Housing Court Decisions February 2002
Editor: Colleen F. McGuire, Esq.
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Significant Cases
Brusco v. Armstrong
Farber v. 535 East 86th Street Corp.
Damasco v. Berger
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Online Case Texts
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New York Law Journal, decisions for the week of February 25 to
March 1, 2002 (7 cases)
- Case Caption:
- ATM Four LLC v. Baez
- Issues/Legal Principles:
- Court credits superintendent's testimony as to number of people living in the apartment
and finds that tenant engaged in overcrowding in violation of the Freeport Village Code.
- Keywords:
- overcrowding
- Court:
- District Court, Nassau County
- Judge:
- Hon. Fairgrieve
- Date:
- February 27, 2002
- Citation:
- NYLJ, page 25, col 1
- Referred Statutes:
- Freeport Village Code 128-20; Emergency Tenant Protection Regulations 2504(c)
- Summary:
- Tenant moved into one apartment but then relocated to a larger apartment. Tenant's
application stated who she was going to live with. In the first apartment she stated she would
live with her father and her minor son. Later the tenant moved to the larger apartment with two
children. The landlord brought a proceeding against the tenant based on overcrowding claiming
that 6 adults and three children live in the apartment.
At trial the tenant testified that her father lived with her but no other adults, not a
boyfriend (she said she is not married), not her mother, not her brothers, no one else. She
testified that her mother sometimes helped her with the children but did not live there. The
super lives on the same floor and testified that nine people live in the apartment including the
tenant, three minor children, tenant's husband, her mother, her father and her two brothers. The
super gave details about the alleged other residents, including that the brother is a landscaper
and he sees the brother leave for work regularly. The super claimed he never told his employer,
the landlord, about the overoccupancy because he was never asked and did not want to get the
tenant in trouble. He testified in detail about the household composition, including where each
family member slept based on his prior access to the apartment.
A building inspector testified that the Freeport Village Code, Section 128-20 was
applicable. The inspector was not able to inspect the apartment but he was told of the number
of rooms and testified that based on the configuration of the apartment and the law, this
apartment can accommodate five persons living in it because it has 2 bedrooms and a living
room. Adults and children are treated equally. The landlord sought access to determine the
number of adults living in the premises, but the tenant did not grant access.
After hearing all the testimony the court concluded that the tenants had violated the
Freeport Code against overcrowding. The court believed the testimony of the super as to the
number of people living in the apartment. The court ruled that the statute against overcrowding
is to protect the public from excessive water and garbage use and use of the local schools which
costs the taxpayers unnecessarily. The court drew a negative inference that the two brothers did
not testify despite tenant's claims that she intended to call her brothers to rebut the super's
alleged false testimony that they reside in the apartment. The court awarded judgment in favor
of landlord and against the tenant.
- Case Caption:
- Benroal Realty Associates LLP v. Lowe
- Issues/Legal Principles:
- Where DHCR and Appellate Term rendered conflicting orders regarding a tenant's
regulated status, the trial court refused to defer to the DHCR order as it was bound to the
Appellate Term's order to re-try the case.
- Keywords:
- collateral estoppel; residential/commercial tenancy; stays
- Court:
- District Court, Nassau County
- Judge:
- Hon. Gartner
- Date:
- February 27, 2002
- Citation:
- NYLJ, page 25, col 4
- Referred Statutes:
- CPLR 3217
- Summary:
- The landlord brought a holdover proceeding and claimed that the premises are used by
the tenants as a residence but also unlawfully used as a commercial day-care enterprise, and
since there is a commercial lease, the landlord is not bound to renew the lease. The case was
originally on for trial over two years ago and the court rejected the tenant's position that they
were protected by the Emergency Tenant Protection Act since the lease signed was exclusively
for commercial purposes. Subsequently, however, the Appellate Term reversed the trial court
and held that the trial court should have heard testimony from the tenants regarding how the
landlord relocated them from a rent regulated apartment to the commercial space knowing that
they would use the space for residential purposes.
The Appellate Term remanded the case for a new trial. On remand the landlord then
requested the trial judge dismiss the case based on a DHCR order issued five months after the
Appellate Term's reversal. The DHCR order was a denial of the tenant's application for a rent
reduction. The DHCR ruled that the tenants were not entitled to a reduction because they have
a commercial lease (the same lease which was before the trial court and the Appellate Term).
For some reason the trial court and the Appellate Term were not appraised that a DHCR
proceeding was pending.
In this case there are two conflicting decisions, one from the DHCR and one from the
Appellate Term. The landlord, of course, is now asking the judge to defer to the DHCR
decision, not the Appellate Term decision. The tenants are appealing the DHCR order via an
Article 78 where they will argue that they were deprived a full and fair hearing at the DHCR.
