Housing Court Decisions December 97

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Case Caption:

Supreme Co. v. Creed

Issues/Legal Principles:

Rent Stabilized tenant who rejected lease in bankruptcy proceeding cannot be evicted where monetary judgment is based on landlord's attorney's fees.

Keywords:

bankruptcy; tenancy rights

Court:

Supreme Court, New York County

Judge:

Hon. Alice Schlesinger

Date:

December 31, 1997

Citation:

NYLJ, page 21, col 4

Referred Statutes:

11 USC 365(d)(1)

Summary:

The issue before the court was: Does rejection of a rent stabilized lease by a tenant/debtor in bankruptcy result in the loss of the right to occupy the premises as a rent stabilized tenant? In 1993, the defendant-tenant became the rent stabilized tenant of the apartment. The owner sued her in Housing Court and obtained a judgment of possession on August 17, 1995 for $17,445.19. The tenant paid this sum. Thereafter the landlord sought attorney's fees and on April 2, 1996 obtained a monetary judgment in the amount of $19,325.66. The tenant was unable to satisfy the monetary judgment and filed for bankruptcy in July of 1996. The landlord asked the Bankruptcy Court for an order compelling the tenant to assume or reject the unexpired rent stabilized lease within 60 days after she filed the petition. If the lease was not assumed (i.e., accepted) by the tenant, the owner sought to have the unexpired term of the lease rejected and possession of the premises returned to it. On September 5, 1996, the parties entered into a stipulation in Bankruptcy Court wherein the tenant's time to assume the lease was extended until September 11, 1996. Assumption of the lease was conditioned upon the tenant's payment of the attorney's fees judgment and accrued rent since August, and the owner's legal fees incurred in making the motion to the Bankruptcy Court, for a total of $20,085.12. If the tenant failed to make the payments, the stipulation provided that the unexpired lease would be deemed rejected and the automatic stay of eviction vacated. The tenant failed to make the payments, which prompted the owner into bringing an ejectment action in Supreme Court seeking a declaration that the lease be deemed rejected. The owner moved for summary judgment on the grounds that the debtor in possession of premises (i.e., the tenant) failed to assume the lease by making the payments and thus the lease is deemed rejected and the tenant relinquished her right to further possession of the premises. The tenant cross-moved for summary judgment on the ground that rejection of the lease has no legal effect on her right to remain in the premises as a rent stabilized tenant. The tenant further pointed out that if the owner prevailed in the Supreme Court ejectment action, she would be evicted for failing to satisfy a non-possessory judgment for attorney's fees, contrary to long standing case law that holds that a regulated tenant cannot be evicted for failing to satisfy a non-possessory judgment. The tenant further relied on an Appellate Term case that a trustee who rejected a lease did not terminate a tenant's status as rent stabilized. A trustee's rejection of a lease evidences an election not to assume the lease as an asset of the bankruptcy estate for the benefit of creditors. Title to the underlying leasehold is not divested but remains where it has been: with the tenant. Section 365 of the Bankruptcy Code gives a trustee or a debtor a right to assume or reject a contract (i.e., or lease). The court rejected the owner's effort to distinguish between a trustee's rejection and a tenant-debtor's rejection. The court held that the focus is not on who makes the rejection, but rather what the effect of the rejection is. A rejection of the lease constitutes a breach of the lease, but not a termination of the lease. The court held that section 365 does not preempt the Rent Stabilization laws. The court held that the tenant's rejection of the lease did not necessarily result in forfeiture of her right to continued possession because under state law an owner may not obtain a possessory judgment for failure to pay legal fees. Thus, breach of section 365 does not extinguish the tenant's possessory rights to continue residing in the premises. The court granted tenant's cross-motion for summary judgment, but noted that "the result is arguably distressing." The judge observed that it may appear inequitable that the tenant would be discharged for the debt, but still be allowed to keep possession of the apartment. On the other hand, the judge noted the inequities involved in a landlord's effort to recover possession of the apartment based on the tenant's debt for attorney's feesța debt which helped drive the tenant to bankruptcy.

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Case Caption:

West End Estates LLC v. Vaughan

Issues/Legal Principles:

Landlord's petition containing general statement of compliance with Loft Laws is sufficient, but landlord must prove actual compliance at trial.

