Housing Court Decisions June 1996

edited by Colleen F. McGuire, Esq.

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New York Law Journal, decisions for the week of June 24-28, 1996

Issues/Legal Principles: DHPD has original jurisdiction on Mitchell-Lama apartments concerning succession rights claims
Keywords: succession rights
Caption: Lindville Housing co., Inc. v. McGann
Court: Appellate Term, First Dept.
Judge: lower court: Housing Court Judge Howard Trussel
Date: June 24, 1996
Citation: NYLJ, page 25, col. 6
Referred Statutes: 28 RCNY sec. 3-02(p)(8)
Summary: The Appellate Term vacated the lower court's finding of facts and law in this non-payment proceeding with respect to a judgment of possession for the landlord, but upheld the judgment for rent arrears. The occupant was seeking succession rights, and the lower court dealt with the issue, despite lacking jurisdiction to do so because the premises are a Mitchel-Lama apartment, and DHPD has original jurisdiction on this issue. The Appellate Term also noted it was inappropriate to rule on a succession rights issue in a non-payment proceeding because this must be the subject of a holdover proceeding.

Issues/Legal Principles: Lessees cannot turn commercial premises into a multiple dwelling
Keywords: "group home"
Caption: 2011 Third Avenue Corp. v. Fifth Avenue Community Center of Harlem, Inc.
Court: Appellate Term, First Department
Judge: lower court: Judge Saralee Evans
Date: June 24, 1996
Citation: NYLJ, page 24, col. 5
Referred Statutes: none cited
Summary: The tenant was the net lessee of the entire building and leased various floors as a "group home" for the homeless. This is a type of public insitutional facility not encompassed within the definition of a multiple dwelling. The net lessee's lease expired, and it lost funding to continue the project. The net lessee owed rent and the landlord brought a non-payment proceeding. The occupants claimed it was not a group home, but that they were leased individual apartments on a monthly basis, thereby making the premises a multiple dwelling. The occupants moved to dismiss on grounds that the petition failed to allege the premises were a multiple dwelling. The Appellate Term reversed the lower court and found that the net lessee could not turn the commercial premises into a residential multiple dwelling by violating its own lease terms and that a group home was not a multiple dwelling.

Issues/Legal Principles: DHCR upholds rent controlled status
Keywords: DHCR appeals
Caption: Matter of Felton v. Halperin
Court: Appellate Division, 2nd Department
Judge: lower court: Judge Barasch
Date: June 25, 1996
Citation: NYLJ, page 30, col. 4
Referred Statutes: none cited
Summary: When Landlord bought the building, built before 1947, he was told a tenant lived there, but was not told that the tenant was rent controlled, and the prior owner had not registered the apartment as rent controlled. When Landlord served a notice of termination, the tenant's daughter filed a complaint with the DHCR who determined that the apartment was rent controlled. Through various appeals and re-openings of the case, the DHCR consistently determined the apartment was rent controlled. The Landlord filed an Article 78 with the Supreme Court (a form of appeal) arguing that the proof showed Tenant lived elsewhere. The court, however, found that based on the record below the DHCR's decision was not "arbitrary or capricious." There were almost no facts presented in this case for a reader to determine the actual succession issues involved.

Issues/Legal Principles: Tenant's unreasonable noise constitutes nuisance.
Keywords: nuisance
Caption: Evergreen Associates v. Calderon
Court: Appellate Term, 2nd & 11th Jud. Dist.
Judge: lower court: Judge Harriet George
Date: June 25, 1996
Citation: NYLJ, page 34, col. 1
Referred Statutes: none cited
Summary: Landlord's judgment of possession upheld on appeal on grounds that the proof established that tenant interfered with the comfort of the other other tenants by making unreasonable noise, thus creating a nuisance. No facts of the case were provided in the appellate decision.

