Housing Court Decisions November 1996

edited by Colleen F. McGuire, Esq.

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New York Law Journal,
decisions for the week of November 25-29, 1996 (3 cases)


Case Caption:
Raderman v. Talia Management Co.
Issues/Legal Principles:
Anti-retaliation statute held applicable to cooperative tenant's eviction from his parking space.
Keywords:
preliminary injunction; anti-retaliation; cooperatives; parking spaces
Court:
Supreme Court, New York County
Judge:
Hon. Emily Goodman
Date:
November 27, 1996
Citation:
NYLJ, page 28, col. 6
Referred Statutes:
Real Property Law 223-b; Administrative Code 27-2009.1; RPAPL Article 7A
Summary:
Plaintiff is a tenant shareholder and President of the Board of Directors of a residential cooperative. Plaintiff also leases parking space in the building's parking garage and was served with a notice of eviction from his parking space by the defendant management company. Plaintiff claimed that this action was taken in retaliation for his involvement in a shareholder's derivative action against the co-op sponsor, and for his decision to terminate defendant's management contract, and that the sponsor and the management company were closely intertwined entities. The court granted a preliminary injunction, stating that plaintiff demonstrated a likelihood of success on the merits of proving that the defendant's actions were retaliatory in nature. In addition, the possible loss of the parking space would irreparably harm the plaintiff. Furthermore, the court held that the law governing anti-retaliation is applicable to parking spaces of cooperative shareholders since plaintiff's deprivation of the parking space would constitute a substantial alteration of the terms of his lease, which is one of the criteria involved in a retaliatory eviction claim.


Case Caption:
New York City Housing Authority v. Falleder
Issues/Legal Principles:
Landlord/City is estopped from raising chronic non-payment issue after passage of 5 years.
Keywords:
chronic non-payment; estoppel; access
Court:
Civil Housing Court, New York County
Judge:
Hon. Howard Malatzky
Date:
November 27, 1996
Citation:
NYLJ, page 29, col. 5
Referred Statutes:
CPLR 7803(1), 7804(b), 1001, 401; NYC Civil Court Act 110(a),(d)
Summary:
By order dated October 9, 1991, the New York City Housing Authority ("NYCHA") terminated Respondent's tenancy at an administrative hearing on the basis of chronic delinquency in the payment of rent. Thereafter in March 1996, the City brought a holdover proceeding in Housing Court based on the chronic non-payment as well as the tenant's alleged failure to provide the landlord with access to make repairs. After the 1991 order, the Protective Services for Adults ("PSA") became involved and tenant's financial affairs were put under PSA management. PSA tendered the tenant's rent payments directly to NYCHA, thereby curing the chronic non-payment delinquency. Nonetheless, NYCHA sought to enforce the Order of Termination because of the tenant's alleged, continued refusal to allow access to her apartment. Tenant argued that NYCHA was estopped from maintaining the holdover proceeding due to a nearly 5 year delay from acting on the termination order. The City asserted that the doctrine of equitable estoppel is not available against a governmental agency. The court held that in very special circumstances the doctrine can apply against a government agency. The court then ruled that the City was estopped from asserting the chronic late rent claim because of the long passage of time and PSA's curing of the problem. The court, however, held that the City could proceed with their claim that the tenant was not providing access.


Case Caption:
Nostra Realty Corp. v. Ferstenberg
Issues/Legal Principles:
Tenants entitled to jury despite jury waiver clause in lease, since no cause of action for non-primary residency existed at time the lease was signed.
Keywords:
jury demand; nonprimary residency
Court:
Civil Court, New York County
Judge:
Hon. Saralee Evans
Date:
November 27, 1996
Citation:
NYLJ, page 29, col. 3
Referred Statutes:
CPLR 3212, 408, 1202; RPAPL 745(2)
Summary:
Landlord brought a holdover against the rent controlled tenants on grounds that they no longer occupied the apartment as their primary residency. The tenants sought a jury and landlord made a motion to strike their jury demand. The court noted that as a general rule a party is not entitled to a jury where a lease contains a jury waiver clause. The court, however, pointed to case law that has held that where the ground for eviction did not exist at the time the lease was signed, the jury waiver clause is unenforceable. The court noted, that in 1955, the date the lease was executed, there was no such cause of action as non-primary residency. The court granted the landlord's request for discovery, but denied the landlord's request that the respondents pay use and occupancy (rent) during the pendency of the proceeding.


