Housing Court Decisions July 2002
Editor: Colleen F. McGuire, Esq.
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Significant Cases
65 Ocean Avenue Associates v. Samuel
Roxborough Apartment Corp. v. Viard
Garner v. Berger
Munro v. Prescott
Olton v. Hunter
Fernandez v. NYS DHCR
Rubin v. Glasner
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New York Law Journal, decisions for the week of July 29 - August 2,
2002 (4 cases)
- Case Caption:
- Roxborough Apartments Corp. v. Bruce Becker
- Issues/Legal Principles:
- Tenant is bound by the Roommate Law, even though prior landlord permitted her to
have up to three roommates; tenant must otherwise show a provision in her original lease
granting additional occupants, and then such provision would carry forward into her renewal
leases.
- Keywords:
- roommates; lease renewals; waiver
- Court:
- Appellate Division, First Department
- Judge:
- Trial Court: Hon. Lucy Billings
- Date:
- July 29, 2002
- Citation:
- NYLJ, page 18, col 2
- Referred Statutes:
- Real Property Law 235-f; Rent Stabilization Code 2522.5(g)(1)
- Summary:
- The tenant in this holdover proceeding had resided in the subject apartment since 1977.
The then-owner apparently allowed the tenant to share the premises with three roomates. The
former owner sold to a new owner in 1989 who sold it to the present owner, the landlord, in
1996. The lease between the tenant and landlord provided for occupancy "by the tenant or
tenants named above and by the immediate family of the tenant or tenants and by occupants as
defined in and only in accordance with Real Property Law 235-f." The lease at issue bore the
name of and had been signed by one tenant. The landlord brought a holdover proceeding based
upon a breach of this lease provision. The court said that the Appellate Term had correctly held
that the lease reasonably limited occupancy of the rent-stabilized apartment to one roomate. The
court noted that there was a question as to whether the prior owners waived any rights under the
lease regarding occupancy limits and whether such a waiver would bind the landlord. The court
denied the tenant's motion to dismiss and reinstated the petition, observing that the tenant had
not yet answered the petition and that he is free to raise any defenses available to him.
- Case Caption:
- Holy Spirit Association for the Unification of World Christianity v.
Kwak
- Issues/Legal Principles:
- In order to determine whether an institution is exempt from the Rent Stabilization Code
based upon its non-profit status, the court will look to the principal or primary use of the
institution.
- Keywords:
- non-profit exemption from rent stabilization code; summary judgment; hotel
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Alpert
- Date:
- July 31, 2002
- Citation:
- NYLJ, page 19, col 1
- Referred Statutes:
- CPLR 3212; RPAPL 735; Rent Stabilization Code 2520.11(f); Internal Revenue Code
501(c)(3)
- Summary:
- These are three holdover proceedings against three different tenants, each residing in the
subject building. The landlord alleges that the tenants are month to month tenants and initiated
these proceedings after service of a thirty day notice of termination. The tenants answered and
allege that the subject premises are subject to rent stabilization and as such the landlord cannot
terminate their tenancy based upon a thirty day notice. The landlord moved for discovery and
all three of the tenants cross moved for summary judgment based on the same affirmative
defenses, with tenant Coffey also moving for summary judgment based on failure to name a
necessary party. The three proceedings were consolidated for purposes of these motions.
The court ruled that the landlord did not set forth ample need to grant discovery and so
denied the landlord's motion. The court noted that the information regarding the tenants that
the landlord sought to discover should be within the knowledge of the landlord directly.
The tenants first argued that service was defective and thus, the proceeding should be
dismissed. Tenant alleges that "the process server failed to effectuate personal or substituted
service of the petition and notice of petition prior to defective conspicuous place service." The
court rejected this argument, noting that without any additional detail, the tenants' general
allegation that service was defective is not sufficient to grant summary judgment.
The tenants second argument was that they were rent stabilized tenants whose tenancy
cannot be terminated by a thirty day notice. The tenants argued that they had resided in the
landlord's hotel in excess of six months. The tenants relied on the Rent Stabilization Code
2520.11(f) which provides for coverage by the Code of individuals not affiliated with, but
renting from non-profit institutions. The tenants further argued that the landlord is operatng as
a "for profit corporation" and therefore cannot benefit from the exemption of 2520.11(f). The
landlord argued that although the Hotel is operating as a for profit corporation, that is irrelevant
as it is the institution, the Holy Spirit Association, and not the building that is the significant
factor. Further, the landlord argued that a condition of residency in the subject premises
requires the tenant to be a member in good standing of the Church and the tenants have no right
to remain in the premises because they are no longer members in good standing. The court
ruled that the conflicting allegations and documentation submitted raised disputed issues of fact
which require resolution at trial and thus, denied the tenants' cross-motions for summary
judgment.
The court also examined tenant-Coffey's argument that the petition fails to name a
necessary party, his wife Tatiana Mikhailenko. The court ruled that Ms. Mikhailenko's
allegations that she is in and out of the apartment during the day and friendly with the hotel staff
was insufficient to persuade the court that she was a necessary party. The court also noted that
the naming and subsequent service of the petition on "Jane Doe" as a respondent, was sufficient
to give Ms. Mikhailenko notice of the holdover proceeding to the extent that she resides in the
apartment. Thus, the court denied this basis for tenant-Coffey's motion for summary
judgment.
- Case Caption:
- Fairgate Associates, Inc. v. Adams
- Issues/Legal Principles:
- Where the record indicates that there is a factual dispute as to the payments made by the
tenant pursuant to a stipulation, the court should not grant summary judgment upon the
landlord's motion to restore the proceeding.
- Keywords:
- nonpayment proceeding; summary judgment;tenant's default
- Court:
- Appellate Term, First Department
- Judge:
- Trial Court: Hon. Sackett
- Date:
- August 1, 2002
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- none cited
- Summary:
- In this nonpayment proceeding, the parties entered into a stipulation of settlement
agreeing to the amount of arrears outstanding and a rent abatement equal to six months rent,
with the net balance to be paid out over a period of months ending July, 1998. Upon the
tenant's default, the landlord moved to restore the proceeding and judgment was summarily
entered in its favor. The record indicated that there is a factual dispute as to the payments made
by the tenant and moreover, both sides agree that the amount of the judgment is incorrect. The
court ruled that the judgment summarily entered is reversed and the matter is remanded for a
hearing and recalculation of the amount of arrears due pursuant to the stipulation of
settlement.
- Case Caption:
- Rubin v. Glasner
- Issues/Legal Principles:
- When a landlord knowingly accepts rent from a tenant with knowledge of an alleged
breach of the tenant's lease over an extended period, the landlord has been held to have waived
its right to object to the breach.
- Keywords:
- holdover proceeding; summary judgment; landlord's agent
- Court:
- Civil Court, New York County
- Judge:
- Hon. Schneider
- Date:
- August 2, 2002
- Citation:
- NYLJ, page 19, col 3
- Referred Statutes:
- Rent Stabilization Code 2524
- Summary:
- This is a holdover proceeding in which both landlord and tenant moved for summary
judgment. The underlying issue is whether or not the tenant is entitled to use a rooftop adjacent
to her one bedroom apartment as a terrace. The landlord alleges that the tenant's use of the
rooftop area violates her lease, that it constitutes a nuisance, and that it is a violation of various
laws. The tenant alleges that the apartment was initially advertised and rented to her as
including a terrace on the rooftop, that she has used the rooftop openly and notoriously
throughout her twenty year tenancy, that her use of the rooftop has not caused a nuisance or in
any way harmed the landlord or other building residents, and that no violations have ever been
placed for her use of the rooftop as a terrace.
