Housing Court Decisions April 2002
Editor: Colleen F. McGuire, Esq.
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Significant Cases
IG Second Generation Partners v. Young
MF Holding, LLC v. Apostolopoulos
New York City Housing Authority v. Roberts
326-330 East 35th St. Assoc. v. Sofizade
Howard Avenue Associates v. Rojas
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Online Case Texts
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New York Law Journal, decisions for the week of April 29 to May 3,
2002 (8 cases)
- Case Caption:
- Weinreb v. DHCR
- Issues/Legal Principles:
- A materially defective and improperly served DC-2 Notice of the initial rent stabilized
rent on the prior tenant does not preclude the present tenant from filing a Fair Market Rent
Appeal even where the prior tenant submitted a statement claiming he knowingly waived
challenge to the FMRA.
- Keywords:
- fair market rent appeal
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. William Wetzel
- Date:
- April 30, 2002
- Citation:
- NYLJ, page 20, col 1
- Referred Statutes:
- 9 NYCRR 2523.1 & 2527.8
- Summary:
- The Rent Administrator at the DHCR found that the initial notice of the first rent
stabilized rent after the rent control tenant vacates was, in this case, defective. This notice is
called a DC-2 notice. The Rent Administrator set the fair market rent at $838.27 and directed
the landlord to refund tenant an excess rent of $69,270.70. The landlord did not timely raise
the issue at the DHCR and the Appellate Division ruled that the landlord could not raise the
issue now. The Appellate Division held, moreover, that even if the issue were before the Court
they would find the claim has no merit. Apparently, the DC-2 was also not properly served on
the initial rent stabilized tenant, and the Court ruled that DHCR did not err in determining that
the service was defective. The Rent Administrator found that the DC-2 notice was materially
defective because the landlord failed to provide the 1974 maximum rent for the apartment. Even
though the former tenant stated that he was not misled by the defective DC-2 notice and
knowingly elected to forgo a fair market rent appeal, the Court determined that the waiver is
ineffective to remedy the defective notice. Further, the former tenant's statement cannot be
utilized to foreclose the right of a subsequent tenant to commence a fair market rent appeal.
Finally, the Court ruled that DHCR did not err in refusing to utilize comparable rents
from units in a neighboring building to determine this tenant's fair market rent, as landlord
wished. This is because it is DHCR's policy to require that rental data be submitted for each
apartment in the same vertical line as the proposed regulated comparable apartment so as to
ensure an objective and accurate sampling. Landlord did not comply with this guideline in
supplying comparability, as it was his burden to do. The Court also ruled that the DHCR did
not err in relying on just one comparable apartment in tenant's building to arrive at the fair
market rent.
- Case Caption:
- 251 West 18th Street LLC. v. Del Riostrellita
- Issues/Legal Principles:
- Tenant who refused to sign renewal lease but paid renewal's increased rent is treated by
court as if she had signed the lease, and therefor landlord's notice of nonrenewal of lease on
nonprimary residence grounds served roughly two years later is proper.
- Keywords:
- renewal lease; nonrenewal notice; nonprimary residence
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Paul Alpert
- Date:
- May 1, 2002
- Citation:
- NYLJ, page 20, col 1
- Referred Statutes:
- 9 NYCRR 2524.2(c)
- Summary:
- The lower court denied tenant's motion to dismiss the holdover petition for failure to
serve a timely notice of nonrenewal of lease. The record shows that after the lease expired on
April 30, 1999, tenant refused to sign another renewal lease because her married name appeared
after her maiden name. She did, however, continue to pay rent at the new increased rate
starting in May, 1999. In December, 2000 landlord served a notice of nonrenewal of lease and
intent to commence a nonprimary residence proceeding. The notice alleged that tenant's last
renewal lease expired April 30, 2001. The landlord began a holdover proceeding in May, 2001.
The Appellate Term held that tenant's rent payments constituted a ratification and election of a
two-year renewal term beginning May 1, 1999 even though she did not sign the last lease. The
nonrenewal notice served thereafter was therefore proper and timely. The Appellate Term held:
"Tenant cannot reasonably forestall consideration of landlord's claim fo nonprimary residence
by asserting that no lease or lease term existed as of May 1, 1999."
- Notes:
- The Appellate Term is basically saying that if a tenant has a problem with the renewal
lease, paying the increased rent is akin to accepting the lease. Tenants should be cautious about
not signing renewal leases because this may be a basis for an eviction action. Rather, sign the
renewal lease with the words "without prejudice" or "under protest."
- Case Caption:
- Berkhin v. Kinsor Management
- Issues/Legal Principles:
- Where tenant affirmatively chose not to renew lease, landlord cannot treat the lease as
renewed; rather tenant is a month to month tenant and can vacate the premises at any time.
- Keywords:
- renewal lease; month to month tenancy; security deposit
- Court:
- Civil Court, Richmond County
- Judge:
- Hon. Straniere
- Date:
- May 1, 2002
- Citation:
- NYLJ, page 24, col 5
- Referred Statutes:
- RSC 2523.5(c)(2); RPL 232-c
- Summary:
- Tenant commenced a small claims action against the landlord to have his security
deposit returned to him. Tenant lived in the rent stabilized apartment from 1993 to July 28,
2001 when he voluntarily moved out. He had been offered a renewal lease by the landlord for
the period September 2000 to August 2001. On August 29, 2000, the tenant indicated that he
would be vacating the apartment at the end of August, 2000, but in fact he failed to leave. The
landlord argued that when a tenant fails to sign a renewal lease, the lease is automatically
renewed for another year. The tenant stayed until July 28, 2001, so the landlord applied the
security deposit to the rent for August, 2001. Tenant took the position that when he failed to
vacate in August, 2000 he became a mere month to month tenant with no lease obligations
through August, 2001. So therefore he should not have to forfeit his security deposit for the one
disputed month.
The court noted that the law holds that if the tenant does not sign a renewal lease the
lease "may" be deemed to have been renewed upon the same terms and conditions as the
expiring lease. The law allows the landlord to commenced an eviction proceeding if the tenant
fails to timely renew the lease. In this case the landlord, not the tenant, is seeking to invoke this
law in order to hold the tenant responsible for the entire year tenancy, and therefore as obligated
to paying the last month's rent. The court, however, rejected this interpretation as a "perversion
of the rent laws." The Rent Stabilization Code is designed to protect tenant's rights and its
language permits the landlord to either treat the lease as being renewed by the tenant if no
response is received or to commence a proceeding to terminate the tenancy. There is nothing
in the statute that automatically renews the lease when the tenant specifically declines to renew
the lease and thereafter remains in possession. The fact that the tenant held over and continued
to pay the rent as it became due does not trigger a new one year lease term. The landlord had
an entire year to commence an eviction proceeding, but choose not to do so. The court held that
the landlord cannot now turn a month to month tenancy into a year lease. As a result, the court
directed the landlord to return tenant's security deposit and rejected the landlord's request to
have said deposit applied to August, 2001, a period when the tenant had already vacated.
- Notes:
- This case's facts appear the same as the above case 251 West 18th Street LLC.
v. Del Riostrellita . The distinguishing feature is that this tenant affirmatively stated that
he was not renewing the lease. It would be curious, however, to know if this tenant paid a
higher rent as Del Riostrellita did because the Appellate Term regarded this factor as
determinative. By contrast, this case did not report if the tenant paid a higher rent.
- Case Caption:
- Riverside Holdings, LLC v. Thomas
- Issues/Legal Principles:
- Occupant who paid landlord checks directly in his name for about three years did not
create a landlord-tenant relationship because landlord never recognized him as a tenant in his
own right.
- Keywords:
- waiver
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Deighton Waithe
- Date:
- May 1, 2002
- Citation:
- NYLJ, page 20, col 1
- Referred Statutes:
- none cited
- Summary:
- The current occupant of the apartment, Jesse Thomas, began living in the rent controlled
apartment after the statutory tenant of record vacated, and without telling the prior landlord.
>From 1992 to 1996 he paid rent to the departed tenant who then paid the former landlord in his
own name. From 1996 to 1999, he paid rent in his own name to the old landlord except for
three money orders bearing the prior tenant's name. The current landlord purchased the building
in 1999 and immediately rejected Thomas' rent check and began a holdover proceeding. The
lower court denied Thomas tenancy rights and the Appellate Term affirmed on grounds that
neither the old or new landlord recognized Thomas as a tenant in his own right or waived the
right to contest his occupancy after the prime tenant vacated.