The court refused to defer to the DHCR order which in legal terms is called collateral estoppel.
The court ruled that "To give the DHCR order collateral estoppel effect would thwart the clear
direction of the Appellate Term." The court opined that the landlord's remedy to stop the
current trial is to move for a stay of the holdover proceeding in tenant's Article 78 proceeding
in Supreme Court. There is, however, the possibility that the tenants will discontinue the Article
78 and proceed at trial since the trial judge is bound by the Appellate Term ruling.
- Case Caption:
- Bonfiglio v. DHCR
- Issues/Legal Principles:
- Where co-op owner never occupied the apartment, tenant is entitled to protections under
the Emergency Tenant Protection Act of 1974 in White Plains.
- Keywords:
- co-operatives; rent regulation
- Court:
- Appellate Division, Second Department
- Judge:
- lower court: Hon. Nastasi
- Date:
- February 28, 2002
- Citation:
- NYLJ, page 21, col 2
- Referred Statutes:
- Emergency Tenant Protection Act of 1974
- Summary:
- The landlord is an owner of a co-operative apartment rented to a tenant. The owner
never lived in the apartment. The DHCR ruled that the co-op is subject to the Emergency
Tenant Protection Act of 1974 pursuant to the regulations promulgated under the Act. The
DHCR directed the owner to serve the tenant a renewal lease. The owner appealed and the
Appellate Division affirmed on grounds that the White Plains City Council made the ETPA
applicable to White Plains and therefore the apartment was subject to rent regulation and the
tenant was entitled to a renewal lease.
- Case Caption:
- 250 West 78th LLC v. Schiefele
- Issues/Legal Principles:
- Tenant's absence from the apartment on grounds that she is caring for an ailing family
member in Canada defeats landlord's effort to recover the apartment on a summary judgment
motion.
- Keywords:
- nonprimary residency
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Michelle Schreiber
- Date:
- February 27, 2002
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- none cited
- Summary:
- Tenant occupies a rent controlled apartment but was absent to care for an ailing relative
in Canada. The lower court denied the landlord's cross-motion for summary judgment and the
Appellate Term affirmed. The Appellate Term held that a tenant's absences from the apartment
in order to care for an ailing family member do not compel a finding of nonprimary residence
as a matter of law. The Appellate Term also ruled that a tenant's failure to file resident tax
returns is not a controlling factor in determining primary residency particularly where the tenant
claims insufficient income. The tenant claimed that she spent at least 75% of her time in the
last four years in her New York City apartment and that this at least raises a question of fact as
to her presence here.
- Case Caption:
- Hudbar Associates LLC v. Charif
- Issues/Legal Principles:
- Tenant's usage of two contiguous apartments and landlord's knowledge of this
arrangement defeats landlord's nonprimary residence proceeding against one of the units.
- Keywords:
- nonprimary residence; single usage; contiguous units
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Lawrence Schachner
- Date:
- February 27, 2002
- Citation:
- NYLJ, page 18, col 6
- Referred Statutes:
- none cited
- Summary:
- The tenant occupies apartment 2Q (a studio) as her rent controlled apartment although
landlord claims she is using it merely for storage and that her actual primary residence is
apartment 2P (a two bedroom). Tenant claims that both units together constitute her single
primary residence for over 30 years. At trial the court considered tenant's actual usage of the
2 units in determining whether both units are occupied as a single primary residence. The court
also considered whether the landlord knew of and acquiesced in the arrangement.
In this case the court found that the landlord was aware of the tenant's living
arrangement and had participated in the expansion of the tenant's residential space. The landlord
treats the two units as separate since they are registered separately with the DHCR and two rent
bills are sent. The units, however, are contiguous with a doorway between them separated by
an archway. One can go from one unit through the doorway to another unit without exiting the
apartments. Apartment 2Q no longer has a kitchen as it is used by the tenant as a work and
storage area. The tenant paid for the creation of the internal doorway. Although she eats, cooks
and sleeps mostly in 2P, she also uses 2Q as frequently for residential usage. Both apartments
are billed under one ConEdison account. At trial the tenant went into detailed testimony as to
the contents of each unit and the activities she engages in at each unit. Thus, the court found
that by a preponderance of evidence the tenant demonstrated that she uses both units as a single
primary residence.
- Case Caption:
- Fantauzzi v. Tadros
- Issues/Legal Principles:
- Landlord cannot collect on judgment for rent against tenant until landlord legalizes the
two-family home to comport with the certificate of occupancy.