The landlord first argued that the tenant's use of the rooftop as a terrace is a violation of
her lease. The court noted that it was uncontested that the tenant used the rooftop as a terrace
openly and notoriously for twenty years, and in all these years the landlord continued to accept
rent from the tenant. Thus, the court ruled that the landlord had knowingly waived any right
she might otherwise have had to object at this point. Next, the landlord argued that the tenant's
use of the terrace constituted a nuisance. The court rejected this argument noting that the
landlord did not contend that the tenant's use of the terrace over the course of twenty years has
caused any actual harm to the landlord or to other residents of the building, nor that any such
harm is imminent, as opposed to theoretical. Lastly, the landlord argued that the tenant's use
of the rooftop as a terrace is a violation of law. The court noted that the landlord has not
established that the tenant has been subjected to any penalty for the alleged illegal use, nor that
the use of the rooftop as a terrace cannot be made legal and rejected this argument. Thus, the
court ruled that the tenant's motion for summary judgment is granted and the petition is
dismissed on the merits.
New York Law Journal, decisions for the week of July 22-26, 2002 (4
cases)
- Case Caption:
- Lafrance Leasing L.P. v. Shepherd
- Issues/Legal Principles:
- Where a landlord bases her claim for a final judgment and warrant of eviction upon a
breach of a stipulation which, by its terms, only authorizes restoration of the proceeding to the
trial calendar and does not authorize entry of a final judgment, tenant's default only constitutes
a concession that she breached the stipulation.
- Keywords:
- restoration to trial calendar; stipulation of settlement
- Court:
- Appellate Term, Second and First Department
- Judge:
- Trial Court: Hon. Jackman-Brown
- Date:
- July 25, 2002
- Citation:
- NYLJ, page 22, col 1
- Referred Statutes:
- none cited
- Summary:
- The trial court, Civil Court, Queens County, denied landlord's motion to restore the
proceeding to the trial calendar, amend the petition to include all unpaid rent through the date
of restoration, and to obtain a final judgment and warrant of eviction. The parties had entered
a stipulation of settlement whereby the landlord would make repairs and the tenant would make
required payments. Upon the tenant's default, the landlord brought its motion. The court noted
that the stipulation of settlement does not contain an express or implied condition that landlord
was to complete the specified repairs before it could move to have the proceeding restored to
the trial calendar upon tenant's default in making the required payments. The Appellate Term
ruled that the landlord's motion to restore the proceeding to the calendar should be granted, but
its request to obtain a final judgment and warrant of eviction should be denied because landlord
based its claim for such relief solely upon a breach of a stipulation which, by its terms, only
authorizes restoration to the calendar and does not authorize entry of a final judgment.
The dissent argued that the branches of landlord's motion which sought a final judgment
and warrant of eviction should have been granted. The tenant admitted in a stipulation that the
rent arrears totalled $2,222.25 and failed to make any payments. The tenant did not submit
opposition papers or appear in court to oppose landlord's motion. The dissent believes that,
having conceded the amount owed under the stipulation and having failed to make any payments,
the tenant's failure to oppose landlord's motion was a concession that she had no defense and
landlord was entitled to such relief.
- Case Caption:
- Century Apartments Associates v. Kleinnman
- Issues/Legal Principles:
- Cure is an impossibility in holdover proceedings based on consistently late rent
payments.
- Keywords:
- late rent payments; holdover proceeding; notice to cure
- Court:
- Appellate Term, First Department
- Judge:
- Trial Court: Hon. Wendt
- Date:
- July 23, 2002
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- CPLR 2201
- Summary:
- The landlord was awarded summary judgment in a holdover petition by Civil Court. The
Appellate Term affirmed noting that the tenant's breach of lease is based upon a history of
chronic rent defaults firmly established in the record and is not disputed by the tenant on appeal.
The tenant argued that the landlord was required to serve a notice to cure before commencing
the holdover proceeding. The Appellate Term rejected this argument saying cure is impossible
in holdover proceedings based on consistently late rent payments as one cannot turn back the
clock and pay on time for past arrears. The Appellate Term remanded to Civil Court to
determine whether issuance of a stay of the possessory judgment is warranted in the
circumstances of this case.
- Case Caption:
- Rockaway One Company, LLC v. Califf
- Issues/Legal Principles:
- The creation of a tenancy is ultimately a matter of intent and the relation of landlord and
tenant is always created by contract, express or implied, and will not be implied where the acts
and conduct of the parties negate its existence.
- Keywords:
- holdover proceeding; nuisance; notice to cure
- Court:
- Appellate Term, Second and First Department
- Judge:
- Trial Court: Hon. Grayshaw and Franke
- Date:
- July 25, 2002
- Citation:
- NYLJ, page 22, col 4
- Referred Statutes:
- Rent Stabilization Code 2524.3; RPAPL 753(4); CPLR 3014
- Summary:
- The tenant appealed her denial of a motion for summary judgment, the restoration of the
proceeding to the calendar, her denial of a trial motion to dismiss for failure to establish a prima
facie case, a final judgment awarding possession to landlord, and her denial of a motion to set
aside the final judgment. The court dismissed all of tenant's appeals and affirmed the final
judgment awarding possession to landlord.
The appeals from the intermediate decisions were dismissed because any right of direct
appeal from the intermediate orders terminated with the entry of the final judgment. The tenant
argued that the landlord's commencement of a nonpayment proceeding to recover the rent arrears
accruing during the probationary period, in which prosecution of this holdover proceeding was
suspended pursuant to a stipulation, evinced an intent to revive the tenancy and vitiated the
notice of termination. The court, in rejecting the tenant's argument, noted that almost
contemporaneously with the commencement of the nonpayment proceeding, landlord moved to
reinstate the holdover proceeding and as the creation of a tenancy is ultimately a matter of intent,
it could not be said in the circumstances of this case that the landlord's commencement of the
nonpayment proceeding evidenced an intent to reinstate the tenancy.
The tenant next argued that landlord's service of the notice to cure required by section
2524.3(a) of the Rent Stabilization Code for the maintenance of a holdover proceeding based
upon a violation of a substantial obligation of the lease required that tenant be afforded either
a pre-termination or post-judgment cure period for the nuisance ground sued upon by landlord
in the alternative. The court noted that the evidence established a pattern of continuity or
recurrence of objectionable conduct which began long before the termination of the tenancy and
continued throughout the probationary period and up through the time of trial, no further
opportunities were either required or warranted and rejected the tenant's argument.
- Case Caption:
- Fernandez v. New York State Division of Housing & Community
Renewal
- Issues/Legal Principles:
- A tenant in "constructive occupancy" cannot be subject to the DHCR's "first rent policy"
which requires a finding that the apartment have been significantly changed so that it was not
in existence on the applicable base date.
- Keywords:
- first rent; constructive occupancy; individual apartment improvement; major capital
improvement
- Court:
- Supreme Court, New York County
- Judge:
- Hon. James
- Date:
- July 23, 2002
- Citation:
- NYLJ, page 19, col 3
- Referred Statutes:
- Rent Stabilization Code 2522.4(a)(1); Rent Stabilization Code 2502.4(a)(2)(ii)
- Summary:
- In July, 1997 a building wide fire forced the tenant to vacate her rent stabilized apartment
of 20 years. Prior to the fire the lawfully registered rent was $432.31 per month. The New
York State Division of Housing and Community Renewal (DHCR) issued a Rent Order on
December 16, 1997 entitling the tenant, upon a payment of $1.00 per month, to be restored to
occupancy of the apartment. The tenant remitted the $1.00 per month to the landlord. Without
notice to the tenant, the landlord restored the apartment by making alterations that modified the
outer perimeter walls of the apartment, and specifically decreased the size of her apartment from
approximately 1000 square feet to 500 square feet by reducing the number of bedrooms from
four to two, replacing a full, separate kitchen with a kitchenette and smaller living room and
providing two fewer windows. In July, 1999, the tenant and landlord entered a new rent
stabilized lease for the altered apartment at a monthly rate of $750.00. The tenant remitted to
the landlord the amount of rent reserved under her pre-fire lease and filed an overcharge
complaint with the DHCR. On May 10, 2001, the DHCR issued an Order denying the
complaint holding that all rent adjustments subsequent to the base date, August 20, 1995, were
lawful. The tenant submitted a petition for administrative review (PAR). The DHCR denied
her PAR finding that the landlord was entitled to charge a first rent after the renovation and
change in the size of the subject apartment such that it was no longer the same apartment as
existed on the base rent date prior to the fire.
