Housing Court Decisions September 2001
Editors: Colleen F. McGuire, Esq., Chief Editor
and Robert E. Sokolski, Esq.
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Significant Cases
Worrell v. Bedford
Kalimian v. Holmberg
Glen Arms Group LLC v. Diaz
Gracie Gardens Owners Corp. v. Goldgarb
New York Law Journal, decisions for the week of September 24-28,
2001 (8 cases)
- Case Caption:
- Gracie Gardens Owners Corp. v. Goldgarb
- Issues/Legal Principles:
- Notice to cure alleged unreasonable noise does not require a recitation of specific dates
and times since tenant can obtain this information through a bill of particulars.
- Keywords:
- noise; notice to cure; bill of particulars
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Deighton S. Waite
- Date:
- September 24, 2001
- Citation:
- NYLJ, page 19, col 4
- Referred Statutes:
- none cited
- Summary:
- The landlord served the tenant-owner of the co-op apartment a notice to cure on grounds
that unreasonable noises were emanating from the apartment which substantially interferes with
the rights of other shareholders. The notice went on to particularize the conduct complained of,
although it lacked specific dates and times. The lower court dismissed the petition on grounds
that the notice was vague since it lacked dates and times that the alleged conduct occurred. The
Appellate Term reversed, holding that the cure notice was not required to contain specific dates
and times since this information could be obtained through a bill of particulars.
- Case Caption:
- 301 Holdings LLC v. Matto
- Issues/Legal Principles:
- Rent controlled tenants suffered a reduction in closet space, but court ruled that this is
a de minimus reduction and not an essential service and therefore, in applying the standards for
rent controlled tenants only, the landlord was not required to obtain a rent restoration order to
collect the registered rent.
- Keywords:
- rent reduction order; rent restoration order
- Court:
- Appellate Term, First Department
- Judge:
- lower court: none cited
- Date:
- September 26, 2001
- Citation:
- NYLJ, page 18, col 4
- Referred Statutes:
- none cited
- Summary:
- Landlord commenced a plenary action against the tenants who used to be rent controlled
tenants when they resided in the apartment. The landlord sought back rent owed during their
tenancy. The tenants argued that a DHCR rent reduction order was in effect resulting in a
permanent rent reduction of $4 per month for each closet affected, since the landlord's new
plumbing system reduced the apartment's closet space. The tenants argued that landlord could
not collect the $4 increase until landlord obtained a rent restoration order from the DHCR before
collecting subsequent rent control increases. The Appellate Term disagreed, pointing to DHCR's
Policy Statement 90-1 which states ". . . if the rent reduction has been granted for a failure to
provide a service which . . . cannot be considered detrimental to the health of the tenant(s), then
the MCR increase . . . will be collectible." The Appellate Term ruled that the reduction in
closet space was de minimus and not a situation where the landlord failed to provide essential
services. Since it is not an essential service, the owner was not required to obtain a rent
restoration order. The Court ruled this way despite the fact that a Rent Stabilized tenant in the
same building received a determination from the DHCR that the landlord could not collect the
rent from him/her until a rent restoration order was obtained. The Court held that rent control
and rent stabilization have two different schemes and standards with respect to issues involving
reduction of services.
- Case Caption:
- Kips Bay Joint Venture Associates v. Pashazadeh
- Issues/Legal Principles:
- Non-renewal notice based on nonprimary residence which cites a street address in
Maryland as the only substantive fact constitutes a sufficient notice.
- Keywords:
- non-renewal notice; nonprimary residence
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Michelle Schreiber
- Date:
- September 26, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- none cited
- Summary:
- The lower court dismissed the landlord's nonprimary residency proceeding against the
tenant based on an inadequate notice of nonrenewal of lease. The Appellate Term, however,
reversed, holding that the notice alleged sufficient facts to support the landlord's claim. The
notice specified a street address in Maryland, stated that the tenant had not been seen at the
apartment for an extended period and that others occupy the apartment without the landlord's
consent.