- Keywords:
- certificate of occupancy; illegal occupation; two-family home
- Court:
- Civil Court, Richmond County
- Judge:
- Hon. Straniere
- Date:
- February 27, 2002
- Citation:
- NYLJ, page 24, col 4
- Referred Statutes:
- CPLR 5015, 4405; Multiple Dwelling Law 302
- Summary:
- Tenant brought a Small Claims action against his prior landlord seeking the return of
his security deposit. The landlord counterclaimed for property damage. Previously the landlord
had gotten a judgment against the tenant for rent in the amount of $1875 and tenant's
counterclaim in that matter for property damage was dismissed. Tenant sought to re-argue the
prior decision in landlord's favor. Tenant argued that the premises is a one-family house but
used illegally as a two family house and therefore the landlord should not have been awarded
any rent.
The first question the judge addressed was whether the tenant's resurrection of the rent
issue is timely. To reargue a decision, the losing party must do so within 30 days, unless there
is newly discovered evidence. But in this case the evidence, the certificate of occupancy
showing that the two family home is illegal, was available at the last trial date. Therefore tenant
failed to show any procedural grounds why the prior decision should be overturned. But the
court went on to query whether there are any public policy reasons to grant the request.
The certificate of occupancy clearly shows that the premises cannot be used as a two
family home. If it were used as a three family home the landlord would not be able to collect
rent because the multiple dwelling law forbids the collection of rent for three or more units if
there is no certificate of occupancy reflecting three family usage. But this is not the case for
two units since three or more units are needed to comprise a multiple dwelling. Nonetheless the
court opined that the same logic should apply because the passage of the Multiple Dwelling Law
was based on ensuring that tenants are living in safe housing. A certificate of occupancy is a
means by which the safety of the premises is monitored by the government. The landlord should
not have been permitted to collect a judgment for the rent based on using a one-family home for
two-family purposes in violation of the certificate of occupancy.
The court however ruled that when an owner legalizes the premises, they should be
entitled to collect the back rent. The mere fact that at one time the premises were illegal does
not bar the landlord from collecting rent for the period before a lawful certificate of occupancy
issues. The judge allowed the $1875 judgment to remain in effect but precluded the landlord
from collecting it until the landlord legalized the premises. If the landlord cannot convert the
premises into a legal two-family home, then the judge ruled that he would vacate the judgment.
The judge then went into a long inquiry and commentary involving the problem of illegal
two and three family homes that were initially constructed as one family houses and the
certificate of occupancy was never changed. Who is responsible for bearing the costs of
legalization: the builder who constructed the premises with rooms readily convertible to illegal
apartments, or the City which approved a code that allows a basement area to be built with a
summer kitchen and bathroom and then is "surprised" when the owner converts it to a rental
apartment? At this juncture the individual owners must undertake the legalization process.
- Case Caption:
- Damasco v. Berger
- Issues/Legal Principles:
- Landlord's notice of nonrenewal of lease may include two grounds, such as, owner
occupancy and nonprimary residency.
- Keywords:
- Golub Notice; alternative pleadings; owner occupancy; nonprimary residence
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Oymin Chin
- Date:
- February 28, 2002
- Citation:
- NYLJ, page 19, col 5
- Referred Statutes:
- CPLR 3014; RSC 2524.4
- Summary:
- The notice of nonrenewal (a/k/a the Golub Notice) set forth alternative grounds for the
landlord's nonrenewal of the lease: owner occupancy and nonprimary residency. The lower
court dismissed the petition but the Appellate Term reversed on grounds that the Rent
Stabilization Code authorizes a nonrenewal of lease on "one or more" specified grounds. Also,
pleading in the alternative is permitted without the necessity to send separate notices.
New York Law Journal, decisions for the week of February 18-22,
2002 (1 case)
- Case Caption:
- O'Reilly v. DHCR
- Issues/Legal Principles:
- Shared boiler is insufficient for tenant's claim that her building is a horizontal multiple
dwelling.
- Keywords:
- horizontal multiple dwelling
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Paula Omansky
- Date:
- February 19, 2002
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- none cited
- Summary:
- The tenant moved into the apartment in June 1975 pursuant to a rent stabilized lease
(which was renewed several times). The tenant previously resided in the same apartment from
1956 to 1966. In 1989, the current owner purchased the building and the following year refused
to renew the tenant's lease on grounds that the building contained less than six units. Tenant
filed a complaint with the DHCR based on the owner's refusal to tender a lease.
