Housing Court Decisions December 1996

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Case Caption:

Szer v. Halpern

Issues/Legal Principles:

Landlord failed to meet burden of proof that apartment was exempt from rent stabilization by J-51 tax abatement.

Keywords:

rent stabilization; J-51 tax abatement

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Jerald R. Klein

Date:

December 23, 1996

Citation:

NYLJ, page 33, col 5

Referred Statutes:

N.Y.C. Admin. Code 11-243, 220.11

Summary:

Landlord brought a holdover proceeding, based on the allegation that the apartment premises were exempted from rent stabilization when they were rented to the tenant subsequent to the expiration of a J-51 statutory tax abatement. Housing units which are part of a building that was completed or "substantially rehabilitated" after January 1, 1974 are exempted from coverage if they were originally subject to regulation "solely as a condition of receiving tax benefits" and receipt of such tax benefits has expired. The Court reversed the lower court's decision in favor of the landlord, ordering a new trial, stating that the landlord has the burden of proving the rent regulatory status of the premises or any exemption from coverage. The Court pointed to the trial record and noted that it is "devoid of any proof of the status of the premises prior to the award of the J-51 abatement." Moreover, the Court looked to the landlord's claim that it produced "unrebutted" proof that the premises were not subject to rent stabilization due to a "gut rehabilitation." The Court found that the landlord's witness on this issue had "only the most cursory personal knowledge of the facts" which taken together with the rest of landlord's case, did not adequately meet its burden of proof.

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Case Caption:

90th Realty Co. v. Scolnik

Issues/Legal Principles:

Tenant's surrender of premises prior to re-trial of pet law case does not by itself constitute admission of breach of lease.

Keywords:

pet law; attorney's fees;

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Arlene Hahn

Date:

December 23, 1996

Citation:

NYLJ, page 33, col. 6

Referred Statutes:

N.Y.C. Admin. Code 27-2009.1

Summary:

Landlord brought a holdover proceeding alleging tenants had violated the "no pet" clause to their lease. As an affirmative defense the tenants argued that the landlord waived the violation of the "no pet" clause. On a prior appeal of this case, the Appellate Term held that the tenants have the burden of proof on their waiver defense, and remanded for trial. However, prior to the new trial, the tenants surrendered possession of the premises. As a result, the landlord made a motion to restore the proceeding for a hearing on attorney's fees, arguing that it had "entirely prevailed" because by vacating the premises the tenants in effect conceded to the lease breach. The lower court held that a re-trial "would be an exercise in futility" and directed a hearing to determine attorney's fees. The Appellate Term reversed, holding that "absent the entry of judgment or other resolution of the proceeding by judicial means," neither the landlord or the tenant had acquired the status of "prevailing party", which is a prerequisite for the award of attorney's fees. Furthermore, the Court noted that in spite of the tenants' surrender of the premises, the Civil Court still retained jurisdiction to issue a judgment and ancillary relief, such as attorney's fees and use and occupancy. To this end, the Court remanded the case for a hearing to determine who is the prevailing party in this litigation (which means the case must be re-tried to make such a determination) and for a further hearing on the issue of attorney's fees.

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Case Caption:

James J. Gregory v. Colonial DPC Corp. III

Issues/Legal Principles:

Landlord did not waive right to reject occupant's claim of succession rights where occupant had no such rights under the Rent Stabilization Code.

Keywords:

Rent Stabilized status; succession rights

Court:

Appellate Division, Second Department

Judge:

lower court: Hon. Golden

Date:

December 24, 1996

Citation:

NYLJ, page 30, col. 1

Referred Statutes:

none cited

Summary:

Plaintiff/tenant brought an action in Supreme Court for a declaratory judgment that he was a rent stabilized tenant. Plaintiff moved into a rent stabilized apartment upon the death of his mother who was a non-purchasing tenant when the building converted to co-operative status. Plaintiff claimed that the managing agent represented that Plaintiff would become a rent stabilized tenant entitled to a rent stabilized lease renewal upon expiration of the existing lease. Apparently, the defendants denied making such a representation. The Appellate Division affirmed the lower court's holding that Plaintiff did not obtain the status of a rent stabilized tenant primarily because Plaintiff did not reside at the premises with his mother for a period of at least two years preceding her death (the statutory requirement). Second, "coverage under a rent regulatory scheme is governed by statute and cannot be created by waiver or equitable estoppel." This means that even if the defendants had represented that Plaintiff could succeed to his mother's lease, their subsequent rejection of such an agreement was permissible because Plaintiff had no statutory succession rights to begin with.

