Return to TenantNet Home
In the housing court proceeding, the judge dismissed the case on grounds that the Pet
Law requires an owner to commence a proceeding within three months of knowledge of the
alleged unlawful pet. The court ruled that the landlord waited in excess of three months and as
a result the petition was dismissed. The case went to the Appellate Term and the dismissal was
affirmed. The landlord co-op board has now sued the tenants in Supreme Court for fraud and
misrepresentation on grounds that they fraudulently represented when they signed the inducement
agreement that they would not keep pets in the apartment. The judge disagreed and correctly
noted that the tenants only signed a document which indicated that they were aware of the
board's policy; they never signed an agreement representing that they would abide by the policy.
The court held that it could not stretch the language of the inducement letter to mean what the
landlord wants it to mean because that would be against public policy since such interpretation
would automatically waive the three month period under the Pet Law. The court dismissed the
complaint. The tenants counterclaimed stating that they put up one year's maintenance totalling
$10,588.32 in escrow and were supposed to have it refunded after two years. The tenants were
not behind in maintenance payments and yet their request for a refund of the escrowed money
was denied by the landlord, so they made a counterclaim in this action seeking its return. The
court granted their request, less 1% for administrative fees.
Return to Housing Court Decisions index
Search Housing Court Decisions
Archives:
2002
2001
2000
1999
1998
1997
1996
Harmir Realty Co. v. Ravinett
New York Law Journal,
decisions for the week of August 12-16, 2002
(4 cases)
The court noted that upon the landlord's addition of a sixth unit to the building (allegedly in 1992) all the units in the building were brought under rent stabilization and the tenants could only be evicted upon one of the grounds set forth in Section 2524.3 of the Rent Stabilization Code ("RSC"). The court ruled that because the landlord did not plead and prove the existence of such grounds and did not serve the notices required by the RSC, its causes of action for ejectment are dismissed with prejudice. The court dismissed with prejudice the landlord's cause of action for use and occupancy against tenant Heward-Mills because the lack of a proper certificate of occupancy for her apartment precludes recovery of rent or use and occupancy for this apartment. However, tenant Heward-Mills may not recover rents paid based solely on this ground and dismissed without prejudice her counterclaim for rent overcharge. The court dismissed without prejudice the landlord's cause of action for use and occupancy against tenant White because the landlord has not registered the premises with the Division of Housing and Community Renewal, a legal regulated rent has not yet been established, thus rendering the landlord's claim for rent arrears premature. Similarly, the court ruled that tenant White's claim for the recovery of overcharges, if they lie at all, must await the establishment of the legal regulated rents and dismissed without prejudice her counterclaim for rent overcharge.
In March, 1994, the tenant filed a complaint of decreased services with the New York
State Division of Housing and Community Renewal ("DHCR"). The DHCR found that the
landlord did not maintain several services and reduced the rent from $1730 to $1545.38.
Inasmuch as the conditions noted by the DHCR persisted, the tenant was compelled to
commence an HP proceeding seeking an order to correct these conditions. >From January, 1996
through May, 2001, the tenant consistently sent letters to the landlord's agents requesting
repairs. The City of New York Department of Housing Preservation and Development ("HPD")
also issued more than fifty-five (55) violations in the subject apartment from 1993 through 2001
and approximately 20 percent of these violations were "immediately hazardous."
The landlord commenced this holdover proceeding to recover possession of the subject
apartment based on the primary ground that the tenant's alleged chronic nonpayment of rent
constituted a nuisance pursuant to the Rent Stabilization Code ("RSC") Section 2524.3(b). The
tenant interposed an amended answer asserting, inter alia, that the subject apartment was in need
of repairs and numerous violations were issued by HPD. The landlord has the burden of
proving, based on a preponderance of the credible evidence, that the tenant's conduct constituted
an actionable nuisance pursuant to RSC 2524.3(b). For a chronic nonpayment of rent to
constitute a nuisance, the landlord must also prove that "aggravating circumstances" exist to
support an eviction. The court credited the tenant's witnesses over the landlord's witnesses.
In particular, the landlord's witness Joseph Eckart's testimony lacked credulity.
The court examined the landlord's allegations upon which it relied to prove the existence of "aggravating circumstances." These allegations included among other things, the tenant's maintaining a plant on the window sill in violation of the lease, the tenant harbored a dog in violation of the lease, and the tenant installed an antenna on the roof without the landlord's permission. The court noted that these allegations were more appropriately characterized as breach of lease obligations subject to cure. Thus, the court found that the tenant's conduct did not constitute an actionable nuisance pursuant to RSC 2524.3(b). The court ruled by dismissing the petition with prejudice.
The court rejected each of these arguments in turn and ruled that the landlord's motion to dismiss the tenants' affirmative defense is denied. First, the HUD rule the landlord relied on requires HUD to continue sending the subsidy to the landlord, but nothing in the HUD rules require the landlord to accept the subsidy. Second, the court noted that it was well accepted that Section 8 payments made by a housing authority on behalf of a tenant constitutes rent. Third, the landlord, though never cashed the checks, never returned the checks to either the tenants or to the Housing Authority and thus, accepted rent following the effective date of the termination notice and prior to the commencement of the proceeding. Finally, the court dismissed the petition, inasmuch as the termination notice is vitiated, because a valid termination notice is a condition precedent to a holdover proceeding, dismissal of a petition is required where, as here, the notice is deficient.
Despite Marybeth's removal from the apartment, several months later the landlord
commenced a holdover proceeding in Housing Court to evict the tenant because of her past
violation, even though the tenant cured the alleged wrong. Before the case could proceed to a
resolution or a final decision, the tenant and Marybeth sued the landlord and its various agents
in federal court on various grounds, including violation of the Fair Housing Act and wrongful
eviction of the goddaughter. The defendants raised a plethora of defenses including that there
was a case pending in state court and therefore the federal court was precluded from hearing the
matter, but to this the judge ruled that there is no finality in the housing court case, and
therefore the federal court is not "reviewing" any state court's decision, and further there is no
"state interest" which should compel the court to abstain from exercising jurisdiction because
the underlying case is simply a routine landlord-tenant matter.
Defendants also argue that the plaintiffs have no standing to bring an unfair housing
claim because the tenant's status as a foster parent was never finalized. The court, however,
referred to case law in other districts where a foster parent has been deemed an "aggrieved
person." Further, the sole reason the tenant did not finalize her foster parent training was
specifically because the landlord threatened to evict her if Marybeth stayed in the apartment.
The court ruled that this "easily qualifies" the tenant as an "aggrieved person." The court
agreed with the defendants that, since the landlord is a private party and not a state actor, the
plaintiffs' constitutional rights cannot be deemed to have been violated. The court refused to
dismiss the case against two individual employees of the landlord who were named as parties
in their individual capacities because the facts show that the employees engaged in actual
discriminatory conduct.
Finally the court ruled that Marybeth cannot make a claim for wrongful eviction because she must prove that she was in "peaceable possession." This means she must show that her entry at the time she took possession must have been uncontested. In this case, however, the landlord contested her entry from the very beginning. Therefore she does not have a claim for wrongful eviction under RPAPL 853.