The DHCR sent an inspector to the building whereupon it was determined that the
building was not a part of a horizontal multiple dwelling and therefore tenant's apartment was
not rent stabilized. The tenant filed a PAR which found in her favor on grounds that the
landlord did not rebut the tenant's evidence that the building was part of a complex owned and
operated as a horizontal multiple dwelling on the relevant date, May 6, 1969. Landlord then
appealed via an Article 78 petition to the Supreme Court which resulted in the case going back
to the DHCR for a full hearing.
At the hearing the tenant testified that six adjacent buildings were managed by the same
company and shared the same boiler. A licensed architect testified for the landlord that the
tenant's building is not part of a horizontal multiple dwelling because on the east side the
building is separated by an alley and on the west side with separate sewer, gas, electric and
water lines and with separate gas and water meters and that it does not tie in to any other
building structurally or mechanically and does not share a foundation entrance or staircase with
any other building. The building's backyard is fully enclosed with no openings to adjacent
properties. There is no inside passageway from which a person could go from one building into
another. There is no indication that there ever had been any connection between the buildings.
The architect researched the building back to 1903 and found that, other than a shared heating
system, there was no structural or mechanical commonality among the buildings.
The DHCR held for the landlord at the administrative level and the PAR level. The
tenant appealed in an Article 78 and the Supreme Court judge ruled that the case should be
remanded back to the DHCR because the agency considered evidence of the building's present
condition and configuration (as opposed to when the tenant commenced occupancy). The court
also ruled that the record was incomplete since there was no information on the rent regulatory
status of the other buildings and the agency failed to clarify whether the owners of the buildings
were separate entities.
The landlord appealed to the Appellate Division and won. The Appellate Division
reversed on grounds that in determining a horizontal multiple dwelling case, the crucial factor
is whether there are sufficient indicia of common facilities, common ownership, management,
and operation to warrant treating the buildings as an integrated unit. Shared heating and
common ownership alone are not insufficient to establish a horizontal multiple dwelling. Thus,
the tenant will face eviction because she cannot show that her building (which has less than six
units) is not connected to other buildings to raise the combined count above six apartments in
order to obtain rent stabilization status.
New York Law Journal, decisions for the week of February 11-15,
2002 (4 cases)
- Case Caption:
- 930 Fifth Corporation v. Miller
- Issues/Legal Principles:
- Where landlord's agent acquires knowledge of tenant's dog on November 13, 2000,
landlord must prove that the service of the petition was completed by February 13, 2001.
- Keywords:
- Pets
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Timmie Erin Elsner
- Date:
- February 11, 2002
- Citation:
- NYLJ, page 20, col 5
- Referred Statutes:
- Administrative Code 27-2009.1(b); RPAPL 731(1) & 735
- Summary:
- Landlord's notice of default stated that the managing agent for the building was advised
on or about November 13, 2000 that the tenant was harboring a dog. Landlord failed to
commence eviction proceedings within three months of that date. The return date of the petition
was February 28, 2001 but the landlord failed to show that service of the holdover petition was
completed no later than February 13, 2001. The three-month statutory period in which to
commence a proceeding against the tenant based on an alleged lease violation for harboring a
dog must be strictly construed. For this reason the Appellate Term upheld the lower court's
decision which dismissed the petition as untimely.
- Case Caption:
- Farber v. 535 East 86th Street Corp.
- Issues/Legal Principles:
- Where tenants were not required to relocate while landlord repaired the violations,
landlord is not liable for reasonable costs incurred by tenants where they voluntarily vacated.
- Keywords:
- violations; relocation
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Margaret Parisi McGowan
- Date:
- February 15, 2002
- Citation:
- NYLJ, page 20, col 2
- Referred Statutes:
- none cited
- Summary:
- In an HP action the court ordered the landlord to pay the reasonable costs of temporarily
relocating the tenants while the apartment was being repaired. The landlord appealed and the
Appellate Term reversed. The tenants in this proceeding are actually owners of the co-op unit.
They sustained flood damage due to torrential rains which caused an overflow from the uncapped
drain pipe on tenant's enclosed terrace. HPD found five violations and directed the repair of
the wood floors throughout the entire apartment. The co-op corporation does not dispute that
it is required to remove the violation, but contests that it is required to pay the "reasonable
costs" of relocating the tenants while the work ensues. The Appellate Term held for the
landlord on grounds that there was allegedly evidence in the record that similar repairs had been
done in other apartments on a room by room basis without requiring those tenants to vacate.
In this instance, Appellate Term held that the tenants could voluntarily vacate but landlord would
not be liable for any fees they incurred.
- Notes:
- This case leaves open the question of whether a landlord is liable to reimburse tenants
for reasonable costs of relocation where temporary vacatur is not a choice of the tenant, i.e.,
the violations could not be repaired unless the tenant relocated.
