Housing Court Decisions May 2002
Editor: Colleen F. McGuire, Esq.
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Significant Cases
40 West 67th Street v. Pullman
501 E. 87th St. v. Ole Pa Enterprises, Inc.
Marcus v. Boonsompornkul
Donner Gardens Co. v. Mora
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Online Case Texts
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New York Law Journal, decisions for the week of May 27 to May 31,
2002 (5 cases)
- Case Caption:
- 40 West 67th Street v. Pullman
- Issues/Legal Principles:
- Co-op Board's good faith decision to terminate proprietary lessee's tenancy for alleged
objectionable conduct is not subject to review by a court of law and tenant may be evicted
without a trial on the allegations of the alleged conduct.
- Keywords:
- eviction; co-op; objectionable conduct; business judgment rule
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Marilyn Shafer
- Date:
- May 29, 2002
- Citation:
- NYLJ, page 18, col 1
- Referred Statutes:
- RPAPL 711(1); RPL 223-b; CPLR 3211
- Summary:
- David Pullman purchased shares to a co-op apartment and his proprietary lease provided
that the co-op may terminate a tenancy on 30 days notice if a tenant is found undesirable because
of "objectionable" conduct, so long as 2/3rds of the shareholders vote at a duly called meeting.
Soon after Pullman moved in, he began complaining about noises from the tenants upstairs,
including banging in the middle of the night, loud television and stereos and loud machines used
in a commercial book binding business. Apparently, Pullman's experts claimed that the noises
from the apartment above exceeded legal decibel levels. The tenant above, a retired college
professor and his wife in occupancy for 20 years, denied making any noises and felt harassed
to the point where apparently, the professor allegedly assaulted Pullman. The co-op found no
television or stereo in the professor's apartment. Pullman sent at least 16 written complaints to
the management and then filed 4 lawsuits against the upstairs tenants and the co-op. Pullman
also at this time made renovations to the premises and did not seek permission from the co-op.
Amongst other incidents, the shareholders got tired of Pullman, held a meeting and 75% of them
found Pullman's conduct objectionable and voted to terminate his tenancy.
The co-op sued Pullman in Supreme Court and sought an action for ejectment (i.e.,
possession of the apartment) as its first cause of action. The judge ruled that the co-op could
not just rule that the tenancy was terminated absent judicial review of that determination. The
co-op board argued that its determination was made by over 2/3rds of the shareholders and the
"business judgment rule" from the Levandusky case permits a co-op to terminate a tenancy
without judicial review. The co-op claimed that it would sell Pullman's shares and he would
get all proceeds, less costs from litigation. The Supreme Court refused to allow the court to
evict Pullman absent judicial review of the decision to terminate his tenancy due to his alleged
objectionable conduct.
The co-op appealed the lower court's decision and won on appeal at the Appellate
Division who ruled that a co-op board's good faith determination to evict a tenant for
objectionable behavior does not require judicial inquiry as to the validity of that determination.
Under Levandusky, a co-op board is not required to prove in court the reasonableness of its
actions so long as the board acts in good faith, does not act in a manner other than to further
the interests of the corporation and does not act beyond its scope of authority. The dissent in
this case pointed out that up to this point Levandusky has applied to cases regarding shareholder
challenges to management of the building or enactment and enforcement of house rules. It has
not been used to evade and avoid the statutory requirements to follow when a
landlord seeks to evict a tenant.
When any landlord seeks to evict a tenant, including a co-op board seeking to evict a
proprietary tenant, the landlord's determination to terminate the tenancy must be subject to
judicial review. In other words, the termination must be approved by a court of law. The
Appellate Division has ruled in Pullman's case that so long as the co-op board shows good faith,
a co-op board may bypass the judicial review process and go straight for eviction (where the
board properly voted on terminating the tenancy). The dissent was alarmed by this prospect.
Levandusky should not be allowed to permit a co-op to avoid statutory requirements. The
majority opinion held that the board's 75% pro-termination vote was the functional equivalent
of "competent evidence." Yet, the dissent noted that a single landlord makes the same sort of
calculations when determining objectionable conduct, yet the law still insists that a judge oversee
a landlord's choice to terminate the lease by proving the allegations in court.
- Notes:
- Although Housing Court Decisions is mostly concerned with rental tenants as opposed
to tenants who own their apartment, this case is too important not to report. It is alarming when
the second highest court in the state finds it acceptable to evict a tenant, albeit a co-op tenant,
without the landlord (i.e., the co-op) having to prove their case in court. There is nothing in
the RPAPL which precludes co-ops from the evictions standards which other landlords must
face. This case is also scary because one fears a slippery slope from co-op landlord allowing
to evict without judicial review to other landlords arguing for that same right.
- Case Caption:
- Malafis v. Shannon
- Issues/Legal Principles:
- Even though other apartments were available, landlord's owner use proceeding does not
fail if landlord chooses not to take those available apartments.
- Keywords:
- owner occupancy; renewal lease
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Marton
- Date:
- May 30, 2002
- Citation:
- NYLJ, page 23, col 4
- Referred Statutes:
- Rent Stabilization Code (9 NYCRR) 2524.4(a)(1); RPAPL 753
- Summary:
- Landlords seeking to recover possession of a rent stabilized apartment for their son,
Nicholas' primary residence. Tenant is a 57 year old woman who has been living in her
apartment since October 1, 1978. The landlord has been trying unsuccessfully for several years
to obtain an apartment in one of their buildings for their son. On July 16, 2001 the landlord
served the tenant with notice that they would not be renewing her lease because they wanted to
let their son occupy the apartment. On October 31, 2001 the tenant's lease expired, but she did
not move out. The landlord commenced this action the following month.
Landlord George Malafis testified that he wanted his son to have his own apartment, that
there were a total of seven people living in the family home where Nicholas resides, that his
oldest daughter is pregnant so there would soon be eight people, that it takes Nicholas as much
as 30 minutes to get to work now, and that it would only take him 5 minutes from the
apartment. Nicholas testified that he wants to have his own apartment, that he has little privacy
living in his parents' home, and that he wants the apartment as his residence because of its
proximity to his work, Prospect Park, and to a subway stop. The tenant argued that the landlord
does not have the good faith required by the exception to the right for a renewal lease for an
owner who seeks to recover a rent stabilized apartment for occupancy as a primary residence.
The tenant argued that the apartment was not likely to be as quiet as Nicholas expected, that the
landlord had not offered to Nicholas any of the other three apartments in the landlord's building,
and that the superintendent's apartment had been vacant since August, 2001 yet the landlord did
not offer this apartment to Nicholas.
The court found that the testimony of George and Nicholas Malafis to be credible and
sufficient to establish their good faith and genuine intention to recover the apartment. The court
also found that the tenant's arguments did not establish that the landlord lacked the required good
faith. The availability of the other apartments, even ignoring that three of them were renting
for $1,600.00 to $2,000.00 per month while the tenant's apartment was renting for $433.70 per
month, does not establish the landlord's lack of good faith. In conclusion, the court granted the
landlord possession, but allowed the tenant to stay in the apartment through September 30, 2002
so that she may find another apartment.