- Case Caption:
- Chelsea 23rd Street Corp. v. Nolan
- Issues/Legal Principles:
- Chelsea Hotel tenant wins rent stabilization status since Hotel could not provide
sufficient proof that the rent charged on May 1, 1968 was more than $350 per month or $88 per
week.
- Keywords:
- hotel stabilization
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Peter Wendt
- Date:
- September 26, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- RSL 26-506(a)
- Summary:
- Tenant has resided in the Chelsea Hotel since 1987. Landlord terminated her tenancy
on thirty day notice and commenced an eviction proceeding on grounds that she is not subject
to the rent stabilization law because the rent charged on May 1, 1968 was more than $350 per
month or $88 per week (the standard for stabilization in hotel cases). In such circumstances,
the Appellate Term held that the only pertinent inquiry is a monetary one and the burden is on
the landlord to establish the rental value of the hotel unit on the statutory base date.
At trial landlord presented no rent records or direct proof to establish the rent charged
for tenant's apartment, or any similarly situated apartment, on May 31, 1968. Indeed, there was
no proof that the apartment was even occupied at that time. Landlord's case rested solely upon
the testimony of its principle managing director of the hotel since 1962 who had no independent
recollection of rentals and merely offered general testimony as to the hotel's procedure in
registering apartments. The landlord opined that the unit was not stabilized because it was not
among those registered as such with the then extant hotel trade association. The Appellate Term
ruled that "this circular evidence, standing alone, was insufficient to meet landlord's burden of
proof on the critical issue of coverage or exemption under the statutory scheme." The lower
court had held for the landlord but the Appellate Term reversed and dismissed the petition since
the landlord failed to establish a basis for eviction by preponderant evidence.
- Case Caption:
- London Terrace Associates v. Blitz
- Issues/Legal Principles:
- Trial is needed to determine if respondent succeeds to his brother's apartment when
respondent is an on site consultant in Los Angeles with an apartment there and registered to vote
in California.
- Keywords:
- succession rights; senior citizens
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Timmie Elsner
- Date:
- September 26, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- New York City Rent and Eviction Regulations 2204.6(d)
- Summary:
- Landlord brought a licensee holdover proceeding against the brother of the rent
controlled tenant who argued that he (the brother) is entitled to succession rights. Since the
brother is a senior citizen he is only required to prove that he resided with the tenant for one
year prior to the tenant's permanent departure from the apartment. The brother is employed as
an on site consultant in Los Angeles and leases an apartment there and is registered to vote in
California. The tenant apparently moved for summary judgment seeking entitlement to the
apartment. The lower court denied the motion stating that a trial was needed. The Appellate
Term affirmed.
- Case Caption:
- Sacchetti v. Rosen
- Issues/Legal Principles:
- Tenant is evicted for failing to cure nuisance of antisocial and abusive behavior towards
neighbors.
- Keywords:
- nuisance; cure period
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Timmie Elsner
- Date:
- September 28, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- RSC 2524.3(b)
- Summary:
- In a nuisance proceeding the tenant was afforded numerous probationary periods to cure
her antisocial and abusive behavior, but it continued unabated to the detriment of her
neighboring tenants, safety and welfare. The testimony by tenants psychiatrist as to available
medication options gave no assurance that tenant's objectionable conduct would not recur.
Therefore, the lower court ordered the tenant's eviction and the Appellate Term affirmed.
Additionally, the Court noted that the tenant's guardian ad litem and attorney waived any and
all rights to cure any breaches of the [probationary] agreement.
- Case Caption:
- Elsa Properties, LLC v. Werner
- Issues/Legal Principles:
- Tenant's sublet request is upheld as reasonable even though subtenant did not send
additional information until after subtenant took possession.