Issues/Legal Principles: One isolated incident is not a nuisance
Keywords: nuisance
Caption: Melbourne Leasing Co. v. Feggans
Court: Civil Court, Queens County
Judge: Judge Greenbaum
Date: June 26, 1996
Citation: NYLJ, page 31, col. 1
Referred Statutes: RSC sec. 2524.3
Summary: Tenant's son was arrested in an incident with the building's security officer when he and friends were drinking beer behind the building. The criminal case was adjourned in contemplation of dismissal. Thereafter Landlord served a termination notice. The court ruled that a nuisance is a continually recurring course of conduct that threatens the comfort and safety of other tenants. The behavior must consist of ongoing objectionable conduct. The court ruled that one isolated incident does not make a nuisance. The Landlord attempted to allege at trial other acts that occurred after the termination notice was served, but the court ruled those acts must be subject to a new termination notice, and Landlord cannot rely on subsequent acts not alleged in the initial notice as grounds to evict.
Notes: The principle that a tenant cannot be evicted for acts not set forth in a termination notice was established by the Appellate Term, First Department in Fenwick v. Price, NYLJ, June 4, 1991, p. 22, c. 2.

Issues/Legal Principles: Co-op tenant cannot abatement if not residing in apartment
Keywords: warranty of habitability
Caption: 144-16 35th Avenue Tenants Corp. v. Ip
Court: Civil Housing Court, Queens County
Judge: Judge Ellis Franke
Date: June 26, 1996
Citation: NYLJ, page 31, col. 2
Referred Statutes: RPL sec. 235-b
Summary: Landlord co-op corporation commenced a non-payment proceeding against tenant shareholder and undertenant for $6,330.00 in rent arrears. The tenant answered that leaks were not promptly repaired by the co-op and sought an abatement for breach of the warranty of habitability. The tenant did not reside in the apartment, and claimed that the undertenant's vacatur was due to the leaks. The tenant relied on Matter of West 13th Street Corp. v. Gerevitz for the principle that a tenant shareholder who does not personally occupy the premises, but sublets, can still assert a counterclaim for breach of the warranty of habitability. The court, however, disagreed with the tenant's interpretation of that case, noting that Gerevitz ruled that the breach of warranty was limited to those in occupancy, such as a subtenant in actual occupancy. The tenant argued that in Gerevitz the shareholder received all rent from that subtenant and here the subtenant vacated without paying rent. But the court refused to extend the Gerevitz holding to this tenant simply because he suffered a rental loss and the loss of his subtenant.

Issues/Legal Principles: Landlord's comparable apartments data insufficient to determine fair market rent; In a fair market rent appeal, Landlord is not exempted from law requiring Landlords to keep rent and registration records for only four years.
Keyswords: fair market rent appeal
Caption: Matter of Chios Realty Co. v. DHCR
Court: Supreme Court, Queens County
Judge: Judge Polizzi
Date: June 26, 1996
Citation: NYLJ, page 30, col. 3
Referred Statutes: RSC sec. 2522.3(3); RSL sec. 26-516(g); RSL sec. 513(d) and 517; RSC sec. 2521.1(a)(1)
Summary: Tenant, the first Rent Stabilized tenant at the premises, filed a fair market rent appeal on May 31, 1985 with the DHCR. His rent was $500 and the owner refused to supply him information about the prior tenant's rent. Landlord's DHCR answer included that the tenant knew the prior tenant was rent controlled and that the rent was lower than that of other similar apartments and was fair. Tenant responded that he didn't know the prior tenant was rent controlled. In a sur-reply the Landlord stated that two apartments in the building rented for $481.50 and $528, and another apartment elsewhere nearby rented for $525. The DHCR advised the owner that no apartment registration had been made in 1984. The owner submitted the registration showing the rent in 1984 was $256.70. The Landlord did not submit proof that he served Tenant the DC-2 or RR-1 forms that which would have informed Tenant that he was the first Stabilized tenant. The DHCR advised Landlord to submit rent data for all apartments in the same line, comparable rent data, and proof they were the legal rents in order to determine the fair market rent based on a comparability study. The material sent by Landlord was insufficient. The DHCR set the fair market rent at $353.19 pursuant to Special Guidlines Order #16 (rather than the owner's comparability data), a decision upheld in Landlord's PAR appeal. Landlord appealed in an Article 78 claiming that it didn't know until 1991 that DHCR would treat Tenant's complaint as a fair market rent appeal and that DHCR improperly required Landlord to produce records more than four years old, in violation of RSL sec. 26-516(g). The DHCR argued that Landlord was notified that the matter would be treated as a fair market rent appeal, that the owner did not submit proper records and that RSL sec. 26-516(g) applies to an overcharge case, not a fair market rent case. The court found that Landlord was given proper notice that the case was being treated as a fair market rent appeal, that Landlord failed to establish it sent Tenant the DC-2 and RR-1 forms, and that Landlord's submission of a list of three apartments' rent without proof that these were the legal rents, did not constitute material usable for determining the proper rent based on a comparability study. Because Landlord was unable to produce proper rent registration documents, the four year limitation on the production of records was inapplicable. Further, DHCR is not required to research its files to establish that the apartments were properly registered. The burden to supply information necessary to conduct a comparability study is on owners. In the absence of comparable data, the DHCR properly used its own methods and determined the fair market rent based on its Special Guidelines.

