Housing Court Decisions July 1996

edited by Colleen F. McGuire, Esq.

Return to current month
Return to main index
Return to 1996 index


New York Law Journal, decisions for the week of July 29-August 2, 1996 (7 cases)


Case Caption:
Matter of Powers Associates v. New York State DHCR
Issues/Legal Principles:
Landlord failed to prove service of DC-2 notice; tenant awarded overcharges.
Keywords:
Fair Market Rent Appeal (FMRA)
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Charles Ramos
Date:
July 29, 1996
Citation:
NYLJ, page 25, col. 1
Referred Statutes:
9 NYCRR 2523.1
Summary:
Tenant took occupancy in 1979 as the first rent stabilized tenant to the previous rent controlled premises. On or about February 14, 1984 tenant filed an overcharge complaint with the DHCR. In June 1986 DHCR requested the landlord to submit a full rent history of the unit, including a copy of the DC-2 notice. (This is the document required to be served on the first rent stabilized tenant of an apartmentand informs the tenant that they are the first rent stabilized tenant). Landlord claimed not to have a copy of the DC-2 notice. In May, 1988 DHCR notified the landlord that it was converting the complaint into a Fair Market Rent Appeal (FMRA), that landlord had a right to submit comparability data with regard to other, similar apartments and requested proof of any vacancy improvements. DHCR claimed it sent additional notices to the landlord in July and August 1988. In October landlord responded that it did not keep records for 10 years and could not produce leases, rent ledgers or proof of vacancy improvements made immediately prior to the present tenant's occupancy. In January 1989 the District Rent Administrator issued an order reducing the rent from $450 a month to $241.07, effective June 1, 1979 and directed the landlord to pay back the overcharges or credit the tenant's future rents. The landlord filed a PAR (an appeal) and for the first time submitted receipts for various improvements. Landlord's PAR was denied and it filed an Article 78 (an appeal) and Justice Bruce Wright remanded the matter back to DHCR directing the agency to consider the documents concerning the renovations. The DHCR gave landlord an additional $26.87 per month due to improvements, making tenant's total overcharges $25,401.39. The landlord filed another Article 78 stating that it was aware of tenant's 1984 complaint, but was not aware that it was required to keep records for other apartments, that the DHCR's conversion of the complaint to a FMRA was arbitrary, that the DHCR erred when it decided the fair market rent solely upon the rent guidelines and should have considered comparable data and that the DHCR should refer to its own records pertaining to comparable rents because landlord was only required to keep records for four years. The Article 78 judge remanded the matter to the DHCR to establish a rational fair market rent that reflects "rents generally prevailing for similar housing accommodations in buildings located in the area" (RSC Section 2522.3). The court further directed the DHCR to refer to "Data compiled by the [landlord] from sources within the agency or without." DHCR appealed and the Appellate Division reversed and ruled that the Supreme Court judge erred when it shifted the burden of going forward with evidence concerning comparable rents to the DHCR because the agency is not required to do the landlord's work of assembling necessary documentation. The lower court also erred when it determined that the DHCR could not determine a fair market rent appeal solely upon the rent guidelines without the aid of comparable data because the tenant filed the complaint prior to April 1, 1984 and DHCR had a reasonable basis to apply the default procedures, and further the four-year limitation for record retention was not in effect at the time the tenant filed the complaint. The Court also ruled that landlord was not unfairly prejudiced by the DHCR's conversion of the overcharge complaint to a FMRA four years after the complaint had been filed. It was landlord who was at fault for failing to serve the tenant the DC-2 form. Had the landlord served this notice, the tenant might have filed the appropriate type of complaint. Until the tenant is served such notice, a FMRA remains viable. Since no notice was served, tenant had the right to file a FMRA in 1988 when the DHCR converted tenant's overcharge complaint into a FMRA.


Case Caption:
Matter of 902 Assoc. v. New York City Loft Board
Issues/Legal Principles:
Tenant is protected under loft coverage
Keywords:
Loft Law
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Beatrice Shainswit
Date:
July 29, 1996
Citation:
NYLJ, page 25, col. 4
Referred Statutes:
CPLR 7804(g)
Summary:
Loft Board denied landlord's application to recover tenant's loft unit and ordered landlord to direct a deed declaration concerning tenant's lot-line windows. Landlord appealed in an Article 78 to the Supreme Court. The Loft Board regulation at issue required the owner and the tenant to make every effort to permit every unit subject to the Loft Law (which tenant's is) to be in compliance with the Building Code. While deed restriction is not one of the enumerated alternatives in the regulation, the Appellate Division upheld the Supreme Court's order on grounds that there was no showing that the enumerated options were intended to be the exclusive means of bringing the unit up to code. The Court further noted that substantial evidence supported the Loft Board's conclusion that the deed restriction along with appropriate application to the Department of Buildings was likely to result in code compliance, resulting in coverage of the affected unit.


Case Caption:
Rafika Realty Corp. v. Davis
Issues/Legal Principles:
Landlord failed to file initial registration statement; rent reverts back to last rate under rent control.
Keywords:
rent registration
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Howard Sherman
Date:
July 30, 1996
Citation:
NYLJ, page 21, col. 1
Referred Statutes:
RSC 2521.1(a)(1); 2528.2(d); RSL 26-517-e
Summary:
The tenant's lease was for $600.00 per month. In 1984 the premises were registered with the DHCR as rent controlled at $118.54 per month. When the rent controlled tenant vacated, landlord did not file an initial apartment registration setting forth the new stabilized rent or serve the original stabilized tenant with a notice of initial registration. During a non-payment proceeding, landlord registered the unit belatedly and allegedly served the first tenant, but never served a copy of the registration on the current tenant. The reason the Appellate Term treated the alleged service of the initial registration on the first tenant as a nullity was due to the fact that landlord knew that the tenant no longer resided in the apartment. The Appellate Term concluded that since landlord failed to establish valid service of the initial rent registration upon either the tenant or her predecessor, Section 26-517(e) is not triggered and landlord is limited to recovery of the last rate of rent under rent control. The lower court's decision in favor of the landlord was reversed and the case remanded for a determination of tenant's overcharges.
Notes:
Rent Stabilization Law Section 26-517 holds that the failure to file a proper and timely initial rent registration bars an owner from collecting rent in excess of the last legal regulated rent but the filing of a late registration results in prospective elimination of such sanctions only. In other words, in this case, since the landlord did not properly serve the current tenant with the initial registration, the landlord could only collect $118.54 in rent (not the $600 in the lease) up to the point a proper filing and service is made. Once filing and service of the initial registration is proper, then landlord can begin collecting $600 in rent. However, if no notice was ever sent to the first stabilized tenant (DC-2 notice) or any subsequent tenant then the current tenant could file a Fair Market Rent Appeal with the DHCR. The current tenant's time period for doing so expires ninety days after the DC-2 notice is served.