- Keywords:
- sublet request
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Maria Milin
- Date:
- September 28, 2001
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- RPL 226-b
- Summary:
- Tenant requested permission to sublet the apartment and responded to landlord's request
for additional information. However, landlord did not receive the additional information form
which had been forwarded by the proposed sublessee and as a result the landlord rejected the
sublet request as "incomplete." In the interim, the subtenant took occupancy of the apartment
anyway. Prior to the service of the notice to cure, the tenant offered to resubmit the subtenant's
application, but landlord failed to respond to this request. The Appellate Term, in affirming the
lower court's decision in tenant's favor, ruled that "The information ultimately provided by the
sublessee evidences that there was no reasonable basis to reject the sublet. Even assuming [the
subtenant] entered prematurely, there was no substantial deviation form the sublet procedures
(Real Property Law 226-b[2][b,c]) warranting termination of the tenancy."
- Case Caption:
- Kiros v. St. Stephens Bible College Realty Management
- Issues/Legal Principles:
- Illegally evicted tenant sustained $51,000 in treble damages but received a monetary
judgment against the landlord for only $25,000 since the tenant sued in Civil Court and that is
the monetary limit of that court.
- Keywords:
- illegal eviction; treble damages
- Court:
- Civil Court, New York County
- Judge:
- Hon. Lucy Billings
- Date:
- September 26, 2001
- Citation:
- NYLJ, page 18, col 6
- Referred Statutes:
- CPLR 311(a), 3215(g); RPAPL 853; Civil Court Act 204, 208(b)
- Summary:
- Tenant-plaintiff sued the landlords for property loss and personal injury when the
landlords entered the apartment he rented from them during his absence and disposed of all his
household furnishings and personal possessions. The affidavits of service show that one of the
defendants was properly served. All defendants failed to appear and the court conducted an
inquest.
Tenant was in the hospital at the time the landlords disposed of his property without
serving him any legal papers. Tenant relocated but he suffered the devastating loss of his
property. The court ruled that the tenant may recover the market value of lost or destroyed
personal property measured immediately before the loss. Purchase price is relevant, but is
impacted by the age, use, and deterioration of the property. Unused property has a market
value. The court found that much of tenant's property consisted of irreplaceable artwork and
books from his native country, Egypt. The court characterized the tenant as an expert on its
value since he "demonstrated the requisite experience and knowledge" of the rarity and
significance of this art and literature. Although tenant is an interested party, the court regarded
his appraisals as conservative and his opinion credible.
The court assessed each item of property lost by the tenant and gave it a monetary value.
The court concluded that the total value of his lost property was $19,287.50. Since the tenant
only asked for $17,000 in his complaint, a default judgment may not exceed the complaint's
demand, nor may the judgment be entered against a defendant that was not properly served.
Therefore the tenant was only awarded a monetary judgment against one of the defendants for
only $17,000. The court, however, ruled that since the tenant's eviction was unlawful, he is
also entitled to treble damages. However, cases commenced in Civil Court only permit
judgments up to $25,000. Thus, even though he could have recovered $51,000 with treble
damages, the court was constrained to limit his award to $25,000.
New York Law Journal, decisions for the week of September 17-21,
2001 (5 cases)
- Case Caption:
- Burwell v. Middleton Realty
- Issues/Legal Principles:
- Broker who rented tenant an illegal apartment must return broker's fee, but is not liable
for tenant's moving expenses.
- Keywords:
- broker's fee; intentional misrepresentation
- Court:
- City Court, Westchester County
- Judge:
- Hon. Seiden
- Date:
- September 19, 2001
- Citation:
- NYLJ, page 21, col 6
- Referred Statutes:
- none cited
- Summary:
- In a small claims action, the tenant sought a refund of the fee she paid a broker for
finding an apartment, plus moving expenses. After the tenant moved in, the Building
Department determined that the apartment was illegal and he was forced to move out and find
and relocate to a new apartment. The court held that even where a material misrepresentation
is made innocently, with no intent to deceive, the tenant is still entitled to rescind the contract.