Issues/Legal Principles: Rent reductions upheld on appeal.
Keyswords: rent reductions
Caption: Matter of Jemrock Realty v. Anderson
Court: Appellate Division, First Department
Judge: Justice Feuerstein
Date: June 27, 1996
Citation: NYLJ, page 26, col. 2
Referred Statutes: none cited
Summary: Rent reductions were imposed by the DHCR for service reductions, including an inoperative elevator, defective fire door and improperly weather-sealed and non-maintained windows. The Appellate Division upheld the DHCR decision following Landlord's Article 78 proceeding (appeal) against the DHCR.

New York Law Journal, decisions for the week of June 17 through June 21, 1996

Issues/Legal Principles: Rent Stabilized apartment deregulated by 1993 law.
Keywords: high income deregulation
Caption: Blum v. Graceton Estates, Inc.
Court: Appellate Division, Second Dept.
Judge: lower court: Supreme Court Judge Charles Ramos
Date: June 17, 1996
Citation: NYLJ, page 28, col. 5
Referred Statutes: Unconsolidated Laws sec. 8625-a
Summary: In 1988 the plaintiffs became rent stabilized tenants through a stipulation of settlement. Thereafter the landlord deregulated the apartment due to the tenant's high income. Plaintiff sued claiming that they were entitled to a continued right to the apartment at a rent stabilized rate. The lower court dismissed their complaint and the Appellate Division affirmed on grounds that a rent stabilized lease may be terminated on various grounds not the fault of the tenant, one of which is the recently enacted (1993) Rent Regulation Reformation Act of 1993. This Act provides that a vacant rent stabilized apartment can be deregulated if it rents for $2,000 or more per month, or an occupied rent stabilized apartment can be deregulated where the rent exceeds $2,000 per month and the tenant's annual income exceeds $250,000. Apparently, the tenants fit into this latter category.