The court noted that by the December, 1997 Order and the tenant's payment of $1.00 per
month rent, the tenant's rent stabilized tenancy rights in her apartment were preserved. The
question now is the extent of such rights. The tenant argued that all of her rights under the rent
stabilization laws, including the right to a base rent set at the rate under her lease before the fire,
were preserved. The landlord argued that because the building rehabilitation resulted in the
elimination of plaintiff's apartment, her rent stabilization rights are limited to, in essence, a
"right of first refusal" to a newly reconfigured apartment whose base rent would be set at "first
rent" or market rent. The DHCR concurred with the landlord's argument. The landlord did
not claim any increase in dwelling space or services, nor does it contend that it obtained written
consent from the tenant or gave prior notice to her, which are required for individual apartment
improvement or major capital improvement (MCI) increases under the Rent Stabilization
Laws.
The DHCR Operation Bulletin 95-2 establishes an administrative policy for the imposition
of "first rent." The court noted that under the Bulletin the tenant clearly has a right to a rent
stabilized apartment. What the Bulletin failed to clearly provide is what base rent may be
charged upon the tenant's physical restoration to possession. The court noted that the Bulletin
used precatory language by saying upon a finding that the renovations result in accommodations
which were not in existence on the applicable base date, this finding "may entitle the owner to
charge a market 'first rent' subject to the guideline limitations for future adjustments."
(emphasis supplied.) The court ruled that on the facts of the case at bar, not only would it have
been rational for DHCR to have declined to make such a finding as to the subject apartment, but
also it was in fact arbitrary and capricious for the Rent Administrator not to have declined to
make such a finding.
The tenant filed an Article 78 and the Supreme Court noted that the DHCR's Rent Order
restoring the tenant to the subject apartment on payment of $1.00 per month was in contradiction
with its finding on July 1, 1999, that despite such payments, she was not to be restored to
physical occupancy of the subject apartment, because such apartment no longer existed. Thus,
the DHCR's determination, dated January 9, 2002, that affirmed that the landlord is entitled to
a "first rent" is vacated and denied.
New York Law Journal, decisions for the week of July 15-19, 2002 (9
cases)
- Case Caption:
- Garner v. Berger
- Issues/Legal Principles:
- In an owner occupancy proceedings, a landlord's failure to rent vacant apartments in lieu
of the one occupied by a tenant can be an indicia of bad faith, thereby defeating landlord's
efforts to recover the tenant's apartment.
- Keywords:
- owner occupancy proceeding; credibility; good faith
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Milin
- Date:
- July 15, 2002
- Citation:
- NYLJ, page 20, col 3
- Referred Statutes:
- Rent Stabilization Code 2524.4(a)
- Summary:
- The landlord brought an owner occupancy proceeding to recover Apartment 5 at 334
West 88th Street claiming he needed apartment 5 for use by his son. The tenant, who has
resided in the premises for 25 years and is the only tenant subject to rent regulation, denies all
the essential allegations in the petition and asserts various affirmative defenses. The rent
stabilization code allows a landlord to refuse to offer a renewal to a rent stabilized tenant when
the owner on good faith shows that the owner or member of her immediate family has an actual
intent to take occupancy of the unit for the owner's (or a member of the owner's immediate
family) personal use and occupancy as her primary residence. Ultimately an owner cannot
prevail without establishing her own credibility.
The landlord testified that the only true and actual living space available to him and his
son is Apartment 2, which only has 1 bedroom used by his son while he sleeps on the couch.
The landlord stated he has the use of Apartment 1, which functions as his office and study. The
landlord claims that Apartment 1, while it does have residential features, is not considered a part
of his living space because he does not want to live and work in the same space. Kathleen
Atkinson, the superintendent of the building, occupies Apartment 4. According to the landlord,
Ms. Atkinson shares a close and loving relationship with him and he regularly sleeps in her
apartment and keeps his clothes in her apartment. The landlord testified that he needed to
recover the tenant's apartment so that his son could have his own living space to entertain his
friends, practice his martial arts, lift weights, and for appropriate privacy; and that recovery of
Apartment 5 was the only means possible to allow him to accomplish his goal of providing his
son adequate space to meet his needs.
The court ruled that the landlord's claim that his present circumstances compel him and
his son to live in a cramped 1 bedroom apartment is not credible. First, the landlord had both
Apartments 1 and 2 available to him to use. Second, there were two rooms, one each under
Apartments 1 and 2 that were used for storage and recreation, that were available to the landlord
to use. Third, the landlord conceded he slept on an average of 80% or more of the time in
Apartment 4, occupied by Ms. Atkinson, in contradiction of his claim that he was merely an
occasional guest in that apartment. Fourth, there was evidence of a pattern of the landlord
commencing owner occupancy proceedings which were all dismissed. Fifth, there was evidence
that established a pattern of contradictory sworn statements regarding where he resided. Sixth,
the tenant introduced evidence which indicates that the landlord is the tenant of record of a rent
controlled apartment located at 601 West 115th Street in contradiction of the landlord's claim
that there was no other apartment available to him.
There was also evidence of a history of bad feelings between the parties. During a prior
proceeding commenced by the landlord against the tenant in 1997, the landlord threatened that,
as soon as the tenant's lease expired, he would bring an owner occupancy proceeding on behalf
of his son, who in 1997 was 14 years old. The court noted that the existence of bad feelings
alone can in certain circumstances be sufficient to negate good faith.
The court dismissed the petition based on the landlord's lack of credibility measured along
with the history of ill feelings between the parties.
- Notes:
- This is a very important decision. Generally, the law allows landlords to recover
whatever apartment they want in a building and does not compel them to go only after vacant
apartments. This is one of the first cases in recent years that examines the circumstances of why
a landlord would reject a viable vacant apartment and instead opt to evict a longstanding tenant.
Coupled with other factors, the court found such behavior demonstrates bad faith. Let's hope
this sets a precedent for other owner occupancy cases.
- Case Caption:
- Roxborough Apartment Corp. v. Viard
- Issues/Legal Principles:
- Where a tenant performs apartment alterations, the statutory period of limitations begins
to run upon the tenant's completion of the alterations, even if a predecessor owner was then
unaware of the alterations.
- Keywords:
- statute of limitations; apartment alterations; holdover proceeding
- Court:
- Appellate Term, First Department
- Judge:
- Trial Court: Hon. Klein
- Date:
- July 15, 2002
- Citation:
- NYLJ, page 19, col 6
- Referred Statutes:
- CPLR 213(2)
- Summary:
- The tenant performed apartment alterations which were completed in 1991. The landlord
brought a holdover proceeding in May, 2001 claiming the apartment alterations were a breach
of the lease. The tenant alleged that the principal of the predecessor owner knew about and
"agreed to" the apartment alterations now complained of. The landlord did not refute this
allegation. The court ruled that the action was properly dismissed as time barred under the
applicable six-year statute of limitations. The landlord argued that the tenant's conduct should
be treated as a continuing actionable wrong. The court rejected this argument saying there was
no showing that the tenant's alleged breach of lease otherwise violated applicable law or
interfered with the rights of other building occupants, thus the proceeding was properly
dismissed.