- Case Caption:
- Manhattan Embassy Co. v. Burns
- Issues/Legal Principles:
- Landlord unreasonably deprived tenant of sublet and which caused tenant damages by
the loss of subtenant's rent, and these damages equaled the amount of rent sought in landlord's
nonpayment petition; therefore the nonpayment petition was dismissed and tenant awarded legal
fees as the prevailing party.
- Keywords:
- sublease; attorney's fees
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Peter Wendt
- Date:
- May 1, 2002
- Citation:
- NYLJ, page 20, col 1
- Referred Statutes:
- RPL 234
- Summary:
- Tenant's original 1973 lease allowed the right to sublet subject to landlord's written
approval which "shall not be unnecessarily withheld." The record shows that landlord arbitrarily
and unreasonably refused to consent to the sublease at issue where there was no objection to the
proposed sublessee and where landlord's suspicion that tenant would not return to the premises
at the expiration of the sublet was wholly speculative. Tenant was forced to give up the
apartment because she could no longer maintain it while her right to sublet was continually
denied by the landlord. Since tenant's damages in the form of a lost rent from a subtenant was
equal to the amount of rent demanded by the landlord, the lower court dismissed the nonpayment
petition. Since the nonpayment petition was entirely defeated, the tenant was entitled to
attorneys' fees, and the Appellate Term affirmed.
- Case Caption:
- 200-202 West 107th Street LLC v. Braun
- Issues/Legal Principles:
- Petition is dismissed since petitioner is different from name of landlord in lease and
owner provided no documentary proof of chain of title.
- Keywords:
- rent demands
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Michelle Schreiber
- Date:
- May 1, 2002
- Citation:
- NYLJ, page 23, col 2
- Referred Statutes:
- RPAPL 721
- Summary:
- The landlord brought a nonpayment proceeding, but the tenant claimed that her lease
cites another entity as the landlord and that she had never done business with the landlord who
is suing her nor paid rent to that entity. Tenant moved to dismiss the petition on grounds that
the owner is not authorized to maintain a proceeding against her. The owner made a cross-
motion to amend the petition stating that he is a member of the limited liability company, that
he owns the building with his cousin and they operate under Hearth Realty Estate (the name in
tenant's lease), and then they conveyed the property to the current entity in August, 2000. The
owner submitted a copy of the deed showing it was the proper party and that the failure to cite
the "chain of title" is a de minimis defect which can be cured by amendment. The court noted
that the owner does not dispute that it is not the landlord named in the lease. While a member
of the owner claims to do business under an assumed name, there is no documentary proof
submitted. Therefore, the court concluded that the rent demand is improper because it was not
issued by the landlord or an agent of the landlord. Predicate notices cannot be amended, and
therefore the petition must be dismissed.
- Case Caption:
- Beverly Hotel Assoc LLC v. DeAlmeidadelia
- Issues/Legal Principles:
- Hotel tenant may not be evicted for failure to sign lease.
- Keywords:
- SROs; hotel tenants; permanent tenant
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Jerald Klein
- Date:
- May 1, 2002
- Citation:
- NYLJ, page 22 , col 6
- Referred Statutes:
- RSC 2520.6 & 2524.3(f); Multiple Dwelling Law 4
- Summary:
- Landlord brought a holdover proceeding but tenant claims to be a permanent hotel tenant
entitled to rent stabilization protection. The landlord argues that the premises are not a SRO
(single room occupancy) as defined by the Multiple Dwelling Law because the unit contains a
bathroom. Further, the owner argues that the premises is not an SRO, but rather a hotel.
Landlord also pointed out that a lease was tendered to tenant but she refused to sign it and that
a failure to sign a tendered initial lease constitutes grounds to commence an eviction proceeding.
The court ruled that tenant is a hotel tenant and that a hotel tenant's failure to renew a lease
"does not apply to permanent hotel tenants, nor may a proceeding be commenced based on this
ground prior to expiration of the existing lease term." The court therefore dismissed the
petition.
- Case Caption:
- IG Second Generation Partners v. Young
- Issues/Legal Principles:
- Lower rent resulting from rent reduction order remains in effect against new tenant even
where landlord made renovations after the prior tenant vacated, but landlord is permitted a
vacancy increase.
- Keywords:
- rent reduction order; rent restoration order; vacancy increase; MCIs
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Timmie Elsner
- Date:
- May 1, 2002
- Citation:
- NYLJ, page 22, col 6
- Referred Statutes:
- RSC 2523.4(a)(1); CPLR 213(a); RSL 26-511 & 514
- Summary:
- A building wide rent reduction order has been in effect for this building since July 1,
1987 reducing the rent to $300.15 per month. In 1999, the prior tenant moved out and the new
tenant moved in after landlord made extensive renovations. The new tenant rented the apartment
on August 1, 1999 for one year at $1,331.66 and then renewed in August, 2000 at $1,384.93.
He then learned that there was a rent reduction order in effect and withheld rent on grounds of
overcharge. The landlord brought a nonpayment proceeding and tenant counterclaimed for
overcharges.
Based on statutory law and case law, the court ruled that a rent reduction order remains
in effect even after the complaining tenant vacates the apartment. The landlord cannot collect
any increases until the DHCR issues a rent restoration order, even if those increases arise from
renovations, so long as the renovations were made after the rent reduction order went into effect.
The landlord is, however, permitted to collect a vacancy increase because the law only prohibits
collecting guidelines increases (such as renewal lease increases) not a statutory increase such as
a vacancy lease increase. The court rejected landlord's argument that the four year statute of
limitations on overcharge claims is applicable because the rent reduction over occurred in 1987.
The court rejected this position because the first overcharge for this tenant occurred within four
years of the complaint (i.e., August 1, 1999 was the first overcharge and the counterclaim was
filed in or about September, 2001). The court set the matter down for a hearing on determining
the overcharge and whether treble damages is applicable.
- Notes:
- Disclosure: Colleen McGuire's law firm McGuire & Zekaria represents tenant Timothy
Young in this proceeding.
New York Law Journal, decisions for the week of April 22-26, 2002
(8 cases)
- Case Caption:
- 169 Realty LLC. v. Wolcott
- Issues/Legal Principles:
- Tenant is given opportunity to cure nuisance as facts in this case (elderly tenant who
lived in apartment for 43 years) warrant a cure.
- Keywords:
- nuisance; post-judgment cure
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Ressos
- Date:
- April 22, 2002
- Citation:
- NYLJ, page 29, col 3
- Referred Statutes:
- RPAPL 753(4); CPLR 3212; RSC 2524.3(a)
- Summary:
- The landlord brought an eviction proceeding against the rent controlled tenant on
grounds that the accumulated debris constituted a nuisance. The tenant has lived in the
apartment for 43 years. The tenant appeared pro se in Housing Court and entered into a
stipulation where he agreed to clean up the apartment and vacate in two months. Thereafter
Legal Services agreed to represent him and tried to get the proceeding dismissed, but the judge
refused, and set the matter down for a trial. The landlord, however filed a motion for summary
judgment arguing that a nuisance proceeding is not subject to a cure once the nuisance has been
proven and the landlord is thus entitled to immediate relief: the recovery of the apartment. The
tenant however argues that the accumulation does not rise to the level of a nuisance, and even
if it does, she is entitled to a post-judgment ten-day cure.
The court noted that a nuisance must be more than an isolated incident. The
objectionable conduct must be ongoing and frequent and threaten the safety and welfare of the
other tenants. A nuisance allegation is a question of fact and therefore a trial is necessary. The
landlord's motion for summary judgment only includes an affidavit from the managing agent
who visited the apartment on only one occasion at which time he took photographs. The
affidavit fails to show continuous and ongoing objectionable conduct. Further, no neighboring
tenants submitted affidavits complaining that their tenancy rights were infringed upon. Thus,
the court held that the landlord failed to show that a trial was not needed. The court also held
that a post-judgment cure is discretionary with the court. In this case, the tenant is elderly and
has lived in the premises for over 43 years. Because the harm of forfeiture of her home may
be disproportionate to the alleged nuisance, the judge was inclined to grant a ten-day cure period
if a nuisance is established by the landlord at trial.
- Case Caption:
- Shared Equities Co. v. Merchant
- Issues/Legal Principles:
- Tenant who challenges service of legal papers does not, by doing so, submit to the
personal jurisdiction of the court, and therefore a mere appearance to challenge service does not
entitle the landlord to a money judgment.