Case Caption:
Valentine v. Mark
Issues/Legal Principles:
Willfulness of landlord in overcharging tenant entitles tenant to treble damages.
Keywords:
overcharges
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Marilyn Shafer
Date:
July 31, 1996
Citation:
NYLJ, page 21, col. 2
Referred Statutes:
RSC 2521.1(a)(1); 2528.2(d); RSL 26-517-e
Summary:
A DHCR order upheld (in an Article 78 proceeding) landlord's liability for overcharges and treble damages and directed landlord to roll back the rent to the lawful stabilized amount ($445.28 through July 1985) and subsequent leases were to be computed on that base rent. Landlords set the rent at $906.88 starting August 1985 and thereafter $976.25. Landlord had full knowledge of the DHCR order and chose to charge a higher amount. The lower court found that landlord failed to establish by a preponderance of the evidence that the overcharge was not willful. The Appellate Term upheld this finding of willfulness and upheld the award to tenant of treble damages. Landlord's claim for alleged damages to the premises at the time tenant surrendered possession was reinstated and remanded for a trial.


Case Caption:
Village Realty Partners LP v. Nejame
Issues/Legal Principles:
Landlord need not send rent controlled tenant notice to cure where tenant allegedly inflicted serious and substantial injury on apartment.
Keywords:
substantial alterations; service of petition
Court:
Civil Court, New York County
Judge:
Hon. Martin Shulman
Date:
July 31, 1996
Citation:
NYLJ, page 23, col. 1
Referred Statutes:
Rent and Eviction Regulation Section 2004.3; 2204.2(a)(1)&(2)
Summary:
Tenant's rent controlled apartment had a living room, kitchen, bedroom and bathroom. On February 26, 1996, without notice to landlord or permission, tenant hired a contractor who demolished the interior of the apartment by tearing down all partition walls, removed all fixtures except for the toilet and plaster was stripped. In short, the unit was gutted. Landlord began a Supreme Court action against tenant and that court issued a temporary restraining order enjoining the tenant from any future work on the apartment. The tenant's response was that she was exercising self-help remedy to remove slum-like conditions and restore the apartment to a habitable condition. While that case was pending, landlord served tenant a 30 day notice of termination on grounds that tenant violated substantial obligations of the tenancy under Section 2204.2 of the Rent and Eviction Regulations and that tenant committed a nuisance. No notice to cure was sent. Thereafter landlord served a holdover petition. Tenant's attorney argued that a notice to cure was necessary because the language "violation of substantial obligation of the tenancy" necessitates a notice to cure. The court disagreed. The full language of the subdivisions (a)(1) and (a)(2) speak of the tenant's willful violations of an obligation which inflicts serious and substantial injury on the landlord and malicious or gross negligence which substantially damages the unit. The court ruled that tenant's breach "could reasonably be construed" as a willful violation to the extent of inflicting serious and substantial injury, thereby omitting any requirement to serve a predicate notice to cure. The judge reserved for the trial court the issue of whether the tenant's acts legally constitute nuisance warranting an eviction. Tenant also moved to dismiss on grounds that she was not properly served the petition because, if the landlord knew the apartment was fully gutted, then the landlord knew she could not possibly be living there and it was not reasonable for the landlord to attempt service on the apartment knowing that tenant was not residing there. Tenant's attorney made this argument but no affidavit was submitted by tenant stating that she did not actually reside in the apartment after it was gutted. The court denied this portion of the motion, too.


Case Caption:
GSL Enterprises v. Lopez
Issues/Legal Principles:
Surviving partner fails to show evidence of emotional and financial commitment and interdependence with deceased prime tenant.
Keywords:
succession rights
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Arlene Hahn
Date:
July 31, 1996
Citation:
NYLJ, page 21, col. 1
Referred Statutes:
9 NYCRR 2204.6(d)(3)
Summary:
Surviving life partner sought succession rights to the rent controlled apartment as a nontraditional family member. The lower court held against the occupant. The Appellate Term upheld noting an absence of evidence of intermingled finances, joint ownership of property or any execution of documents formalizing legal obligations. Nor was there testimony from friends, family members or neighbors confirming the existence of a family-type relationship. Further the deceased tenant gave his sister a power of attorney during his last illness and executed a document indicating that he desired his sister to "inherit" the apartment. The court found that at best the evidence merely established a roommate/friend relationship. In a separate, but concurring opinion, Justice Helen Freedman deferred to the findings of the trial that all criteria for family membership set forth in the statute were not satisfied. But she disagreed that the evidence merely established a roommate/friend relationship. She noted that the couple lived together for eleven years, slept in the same bed, had a sexual relationship for at least part of the time and other indicia of a life time partnership. She felt if she had tried the case she would have found sufficient evidence to show the committed relationship reached the statutory standard.
Notes:
In proving a succession rights case for nontraditional family members, there is no statutory requirement that a couple's sex life must be explained. There are many married couples who rarely have sex and yet a surviving spouse is not required to discuss their sex life in a "traditional" sucession rights case. Neither the nature or extent of sexual relations should be at issue with a so-called nontraditional couple's succession rights case.