- Case Caption:
- Matter of F.W. Realty, L.L.C. v. New York State Division of Housing and
Community Renewal
- Issues/Legal Principles:
- The NYS Division of Housing and Community Renewal makes a rational distinction
between improvements, for which rent increases are allowed, and for ordinary maintenance or
repair work, for which rent increases are not allowed.
- Keywords:
- rent overcharge; rent stabilization; improvements; rent increases
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Michael Stallman
- Date:
- May 29, 2002
- Citation:
- NYLJ, page 28, col 2
- Referred Statutes:
- Rent Stabilization Code 2522.4; CPLR 7803(3) (Article 78); RSL 26-511(c)(13)
- Summary:
- F.W. Realty, is the landlord of apartment 4D at 97 Washington Avenue in Manhattan.
In 1994 the tenant of the apartment filed a rent overcharge complaint. In 1999, the Rent
Administrator of the New York State Division of Housing and Community Renewal (DHCR),
the respondent in this action, found that certain expenditures of the landlord were ordinary
repairs and maintenance and did not qualify for a rent increase under the Rent Stabilization
Code. The Rent Administrator found that the landlord had improperly collected overcharges of
$5,228.42. On May 9, 2001, the Deputy Commissioner issued a decision and order affirming
the Rent Administrator's findings of fact and a finding that the rent administrator did not commit
any due process violation. The landlord brought an Article 78 petition for a judgment annulling
the Commissioner's May 9, 2001 decision and order. The landlord claimed that the DHCR
erroneously failed to include all of the $8,800.00 in individual apartment improvements which
it made. These improvements result in an additional rent of $220.00 per month.
In reviewing the DHCR's determination, the court is limited to reviewing whether the
determination was made "in violation of lawful procedure, was affected by an error of law or
was arbitrary and capricious or an abuse of discretion" CPLR 7803(3). The Rent Stabilization
Code 2522.4(a)(1) and 2522.4(a)(4) permits a landlord to recover the cost of improvements by
raising the base rent by 1/40th of the cost. The DHCR was not arbitrary or capricious in not
allowing a rent increase equal to 1/40th of the cost of painting and plastering performed in the
tenant's apartment. The DHCR ruling was based on a rational distinction that the DHCR makes
between improvements, for which rent increases are allowed, and for ordinary maintenance or
repair work, for which rent increases are not allowed. The DHCR found that certain work done
to the apartment was only normal maintenance and repair and thus was not eligible to be
calculated in the rent increase. The court ruled that the DHCR had the expertise and the
documentation in front of it to make this determination and, absent an irrational or unreasonable
determination, was entitled to deference. The court also ruled that there was no due process
violation. In conclusion, the court dismissed the landlord's Article 78 petition and upheld the
DHCR's determination that the landlord had improperly collected overcharges.
- Case Caption:
- In Re Lila Howard v. New York City Department of Housing Preservation and
Development
- Issues/Legal Principles:
- Subsidized housing tenant who unlawfully sublets without prior written approval and
does not maintain the apartment as their primary residency is subject to eviction.
- Keywords:
- primary residency; occupancy agreement; Regulatory Agreement; eviction; subletting
- Court:
- Appellate Division, First Department
- Judge:
- lower court: Hon. Louise Gruner Gans
- Date:
- May 30, 2002
- Citation:
- NYLJ, page 20, col 3
- Referred Statutes:
- Article 78
- Summary:
- In September, 1984 petitioner, the tenant, entered into an occupancy agreement for
Apartment 10D at 330 West 28th Street. In 1987, Mutual Redevelopment Houses, Inc., the
tenant's landlord, signed a Regulatory Agreement with the City of New York to be supervised
by respondent, the New York City Department of Housing Preservation and Development
(HPD). The Regulatory Agreement provided a number of restrictions on covered tenancies,
including a prohibition against subletting without prior written approval of HPD and a provision
requiring a tenant to maintain the apartment as his or her primary residence. It was reported
to HPD that the tenant was subletting the apartment for profit in violation of the Regulatory
Agreement and HPD initiated an administrative proceeding to secure a Certificate of Eviction.
At the administrative hearing a subtenant testified that the tenant had received $1100.00 per
month, a sum considerably higher than the tenant's maintenance over a year, from the subtenant.
The tenant also admitted at this hearing that she had not spent the required 183 days per year
in the preceding 15 years to qualify for the primary residence requirement. The Hearing Officer
found that the tenant did not maintain the apartment as her primary residency and that, even if
she did maintain it as her primary residency, the tenant had sublet the apartment for substantial
profit in violation of her occupancy agreement. The Hearing Officer issued a Certificate of
Eviction. The tenant brought an Article 78 proceeding in Supreme Court to void the Hearing
Officer's determination. The Supreme Court voided the Hearing Officer's determination. (The
decision does not specify the reasoning for voiding the determination.)
On appeal, the Appellate Division ruled that the Supreme Court exceeded the scope of its
review. The lower court should have only voided the administrative decision if HPD had acted
arbitrarily or that its decision was capricious, the proper standard that should have applied. The
court ruled that there was sufficient evidence to provide a rational basis for the HPD decision
that the apartment was not the tenant's primary residence and that she had sublet the apartment
in violation of both the occupancy agreement and the Regulatory Agreement. Thus, the court
ruled that the Certificate of Eviction was properly issued.
- Case Caption:
- 21948, LLC v. Riaz
- Issues/Legal Principles:
- The Soldiers' and Sailors' Relief Act is to be liberally construed to protect those who are
engaged in military duty.
- Keywords:
- military service; eviction; commercial nonpayment proceeding
- Court:
- Civil Court, New York County
- Judge:
- Hon. Feinman
- Date:
- May 29, 2002
- Citation:
- NYLJ, page 19, col 3
- Referred Statutes:
- The United States Soldiers' and Sailors' Relief Act (50 USCA APP 501 et seq,; The
New York Soldiers' and Sailors' Relief Act of 1951 (Military Law Art. XIII);
- Summary:
- The petitioner, the landlord, commenced a commercial nonpayment proceeding for a
judgment of possession and the issuance of a warrant of eviction. Respondent, the tenant, failed
to appear in the summary proceeding. The United States Soldiers' and Sailors' Civil Relief Act
and the New York Soldiers' and Sailors' Relief Act of 1951 provides that when a respondent
fails to appear in a summary proceeding, the petitioner must, before entering judgment, file an
affidavit setting forth facts showing that the defendant is not in the military service. The
affidavit should include the date and location of the investigation and the facts gained at that
time. It also must be clear that the person interviewed had actual knowledge of the tenant's
military status. Here, the landlord is moving to dispense with the filing of the non-military
affidavit.
In an affidavit, the landlord's agent stated he went to the premises at issue to find out
whether or not the tenant was in the military, but the store was consistently closed. The
affidavit further stated the tenant had told the agent that he was self-employed and did not state
whether he was in the military; the agent never saw the tenant in a military uniform; and it does
not state whether the tenant had ever filled out a written application which would have additional
information such as his age, references, home address, banking references, alternative telephone
numbers or other means by which the tenant may be reached. Finally, the court noted that it
is possible to obtain an individual's military status by contacting the military service directly.
This apparently was not done.