Case Caption:

New York City Housing Authority v. Williams

Issues/Legal Principles:

New York City Housing Authority tenants entitled to a post-judgment ten-day cure period.

Keywords:

ten-day cure period

Court:

Civil Court, Kings County

Judge:

Hon. Hoahng

Date:

December 18, 1996

Citation:

NYLJ, page 29, col. 2

Referred Statutes:

RPAPL 753(4)

Summary:

The City landlord terminated the tenant's lease on grounds of non-desirability. The decision was rendered after an administrative hearing which the tenant did not attend. The grounds were that the tenant's son sold drugs on four occasions and one son was found in possession of brass knuckles. The tenant's attempt to vacate the default was denied. Thereafter, the City served the tenant a notice terminating her month to month tenancy (since she was no longer a leaseholder). During the ensuing holdover proceeding, the landlord moved for a judgment of possession and the tenant moved for an order permanently staying the issuance of a warrant pursuant to RPAPL 753(4). This statute provides a tenant a ten-day cure period after judgment. The tenant argued that she had cured because none of the sons lived with her then, or now, and one died. She lived alone and no drug activities had been alleged subsequent to the sons' behavior several years ago. The City argued that this month to month tenant was not entitled to a ten-day cure period because she no longer had a lease. The court found that she did have a lease at one time and there was no reason why this tenant, or any NYCHA tenants, should not be allowed the same ten-day cure advantage available to all other leaseholding citizens of the city. The court ruled that it was against public policy to deny this tenant a cure period, and granted the tenant's motion to permanently stay the issuance of a warrant.

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Case Caption:

Senft v. Halperin

Issues/Legal Principles:

Husband not entitled to rent stabilized status where wife purchased the shares to the co-op unit and was the proprietary lessee of the apartments the couple occupied.

Keywords:

tenant in occupancy; rent stabilized rights

Court:

Supreme Court, New York County

Judge:

Hon. Saxe

Date:

December 18, 1996

Citation:

NYLJ, page 25, col. 5

Referred Statutes:

CPLR 602(a), 3212; General Business Law 352-eeee

Summary:

The owners of the shares to the two contiguous co-op apartments brought an action for ejection (i.e., eviction) in Supreme Court against the former owner of the shares and her husband. The husband and wife were rent stabilized tenants of the apartments in leases in the husband's name only. His wife purchased the shares to the apartments during the co-op conversion process in her name only. The husband signed as guarantor of a re-financing of the mortgage loan agreements wherein plaintiffs supplied the monies for the loans. The agreements provided that the purchaser would "promptly vacate" upon default of payment. The defendants defaulted on the loan agreements and plaintiffs served the wife a notice to cure. The wife did not cure the default and plaintiffs notified her of their intent to hold a sale of the shares. The husband and wife brought an action to stay the foreclosure on grounds that they did not understand the terms and repercussions of the agreements. The matter was settled by a stipulation wherein the agreements were upheld and the payment schedule was modified. The defendants defaulted under the stipulation and plaintiffs foreclosed on the property and became the owners of the shares. Plaintiffs then brought the ejectment action to evict the defendants from the apartments. The defendants argued that the husband could not be evicted because he was a non-purchasing rent stabilized tenant who elected not to purchase shares during the co-op conversion plans, and the wife was entitled to reside with him. The court noted that under the General Business Law a non-purchaser tenant cannot simultaneous be a purchaser of shares. The court ruled that where both husband and wife once occupied the apartments as rent stabilized tenants, and the wife chose to purchase the shares upon conversion, the husband and wife could not claim a dual status (as non-purchasers and purchasers). The court cited case law holding that the purchase of a co-op unit in the name of a husband where both spouses resided in the premises pursuant to a lease could not have been made without the wife's consent since, as a co- tenant, she had an equal right to purchase. Further case law held that co-tenants in occupancy of a rent stabilized apartment may jointly exercise a right to purchase the shares of the unit upon conversion, but may not each individually exercise that right. In other words, the court considers one spouse's purchase to automatically mean the other spouse no longer holds a non- purchasing tenant status. The Court ruled that the defendants were united in interest despite the fact that only the wife became the proprietary lessee, and as such, their possessory interests were identical. Thus, although only the husband was the tenant of record, both of them held the status of "tenant in occupancy" (a term of art describing who may purchase an apartment.) The court also noted that after the wife became the proprietary lessee, no rent stabilized renewal leases were ever issued to the husband. The case discusses at length the defendants' other arguments, most of which pertain to contract law.