Case Caption:
Shore Terrace Cooperative v. Schwartz
Issues/Legal Principles:
Stipulation is vacated and non-payment petition dismissed for failing to name one of co-op tenants who owned the unit and for lack of specificity in the rent demand.
Keywords:
stipulations; three day notice; necessary party
Court:
Civil Housing Court, Kings County
Judge:
lower court: Hon. Callender
Date:
July 31, 1996
Citation:
NYLJ, page 24, col. 2
Referred Statutes:
9 NYCRR 2204.6(d)(3)
Summary:
Two tenants signed the occupancy agreement 16 years ago and purchased the shares to the co-op in both their names. In a non-payment proceeding, the co-op landlord failed to name one of the tenants in the three day notice and the petition, nor did it allege service of the papers on her. The tenants defaulted and moved pro se to vacate the default judgment. They signed a stipulation which amended the petition to name the female tenant as a respondent, waived personal jurisdictional defenses against both tenants, and agreed to certain rental amounts. They defaulted again, but retained an attorney who moved to dismiss the petition because the three day notice failed to name the female tenant as a necessary party and serve her and the demand merely stated a total sum owed for 6 months without any indication of what was due for each month during that time period. Other arguments included improper inclusion of late fees, a discrepancy in the amount of charges demanded and the notice failed to allege a date certain when to pay the maintenance. The court ruled tht it lacked jurisdiction to issue a judgment against the female tenant since she was not named in the notice or the rent demand and this is not an amendable defect. The notice was further defective for failing to particularize and articulate clearly the exact amount of maintenance due and miscellaneous charges. The court found good cause to vacate the stipulation since the tenants signed it unaware of their rights.



New York Law Journal, decisions for the week of July 22-26, 1996 (5 cases)


Case Caption:
Tobjy v. Zepnick
Issues/Legal Principles:
Landlord denied rent due to illegal apartment not listed in the certificate of occupancy
Keywords:
illegal apartment
Court:
Civil Court, Kings County
Judge:
Hon. Margaret Cammer
Date:
July 24, 1996
Citation:
NYLJ, page 24, col. 4
Referred Statutes:
Multiple Dwelling Law, section 301, 302, 325
Summary:
Landlord owned a two family house. Tenant rented out the basement apartment at $750 a month in rent, but failed to pay for 10 months. In a stipulation in Housing Court, tenant vacated the premises, but the court denied landlord rent on grounds that the premises was an illegal multiple dwelling. Landlord then sued in Civil Court to recover $7,500 in rent arrears. Because two prior Housing Court judges determined that leasing the basement apartment violated the multiple dwelling laws, thereby making it an illegal apartment, and because two prior courts denied landlord a right to the rent based on the illegal usage, this Court held that it was bound by res judicata and dismissed the landlord's complaint to collect the rent. The landlord pointed out to the court certain case decisions which allowed a landlord to collect rent despite the fact that those apartments were not listed on the certificate of occupancy (and therefore in violation of the multiple dwelling laws). Those courts noted that a landlord could still collect rent if the tenant failed to prove that their health or safety was endangered as a result of a lack of certificate of occupancy. The Court disagreed with these judicial exceptions and held that the legislature should enact a law permitting exceptions, that judges should not carve out exceptions themselves.


Case Caption:
City of New York v. Jones
Issues/Legal Principles:
Tenants evicted for their son's unlawful narcotics activity in apartment during tenants' absence.
Keywords:
illegal activity
Court:
Civil Housing Court, New York County
Judge:
Hon. Dubinsky
Date:
July 24, 1996
Citation:
NYLJ, page 22, col. 4
Referred Statutes:
none cited
Summary:
Landlord brought holdover proceeding to evict the tenants of record due to narcotics activity in their apartment. The tenants argued that they did not participate in the illegal activity or knew it occurred. The court granted landlord's request to exclude from the public testimony from its witness, an undercover agent, on grounds that the agent's identity would be compromised. The agent testified that a drug bust occurred pursuant to a search warrant and various drugs, drug paraphernalia, weapons and $10,000 cash was found in the apartment. The tenants' son was present during the bust. Tenants testified that they were away to visit a family member in South Carolina for several months. They said they left their daughter in charge of the apartment and that their son did not have permission to be present in the apartment. During the bust the son had an apartment key on him. The tenants denied knowledge of or participation in the son's activity. The judge asked if the tenants wanted to call their son as a witness, noting that arrangements could be made to have him come from jail. The tenants declined to call their son. The daughter, who was in the hallway, declined to testify. The court found the agent's testimony credible and that the apartment was used for illegal purposes on a large scale. Given the extent of the narcotics activity, the court found it hard to believe that the parents did not know of the activity. The court ruled it did not matter if the parents did not participate in the activity; they had a responsibility to keep the apartment free of such activity. The judge granted possession to the landlord.


Case Caption:
JD Realty Assoc. v. Scoullar
Issues/Legal Principles:
Landlord is granted discovery to question tenants as to rents accrued from landlord's predecessor-in-interest. Three-day rent demand reinstated despite its speculative nature.
Keywords:
rent demand; discovery
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Stallman
Date:
July 26, 1996
Citation:
NYLJ, page 21, col. 1
Referred Statutes:
none cited
Summary:
The lower court ruled that landlord's rent demand which stated "any and all arrears which may be due" for a 3-4 year period beginning in 1989 was too indefinite and equivocal to serve as a predicate notice to the consolidated non-payment proceedings and granted tenants' motion for summary judgment. The landlord was an assignee of the property and lacked knowledge as to the amounts owed or paid to its predecessors-in-interest. The Appellate Term reversed the lower court's summary judgment award and remanded the case. It also reversed the lower court's denial of landlord's motion for discovery to question the tenants as to the amounts of rent due. The Appellate Term also ruled that landlord's more recent itemized demand for rent should go forward at this time since those rents owed were not speculative and tenants had notice.


Case Caption:
1438 Third Avenue Assoc. v. Mizrahi
Issues/Legal Principles:
Lower court improperly computed rent and wrongly denied tenant's motion to vacate a default.
Keywords:
default judgment
Court:
Appellate Term, 1st Department
Judge:
lower court Hon. Grayshaw
Date:
July 26, 1996
Citation:
NYLJ, page 21, col. 2
Referred Statutes:
CPLR section 5015(a)
Summary:
The lower court denied tenant's motion to vacate a default judgment and the Appellate Term reversed on grounds that the tenants submitted sufficient documentary evidence of additional canceled rent checks relevant to the issue of the amount of rent actually owed. The appellate court held that the lower court improperly computed the rent for a period beyond a prior stipulation.