- Case Caption:
- 500 West End LLC v. Siebert
- Issues/Legal Principles:
- Upon a motion to dismiss by a tenant at the close of the landlord's case, the tenant has
the burden of showing that landlord failed to make out a prima facie case, and landlord is
entitled to the benefit of every favorable inference which could reasonably be drawn from the
evidence.
- Keywords:
- motion to dismiss; nonprimary residence
- Court:
- Appellate Term, First Department
- Judge:
- Trial Court: Hon. Jimenez
- Date:
- July 15, 2002
- Citation:
- NYLJ, page 19, col 5
- Referred Statutes:
- none cited
- Summary:
- The landlord brought a nonprimary residence proceeding. The respondent moved to
dismiss at the close of the landlord's case and the trial court granted the respondent's motion to
dismiss. There was proof in the record of the tenant Siebert's admissions that she has not
resided in the rent stabilized apartment premises since October, 1994 and that only respondent
Penzarella currently resides there. The court ruled that this evidence was legally sufficient to
survive the respondent's motion to dismiss and that there was not enough evidence elicited on
the landlord's case to establish Penzarella's entitlement to possession as a "tenant" in his own
right. The court remanded for a new trial on all issues.
- Case Caption:
- Parallax 109 Partners, LLC v. Molina
- Issues/Legal Principles:
- A discovery demand not carefully tailored to elicit relevant information that is directly
related to the central issue framed by the petition should be denied.
- Keywords:
- discovery demand; commercial use
- Court:
- Appellate Term, First Department
- Judge:
- Trial Court: Hon. Milin
- Date:
- July 15, 2002
- Citation:
- NYLJ, page 19, col 5
- Referred Statutes:
- none cited
- Summary:
- The landlord brought a holdover proceeding alleging that the tenant violated the
occupancy provisions of the parties' lease agreement by allowing the demised stabilized
apartment to be used for commercial purposes by a nonparty entity identified as New York
Woodstripping. The landlord moved for leave to compel discovery seeking the production of
a wide array of broadly described documents relating not to New York Woodstripping or its
claimed occupancy of the apartment, but instead to the tenant's nexus with two alternate
addresses. The motion court denied the motion, noting that it was not carefully tailored to elicit
relevant information that is directly related to the central business issue framed by the holdover
petition. On appeal, the Appellate Term found no abuse of discretion in the denial of the motion
and affirmed the motion court ruling that this disposition is without prejudice to landlord's right
to renew its discovery motion upon a proper demand.
- Case Caption:
- Haberman v. Singer
- Issues/Legal Principles:
- The Rent Stabilization Law was designed to provide safeguards against unreasonably high
rent increases and, in general, to protect tenants and the public interest.
- Keywords:
- renewal lease; rent overcharge; security deposit
- Court:
- Supreme Court, IA Part 61
- Judge:
- Hon. Gans
- Date:
- July 17, 2002
- Citation:
- NYLJ, page 18, col 3
- Referred Statutes:
- CPLR 3212; CPLR 602; 9 NYCRR 2523.5; 9 NYCRR 2505.4; Adm. Code YY51-
6.0(c); CPLR 325(d)
- Summary:
- The tenants entered into a one-year rent stabilized lease with the landlord on July 28,
1982 for apartment 12E at 1 West 85th Street, New York, New York at the rate of $2,200 each
month. The tenants appealed to the Conciliation and Appeals Board ("CAB"), which issued
three opinions. The two issued in 1983 declared the legal rent to be $853.62 and directed
landlord to tender a two-year renewal lease to tenants. The one issued in 1984 directed landlord
to refund rental overpayments dating from September 1982 through June 1983, totalling,
$13,463.80. The landlord failed to comply with these orders and instead commenced two
summary proceedings in Civil Court seeking to evict the tenants for alleged non-payment of rent.
In 1995, Judge Dankberg dismissed the first proceeding for landlord's failure to comply with
the CAB orders and ordered the landlord to return a security deposit of $3,401.33 that was in
excess of the amount the law allowed. In 1997, Judge Payne dismissed without prejudice that
portion of the second proceeding seeking rent arrears from April, 1995 through February, 1996.
The landlord commenced these actions in 1998.
The court first noted that these legal proceedings would not have occurred if the landlord
had simply complied with the law: issued tenants a renewal lease, returned their excess security
deposit, and refunded their rent overcharge. The court also noted that the landlord willfully did
not provide tenants with the renewal lease, as the CAB order had provided for, for 13 years,
nor the excess security deposit before Judge Dankberg's 1995 decision, and has yet to refund
their rent overcharge despite a CAB order. Based on these facts, the court dismissed the
landlord's complaints and removed the counterclaims of the tenants to Civil Court, County of
New York.
- Case Caption:
- Henriquez v. Boitano
- Issues/Legal Principles:
- A motion to restore a proceeding to the calendar after one year may be granted if the
moving party demonstrates that it has a meritorious cause of action, that there is a reasonable
excuse for its delay, that the opposing party has not been prejudiced, and that during the period
in which the case was off the calendar, the moving party took steps to demonstrate that it did
not intend to abandon the proceeding.
- Keywords:
- motion to restore to calendar; license holdover proceeding
- Court:
- Civil Court, New York County
- Judge:
- Hon. Schneider
- Date:
- July 17, 2002
- Citation:
- NYLJ, page 18, col 6
- Referred Statutes:
- CPLR 3404; 22 NYCRR 208.14; CPLR 3216; RPAPL 731(2); RPAPL 745
- Summary:
- The landlord commenced this licensee holdover proceeding in October, 1997 following
the death of the rent control tenant, Etta Bordo. The tenants are the daughter, son-in-law, and
grandson of Etta Bordo. The tenants claim a right to succeed to her rent controlled tenancy.
The proceeding was marked off calendar for discovery and the depositions took place in March,
1998. After the completion of discovery the landlord's then-counsel indicated to the tenants that
he would recommend that she discontinue the case. In June, 1999, with the proceeding still off
the calendar, the landlord's current counsel took over the case and issued seventeen illegal
subpoenas. The tenants moved to quash the subpoenas, to suppress the documents obtained by
means of the subpoenas, and for attorneys fees and sanctions. The court granted the tenants'
suppression motion and on its own motion restored the proceeding to the calendar in October,
1999 for trial on the merits as well as a determination of the amount of the tenants' fees. At
that time the court denied the tenants' motion to dismiss on the grounds that it had been off the
calendar for more than one year. The proceeding was once again marked off the calendar while
the landlord appealed the order suppressing the information obtained pursuant to the illegal
subpoenas and for fees. In March, 2002, the landlord moved to restore the proceeding to the
calendar and the tenants moved to dismiss the proceeding on the grounds that the case had been
off the calendar for more than one year.
The court noted that Hon. Debra Samuels had already ruled, by Decision and Order dated
December 29, 1999, that restoration was appropriate at that time. Thus, only the second off
calendar period, from February, 2000 until this motion in March, 2002 is before this court for
consideration at this time.