The court ruled that the landlord's motion to dispense with the filing of the non-military
affidavit must be denied without prejudice to renew upon submission of a supplemental affidavit
that includes proof of further investigation, including at least another visit to the premises during
the business hours posted on the storefront or during customary business hours if no such hours
are posted. In addition the landlord shall attach a copy of any written lease or rental application,
as well as an affidavit explaining what efforts it has taken to ascertain the tenant's military status
from the military.
New York Law Journal, decisions for the week of May 20 to May 24,
2002 (11 cases)
- Case Caption:
- Niego Properties Ltd. v. Schuette
- Issues/Legal Principles:
- The court may grant a delay (a stay) in an eviction proceeding under CPLR 2201 upon
such terms as may be just.
- Keywords:
- eviction; stay
- Court:
- City Court, White Plains
- Judge:
- Hon. Friia
- Date:
- May 22, 2002
- Citation:
- NYLJ, page 24, col 4
- Referred Statutes:
- RPAPL 751(4); CPLR 2201
- Summary:
- The landlord commenced this action to evict the tenants in July, 2001. On August 8,
2001, tenants entered into an agreement allowing tenant to remain until February 29, 2002 so
long as the tenant paid the rent. On April 3, 2002 a warrant to evict the tenant was granted to
the landlord. Tenants moved for a delay (i.e., a stay) in the execution of the eviction for 2
months. Tenants cited the following reasons for their request for a delay: they were unable to
secure affordable housing despite their best efforts. They were elderly, were on a fixed income,
one was diagnosed with rectal cancer, thus undergoing chemotherapy and was suffering from
its side effects, and these factors contributed to their difficulty in finding affordable housing.
The landlord argued that the court could not grant a delay in the eviction under current
statutory law. RPAPL 751(4), which provides for a delay of eviction, was in effect until
September 1, 1967, and thus the court no longer has the power to delay an eviction. The court
rejected this argument and said CPLR 2201 gave the court the power to delay an eviction of a
tenant. The court then examined whether it was appropriate to grant the tenants the requested
delay in the eviction. Noting that the tenants were on a fixed income and having difficulties
finding affordable housing, and these difficulties were compounded by tenants' advanced age and
illness, the court decided that a delay in the eviction until May 31, 2002 was just and reasonable
under the circumstances, so long as the tenants paid the rent.
- Case Caption:
- Hershkowitz, res. v. Walker, ap
- Issues/Legal Principles:
- Any action by an estate must be by an executor or administrator in his or her
representative capacity.
- Keywords:
- restore tenant to possession
- Court:
- Appellate Term, Second Judicial District
- Judge:
- lower court: Hon. O. Chin
- Date:
- May 24, 2002
- Citation:
- NYLJ, page 23, col 2
- Referred Statutes:
- SCPA 206(1); SCPA 1602(1); SCPA 1607; SCPA 1610(1); EPTL 11-3.1
- Summary:
- Landlord, an estate of a decedent, commenced this action to recover possession of a
cooperative apartment. The lower court granted landlord possession of the apartment. The
tenant of the apartment was evicted and the lower court declined to restore her to possession
after she made a motion. The tenant appealed and the Appellate Term reversed the lower
court's decision. The court first noted that the estate's representatives were duly appointed by
a Florida court, but the estate's representatives did not obtain ancillary letters from New York
appointing them as ancillary fiduciaries. The court, citing cases and EPTL 11-3.1, stated that
any action by an estate must be by an executor or administrator in his representative capacity.
Because this action was not brought by an executor or administrator duly authorized to act in
New York, the tenant's appeal was granted and she was restored to possession of the apartment.
- Case Caption:
- 501 East 87th St. Realty Company, LLC v. Ole Pa Enterprises, Inc.
- Issues/Legal Principles:
- Landlord is entitled to not renew a corporate rent stabilized lease on non-primary
residency grounds where such lease fails to specifically identify the tenant who resides in the
apartment.
- Keywords:
- rent stabilized apartment; primary residence; corporate lease; subtenant; renewal lease
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Figueroa
- Date:
- May 22, 2002
- Citation:
- NYLJ, page 19, col 2
- Referred Statutes:
- The 1969 Rent Stabilization Law, (Administrative Code of City of N.Y., tit. 26, ch. 4);
Rent Stabilization Law 26-501; Rent Stabilization Law 26-504(a)(1)(f); Rent Stabilization Law
26-504(a)(7)(f); Rent Stabilization Law 2520.13
- Summary:
- Defendants, Johnny Winter and his wife Susan Winter, signed a three year lease on
September 27, 1974 for the rental of rent stabilized penthouse D (PHD) at 501 East 87th Street.
When this lease expired on November 30, 1977 a new one year lease was signed. This lease
substituted defendant Ole Pa Enterprises, Inc. as the tenant in place of Johnny Winter, who
signed the lease as president of Ole Pa. A third lease was signed for an additional year to begin
December 1, 1978. This lease, as well as the subsequent renewals, listed Ole Pa as the tenant,
but were signed by Johnny Winter as tenant without mention of Ole Pa on the signature line.
This lease was followed by ten consecutive lease renewals, all thirteen leases listed Ole Pa as
the tenant on top of the first page. On July 31, 1998, four months prior to the termination of
the last lease on November 30, plaintiffs, 501 East 87th Street Realty Company, LLC and Solow
Management Corp., served the defendants with a Notice of Non-Renewal of Lease. Plaintiffs
claimed that defendants were not entitled to a renewal lease because the occupant of the
apartment, Johnny Winter, was a subtenant of a corporation, Ole Pa, and that no particular
individual is specified in the apartment lease as the intended occupant who occupies the
apartment as a primary residence. Plaintiffs sued defendants for $26,273.60. This amount was
the difference between the rent stabilized amount defendants paid ($1,972.64) and the fair market
value ($4,600.00) for each of the ten months defendants used and occupied PHD after the
expiration of the lease on November 30, 1998.
Defendants argue that the surrounding circumstances under which Johnny Winter signed
the lease shows that he was the identifiable individual for whose benefit the corporate lease was
executed and therefore, he should be deemed the tenant. The surrounding circumstances he
points to include: he had previously rented the apartment for three years prior to his corporation
Ole Pa; of the ten renewals seven were signed "Johnny Winter" above a signature line that
designated him as tenant, without Ole Pa appearing adjacent to his signature; he had paid the
rent with checks drawn on his "Special" account with no mention of Ole Pa, thus it was
understood by the plaintiffs that the lease was intended to benefit Johnny Winter as an
identifiable individual. The court rejected this argument, saying the determination of who was
the tenant must be derived from the lease and the first page of the lease and its renewals have
typewritten that Ole Pa is the tenant. Thus, the court concluded that Johnny Winter was not the
tenant and Ole Pa was the tenant.
The defendants also argued that the corporate lease is invalid as violating the Rent
Stabilization Law 2520.13 which renders void any agreement by a tenant that waives the benefit
of any provision of the RSL or the Code. The defendants argue that the plaintiffs substituting
Ole Pa as the tenant in place of Johnny Winter in the lease renewal signed November 30, 1977,
in which Johnny Winter should have been the named tenant, constituted an unlawful waiver of
his rights to a renewal lease. Therefore, the lease in the name of Ole Pa must be declared void.