Case Caption:
Jane Street Company v. Suttoni
Issues/Legal Principles:
Estate's interest in rent stabilized apartment terminates at the expiration of the lease.
Keyswords:
succession rights
Court:
Appellate Term, First Department
Judge:
lower court Hon. Saralee Evans
Date:
July 26, 1996
Citation:
NYLJ, page 21, col. 3
Referred Statutes:
none cited
Summary:
Occupant alleged succession rights to rent stabilized apartment. The deceased prime tenant's lease expired by the time landlord brought a licensee proceeding. The lower court dismissed the petition on grounds that the landlord failed to name the estate as a party. The appellate court ruled that the estate's possessory claims terminated upon the expiration of the lease and therefore the estate was not a necessary party. The appellate court reinstated the petition and granted landlord discovery.


New York Law Journal, decisions for the week of July 15-19, 1996 (10 cases)


Case Caption:
Northtown Roosevelt Assoc. v. Christianson
Issues/Legal Principles:
Knowledge of tenant's pet imputed to landlord by tenant's open and notorious keeping of dog.
Keywords:
pets
Court:
Civil Housing Court, New York County
Judge:
Hon. Peter Wendt
Date:
July 17, 1996
Citation:
NYLJ, page 22, col. 4
Referred Statutes:
NYC Administrative Code section 27-2009.1(b)
Summary:
Landlord brought a holdover against the tenant for violating a substantial obligation of the lease by harboring a dog. The tenant admitted to having a small dog, but argued that the landlord waived its objections by failing to commence a proceeding within three months after learning of the dog's presence. Tenant and her daughter testified that a pomeranian puppy was bought on June 3, 1995 and immediately brought to the apartment. The tenant introduced the dog to neighbors, took it on daily walks through the building and that landlord's agent once saw the dog and let her children play with it. Further, the superintendent lived on the same floor as the tenant and regularly saw the dog. A neighbor also testified for the tenant. The landlord's witnesses, both agents, testified that they were not aware of the dog's presence until August or September, although there were some inconsistencies in their testimony. The court noted that the landlord never called the super as a witness to rebut tenant's allegations of his knowledge. A negative inference may be drawn against a party where that party fails to produce a witness who is available, has knowledge and would normally be expected to provide testimony favorable to the party. The court ruled that the tenant did not attempt to conceal the fact that she had a dog and in fact kept the dog in an open and notorious manner. The court concluded that the owner thus had knowledge of the dog's presence from June, 1995. Since the petition was served five months after the imputed knowledge, the court ruled that the landlord waived its objections to the dog by operation of statute.


Case Caption:
Francis v. Reid
Issues/Legal Principles:
Tenant not restored to possession in unlawful eviction, but awarded treble damages.
Keywords:
unlawful eviction
Court:
Civil Court, Westchester County
Judge:
Hon. Seiden
Date:
July 17, 1996
Citation:
NYLJ, page 26, col. 5
Referred Statutes:
RPAPL section 853
Summary:
Tenant moved by order to show cause to be restored to possession and sought treble damages for an unlawful eviction. Tenant paid a security deposit and rent in March. Rent was paid for April and May. At some point there was an oral agreement that the tenant would vacate June 25th and live off the remainder of the security deposit. When tenant did not vacate on June 25, landlord changed the locks, packed up tenant's belongings, moved them to storage and sent the storage receipt to tenant's mother's address by overnight carrier. The testimony was in dispute as to whether June 25th was a firm date or a target date to move. The court determined that absent legal process, the eviction was perforce unlawful. The court declined to restore the tenant to possession due to the animosity between the parties and the fact that the building lacked a certificate of occupancy as a two family home. The tenant claimed that during the eviction $10,000 in cash was taken and a $3,000 engagement ring. The court held that the tenant failed to prove such loss (no bank statements, no invoices of purchase, etc.). The court awarded tenant $500 damages because tenant had to live on a couch with her sister. The court found that treble damages were warranted because the purpose of the statute is to punish those who engage in wrongful conduct. Tenant was awarded $1,500.


Case Caption:
Simkowtiz v. Toniatti
Issues/Legal Principles:
Judgment in stipulation is automatically vacated upon payment of amount cited in judgment.
Keywords:
judgments
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Malatzky
Date:
July 17, 1996
Citation:
NYLJ, page 21, col. 2
Referred Statutes:
CPLR section 5019(a)
Summary:
There was a math error in the stipulation and judgment. The court noted that a judgment which is paid and satisfied of record ceases to have any existence since a defendant, by paying the amount due, extinguishes the judgment and the obligation thereunder. Landlord's motion to correct an error in the amount of the judgment, after the judgment was paid, was denied by the lower court and affirmed on appeal on grounds that the judgment for rent was timely satisfied and must be deemed vacated upon payment.
Notes:
One has to read through the lines in this decision because little of the facts were set forth. It appears that the error in the judgment was in the tenant's favor. Tenant paid the amount of the judgment and the courts ruled that this judgment was automatically vacated and cannot be resurrected upon such payment. If the stipulation stated that the amount of the judgment represented all rent owed through the date of the stipulation, then the doctrine of res judicata would prevent the landlord from bringing a plenary proceeding in civil court to collect any other rent monies allegedly owed but not included in the judgment.


Case Caption:
Parkchester Apartments Co. v. Drake
Issues/Legal Principles:
Stipulation of settlement did not preclude landlord from later seeking attorney's fees.
Keywords:
prevailing party
Court:
Appellate Term, 1st Department
Judge:
lower court Hon. Delores Thomas
Date:
July 17, 1996
Citation:
NYLJ, page 21, col. 1
Referred Statutes:
none cited
Summary:
A consent judgment in the non-payment proceeding was entered in landlord's favor. Presumably, by "consent judgment" the Appellate Term is referring to a stipulation of settlement signed between landlord and tenant. Presumably, the stipulation contained no clause specifying that each party waived attorney's fees. Absent such a provision, landlord could seek attorney's fees which it did because there was a lease with an enforceable attorney's fees clause. Apparently, the stipulation indicated that the landlord was the prevailing party in the proceeding. The lower court refused to grant the landlord attorney's fees and denied reargument on this issue. The Appellate Term reversed and remanded the matter for a hearing on attorney's fees.
Notes:
This case is a reminder that tenants entering into settlements should make sure that the stipulation includes a clause that would preclude the landlord from later coming back to seek attorney's fees.