The broker may not have intentionally misrepresented the status of the apartment, nonetheless
the broker leased an apartment which was not legal. The proper remedy, concluded the court,
is for the broker to return the finder's fee. The court did not award the tenant moving expenses
since there was no contractual basis to do so.
- Case Caption:
- Crosby v Hucko
- Issues/Legal Principles:
- Where co-op unit goes through foreclosure and is bought at a judicial sale, new owners
are entitled to serve the tenant a notice of non-renewal of lease on owner occupancy grounds
because the tenancy reverted back to its original rent stabilized status, and tenant's rights were
therefore not governed by the Martin Act.
- Keywords:
- owner occupancy; Martin Act; co-ops
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Peter Wendt
- Date:
- September 20, 2001
- Citation:
- NYLJ, page 19, col 4
- Referred Statutes:
- General Business Law 352-eeee(2)(c)(ii)
- Summary:
- The owner of the co-op apartment commenced an owner occupancy proceeding against
the tenant in possession. The owners purchased the unit at a judicial sale following a foreclosure
proceeding. The owners sent the tenant in occupancy a notice terminating her rent stabilized
lease. Apparently, the tenant argued that when the building went co-op she lost her rent
stabilized status and acquired rights under the Martin Act which meant that the owners could not
terminate her lease unless for good cause. The lower court, however, ruled that an apartment
which was rent stabilized before it converted to co-op ownership reverted back to stabilized
status once the co-op status dissolves, holding that a dissolved cooperative building is no longer
a cooperative. The building is thereafter treated as any other building subject to regulation, and
the landlords were entitled to serve a nonrenewal notice seeking the apartment on owner
occupancy grounds. The Appellate Term affirmed the lower court's holding.
- Case Caption:
- Grand Cru Property Thirty-One LLC v. Ramos
- Issues/Legal Principles:
- Tenant who obtained a judgment of possession against subtenants is deemed to have
timely and effectively cured the violation complained of, and should not lose the lease.
- Keywords:
- illegal sublet; post-judgment cure
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Howard Malatzky
- Date:
- September 20, 2001
- Citation:
- NYLJ, page 19, col 4
- Referred Statutes:
- RPAPL 753(4)
- Summary:
- Landlord commenced a holdover proceeding against tenant on grounds that she had
impermissibly sublet the rent stabilized apartment. Shortly thereafter, the tenant started an
eviction proceeding against the subtenants. After trial the court granted the landlord a
possessory judgment against the tenant with a ten-day post judgment cure period.
Simultaneously, the court granted the tenant a possessory judgment against the subtenants but
stayed execution of the warrant for three months allowing the subtenants three months to vacate
the apartment. The court denied tenant's motion to permanently stay landlord's warrant,
finding "no basis in law or fact to deem a [timely] cure in this matter."
The Appellate Term reversed the court's decision, holding: "By prosecuting a holdover
proceeding against the subtenants to judgment, tenant effectively cured the violation complained
of. The court's own order foreclosed tenant from physically removing the subtenants within ten
days. As the court itself recognized that tenant had been placed `in a catch-22 situation,' a
forfeiture of the lease should not result in such circumstances."
- Case Caption:
- 626 East 9 Street HDFC v. Collins
- Issues/Legal Principles:
- Subtenant in low income co-op cannot be deemed tenant absent the board's consent and
the execution of relevant documents.
- Keywords:
- sublet; low income co-ops
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Timmie Elsner
- Date:
- September 20, 2001
- Citation:
- NYLJ, page 19, col 4
- Referred Statutes:
- none cited
- Summary:
- The low income co-op brought a nonprimary residence case against one of the low
income owners. The occupant in possession argued that he was the recipient of a "sublet for
life" or should be treated as the tenant of record. The lower court ruled that the tenant's case
lacked merit. The Appellate Term affirmed, holding "such a result would effectively circumvent
rules of the housing company requiring consent of the directors and/or lessees to an assignment
of a tenant's membership certificate, shares and appurtenant lease."