Keywords:

Loft Law; collateral estoppel

Court:

Civil Court, New York County

Judge:

Hon. Shulman

Date:

December 31, 1997

Citation:

NYLJ, page 23, col 1

Referred Statutes:

Multiple Dwelling Law 284 & 302

Summary:

Because the Loft building did not have a residential certificate of occupancy, many of the tenants went on rent strike to compel the owner to legalize the building. A settlement ensued wherein various tenants agreed to put their rent money into an escrow account if the landlord proceeded "diligently, in good faith, and in accord with the Loft Laws to obtain a residential certificate of occupancy." Once the certificate of occupancy was obtained and the owner provided adequate water pressure, the escrowed rents and future rent would be paid to the owner. Shortly after the agreement was signed, the owner sold the building and that owner thereafter filed for bankruptcy. During the bankruptcy proceeding the owner-debtor sought to recover unpaid rent from one of the tenants, but the judge disallowed the collection, finding that the owner did not pursue all reasonable and necessary action to obtain an alteration application, a permit, a certificate of occupancy, or comply with safety and fire laws covering Loft tenants. Since the owner breached the stipulation, the judge looked to the Loft Law and ruled that the tenants did not have to pay rent since there was no certificate of occupancy for the building. Thereafter the building was sold to the current owner who sought to collect rent due and owing from May, 1995 through August, 1997 against one of the tenants. Judge Shulman ruled that the owner was not precluded by the doctrine of collateral estoppel arising from the bankruptcy judge's decision from forever collecting rent from the tenants. Judge Shulman ruled that the owner was only precluded from collecting rent for the period of time in which the debtor in the bankruptcy proceeding owned the building. Further, the current owner was not a party to that proceeding and should not be bound by the prior owner's actions. Judge Shulman also held that the agreement was ambiguous as to whether the prior owner had agreed to forego rent during the interim four-step process of legalizing the building. This, the judge held, was a factual issue for trial. The tenants also argued that the petition failed to particularize what steps the landlord had taken to legalize the building, such as if an alteration application was filed, or an alteration permit, or compliance with safety and fire protections, or taken all action to obtain a certificate of occupancy. The court disagreed, stating that a loft building owner did not have to state all these facts in the petition, but could simply state that it was in compliance with the Loft Laws. The owner, however, must prove compliance at trial.

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Case Caption:

Tompkins Park St. Marks Assoc. v. Ramati

Issues/Legal Principles:

Landlord granted discovery in alleged illegal sublet proceeding; tenant required to pay ongoing rent during discovery phase.

Keywords:

discovery; sublet

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Kibbie Payne

Date:

January 2, 1998

Citation:

NYLJ, page 25, col 1

Referred Statutes:

none cited

Summary:

The Appellate Term upheld the lower court's order that disclosure was permissible in this illegal sublet proceeding. The Appellate Term also found no abuse in discretion where the lower court directed the payment of ongoing rent (use and occupancy) during the discovery phase because the proceeding had been pending for over a year and the trial delayed due to the "strenuous efforts of tenant to avoid disclosure." Usually, if the landlord seeks discovery, the tenant is not obligated to make ongoing payments of the rent because it was the landlord who caused the delay of the case by its discovery request.

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Case Caption:

390 West End Assoc. v. Yuspeh-Hildalgo

Issues/Legal Principles:

Respondent who repeatedly fails to appear for a deposition regarding her succession rights claim loses her right to a trial on the issue.

Keywords:

discovery; succession rights

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Saralee Evans

Date:

January 2, 1998

Citation:

NYLJ, page 24, col 6

Referred Statutes:

CPLR 5015

Summary:

The respondent delayed taking a deposition in this succession rights claim, and finally agreed in writing that if she failed to show up again, her answer would be stricken. When she defaulted, the lower court struck her answer and the appellate court affirmed. Without an answer, the respondent's succession rights claim became a dead issue.

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Case Caption:

Hart Zafra v. Pilkes

Issues/Legal Principles:

New rent law precludes an examination of the rental history beyond four years of a tenant's overcharge complaint.