Issues/Legal Principles: Succession rights for wife whose marriage to husband occurred 13 days prior to his death.
Keywords: succession rights
Caption: Westbeth Corp. v. Castagna
Court: Civil Housing Court, New York County
Judge: Judge Howard Malatzky
Date: June 19, 1996
Citation: NYLJ, page 28, col. 6
Referred Statutes: 24 CFR sec. 46ff and RSC sec. 2523.5(b) & 2520.6(o)
Summary: The apartment was exempt from rent regulation as it was a HUD regulated building. Thirteen days after the respondent married the tenant of record, he died. Landlord brought a licensee proceeding claiming the respondent was not entitled to succeed to her husband's lease and that the marriage was arranged solely for her to make a succession rights claim. The court ruled that the rent stabilization law is applicable by analogy due to a "strong presumption" that state law is not pre-empted by federal law, "especially in areas which have traditionally been governed by state law," such as landlord-tenant law. The court examined the succession rights statute and noted that the two-year simultaneous primary residency requirement (one year for senior citizens or disabled) may be for a lesser period if the commencement of the relationship is for less than two years. Thus, the court found that the respondent's marriage to the deceased prime tenant allowed her to succeed to the lease even though the commencement of their relationship began a mere 13 days prior to his death. With respect to the landlord's attempt to disparage the marriage by pointing out that there was a 26-year age difference and his health was poor at the time of the marriage, the court ruled that the statute "requires no examination of the motives of successor tenants nor does it require that a minimum period of time elapse after the inception of the family relationship in order for succession rights to ripen."

Issues/Legal Principles: Two apartments require service of two petitions
Keywords: description of premises
Caption: Buckley v. Zagorski
Court: Civil Court, Kings County
Judge: Judge Finkelstein
Date: June 19, 1996
Citation: NYLJ, page 29, col. 3
Referred Statutes: RPAPL sec. 713(5), 741(3) & 735
Summary: Landlord claimed that the residential unit comprised the entire second floor of the building, while Tenants claimed that the second floor consisted of two separate and distinct apartments. Tenants claimed that Landlord should have brought two separate petitions instead of a single petition. The Tenants constructed and placed a central entrance door in the second floor hallway which prompted Landlord to claim that this single entrance created a "private single unit." Tenants stated that the construction was made for safety and that when this safety door is opened there are two separate and distinct apartments with two separate entrances, thus requiring two separate petitions. The court took judicial notice that previously Landlord had brought the Tenants to court and served two separate petitions for the two apartments and that DHCR had two registrations for the two apartments. The court found that two separate apartments existed and that RPAPL 741(3) requires the petition to describe the premises from which removal is sought and that the single petition did not properly describe the premises. The single service of the petition also failed to comply with RPAPL sec. 735 service requirements.

Issues/Legal Principles: Estate of deceased Rent Stabilized tenant does not become the "tenant of record"
Keywords: non-primary residence
Caption: 148-154 Columbus Avenue Partners v. Wagenknecht
Court: Civil Court, New York County
Judge: Judge Saralee Evans
Date: May 22, 1996
Citation: NYLJ, page 28, col. 5
Referred Statutes: Estate Powers & Trust Law, sec. 13-1.1(a)
Summary: Landlord brought a holdover based on non-primary residence against the executrix of the tenant of record who had died eight months before the lease expired. The Landlord served a non-renewal notice on the tenant's estate. The Landlord argued that the executrix stepped into the shoes of the tenant while the respondent (the occupant in possession) argued that the lease passed to the estate as mere personal property and the executrix never became a prime tenant. The court ruled that an estate does not become a full-fledged tenant, but rather manages the decedent's leasehold interest and that the estate's right is limited to the life of the lease. The court dismissed the petition on grounds that the petition failed to state a cause of action because a non-primary residence claim cannot be asserted against either a deceased tenant or against an estate representative in tenant's stead.