Case Caption:
Amsterdam Avenue v. Montero
Issues/Legal Principles:
Although mailing of petition to hospital was proper, appellate court vacated tenant's default due to her hospitalization at time petition was commenced.
Keyswords:
default
Court:
Appellate Term, First Department
Judge:
lower court Hon. Howard Malatzky
Date:
July 17, 1996
Citation:
NYLJ, page 21, col. 2
Referred Statutes:
RPAPL section 735; CPLR section 5015(a)(1)
Summary:
Tenant defaulted in a non-payment proceeding. The testimony of the process server and proof of mailings supported the finding of the lower court that service was proper. A separate mailing was sent the tenant at Psychiatric Center where she was an inpatient. The lower court denied tenant's motion to vacate the judgment of possession. The Appellate Term exercised its discretion and reversed the lower court's ruling in light of the tenant's hospitalization at the time the nonpayment was commenced, finding the hospitalization to be an excusable default. The appellate court held that tenant's long term tenancy should not be forfeited for illness, especially where her sons were ready to pay all arrears.


Case Caption:
Gottlieb v. Aragones
Issues/Legal Principles:
Occupant's tender of 14 "rent" payments did not make a tenancy since payments were for "use and occupancy," not rent.
Keyswords:
waiver
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Peter Wendt
Date:
July 17, 1996
Citation:
NYLJ, page 21, col. 2
Referred Statutes:
none cited
Summary:
The rent stabilized tenant surrendered its rights and landlord brought a holdover proceeding against the remaining occupant as a licensee. After trial the lower court determined that landlord's acceptance of fourteen "rent checks" from the occupant manifested the landlord's acceptance of her as a tenant. The Appellate Term, however, held that a tenancy cannot be created by waiver or estoppel, and found insufficient evidence of intent on landlord's part to enter into a landlord-tenant relationship. Tenant's request for a lease in her own name was denied and she signed a writing agreeing to vacate by a date certain. Thereafter she sought more time to vacate during which her checks were accepted "without prejudice." The Appellate Term deemed these payments as "use and occupancy," not rent. Landlord's acceptance of these payments, without more, did not confer tenancy status upon respondent or establish a waiver of landlord's right to contest respondent's occupancy as a licensee.


Case Caption:
Jannarone v. Ware
Issues/Legal Principles:
Court would not vacate warrant against tenant who breached 3 stipulations and had history of chronic nonpayment.
Keyswords:
chronic non-payment
Court:
Appellate Term, 1st Dept.
Judge:
Lower court; Hon. Arlene Hahn
Date:
July 18, 1996
Citation:
NYLJ, page 21, col. 1
Referred Statutes:
none cited
Summary:
The Appellate Term affirmed the lower court's denial of tenant's motion to vacate the warrant on grounds that the tenant failed to comply with the payment terms of 3 stipulations and had a history of chronic non-payment. The Appellate Term held that the lower court did not abuse its discretion in denying the motion.


Case Caption:
Brodsky v. Davidsson
Issues/Legal Principles:
Court denies landlord's motion to "dismiss" its own proceeding.
Keyswords:
non-payment petition
Court:
Appellate Term, 1st Dept.
Judge:
lower court: Hon. Wildred O'Connor
Date:
July 18, 1996
Citation:
NYLJ, page 21, col. 2
Referred Statutes:
Article 7 of RPAPL
Summary:
Landlord brought a non-payment proceeding and made a motion to "dismiss" its own petition on grounds that the rent demand was improper, although the tenant did not object to the form of the demand. (The case does not make clear why the landlord seemed so intent on getting rid of its own case.) The tenant sought a jury trial and the Appellate Term ruled that the matter should proceed before the jury since a prior motion to strike the jury demand was denied and upheld on appeal. Tenant's counterclaim that the repairs were not done properly did not state a cause of action for harassment or intentional infliction of emotional distress.


Case Caption:
New York City Housing Authority v. Alexander
Issues/Legal Principles:
Niece of prime tenant in city-owned apartment entitled to hearing in Housing Court on succession rights claim.
Keywords:
succession rights
Court:
Appellate Term, 1st Dept.
Judge:
lower court Hon. Dubinsky
Date:
July 18, 1996
Citation:
NYLJ, page 21, col. 3
Referred Statutes:
none cited
Summary:
Occupant moved into the premises, a city-owned building, with her aunt, the tenant of record. The aunt vacated and occupant sought to succeed to the lease. There was a dispute as to if and when the tenant notified NYCHA of her niece's presence in the apartment or inclusion on the annual household composition and income statement. The lower court dismissed occupant's motion to amend her answer to include the affirmative defense of entitlement to the apartment. On appeal, the Appellate Term ruled that since there was no grievance proceeding held with NYCHA and because the occupant alleged that NYCHA had actual knowledge of her disclosed occupancy, she should be permitted to litigate her claim as a remaining family member in the Housing Court proceeding. The Appellate Court upheld the lower court's decision that the occupant's claim of breach of warranty of habitability was not related to the landlord's claim for possession of the premises and thus should be stricken.


Case Caption:
Feinberg & Gitlin v. Mauriello
Issues/Legal Principles:
Occupant fails to establish two-year primary residence with grandmother to attain succession rights
Keywords:
succession rights
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Arlene Hahn
Date:
July 19, 1996
Citation:
NYLJ, page 21, col. 4
Referred Statutes:
9 NYCRR 2204.6(d)
Summary:
Occupant sought to establish a right to succeed to the rent control apartment of his grandmother but he could only prove contemporaneous residence with her for 16 months prior to her removal to a nursing home. Unless the person asserting succession rights is a senior citizen, a two-year simultaneous residence with the prime tenant must be shown (the two years immediately prior to the prime tenant's vacatur or death). (Senior citizens seeking succession rights need only show a one-year contemporaneous co-occupancy).


New York Law Journal, decisions for the week of July 8-12, 1996 (12 cases)


Case Caption:
Blackjack Realty Corp. v. Romero
Issues/Legal Principles:
Vacatur of default dependent on tenant's payment of rent arrears
Keywords:
default judgment
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Arlene Hahn
Date:
July 9, 1996
Citation:
NYLJ, page 25, col. 5
Referred Statutes:
none cited
Summary:
Tenant defaulted and the lower court conditioned the vacatur of the default upon payment into court of a portion of the outstanding rent owed. The Appellate Term ruled that the court did not abuse its discretion in requiring the payment, particularly because five months elapsed before tenant sought to vacate the default. Apparently tenant paid the rent pending appeal, so the case was remanded to the judge for a trial. (The case doesn't indicate any other facts of the proceeding.)