- Case Caption:
- Kalimian v. Holmberg
- Issues/Legal Principles:
- Tenant who cared for out-of-state mother in an assisted facility, but returned to his
apartment on a regular basis, did not lose his apartment based on nonprimary residence.
- Keywords:
- nonprimary residence
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Timmie Elsner
- Date:
- September 20, 2001
- Citation:
- NYLJ, page 19, col 5
- Referred Statutes:
- none cited
- Summary:
- The landlord brought a nonprimary residence action against the rent stabilized tenant.
The record reveals that the tenant cared for his infirm mother (now deceased) in Michigan and
resided with her there in an assisted living facility. The lower court held that this circumstance
does not in itself mandate a finding of nonprimary residency. The Appellate Term affirmed,
noting that tenant spent considerable time in Michigan and concededly had out-of-state
connections. Tenant testified that he returned to his apartment on a regular basis prior to
eventually returning with his mother in 1997. Tenant has a New York bank account, maintained
his furnishings in the apartment and voted absentee ballot from his New York address. Tenant
did not file income taxes due to insufficient income. Based on the trial record, the Appellate
Term upheld the lower court's finding and ruled that the tenant had a longstanding and sufficient
nexus to the apartment and did not intend to abandon his primary residence.
New York Law Journal, decisions for the week of September 10-14,
2001 (2 cases)
- Case Caption:
- Sansue Realty Corp. v. Gonzalez
- Issues/Legal Principles:
- Notice to cure which does not specify dates of alleged violations of lease cannot support
a holdover proceeding and petition must be dismissed.
- Keywords:
- nuisances, notices, illegal alterations
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Thomas
- Date:
- September 12, 2001
- Citation:
- NYLJ, page 21, col 5
- Referred Statutes:
- none cited
- Summary:
- The landlord brought a holdover proceeding on grounds that the tenant has a washing
machine in the apartment in violation of the lease. The tenant moved to dismiss the petition on
grounds that the notices lack specificity of the allegations, or alternatively, that the landlord
waived a right to evict the tenant on this ground.
The notice to cure and notice to terminate list a number of allegations other than the use
of a washing machine. The notices also alleged, for example, removal and destruction of a
refrigerator, altering gas line, and removing kitchen sink and bathroom door. The court held
that with respect to the waiver argument, this case involves more than a mere washing machine
and thus the waiver argument cannot result in the dismissal of the case.
Nonetheless, the notices lack any date or specifics. When the landlord responded to the
tenant's motion to dismiss, the landlord's affidavit supplied a wealth of specific facts, including
dates. The court thus ruled that the landlord had sufficient details, but since these were omitted
from the notices, the notices are inadequate to allow the tenant to prepare a defense. For this
reason the petition was dismissed since predicate notices cannot be amended.
- Notes:
- The reader should be aware that the following week, on September 24, 2001, the
Appellate Term decided a case which is contrary to the decision in this matter. See
Gracie Gardens Owners Corp. v. Goldgarb which held that a notice to cure alleged
unreasonable noise does not require a recitation of specific dates and times since the tenant can
obtain this information through a bill of particulars during the holdover proceeding. The
Appellate Term's ruling takes precedence.
- Case Caption:
- Glen Arms Group LLC v. Diaz
- Issues/Legal Principles:
- Nassau County tenant failed to timely serve lease renewal, but court allows tenant an
opportunity at trial to show a reasonable excuse for the late service.
- Keywords:
- lease renewal
- Court:
- District Court, Nassau County
- Judge:
- Hon. Kaiman
- Date:
- September 12, 2001
- Citation:
- NYLJ, page 22, col 6
- Referred Statutes:
- Emergency Tenant Protection Regulations 2503.5; CPLR 3211(a), 404(a)
- Summary:
- Landlord commenced a proceeding against the tenent (a resident of the apartment for 19
years) for failure to timely sign a lease renewal under rent regulations applicable to Nassau
County (The Emergency Tenant Protection Regulations). Tenant was late by 12 days. Tenant
claims that after the landlord served the notice of termination, the landlord mailed a rent bill to
the tenant, suggesting that the tenancy was reinstated. The tenant also argued that the landlord
hand delivered the renewal lease which is contrary to the statute. The landlord disagrees and
states that delivery was lawful. The landlord also argues that tenant cannot cure the failure to
timely renew the lease. The landlord claimed to have served the rent bill inadvertently, yet
coincidentally the rental amount on the new bill was the rental amount of the new lease term.