- Keywords:
- service of process; personal jurisdiction; money judgment; sanctions
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Peter Wendt
- Date:
- April 24, 2002
- Citation:
- NYLJ, page 18, col 4
- Referred Statutes:
- CPLR 3211(a)(8) & 320(b) & 308; RPAPL 735
- Summary:
- The landlord commenced a nonpayment proceeding and the tenant was served on or
about December 17, 2001 by conspicuous place service. Instead of filing an answer within five
days, the tenant served a motion returnable January 11, 2002 to dismiss the petition on grounds
of improper service of the petition. On the return date of the motion, the tenant's attorney
withdrew the motion and handed the landlord's attorney the keys to the apartment and stated that
his client wished to surrender possession. No answer was ever served by the tenant.
By order to show cause returnable January 24, 2002, the landlord asked the court to
grant the owner a money judgment for $11,400 as rent owed to date and a judgment of
possession in landlord's favor. Tenant's counsel cross-moved for sanctions on grounds that the
landlord's motion was frivolous. Landlord's attorney filed a motion for sanctions against tenant
for tenant's frivolous sanctions motion.
Generally when service of process is by conspicuous place service (i.e., papers served
on the door or under the door after efforts at personal service failed), the court will only have
in rem jurisdiction. In other words, a landlord cannot get a money judgment against a tenant
(but only a possessory judgment, i.e., the apartment) if the tenant does not show up in Housing
Court. The court noted however that an appearance by a tenant in court, or by his or her
attorney, generally confers the court with personal jurisdiction so that a money judgment may
be granted, if applicable. In this case when tenant's attorney appeared in court with the keys,
the landlord's attorney refused to accept the keys and claimed that since tenant appeared by
counsel, the landlord was entitled to a money judgment and a possessory judgment. Tenant's
attorney claimed that since service was made by conspicuous place service, no general
appearance was made in court so therefore no money judgment may be obtained in Housing
Court. Yet, landlord argued that the tenant withdrew its motion challenging service and so the
appearance on the return date counts and a money judgment is justified.
The court held that by filing a motion to dismiss for improper service, tenant's counsel
did not subject his client to the personal jurisdiction of the court. By withdrawing the motion,
tenant's counsel did nothing more than subject his client to a possessory judgment. The court
relied on past case law for the principle that conspicuous place service cannot support a
landlord's request for a money judgment in instances where the process server made only one
prior attempt at personal service. The due diligence standard requires two or three attempts at
personal service before resorting to conspicuous place service. The court further pointed to an
amendment in the CPLR which authorized a defendant to plead improper service by motion or
answer without subjecting the defendant to the personal jurisdiction of the court (and thereby a
money judgment, if proven). The judge here applied the CPLR rule and gave the landlord only
a possessory judgment. The court denied both parties' motion for sanctions.
- Case Caption:
- Grzyma v. Kucasa
- Issues/Legal Principles:
- Tenant who agreed to vacate in 7 months with a waiver of rent cannot later claim that
he is subject to rent stabilization, since that defense was waived by virtue of the settlement.
- Keywords:
- settlements; multiple dwellings; certificate of occupancy
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Rodriguez
- Date:
- April 24, 2002
- Citation:
- NYLJ, page 22, col 1
- Referred Statutes:
- New York City Civil Court Act 110(a)
- Summary:
- In a holdover proceeding, the tenant alleged in an answer that the premises are really
rent stabilized because more than six separate units are occupied as residential apartments and
there was not a certificate of occupancy. An inspection revealed illegal usage of the basement
apartment and illegal hook-ups. The parties settled the case where tenant was given seven
months of free rent to leave. However, soon after signing the settlement, the tenant brought an
order to show cause seeking to have the heat restored and he claimed that the building contained
8 families. A prior judge entered an order for the correction of the heat violation, and then
nothing happened in the case until six months later when the tenant brought another order to
show cause requesting that the stipulation be vacated. The court held that the tenant had the
benefit of the bargain and obtained almost seven months of agreed-upon free rent. The tenant
also did have counsel in the beginning when he settled the case, so the tenant should not now
claim no counsel. Further, if there was fraud on the part of the landlord, the claim was waived
when the tenant settled the case. Nor the court noted was there any duress on the part of the
tenant since the settlement was signed in open court and allocuted by the judge.
- Case Caption:
- Related Tiffany, LP v. Faust
- Issues/Legal Principles:
- Utility surcharges cannot be collected as "rent" in Housing Court.
- Keywords:
- utility surcharges; lease rent
- Court:
- Appellate Term, 2nd & 11th Judicial Department
- Judge:
- lower court: Hon. Chin
- Date:
- April 24, 2002
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- RSC 2522.10 & 2525.1; RSL 512(a)
- Summary:
- In a nonpayment proceeding the landlord sought to recover itemized electricity
surcharges as additional rent. The parties settled and the settlement provided that the landlord
would be granted a possessory judgment and a monetary judgment of $7,726. Tenant obtained
an attorney then moved to set aside the settlement on grounds that the surcharges should not be
deemed part of the basic rent stabilized rent. The judge vacated the final judgment and lowered
the monetary judgment to $5,563. On landlord's request for reargument, however, the judge
reinstated the $7,726, reasoning that the Rent Stabilization Code allowed for the collection of
surcharges by its amendment of December 2000. Section 2522.10 was amended to read: Where
an owner acts as a provider of a utility service (including, but not limited to electricity, gas,
cable or telecommunications, the owner may collect surcharges which shall not be part of the
legal regulated rent and shall not be subject to his Code."
The Appellate Term reversed, and held that the electricity surcharges may not be
considered rent and lease clauses deeming these charges additional rent are not enforceable. The
Court reasoned that the rent law makes it unlawful to charge any rent in excess of the legal
regulated rent. Thus, lease clauses deeming legal and late fees additional rent have been held
to be unenforceable against stabilized tenants. Because the unenforceability is predicated on the
proscription of the collection of excess rents, no distinction can be drawn between attorney's fees
and late fees on the one hand and utility surcharges on the other. The amended Code provision
clarifies that collection of utility surcharges is not an improper circumvention of the prohibition
against collecting more than the legal regulated rent. However, the amendment does not provide
that these surcharges are collectible as "rent." In fact, the Code was also amended to expressly
state that "rent shall not include surcharges." The Court vacated the final judgment for the
$7,726 and reduced it to just the rent ($5,563) because the surcharges should not have been
collected as rent in Housing Court.
- Case Caption:
- 411 East 70th Street v. Tsingos
- Issues/Legal Principles:
- Occupant who paid rent in tenant's name is not entitled to tenancy rights.
- Keywords:
- subtenant; subterfuge
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Larry Schachner
- Date:
- April 25, 2002
- Citation:
- NYLJ, page 19, col 5
- Referred Statutes:
- none cited
- Summary:
- When the respondent entered into possession in 1975 his occupancy was a subterfuge
in light of the evidence that the name of the departed tenant of record still appeared on the
apartment mailbox and building directory and that rent was paid by respondent with money
orders in the tenant's name. There was no succession rights claim. Therefore, the lower court
denied the respondent's claim of tenancy and the Appellate Term upheld the decision.
- Case Caption:
- United Hay, LLC v. Grabovak
- Issues/Legal Principles:
- After a 9 day trial, tenant's son failed to show that he was entitled to succession rights
because he could not prove co-habitation for two years prior to his mother's departure.
- Keywords:
- succession rights
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Larry Schachner
- Date:
- April 26, 2002
- Citation:
- NYLJ, page 21, col 2
- Referred Statutes:
- New York City Rent and Evictions Regulations 2204.6(d); RPL 220
- Summary:
- The rent controlled tenant occupied the apartment from 1962 when she moved back with
her own father, the original tenant of record until 1997. She also moved back with her new son
after her marriage failed. The tenant's son seeks succession rights. He did not, however, live
with his mother while he was growing up, but he claimed to have moved back in with her in
March 1997 and primarily resided there since then as his primary residence. His mother left
the premises in June, 1997. The lower court denied the son succession rights and the Appellate
Term upheld. The nine day trial shows an absence of proof that the tenant resided with his
mother for two years before her departure. The court awarded the landlord market use and
occupancy.
- Case Caption:
- MF Holding, LLC v. Apostolopoulos
- Issues/Legal Principles:
- Landlord's holdover proceeding on unlawful sublet grounds fails because the alleged
subtenants are tenant's adult children who have lived in the apartment since the inception of the
tenancy and tenant travels back and forth between the apartment and Greece.