Case Caption:
Simkowitz v. Birden
Issues/Legal Principles:
Trial judge improperly denies landlord adjournment or later opportunity to present the merits of the case.
Keywords:
failure to prosecute
Court:
Appellate Term, First Department
Judge:
lower court Hon. Walter Strauss
Date:
July 9, 1996
Citation:
NYLJ, page 25, col. 4
Referred Statutes:
none cited
Summary:
The nonpayment proceeding was dismissed for "failure to prosecute" when landlord's attorney suddenly got ill on the eve of trial. An associate unfamiliar with the case was denied an adjournment and landlord's subsequent motion to vacate the dismissal was also denied. The Appellate Term found the lower court's decision an "improvident exercise of discretion," because there is a strong preference that cases be decided on their merits (absent demonstrable prejudice). The court noted that the petition set forth a meritorious rent claim, the default was not wilful, tenant's attorney agreed to vacate the dismissal, and no history of delay in the prosecution of the case existed. The court reinstated the petition.


Case Caption:
Stahl Associates Co. v. Siegel
Issues/Legal Principles:
Judgment against tenant for failure to abate nuisance.
Keywords:
nuisance
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Walter Strauss
Date:
July 9, 1996
Citation:
NYLJ, page 25, col. 3
Referred Statutes:
none cited
Summary:
In a nuisance holdover, the tenant agreed to remove debris and garbage strewn around the apartments. Extensions of her time to comply were granted and finally the case was restored to the calendar when tenant still didn't clean up the mess. Based on photos and testimony, the lower court determined that the apartment's condition presented a health and fire hazard to tenant and other tenants. The Appellate Term upheld the lower court's decision to evict the tenant, noting the record had sufficient supporting evidence.


Case Caption:
Prominence Realty Corp. v. Trueblood
Issues/Legal Principles:
Tenant restored to possession after defaulting.
Keywords:
after-eviction
Court:
Appellate Term, 1st Department
Judge:
lower court Hon. Arlene Hahn
Date:
July 9, 1996
Citation:
NYLJ, page 25, col. 2
Referred Statutes:
none cited
Summary:
Rent controlled tenant for 27 years withheld two months rent based on lack of repairs. Tenant unintentionally defaulted at trial in the non-payment proceeding. Landlord's representative told him on the morning of the eviction that he would not be evicted if the rent was tendered in full. Later that day, landlord declined tenant's tender because the warrant had been executed and the landlord decided they wanted to keep possession of the apartment. The lower court exercised its discretion and restored the tenant to possession after the eviction when he tendered all arrears in court in certified funds. Appellate Term upheld the restoration.
Notes:
The general rule is that the landlord is not required to restore the tenant to possession after the warrant has been executed. Landlord can even accept the rent and still not be obliged to restore the tenant to possession. Case law has developed allowing judges to deviate from this harsh standard rule of law in appropriate circumstances, such as this case.


Case Caption:
Parkchester Apartments v. Rogers
Issues/Legal Principles:
Lower court did not abuse discretion by giving tenant one month to pay the arrears after landlord gave tenant extensions for 8 months.
Keyswords:
stipulations; attorney's fees
Court:
Appellate Term, First Department
Judge:
lower court Hon. Pierre Turner
Date:
July 9, 1996
Citation:
NYLJ, page 25, col. 1
Referred Statutes:
none cited
Summary:
Landlord had six stipulations with tenant over an 8 month period to stay the execution of the warrant if arrears of $8,000 were paid. Tenant paid ongoing use and occupancy while she pursued an application for an emergency rent grant from Department of Social Services. The lower court granted the tenant an additional one month stay which landlord objected to and appealed. During the appeal, landlord received and accepted two DSS checks which satisfied the arrears. Landlord continued its appeal because it wanted attorney's fees. The Appellate Term denied fees on grounds that the stipulations did not provide for either party to recover any attorney's fees.


Case Caption:
Prospect International Corp. v. Cavallaro
Issues/Legal Principles:
Occupant who came into possession by consent of tenant cannot be a squatter.
Keyswords:
squatter; licensee
Court:
Appellate Term, 9th & 10th Judicial Districts
Judge:
lower court: Hon. Null
Date:
July 9, 1996
Citation:
NYLJ, page 29, col. 6
Referred Statutes:
RPAPL sec. 713
Summary:
Occupants entered into possession by agreement with the tenants, therefore they were not squatters. Further, occupants were not licensees whose license has been terminated because it is not within a landlord's power to terminate a license granted by tenants. The proof at trial showed occupants were assignees of the tenants, although without landlord's consent. The court held that landlord's remedy was to maintain a summary proceeding against the tenant-assignors. Landlord's failure to name the tenants as parties to this summary proceeding required its dismissal.


Case Caption:
DPHD v. Livingston
Issues/Legal Principles:
Managing agents are "owners" in HP proceeding
Keyswords:
owner
Court:
Appellate Term, 2nd & 11th Judicial Districts
Judge:
lower court: Hon. Harriet George
Date:
July 9, 1996
Citation:
NYLJ, page 29, col. 4
Referred Statutes:
Housing Maintenance Code sec. 27-2004(45); Multiple Dwelling Law sec. 4(45)
Summary:
In HP proceeding the tenant-petitioner obtained a judgment against the respondents for failure to provide heat and hot water. The respondents moved to vacate the judgment on grounds that they were not "owners" as defined by the statutes. The court held that a managing agent is an owner under the relevant statutes. Further a corporate officer is an agent whether or not the person is involved with the operations of the building. In this case, one of the respondents was the managing agent, and therefore an owner, and the other was a principle of the corporation who was intimately involved with the day-to-day operations of the building. Therefore both were subject to the fines imposed by the lower court.