The court stated that this issue was not one of waiver, but whether Johnny Winter voluntarily
relinquished his original rent stabilized lease. The court concluded that the absence of any
evidence that the plaintiffs offered any inducement for the change, the lease must be deemed to
have been changed voluntarily at the behest of Johnny Winter.
The court concluded that, because the corporate lease failed to designate an identifiable
individual as the intended occupant of the apartment and thus, defendants were not primary
residents under the Rent Stabilization Law, defendants were not entitled to a renewal lease.
Thus, defendant Johnny Winter is liable to the plaintiffs for he difference between the rent
stabilized amount defendants paid ($1,972.64) and the fair market value ($4,600.00) for each
of the ten months defendants used and occupied PHD after the expiration of the lease on
November 30, 1998 or $26,273.60 total.
- Case Caption:
- Salcedo, ap. v. Cruz, res
- Issues/Legal Principles:
- Landlord, who entered into a stipulation agreement which allowed either party to restore
the action to the calendar in the event of breach, can not restore the action to the calendar in
absence of a breach of the agreement.
- Keywords:
- stipulation agreement; nonpayment proceeding
- Court:
- Appellate Term, 2nd Department
- Judge:
- Lower Court: Hon. M. Finkelstein
- Date:
- May 24, 2002
- Citation:
- NYLJ, page 23, col 1
- Referred Statutes:
- None cited
- Summary:
- The parties entered into a stipulation agreement to settle the nonpayment proceeding.
The agreement provided that in the event of a breach, either party may move to restore the
proceeding to the calendar. Petitioner moved almost four years later to restore the proceeding
to the calendar claiming tenant failed to pay the rent currently due. The court said this claim
might support an independent plenary action or summary proceeding, but did not allege a breach
of the stipulation. The petitioner had signed the stipulation agreement and should have known
its terms. Thus, the proceeding was not restored to the calendar.
- Case Caption:
- KSB Broadway Associates, LLC, pet-ap v. Sanders, res-res
- Issues/Legal Principles:
- Once landlord's holdover proceeding is dismissed, landlord must tender tenant a renewal
lease but cannot dictate that the lease commence retroactively.
- Keywords:
- renewal lease; retroactive lease; prospective lease
- Court:
- Appellate Term, First Department
- Judge:
- Hon. Douglas E. Hoffman
- Date:
- May 23, 2002
- Citation:
- NYLJ, page 20, col 3
- Referred Statutes:
- Rent Stabilization Code 2523.5(c)
- Summary:
- On September 30, 1999, tenants' most recent renewal lease expired. In September,
2000, landlord's holdover proceeding, in which he claimed the premises had become exempt
from regulation, was dismissed. After this dismissal, landlord tendered a renewal lease
retroactive to October 1, 1999, but tenants refused to sign. Landlord brought this holdover
proceeding based on tenants' refusal to sign the renewal lease retroactive to October 1,
1999.
Tenants had the option, under the then extant Rent Stabilization Code 2523.5(c), of
having the renewal lease term commence on the date a renewal lease would have commenced
had a timely offer been made (October 1, 1999) or on the first payment date occurring no less
than 120 days after the date of the October 10, 2000 renewal offer (March 1, 2001). The code
does not call for an examination of "the equities" in each case in order to determine the
commencement date of the renewal lease. Because the landlord's holdover proceeding was based
on tenants' refusal to sign the retroactive renewal and the landlord failed to offer a prospective
lease, the court dismissed the holdover proceeding.
- Case Caption:
- Nadel v. Mehmood
- Issues/Legal Principles:
- Landlord did not have to establish compliance with multiple dwelling laws during entire
period in which arrears were sought.
- Keywords:
- lease requirements; month-to-month tenancy
- Court:
- Appellate Term, 2nd Department
- Judge:
- Lower Court: Hon. C. Bedford
- Date:
- May 24, 2002
- Citation:
- NYLJ, page 23, col 1
- Referred Statutes:
- CPLR 4404(b)
- Summary:
- The tenant and landlord had a written agreement which clearly set forth the area to be
rented and the monthly rent to be paid. This written agreement was sufficient to create a month-
to-month tenancy. The lower court held this written agreement was a lease and awarded the
landlord possession and money in the amount of $28,600. Tenant appealed. On appeal, upon
establishing that the building was currently registered as a multiple dwelling, the court ruled that
the landlords were entitled to recover the accrued rent arrears without also having to establish
that the multiple dwelling registration was in effect during the entire period during which the
arrears accrued. The court also ruled that the lower court properly found the written agreement
to be a lease and affirmed their decision.
- Notes:
- Generally, in order to recover rent the landlord must show compliance with the multiple
dwelling registration laws for the periods in which the alleged rent owed is sought.
- Case Caption:
- Hairston, ap v. Garcia, res
- Issues/Legal Principles:
- Monies held by landlord subject to a Supreme Court lawsuit cannot be off set as rent
in nonpayment proceeding.
- Keywords:
- use and occupancy; setting off funds; option to purchase
- Court:
- Appellate Term, 2nd Department
- Judge:
- Lower Court: Hon. P. Jackman-Brown
- Date:
- May 24, 2002
- Citation:
- NYLJ, page 23, col 1
- Referred Statutes:
- None Cited
- Summary:
- Lower court fixed use and occupancy at the rate of $675 per month and failed to award
landlord any arrears which caused landlord to appeal. The lower court set off funds held by
landlord, pursuant to an option to purchase the subject premises, against use and occupancy the
tenant owed to the landlord. Landlord appealed on the ground of inadequacy. On appeal the
court affirmed the lower court's use and occupancy rate of $675 per month, but reversed on the
award of arrears. The court first noted that the funds held by the landlord, and set off by the
lower court, are the subject of a Supreme Court action between the parties. The court remanded
back to the lower court in order to determine the total amount of arrears due the landlord. The
amounts held by landlord include rent paid by the tenant through February of 1999. This
proceeding, however, sought use and occupancy from March, 1999. Therefore the set-off
monies cannot be available.
- Case Caption:
- Roaj Realty, Inc. v. Ortega
- Issues/Legal Principles:
- The tenant breached the stipulation wherein the tenant agreed not to engage in nuisance
behavior and therefore the court concluded the tenant must be evicted.
- Keywords:
- nuisance; stipulation
- Court:
- Appellate Term, 1st Department
- Judge:
- Lower Court: Hon. Howard Malatzky
- Date:
- May 23, 2002
- Citation:
- NYLJ, page 20 , col 3
- Referred Statutes:
- None cited
- Summary:
- The lower court awarded the landlord possession. Their decision was based on their
findings that tenant was a nuisance. Tenant had recurring all night parties, causing "banging"
noises and "blasting" music, and his numerous invitees were disruptive and anti-social. Tenant
materially and routinely breached the stipulation which settled the underlying holdover
proceeding. On appeal the court affirmed the possessory judgment in favor of the landlord.
- Case Caption:
- Aron Realty Holdings, Inc., v. Pollack,
- Issues/Legal Principles:
- If the essential terms of a lease are present--the space to be leased and the rent to be
paid--the duration of the lease does not have to be date specific to qualify as a lease so long as
other conditions for the lease are readily ascertainable by objective means.