The court listed several important facts which weighed heavily in its decision. First, the
landlord has made a prima facie showing that it has a meritorious claim in the case that tenants
are licensees whose license has expired. Second, the landlord has established a reasonable
excuse for its delay in restoring the proceeding to the calendar: to wit, the landlord was
preoccupied with the subpoena and sanctions issue. Third, the tenants have not suffered so
much prejudice as to bar continued litigation, despite the death of a witness for the tenants who
had died while the case was pending. Fourth, the landlord took many steps during the period
that the case was off the trial calendar to demonstrate that it had no intention of abandoning the
proceeding. For these reasons, the court granted the landlord's motion to restore the proceeding
to the calendar for trial and denied the tenants' motion to dismiss.
- Case Caption:
- 390 West End Associates v. Harel
- Issues/Legal Principles:
- Deregulation is available only by statutorily specified means, not by private compact -
a means expressly forbidden and any agreement by the tenant to waive the benefit of any
provision of the RSL or the NYCRR is void requiring invalidation on public policy grounds,
even of a tenant's settlement agreement.
- Keywords:
- non-primary residence; consent judgment; deregulation
- Court:
- Appellate Division, First Department
- Judge:
- Trial Court: Hon. Lebedeff
- Date:
- July 17, 2002
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- Admin Code of City of New York, 26-501 et. seq.; RSC 26-503; 9 NYCRR 2525.3(b);
9 NYCRR 2520.13
- Summary:
- The tenant holds Israeli citizenship and has resided there since 1988. In 1988, he met
Milton Kestenberg, a general partner in 390 West End Associates, the company that is the
landlord for the subject apartment, who suggested to the tenant to rent an apartment in the
landlord's building. Kestenberg represented to the tenant that he could enter a lease, renewable
throughout his life as long as rental obligations were met, at a rent higher than that allowed by
the rent stabilization law, but also favorable to the tenant. This arrangement was conditioned
on the tenant not maintaining the apartment as his primary residence, which he was agreeable
to as he planned to reside primarily in Israel. In September, 1988 the parties entered into a
lease which contained the above terms at a monthly rent of $2,000.00, which is higher than the
rent allowed under the rent guidelines, $1,035 per month, but much lower than what the rent
could have been on the open market. The lease also precluded the tenant from assigning the
lease or subletting. On September 28, 1988, the landlord commenced an action seeking a
declaratory judgment that the apartment was exempt from the Rent Stabilization Law by reason
of the tenant's non-primary residence. The parties then entered into a stipulation which stated
the parties' acknowledgment that the premises were exempt from coverage by the Rent
Stabilization Law by reason of non-primary residence and that the exemption would continue
through subsequent leases between the parties. During his tenancy, the tenant invested thousands
of dollars in upgrading the apartment.
Last year the landlord sought to avail itself of current caselaw, which had made clear that
similar leases were invalid, and moved by order to show cause to vacate the consent judgment
and rescind the tenant's lease. The tenant cross moved for a declaration on public policy
grounds that the lease is void only insofar as it prohibited subleasing and that it is otherwise
valid. The court stated the public policy is to preserve a moderate-priced housing stock in New
York City based on the legislature's finding of an emergency shortage which exists up to the
present. The court noted that this policy must be accorded primacy in the present dispute and
that to permit the enforcement of this lease agreement would essentially allow any landlord to
evade rent regulations by the mere expedient of a private agreement. This may work for the
landlord and, as in this case, even for the tenant, but it does not work for New York City's
compelling need to control the availability of affordable housing stock.
The court ruled that the 1988 consent judgment purporting to recognize and validate the
non-primary residence status of the subject apartment is vacated. The landlord articulated a
willingness to enter a rent stabilized lease with the tenant predicated, though, on his maintaining
a primary residence in that apartment. In that case, the rent for any renewal lease for this unit
must be set in the amount of the legal stabilized rent at the time the parties entered into the
initial lease ($1,035).
- Case Caption:
- Mayflower Development Corp. v. Lazarevic
- Issues/Legal Principles:
- If the landlord makes the tenant his own witness by calling the tenant to testify, the
landlord does not become bound by the tenant's version of the facts and is permitted to present
contradictory evidence on rebuttal.
- Keywords:
- non-primary residence
- Court:
- Appellate Term, First Department
- Judge:
- Trial Court: Hon. Wendt
- Date:
- July 19, 2002
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- none cited
- Summary:
- After a bench trial the Civil Court ruled that the subject stabilized apartment is not the
tenant's primary residence. The court found the landlord's witnesses to be credible and the
tenant's testimony to be "largely disingenuous" and "replete with contradictions." Here, the
court found the lower court's ruling comported with the weight of the evidence, including
Federal and State tax returns, an automobile registration, and bank and credit cards, all listing
another address than the subject apartment's during the relevant time period. The court ruled
that the tenant's evidentiary arguments were lacking in merit and upheld the lower court's
ruling.
- Case Caption:
- 6 Greene Street Associates LLC v. Beron
- Issues/Legal Principles:
- The first rent stabilized lease after a prior expired loft lease shall be subject to the
provisions regarding evictions and regulation of rent set forth in the emergency tenant protection
act of 1974 and shall not be inconsistent with the provisions of the Loft Law.
- Keywords:
- loft lease; multiple dwelling status; joint living work quarters
- Court:
- Appellate Term, First Department
- Judge:
- Trial Court: Hon. Rakower
- Date:
- July 19, 2002
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- CPLR 325(d); Article 7-C of the Multiple Dwelling Law; Multiple Dwelling Law 286(3);
Rent Stabilization Code 2525.6(g); Real Property Law 234
- Summary:
- The landlord brought an ejectment action for the tenant's failure to execute the initial rent
stabilized lease incident to the building's transition from interim multiple dwelling status to
coverage under rent stabilization and moved for summary judgment. The tenant cross-moved
for summary judgment to dismiss the complaint. The Loft Board had directed the landlord to
offer the tenant a lease "which comports with the requirements of the Rent Stabilization Code."
The tenant refused to execute the lease proffered by the landlord. The court noted that the new
residential lease shall be "subject to the provisions regarding evictions and regulation of rent set
forth in the emergency tenant protection act of nineteen seventy-four" and shall not be
inconsistent with the provisions of the Loft Law. The court noted that the proffered lease was
at variance with these requirements in two material respects. First, the lease limited the tenant's
occupancy to living purposes and "for no other reason." The court ruled that this was contrary
to the certificate of occupancy and zoning resolution allowing for use of the apartment for "joint
living work quarters", and was in derogation of the long-standing use of the loft as both an
artist's studio and residence dating back to 1976. Second, the lease contained a provision to the
effect that any alterations or installations by the tenant would become the property of the
landlord. This provision was contrary to section 2525.6(g) of the Code, which recognizes that
in housing accommodations first made subject to rent stabilization by reason of the Loft Law,
former loft tenants retain the right to sell improvements pursuant to Multiple Dwelling Law
section 286(6).
The court ruled that the tenant was justified in rejecting the landlord's proposed lease and
is not subject to eviction for her failure to sign it. The court granted the tenant's cross-motion
to dismiss and remanded for an assessment of her reasonable attorneys' fees incurred by her in
defense of the action.
New York Law Journal, decisions for the week of July 8-12, 2002 (9
cases)
- Case Caption:
- Herald Towers v. Richardson
- Issues/Legal Principles:
- Tenant is found to engage in chronic nonpayment of rent which would allow landlord
to evict him, but court also found good cause to stay the eviction and set the matter down for
a hearing as to the length and conditions of the state.
- Keywords:
- chronic nonpayment; 10 day cure; stay; good cause
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Milin
- Date:
- July 8, 2002
- Citation:
- NYLJ, page 19, col 1
- Referred Statutes:
- CPLR 2201
- Summary:
- Landlord brought a holdover proceeding against tenant based on the grounds that the
rent stabilized tenant has violated a substantial obligation of the tenancy by engaging in a chronic
pattern of late payment of the rent which led to the owner's commencement of 48 nonpayment
proceedings since 1988. The current landlord bought the building in 1999 and since then has
commenced 4 nonpayment proceedings, which the tenant claims is not very many over a period
of 30 months.