- Case Caption:
- Ginezra Associates v. Pillsbury, Ifantopoulos
- Issues/Legal Principles:
- Loft tenant who has two units connected by an interior staircase cannot be subjected to
nonprimary residence proceeding for that portion of his home which he sublet where landlord
had knowledge and acquiesced to the subletting.
- Keywords:
- nonprimary residence; loft; subleasing
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Douglas Hoffman
- Date:
- February 11, 2002
- Citation:
- NYLJ, page 20, col 5
- Referred Statutes:
- none cited
- Summary:
- The landlord brought a nonprimary residence holdover against the tenant who resided
in a loft apartment comprising of the second and third floors of a multiple dwelling. The floors
were connected by an interior staircase, all of which was treated as a single residence. There
is one rent for the two-floor unit, and subletting was permitted under the lease. Tenant resided
on the second floor at all times while subleasing the third floor. Improvements made which
resulted in more self-contained living space on each floor were done with the knowledge and
acquiescence of the landlord. Under these circumstances, the Appellate Term upheld the lower
court's decision and ruled that the landlord may not simply excise a portion of the leasehold for
nonprimary residence purposes and bring an eviction proceeding to recover that part of the space
which had been sublet without objection for a prolonged period. Even though the Loft Board
characterized the loft as "residential units" (i.e., plural), this does not alter the final holding in
favor of tenant.
- Case Caption:
- O'Mahony v. DHCR
- Issues/Legal Principles:
- Landlord has burden of proof to show that tenant was sent RR-1 (notice of initial rent
stabilized rent and 90-period to file Fair Market Rent Appeal) by certified mail, and only
acceptable proof of such mailing is the Post Office return receipt green card bearing tenant's full
signature.
- Keywords:
- Fair Market Rent Appeal; certified mail
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Marilyn Diamond
- Date:
- February 13, 2002
- Citation:
- NYLJ, page 19, col 3
- Referred Statutes:
- Administrative Code of the City of New York 26-513(d); RSC 2523/1
- Summary:
- On March 23, 1988, the tenant filed a rent overcharge complaint with DHCR stating that
when he moved into the apartment on August 1, 1987, his initial monthly rent was $650.00 even
though the previous tenant, a rent controlled tenant, had paid a rent of only $172.44. The
tenant indicated on the DHCR form that he had received a Notice of Legal Registered Rent
form, commonly known as an RR-1, from the owner on August 3, 1987. Tenant also submitted
a copy of this lease which he claimed he had just received from the owner after numerous
requests.
On February 1, 1991 DHCR dismissed the tenant's complaint finding that since the
complaint was filed after the expiration of the 90 day challenge period following service by the
landlord to tenant of a Notice of Right to File a Fair Market Rent Appeal (known as a DC-2A
form), the agency was limited to reviewing the rent increases made subsequent to the imposition
of the initial $650 rent (i.e., the $172.44 rent would not be considered). With this limited
review, no overcharges were found.
Tenant then filed a PAR in which he contended that he never received the DC-2A form
until February 14, 1988 and repeated his earlier assertions that he had not received a copy of
his lease until February, 1988. DHCR did not issue a decision on the PAR until ten years later
(with no explanation) on January 15, 1999 at which time the Commissioner ruled that there was
no proof of service of the DC-2A form on the tenant and therefore the 90-day period to
challenge the rent had not begun to run (and therefore the agency could examine the rent prior
to the initial rent, i.e., the $172.44). The Commissioner remanded the case to the Rent
Administrator for further proceedings.
On February 10, 2000, the Rent Administrator issued an order which fixed the initial
legal stabilized rent at $379.78 and ordered the (now new) landlord to roll back the rent and
refund the tenant that portion of the excess rent that had been collected during its ownership.
The landlord then filed its own PAR, arguing that the tenant's complaint was still untimely
because the tenant himself conceded in his original complaint that he had been served with an
RR-1 form in August, 1987 which advised him that he had 90 days from receipt of the form to
file a Fair Market Rent Appeal. Tenant responded that he misunderstood the question on the
overcharge form and that in answer "yes" to receiving an RR-1 Form in August, 1987, he
actually thought the reference was to signing a lease. But the landlord pointed out that the tenant
preciously claimed that he did not receive the lease until 1988 so the tenant's response was
contradictory. (Actually tenant signed the lease in August, 1988 but didn't receive it until the
following February, so he was not contradicting himself).