Keywords:

overcharges

Court:

Appellate Division, First Department

Judge:

lower court: Hon. Howard Malatzky

Date:

January 1, 1998

Citation:

NYLJ, page 22, col 1

Referred Statutes:

RSL 26-516(a)(2) & (g); RSC 2526.1(a)(2)

Summary:

The lower court held that neither the four-year statute of limitations for rent overcharge complaints nor the record keeping provisions relieving a landlord from having to produce records dating back more than four years prior to the most recent registration date prohibit an inquiry into the legality of rent increases prior to the four-year period through testimony or other additional proof, for the purpose of calculating an overcharge. The Appellate Term affirmed that calculating the legality of the rent beyond a four-year period was acceptable to determine the lawful rent, although a tenant could not collect overcharges accrued prior to the four-year period in which the complaint was filed. On June 19, 1997, the Legislature changed the law to specifically preclude examination of the rental history prior to the four-year period preceding the filing of the complaint. These particular provisions took effect immediately and applied to "any action or proceeding pending in any court." Thus, by the "unambiguous, unqualified language regarding the effective date", the Appellate Division reversed the Appellate Term and remanded the proceeding to the trial court.

Notes:

The new rent law regarding overcharges was aimed specifically to moot the Hart-Zafra v. Pilkes case which up to June 19, 1997 had been a winning case for tenants whose overcharges began prior to the four-year period. Tenant advocates had argued that overcharges occurring prior to the four-year period rendered the rent charged at the four-year date illegal because the violation was a continuing, ongoing violation. Intense lobbying by landlords resulted in the legislature's caving in to the landlord's position that even if the rent was illegal in years prior to the four-year period, such illegal rent could no longer be challenged. In parsing the new statute, it appears as if it does not address situations where landlords have not filed ANY rent registration statements for four years or more. It is unclear how the statute is affected or is to be interpreted where a landlord did not rent registration statements for many years.

Case Caption:

In re William Q. Dowling v. Joseph H. Holland

Issues/Legal Principles:

Tenant's arguments against DHCR high income / high rent deregulation order fail because their arguments were not raised before the DHCR but were raised, for the first time, before the Supreme Court in the context of an Article 78 proceeding.

Keywords:

high income / high rent deregulation; exhaustion of administrative remedies

Court:

Appellate Division, First Department

Judge:

lower court judge: Hon. Elliot Wilk, Supreme Court, New York County

Date:

December 22, 1997

Citation:

NYLJ, page 26, col 5

Referred Statutes:

Rent Stabilization Code Sections 504, 2529.2

Summary:

Landlord filed a petition for high income / high rent deregulation with the DHCR. DHCR mailed a form to tenants requesting an answer and a certification that their income did not exceed the statutory threshold during the two prior calendar years. Tenants did not file a response with the DHCR within the required 60 days and the DHCR issued an order of deregulation. Although a Petition for Administrative Review ("PAR") must be filed with the DHCR within 35 days after the order issued, the tenants did not file a PAR and a request for reconsideration for more than one year after the order issued. DHCR denied the request for reconsideration and denied the PAR because it was untimely filed. Tenants filed an Article 78 proceeding challenging DHCR's deregulation order. Tenants alleged, for the first time, that they did not receive DHCR's deregulation order although the doorman signed a return receipt. They also alleged that their income did not meet the threshold amount during the two prior calendar years. The Supreme Court granted the Article 78 and remanded the proceeding to the DHCR for a determination on the merits. The Appellate Division, First Department reversed. The appellate court found that tenants' argument of nonreceipt of the deregulation order was weakened by the fact that they did not raise this argument in either the PAR or the reconsideration they filed with the DHCR. The tenants' denial of receipt of the deregulation order from their doorman was insufficient to overcome the presumption of receipt established by the DHCR's evidence. The appellate court also doubted tenants' story that they never received any certified mail from the DHCR and that they were away from the apartment during the entire 35 day period following DHCR's deregulation order. The appellate court found that it was not necessary to review tenants' argument that the DHCR's regulations are unconstitutional. However, the court expressed the opinion that the notice and default provisions in DHCR's regulations satisfy constitutional due process standards.

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Case Caption:

Levy v. Taninbaum

Issues/Legal Principles:

Landlord must not commingle tenant's security deposit with landlord's own funds.