- Keywords:
- unlawful sublet; nonprimary residence
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Brenda Spears
- Date:
- April 26, 2002
- Citation:
- NYLJ, page 21, col 1
- Referred Statutes:
- RPL 226-b; RPAPL 753(4)
- Summary:
- Landlord brought an unlawful sublet proceeding against the tenant. The trial evidence
revealed that the tenant's own children, college students over 18 years old, entered into
possession with the tenant at the inception of the lease and continue to primarily reside there.
The tenant periodically travels between his homeland in Greece and the apartment. The trial
judge held for the landlord, but the Appellate Term reversed. The Appellate Term held that the
facts are not appropriate for an unlawful sublet proceeding, but rather for a nonprimary
residence proceeding.
- Case Caption:
- ATM One v. Garcia
- Issues/Legal Principles:
- Immediate family member (sister) who lived with the named tenant (her brother) since
the inception of the tenancy and landlord fully knew of her presence, is entitled to sign the lease
renewal without having to prove succession rights.
- Keywords:
- immediate family; renewal lease
- Court:
- District Court, Nassau County
- Judge:
- Hon. Kaiman
- Date:
- April 24, 2002
- Citation:
- NYLJ, page 22, col 4
- Referred Statutes:
- 9 NYCRR 2500.2, 2503.5, 2523.5
- Summary:
- The landlord brought a holdover against the named tenant Jose Garcia because he did
not return the renewal lease in a timely fashion. Tenant's sister, Mayra, claims that she is the
proper tenant actually living in the apartment and should be given a renewal lease in her name
where the landlord knew that she was the actual occupant. Mayra paid the rent, dealt with
maintenance and signed many prior renewal leases (with her brother's name) and responded to
litigation with the landlord. The landlord sent Jose the renewal lease by certified mail but this
was never received by Mayra. She did receive a lease in her brother's name in August, and she
signed this and sent it back to the landlord by certified mail after first attempting to hand deliver
the lease. The landlord refused to accept her tender. The court noted that in a prior litigation,
Mayra appeared with an attorney and Jose defaulted.
The court found that even though Mayra is not the named tenant on the lease, she is
entitled to a lease renewal. She is an immediate family member of the named tenant who lived
with her brother since the beginning. Although the landlord complied with the law in mailing
the renewal lease to Jose, and although it is not a landlord's duty to inquire who else should be
mailed a lease, the court found that in the circumstances herein the landlord had more than
adequate notice of Mayra's possessory interest in the property, primarily because of her
participation in prior court proceedings, but also because she pays the rent, interacts with the
management and Jose defaulted in the past. The court cited past case law for the principle that
if an immediate family member resides with the tenant from the inception of the tenancy, they
may very well be entitled to a lease renewal in their own right without having to satisfy the
succession rights criteria. The court transferred Jose's tenancy interest to Mayra, and therefore
the landlord must accept her signing of the renewal lease.
New York Law Journal, decisions for the week of April 15-19, 2002
(7 cases)
- Case Caption:
- Baumrind v. Valentine
- Issues/Legal Principles:
- A DHCR rent reduction order does not automatically preclude the granting of an
abatement in Housing Court.
- Keywords:
- rent reduction order; abatements
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Arlene Hahn
- Date:
- April 17, 2002
- Citation:
- NYLJ, page 26, col 1
- Referred Statutes:
- RPL 235-b
- Summary:
- At the trial of the nonpayment proceeding the judge would not allow the tenant to
present proof of his rent abatement claim relating to defective living room windows. The judge
relied on a DHCR rent reduction order regarding that condition. The Appellate Term reversed,
stating that the judge erred because Real Property Law 235-b(3)(c) commands the court to
"reduce the amount [of damages] awarded hereunder by the total amount of any rent reduction
order" issued by DHCR. The statute does not completely foreclose a rent abatement were a rent
reduction order is in place. The purpose of the law is to avoid duplicating damages but this can
be avoided by simply offsetting any abatement by the "total amount of any rent reduction." The
Appellate Term also noted that the trial record revealed other offending conditions for a
prolonged period during which tenant withheld rent and which were deemed violations. The
Appellate Term held: "To the extent the court failed to make any award for breach of the
warranty of habitability, this finding was against the weight of the evidence." The Appellate
Term did, however, agree with the lower court's rejection of tenant's laches defense (i.e., stale
rent) and demand for punitive damages.
- Case Caption:
- Eckles v. Sealy
- Issues/Legal Principles:
- Man who owns property can maintain eviction proceeding against former paramour in
a licensee holdover proceeding in Housing Court.
- Keywords:
- cohabitation; licensee
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Thomas
- Date:
- April 17, 2002
- Citation:
- NYLJ, page 27, col 6
- Referred Statutes:
- Article 6, Section 19 of New York State Constitution; CPLR 3212
- Summary:
- A man and woman lived together and thereafter the man, who apparently is the owner
of the property, brought a licensee holdover proceeding against his former companion. She
argues that a summary proceeding cannot lie where two parties are cohabitants and act or hold
themselves out to be husband and wife. She argued that in order for the owner to succeed in
Housing Court and evict his former lover, he must show that she entered the apartment with an
expressed or implied permission of the owner and that she has no interest in the property.
The judge was presented with conflicting case law by both parties, each of which
presented case law in their favor. The judge opted to follow the case law favorable to the owner
which held that "cohabitation without a marriage does not give rise to the property and financial
rights which normally attend the marital relation . . . " The court observed that the parties are
not married, and thus any property or financial rights which the woman believes she may be
entitled to is not enough to defeat the man's right to maintain a licensee holdover proceeding.
The court set the matter down for a trial.
- Case Caption:
- 30 Eastchester LLC v. Healy
- Issues/Legal Principles:
- Private landlord is not obligated to remain in a Section 8 program following the
termination of the tenant's lease.
- Keywords:
- Section 8
- Court:
- City Court, Westchester County
- Judge:
- Hon. Colangelo
- Date:
- April 17, 2002
- Citation:
- NYLJ, page 30, col 5
- Referred Statutes:
- CPLR 3211; RPAPL 711(2) and 741(4); 24 CFR 982.310; 42 USC 1437i; Emergency
Tenant Protection Act 2
- Summary:
- Landlord brought a nonpayment proceeding against a Section 8 tenant in an apartment
also subject to the Emergency Tenant Protection Act. Through the Section 8 program landlord
was to receive a subsidy of $607 per month and the tenant was to pay the balance of the rent.
Several renewal leases later, the Section 8 payment was $986 and tenant paid $7 per month.
Before the tenant's latest lease terminated the landlord notified the program that it didn't want
to continue in the Section 8 program anymore and that it would be terminating tenant's lease
when it expired in November, 2001. The parties entered into a new lease and tenant agreed to
pay $1,012 per month, and there were no Section 8 papers attached to the lease as before. Two
months later the tenant withheld rent and this proceeding began.
Tenant's position is that since she is a regulated tenant through the Emergency Tenant
Protection Act and she had always been in the Section 8 program, the landlord had no right to
terminate the Section 8 subsidy payments. Tenant produced a letter from a DHCR employee
which she claims supported her position, although the letter did not comment on her specific
case. The court disagreed with tenant and ruled that the federal laws under which the Section
8 program derives permits a landlord to terminate the lease and withdraw from the program even
in instances of a regulated tenancy. Since the beginning of the program its hallmark, the court
noted, is its voluntary nature. No landlord is required to be in the program, nor is there any
legal requirement to remain in the program. The court pointed to a 1996 amendment in the
federal Housing Act which allowed landlords to terminate a tenant's Section 8 subsidy by
withdrawing from the program. The judge observed that the amendment made clear that
during the term of a Section 8 tenant's lease, the landlord could not change the terms
of the lease. To require landlords to remain in the Section 8 program in perpetuity would, the
judge held, defeat the spirit and purpose of the voluntary Section 8 program, and no landlord
would sign up, and then low income tenants would be deprived of affordable housing.
The tenant tried to argue that the ETPA regulations regarding lease renewals conflict
with the Section 8 prescriptions. Most likely the tenant argued that the ETPA requires an owner
to renew a lease "on the same terms and conditions" as past leases. But the court ruled that the
ETPA and rent stabilization laws in general are to protect tenants in specified and qualified
apartments from excessive rent that might be charged due to temporary housing shortages. The
purpose here is inapplicable since the federal government is paying the lion's share of the rent
and the rent is established at a market rate. The tenant still has a Section 8 voucher and can go
to another apartment and establish a Section 8 tenancy there.