Notes:

This was a creative legal argument raised by the defendants. One queries if the judge's decision would have been different had the two people simply been unrelated roommates, both having their names on the leases and only one chose to purchase the shares. Because they were married, the court considered the wife's action of purchasing the unit to be one somehow conferring ownership rights on the husband, too. Of course, he never became an owner of the shares, but the court reasoned that he was stripped of his rent stabilized tenancy status by his legal partner's purchase.

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Case Caption:

Matter of Sendowski v. DHCR

Issues/Legal Principles:

Landlord not liable for treble damages in 1989 overcharge case, despite statutory elimination of penalties applicable only to cases filed prior to July, 1991.

Keywords:

overcharges; treble damages

Court:

Appellate Division, First Department

Judge:

lower court: Hon. Kristin Booth Glen

Date:

December 20, 1996

Citation:

NYLJ, page 25, col. 3

Referred Statutes:

RSC 2526.1(a)(1) & 2528.4; RSL 26-517(b)

Summary:

Landlord failed to register a vacant rent stabilized apartment in 1985 and thereafter charged the tenant lawfully calculated rent increases. The court addressed the issue of whether landlord's actions constituted a willful overcharge so as to warrant the imposition of treble damages. The tenants filed a rent overcharge complaint with DHCR on December 26, 1989 whereupon the DHCR directed the owner to provide a four-year rental history dating back to 1985. The landlord provided a history from July 1, 1980, accompanied by an explanation of the rent increases and documentation of $19,000 in vacancy improvements. On October 3, 1991, the DHCR notified landlord that it wanted proof that the landlord registered the apartment in 1985 with the DHCR. By letter dated October 22, 1991, the landlord notified DHCR that the tenants had withdrawn the overcharge complaint as per a Surrender Agreement wherein they vacated the apartment in April, 1991. The DHCR responded that it still sought proof of the 1985 filing. The landlord informed DHCR that he was confused as to how to register a vacant apartment, so no registration was filed at all in 1985 at the time of the vacancy. The landlord pointed out that all other apartments in 1985 were registered. By letter dated February 10, 1992, the tenants claimed the rent paid was too high, that not all the renovations claimed were made, and that although they vacated the apartment they still sought to pursue their overcharge claim. The DHCR sent landlord a notice that the record supported a finding that the legal rent on March 31, 1985 was only $279.11 and unless landlord submitted evidence to rebut the presumption, the DHCR would deem the overcharge as willful. The landlord replied that there was no mathematical, historical or statutory basis for the DHCR's proposed rent, that the DHCR failed to consider the substantial renovations, that the owner had voluntarily refunded an overcharge from October, 1989 to September, 1990 (resulting from his own miscalculations) and that the tenants' renewal lease was corrected accordingly: hence, no willfulness occurred on the part of the owner. By order dated November 13, 1992, the DHCR froze the monthly rent at $279.11, granted certain improvement costs and a rent increase of $4635.63 per month, imposed treble damages and awarded the tenants $88,140.69. The landlord appealed by way of a PAR, which was basically upheld. The landlord appealed again by way of an Article 78 proceeding to Supreme Court. The Supreme Court judge dismissed the landlord's appeal on grounds that the owner failed to establish that the overcharge was not willful because he was notified three times in three years of the need to file the 1985 registration and that the Rent Regulation Reform Act of 1993 was not applicable retroactively. (The RRRA of 1993 eliminated treble penalties for late and missing apartment registrations.) The Appellate Division noted that the statute specifically provides that it applies only to proceedings docketed on or after July 1, 1991 and the tenants' complaint was filed in December, 1989. Thus, the statute cannot be applied retroactively for the landlord. However, the Court noted that on April 14, 1996, the DHCR circulated an internal Memorandum eliminating treble damages in cases filed prior to July 1, 1991. The Memorandum was issued 18 days prior to oral argument before the Supreme Court Judge who was never made aware of it. The Court noted that the DHCR had never claimed that the rental calculations for the apartment were unlawful or that the owner harassed its tenants. The Court noted that there was no pattern of non-filings and the owner simply was confused about whether to file for a vacant apartment and voluntarily refunded monies from mistakes made on his part. The Court vacated DHCR's order, concluding that it was arbitrary and capricious in light of its Memorandum, the severe penalty of treble damages and DHCR's failure to establish willfulness by a preponderance of evidence.