New York Law Journal,
decisions for the week of November 18-22, 1996 (4 cases)


Case Caption:
Shorehaven Apts. 1 v. Anderson
Issues/Legal Principles:
Tenant restored to possession because all rent was paid prior to eviction.
Keywords:
default judgment
Court:
Civil Housing Court, Kings County
Judge:
Hon. Ronni Birnbaum
Date:
November 20, 1996
Citation:
NYLJ, page 33, col 4
Referred Statutes:
none cited
Summary:
Tenant was evicted and brought an order to show cause to be restored to possession of the apartment where she had lived for 11 years with her three children and grandchild. The three day demand alleged an incorrect amount of rent owed because the tenant had paid $500 before the demand was served. Thereafter the tenant paid additional rent. However, the landlord did not take into account tenant's payments when the landlord signed the affidavit of merit in support of the landlord's application for a default judgment. The landlord realized after signing the affidavit, but prior to when the default judgment was entered, that the monetary amount claimed due was incorrect. Eventually the tenant paid the full amount of rent owing, but the landlord returned the balance and evicted the tenant. The court restored the tenant to possession on grounds that the amount claimed owed in the judgment did not reflect tenant's payments and that tenant in fact had not defaulted in the payment of rent.


Case Caption:
Lombardo v. Santevecchi
Issues/Legal Principles:
Landlord barred from collecting rent increases for failure to pay annual $10 administrative to the Department of Finance.
Keywords:
overcharges
Court:
Civil Housing Court, Kings County
Judge:
Hon. Laurie Lau
Date:
November 20, 1996
Citation:
NYLJ, page 33, col 4
Referred Statutes:
RSL 26-517.1; ETPA 8(d)
Summary:
The apartment was initially registered as Apartment 3 when another tenant resided there. When this tenant took occupancy in 1990, it was re-registered as Apartment 2R at a rental of $500.00. The prior tenant's last rent was $333.14. The landlord did not file 1992, 1993 or 1994 registrations until July 14, 1994 at $500.00 per month. The landlord also failed to pay the $10 annual administrative fee for 1990 as required by Section 26-517.1 of the Rent Stabilization Law. Tenant also argued that landlord failed to justify the increase of rent to $500.00. The landlord conceded this last point, but argued that the statutory increases put the rent at $365.53. Section 26-517.1(a) provides that an owner is precluded from applying for or collecting rent increases if the $10.00 annual administrative fee is not paid. Landlord argued that the Department of Finance erred in stating that landlord failed to pay the $10 in 1990, but offered no proof of its contention. Landlord further argued that DHCR's Policy Statement 92-1 provides that the statutory sanction for nonpayment is to be delayed until 60 days after the DHCR sends the owner a notice of nonpayment with a copy of the bill. Again, the landlord offered no proof of receipt or non-receipt of the notice. The court discussed at length (mostly in footnotes) various other cases where other courts have rejected the applicability of the DHCR policy statement. This court, however, chose to uphold the RSL notwithstanding challenges to the applicability of the DHCR policy statement. The court ruled that the landlord was not entitled to collect any rent from the tenant in excess of $333.14 from the inception of the tenancy. The decision did not state the time period that the landlord was barred from increasing in the rent.


Case Caption:
Midway Hotel Corp. v. Duval
Issues/Legal Principles:
Despite tenant's lengthy absences from the apartment, landlord failed to prove that the tenant did not occupy the apartment as his primary residency.
Keywords:
non-primary residency
Court:
Civil Housing Court, New York County
Judge:
Hon. Doherty
Date:
November 20, 1996
Citation:
NYLJ, page 35, col 5
Referred Statutes:
none cited
Summary:
The 71 year old tenant was sued on grounds of non-primary residency. He resided in the apartment for 30 years. At trial the landlord offered no proof that the tenant filed taxes at another address, voted elsewhere or maintained a driver's license elsewhere. Landlord's sole evidence consisted of the tenant's US passport which indicated numerous trips to Haiti of various duration from 1 month to 8 months over a period of years. The landlord failed to offer any proof of another residence where the tenant allegedly resided. The tenant testified that due to the cold and his ill health, he would spend winters in Haiti and stayed in a guest room at his sister's house. The court ruled that although the tenant was absent from the apartment for lengthy periods of time, when viewed with the tenant's physical handicaps, he continued to maintain a sufficient nexus with the premises and an intent to maintain the premises as his primary residency.