- Case Caption:
- Matter of Byrne v. Board of Standards and Appeals
- Issues/Legal Principles:
- Certificate of occupancy is revoked where loft landlord had Department of Buildings
inspector approve the issuance of a certificate of occupancy when the work was in fact never
done and the inspector was later indicted for bribery (involving another building).
- Keywords:
- certificate of occupancy; legalization; collection of rent
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Herman Cahn
- Date:
- April 17, 2002
- Citation:
- NYLJ, page 26, col 4
- Referred Statutes:
- Administrative Code of the City of New York 27-222(a); Multiple Dwelling Law
301(5)
- Summary:
- The tenants sought to annul the resolution passed by the Board of Standards and Appeals
("the Board") which upheld the Department of Building's ("DOB") issuance of a certificate of
occupancy to the building. The tenants live in a loft and under the Loft Law the landlord must
show compliance in getting the building up to Code before the landlord can tender the tenants
a rent stabilized lease and start increasing the rent. The Loft Board certified to the DOB that
it could issue a work permit based on the alteration application, plans and narrative statement
the landlord submitted to the Loft Board (agreed upon by the tenants) as to the work necessary
to enable the building to become a proper residential unit (which leads to a certificate of
occupancy).
Later the current landlord purchased the building and amended the alteration plans, but
did not tell the tenants or the Loft Board of the amended plans. The landlord's architect
certified to the DOB that the building and loft complied with all fire and safety requirements and
that all work had been completed. A DOB inspector filed a report certifying that the work
necessary to issue the certificate of occupancy had been completed. Several months later this
DOB inspector was indicted for accepting bribes to issue false inspection reports. The inspector
pleaded guilty to a certain bribery but that bribery did not involve the tenant's building. The
DOB issued a certificate of occupancy for this building, even though it is uncontested that the
renovations required by the approved plans by the Loft Board had not been done.
Once the landlord had the certificate of occupancy, he applied to the Loft Board to
increase the tenants' rent and it was at this time that the tenants first discovered what the DOB
had done. The Loft Board granted the increase because it did not have jurisdiction to overturn
the DOB's issuance of a certificate of occupancy. Then the tenants requested DOB to revoke
the certificate. Although DOB acknowledged that the work had not been done, the agency
refused to revoke the certificate. The tenants then filed an appeal to the Board of Standards and
Appeals to reverse the DOB decision. The DOB and the landlord opposed the tenants'
application. Ten violations were issued at the building, each of which related to the work that
was supposed to have been done. Nonetheless, the Board upheld the DOB's issuance of a
certificate of occupancy.
The tenants appealed further in an Article 78 petition to the Supreme Court and the judge
reversed. The Court held that DOB lacked authority to issue a certificate of occupancy because
the building failed to comply with numerous safety and fire standards. Thus, the certificate of
void. The Board argues that the revocation is improper because the violations that were
discovered were correctable and the landlord is willing to correct the violations. The court,
however, found this argument irrelevant. This was not a situation where a building was initially
compliant and then violations arose. In this case, the building was never compliant with safety
and fire standards and therefore the certificate should never have issued at all. The Board also
argued that since there is a certificate of occupancy, the Board can supervise that the violations
get done. The court rejected this argument because before the certificate of occupancy issued
the building was subject to the jurisdiction of the Loft Board. The Board essentially deprived
the Loft Board of the agency's ability to monitor the renovations. The court found the Board's
decision upholding the DOB's issuance of a certificate of occupancy arbitrary and capricious and
annulled it.
- Case Caption:
- Estate of Callahan v. Shue
- Issues/Legal Principles:
- Landlord's refusal to consent to tenant's proposed subtenant was unreasonable because
landlord wanted the subtenant to pay a much higher rent than what the tenant's paid.
- Keywords:
- sublease; consent
- Court:
- Supreme Court, Westchester County
- Judge:
- Hon. LaCava
- Date:
- April 17, 2002
- Citation:
- NYLJ, page 29, col 4
- Referred Statutes:
- RPL 226-b
- Summary:
- The tenants entered into a one year lease for a single family home in Bronxville for one
year at $6,500 per month. The lease contained a clause requiring tenants to obtain the landlord's
consent if they wanted to sublet, and that the landlord could not withhold consent unreasonably.
The tenants found they liked the neighborhood and six months after leasing the house they
purchased their own house. Another couple were building a house next door to the one the
tenants leased and this other couple was commuting back and forth from New York City every
day. The tenants proposed to sublet to them for the six months remaining on their sublease at
$6,500 per month. The owner recommended $6,750 per month. The neighbors were finding
it too costly, and they didn't want to stay the full term anyway and eventually bowed out. The
tenants, however, found another replacement for the remaining term of their sublease for $6,500
per month. The landlord told the tenants, however, that he had found prospective sublets too,
albeit at $7,000 per month. This person balked, too, and new tenants were not found until the
sublease had all but expired. The new tenants paid $5,500 per month for the first year and
$5,750 for the second year.
The court held that the tenants produced two suitable replacements to sublet the premises
at the lease rent. The court found that it was not unreasonable for the landlord to ask more rent
from the neighbors because they were not willing to lease out the full term. The second
candidate offered by the tenants was, however, suitable and the landlord was unreasonable in
trying to get her to pay $7,000 per month. The tenants' right, the court held, to be relieved of
liability under the lease vests immediately upon the landlord's withholding consent unreasonably.
The judge rendered in favor of the tenant because the landlord unreasonably withheld consent
to the second proposed subtenant by demanding more rent from the proposed subtenants than
was paid by the tenants.
- Case Caption:
- Bobbyson 328, Inc. v. Heilbut
- Issues/Legal Principles:
- Tenant's ownership of a co-op unit which he uses as an office does not deprive tenant
of primary residence status in his rent controlled apartment.
- Keywords:
- nonprimary residence
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Karen Smith
- Date:
- April 19, 2002
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- none cited
- Summary:
- Tenant had a jury trial in this nonprimary residence proceeding regarding the rent
controlled apartment. Tenant listed the apartment's address on various important documents,
including his driver's license, bank account and income tax returns for the relevant period.
Tenant's witness, a neighbor residing directly across the hall, also placed tenant at the apartment
on a daily basis. Tenant admitted owning a cooperative apartment since 1984 which he inherited
from his mother, and the jury believed him that he uses the co-op as an office for a nonprofit
company he founded in 1972. The evidence supports the tenant's assertion that he has used the
apartment as his primary residence for 55 years. The landlord appealed, but lost on appeal.
- Case Caption:
- New York City Housing Authority v. Roberts
- Issues/Legal Principles:
- Public housing tenant cannot proceed with abatement claim unless a notice of claim is
filed with the City.
- Keywords:
- abatement
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Deighton Waithe
- Date:
- April 19, 2002
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- Public Housing Law 157(1)
- Summary:
- In this nonpayment proceeding, the tenant who resides in public housing (New York City
Housing Authority--NYCHA) sought an abatement based on NYCHA's breach of the warranty
of habitability. NYCHA argued that it is a municipal entity, and whenever a municipal entity
is sued a notice of claim must be filed against the entity. NYCHA therefore argued that the
tenant's demand for an abatement must be denied because the tenant did not file a notice of
claim. The Housing Court judge rejected NYCHA's argument, but the Appellate Term reversed
and ruled that the tenant's abatement claim cannot be heard absent the filing of a notice of claim
with the City.
New York Law Journal, decisions for the week of April 8-12, 2002 (6
cases)
- Case Caption:
- Marrero v. NYCHA-Borgia Butler
- Issues/Legal Principles:
- Trial court erred by allowing tenant to be restored to apartment without holding a
hearing and despite the passage of several months and the occupancy by a new tenant.
- Keywords:
- restoration to premises; abandonment
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Brenda Spears
- Date:
- April 8, 2002
- Citation:
- NYLJ, page 20, col 6
- Referred Statutes:
- RPAPL 713(10)
- Summary:
- The landlord had evicted the tenant and then months later the tenant brought an order
to show cause to be restored to possession. The lower court granted the tenant's request even
though another tenant had been living in the apartment for months. The Appellate Term
reversed and held it was error to have restored the former tenant without a hearing or permitting
the landlord to cross-examine him. There was at least a question of fact as to whether the tenant
abandoned the premises based upon his extended absence and failure to pay rent.