Notes:

The Rent Reform Regulation Act clearly precludes any elimination of penalities for cases begun prior to July 1, 1991. The Court seems to have rendered its decision on sympathy alone, because normally judges cannot expand statutory cut-off dates. Surely this case would be overturned if appealed further.

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Case Caption:

Quentin Realty Co. v. Kapner

Issues/Legal Principles:

Landlord denied discovery in non-payment proceeding.

Keywords:

discovery

Court:

Civil Housing Court, Kings County

Judge:

Hon. Finkelstein

Date:

December 18, 1996

Citation:

NYLJ, page 29, col. 4

Referred Statutes:

none cited

Summary:

The landlord instituted a nonpayment proceeding based on the rent controlled tenant's nonpayment of the Maximum Base Rent (MBR) increases. The tenant disputed the amount of the increase claimed in the nonpayment petition and claimed that he was never sent a notice of the increases by the DHCR. The landlord moved to depose the tenants as to their affirmative defense of non-receipt of the MBR documents. The Court denied landlord's motion, holding that discovery is not available as a matter of right in summary eviction proceedings, although acknowledging that discovery is liberally granted in holdover or nonprimary residency cases. The Court ruled that discovery may only be granted by court permission upon a showing of "ample need." The Court concluded that since the tenant denied lack of receipt of the notice, there was little need to depose the tenant. The Court further noted that the landlord failed to show any special circumstances in order to overcome the usual presumption against discovery in a summary proceeding.

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Case Caption:

Salmon v. Wood

Issues/Legal Principles:

Non-payment petition dismissed for lack of a landlord-tenant relationship where tenants hold over after lease expired, but landlord neither collected nor demand rent.

Keywords:

month to month tenants

Court:

Civil Housing Court, Kings County

Judge:

Hon. Peter Wendt

Date:

December 18, 1996

Citation:

NYLJ, page 29, col. 4

Referred Statutes:

RPAPL 711(2); RPL 232-c

Summary:

The respondent/tenants leased the apartment pursuant to a written, one year lease which expired on July 31, 1996. The apartment was not subject to rent controlled or rent stabilized laws. In March, 1996 the landlord sent the respondents-tenants a letter informing them that he would no longer accept rental payments. After the expiration of the lease the respondents continued to occupy the premises. However, pursuant to his March, 1996 letter, they did not tender rental payments after the lease expired. Months after the lease expired, the landlord brought a nonpayment proceeding alleging that a month to month tenancy existed between the parties. The respondents moved to dismiss the petition on grounds that no rental agreement existed between the parties, and therefore there was no basis for the nonpayment proceeding. The Court held that in order to bring a nonpayment petition, a landlord/tenant relationship must actually be in existence at the time the petition is served. An existing rental agreement between the parties would evidence such a relationship. Alternatively, the payment of rent after a lease expired would constitute a month to month tenancy. The Court determined that when the lease expired between the parties and no further rent was either paid or demanded, the landlord/tenant relationship ceased to exist. In such circumstances, the landlord had no grounds to commence a non-payment proceeding. The Court went on to state that the landlord would be justified in bringing a holdover proceeding and seeking use and occupancy for the period of time since the expiration of the lease that the tenant occupied the premises. Since this landlord did not bring a holdover, and the non-payment proceeding was defective, the court dismissed the petition.