Issues/Legal Principles: Landlord's acceptance of rent does not reinstate an illegal usage tenancy
Keywords: illegal usage; waiver
Caption: Hudsonview Co. v. Jenkins
Court: Civil Court, New York County
Judge: Judge Stallman
Date: June 19, 1996
Citation: NYLJ, page 27, col. 4
Referred Statutes: RPAPL sec. 711(5), 715(1);
Summary: Tenant was arrested after police obtained cocaine, ammunition and other narcotics-related materials during a search of the federally-subsidized premises in December, 1994. However, after Tenant's arrest Landlord accepted Tenant's rent and even signed a one-year lease renewal for a term beginning July 1, 1995. On January 30, 1996 Landlord began a nonpayment proceeding for rental arrears from August, 1995. It was dismissed on March 4, 1996 when Landlord failed to appear in court. On March 9, 1996 Landlord commenced a holdover proceeding on grounds of illegal usage. The issue for the court was whether Landlord waived its right to maintain an illegal use eviction proceeding by accepting rent, renewing the lease or commencing a nonpayment proceeding after serving a notice of termination. The court found that a waiver argument is conceptually inapplicable to an illegal use proceeding because such this type of proceeding involves a public policy to protect the safety and welfare of neighboring tenants and the community. The landlord has a statutory duty to end the illegal conduct. To accept a rent waiver argument would be "an open invitation to bribery or intimidation" by the tenant against the landlord, or "collusion between the parties, to the detriment of the community."

New York Law Journal, decisions for the week of June 10-14, 1996

Issues/Legal Principles: Tenancy must be established by facts, not mere documents
Keywords: estoppel
Caption: Bushwick Avenue Assoc. v. Soriano
Court: Appellate Term, 2 & 11th Dept.
Judge: lower court: Rivera
Date: June 14, 1996
Citation: NYLJ, page 36, col. 3
Referred Statutes: none cited
Summary: Tenant in this holdover proceeding was listed as a co-tenant in a prior non-payment proceeding. The court in the non-payment case determined that the Tenant was not a tenant at the time of the proceeding. The Tenant claimed tenancy rights, in part on his being designated as a co-tenant in the prior case. The court said a trial was needed to determine his rights, if any, and that he could not rely on the prior case designation alone.

Issues/Legal Principles: Notification of legal rent required to be given to purchasers of property at foreclosure
Keywords: judicial sale
Caption: Gravante v. Gennaro Lombardi Corp.
Court: Appellate Division, First Department
Judge: lower court: Supreme Court Judge Elliott Wilk
Date: June 13, 1996
Citation: NYLJ, page 28, col. 5
Referred Statutes" RSC 2526.1(f)
Summary: Purchaser at a judicial sale is exempt from liability for overcharges by previous owner if "no records sufficient to establish the legal regulated rent were provided at a judicial sale." The lower court directed that potential purchasers be notified of the legal rent and possible liabilities as a condition for consummating the foreclosure. The Appellate Division upheld the lower court's directive.

Issues/Legal Principles: No exemption for liability of overcharges by landlord who purchases property at judicial sale
Keywords: overcharge
Caption: 36 Plaza Corp. V. Marshall
Court: Civil Housing Court, Kings County
Judge: Roni Birnbaum
Date: June 12, 1996
Citation: NYLJ, page 33, col. 5
Referred Statutes: RSC 2526.1(e); RSC 2526.1(f)(2)
Summary: Tenant was found by DHCR to be overcharged by $20,067.08. Tenant deducted his monthly rent as a credit to the overcharge and landlord brought a non-payment proceeding seeking the rent. The owner argued that the Tenant was not permitted to offset his rent because the property was purchased at a judicial sale and there were no records sufficient to establish the legal rent. In such cases, RSC 2526.1(f)(2) does not hold a purchaser at a judicial sale responsible for overcharges caused by a prior owner. The court, however, noted that the prior owner went through a Chapter 11 proceeding in bankruptcy court and was required to supply that court with certain information as to its property. The court observed that the current owner was aware of the overcharge through certain financial disclosures by the prior owner. The court found that RSC 2526.1(f)(2) is not applicable since the information regarding the overcharges was available to the current owner. The court allowed the tenant to continue to offset the rent until the overcharges were collected.
Notes: This tenant (or his attorney) appeared to have done considerable legwork by examining the bankruptcy court files. These documents (which were probably not a part of the judicial sale) enabled the tenant to trace the history of what information was conveyed to the new owner. Without the bankruptcy case file, this tenant may not have won his right to offset the rent to collect on the overcharge.