- Keywords:
- licensee proceeding; lease terms
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Maria Milin
- Date:
- May 23, 2002
- Citation:
- NYLJ, page 20, col 2
- Referred Statutes:
- Rent Stabilization Code 2520.6(c)
- Summary:
- Respondent is an attorney who worked for the former owner (Goodman) of the
premises in question. Goodman was unable to pay respondent's fees and instead entered into
a written agreement with the respondent in March, 1995. In exchange for respondent's
continued representation, Goodman let a basement apartment to respondent on a rent-free basis
until: Goodman had paid respondent $6,000 and Goodman offered respondent a renovated two-
bedroom apartment in the premises at a preferential rent stabilized rate. Respondent entered into
possession and has been there since. Goodman died shortly after the execution of this agreement
and the present landlord moved to evict respondent in March, 2000. Petitioner claimed
respondent was a licensee occupying the premises without a lease or any other right to
possession.
The trial court granted the petition. The court reasoned that the agreement was temporary
and unenforceable because of its indefinite duration. The court concluded that respondent's
"license" to occupy the premises ended upon the death of Goodman. The court also relied on
the alleged illegality of the basement apartment as a basis for eviction.
On appeal, the court reversed the eviction and found the written agreement to confer an
enforceable tenancy interest. The court said that while the duration of the agreement was not
date specific it was dependent upon conditions that were readily ascertainable by objective
means. Thus, the agreement was a lease and could not be summarily terminated upon service
of a ten day notice to quit the premises. The court also said the lower court was wrong when
it relied on the alleged illegality of the apartment as a basis for eviction. Respondent had
resided in the premises for a number of years, the premises were registered with DHCR, the
premises were subject to the Rent Stabilization Law, the proceedings were not brought on the
basis of illegality, and there was no showing that the apartment could not be legalized. The
court concluded that the judgment for landlord was improperly granted and thus, denied the
petition to evict.
- Case Caption:
- Koch, res v. MacQueen, ap
- Issues/Legal Principles:
- Landlords can not be relieved of their responsibility under Real Property Law 235-b
to make repairs.
- Keywords:
- possessory judgment; arrears; abatement
- Court:
- Appellate Term, 9th & 10th Judicial Districts
- Judge:
- lower court: Hon. Maron
- Date:
- May 24, 2002
- Citation:
- NYLJ, page 23, col 2
- Referred Statutes
- RPL 235-b
- Summary:
- The judge entered a final judgment in favor of the landlords, awarding landlords
possession and arrears of $11,520. On appeal, the court reversed the decision and ordered a
new trial due to several errors. The appellate court ruled these errors included: the lower
court's refusal to issue a subpoena for the building inspector whose testimony would not have
been cumulative, the court's refusal to enter into evidence photographs taken by tenants because
they were taken before the period for which rent was sought, the court's refusal to admit tenants'
photographs of conditions in the common areas, the court's failure to award an abatement on the
ground that the court had returned $600 to the tenants while under RPL 235-b the landlord is
not relieved of their responsibility to make repairs and there was no evidence the $600 was
sufficient to correct the conditions.
- Case Caption:
- Minena v. Burns
- Issues/Legal Principles:
- Section 8 tenancies require leases to state whether or not the tenancy includes utilities,
and if so, an owner is obligated to provide utilities at all times.
- Keywords:
- Section 8; electricity
- Court:
- Civil Housing Court, Bronx County
- Judge:
- Hon. Gonzalez
- Date:
- May 22, 2002
- Citation:
- NYLJ, page 20, col 2
- Referred Statutes
- Section 8 of the United States Housing Act of 1937; CPLR 321(b)(2); 42 USC 1437f;
24 CFR 982.1(b); 24 CFR 982.2(a); 24 CFR 982.1(a)1; 24 CFR 982.1(b)(1); 24 CFR
982.302(c); 24 CFR 982.158; 24 CFR 982.308(d)(5); 24 CFR 982.309(e); 24 CFR
982.309(b)(2)
- Summary:
- The petitioner-tenant and the respondent-owner live on separate floors of the same house.
Tenant receives a Section 8 rent subsidy. As part of the Section 8 approval process, a Landlord
Information Sheet was filled out for the NYC Housing Authority (NYCHA) and signed by the
owner. According to federal rules, a Section 8 lease must state whether the landlord or the
tenant is responsible for utilities. On the sheet, the question "Are utilities included in rent?" the
owner wrote "yes" with respect to both gas and electricity. Based on this sheet NYCHA
produced an internal document entitled Data for Board Approval, which stated that gas and
electricity were included in the rent. NYCHA approved the subsidy. The original Section 8
Lease for Family with Rental Voucher, whose term ran from 5-1-99 through 4-30-01, contained
the sentence "The above rent does [] include gas and electric."
Tenant, at owner's request, opened a Con Edison account, although she always
understood gas and electricity were included in the rent. In October 2001, tenant's electricity
was cut off by Con Edison for non-payment. The owner restored the electricity by unlawfully
sharing her own meter with tenant. This unlawful meter sharing ended upon the advice of
respondent's counsel on 1-23-02 when the owner removed the hook-up, effectively terminating
the tenant's electricity. Tenant commenced this HP action to restore her electricity to the
apartment.
Landlord refused to show up for trial, and the judge refused to allow landlord's counsel
to be relieved. A NYCHA employee was subpoenaed and testified that she marked out the word
"not" appearing in brackets in the sentence "The above rent does [] include gas and electric."
She initialed the sentence on June 1, 2000. The tenant signed the lease on May 5, 2000. The
owner's signature is undated. The tenant testified that she opened a ConEdison account at the
owner's request, although she always understood that gas and electricity were include dint he
rent. The owner failed to appear in court to rebut the tenant's or NYCHA's testimony which
indicated that the utilities were included in the rent and therefore the landlord was obligated to
provide for same. The court ordered the landlord to restore gas and electric within 48 hours by
legal means and not by sharing meters.
New York Law Journal, decisions for the week of May 13-17, 2002
(3 cases)
- Case Caption:
- Zappia v. Poliseno
- Issues/Legal Principles:
- Tenant's received treble damages for illegal lock-out which relieves tenant from rent
obligations.
- Keywords:
- illegal lock-out
- Court:
- District Court, Nassau County
- Judge:
- Hon. Gartner
- Date:
- May 15, 2002
- Citation:
- NYLJ, page 22, col 5
- Referred Statutes:
- RPL 232-b; RPAPL 853
- Summary:
- The landlord brought 2 nonpayment proceedings against the tenant, one for rent for
January and February and the other for rent for March and April. The matters were tried
jointly. The tenant was responsible for boiler maintenance and attempted to turn the boiler on
but it was inoperable because it had a defect which required the boiler's replacement. Landlord
did not replace the boiler for two months, and only after tenant withheld rent. During that
interval the tenant did not have heat. Although the tenant had access to the basement for
storage, after the boiler was replaced landlord padlocked the basement door and would not
release the tenant's possessions in storage unless the rent was paid. On March 15, 2002, the
tenant relocated and vacated the apartment. The tenant claimed that she made several attempts
to return the keys to the keys to the landlord but the landlord rebuffed each effort.
