition as
against the tenant holding that underutilization of a rent stabilized apartment is not grounds for
eviction when tenant's absence is caused by professional or work-related travel and it is
otherwise the tenant's primary residence.
New York Law Journal, decisions for the week of November 12-16, 2001
(3 cases)
- Case Caption:
- Suraci v. Kousnsky
- Issues/Legal Principles:
- Allegation of illegal alien status without a basis in fact is not grounds for denial of Loft
Law protection.
- Keywords:
- Loft Law; illegal alien
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Timmie Elsner
- Date:
- November 14, 2001
- Citation:
- NYLJ, page 20, col 1
- Referred Statutes:
- RPAPL 711; MDL 280
- Summary:
- In 1997, the parties previously stipulated that the tenant was entitled to Loft Law
protection. In July, 2001, the landlord commenced the instant action for a declaration that the
prior agreement is void since the tenant is an illegal alien. The landlord argued that the Loft
Law applies only to "residential occupants" or "residents" of New York City. The landlord
further argued that illegal aliens are temporarily in the country and that the courts cannot
condone blatant violations of the laws of the United States. Tenant moved to dismiss on grounds
that the landlord failed to state a cause of action under RPAPL 711. In determining whether
tenant's immigration status affected his rights under the Loft Law, the Court placed emphasis
on the fact that the landlord failed to provide any evidence that the tenant was in fact an illegal
alien (i.e. an order from the Immigration and Naturalization Service). Instead, the petition
merely alleges that "upon information and belief" the tenant is an illegal alien. Accordingly,
since the petition was not based upon facts, the Court granted tenant's motion to dismiss. The
Court stated that had the landlord commenced the case based on actual knowledge of tenant's
illegal status, then the proceeding may have some validity. The landlord cited to an appellate
term case (Honeyman v. Collingwood) in support of his argument that the Housing Courts can
enforce immigration law violations in a landlord-tenant context. The court rejected the landlord's
reliance on this case. In determining whether tenant could establish the requisite period
necessary for succession rights, the Honeyman Court looked at the tenant's type of visa (as well
as various other facts) as a factor. The Court did not look to the tenant's immigration status as
the basis for rendering its decision.
- Notes:
- The court must be commended for deciding against the landlord in this offensive case.
This case takes on a particular light given the recent and ongoing deprivation of civil liberties
the U.S. government is engaging in on grounds of the September 11 tragedy. Foreigners,
lawfully present in the U.S., are being subject to unacceptable violations of civil rights.
Fortunately, this court did not get caught up in any type of anti-immigrant bias.
- Case Caption:
- Inwood Associates v. Sample
- Issues/Legal Principles:
- Section 8; subsidy
- Keywords:
- Section 8 tenant is liable but cannot be evicted for retroactive modified arrears.
- Court:
- Nassau County District Court
- Judge:
- Hon. Asarch
- Date:
- November 14, 2001
- Citation:
- NYLJ, page 22, col 6
- Referred Statutes:
-
- Summary:
- The tenant in this case was eligible for and receiving Section 8 subsidies towards the rent
due pursuant to her lease with the landlord. The subsidy is subject to change in the event
tenant's income changes or if the tenant fails to recertify his/her income or provide necessary
information on family composition. In the instant case, an audit of tenant's income resulted in
a retroactive downward modification in the amount of subsidy. Accordingly, the landlord was
obligated to repay part of the subsidy that was paid on her behalf. In turn, pursuant to her
lease, the tenant is obligated to repay this amount to the landlord. The landlord commenced the
instant nonpayment proceeding to recover both this sum as well as tenant's arrears representing
unsubsidized rent. The court awarded the landlord a money judgment for the full amount due
and owing but held that the landlord may not recover possession of the apartment with respect
to the modified retroactive rent. Accordingly, the landlord was also awarded a judgment of
possession with respect to the unsubsidized arrears. The tenant was given ten days to pay this
amount in order to nullify the warrant of eviction.