Tenant claims that he had an unwritten understanding with the prior landlord that he
would pay rent as he could but the former owner would tolerate late payments because the tenant
is a writer who is not paid a regular periodic salary. He claims the prior owner also knew that
he was ill and needed to attend to medical payments The tenant submits that he is currently
employed and in addition to his writing he will receive a regular salary. He also claims that his
health has improved and he is now eligible for insurance.
Landlord has moved for summary judgment, asking the court to grant a possessory
judgment based on the fact that appellate decisions have held that a chronic nonpayment situation
is non-curable, citing 326-220 East 35th Street v. Sofizade , New York Law
Journal, April 10, 2002, 18:1 (Appellate Term, First Department). Tenant cross-moves and asks
the court to dismiss the petition because the landlord did not serve a notice to cure the alleged
violation.
The court acknowledged the Sofizade ruling that it is not possible to prove
a meaningful cure in a 10 day period. However, the court noted that the decision also ruled that
"there may be circumstances warranting the issuance of a stay of a possessory judgment 'upon
such terms as may be just' (CPLR 2201) in order to avoid a leasehold forfeiture in this type of
eviction proceeding." The court awarded the landlord summary judgment but set the matter
down for a hearing to determine the length of an appropriate stay and upon what terms it should
be conditioned. The court found circumstances warranting a stay; i.e., tenant's medical situation
and former unemployment. The court is basically giving the tenant a probationary period.
- Case Caption:
- Bldg Management Co. Inc. v. Antollino
- Issues/Legal Principles:
- Tenant is not deprived of legal fees hearing arising from a prior holdover where he was
deemed the prevailing party.
- Keywords:
- holdover proceeding; attorney's fees
- Court:
- Appellate Term, First Department
- Judge:
- Trial Court: Hon. Lau
- Date:
- July 9, 2002
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- none cited
- Summary:
- The landlord brought a holdover proceeding in 1995. The tenant prevailed in this
proceeding. Tenant now moves to restore the case to the calendar for a hearing on his legal fees
arising from the holdover proceeding. The lower court denied the tenant's motion, but the
appellate court affirmed, holding that the tenant never abandoned the claim, never delayed the
prosecution of his claim and prior court orders authorized tenant to pursue his claim for legal
fees in subsequent nonpayment proceedings.
- Case Caption:
- 3950 Blackstone Associates v. Hess
- Issues/Legal Principles:
- A warrant of eviction should not be issued under the circumstances of an isolated, single
rent default where the rent amount is a modest sum.
- Keywords:
- eviction; rent default
- Court:
- Appellate Term, First Department
- Judge:
- Trial Court: Hon. Fiorella
- Date:
- July 9, 2002
- Citation:
- NYLJ, page 23, col 2
- Referred Statutes:
- none cited
- Summary:
- The elderly tenant, while on vacation in Florida, was eviction from the rent stabilized
apartment she had rented for 35 years based on a single rent default. The lower court evicted
the tenant. The Appellate Term, noting the amount of rent was modest ($572.69), and that the
default was an isolated incident and unintended, reversed the trial judge and ruled that the
tenant's should not lose her apartment.
- Case Caption:
- Munro v. Prescott
- Issues/Legal Principles:
- A licensee does not have standing to commence or maintain an HP action against an
owner to correct violations relating to housing standards.
- Keywords:
- HP proceeding; tenant at will; licensee; violations
- Court:
- Civil Housing Court, Bronx County
- Judge:
- Hon. Gonzalez
- Date:
- July 9, 2002
- Citation:
- NYLJ, page 19, col 1
- Referred Statutes:
- NYC Administrative Code 27-2004 & 27-2215; RPAPL 713(7)
- Summary:
- The tenant commenced an HP proceeding claiming she was a tenant at will whose
apartment must be repaired as a result of an HPD violation report dated May, 2002. The
landlord claimed the tenant, his niece, was an unwanted guest and a mere licensee who lacked
standing to commence an HP action. A two day trial was held in early June. The tenant lived
at the apartment, but never paid rent. The landlord authorized her to use the apartment while
she provided accounting services. According to the tenant, she worked 300 hours from January
through June and admits to providing no services since June but testified that she is "available."
The landlord paid her utilities until February when she opened an account in her own name.
The court ruled that the tenant was not a tenant at will. She was only a licensee who lacked
standing to maintain an HP action. The court held that only a tenant, a group of tenants or the
New York City Department of Housing Preservation and Development could commence an HP
action.
- Notes:
- This is a wrong decision. If someone is lawfully occupying the apartment (i.e., they
did not trespass into the premises), then they must be entitled to habitable housing until such
time as a court determines that their occupancy is no longer lawful. Whether the tenant is
paying rent should not be relevant to an occupant's right to have housing violations corrected.
This is because an owner has its remedies to collect rent (or use and occupancy). If the tenant
has died and a remaining family member is entitled to succession rights, that family member is
a mere licensee until such time as the court determines the succession claim. The family
member, however, should not be barred from commencing an HP action simply because at the
time of commencing such action her tenancy rights have not yet been determined. This
example, however, does not mean that only potential tenants are entitled to bring an HP action
for habitable housing. Anyone occupying premises should be entitled to do so (including
squatters if their trespass is for political reasons -- to advance human rights issues of affordable
housing). If the owner does not want that person there, the remedy is a holdover, but the
ongoing HP litigation should be allowed to continue as long as the occupant is residing in the
premises.
- Case Caption:
- Comualiius v. Green
- Issues/Legal Principles:
- A subtenant must be made or joined as a party to a proceeding, otherwise the landlord
will only be able to evict the tenant, but not the subtenant, and must commence another
proceeding against the subtenant.
- Keywords:
- subtenant; eviction
- Court:
- District Court
- Judge:
- Hon. Gartner
- Date:
- July 10, 2002
- Citation:
- NYLJ, page 30, col 4
- Referred Statutes:
- none cited
- Summary:
- The landlord brought a nonpayment proceeding and was granted a judgment for money
and possession and a warrant for eviction against the tenant, Biacca Green. The subtenant
Montfort moved to permanently stay execution of the warrant of eviction as against her on the
ground that she, together with her child, was a subtenant but was not made a party to the
proceeding. Montfort claimed to have learned of the proceeding only when the marshal posted
a 72 hour notice on the door of the apartment. The landlord claimed that Montfort was simply
a guest from time to time of Green and that because her presence was infrequent and sporadic,
there was no cause to name her as a party. The court noted that if Montfort is a subtenant she
must be given a thirty day notice as a tenant at sufferance. If she is merely an occasional guest,
she may be evicted under the existing warrant and is not entitled to any formal notice. A
hearing was set down to determine the status of Montfort.
- Case Caption:
- Halme v. Meserole Avenue, LLC
- Issues/Legal Principles:
- Where a landlord leases commercial space knowing the tenant will use it for residential
purposes, the tenant is entitled to rent regulated protection, such as the Emergency Tenant
Protection Act of 1974.