In litigation involving the boiler, the court ruled that the tenant was obligated to have a
maintenance contract with the boiler company and having failed to do so, the landlord was
entitled to the rent for the full month of December. In December tenant announced that she was
leaving. By remaining in occupancy into the month of March, the tenant became liable for use
and occupancy for that entire month. The court, however, ruled that the landlord's padlocking
of the basement door where the tenant had possessions entitled the tenant to treble damages.
The amount of such damages equaled the amount of rent due.
- Case Caption:
- Tan Holding Corp. v. Weber
- Issues/Legal Principles:
- Landlord who cannot prove that the building is not a multiple dwelling and who does
not file multiple dwelling registration statement by time of trial cannot collect rent from tenant.
- Keywords:
- rent stabilization; commercial tenancy; stipulation; registration statement; use and
occupancy
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Kern
- Date:
- May 15, 2002
- Citation:
- NYLJ, page 19, col 2
- Referred Statutes:
- 22 NYCRR 208.42(g); RPAPL 711; Multiple Dwelling Law 4(7), 325
- Summary:
- Tenant moved into a space pursuant to a commercial lease which expired on September
31, 2001. The landlord brought a holdover proceeding alleging that the premises are not
residential, although tenant agues that he resides in the premises with the landlord's knowledge
and acquiescence. Tenant has submitted two affidavits from two other tenants in the building
who say they also reside in the building with landlord's knowledge and acquiescence.
There has been other litigation involving this building and claims of stabilization status.
In one Appellate Term case the court ruled that the landlord knew and acquiesced to tenants'
residency in the building even though commercial leases were given. Nonetheless, this tenant
entered into an agreement with the landlord to cancel the commercial lease and remain in the
apartment until March 31, 2003. In exchange he surrendered all rights and interest in the
premises and agreed to a final judgment and warrant, with a stay until March, 2003. The
agreement also provided that a holdover would be commenced and a settlement would
incorporate the terms of their agreement. In the interim, the tenant agreed to pay use and
occupancy.
The landlord brought a nonpayment proceeding when the tenant ceased paying use and
occupancy. The court noted that every petition must allege whether the premises is a multiple
dwelling or not and if there is a registration statement on file. The landlord is required to
establish compliance with the registration requirements. The failure to plead compliance can
result in the petition's dismissal. Although this failure is amendable, the landlord must prove
compliance at trial that there is a current registration on file or that the building is not a multiple
dwelling. Failure to prove registration or exemption will result in the petition's dismissal.
A multiple dwelling is a building occupied by three or more residential units. The
affidavits of tenant and his neighbors indicate that the apartment is a multiple dwelling. The
court granted the tenant's motion to dismiss the action on ground that the landlord failed to plead
or prove that the building is registered as a multiple dwelling. The landlord failed to dispute
the tenants' affidavits that it knew or acquiesced in the residences of three or more tenants. The
court deemed the premises a multiple dwelling. The landlord failed to prove registration
compliance. For this reason the court dismissed the petition. The court denied tenant's request
to vacate or set aside the agreement that he must leave by March, 2003.
- Notes:
- Presumably, tenant will be able to occupy the apartment rent free until March, 2003.
If other tenants can affirmatively establish a rent stabilization status, hopefully tenant can
piggyback on that decision and stay in the apartment, although this tenant has a hurdle to
overcome in that he signed an agreement to leave in March, 2003.
- Case Caption:
- Marcus v. Boonsompornkul
- Issues/Legal Principles:
- If landlord engaged in fraud or misconduct in facilitating execution of the warrant, this
may constitute a ground for invalidating the warrant and restoring the evicted tenant to the
apartment.
- Keywords:
- eviction; restoration to apartment; traverse; meritorious defense; reasonable excuse
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower court: Hon. Grayshaw
- Date:
- May 15, 2002
- Citation:
- NYLJ, page 20, col 1
- Referred Statutes:
- Civil Court Act 1702; CPLR 5015
- Summary:
- Tenant failed to appear at a nonpayment proceeding and the landlord obtained a default
judgment and evicted the tenant. The tenant moved to vacate the default and sought to be
restored to the apartment. She claimed that she had not been served with any of the legal
papers. The court conducted a traverse hearing on whether service of the legal papers was
proper. The court found that service was proper. The court further found that the tenant did
not have a reasonable excuse for her failure to appear, nor a meritorious defense to the
proceeding--the two criteria necessary to vacate a default judgment. Nonetheless, the lower
court restored her to possession of the apartment and the landlord appealed this decision.
Tenant claimed that she spoke to the landlord two days before the eviction and was told
that she could pay the arrears 12 days later. And yet, before 12 days elapsed, she was instead
evicted. If this is true, it may constitute a ground to vacate the warrant as "fraud or misconduct
by a landlord in facilitating execution of the warrant constitutes a ground for invalidating the
warrant and restoring tenant to possession." The Appellate Term remanded the case to the trial
judge to enable the landlord an opportunity to rebut tenant's allegation because tenant's claim
was raised, without notice, during the traverse hearing.
Justice Patterson dissented from the majority's opinion. He found that if there was no
reasonable excuse or meritorious defense presented, as the lower court in fact concluded, then
the judge was wrong to restore the tenant to possession of the premises. Furthermore, Justice
Patterson dismissed the tenant's testimony as not credible because on the one hand she said that
she never received any legal papers and that's why she did not appear in court, and on the other
hand, she asked the landlord for 12 more days to pay the rent and therefore must have known
about the pending proceeding.
New York Law Journal, decisions for the week of May 6-10, 2002 (8
cases)
- Case Caption:
- Marks v. Bldg. Management Co. Inc.
- Issues/Legal Principles:
- Tenant sued landlord under the Fair Housing Act on grounds that she had AIDS and
needed to be in Florida during warm months and that landlord discriminated against her for not
allowing her a roommate during her absence; court rules that tenant's request is merely for an
"economic accommodation" since a roommate is not related to her AIDS disability.
- Keywords:
- disability; housing discrimination; roommates; sublet
- Court:
- U.S. Federal Court, Southern District, New York
- Judge:
- Hon. Katz
- Date:
- May 7, 2002
- Citation:
- NYLJ, page 23, col 4
- Referred Statutes:
- 42 USC 3601; Federal Rule of Civil Procedure 50(a)(b); Real Property Law 235-f
- Summary:
- The plaintiff tenant lives in a rent controlled apartment for 38 years at the time of trial
and is disabled. In 1986 she was diagnosed with AIDS. Beginning in 1992, tenant began going
to Florida during the winter months because the warmer weather benefited her health. Tenant
had roommates throughout her tenancy, including during her absences to Florida. In 1996, the
landlord brought an illegal sublet proceeding against the tenant. At that time tenant filed a
federal suit claiming that the landlord's suit was brought because of her disability (AIDS) and
that conduct violated the Fair Housing Act. In August, 1997, a jury found that the landlord did
not engage in discrimination.
In November, 1997, tenant's lawyer advised the landlord in a letter that due to her health
tenant needs to spend winter months in Florida. The lawyer requested the landlord to
accommodate the needs of the tenant pursuant to the American for Disabilities Act by permitting
her to be absent from the apartment during winter months without jeopardizing her tenancy by
allowing her to continue to have a roommate during those months. The letter included a
statement from the tenant's doctor stating that it would be beneficial for tenant to be in warm
climate in winter months.