- Case Caption:
- Strycker's Bay Apartments, Inc. v. Sharpe
- Issues/Legal Principles:
- Court may look to unsigned, form Mitchell-Lama occupancy agreement in order to
award attorney's fees.
- Keywords:
- attorney's fees; prevailing party; occupancy agreement; Mitchell-Lama
- Court:
- Appellate Term, First Department
- Judge:
- lower Court: Hon. Deighton S. Waithe
- Date:
- November 16, 2001
- Citation:
- NYLJ, page 20, col 3
- Referred Statutes:
- none cited
- Summary:
- The Appellate Term modified the order of the lower court to the extent that it granted
the landlord reasonable attorney's fees as the prevailing party to the litigation. The Court noted
that on a previous appeal, the Court granted landlord's petition for additional rent under the
occupancy agreement. The additional rent is attributable to window replacement costs. Tenant
argued that he is not bound by the occupancy agreement since he did not sign it. The Court
rejected this argument since the entire proceeding was litigated based on the form occupancy
agreement issued to all tenant-shareholders. Further, tenant did not assert that the form
occupancy agreement failed to accurately reflect the terms and conditions governing his tenancy.
New York Law Journal, decisions for the week of November 5-9, 2001
(7 cases)
- Case Caption:
- Sneddon v. Greene
- Issues/Legal Principles:
- Landlord is not entitled to a judgment of possession upon tenant's failure to sign renewal
lease that was offered pursuant to a so-ordered stipulation of settlement.
- Keywords:
- condominium; stipulation of settlement; possessory judgment
- Court:
- Appellate Term, 9th & 10th Judicial Districts
- Judge:
- lower court: Hon. A. Pasquantonio
- Date:
- November 6, 2001
- Citation:
- NYLJ, page 27, col 2
- Referred Statutes:
- CPLR 5520[c]
- Summary:
- The Appellate Court reversed the lower court's holding that awarded the landlord in this
case a possessory judgment for the tenant's breach of a so-ordered stipulation of settlement. The
underlying stipulation provided in part for a judgment of possession in the event tenant failed
to pay landlord a specified sum of money, representing rent and parking fees. The stipulation
further provided that the landlord of subject condominium unit was obligated to offer tenant a
one-year renewal lease with a fair market rental increase. There is no allegation that the tenant
failed to pay as required. The landlord's motion for a possessory judgment is based solely on
the fact that tenant failed to sign the renewal lease. The appellate court held that although the
landlord was obligated to offer the renewal lease, the stipulation did not provide for a judgment
of possession in the event of tenant's failure to sign same. Although the tenant was not obligated
to sign same, the court noted that the landlord could commence a holdover proceeding as a result
of the expiration of the tenancy.
- Case Caption:
- Matter of Emerson E. Welch v. New York State Division of Housing and
Community Renewal and Fraulene Harris
- Issues/Legal Principles:
- Article 78 proceeding is dismissed for failure to exhaust administrative remedies.
- Keywords:
- overcharge; PAR; administrative remedies; Article 78 proceeding
- Court:
- Appellate Division, Second Department
- Judge:
- lower court: Hon. Mason
- Date:
- November 6, 2001
- Citation:
- NYLJ, page 23, col 6
- Referred Statutes:
- 9 NYCRR 2510.12, 2530.1
- Summary:
- The underlying Article 78 proceeding was commenced by the landlord, which sought
to annul the decision and order of the Division of Housing and Community Renewal (DHCR)
which found that he overcharged respondent-tenant Fraulene Harris. The Supreme Court granted
the landlord's petition and respondent DHCR brought the instant appeal. The Appellate Division
held that the Supreme Court erred in granting the petition since the landlord never filed a
Petition for Administrative Review (PAR) of the Rent Administrator's decision and order.