- Case Caption:
- Vesky v. Antunez
- Issues/Legal Principles:
- An illusory prime tenancy claim requires some sort of proof that the landlord knew or
should have known of overcharges paid by subtenant to prime tenant.
- Keywords:
- illusory prime tenancy
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Lucy Billings
- Date:
- April 10, 2002
- Citation:
- NYLJ, page 18, col 2
- Referred Statutes:
- none cited
- Summary:
- The undertenant paid $3,000 to the tenant to take over the apartment and then
participated in a scheme to conceal his occupancy from the landlord by tendering rent with
money orders in the departed tenant's name for three months until the landlord ceased cashing
these payments. The undertenant then tried to claim rights to the tenancy on an illusory prime
tenancy theory. The lower court held for the undertenant but the Appellate Term reversed and
held that an illusory prime tenancy exists where the rent laws are violated in a way that
permitted the prime tenant to rent the premises in order to sublease for profit or otherwise
deprive the subtenant of rights under rent stabilization. There is no "absolute requirement" that
there be evidence of collusion on the part of the landlord before an illusory tenancy will be
found, but based on prior case law, there should be a showing of at least constructive knowledge
on the part of the landlord of the subleasing arrangement. In this case the appellate court held
that there is no evidence in the record that the landlord knew or should have known about the
deals between the tenant and subtenant. Therefore the Appellate Term reversed and granted
landlord a judgment of possession.
- Case Caption:
- 57-59 Second Ave. Corp. v. Yeung
- Issues/Legal Principles:
- Tenant who allows bathtub water to overflow to apartment below on 20 occasions may
be evicted as a nuisance.
- Keywords:
- nuisance
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Arlene H. Hahn
- Date:
- April 10, 2002
- Citation:
- NYLJ, page 18, col 2
- Referred Statutes:
- RSC 2524.3(b)
- Summary:
- The tenant repeatedly allowed water to overflow from his bathtub, a condition which
caused water penetration in the apartment below at least 20 times. The landlord demonstrated
nuisance and therefore was entitled to evict the tenant.
- Case Caption:
- 326-330 East 35th Street Assoc. v. Sofizade
- Issues/Legal Principles:
- In a chronic nonpayment holdover proceeding, landlord is not required to serve a
preliminary notice to cure because the conduct is "incapable of any meaningful cure," but a
judge may use discretion to award a post-judgment stay of an eviction if certain factors are
present including tenant's credit-worthiness.
- Keywords:
- chronic nonpayment; cure
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Michelle D. Schreiber
- Date:
- April 10, 2002
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- RSC 2524.3(a); RPAPL 753(4); CPLR 2201
- Summary:
- In about a 2 year period the landlord had to bring 12 nonpayment proceedings against
the tenant who consistently failed to pay the preferential rent. As a result the landlord brought
a holdover petition based on chronic nonpayment of rent. The tenant argued the landlord should
have served a preliminary notice to cure (i.e., before the petition is served) and that the failure
to do so rendered the petition defective and subject to dismissal. The lower court held for the
tenant, but the Appellate Term reversed. The Appellate Term noted that a landlord need not
serve a preliminary notice to cure in this type of case because "the cumulative pattern of tenant's
course of conduct is incapable of any meaningful cure," citing Adam's Tower Ltd. v.
Richter 186 Misc2d 620. The Court held that the tenant offered no sound basis to depart
from the logic of Richter. The Court further held that even if the lease provides for
a cure by the tenant in the event of a default, that does "not necessarily imply that a means or
method to cure must exist in every case."
- The Appellate Term also noted that a claim of chronic rent defaults is not subject to a
traditional post judgment cure period, "we also recognize that there may exist circumstances
warranting the issuance of a stay of a possessory judgment upon such terms as may be just" to
avoid an eviction. If a stay is conditioned upon tenant's compliance with a prospective payment
schedule, the grant of a discretionary stay in a proper case can serve to prevent unwanted future
rent defaults and avoid an unnecessary eviction. Factors to be considered when a judge is
determining whether to grant such a stay in a chronic nonpayment holdover include the length
of the tenancy, the tenant's payment history prior to the rent defaults complained of, the
circumstances and severity of the rent defaults and the tenant's present financial status or other
relevant indicia of credit-worthiness. The Appellate Term remanded the case to the trial judge
to determine if the tenant here fit any of those criteria.
- Notes:
- This case is somewhat contradictory. On the one hand the Appellate Term held in
Richter that the conduct of chronic nonpayment is "incapable of any meaningful
cure," but on the other hand, the Appellate Term is allowing a tenant a chance to cure via a stay
of the warrant of eviction if the various factors mentioned are present in a judge's discretion.
The reasoning is confusing (which might lead to Appellate Division hearing the case), but
anything to help tenants in this non-affordable housing era is welcome. This tenant is paying a
preferential rent which means that the legal rent was too high for the landlord to find a tenant
willing to pay that much, so the landlord had to settle for a lower rent which was also probably
an exorbitant amount. Perhaps the ridiculous amount of rents these days attribute to tenants
having difficulty in chronically paying the rent on time?
- Case Caption:
- Pearl White Place HDFC v. Clinkscales
- Issues/Legal Principles:
- Where evidence indicates sufficient usage of drug activity, landlord is not required to
serve a notice of termination before commencing an eviction proceeding against the tenant.
- Keywords:
- nuisance; illegal usage;
- Court:
- Civil Housing Court, Bronx County
- Judge:
- lower court: Hon. Malatzky
- Date:
- April 10, 2002
- Citation:
- NYLJ, page 21, col 3
- Referred Statutes:
- RPAPL 711(5), 715(1); RPL 231
- Summary:
- The landlord commenced a holdover against the tenant and her son in October 2001 on
grounds that they are using the apartment fo ran illegal activity and/or immoral purpose by using
it for the distribution and sale of controlled substances. The rent stabilized tenant receives a
Section 8 subsidy from the New York City Housing Authority's Existing Housing Program. Her
son was arrested twice in the summer of 2001 and pleaded guilty to disorderly conduct to one
charge and no final adjudication to the other charge by the time of trial. The landlord then
certified to NYCHA of its intent to commence a summary nonpayment proceeding. The
landlord, however, never brought that proceeding, but instead commenced this holdover
proceeding based on illegal usage.
The tenant argues that the petition should be dismissed because the landlord never served
a notice to cure. The court held that the trial record containing "voluminous documentary
evidence" reveals that there "was sufficient ongoing illegal criminal activity occurring" in the
apartment to support a proceeding brought under RPAPL 711 which does not require a notice
of termination. The lease is void by operation of law based on illegal usage. The court granted
the landlord a judgment of possession.
- Case Caption:
- Dorsey v. Hawthorne Garden Owners Corp.
- Issues/Legal Principles:
- Landlord-cooperative building is not responsible for providing "reasonable
accommodation" for disabled tenant (e.g., wheelchair ramp) because such a ramp is not a
"facility," the co-op does not have sufficient funds, and the design and space constraints of the
building cannot be reasonably modified to make it handicap accessible.
- Keywords:
- disability; discrimination; handicaps
- Court:
- Supreme Court, Nassau County
- Judge:
- Hon. Lally
- Date:
- April 10, 2002
- Citation:
- NYLJ, page 23, col 6
- Referred Statutes:
- CPLR 3212; 42 USC 3604(f)(2), 3604
- Summary:
- The tenant is a proprietary lessee of a co-operative building and is disabled and uses a
wheelchair. She has sued her co-op on grounds that they have failed to comply with the
American for Disabilities Act and the Fair Housing Act (FHA) which forbids discrimination in
housing against disabled persons. The tenant wants railings and other wheelchair accessible
installations made. The American for Disabilities Act does not apply to co-op buildings because
they do not constitute "public accommodations." The FHA considers conduct discriminatory
where a "reasonable accommodation" is not made for the disabled person. The judge referred
to another case which held that the requirement of "reasonable accommodation" does not
mention "facilities," and thus a landlord is not expected to undertake to construct an entirely new
facility in an existing building. Further, the installations and/or construction of the
accommodations cannot "pose an undue hardship or a substantial burden." The co-op retained
an architect to do a feasibility assessment as to constructing a ramp or elevator or platform lift
and determined that this is not feasible. The design and space constraints of the building cannot
be reasonably modified to make it handicap accessible. Further, such a ramp would create an
undue hardship on the co-op because they have been running a deficit for the last five years and
do not have the funds to undertake such a project. The court dismissed the complaint since the
tenant could not show a cause of action.