The landlord's attorney advised tenant's attorney that she would be going to Florida at
her own risk. The tenant continued to go to Florida and to have a roommate. In May, 1999,
the landlord served notices on tenant and thereafter commenced an eviction proceeding, at which
time tenant commenced this federal case, the second against the owner. The jury found that the
owner's failure to allow her to have a roommate when she went to Florida violated the Fair
Housing Act because it was a denial of an accommodation of her handicap and was a retaliation
of her previous lawsuit. The landlord asked the court to set aside the jury's verdict.
The court held that although a landlord is required to incur reasonable costs to
accommodate a tenant's handicap, a landlord is not required to provide any accommodation that
poses "an undue hardship or a substantial burden." The landlord argued that tenant did not need
a roommate when she went to Florida, that in fact this is nothing more than an economic
accommodation and not an accommodation for tenant's handicap. Tenant argued that so long
as she occupied the apartment as her primary residence, she is entitled to a roommate. Since
her disability requires her to be in Florida, if landlord deprives her of a roommate, then tenant
reasoned, she was not equally treated. The court referred to a recent decision which held that
the law addresses the accommodation of handicaps, not the alleviation of economic disadvantages
that may be correlated with having handicaps. The court referred to other cases which stand for
the principle that an accommodation is not necessary to afford a disabled person access to equal
housing opportunity when the accommodation sought does not directly ameliorate an effect of
the disability. The court ruled that there is no evidence that having a roommate while tenant
was in Florida was necessary in any way to assist her in dealing with her AIDS condition or
mitigated the difficulties associated with the illness.
With respect to tenant's retaliation claim, the landlord argued that since landlord was not
obliged to accommodate tenant with respect to a roommate, then there can be no retaliation of
a meritless claim. Tenant's lawsuit constituted protected activity since the Fair Housing Act
forbids retaliation because a party has made a complaint under the FHA. Simply because tenant
failed to establish a violation of a right does not immunize the landlord from liability. The jury,
however, saw enough evidence to hold the landlord's act as retaliatory, including a letter form
the landlord's attorney denying the request for a roommate while the tenant was in Florida,
stating in part that the tenant had caused the landlord much expense in the first case. The
evidence also showed that the landlord in fact had a policy of allowing other ill tenants in the
building to have roommates if such tenant had to be gone for an extended period due to their
illness. The jury could have reasonably concluded that the landlord excluded this tenant from
this policy out of retaliation for her disability complaints.
However, this tenant could show no adverse impact by the landlord's decision. Her
testimony revealed that she was barely aware that the landlord denied the request made by her
attorney and that she went to Florida anyway after the denial and she continued to have a
roommate. Hence, she suffered no intimidating or chilling affect or any injury. In the absence
of injury, the court ruled that there could be no finding that the landlord had retaliated against
the tenant. The court set aside the jury's award in favor of the tenant and dismissed the tenant's
complaint.
- Case Caption:
- Chase v. Pistolese
- Issues/Legal Principles:
- Tenants are entitled to a rent abatement where landlord did not remove lead paint.
- Keywords:
- warranty of habitability; lead paint
- Court:
- City Court, Jefferson County
- Judge:
- Hon. Harberson
- Date:
- May 10, 2002
- Citation:
- NYLJ, page 23, col 2
- Referred Statutes:
- RPL 235-b; Public Health Law 1370 & 1373
- Summary:
- The plaintiff tenants examined the home before renting it from the defendant landlord.
No questions were asked regarding lead paint. When the tenants moved in and began to paint,
they discovered lead paint and mold in the basement. The tenants then asked to be released
from the lease. The landlord claimed that initially the tenants asked to be released from the
lease because they found a larger place that they wanted and only later did they mention the lead
paint and mold. The court analyzed the warranty of habitability statute and concluded that every
residential lease covenants that the premises are fit for human habitation and not a danger to the
tenant's health and safety. The presence of lead based paint constitutes a basis for a claim that
the warranty of habitability has been breached, especially since the court found that the landlord
knew of the presence of the lead paint once the tenants called it to his attention, but did nothing
to abate the condition. The court awarded the tenants the equivalent of about 2 months rent and
denied the landlord's request for the costs of re-renting the premises.
- Case Caption:
- Pearlbud Realty Corp. v. White
- Issues/Legal Principles:
- Rent Stabilized tenants, even SRO tenants, who do not have leases still have the right
to sublet.
- Keywords:
- sublet; SROs
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Cavallo
- Date:
- May 8, 2002
- Citation:
- NYLJ, page 21, col 3
- Referred Statutes:
- RSC 2526.6; RPL 226-b
- Summary:
- Landlord brought a holdover proceeding against an SRO tenant on grounds of unlawful
subletting. The court, however, ruled that the tenant had a right to sublet. There is a dispute,
however, as to when the sublet occurred and whether permission was requested properly under
the statute. The landlord argues that the law should be interpreted to read that rent stabilized
tenants without leases should not be allowed to sublet because the sublet law permits subleasing
where there is an "existing lease." The court, however, noted that the Appellate Division has
ruled that a rent stabilized tenant is allowed to sublease even if they do not have a lease. The
DHCR opinion letter supporting the landlord's position was rejected by the court.
- Case Caption:
- Schwartz v. Seidman
- Issues/Legal Principles:
- Tenants are entitled to discovery in owner occupancy proceeding on issue of landlord's
good faith transfer of ownership of building and commencement date of the lease; landlord and
landlord's brother who will occupy the apartment will be deposed, but not brother's son who
is a minor.
- Keywords:
- owner occupancy; discovery; partnership; nonrenewal notice
- Court:
- Civil Housing Court, New York County
- Judge:
- Hon. Jean Schneider
- Date:
- May 8, 2002
- Citation:
- NYLJ, page 21, col 2
- Referred Statutes:
- CPLR 3211
- Summary:
- The landlord brought an owner occupancy proceeding against a tenant who has resided
in the loft for 23 years. The loft is now subject to rent stabilization. The landlord claims the
loft is to be used by his brother and his brother's teen-age son. The brother is also the
managing agent for the building. The tenant seeks discovery of the landlord, his brother and
the son. The landlord consents to discovery as against the brother, but will not consent to the
son on grounds such discovery would be duplicative and the son is a minor. The request to
depose the landlord is also resisted because the landlord actually lives in Israel and claims to be
ill.
Tenants seeks discovery on the circumstances of the change of ownership in the building
because it was previously owned by a partnership which may not maintain an owner occupancy
case. Now the building is owned by an individual, but tenants claim this was a sham transfer
designed solely to facilitate this eviction proceeding. Tenants also seek information with respect
to landlord's claim that their lease expired on June 30, 2001 because tenants claim their lease
expired no March 31, 2001. The issue is relevant to whether or not the notice of nonrenewal
was timely served. Finally the tenants seek discovery on landlord's good faith intention to use
the apartment as alleged, an issue which the landlord does not oppose.
Landlord opposes discovery on the ownership issue on grounds that it is just a fishing
expedition. Landlord also opposes discovery on the lease issue because many documents have
been exchanged on this issue before the DHCR. The court ruled that the tenants have alleged
facts sufficient to establish good faith claims with respect to all three of the issues on which they
seek discovery. The court ruled that all three issues are relevant and all involve matters
exclusively within the knowledge and control of the landlord.