Issues/Legal Principles: HUD landlord must follow proper termination procedures
Keywords: overcharge
Caption: Bedford Gardens Co. v. Rosenberg
Court: Civil Court, Kings County
Judge: Judge Callender
Date: June 12, 1996
Citation: NYLJ, page 33, col. 6
Referred Statutes: none cited
Summary: The issue in this case was whether the Landlord improperly terminated the Tenant's HUD rental assistance payments, and thereby overcharging Tenant $33,831.00. Tenant claimed the proper rent was $537, while Landlord claimed $955.06 per month. The court noted that the Landlord failed to follow the HUD requirements for terminating a lease. Therefore, the landlord was improper when it began charging Tenant a market rent and Tenant was entitled to a refund for the difference between the market rate he paid and the subsidized rent which he should have paid since his termination was not done according to procedure. (The Landlord attempted to terminate the tenancy on grounds that Tenant was late in recertifying for assistance.)

Issues/Legal Principles: Receiver to collect rents cannot be appointed by Civil Court
Keywords: enforcement of money judgment
Caption: Alese v. Efik Realty Corp.
Court: Civil Court, Bronx County
Judge: Judge Suarez
Date: June 12, 1996
Citation: NYLJ, page 33, col. 3
Referred Statutes: NYCCCA 1508; CPLR 5221
Summary: The petitioner judgment creditor tried to get a receiver appointed in Civil Court in order to collect rents from the judgment debtor. But CPLR 1505 provides that in order to execute on a money judgment obtained in Civil Court against real property, a transcript of the judgment must be filed with the county clerk (as opposed to the civil clerk). This would make the civil court judgment equivalent to a supreme court judgment for purposes of enforcement of a money judgment against real property. Petitioner did not do this step and the court precluded the petitioner from collecting the money judgment on rents (real property) through the appointment of a receiver.

Issues/Legal Principles: Recovery of pre-judgment interest based on contract, not prevailing party theory
Keywords: pre-judgment interest
Caption: 10 East 76th St. Associates v. McNamara
Court: Appellate Term, 1st Dept.
Judge: lower court: Judge Bruce Gould
Date: June 12, 1996
Citation: NYLJ, page 31, col. 3
Referred Statutes: CPLR 5001(a)
Summary: The Appellate Term initially vacated an award to landlord of pre-judgment interest in the non-payment proceeding in reliance on Solow v. Wellner (205 AD2d 340). Thereafter, the Court of Appeals adopted the Appellate Term's theory (which contradicted Solow) that a party obtaining a monetary judgment for rent has a statutory right to interest since it is a breach of contract issue (failure to pay the rent) and not a "prevailing party" issue akin to the definition for entitlement to attorney's fees. The Appellate Term reinstated an award of pre-judgment interest to the landlord.

Issues/Legal Principles: No statute of limitation in tenant's overcharge claim
Keywords: overcharges
Caption: Greer v. Koppel
Court: Supreme Court, New York County
Judge: Judge Alice Schlesinger
Date: June 12, 1996
Citation: NYLJ, page 31, col. 6
Referred Statutes: RSL 26-516(a)(2); CPLR 213-a
Summary: A prior tenant filed an overcharge with DHCR and won. However, he had already moved out of the apartment. The DHCR ruled on July 27, 1987 that the prior tenant's legal rent should have been $994.41 and that subsequent leases and renewals were to be recalculated based on this amount. Shortly before the DHCR order, the Tenants in occupancy filed an overcharge complaint and amended their complaint when the decision was rendered. As a result the Tenants' rent was reduced to $1,128.66 from an initial rent of $1,874.48. The prior tenant filed a PAR (an appeal) and a new DHCR decision was rendered on October 24, 1991, finding that the legal rent as of April 30, 1985 should have been $625.07. The order required that the landlord make a lump sum payment of all overcharges. The Landlord's PAR was denied on April 15, 1993. Based on the October, 1991 order, Tenant Greer began an action in 1995 for overcharges of $41,752.30. The Landlord argued that there is a statute of limitations precluding th Tenant from collecting overcharges beyond four years due to CPLR 213-a and RSL 26-516(a)(2). The court rejected the statute of limitations argument in reliance on Century Tower Assoc. V. DHCR (83 NY2d 819) which held that complaints subsequently filed by other tenants regarding an individual tenant's complaint "relate back" to that individual tenant's complaint and therefore are not time barred by the statute of limitations. The court here likewise found that the Tenant's complaint related back to the prior tenant's initial complaint and there was no statute of limitations problem.
Notes: The recent Appellate Term holding in Hart-Zafra v. Pilkes would have been helpful to this Tenant also. Perhaps the parties and the Court were unaware of its holding. The Appellate Term held that there is a four year statute of limitations on the collection of rent, but one could calculate beyond four years to determine the legality of the current rent.