DHCR granted the landlord's PAR and found that the tenant's original complaint was
untimely because he failed to file it within 90 days of his receipt of the RR-1 Form. The
Commissioner found that the explanation offered by the tenant to negate his initial admission of
receipt of the RR-1 Form in August, 1987 was not credible. Tenant then appealed to the
Supreme Court in an Article 78 proceeding.
Tenant argued on appeal that it is the owner who bears the burden of establishing that
the RR-1 Form was properly served upon the tenant by certified mail. Tenant argued that the
DHCR impermissibly shifted the burden of proof to him by requiring that he provide an
explanation for his admission of receipt of the RR-1 Form. In the absence of proof by the
predecessor landlord of the receipt of mailing for a certified mailing of the RR-1 form, the
DHCR should not have held for the landlord.
The Court held for the tenant pointing out that a landlord has a statutory duty to register
premises which become subject to the rent stabilization law, as this one did when the prior rent
controlled tenant vacated and this tenant became the first rent stabilized tenant. An owner is also
obligated to serve the RR-1 form on the first rent stabilized tenant and the law explicitly requires
that such mailing be done by certified mailing. Additionally, DHCR Policy Statement 92-3
required proof of service by certified mailing of the RR-1 for all mailings done after May 1,
1987. The court noted that these statutes and guidelines are unambiguous in requiring service
by certified mailing, and that it is the owner's burden to prove such mailing. The court rejected
the landlord's argument that tenant's initial admission of service constitutes sufficient proof of
proper service. The court held that this position is completely opposite to the Appellate
Division's ruling that service of the RR-1 must be by certified mailing and the only acceptable
proof of this is the original return receipt form with the tenant's full signature or the date-
stamped post office receipt.
Since the landlord failed to offer any proof of receipt of the certified mailing, the court
remanded the matter to the DHCR to render a decision consistent with the law as the court
recited it. The court noted that, the fact that the tenant contradicted himself when he believed
he received a lease or a RR-1 form is not relevant to the issue of whether the owner submitted
adequate proof that, as the statute requires, the tenant had been served by certified mail.
"Indeed, [tenant's] apparent confusion underscores the importance of this requirement."
- Notes:
- Disclosure: Colleen McGuire's law office, McGuire & Zekaria, represented the tenant
in his Article 78 appeal. Prior thereto, the tenant had gone pro se. This case might not have
gone on so long had DHCR been given the statutory and case law which fully supported the
tenant's position that the landlord must prove proof of service of the RR-1 via the Post Office
return receipt green card bearing tenant's full signature.
New York Law Journal, decisions for the week of February 4-8, 2002
(5 cases)
- Case Caption:
- 780 PP Associates v. DHCR
- Issues/Legal Principles:
- The DHCR properly relied on a Department of Buildings violation and "cease use" order
regarding the building's elevator when the agency issued a rent reduction order.
- Keywords:
- rent reduction order; rent restoration order
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Douglas McKeon
- Date:
- February 4, 2002
- Citation:
- NYLJ, page 19, col 2
- Referred Statutes:
- none cited
- Summary:
- The DHCR granted the tenants a rent reduction order based on reduction of elevator
service and did not restore the rents to their pre-reduction levels until June 1, 1998. The
landlord appealed this decision in an Article 78 proceeding to the Supreme Court who ruled in
the DHCR's favor. The landlord then appealed to the Appellate Division who likewise upheld
the DHCR's decision. The Court held that it was not irrational for the DHCR to conclude that
a complaint by the tenants that brick and plaster was falling from the elevators was substantiated
by an inspection by the Department of Buildings. The DOB issued a violation for shifting bricks
and a "cease use" directive. The DHCR relied on the DOB violation in reducing the rent.
- Case Caption:
- 220 West 98 Realty LLC v. New York Province of the Society of Jesus
- Issues/Legal Principles:
- Landlord's primary residence case against Jesuits fails because of a 1989 stipulation
which identified which individuals occupy which specific apartment units, and only those Jesuits
who are no longer occupying those units may be evicted.
- Keywords:
- rent stabilization status; stipulations; not-for-profit tenancies
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Maria Milin
- Date:
- February 5, 2002
- Citation:
- NYLJ, page 17, col 3
- Referred Statutes:
- none cited
- Summary:
- The respondent is a not-for-profit corporation and a branch of the Jesuits. The Jesuits
are organized into provinces and each province is made of communities. The subject premises
involves the West Side Jesuit Community. In 1969, the landlord entered into a lease with the
Jesuit Province to lease multiple apartments (about 16) in a particular building. The rider to the
lease provided that the units were to be sublet to the students and faculty of Woodstock College.