The court further ruled that the landlord must appear before a deposition. He chose to
own property in New York City and it is his good faith intentions that are at issue.
Further, there is no proof that he suffers severe health problems and he is not of advanced age.
Additionally, he regularly travels to New York. The court held that the landlord's
inconvenience is not a sufficient reason to excuse him from appearing for a deposition. The
court denied the tenants' request to depose the minor son.
- Case Caption:
- Riverdale Park Corp. v. McDermott
- Issues/Legal Principles:
- Landlord waived right to challenge tenant's dog by waiting beyond 90 days to commence
an eviction proceeding; landlord's excuse that it was doing research in this period on tenant's
disability does not toll the 90 day period.
- Keywords:
- pets; disability
- Court:
- Civil Housing Court, Bronx County
- Judge:
- Hon. Howard Malatzky
- Date:
- May 8, 2002
- Citation:
- NYLJ, page 22, col 1
- Referred Statutes:
- Administrative Code of the City of New York 27-2003 & 27-2009; CPLR 3211
- Summary:
- The tenant lives in a co-op building and the landlord commenced a proceeding against
her in November 2001 based on alleged unlawful harboring of a dog. Tenant asked the court
to dismiss the petition because the landlord did not bring the proceeding within 90 days of
knowledge of the dog as the Pet Law requires. The landlord claims that the 90 day period was
tolled (i.e., frozen) in this case because the tenant claimed an exemption to the no-pet rule based
on her allegation of disability under the Americans With Disabilities Act ("ADA"). The
landlord claims that it was "doing research" to investigate the tenant's disability and this
investigation tolled the running of the 90 day period. After the owner concluded that the
tenant's disability does not comport with the ADA and the owner then commenced this holdover
proceeding.
The court ruled that the commencement of a holdover is defined as service of the notice
of petition and petition. In this case the petition is dated November 27, 2001. The thirty day
notice to cure and five day notice of termination both recite that the landlord knew about the
presence of the dog in the apartment on August 21, 2001. Applying the 90 day rule means that
the proceeding should have been commenced on or before November 21, 2001. Since the
proceeding was commenced six days after the 90 day period, landlord cannot maintain the
proceeding and tenant is allowed to keep her dog. The court held that there is no provision in
the Pet Law for tolling the 90 day period.
- Case Caption:
- 151-155 Atlantic Avenue, Inc. v. Pendry
- Issues/Legal Principles:
- Tenant is liable for attorneys fees for unlawful subletting even if tenant cured the sublet
before trial.
- Keywords:
- sublet; cure
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower court: Hon. Dawn Jimenez
- Date:
- May 9, 2002
- Citation:
- NYLJ, page 23, col 2
- Referred Statutes:
- RPAPL 753(4)
- Summary:
- The landlord proved that the tenant unlawfully sublet the apartment. However, the
tenant cured the violation before trial. The lower court awarded the landlord a judgment, but
permanently stayed the execution of the warrant because of the cure. The lower court awarded
the landlord legal fees. The Appellate Term affirmed. Apparently, the tenant appealed on the
issue of having to pay landlord's legal fees.
- Case Caption:
- Rhinestone Ventures Associates v. Vatter
- Issues/Legal Principles:
- Housing Court judge erred by dismissing the petition in a case where the tenant had
defaulted because the landlord wouldn't accept the tenant's tender of the full rent.
- Keywords:
- traverse; warrant; default
- Court:
- Appellate Term, 2nd & 11th Judicial Districts
- Judge:
- lower court: Hon. James Grayshaw
- Date:
- May 9, 2002
- Citation:
- NYLJ, page 23, col 3
- Referred Statutes:
- RPAPL 749(3)
- Summary:
- In this nonpayment summary proceeding, a default final judgment was entered and a
warrant of eviction issued. Tenant received a marshal's notice and sought to vacate the default
judgment and warrant on grounds that he was never served the petition. In his order to show
cause the tenant alleged that he had lived in the apartment for 23 years and had $5,000 out of
the $6,400 owed in rent and that he needed a day to get the balance. In fact, on the return date
the tenant proffered the full amount of rent owed. When landlord declined to accept the rent,
the judge on his own ("sua sponte") dismissed the petition. The landlord appealed and the
Appellate Term reversed.
The landlord argued that the default judgment should not be vacated just on the tenant's
mere word that he was not served the petition. The landlord wanted a traverse hearing (i.e.,
the process server testifies as to how the tenant was served). The Appellate Term agreed and
remanded the case so that there could be a traverse hearing. This means that if the court
concludes that the tenant was properly served, landlord can proceed to evict the tenant. The
Appellate Term ruled that the lower court had no authority to compel the landlord to choose
between accepting the rent or having the petition dismissed. The Appellate Term, however,
did rule that the tenant's motion to vacate the warrant should be granted regardless of the
outcome of the traverse hearing because he satisfied the "good cause" factor by paying the rent.
- Case Caption:
- Donner Gardens Co. v. Mora
- Issues/Legal Principles:
- A third-party management company who provides security and common area
maintenance to the co-op building complex and who informed landlord (holder of unsold shares)
that the tenant had a dog is essentially deemed an agent of the landlord for purposes of having
knowledge of tenant's harboring of a dog.
- Keywords:
- pets; agents
- Court:
- Civil Housing Court, Queens County
- Judge:
- Hon. Badillo
- Date:
- May 9, 2002
- Citation:
- NYLJ, page 24, col 3
- Referred Statutes:
- Administrative Code of the City of New York 27-2009
- Summary:
- The landlord brought a holdover proceeding against the tenant for allegedly violating the
lease clause by harboring a dog. The tenant claimed that the landlord had knowledge of the dog
in excess of 90 days and therefore waived a right to maintain an eviction proceeding on this
ground. The landlord is the holdover of a number of unsold shares of co-operative units in the
building. The landlord's managing agent is not the managing agent for the entire building.
Neither the landlord or its managing agent have an on site presence at the building. The owner
of the building has its own managing agent, Arco Management, who maintains the common
areas and security.
The landlord did not rebut tenant's claim that she has had the dog for 7 years and walks
the dog three times daily. The landlord argues that since they have no agents at the building,
they are not liable for any open and notorious possession of the dog by the tenant. Arco is not
their agent, so even if Arco knew about the dog, Arco's knowledge cannot be imputed to the
landlord or landlord's agents. The court noted that the proceeding was commenced in July,
2001 based on a letter Arco wrote to the landlord stating that Arco's super observed the tenant
with a dog in late February or early March, 2001. The court noted the contradiction in the
landlord's position: that the landlord relied on Arco's super's observation of the dog to
commence the proceeding but now the landlord wants to disavow a connection to Arco.
The court rejected the landlord's position that Arco has no agency relationship to it. The
court held: "To accept the petitioner's defense would allow them to easily disassociate
themselves from any liability in regard to the units that they own. It would provide an easy
shield against responsibility." The court dismissed the petition.
- Notes:
- Nowhere in this decision did the court actually characterize Arco as the landlord's agent,
but that is the implication. The decision essentially states that Arco was constructively an agent
for the landlord.
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