New York Law Journal, decisions for the week of June 3-7, 1996

Issues/Legal Principles: Tenant's adult daughters need not be named in petition.
Keywords: necessary parties
Caption: New York City Housing Authority v. Kilafoski
Court: Appellate Term, 2nd & 11th Jud. Districts
Judge: lower court: Judge Harriet George
Date: June 6, 1996
Citation: NYLJ, page 36, col. 4
Referred Statutes: none cited
Summary: New York City Housing Authority (NYCHA) sought to evict tenant in Housing court after a hearing which determined that tenant had violated a stipulation where she agreed to permanently exclude her son from the apartment as a condition to her continued residency in the apartment. Tenant appealed the NYCHA decision to Supreme Court in an Article 78 proceeding, and the agency's decision was annulled. The City appealed to the Appellate Division which reversed the Supreme court and reinstated the agency's decision. Landlord then moved to restore its petition to the calendar, but the Housing Court dismissed the petition because tenant's adult daughters were necessary parties to the proceeding and were not named. NYCHA appealed and the Appellate Term ruled that the daughters were not necessary parties and reversed the Housing Court's dismissal of the petition. The Appellate Term held that "as a general rule it is accepted that a child, spouse or guest of a tenant can be removed under a warrant even though none of them is made a party to the summary proceeding." Exceptions to this rule are persons who "show that they have an independent possessory interest to the property." The daughters allegedly had no independent entitlement to the apartment apart from their mother.

Issues/Legal Principles: If tenant disputes proper service, tenant must raise the issue in the answer or in a pre-trial motion
Keywords: service of process
Caption: 45 South Elliot Partners v. Elder Merchant
Court: Appellate Term, 2nd & 11th Jud. District
Judge: lower court Judge Finkelstein
Date: June 6, 1996
Citation: NYLJ, page 36, col. 5
Referred Statutes: none cited
Summary: If tenant does not challenge the propriety of service of the three-day rent notice either in the answer or by a pre-trial motion, the three-day notice and affidavit attached to the petition will be deemed adequate proof that the notice was served on the tenant.

Issues/Legal Principles: Lack of service of 72-hour notice alone will not invalidate landlord's judgment of possession.
Keywords: 72-hour notice
Caption: Malls Realty v. Kalogiannis
Court: Appellate Term, 2nd & 11th Jud. Districts
Judge: lower court: Judge Haber
Date: June 6, 1996
Citation: NYLJ, page 36, col. 6
Referred Statutes: none cited
Summary: Even if the City Marshal failed to properly serve a 72 hour notice of eviction at the premises, this fact would not alter the validity of the judgment of possession granted to landlord.