Case Caption:
Department of Housing Preservation and Development of the City of New York v. Kurtin
Issues/Legal Principles:
HP proceeding remanded to trial court to allow landlord to present evidence as to when repairs were made.
Keywords:
HP proceeding
Court:
Appellate Term, Second and Eleventh Judicial Districts
Judge:
lower court: Hon. T. Aliotta
Date:
November 18, 1996
Citation:
NYLJ, page 35, col. 6
Referred Statutes:
Administrative Code 27-2115(k)
Summary:
An "HP" proceeding was commenced to recover civil penalties based on the landlord's alleged failure to correct a notice of violation concerning a lack of heat in the tenant's apartment. The Civil Court imposed civil penalties in the amount of $10,000. The Appellate Term reversed and remanded the matter to the lower court for a new trial. The Court stated that there is a presumption that the condition constituting the violation continues after the affixing of the notice. However, the landlord and her witness established that certain repairs were made prior to the time that the certificate of compliance was filed. The Court held that a new trial was necessary so that the landlord would be given the opportunity to establish the earlier correction of the condition through the testimony of other tenants and the production of the paid repair bills, thereby reducing the amount of her fine. The landlord also claimed for the first time on appeal that the judge should have recused himself, as he was once a tenant in the same building subject to the litigation. The Appellate Term stated that the judge has the discretion to recuse himself, but is not required to unilaterally do so. The Court held that a motion for recusal should have been made at the trial level and may not be raised for the first time on appeal.
Notes:
With respect to recusal by the trial judge, the issue would be the judge's relationship with the building. If his relationship was so remote in time, then perhaps recusal would not be in order. However, if the judge's tenancy was relatively close in time and he also experienced conditions in the building, or had the current landlord been the judge's landlord as well, then recusal might be in order.


New York Law Journal, decisions
for the week of November 4-8, 1996 (7 cases)


Case Caption:
Zcwk Associates v. Spadaro
Issues/Legal Principles:
Where landlord changed the locks before tenant took occupancy, tenant found not liable for rent but tenant's unlawful eviction claim fails.
Keywords:
self-help eviction
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Lorraine Miller
Date:
November 12, 1996
Citation:
NYLJ, page 27, col 4
Referred Statutes:
RPAPL 853
Summary:
Before the tenant took possession of the premises, the landlord engaged in "self-help" by changing the locks. The landlord sued the tenant apparently for non-payment of rent. The Appellate Division upheld the lower court's dismissal of plaintiff landlord's action because the landlord's action of changing the locks was a breach of the lease which suspended tenant's obligation to pay rent. The defendant tenant's claim for forcible eviction for treble damages was dismissed because the tenant never moved into the premises and it was not illegal for landlord to change the locks before the date the lease began.


Case Caption:
First FGB, Inc. v. Douglas
Issues/Legal Principles:
Tenant's discovery motion in nuisance holdover granted in part, but denied for the most part.
Keywords:
discovery
Court:
Civil Court, New York County
Judge:
Hon. Richard Braun
Date:
November 12, 1996
Citation:
NYLJ, page 30, col 5
Referred Statutes:
CPLR 408, 3102
Summary:
The tenant was a rent controlled resident in a co-op building. The notice of termination contained 19 paragraphs of allegations relating to the tenant's alleged nuisance against building employees and other residents of the building. The tenant made a motion for discovery, seeking names of landlord's witnesses, log books with written complaints and depositions of landlord's witnesses. The court found that the tenant satisfied the "ample need" standard for discovery with respect to needing the names of the complainants and witnesses to various incidents. However, the tenant was denied discovery with respect to people identified by name and apartment number since, the court held, there were methods other than subjecting the landlord to discovery in order to obtain this information. The request for a log book was denied as a mere "fishing expedition," and the tenant's request for depositions was denied because she did not sufficiently particularize the reason why depositions were necessary.
Notes:
Usually it is very difficult for a tenant to get discovery in Housing Court. Discovery requests should be made very specific and very relevant in order to satisfy the ample need test.