Case Caption:
255 Eastern Parkway Assoc. v. Quinones
Issues/Legal Principles:
Landlord denied discovery in non-primary residency proceeding
Keyswords:
discovery
Court:
Appellate Term, 2nd & 11th Judicial Districts
Judge:
lower court: Hon. Baynes
Date:
July 9, 1996
Citation:
NYLJ, page 29, col. 5
Referred Statutes:
none cited
Summary:
The Appellate Term upheld the validity of the notice of nonrenewal of lease sent to alleged non-primary residents. The court denied landlord's motion to conduct discovery because the tenants provided substantially all the information sought by the landlord in tenants' motion papers .
Notes:
Landlords almost always get discovery in non-primary residency cases. This means they can ask the tenant questions under oath before trial, and also request and receive documents from the tenant relating to the claim. In this case, the tenants attached as exhibits to their motion almost all documents landlord requested and this excused the tenants from oral questioning under oath. Many times, however, tenants are not able to produce all the documents or their case may be compromised by just producing some of the documents. Although this case is good for tenants, be wary: don't assume by this case that if a tenant produces all the documents requested in motion papers that no oral deposition will occur. That's not necessarily true.


Case Caption:
Laren v. Chakranarayan
Issues/Legal Principles:
Landlord cannot recover cost of painting apartment from tenant.
Keywords:
painting
Court:
Appellate Term, First Department
Judge:
lower court Hon. Margaret Taylor
Date:
July 12, 1996
Citation:
NYLJ, page 25, col. 1
Referred Statutes:
Housing Maintenance Code of Administrative Code of City of New York, Section 27-2013(b)(2)
Summary:
Landlord sued rent controlled tenant in small claims court for the cost of painting tenant's apartment in 1990 and 1994. The court held that landlord was not entitled to compensation directly from the tenant, and landlord should apply to the DHCR for an application for an increase in the maximum rent.
Notes:
Landords are required (if asked by tenants) to paint the apartment every three years. They are also responsible for paying for this service. It is strange that the Appellate Term would advise landlord to seek an increase in rent from the DHCR for a paint job; seemingly, the DHCR would deny such a request.


Case Caption:
Centennial Restorations Co. V. Wyatt
Issues/Legal Principles:
Landlord has one year to restore a case to calendar before the case can be dismissed for failure to prosecute.
Keywords:
failure to prosecute
Court:
Appellate Term, First Department
Judge:
lower court Hon. James Grayshaw
Date:
July 12, 1996
Citation:
NYLJ, page 25, col. 2
Referred Statutes:
22 NYCRR Section 208.14(c)
Summary:
In June, 1994 landlord moved to mark the holdover proceeding "off calendar." No appeal was taken from that order. Seven months later tenant moved to dismiss the petition for failure to prosecute. The court held that the tenant's motion was premature since landlord had one year to move for restoration from June, 1994 to avoid an automatic dismissal.


Case Caption:
Ellis Avenue Corp. V. Diaz
Issues/Legal Principles:
Stipulation vacated due to unexplained overcharge.
Keywords:
overcharge
Court:
Appellate Term, First Department
Judge:
lower court Hon. Anthony Fiorella
Date:
July 12, 1996
Citation:
NYLJ, page 25, col. 5
Referred Statutes:
none cited
Summary:
Pro se tenant signed a stipulation in a nonpayment proceeding. Later she retained the services of a legal organization who moved to vacate the stipulation on grounds of overcharge. Since landlord failed to explain the excessive increase in rent from the DHCR records of the prior rent, the court considered this reason "ample good cause" to set aside the stipulation and return the parties to their former position.


Case Caption:
Rodriguez v. Hongford Realty Corp.
Issues/Legal Principles:
Vacatur of landlord's default allowed to enable dispute to be resolved on its merits
Keywords:
default judgment
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Peter Wendt
Date:
July 12, 1996
Citation:
NYLJ, page 25, col. 5
Referred Statutes:
none cited
Summary:
Landlord unintentionally defaulted and was less than one-half hour late in appearance on the adjourned trial date of the HP proceeding. The Appellate Term vacated the default on grounds that it is general policy to "resolve disputes on their merits whenever possible." Landlord's defnese was economic infeasibility with respect to structure repairs necessary to restore the vacated premises.


New York Law Journal, decisions for the week of July 1-5, 1996 (7 cases)


Case Caption:
Harlington Realty Corp. v. Polakovich
Issues/Legal Principles:
Tenants default in non-payment proceeding cannot later raise issues of constructive eviction in subsequent plenary suit by landlord for rent.
Keywords:
res judicata
Court:
Appellate Term, 2nd & 11th Judicial Districts
Judge:
lower court: Hon. Weinstein
Date:
July 2, 1996
Citation:
NYLJ, page 29, col. 3
Referred Statutes:
none cited
Summary:
The Appellate Term affirmed the lower court's awarding landlord the unpaid rent and costs to repaint and repair the apartment after tenants vacated plus legal fees. Tenants' pro se answer sounded in conversion (unlawful retention of property). They retained a lawyer and moved to amend their pleading to include a counterclaim for wrongful eviction, treble damages and conversion. The Appellate Term denied the tenants' motion because they defaulted in a prior nonpayment proceeding and never appealed or moved to vacate that judgment. Therefore they are barred from litigating the issues concerning wrongful eviction and damages arising from those acts under the doctrine of res judicata. But the Appellate Term affirmed the lower court's permitting the tenants' claim for conversion. Apparently, this claim arose after the non-payment claim.


Case Caption:
Fourth Avenue Owners Corp. v. Geshwind
Issues/Legal Principles:
Co-Op Corp. recovers maintenance arrears in Supreme Court contrary to tenant's claim that the issues should be heard in Housing Court.
Keywords:
maintenance arrears
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Charles Ramos
Date:
July 1, 1996
Citation:
NYLJ, page 29, col. 2
Referred Statutes:
none cited
Summary:
Plaintiff co-op was granted summary judgment for $24,547.04 for maintenance arrears. Defendant attempted to claim that plaintiff did not abide by a stipulation in Housing Court in an earlier, separate proceeding and that the Housing Court should deal with the issue of maintenance owed, but the Supreme Court and the Appellate Division rejected this argument.