Issues/Legal Principles: Co-op tenant cannot prove partial eviction
Keywords: water leaks
Caption: 815 Park Avenue Owners Corp. v. Lapidus
Court: Appellate Division, 1st Department
Judge: lower Supreme Court Judge Elliot Wilk
Date: June 3, 1996
Citation: NYLJ, page 28, col. 1
Referred Statutes: none cited
Summary: Defendant-shareholder stopped paying maintenance and assessments in 1987 based on his claim of partial eviction due to water entering his apartment. In a prior appeal, the court affirmed a dismissal of this defense. The Referee found that defendant failed to prove water entered his apartment as a result of Plaintiff's negligence or violation of the proprietary lease. He failed to demonstrate the necessity of the repairs he allegedly made or the reasonable cost thereof and other allegations. Defendant had to pay the back maintenance, including a 1.5% monthly interest. (Very little information provided in this case).

Issues/Legal Principles: Improper not to grant landlord's application for warrant where affidavit of service of predicate notice is absent from application.
Keyswords: default
Caption: Parkchester Apartments v. Rogers
Court: Appellate Term, First Department
Judge: lower court Judge Lucindo Suarez
Date: June 4, 1996
Citation: NYLJ, page 25, col. 1
Referred Statutes: RPAPL sec. 723(3)
Summary: Tenant defaulted in a non-payment proceeding and landlord applied for a warrant of eviction. Landlord submitted all the relevant documents necessary for such application, except it forgot to include the affidavit of service for the rent demand. The court dismissed the petition, but the Appellate Term reinstated the petition on grounds that the absence of the affidavit of service was not a valid basis for dismissal particularly since the tenants failed to answer and any issues of fact "shall be resolved against the tenant upon the tenant's default," citing Matter of Brusco v. Braun, 84 N.Y.2d 674.

Issues/Legal Principles: Tenant unable to pay rent after trial, but paid during appeal, will not be evicted.
Keyswords: satisfaction of judgment
Caption: Beaux Arts Properties v. Dell
Court: Appellate Term, First Department
Judge: lower court: Judge Arthur Birnbaum
Date: June 4, 1996
Citation: NYLJ, page 25, col. 2
Referred Statutes:RPAPL sec. 749(3)
Summary: Tenant failed at trial to prove entitlement to a rent abatement. The court entered judgment for rent arrears. The Appellate term affirmed and permanently stayed the execution of the warrant since the tenant satisfied the judgment as a condition to a stay granted by the Appellate Term. The Appellate Term held that forfeiture of the long-term stabilized tenancy was not warranted in such circumstances.
Notes: After the trial judge renders the decision, the tenant has five days to pay the rent. No judge has authority to give a tenant more time. What obviously happened here (although not fully stated in the case) is that the tenant was unable to pay the rent within the five days of judgment. Landlord got a warrant and tenant moved for a stay of the warrant pending appeal. As a condition to granting a stay pending appeal, the Appellate Term almost always requires the tenant to pay the landlord the outstanding rent and future rent during the duration of the appeal. Since tenant did pay the back rent, the Appellate Term did not penalize her simply because she couldn't pay the rent judgment in five days. If a tenant has failed to set aside all the rent money, this five-day rule is a major reason why tenants often are forced to settle their cases (sometimes on landlord's terms) instead of going to trial.

Issues/Legal Principles:Tenant denied guardian ad litem
Keyswords: nuisance holdover
Caption: Formaniuk v. Lara
Court: Housing Court, Kings County
Judge: Judge Finkelstein
Date: June 4, 1996
Citation: NYLJ, page 35, col. 4
Referred Statutes: CPLR sec. 1201; sec. 1202(a)
Summary: New York City Commissioner of Social Services moved to intervene in the holdover proceeding for the appointment of a guardian ad litem for the tenant and to vacate the judgment and warrant rendered after trial. The court believed that the motion was without merit and that the tenant capably represented himself at the trial. The landlord alleged that the tenant engaged in criminal conduct and threatened the safety of the the shared meter. The tenant argued that certain legal conditions necessary for the tenant to pay the electricity did not exist, but the court said that tenant cannot get free electricity because the lease provides that the tenant pay the electricity. Further, tenant's monthly payment of $175, as determined by Con Ed, was deemed reasonable by the court.