- Keywords:
- HP action; multiple dwelling
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Sikowitz
- Date:
- July 10, 2002
- Citation:
- NYLJ, page 29, col 4
- Referred Statutes:
- Emergency Tenant Protection Act of 1974; Administrative Code of the City of New York
27-2001 & 27-2115(h); RPAPL 713; CPLR 403(b); 22 NYCRR 130-1.1(a)
- Summary:
- The tenants brought an HP action to obtain an order directing the landlord to correct
violations of record allegedly existing at the premises. The landlord brought a motion to dismiss
the proceeding and the tenants cross-moved to deny the motion and for an award of legal fees
and/or sanctions for a frivolous motion. The landlord argued that the premises are commercial,
not residential, and thus not subject to an HP action to correct housing violations. The
building's certificate of occupancy indicates non-residential usage. The tenants argue that the
building is a defacto multiple dwelling because the owner is fully aware that they have occupied
it for residential purposes for many years. The court noted that the proceeding could not be
dismissed because there was a question of fact as to whether the landlord knew the premises
were occupied for residential purposes.
The landlord argued that its knowledge is immaterial, that the tenants are not qualified
for any protections afforded to residential occupancy regardless of the owner's knowledge or
acquiescence. The court noted that the landlord's argument would allow an unscrupulous
landlord to perpetuate a fraud on an unsuspecting tenant or tenants and hide behind the law in
the process of doing so and second, that the case law does not support his argument.
The tenants argued that the doctrine of collateral estoppel has already decided the issue
of whether or not the building is a de fact multiple dwelling. The landlord brought a
superintendent to court in a holdover proceeding and the trial court found that the building
contained more than 6 residential units. Therefore, this court is bound to comport with that
prior ruling. The court, however, ruled that the doctrine of collateral estoppel only precludes
findings of fact essential to the final judgment and that the holdover involving the super had been
dismissed on appeal on a different basis and the appelate court actually never reached the issue
of whether or not the building is a de facto multiple dwelling. The court rejected the tenant's
application for legal fees and sanctions as well since the landlord's arguments, although
unpersuasive, had a modicum of basis in fact and law.
- Case Caption:
- Kouznetski v. Verga Associates
- Issues/Legal Principles:
- Landlord's predecessor who accepts Section 8 subsidy provision in original lease is
bound to that term when the subsidy is granted years later to the tenant.
- Keywords:
- Section 8 subsidy; successor in interest
- Court:
- Supreme Court, Kings County
- Judge:
- Hon. Dowd
- Date:
- July 10, 2002
- Citation:
- NYLJ, page 29, col 2
- Referred Statutes:
- RPL 223; RSC 2522(g); 42 USC 1437f(d)(1)(b)
- Summary:
- The tenants entered into a lease with the landlord's predecessor in interest to an
apartment in a rent stabilized building for a two year term in 1991 at a rent of $492 per month.
The tenants continued to renew the lease and the last one is set to expire in August, 2003 at a
rent of $655 per month. At tenants' request, the initial lease contained a handwritten clause
stating that "Owner will accept Section 8 subsidy to tenant." Tenant applied for Section 8
benefits in 1991. The current landlord purchased the building in 1992. All the renewal leases
were with the current landlord. Finally, years later, on June 12, 2001 tenants received notice
that they were eligible for Section 8 rent subsidies. The tenants notified the landlord of this and
the New York City Housing Authority who oversees the Section 8 program. The landlord,
however, refused to participate in the Section 8 program. The tenants commenced a Supreme
Court action for a declaratory judgment that they are entitled to Section 8 and to compel the
landlord to enter into a contract with the City regarding the Section 8 subsidy. The landlord argued that it was not aware of the paragraph in the lease regarding the
owner's commitment to accept Section 8 subsidies. The landlord also argued that binding it to
the paragraph would violate the Code of Federal Regulations which permit a landlord to choose
not to participate in the Section 8 program. The landlord finally argued that the paragraph was
not included in subsequent renewal leases, but the tenant pointed out that under the rent
stabilization laws, renewal leases incorporate the terms and conditions of the original lease. As
a successor to the original lease, the landlord is bound by all its terms and conditions.
The court noted that the landlord must be held to have notice of any facts which a
renewal of the terms of the lease would reveal. The landlord failed to review the lease at its
peril and must be tied to the same rights and obligations to which its predecessor was bound.
The handwritten paragraph of the lease became incorporated into all renewals and therefore the
landlord is bound to accept Section 8 on the tenant's behalf The Code of Federal Regulations
cannot effect a change in the provisions of the Rent Stabilization Code. The court rejected the
landlord's opinion that its involuntary participation in the program runs afoul of the federal code.
- Case Caption:
- Olton v. Hunter
- Issues/Legal Principles:
- Tenant who won an overcharge award at DHCR may deduct the amount from the rent
owed even if the building is currently in the hands of a 7-A administrator and not the landlord.
- Keywords:
- 7-A administrator; overcharges; rent credit
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Jean Schneider
- Date:
- July 10, 2002
- Citation:
- NYLJ, page 28, col 2
- Referred Statutes:
- RSC 2526.1(e) & 2520.6(i)
- Summary:
- The tenant receive an overcharge award by DHCR in 1999, including treble damages.
The tenant deducted his rent from the overcharge and was entitled to a rent credit through
January, 2003. The 7-A administrator brought a nonpayment proceeding against the tenant. The
tenant moved to dismiss the petition because he didn't owe any money due to the rent credit
arising from the overcharge ruling. The 7-A administrator argued that it is not a true "owner"
under the Rent Stabilization Code since it is running the building only temporarily until the
repairs are in order and then the building will be returned eventually to the owner. In the
interim, the tenant should not be able to withhold rent while the 7-A administrator is running
the building. The court rejected this argument and ruled that a 7-A administrator is an "owner"
for purposes of overcharges and rent payments under the Code and thus the tenant may receive
a rent credit through January, 2003 and no rent is owed. The court therefore dismissed the
petition.
- Case Caption:
- 350 West 88th Street Realty v. Charpentier
- Issues/Legal Principles:
- Hotel tenant who refused to sign a lease because its terms were different from her initial
oral tenancy is not subject to eviction on this ground because there is no basis for evicting a
hotel tenant on this ground in the Rent Stabilization Code.
- Keywords:
- lease; hotel tenant
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Peter Wendt
- Date:
- July 10, 2002
- Citation:
- NYLJ, page 28, col 4
- Referred Statutes:
- RSC 2520.6(j) & 2524 & 2522.5(a)(2)
- Summary:
- The hotel tenant lived in her current room since May 2001 and became a permanent rent
stabilized hotel tenant in November, 2001. She requested a written lease, but refused to sign
the tendered lease because it contained several conditions she found erroneous which were not
in her original oral tenancy. The landlord brought a holdover proceeding claiming that since
the tenant is a rent stabilized tenant, the landlord has a right to insist that the tenant sign a lease
offered to her, especially is he requested it and if she fails to execute the lease, the landlord may
terminate her tenancy.
The tenant moved for summary judgment to dismiss the proceeding claiming that the
Rent Stabilization Law contains not ground for a landlord of a hotel tenant to terminate her
tenancy based on her refusal to sign a lease offered to her, even if she requested a lease. The
court examined the Code and ruled that there is no existing ground to evict a permanent rent
stabilized hotel tenant for failure to execute a lease tendered by the owner even if the tenant
requested it. Thus, the court dismissed the proceeding.
New York Law Journal, decisions for the week of July 1-5, 2002 (4
cases)
- Case Caption:
- Rocky 116 LLC v. Weston
- Issues/Legal Principles:
- The court finds tenant's sublet of a two-bedroom luxury apartment where his girlfriend
lived was more likely the tenant's residence rather than the subject apartment, a studio, which
the court concluded he used more for business purposes, thereby granting landlord's request for
possession of the studio apartment on nonprimary residence grounds.