Rather, upon receipt of the decision and order, the landlord prematurely commenced the Article
78 proceeding. The landlord's time to file a PAR has since expired. Accordingly, the Court
dismissed the landlord's Article 78 proceeding for failing to exhaust administrative remedies.
The Court reasoned that it is well settled law that a party must exhaust its administrative
remedies before being able to litigate in court.
- Case Caption:
- East 145 Co. v. Benayoun
- Issues/Legal Principles:
- Tenant barred from attempting to utilize retaliatory eviction defense in reliance on
evidence of prior negligence case.
- Keywords:
- retaliatory eviction; pet clause; summary judgment
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Jerald R. Klein
- Date:
- November 7, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- NYC Admin Code 27-2009.1; RPL 223-b; RPAPL 753[4]
- Summary:
- Tenants concede that they harbored a dog in violation of the "no pets" clause in their
lease and that the holdover proceeding was timely commenced under the NYC Administrative
Code. The appellate term upheld the lower court's ruling which granted the landlord summary
judgment on the holdover petition and modified by further granting the landlord's motion to
strike the tenant's affirmative defense of retaliatory eviction. The court held that the record
reflected no factual basis on the defense of retaliatory eviction, such as a good faith complaint
to a governmental agency concerning conditions in the apartment. A retaliatory eviction claim
would have defeated the landlord's motion for summary judgment. The court held that a prior
negligence lawsuit commenced as a result of injuries sustained by the tenant's son at the subject
premises is not in and of itself an adequate basis for a retaliatory eviction claim.
- Case Caption:
- 15 West 24th Street Corp. v. Stallman
- Issues/Legal Principles:
- Court dismisses nonpayment proceeding since rent demand not served on tenant-assignee
in possession and landlord's challenge to assignment barred by collateral estoppel.
- Keywords:
- rent demand; collateral estoppel; assignments
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Eileen Rakower
- Date:
- November 7, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- RPAPL 711[2]
- Summary:
- The Appellate Term upheld the lower court's dismissal of the underlying nonpayment
proceeding on grounds that the rent demand was served solely upon the tenant-assignor who was
no longer in possession of the subject apartment. The record reflected that the rent was not
demanded either orally or in writing from the known assignee. Proof of a proper rent demand
is a jurisdictional prerequisite to a summary proceeding. On appeal, the landlord attempted to
challenge the validity of the assignment based on its lack of written consent. Finally, the court
held that the landlord may not raise this issue for the first time on appeal and that the issue was
already litigated in a prior action and the landlord is barred from relitigating same by the
doctrine of collateral estoppel.
- Case Caption:
- Matter of BK Street Corp. v. New York State Division of Housing and Community
Renewal
- Issues/Legal Principles:
- DHCR failed to timely inform landlord of tenant's Fair Market Rent Appeal which
prejudiced landlord from preserving comparability records, and thus the court vacated the
overcharge awarded to tenant by the DHCR.
- Keywords:
- fair market rent appeal; comparability records
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Alice Schlesinger
- Date:
- November 7, 2001
- Citation:
- NYLJ, page 18, col 2
- Referred Statutes:
- State Administrative Procedure Act 307(2)
- Summary:
- The landlord appealed a DHCR decision which awarded tenant $42,571.68 for
overcharges in rent from 1990 to 1998. The first rent stabilized tenant commenced occupancy
in 1990 and filed an overcharge complaint regarding individual apartment improvements. He
did not check off the box addressing a Fair Market Rent Appeal, but stated in his complaint that
he never received the initial apartment registration and that he believed the prior tenant was rent
controlled. There were different docket numbers for the different issues raised by the tenant,
some of which had been resolved and were no longer pending. DHCR and tenant communicated
a number of times thereafter without landlord's involvement. In a June, 1992 submission tenant
stated "I challenge (in addition to my initial rent and registration) the major capital improvement
have been charged and paid." This 1992 letter was never shared with the landlord.