New York Law Journal, decisions for the week of April 1-5, 2002 (9
cases)
- Case Caption:
- Riverside Equities LLC v. DHCR
- Issues/Legal Principles:
- Although performed sporadically due to having to hire a new contractor, landlord's
building-wide repairs were not done in piecemeal fashion and were part of a unified plan,
thereby entitling the landlord to an MCI increase.
- Keywords:
- MCIs
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Emily Goodman
- Date:
- April 1, 2002
- Citation:
- NYLJ, page 19, col 1
- Referred Statutes:
- 9 NYCRR 2522.4(a)(2)(1)(c)
- Summary:
- The DHCR denied landlord's application for MCI rent increases based on re-piping the
building. The Supreme Court upheld the DHCR's opinion and likewise denied the rent
increases. The Appellate Division, however, reversed. The Rent Stabilization Code allows for
building-wide rent increases when repairs are made which affect all building tenants. An MCI
increase will not be accepted if the work is done in piecemeal fashion and is not completed in
a reasonable period of time. In order to show that the application is not based on a routine
repair, the owner must show that the work was part of a unified plan or consecutively timed
project.
The DHCR rejected the MCI application because the re-piping of the building extended
sporadically over a four-year period. The work started in 1993. By 1995, the landlord's
predecessor stopped making payments to the contractor on grounds that the contractor was
suffering financial reverses and would not be able to complete the job. A new contractor was
hired in 1997 to finish the work. Based on these facts, the Appellate Division held that the work
was performed pursuant to a unified plan. The interruption was due to circumstances beyond
the control of the owner or the owner's predecessor, and there was no indication to abandon the
project, let alone to conduct the work in a piecemeal fashion.
- Case Caption:
- Anderson v. Bidlo
- Issues/Legal Principles:
- Where landlord needs access to apartment to make repairs or improvements required
by law or the DHCR, landlord is not required to provide tenant five days notice.
- Keywords:
- access
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Paul Alpert
- Date:
- April 2, 2002
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- 9 NYCRR 2524.3(e)
- Summary:
- The lower court granted summary judgment to the tenant and the Appellate Term
reversed, holding that a trial is necessary since there are facts in dispute. The landlord
commenced a holdover proceeding against the tenant on grounds that the tenant allegedly
"unreasonably refused" the landlord access to the apartment in order for the landlord to
effectuate the repair work ordered by the DHCR in its October, 1998 order.
The Rent Stabilization Code authorizes eviction proceeding against a tenant who "has
unreasonably refused the owner access to the housing accommodation for the purpose of making
necessary repairs or improvements required by the law or authorized by the DCHR, or for the
purpose of inspection or showing the housing accommodation to a prospective purchaser,
mortgagee or prospective mortgagee . . . provided, however, that in the latter event such refusal
shall not be a ground for removal or eviction unless the tenant shall have been given at least five
days notice of the inspection or showing to be arranged at the mutual convenience of the tenant
and owner so as to enable th tenant to be present at the inspection or showing."
When the lower court dismissed the petition, the judge concluded that the tenant's
professed inability to provide access on the August and September 2000 dates proposed by
landlord was the "product" of the landlord's' "unreasonable habit" of proposing access dates on
short notice and "without first consulting with the tenant whether such dates were convenient."
The Appellate Term held that by deciding the case in this way, the judge "engaged in
unsupported issue determination rather than issue finding and improperly engrafted into the
governing Code section notice requirements which, though applicable to other types of inspection
therein specified, find no relevance to the Code access provisions pertaining to "necessary
repairs or improvements." Although the record may support the judge's finding that tenant
offered a credible excuse for his absence from the apartment during the series of February 2001
repair dates scheduled by DHCR, the Appellate Term held that there remain issues as to the
reasonableness of the tenant's failure to provide landlord with alternative means of access on
those dates.
- Notes:
- The Housing Maintenance Code Section 27-2008 provides that the owner's right of
access must be "exercised at a reasonable time and in a reasonable manner."
- Case Caption:
- Hudson Towers Housing Company v. Weissbrod
- Issues/Legal Principles:
- Oral representations of relocation to a larger apartment cannot form the basis for setting
aside a stipulation of settlement where tenant agreed to vacate the apartment.
- Keywords:
- stipulations
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Martin Shulman
- Date:
- April 2, 2002
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- none cited
- Summary:
- Tenant (who had an attorney) entered into a stipulation of settlement agreeing to vacate
the apartment while the alleged illegal subtenant was permitted to remain in occupancy and apply
for a direct lease to the apartment. Tenant claimed that landlord orally assured her that she
would be relocated to a larger apartment in the same building. That representation, however,
was not put in the stipulation and therefore cannot justify setting aside the parties' agreement.
- Case Caption:
- 791 Eighth Avenue LLC v. Romero
- Issues/Legal Principles:
- If an SRO permanent tenant does not request a lease, landlord is not entitled to charge
a vacancy increase in rent, and such charge is deemed an overcharge.
- Keywords:
- SROs; overcharges; vacancy increases
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Timmie Elsner
- Date:
- April 3, 2002
- Citation:
- NYLJ, page 19 , col 1
- Referred Statutes:
- RSC 2522.8, 2522.5, 2524.3, 2524.4
- Summary:
- The tenant lives in an SRO since August, 1999 and began paying $435 per month,
although the rent was registered at that time as $400 per month. Tenant did not have a lease
with the landlord and never requested one. In June, 2001, tenant began withholding rent
alleging overcharges. Whether or not tenant is entitled to an overcharge depends on whether
the landlord was entitled to collect a vacancy increase thus raising the rent form $400 to $435.
Just like rent stabilized apartments, SRO rent increases are set by the Rent Guidelines
Board Orders and the Rent Stabilization Code. The Order in effect in August, 1999 provided
for no vacancy increases for Class B multiple dwellings. The Code allows for a vacancy
increase for apartments, but not hotels. The Code also provides that SRO tenants be provided
a Notice of Rights and if they are not given such notice, a landlord could forfeit "any guidelines
lease adjustment authorized for any current lease." The court observed that for the first six
months of an SRO tenancy, such a tenant possesses less rights than a rent stabilized tenant,
including landlord's right to evict the tenant for no reason. After the six months period, the
tenant becomes a "permanent tenant" entitled to regulated protection (although still less rights
than stabilized apartments tenants have).
In an opinion letter dated February 17, 1999 by the DHCR, attached as an exhibit to the
landlord's motion papers, the DHCR opined that a landlord is entitled to collect a 20% vacancy
increase for two year leases and a lesser amount for one year leases entered into after July 15,
1997. The regulations do not distinguish between hotel units and other types of tenancies. The
court held: "A clear reading of the applicable provisions reveals that the [landlord] is not
entitled to the twenty percent (20%) increase charged to Respondent as the parties never entered
into a lease. Had [tenant] executed a lease, [landlord] wold have been entitled to the vacancy
increase afforded by the Rent Stabilization Code." Thus, the court ruled that the tenant was
entitled to recover overcharges.
- Case Caption:
- Shepanzyk v. Hicki
- Issues/Legal Principles:
- Court declines to allow landlord to recover the apartment for the usage of his parents-in-
law since the mother-in-law is still in Poland waiting on government papers to emigrate.
- Keywords:
- owner occupancy
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Marton
- Date:
- April 3, 2002
- Citation:
- NYLJ, page 20 , col 1
- Referred Statutes:
- none cited
- Summary:
- Landlord brought a holdover proceeding based on owner occupancy grounds and the
court dismissed the case. The apartment sought by the landlord lies in a seven-unit, four story
building in Greenpoint. The tenant's one bedroom apartment is on the second floor, a walk-up.
Tenant has lived there since 1980 and his rent is $470 a month. The grounds on which the
landlord sought the apartment was to provide it for his wife's parents. The landlord himself
testified at trial that he lives in New Jersey. His father-in-law arrived from Poland and was
living with him in his single family home. His mother-in-law was still trying to get certain
papers processed before she can come. The landlord's own home is too small to accommodate
everyone. Also, his father-in-law has difficulty walking and would only have to go up one flight
of stairs if the apartment were recovered.
The court noted that the mother-in-law could not have moved in either when the tenant's
lease expired and he was expected to leave, or by the date of trial since she is still in Poland
trying to emigrate. The landlord's claim that she will move in "soon" is only speculative. The
court noted that there is no evidence that the father-in-law wants or intends to live in the
apartment before his wife arrives. Since he did not testify the court drew a negative inference
of his failure to come to court. Were he to move in now, he would be living alone and he is
infirm, so who would take care of him? The court posed these questions and concluded at this
time landlord lacked the requisite good faith to recover the apartment for the grounds set forth
in the Golub Notice.