- Keywords:
- holdover; non-primary residence
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Schachner
- Date:
- July 3, 2002
- Citation:
- NYLJ, page 22, col 4
- Referred Statutes:
- Limited Liability Company Law 206; RPAPL 741
- Summary:
- The landlord claimed that tenant did not occupy the subject apartment, a small studio,
as his primary residence, and that the tenant in fact lived at 128 Central Park South as his
primary residence. The tenant moved to dismiss the proceeding based upon an agreement he
made with the landlord's predecessor, in which it was agreed to lease the subject premises at the
rent stabilized rent and landlord would not object if tenant did not utilize the apartment as his
primary residence. The court, however, rejected the tenant's motion to dismiss on this ground
since whatever the prior landlord agreed to does not result in the current landlord waiving any
right to sue on nonprimary residence grounds.
Despite having the studio, the tenant sublet 128 Central Park South from 1996 to 1998.
He paid all of the expenses for this sublet including rent, Con Ed, cable television, and
telephone. On the sublet application, he listed Katia Christine as his live-in companion of 12
years. The tenant claimed that he used 128 Central Park South for his girlfriend Christine and
that, although he spent a great deal of time with her, he in fact returned to his studio apartment
on most nights to sleep. David Hay, an individual who worked with the tenant, testified that
he met the tenant and called him at the studio for business purposes. He also testified that he
would take in the tenant's mail for him at the studio when the tenant was out of town. The
superintendent of the subject premises, Mr. Gordocki, testified that he would see the tenant enter
the building after 9:00 A.M. on a regular basis, rather than leaving the building in the
morning.
The court granted the landlord a final judgment of possession concluding that the tenant
maintained his primary residence at a location other than the subject apartment. The court first
noted that the tenant had previously entered into an agreement which did not require him to
occupy the subject apartment as his primary residence. The court noted that in the tenant's
deposition testimony, he said he slept at the 128 Central Park South sublet "very often" which
contradicted his trial testimony that he slept at the subject premises on "most nights." The court
noted that it was logical to conclude that the tenant and his live-in companion would actually
reside in the luxury two bedroom sublet facing Central Park rather than the subject premises,
which was only a small studio facing the rear of the building. The court also noted that the
evidence and the testimony of Mr. Hay and Mr. Gordocki showed that although the tenant did
maintain a connection to the subject premises, he appeared to be using it more as an office rather
than a primary residence.
- Case Caption:
- 1155 Hoe Avenue HDFC v. Sierra
- Issues/Legal Principles:
- Court grants tenant's request to make Human Resources Administration a party to the
nonpayment proceeding so that the HRA will be accountable to send the rents at the proper
address.
- Keywords:
- nonpayment; vacation of stipulation
- Court:
- Civil Housing Court, Bronx County
- Judge:
- Hon. Malatzky
- Date:
- July 3, 2002
- Citation:
- NYLJ, page 23, col 2
- Referred Statutes:
- CPLR 3211; RPAPL 749; CPLR Article 10; The New York City Court Act, 11(d)
- Summary:
- On February 8, 2002, this non-payment proceeding was settled by a "so ordered"
stipulation in which the tenant acknowledged owing rental arrears in the sum of $3,281.00
through February 28, 2002 and agreed to tender this sum on or before February 22, 2002. The
stipulation provided that the Department of Social Services (DSS) would send payments directly
to the landlord and that the tenant was responsible for the payment of the rent and for following
up with the DSS. The landlord has not received the money from the DSS. DSS had been
instructed that all checks mailed to the landlord must indicate that they are being mailed to the
basement of the subject building. At some point in time, DSS began to omit the "basement"
portion of the landlord's address and thus sent the checks which covered the tenant's rent went
to the wrong address. The tenant reported the problem and on April 5 the tenant's CHAT
worker issued a letter indicating that the checks which are now missing would be replaced.
However, the checks have still not been replaced and the printout from the City of New York
Human Resources Administration (HRA) shows that they have still failed to include "basement"
in the landlord's mailing address.
The landlord moved for an Order restoring the non-payment proceeding to the calendar.
The tenant cross-moved for an Order impleading HRA as a necessary party and for vacatur of
the previous stipulation of settlement. The court granted landlord's motion to restore the
proceeding to the calendar, noting that the landlord has not received the money. The court
granted the tenant's motion to implead HRA, noting that HRA only had to add a single word
to the landlord's address and it was the only party to perform this task. Finally, the court denied
the tenant's motion to vacate the stipulation, noting that she was represented by counsel and
clearly understood the import and impact of the terms of the agreement before committing
herself to its terms.
- Case Caption:
- 19 West 36th Street Holding Corp. v. Hirsch
- Issues/Legal Principles:
- Tenant's lawyer who, later in the case, joins the law firm of the landlord's attorneys
disqualifies the landlord's attorney's firm from continuing to represent the landlord in this case
against this tenant.
- Keywords:
- conflict of interest
- Court:
- Appellate Term, First Department
- Judge:
- Lower Court: Hon. Maria Milin
- Date:
- July 3, 2002
- Citation:
- NYLJ, page 21, col 6
- Referred Statutes:
- Code of Professional Responsibility DR 5-108(A)(1)(22) NYCRR 1200.27(a)(1)
- Summary:
- The tenant initially retained an attorney named Bruno Bianchi to represent her in a
holdover proceeding, which commenced in January, 2001. On the tenant's behalf, Bianchi
submitted a detailed answer, asserting a substantive defense of illusory tenancy and two
counterclaims, and filed court papers and appeared at oral argument in connection with the
parties, cross motions to dismiss the respective pleadings. Bianchi's representation of the tenant
continued through July, 2001, when he joined the firm representing the landlord. Based upon
this conflict of interest, the tenant moved to disqualify landlord's counsel. The supervisory
attorney handling the landlord's case argued there was "no likelihood" that the 40-attorney firm
representing the landlord would acquire any confidential client information since Bianchi was
not "working with" anyone on this matter and there was no "formal firmwide discussion
of...pending cases." The court rejected this argument and disqualified the landlord's
attorney.
- Case Caption:
- 65 Ocean Avenue Associates v. Samuel
- Issues/Legal Principles:
- The mere use of an apartment for child care does not in and of itself constitute a lease
violation when a lease provision prohibits such use and child care may take place in any
apartment so long as the care provider is in compliance with the rules that permit the care in the
apartment.
- Keywords:
- residential character of a building; home based child care; lease violation
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Rodriguez
- Date:
- July 3, 2002
- Citation:
- NYLJ, page 25, col 3
- Referred Statutes:
- 18 NYCRR 418.2(27); Social Services Law 390
- Summary:
- The tenant cares for children in her home, a rent stabilized apartment, as a business. The
landlord brought this proceeding seeking to recover possession of the apartment, arguing that
the use of the apartment for child care is a violation of a restrictive covenant in the lease and
that it destroys the residential character of the building. The tenant argues that even though the
lease may prohibit commercial use of this apartment, the operation of a day care business does
not rise to such a level as to constitute a lease violation and that the State legislature has
preempted this area by enacting legislation that permits home based child care.
The court rejected the landlord's argument that the residential character of the building
was destroyed. The court noted that there was no difference between a family that contained
five children living in an apartment and a single person who cared for five children during the
day. The court also rejected the landlord's argument that the use of the apartment for child care
is a violation of a restrictive covenant in the lease. The court noted that this does not in and of
itself constitute a lease violation when a lease provision prohibits such use. A landlord may go
forward on the claimed breach of lease, but once a tenant demonstrates that they are either
licensed, registered, or otherwise in compliance with the law, the burden must shift to the
landlord, and the burden is more than the mere fact that a tenant cares for children in the
apartment, there must be something more. Since the tenant, however, failed to allege
compliance with any aspect of the regulatory scheme that governs home based child care she is
not entitled to a dismissal on the motion and the matter is reserved for trial, with the burden
resting on the tenant to demonstrate her compliance with the statute.
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