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Case Caption:

R&R Management v. Veliu

Issues/Legal Principles:

Superintendent granted tenancy status even though parties had no rental terms.

Keywords:

superintendents

Court:

Civil Housing Court, Kings County

Judge:

Hon. Callender

Date:

December 18, 1996

Citation:

NYLJ, page 29, col. 5

Referred Statutes:

RSC 2522.4(vi); RPAPL 713(11)

Summary:

One of the partners of the landlord (who managed the building, collected the rents, and hired superintendents) agreed with the respondent that if he took on the super's job at the building, even when it ended, he would be allowed to remain in the apartment provided he paid the rent agreed to after the termination of his job. The respondent became the super in 1986, but was fired in 1991. The landlord did not seek the apartment until 1995 and made no rent demand, nor did the parties reach an agreement about the rent. The landlord argued during the ensuing holdover proceeding that the parties merely had an agreement to agree (as to the super's future tenancy) and that absent material terms (i.e., the amount of the monthly rent) the agreement was unenforceable. The Court ruled that the agreement can be enforced in view of the fact that the Rent Stabilization Code has established a procedure and methodology for setting the rent for accommodations for employees of the owner (RSC 2522.4(vi)). The Court therefore found no barrier to the definiteness requirements of contract law and held that the respondent had a contractual right to the apartment after his employment ended, and dismissed the holdover petition.

Case Caption:

Lewis v. Katzev

Issues/Legal Principles:

Landlord's discovery request of elderly tenant in nursing home limited to written questions; use and occupancy denied, as landlord's discovery delays proceeding.

Keywords:

discovery; nonprimary residence; use and occupancy

Court:

Civil Court, New York County

Judge:

Hon. Kibbe Payne

Date:

December 11, 1996

Citation:

NYLJ, page 29, col. 2

Referred Statutes:

CPLR 408, 3120, 3121

Summary:

Petitioner/landlord commenced a holdover proceeding, alleging the respondent no longer retained the subject apartment as her primary residence. Petitioner alleges that the respondent resides at a nursing home and is in fact subletting the premises. As a result, the petitioner made a motion to conduct pretrial disclosure, including the respondent's submission to blood tests and physical and/or mental examinations. Furthermore, the petitioner made a demand for use and occupancy pending the outcome of the proceedings. The tenant conceded that since 1994, she has been staying in a nursing home, but opposed her landlord's demands, claiming that they were made with the intent to burden and harass her. The Court held that disclosure is warranted in cases where the tenant's primary residence is at issue. However since respondent conceded as to her stay at the adult home, the Court allowed disclosure only to the extent that petitioner may serve written interrogatories and that the respondent must provide certain documents which were promised in her attorney's affirmation. The Court noted that hospitals and nursing homes are not places where "rational tenants establish primary residence." Moreover, the Court stated that the petitioner had over seventeen months to investigate the facility and took offense to the petitioner's "brash application for a physical and mental examination of this elderly tenant." In addition, since it was the petitioner who delayed the summary proceedings, the Court denied the petitioner's request for use and occupancy.

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Case Caption:

Thompson v. 490 West End Apartments Corp.

Issues/Legal Principles:

Plaintiff was not deemed "holder of unsold shares" because she did not purchase the co- op unit with intent to reside in it, and therefore she was obligated to obtain Board consent to sublet.