When the college closed in 1974, the lease extension provided that the units would be sublet to
the Jesuits. In 1988, the landlord declined to renew the Province's lease on grounds that the
Jesuits were not using the premises as primary residences. The Housing Court ruled in favor
of the Province and the Jesuits on grounds that the premises were used as primary residences.
The landlord appealed the decision, but before perfecting the appeal the parties entered
into a stipulation in 1989: the proceeding was discontinued with prejudice and the appeal
withdrawn. The parties agreed to enter into a two-year rent stabilized lease form October 1988
to September, 1990, and the Province agreed to "provide Owner a list of the present occupants
of each of the Subject Apartments." The Jesuits delivered a list of 21 occupants in 16 units and
thereafter rent stabilized leases were executed, the last of which expired in September, 1988.
In 1998, the current landlord served a notice of non-renewal of lease based on
Manocherian v. Lenox Hill Hospital, 229 AD2d 197, which held that a corporate tenant
is not entitled to a renewal lease under the Rent Stabilization Law unless the lease specifies a
particular individual as the occupant of a particular apartment. In the proceeding which ensued
in Housing Court, both sides moved for summary judgment and formulated the key issue as
whether the Province or alternatively the Jesuits was the tenant under the lease. The Housing
Court ruled that Manocherian was not applicable because the landlord in word and
deed treated the Jesuits as the primary tenant and not as a mere occupant or subtenant of the
Province.
The Appellate Term rejected the Housing Court's analysis, but rather found that the 1989
Occupant List rendered the Manocherian case inapplicable insofar as it specified particular
individuals as occupants of the apartment. The Appellate Term held if these same individuals
are still occupying the units, the landlord should not relitigate these issues again. The Appellate
Division agreed. The 1989 stipulation specifically identifies individuals which occupy the
apartment and this would comport with the purpose of Manocherian which was to
avoid the potential for a perpetual tenancy which would be an unconstitutional taking. The
Appellate Division ruled that the Appellate Term properly remanded the case to the Housing
Court for a determination of which units are no longer occupied by the individuals designated
in the 1989 stipulation.
- Case Caption:
- Maris v. Summer
- Issues/Legal Principles:
- Tenant who occupies two apartments as one primary residence cannot be evicted in
owner occupancy proceeding where the first apartment is an "ETPA apartment" since it was
leased between 1971 and 1974 and the ETPA regulations preclude owners from recovering
apartments against ETPA tenants on owner occupancy grounds.
- Keywords:
- owner occupancy; twenty-year rule
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Jean Schneider
- Date:
- February 6, 2002
- Citation:
- NYLJ, page 19, col 3
- Referred Statutes:
- Emergency Tenant Protection Act of 1974
- Summary:
- Landlord brought an owner occupancy proceeding on grounds that her son wanted to use
the apartment. The tenant disputes landlord's good faith grounds. Tenant also argued that he
is protected by the Emergency Tenant Protection Act of 1974 ("ETPA"). Tenant rented
Apartment 4F in 1973 which is the period in which the ETPA was enacted. Later he obtained
Apartment 5F and began using the two units as his single primary residence even though they
are not connected.
The landlord's son is 43 years old and has a long history of drug abuse and estrangement
from his mother. She had obtained many orders of protection against him and had him arrested
for violating those orders. Recently, he served time in jail and rehabilitation centers and since
then has been living with his mother in her apartment. During the time he stayed with his
mother, two other apartments became vacant in the building and were rented to new tenants.
The landlord testified that these apartments were larger than 5F (a studio) and thus she could not
afford to give one of those apartments to her son.
The court ruled that two nonadjacent apartments can indeed form one single residence,
as past cases have ruled. The court found that for 18 years the tenant used 4F and 5F as a
single residence and that the landlord was aware of this arrangement and did not object. The
court relied on Brusco v. Armstrong to hold that since Apartment 4F is an ETPA
apartment (rented between 1971 and 1974), the ETPA rules preclude an owner from recovering
the apartment for owner occupancy purposes. Since the tenant occupied both apartments as a
single unit, the first apartment's status "traveled with" the tenant which meant that 5F was
bootstrapped to 4F's protected ETPA status. The court therefore dismissed the petition.
- Notes:
- The same day this case appeared in the New York Law Journal, the Appellate Term
reversed Brusco v. Armstrong. See below. The landlord in this case will most likely
return to the judge and demand a reversal of opinion based on the Appellate Term's reversal of
Brusco v. Armstrong.
- Case Caption:
- Brusco v. Armstrong
- Issues/Legal Principles:
- Appellate Term rejects applicability of twenty-year rule to owner occupancy proceedings
brought against ETPA stabilized tenants (i.e., tenants who moved in between 1971 and 1974).