Case Caption:
919 Realty Corp. v. Wright
Issues/Legal Principles:
Landlord's wilful ignoring of DHCR rent reduction order precluded landlord from raising four year statute of limitations defense to tenant's overcharge award.
Keywords:
overcharge; statute of limitations
Court:
Civil Housing Court, Kings County
Judge:
Hon. Lau
Date:
November 16, 1996
Citation:
NYLJ, page 34, col 5
Referred Statutes:
none cited
Summary:
During the non-payment proceeding, the parties stipulated that the rent was $260.65 pursuant to a DHCR rent reduction order dated May 6, 1988, effective March 1, 1987. In a prior March, 1995 proceeding, the Rent Stabilized tenant, 69 years old, signed a stipulation agreeing that the rent was $841.95, but an additional $1,933.95 was disputed. Landlord had several months to prove and collect the outstanding amount in dispute, or waive collection of it. Notwithstanding the DHCR order, landlord charged and collected from tenant rents far in excess of the $260.65 ordered by the DHCR, including increases arising from renewal leases. The parties conceded that $6,053.84 was overpaid. The first issue the court ruled upon was barring landlord from collecting any rents prior to the March, 1995 stipulation since landlord failed to restore the matter to the calendar regarding the disputed rents allegedly owed. The second issue the court addressed was the overpayments from March 1, 1987. Tenant argued that the landlord's deliberate failure to comply with the DHCR order should preclude the application of the four-year statute of limitations on collecting overcharges. The landlord called no witnesses to dispute the DHCR order or why it had billed the tenant a higher amount than the order for so many years. The court held that this absence of testimony gave rise to the inference that the testimony would not controvert the opposing evidence. The court found that the landlord's collection of overpayments was deliberate and wilful and fraudulent, thereby allowing tenant treble damages against the owner, and barring landlord under the doctrine of equitable estoppel from raising the defense of the statute of limitations. The court did not award treble damages for the period from the effective date of the order through the date the order was actually rendered.


Case Caption:
Berwick Land Corporation v. Mucelli
Issues/Legal Principles:
Tenant's entire 15-year history of residency deemed subject to examination in non-primary residency case, not simply the two to three year period prior to the service of the non-renewal notice.
Keywords:
non-primary residency
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Arlene Hahn
Date:
November 13, 1996
Citation:
NYLJ, page 25, col 3
Referred Statutes:
none cited
Summary:
At trial during the non-primary residency holdover, the "largely undisputed" evidence revealed that tenant became the rent stabilized tenant of record in 1971, but permanently vacated the apartment in 1974, although he continued to execute renewal leases as the record tenant for the next twenty years. During this time he lived in various Manhattan apartments (including a condo he purchased) while his apartment was occupied by his former wife and their two children. By 1993, these family members all vacated as well, In September, 1993, the tenant sought to re-establish his primary residency by returning to the apartment. The last renewal lease encompassed the two-year period May 1, 1992 through April 30, 1994. Landlord served a non-renewal notice on grounds of non-primary residency. At trial the tenant argued that since he was in occupancy "during the relevant period" (i.e., as of the date of service of the non-renewal notice), the landlord could not evict him. The lower court dismissed the petition on grounds that the tenant was in the apartment for at least four months before the threshold notice was served. The Appellate Term reversed, finding that in non-primary residency cases, "a court may fairly evaluate the entire history of the tenancy to the time of renewal." The Court held that the renewal date was not dispositive "in this fact pattern." Since the tenant did not reside in the premises at any time between 1974 and September 1993, nor for the first 16 months of the most recent renewal, no ongoing, substantial physical nexus for actual living purposes was established. The family's members' residency was deemed irrelevant since their presence could not be imputed to the tenant: the apartment could not be transferred from one family member to another where there existed no contemporaneous occupancy or succession rights claim.
Notes:
Although the holding in this particular case appears just, the problem is that landlords may use it to require tenants in non-primary residency cases to establish proof of their residency beyond the usual two to three year period prior to the service of the non-renewal notices. This can be burdensome to tenants. Hopefully, the Appellate Term's usage of the words "in this fact pattern" will limit this case's holding to the specific unique facts of this case, rather than overturn the generally relied upon two to three year proof of residency standard.