- Case Caption:
- 355 W. 85th Street Corp. v. Tremblay
- Issues/Legal Principles:
- Respondent seeking succession rights may have his attorney testify as a witness if the
testimony is not prejudicial to the respondent; disqualification of attorney is denied since it will
create a hardship.
- Keywords:
- guardian ad litem; attorney-client privilege; attorney disqualification
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Alpert
- Date:
- April 3, 2002
- Citation:
- NYLJ, page , col
- Referred Statutes:
- Disciplinary Rules 5-102
- Summary:
- In this succession rights case, the respondent's lawyer sought to have a guardian ad litem
appointed for his client, but the court denied this request. During an oral inquiry of the
respondent, the court found that he understood the nature of the proceeding and could adequately
assist in his own defense. Further, the case has been going on for two years, with hours and
hours of deposition testimony, and never before was a request for a guardian ad litem made.
Respondent's attorney also seeks an order allowing him to testify at trial as a witness, a request
which the landlord's attorney opposes, and further seeks to have the respondent's attorney
disqualified.
The court believes that it may be improper for the attorney to act as both advocate and
witness. However, the substance of what that testimony is about is not entirely clear to the
court. In a prior stipulation, it was agreed that if respondent's counsel felt he may be needed as
a witness, then he would notify the landlord's counsel of this. However, no such notice was
sent. The Disciplinary Rules prohibit a lawyer from representing a client where it is apparent
that the lawyer will be called as a witness on a significant issue in the case, unless
disqualification would create a substantial hardship.
The court found that disqualification would serve as a severe hardship to respondent, even
though his attorney may have to testify at trial, because the lawyer has been on the case for two
years. The court stated that it was not clear what testimony the lawyer intended to present on
the witness stand. The lawyer claims it will not create a conflict with his client and is only
cumulative of his client's testimony. The lawyer confesses to have intimate knowledge of the
financial interdependence between his client and the deceased tenant, but does not believe that
his testimony will adversely affect his client's succession rights claim. Where the party seeking
disqualification does not clearly show that opposing counsel's projected testimony will be
adverse to the client, disqualification is unwarranted. The court ruled that if the trial judge
finds counsel's testimony is prejudicial to his client, then the landlord's motion for
disqualification can be renewed and the trial judge can determine the issue when it is more clear
what exactly the attorney is testifying about.
The reason the tenant wants landlord's counsel's testimony is to show that the landlord
knew that the respondent had been residing in the apartment for the past several years as a result
of several nonpayment proceedings commenced against the deceased tenant wherein respondent
was named as an occupant. The court rejected this reasoning because it is the respondent's
burden of proof and he cannot prove his claim that the landlord knew of his presence by calling
the attorney to the witness stand. The nonpayment proceedings speak for themselves. Further
the files and records kept by the landlord's attorneys are confidential and respondent has offered
no valid reason why the attorney-client privilege should be ignored.
- Case Caption:
- 471 Broadway, LLC v. Schwartzwald
- Issues/Legal Principles:
- Landlord's good faith compliance with laws required to legalize a loft requires a trial
and cannot be resolved on a mere motion.
- Keywords:
- certificate of occupancy; interim multiple dwelling; loft
- Court:
- Appellate Term, First Department
- Judge:
- lower Court: Hon. Laurie Lau
- Date:
- April 3, 2002
- Citation:
- NYLJ, page 18 , col 1
- Referred Statutes:
- Multiple Dwelling Law 284 & 285
- Summary:
- This case involved the issue of whether the apartment is a loft (interim multiple
dwelling) and whether landlord took "all reasonable and necessary action" to obtain a certificate
of occupancy and legalize the premises. This condition is necessary in order for the landlord
to maintain a nonpayment proceeding against the tenant. The landlord filed an alteration
application in 1979 and obtained a work permit, this alone does not demonstrate that compliance
with the owner's obligation to bring the loft law into compliance with the Multiple Dwelling
Law. Since it remains a question of fact as to landlord's good faith compliance with the
applicable legalization process and timetable, the lower court declined to rule in the landlord's
favor on papers alone. A trial was required, and the Appellate Term agreed.
- Case Caption:
- Henriques v. Boitano
- Issues/Legal Principles:
- Landlord's appeal of sanctions costs was not frivolous and therefore landlord cannot be
subject to more costs simply for making the appeal.
- Keywords:
- sanctions; discovery
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Debra James
- Date:
- April 2, 2002
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- 22 NYCRR 130-1.1
- Summary:
- On a previous appeal, the Appellate Term affirmed the lower court's suppression of
documents improperly subpoenaed by landlord's counsel and affirmed the lower court's
imposition of costs against counsel due to the discovery abuse. That appeal, although
unsuccessful, was not a frivolous one and did not give rise to a further sanction award as the
lower court improperly held.
- Case Caption:
- Howard Avenue Associates v. Rojas
- Issues/Legal Principles:
- Tenant who is convicted for a "violation" of possessing 8 cigarettes of marijuana cannot
be evicted for criminal activity since a violation is not a crime because it does not rise to the
level of a misdemeanor or felony.
- Keywords:
- nuisance; illegal usage
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Lebovits
- Date:
- April 5, 2002
- Citation:
- NYLJ, page 20, col 6
- Referred Statutes:
- Penal Law 220.10, 221.05, 240.20, 10.00; CFR 966.4; RPAPL 711(5); 42 USC
11901(2) and 1437
- Summary:
- The tenant has lived in a HUD apartment for 20 years with his parents who are in their
60s and have lived there for 27 years. The mother is also a co-tenant on the lease. In July,
2001 the police entered the apartment with a search warrant and found marijuana amounting to
about 8 cigarettes. The tenant was arrested and spent the night in jail and was sentenced to a
conditional discharge upon pleading guilty. The charge was a because the weight of the
marijuana did not reach misdemeanor proportions and because the marijuana was neither burning
nor open to public view.
HUD wrote the tenant's landlord demanding that the landlord take steps to evict the
tenant. In Housing Court, the tenant agreed to move on condition that his parents be able to
remain in the apartment. The case was adjourned for five days in order to draw up the
settlement papers, and in that period the tenant did move, but on the next court date, the
landlord withdrew the offer because HUD insisted everyone in the house, including the parents,
had to move.
This court was now faced with the question of how to interpret HUD's rules regarding
illegal activity which differ from New York laws. In New York, a tenant may not be evicted
for personal use of illegal drugs, but may be only if the activity is related to commercial usage,
i.e., selling or manufacturing. A tenant may be evicted if they knew of or acquiesced in illegal
usage taking place in the apartment. The court ruled that 8 cigarettes constitutes personal usage
and a single seizure does not rise to commercial trafficking. The court found that the tenant's
parents did not know of or acquiesce in their son's personal usage, as the marijuana was not in
open view and the tenant testified that he doesn't smoke in the apartment. If only New York
law was relevant, the court stated that it would dismiss the proceeding.
However, HUD rules must also be regarded. HUD has a "one strike you're out" policy
against all tenants. The landlord argues that based on HUD rules and federal law, it is
immaterial that the marijuana was present for personal use only and that the parents were
innocent. All that is relevant is whether the tenant engaged in "drug-related criminal activity"
which is against the lease. The court noted that courts in New York and around the country
are split on whether innocent tenants like the parents may be evicted from federally funded
housing in instances like this case.
The judge, following HUD rules, looked at the language of the lease and determined that
the tenant did not engage in criminal activity because he pled guilty to a violation for unlawful
possession of a small weight of marijuana and under the Penal Law a violation does not rise to
the level of a crime; a crime is either a misdemeanor or a felony. Since he engaged in no
criminal activity and has moved from the apartment, the judge refused to evict the parents.
- Notes:
- The U.S. Supreme Court recently ruled that landlords of federally subsidized housing
were authorized to terminate the lease of a tenant when a member of the household or guest
engaged in drug-related activity, regardless of whether tenant knew, or should have known, of
the drug-related activity. See Department of Housing and Urban Development v. Rucker
2002 WL 451887 (WestLaw cite). Some people have wondered whether George W.
Bush should face eviction proceedings since he lives in federally subsidized housing and it was
reported during the presidential campaign (and vigorously suppressed by his campaign staff) that
he experimented with drugs such as cocaine.
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