- Keywords:
- owner occupancy; twenty-year rule
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Laurie Lau
- Date:
- February 6, 2002
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- New York City Administrative Code 26-511(b); 9 NYCRR 2524.4(a)(21) & 2204.5;
McKinney's Unconsolidated Laws 8630(a); McKinney's Statutes 74
- Summary:
- The landlord brought an owner occupancy proceeding against the tenants who occupy
two adjacent, non-connected apartments which the tenants use as a single primary residence.
One of the apartments was leased between 1971 and 1974. The tenants argued that this was an
"ETPA apartment," (i.e., Emergency Tenant Protection Act of 1974) and the ETPA's
Regulations preclude an owner from evicting a tenant on owner occupancy grounds. The lower
court set aside an initial decision in favor of the landlord and subsequently ruled that since
tenants occupied two contiguous apartments as a single primary residence and one of the two is
an "ETPA protected apartment," eviction was foreclosed under the "20 year rule" pursuant to
the ETPA Regulations.
The Appellate Term reversed the lower court on grounds that the Civil Court
misapprehended the governing regulatory framework. The Emergency Tenant Protection Act
is an enabling act which empowered New York City and certain local governments to set up rent
stabilization. The Court noted that in New York City, in 1974 when the ETPA was passed,
stabilization had already been established. With the passage of the ETPA, the New York City
Council extended stabilization coverage to tenants in qualifying buildings who had entered into
possession during the period of vacancy decontrol (1971 to 1974).
The original Rent Stabilization Code contained no provision limiting the owner use
remedy where the tenant has been in occupancy for twenty years or more. This limitation
derives solely from chapter 234 of the Laws of 1984 which afforded such protection only to rent
controlled tenants (tenancies in effect prior to 1971) and to tenants protected by the ETPA in
cities having a population of less than one million. The Appellate Term held: "Notably, chapter
234 did not engraft the 20-year rule upon that part of the ETPA addressed to housing
accommodations in cities having a population of one million or more," and quoted from the
ETPA language that allegedly confined its coverage to cities with more than one million. The
Court continued: "As we have seen, no regulation implementing the 20-year rule has in fact been
adopted under New York City rent stabilization," and reiterated that the ETPA's Regulations
apply to housing accommodations located in Nassau, Rockland and Westchester Counties.
Finally, the Court concluded: "When the Legislature has specified the cases to which its
enactment shall apply and has failed to specify other particular cases, it is fair to conclude that
the exclusion was intended. Thus, the absence from chapter 234 of any provision for rent
stabilized or ETPA tenants within New York City provides a strong indication that this was not
a matter of mere legislative oversight." The Court reinstated the petition which granted the
owner a judgment of possession on personal use grounds.
- Notes:
- Disclosure: Colleen McGuire's law firm represents the Armstrong tenants and her firm
developed the ETPA 20-year rule argument. Subsequently, other ETPA tenants have relied on
this argument where their landlord has attempted to evict them on owner occupancy grounds.
In light of the increasing use of owner occupancy cases by landlords, tenants have had to devise
creative arguments to counteract the owner use law. The law is extremely unjust. All a
landlord has to do is live in the recovered unit for a mere 3 years, then the apartment can be
deregulated. And yet a tenant who has lived in this apartment and neighborhood for several
decades can be evicted. The injustice of the owner occupancy laws gave rise to the ETPA 20
year rule argument. The Appellate Term, however, has ruled that the ETPA's Regulations only
apply to cities with populations in excess of one million. It is encouraging that the Appellate
Term appeared to accept the distinction between rent stabilized tenants and ETPA rent stabilized
tenants. As of this date the Armstrongs are weighing their options of whether to appeal to the
Appellate Division.
- Case Caption:
- Parkchester Preservation Co. LLP v. Siegel
- Issues/Legal Principles:
- Statute authorizes landlord's agents to sign predicate notices to evict rent controlled
tenants.
- Keywords:
- notices
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Pierre Turner
- Date:
- February 7, 2002
- Citation:
- NYLJ, page 19, col 6
- Referred Statutes:
- New York City Rent and Evictions 2204.3(a); 9 NYCRR 2200.2(h)
- Summary:
- The officer of the corporate managing agent signed the predicate notices which the rent
controlled tenant challenged as jurisdictionally defective. While the relevant law states that a
proceeding cannot be commenced until "the landlord" gives written notice, the Appellate Term
held that the statute's definition of the word "landlord" encompasses the landlord's agents.
Therefore there was no infirmity in the notice and the lower court should not have granted
tenant's motion to dismiss the petition on this basis.
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