The tenant replied that she didn't sign the lease because her husband died and the lease was in
his name, and the envelope in which the lease was sent was in his name. She received a notice
from the landlord and only at that point did she become aware of the lease in the unopened
envelope. She then signed and sent in the lease, albeit 12 days late. The court held that the
issue cannot be resolved on papers. There must be a trial to determine whether tenant's reason
for not timely serving the renewal lease is reasonable. (Tenant's papers were all from her
lawyer, and she did not tender an affidavit herself). The judge rejected landlord's position that
there is zero right to cure; rather the standard the judge looked to was whether or not the default
was reasonable.
New York Law Journal, decisions for the week of September 3-7, 2001
(2 cases)
- Case Caption:
- Vanderveer Estates Holding LLC v. Brown
- Issues/Legal Principles:
- Tenant who was never a Section 8 tenant cannot argue that landlord failed to comply
with Williams consent decree.
- Keywords:
- Williams consent; Section 8; laches
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Birnbaum
- Date:
- September 5, 2001
- Citation:
- NYLJ, page 20, col 1
- Referred Statutes:
- none cited
- Summary:
- The tenant brought an order to show cause to vacate a stipulation signed in March, 2001
and sought to dismiss the entire proceeding. The court denied the tenant's request on grounds
that the tenant failed to provide any legal basis in law for setting aside the stipulation. Tenant
argues that the landlord failed to comply with the Williams consent order by not obtaining
certification prior to commencing the proceeding. But the tenant has never received Section 8
benefits for the subject apartment. The court noted that this was corroborated by New York
City Housing Authority's response to the landlord's subpoena that indicates that no record of the
tenant in any program administered by NYCHA. Since the tenant was not a Section 8 tenant,
the landlord was not obligated to comply with the Williams consent order.
Tenant also raised the defense of laches. To prevail on this defense, proof must be
shown that the landlord had a valid case (i.e., legitimate rent was owed) but delayed in asserting
the claim (i.e., neglected to demand or collect the rent) to the prejudice of the tenant and that
tenant was not aware that the landlord was going to assert the claim (i.e., seek the rent). The
landlord's agent, however believed that the tenant was going to receive Section 8 benefits. But
once it was determined that the tenant was not on Section 8, the landlord began the nonpayment
petition. In a stipulation, the landlord gave the tenant over two months to either pay the arrears
or leave without a money judgment against the tenant. For these reasons the court refused to
allow the case to be dismissed, but did stay the warrant for ten days.
- Case Caption:
- Worrell v. Bedford
- Issues/Legal Principles:
- Unverified petition must be dismissed where landlord does not seek to amend the
petition's defect.
- Keywords:
- verification; default
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Alterman
- Date:
- September 5, 2001
- Citation:
- NYLJ, page 34, col 3
- Referred Statutes:
- RPAPL 711(2), 741, 721; CPLR 3022
- Summary:
- The landlord started a nonpayment petition, but the tenant has not appeared. The
landlord submitted a request for a default judgment and issuance of a warrant. The warrant clerk
rejected the request because the petition was not verified. The landlord is not asking the court
to verify the petition after the fact, but rather is asking that the court completely dispense with
the requirement that a petition be verified. The landlord argues that the defaulting tenant has
waived any right to object to the defective verification. The court rejected this argument because
this is not a case of a defective verification, but rather there has been no verification.
Verification of a petition is a procedural requirement and there is no authority for the court to
waive this statutory mandate. Therefore, the court dismissed the petition with prejudice.
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