Landlord's primary dispute is that the DHCR treated the tenant's complaint as a Fair
Market Rent Appeal but did not advise the landlord of this until 1997, and landlord also argued
that even the tenant did not treat his complaint as a FMRA as evidenced by the 1992 letter. It
was not until 1997 that the landlord was first asked to submit comparability records. By 1998,
tenant stated that he did not dispute the four leases proffered by landlord to DHCR to show the
comparable rents charged were not in excess to what the tenant was charged. Landlord argues
prejudice because the DHCR delayed from 1990 until 1997 before notifying the owner that
tenant's complaint was treated as an FMRA. This lengthy delay prevented landlord from
preserving and submitting acceptable comparability data. Additionally, landlord had no reason
to believe that the tenant had even filed a FMRA.
DHCR argued that delay alone is not a sufficient reason alone to deny a FMRA. The
building had changed hands in 1992 and was not on notice that tenant had filed a FMRA. Thus,
the new owners had no reason to retain their comparability records for the four years before the
application was filed. Over the years the DHCR communicated numerous times with the tenant
and did not share these communications with the landlord, which is a violation of the State
Administrative Procedure Act.
The court observed that this "is a difficult case and a close one." The court noted that
the initial registration was not filed until 1998, months after the DHCR decided to convert this
proceeding to a FMRA. The tenant was still never served the statutory notices he was entitled
to. Hence his time to file a FMRA never expired. Hence, DHCR had every right even until
1997 to ascertain tenant's intent. The court, however, held that the problem is that the DHCR
"proceeded in this fashion unbeknownst to the owner who thereby had no reason to preserve the
records he arguably would have had in order to defend this claim. Therefore he was prejudiced
by the Agency's wrongful acts." This is particularly so since in 1997 the law changed so that
FMRA inquiries could not go back greater than 4 years, but here the owner was asked to
produce records from 1986 through 1991 at the end of 1997. Accordingly, the court reversed
the DHCR's decision in favor of the tenant.
- Case Caption:
- ATM One LLC v. Albano
- Issues/Legal Principles:
- Tender of lease renewal with knowledge of no pet clause violation does not create a
waiver of landlord's right to object to dog.
- Keywords:
- pet clause; cure period; lease renewal; medicinal necessity; disability
- Court:
- District Court, Nassau County
- Judge:
- Hon. Asarch
- Date:
- November 7, 2001
- Citation:
- NYLJ, page 22, col 2
- Referred Statutes:
- 9 NYCRR 2504.2, 2504.3; CPLR 2201
- Summary:
- Landlord commenced a holdover proceeding for tenant's violation of the lease's "no pet"
clause. The tenant claimed that the landlord waived objections to the dog since the management
and superintendent were aware of the dog and issued two lease renewals and accepted rent. The
court held that the tenant breached a substantial obligation of her lease since the lease renewals
did not create a waiver of the lease's terms even if a subjective expectation was created that the
dog could occupy the apartment. The court further held that although the tenant was on
disability, there was no proof that the dog was a medicinal necessity. Finally, the landlord
properly served the tenant with the notices to cure and terminate. However, the court extended
the tenant's cure period by an additional ten days, during which time she must remove her dog.
- Case Caption:
- Hess v. First Avenue Owners Inc.
- Issues/Legal Principles:
- Landlord must provide access for tenant to move in her belongings and may not claim
abandonment in order to resort to self-help.
- Keywords:
- denial of access; abandonment
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Howard L. Malatzky
- Date:
- November 9, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- none cited
- Summary:
- The Appellate Term upheld the lower court's ruling which held that the landlord
unlawfully denied tenant access to the subject apartment. The stipulated facts revealed that the
landlord prevented tenant from moving in and restoring her belongings which were fundamental
to her use and enjoyment of the premises. The landlord claimed that the tenant abandoned the
subject premises. The court held that the landlord's denial of access was tantamount to an illegal
lock-out and that the claim of abandonment was not meritorious.
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