Case Caption:
Scharfman v. Aleman
Issues/Legal Principles:
Section 8 tenant is not liable to pay subsidized portion of rent to landlord even if govt. agency refuses to.
Keywords:
Section 8
Court:
Civil Housing Court, Kings County
Judge:
Hon. Gould
Date:
July 3, 1996
Citation:
NYLJ, page 32, col. 1
Referred Statutes:
Civil Court Act 110
Summary:
In a federal case it was determined that a landlord cannot recover more than the share of rent for which a Section 8 tenant is responsible in a summary proceeding. Thus, tenants are not liable by federal law for the subsidized portion of the rent if the subsidizing agency fails to pay it. For a period of 9 months, New York City Housing Authority (NYCHA) withheld payment of the rent subsidy in an agency decision to terminate tenant's subsidy for those months. Landlord impleaded NYCHA (i.e., made the agency a party to the proceeding) and wanted the court to rule that either NYCHA or the tenant must pay the subsidized portion of the rent for the 9 months. The court ruled that although it was proper to implead NYCHA, but this was only to assist the tenant in furnishing documents to correctly identify the tenant's rent. The court ruled that Housing Court has no jurisdiction to compel NYCHA to pay the subsidy, and federal law precluded the tenants from paying.


Case Caption:
Shafron v. Camardella
Issues/Legal Principles:
Landlord cannot evict Tenant without legal process
Keywords:
illegal eviction
Court:
Civil Court, Westchester County
Judge:
Hon. Scher
Date:
July 3, 1996
Citation:
NYLJ, page 33, col. 1
Referred Statutes:
RPAPL 853
Summary:
After tenant's lease expired, tenant became a month-to-month tenant. Tenant sued Landlord for illegal eviction and Landlord admitted to removing tenant's possessions to the street, but claimed the lease permitted self-help in the event of non-payment of rent. The court held that in New York a landlord may not evict a tenant without benefit of legal process, notwithstanding the lease provision and a case cited by landlord allegedly supporting a self-help eviction. The court rejected landlord's argument and granted tenant's motion for summary judgment and set the matter down for a trial on tenant's damages.
Notes:
The Administrative Code of the City of New York, Section 26-521 provides that "it shall be unlawful for any person to evict or attempt to evict an occupant of a dwelling unit who as lawfully occupied the dwelling unit for thirty consecutive days or longer..."


Case Caption:
521 East 72nd St. Realty Company v. Weltsek
Issues/Legal Principles:
Surviving life partner fails to show financial interdependence to succeed to rent control lease
Keywords:
succession rights
Court:
Civil Court, New York County
Judge:
Hon. Peter Wendt
Date:
July 3, 1996
Citation:
NYLJ, page 29, col. 4
Referred Statutes:
NYCRR sec. 2204.6(d)(3)(i)
Summary:
Tenant of record to rent controlled apartment died and his gay life partner sought to establish succession rights as a "non-traditional" remaining family member during landlord's licensee proceeding against the respondent. The standard of proof includes a showing of emotional and financial commitment and interdependence. The court ruled that no such financial interdependence was shown: the partners maintained separate checking accounts, had no joint bank account, received separate government benefits, received separate food stamps, although household bills were split down the middle. The court further found that the deceased tenant treated his mother's home in Queens as his "family" home since he was registered to vote there and had a telephone listing there. The court believed that the couple were lovers but that their relationship did not rise to the standard necessary under the statute for the survivor to attain succession rights. The respondent also argued that landlord accepted money orders from him after the tenant's death, and thus accepted him as a tenant. The money orders, however, were in the name of the rent controlled tenant and therefore didn't constitute a waiver by landlord.


Case Caption:
Juarez et al v. Wavecrest Management Team et al
Issues/Legal Principles:
Landlords not liable for lead paint poisoning if they have no notice of a child's residence in t he apartment
Keywords:
Lead paint
Court:
Court of Appeals
Judge:
Deciding Judge: Chief Judge Judith Kaye
Date:
July 3, 1996
Citation:
NYLJ, page 25, col. 1
Referred Statutes:
Administrative Code of NYC, sec. 27-2013(h);
Summary:
This case was brought on behalf of a child suffering from lead poisoning and presented the court with the first opportunity to consider the liability of a landlord who allegedly failed to comply with the lead abatement provision of the law. The issue before the court was whether the law obliged owners to ascertain whether a child six years or younger resides in a building containing hazardous levels of lead, and further obliged owners to inspect those units for dangerous lead conditions. The court ruled that to determine liability the plaintiffs had to prove that the owner had actual or constructive notice that a child under six resided in the building. If notice is proven, the law provides that the owner is chargeable with notice of any hazardous lead condition in the apartment. In this case, it was proven that a lead hazard existed in the unit and the landlord made no attempt to remedy it and that the hazard caused damage to the child. The sole issue was whether the owner knew a child resided in the unit. Despite a contrary lease provision, the tenant sublet its unit to the plaintiff and her two infant daughters for four years. Plaintiff complained to the tenant that the paint was peeling and her children were eating it, but she never complained to the owner. One of the children was diagnosed as having lead poisoning in 1988. The City Health Department took samples of the paint and then issued an order to abate nuisance to the owner. The order noted that a child resided in the apartment and that the unit had contaminating levels of lead paint. Despite subsequent violation notices, the landlord did nothing and the lead levels increased by 1989. Plaintiff sued the original owner, managing agent and successive owner, and was granted summary judgment with a finding by the court that there was no evidence that the owner took any steps to alleviate the conditions. On appeal, the Appellate Division reversed the decision with respect to all defendants except the original owner who, the court concluded, had an affirmative duty to inspect and repair. The Court of Appeals ruled that this owner was, however, not liable unless he had actual or constructive notice that a child under seven resided in the apartment. The Court remanded the case for a hearing on the factual issue of whether this owner did indeed have notice that the infants resided in the unit. The Court of Appeals thereupon engaged in a long and fruitful analysis of the background of the law, liability under the law, notice requirements under the law and causation issues.


Case Caption:
Sheehan v. Saunders
Issues/Legal Principles:
Appellate Court won't overturn trial court's abatement award unless award is not supported by the record.
Keywords:
abatements
Court:
Appellate Term, 1st Dept.
Judge:
lower court Hon. Malatsky
Date:
July 5, 1996
Citation:
NYLJ, page 27, col. 2
Referred Statutes:
RPL sec. 235-b
Summary:
Tenants appealed on grounds that the abatement awarded in a breach of habitability case was inadequate. The Appellate Term held that damages in such cases are not susceptible to precise determination and the evaluations made by the trial judge should not be disturbed unless clearly erroneous or without support in the record. Tenant tried unsuccessfully to get a greater recovery based on landlord's breach of a prior stipulation, but the court held that the stipulation resolved all rent and repair issues for those periods and cannot be resurrected now.