Case Caption:
Capital Holding Company v. Stavrolakes
Issues/Legal Principles:
Tenant only allowed one roommate under the Roomate Law.
Keywords:
Roommate Law; non-related roomates; statutory tenancy
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Shirley Werner Kornreich
Date:
November 13, 1996
Citation:
NYLJ, page 25, col 5
Referred Statutes:
RPL 235-f(3); NYC Rent and Eviction Regulations, 2204.2[a][1]; RPAPL 753[4]
Summary:
The landlord commenced an eviction proceeding, claiming that the rent controlled tenant breached a substantial obligation of her lease by allowing more than one occupant to live in the apartment who was not a member of her family, in violation of the "Roommate Law". The tenant admitted that she had two roommates who were not related to her, however she argued that the landlord was not permitted to restrict her choice of roomates to members of her family. The lower court granted the tenant's motion for summary judgment and the landlord appealed. The Appellate Term reversed holding that the statute in question does prohibit a landlord from restricting who their tenants choose to live with. However, the Court's reversal was based on the fact that eviction protection was not available to tenants when the total number of roomates in the apartment exceeds that which is allowed by statute. The Court stayed the issuance of the warrant for ten days so that the tenant would be afforded the opportunity to cure this violation.
Notes:
Under the Roommate Law, each tenant is allowed one roomate, exclusive of the tenant's family members. So, if there is one tenant in an apartment, then only one roommate is allowed under the statute. Likewise, if there are two tenants, then two roommates will be allowed.


Case Caption:
Hoxha Associates v. Cannata
Issues/Legal Principles:
Landlord may not bring a nonpayment proceeding for SCRIE arrears where tenant was unaware that arrears were owed; landlord was directed to bring a plenary proceeding.
Keywords:
SCRIE; nonpayment
Court:
Civil Court, Housing Part 18D
Judge:
Hon. Halprin
Date:
November 16, 1996
Citation:
NYLJ, page 28, col. 5
Referred Statutes:
CPLR 3212 and 603
Summary:
The respondent/successor tenant in this proceeding lived with her mother for approximately ten years, until her mother's death in 1994. From 1984 through 1993 the landlord demanded and the respondent's mother paid a monthly rental of $100.80. Both parties were under the mistaken belief that the rent was subject to a Senior Citizen Rent Increase Exemption (SCRIE) reduction. The New York City Department for the Aging sent the landlord a Notice of Abatment Audit Determination, where they informed the landlord that there was an error and that in fact no exemption existed for this apartment. In this notice, the Department of Aging requested that the landlord remit a check in the amount of $4,979.52 payable to the New York City Department of Finance for the amounts mistakenly paid by their department. The landlord complied with this request without questioning the validity of such a demand. The landlord served the respondent with a rent demand in an attempt to collect the improperly abated sum of money which he paid to the Department of Finance. When she refused to pay these arrears, the landlord brought a nonpayment proceeding against the successor tenant. The Court held that the landlord may not use the SCRIE arrears in order to evict this tenant, especially since the tenant never engaged in material false statements on the SCRIE application. Further, the tenant was unaware that the arrears were due and owing, and did not have the opportunity to budget her income to provide for the increased rent. Instead, the Court recommended that the landlord's claim should be brought in a plenary action where all of the relevant facts surrounding this mistaken abatement would be examined.


Case Caption:
Israel v. Security Excel Corp.
Issues/Legal Principles:
Attorney not allowed to take client-tenant's escrowed rent money to pay for attorney's legal fees owed by tenant.
Keywords:
attorney's fees
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Arlene H. Hahn
Date:
November 13, 1996
Citation:
NYLJ, page 25, col. 4
Referred Statutes:
none cited
Summary:
After a trial in a nonpayment proceeding, counsel for the tenant filed a notice of appeal in the tenant's name, and then moved to withdraw as counsel. The Appellate Term granted his application to withdraw because a final determination was rendered after trial of the nonpayment proceeding, combined with the lack of opposition to his withdrawal. As such, no prejudice would result in granting his application to withdraw. However, the Appellate Term declined to grant the attorney's application for a lien on the rent monies in the escrow account for the payment of the legal fees incurred at trial, because the rent monies in escrow were not part of a judgment or award in the client's favor.


New York Law Journal
decisions for the week of November 4-8, 1996 (4 cases)


Case Caption:
In Re Betty Velez v. NYC Housing Authority
Issues/Legal Principles:
Tenant's appeal of administrative order is dismissed for untimeliness.
Keywords:
statute of limitations
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Marilyn Diamond
Date:
November 4, 1996
Citation:
NYLJ, page 26, col 3
Referred Statutes:
CPLR 217
Summary:
The tenant challenged the City's decision to deny her a lease as a "remaining family member." Tenant's administrative appeal (Article 78) of the City's decision was dismissed because it was not brought within four months after she received notice of the City's decision, and thus the statute of limitations had passed.