Keywords:

sublet

Court:

Supreme Court, New York County

Judge:

Hon. Lehrer

Date:

December 11, 1996

Citation:

NYLJ, page 26, col. 6

Referred Statutes:

13 NYCRR 18.3(w)(1)

Summary:

The legal issue in this case is whether plaintiff, a co-op tenant, had the right to sublease the apartment without the consent of the defendant's board of directors. Plaintiff claimed consent was not necessary because she is a "holder of unsold shares" and the Offering Plan did not require consent in such circumstances. The court examined the proprietary lease which provides that unsold shares retain their character regardless of transfer until such shares become the property of a purchaser who will actually occupy the apartment. Plaintiff sought to prove that when she purchased the unit it was for residential purposes. The court, however, found that the co-op board established by a preponderance of the evidence that it was not plaintiff's intent to occupy the unit when she purchased it, that it was a business investment. Thus, plaintiff's status was not that of a holder of unsold shares, and board consent was required. The court ruled that the co-op board could make an application for a warrant of eviction against plaintiff.

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Case Caption:

Horstman v. Simkow

Issues/Legal Principles:

Non-payment proceeding re-instated on appeal despite landlord's claim for rent in another plenary action.

Keywords:

non-payment; bankruptcy

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Eileen Bransten

Date:

December 12, 1996

Citation:

NYLJ, page 28, col. 6

Referred Statutes:

CPLR 3211(a)(4)

Summary:

The lower court dismissed the non-payment proceeding on grounds that a prior action was pending, and the Appellate Term reversed. The Appellate Term held that the non-payment proceeding was not identical to the plenary action began by the landlord in 1995 because the relief demanded in the non-payment petition included a request for possession of the premises, and this remedy was unavailable in the plenary action. The Court noted that the distinction was not without significance since the tenant, who had not paid rent in nearly three years, declared bankruptcy and may be judgment proof. In these circumstances, the non-payment proceeding should not have been dismissed.

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Case Caption:

Pacer Realty Assoc. v. Bishop

Issues/Legal Principles:

Landlord's retention, then return of two rent checks does not constitute a waiver.

Keywords:

waiver

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Debra James

Date:

December 12, 1996

Citation:

NYLJ, page 29, col. 1

Referred Statutes:

none cited

Summary:

The Appellate Term reversed the lower court and reinstated the non-primary residency holdover petition. Landlord had retained two rent checks from respondents after the October 31, 1995 termination of the tenancy but prior to the mid-December, 1995 commencement of the proceeding. Landlord returned the checks uncashed without reasonable delay in late December, 1995 upon discovery of its "clerical error." The Court ruled that landlord's "inadvertent" action (quotations added) of the "acceptance" (the Court's quotations) of the rent did not vitiate the termination notice to justify the dismissal of the petition.

Notes:

Case law holds that after the tenancy is terminated, the landlord cannot accept rent until court permission is obtained. These respondents attempted to assert a waiver argument that landlord's retention of the rent checks re-instated the tenancy. The Appellate Term didn't buy it. A waiver issue is more often seen when someone other than the tenant is aspiring to attain tenant status. If the landlord "accepts" their rent tender, they hope to show a tenancy was established. However, waiver is truly difficult to prove. The claimant must show intentional behavior on the part of the landlord; that is, that the landlord accepted the rent with knowledge and with the clear intent to accept it and create a tenancy with the person tendering it. Even in this case had this landlord actually cashed the rent checks, some courts still would not find a waiver.

Case Caption:

245 Realty Associates v. Sussis

Issues/Legal Principles:

Remaining family member wins succession rights to rent stabilized apartment, but is denied attorney's fees.

Keywords:

attorney's fees; succession rights

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Marilyn Shafer

Date:

December 4, 1996

Citation:

NYLJ, page 25, col. 1

Referred Statutes:

RSC 2523.5(b)(1); Real Property Law 234; 9 NYCRR 2520.6(d)

Summary:

After trial, the respondent won his succession rights claim to succeed to the rent stabilized lease of his deceased brother. The respondent then sought attorney's fees based on his brother's lease which had an enforceable attorney's fees provision. (A court may award attorney's fees to the prevailing party in a summary proceeding only if there is an attorney's fees clause in the lease). The lower court denied fees to respondent and the Appellate Term upheld the denial. Respondent relied on the case of Duell v. Condon (84 N.Y.2d 773) which involved a daughter's succession rights claim to a rent controlled apartment. The Appellate Term distinguished between the two results by noting that the rent control laws have a broad definition of the word "tenant." The 1960 Duell lease contained an attorney's fees provision which was projected forward into the statutory tenancy and since the daughter was deemed a tenant pursuant to the rent control laws, the attorney's fees provision was applicable to her even though she was never a signatory to the lease. By contrast, the court noted that rent stabilization tenancies are contractual in nature, not statutory, and tenant is narrowly defined as "persons named on a lease as lessee" or someone party to a rental agreement obligated to pay rent. Family members have no right to renew a lease unless the stabilized tenant of record vacates or dies and the family member can prove succession rights. The Appellate Term concluded that the respondent in this case was not a leaseholder, but rather someone claiming to succeed to the lease. Only after respondent won at trial was he then able to be named a tenant to a renewal lease. The court observed that had the respondent lost the case, he would have not been obligated to pay attorney's fees since he was not a signatory to the lease.

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Case Caption:

Sutton Associates v. Fishman & Tomme

Issues/Legal Principles:

Tenant granted limited discovery.

Keywords:

discovery

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Debra James

Date:

December 4, 1996

Citation:

NYLJ, page 25, col. 5

Referred Statutes:

CPLR 3108; 408

Summary:

The Appellate Term affirmed the lower court's granting respondent's request for limited discovery. Almost no facts are provided in the decision, not even the nature of the proceeding. Simply because tenants so rarely get discovery in Housing Court, the case merits mentioning, despite its paucity of facts. The respondent was allowed to submit written questions (i.e., discovery) to her two out-of-state witnesses who reside in California and the Fiji Islands.

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Case Caption:

Hoskey v. Rivera

Issues/Legal Principles:

Landlord's actions of inducing tenants to vacate the premises, changing the locks and reletting the apartment to others constitutes unlawful eviction.

Keywords:

unlawful eviction

Court:

Civil Housing Court, Kings County

Judge:

Hon. Callender

Date:

December 4, 1996

Citation:

NYLJ, page 27, col. 5

Referred Statutes:

Administrative Code 26-521, 529

Summary:

Tenants-Petitioners claimed the Landlord-Respondent induced them to leave the premises, then locked them out and even though the tenants obtained a court order of restoration, the landlord had the police throw the tenants out as squatters. New tenants moved in on September 12th and signed a lease on September 17th, even though the court had issued a stay on September 13th enjoining the landlord from reletting the apartment until the matter was resolved. The landlord tricked the tenants into leaving the apartment by promising to renovate it and telling them they could return in 30 days or after the work was completed. But before the work was completed, the landlord changed the locks and rented it to the other tenants at a higher rental. The court found that the landlord unlawfully evicted the tenants because the tenants never relinquished full possession of the apartment, and never surrendered the keys, nor were they given new keys when the locks were changed by the landlord. Also, the court found that the new tenants were aware of the litigation and thus ordered them evicted and the initial tenants restored to possession. The court also took into account that the initial tenants had no other home, whereas the new tenants had a place to stay with a fiancee.

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Case Caption:

Hughes as Guardian of Matthew Black v. Lenox Hill Hospital

Issues/Legal Principles:

Minor child denied succession rights to apartment on grounds that he abandoned the apartment during the relevant period his rights ripened.

Keywords:

succession rights

Court:

Appellate Division, First Department

Judge:

lower court: Hon. John W. Grow

Date:

December 5, 1996

Citation:

NYLJ, page 25, col. 3

Referred Statutes:

RSC 2523.5(b)(1); 2520.11(k)

Summary:

This case involves the right of a minor child to succeed to the tenancy of a Rent Stabilized apartment following the death of the tenant of record. The uniqueness of the case is that the child, nor anyone else, resided in the apartment for the past seven years. The Rent Stabilization Code and other relevant laws do not address the issue of a succession rights claim by an infant whose parent or guardian resides elsewhere, even though the law does provide that the child "shall be entitled to be named as a tenant on the renewal lease." The tenant of record, Bettina Black, began her rent stabilized tenancy on December 1, 1985, and renewed the lease in 1987 for another two years. Her son, Matthew Black, was 14 years old when she died in October, 1989. After her death her brother Mark Hughes temporarily moved into the apartment, although he permanently resided in Georgia. In November 1989, the brother removed all items from the apartment and returned to Georgia along with his nephew, Bettina Black's son, Matthew. Matthew attended high school in Georgia, then transferred to a boarding school in Connecticut. He spent summer vacations in Georgia. In 1989, the landlord sent the attorneys for Bettina Black's Estate a notice of non-renewal of the lease which was to expire on March 31, 1990. The notice stated that the lease would not be renewed because the prime tenant did not occupy the premises as her primary residence due to her death and Matthew Black vacated the apartment. Matthew Black was never served the notice, but at trial his guardian conceded knowledge of it. On March 30, 1990, Mark Hughes as Guardian of Matthew Hughes and as Executor of the Estate of Bettina Black began a lawsuit in Supreme Court for a declaration that the apartment was Matthew's primary residence and that he was entitled to a rent stabilized lease in his name, and that the notice was defective. In a pre-trial deposition, Matthew stated that his uncle's home in Georgia was a temporary address. He conceded that he had only slept one night in the apartment since he left in 1989. In 1994, a non-jury trial was conducted and only Mark Hughes and Matthew testified. In response to the trial judge's question, Matthew stated that he wanted to retain the apartment because he wanted to have the right to live there because New York has many opportunities. The trial judge found that he resided with his mother as a full- time student from the inception of the lease until her death, and reasoned that, as a full-time student during her occupancy, Matthew was entitled to either a renewal lease or a non-renewal notice sent directly to him by the landlord. Matthew's guardian argued that the Rent Stabilization Code provides that a family member's succession rights claim shall not be deemed interrupted if he or she temporarily relocates due to enrollment as a full-time student. He argued that since Matthew attended school during the years after his mother died, although the apartment was vacant, it still was his primary residence. The "minimum periods of required residency" refers to the interval prior to the permanent vacatur of the tenant of record. This means that the remaining family member must have lived in the apartment with the tenant of record for two years prior to their vacatur or death. The Court found that in this case there is no dispute that Matthew is a family member who fulfilled the residency requirement and is "entitled" to succeed to the tenancy. However, the Court pointed out that the issue is the "sufficiency of his connection to the subject premises so as to support his claim of succession." The court held that the controlling issue is the residence of the infant at the time the succession right is asserted (i.e., the end of the renewal lease). At the time his mother's lease expired, Matthew resided with his guardian in Georgia and continued to do so even up to the time of trial. The Court concluded that he had abandoned the premises and the landlord was not obliged to serve any notice upon him. The Court granted the landlord a possessory judgment from April 1, 1990. The Court explored the language of the Code and the process of renewal leases given to remaining family members. At the time this lease was up for renewal Matthew had already left the apartment and taken up residence in Georgia. Under these circumstances, the Court held there is a question whether the landlord is obligated to offer a renewal lease. The Court held there is no basis to conclude that the law requires a landlord to name an absentee tenant as the designated lessee of the apartment. In determining this case, the Court felt compelled to weight competing policy concerns: assuring the efficient use of scarce affordable housing while preserving the right of family members to remain in residential premises they regard as home.

Notes:

The Appellate Division was clearly pained by this case and went to great lengths to explain its decision. While the Court did not want to undermine succession rights claims, it felt that to give Matthew a right to the apartment went against public policy of ensuring that scarce housing accommodations are actually utilized. In this case, Matthew should technically be allowed to succeed to the lease because (a) he had lived with his mother two years before her death and (b) during the renewal period, he was in school full time, which under the statute, the period in which one is enrolled in full time schooling (or, for example, is away in military service) is excluded from the calculations of the time periods in which the family member claims occupancy in the apartment. Thus, even though he did not live in the apartment at the time the lease was up for renewal (and when his entitlement to the renewal lease ripened), his absence was an acceptable one under the statute. However, the specific facts of this case, an apartment not utilized for seven years and desired solely as an "opportunity" to live in New York, as opposed to someone being rendered homeless, simply did not sit well with the Appellate Division. The Court rejected "form over substance." The decision is a long one with much discussion of succession rights, minor's rights and time periods for sending non-renewal notices. As such, the decision will probably be cited to often by other judges and advocates.

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