Case Caption:
Simkowitz v. Toniatti
Issues/Legal Principles:
Landlord denied attorney's fees where tenant had attempted payment of all base rent owed before the petition was served.
Keywords:
attorney's fees; tender of rent
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Howard Malatsky
Date:
November 5, 1996
Citation:
NYLJ, page 26, col 3
Referred Statutes:
none cited
Summary:
Prior to any court dates in the non-payment proceeding, tenant tendered all base rent demanded in the petition. Landlord rejected the tender because tenant did not include payment for attorney's fees. The court dismissed the petition. No side was awarded attorney's fees. Landlord appealed the denial of attorney's fees, but the Appellate Term upheld, holding that neither side was the "prevailing party."


Case Caption:
Melohn v. McDowell
Issues/Legal Principles:
Tenant's intent to return to apartment not clear from sublet request; outstanding facts preclude award of summary judgment to either party.
Keywords:
sublet request
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Donna Mills
Date:
November 5, 1996
Citation:
NYLJ, page 25, col 2
Referred Statutes:
RPL 226-b(2)(c); RSC 2525.6(a); RPAPL 753(4)
Summary:
Rent Stabilized tenant submitted a sublet request to her landlord on grounds that she was temporarily relocating to Florida for two years to care for her elderly parents, one of whom suffered from Alzheimer's. Landlord rejected the sublet on grounds that the request did not present "a verifiable intent" to return to the premises at the conclusion of the sublet. The lower court granted summary judgment to the landlord, holding: "the court is uncertain how temporary respondent's stay in Florida will be, and it is speculative at best whether the respondent will reoccupy the apartment at the end of the sublet." The Appellate Term noted that a landlord need not consent to a proposed sublet where the tenant does not demonstrate an intent to return to the premises as a primary resident, but "the intent to return" element should not be construed "so closely that it all but swallows up the right to sublet liberally granted to tenants by the statute." The court noted that tenant has three adult children and grandchildren who reside in the New York area. The Appellate Term held that "at the time of her sublet request, tenant was not required to pinpoint the date she would be able to return from her parents' home, particularly since the progression of an illness cannot be predicted with absolute certainty." Questions of fact precluded the granting of summary judgment to either party.
Notes:
This is a strange decision from the Appellate Term. It has long been expected that sublet requests must on their face show with a degree of certainty that the tenant intends to return at the end of the sublet term. The Appellate Term has ruled just the opposite in this case. This case will provide tenants with a wide berth to sublet their apartment in situations where they might not be able to fully commit to a return date. Examples: to care for dying family members, to test out a new job and see if it works, to travel for an extended time. It is sometimes hard to put dates certain on these types of requests, but this Appellate Term decision seems to imply that a guesstimate and a good faith statement of intent to return just might suffice.


Case Caption:
Frag Equities v. Stern
Issues/Legal Principles:
Landlord's writ of assistance failed where the parties entered into a landlord-tenant relationship after the writ was granted.
Keywords:
writ of assistance; landlord-tenant relationships
Court:
Supreme Court, Rockland County
Judge:
Hon. H. Miller
Date:
November 7, 1996
Citation:
NYLJ, page 31, col 2
Referred Statutes:
CPLR 221; Article 7 of the RPAPL
Summary:
Plaintiff was granted a writ of assistance against defendants. (A writ of assistance is a Supreme Court version of a civil court judgment of possession and issuance of warrant.) Thereafter the parties entered into a stipulation which allowed defendants to continue to occupy the premises upon payment of certain monies. The stipulation provided that the monies did not represent rent and that no landlord-tenant relationship was established by the stipulation. For almost two years the defendants paid the monthly sum. Then a dispute over payment arose which caused plaintiff to notify defendants that a sheriff was ejecting them based on the two- year-old writ of assistance. Defendant made a motion to the court to vacate the writ on grounds that a landlord tenant relationship was created by the stipulation. The court noted that whether a landlord-tenant relationship was established depended on the intent of the parties, and whether essential terms exist such as, exclusive usage of the premises, a defined area to be leased, the duration of the lease and the price to be paid. Since these essentials were all present, the court concluded that a landlord-tenant relationship existed and therefore the requirements of RPAPL were necessary, including the service of a predicate notice to terminate the tenancy. The court also ruled that a writ of assistance was discretionary with the court and therefore the court could decide whether or not to vacate it. This court declined to allow the plaintiff to execute on the writ.