Keywords:

security deposit

Court:

Appellate Term; 9th and 10th Judicial Districts

Judge:

lower court judge: Hon. R.J. Friedman, City Court, City of White Plains, Westchester County

Date:

December 24, 1997

Citation:

NYLJ, page 23 , col 6

Referred Statutes:

General Obligations Law Section 7-103

Summary:

The court's decision does not fully explain the nature of the litigation between the parties, which somehow involved tenant's security deposit. However, the lower court denied tenant's motion for summary judgment and the appellate term reversed. The landlords admitted that they did not hold tenant's security deposit in a separate account as required by General Obligations Law ("GOL") Section 7-103. Instead, they commingled tenant's security deposit with their own funds. Landlords advised tenant that their money was deposited in a mutual fund in landlord's own name and tenant did not object. However, the court found that this is not a defense because the provisions of the law cannot be waived by tenant. Because landlords commingled the security deposit, landlords may not set-off the security deposit against their counterclaim for alleged damages to the subject premises.

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Case Caption:

187 Concourse Associates v. Bunting

Issues/Legal Principles:

Judgment of possession which issued after nonpayment case is valid despite fact that tenant later obtained a bankruptcy order discharging tenant's debts; judgment of possession is not a "debt" which may be discharged by bankruptcy court.

Keywords:

bankruptcy; discharge order; nonpayment proceeding; holdover proceeding; termination notice

Court:

Civil Court, Bronx County

Judge:

Hon. Halprin

Date:

December 24, 1997

Citation:

NYLJ, page 23, col 1

Referred Statutes:

RSC Section 2524; RPAPL Section 711(1); 11 USC Section 524

Summary:

Landlord brought a nonpayment proceeding against rent stabilized tenant and obtained a money judgment and a judgment awarding possession to the landlord. Tenant then filed a Chapter 7 bankruptcy petition, which resulted in an automatic stay of all proceedings against the tenant. In violation of the stay, a warrant of eviction issued. The bankruptcy court then issued an order discharging all of the tenant's debts. The court held that the money judgment was vacated by the bankruptcy discharge order and the warrant was invalid because it was issued in violation of the stay. However, the judgment of possession in favor of the tenant is valid and was not discharged in bankruptcy. The landlord may request re-issuance and execution of the warrant. After the tenant obtained a discharge order from the bankruptcy court, landlord also brought a holdover proceeding against the rent stabilized tenant. The holdover proceeding was based upon a termination notice which stated that "the bankruptcy and discharge constitutes a violation of your lease agreement and the rules and regulations of your lease agreement." The court dismissed the holdover proceeding against the tenant. The court explained that a rent stabilized tenant can only be evicted for reasons stated in RSC Section 2524. Bankruptcy is not a reason for lease termination stated in this section. The court also noted that the bankruptcy judge's "rejection" of the lease (which was done in order to avoid tenant's responsibility for payment or rent pursuant to the lease) is not considered a lease termination pursuant to RPAPL Section 711(1).

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Case Caption:

Shahid v. Doe

Issues/Legal Principles:

Rent cannot be collected from tenants of multiple dwellings for the period which precedes the filing of a multiple dwelling registration ("MDR") with the Department of Housing Preservation and Development ("DHPD") of the City of New York

Keywords:

nonpayment; multiple dwelling registration statement

Court:

Civil Court, Kings County

Judge:

Hon. Peter Wendt

Date:

12/24/97

Citation:

NYLJ, page 24, col 6

Referred Statutes:

MDL Sections 302 and 325; Administrative Code of the City of New York Section 27-2107(b); 22 NYCRR Section 208.42(g)

Summary:

Landlord brought nonpayment proceedings against six different tenants in the same multiple dwelling. the petition alleged that the premises is a multiple dwelling which is registered with DHPD. This allegation was false because there was no MDR on file at the time the proceeding was brought. The landlord did not file the MDR until after the proceeding was commenced. MDL Section 325 requires owners of multiple dwellings to file a registration statement ("MDR") with DHPD. New owners are required to file an MDR within 30 days. MDL Section 325(2) provides that "no rent shall be recovered by the owner of a multiple dwelling who fails to comply with such registration requirements until he complies with such requirements." The court dismissed the nonpayment petitions, finding that MDL Section 325 bars recovery of rents due prior to the landlord's registration of the building as a multiple dwelling. Although the landlord registered with the DHCR, and therefore listed his name, address and telephone number on a form available to the tenants, this filing did not absolve landlord from the responsibility of providing the same information on an MDR form and filing the MDR form with DHPD. The court also rejected landlord's argument based upon certain court cases which interpreted MDL Section 302. MDL Section 302 provides that a landlord cannot collect rent outstanding from a time period when no residential certificate of occupancy ("C/O") has been issued for the subject premises. In one court case involving MDL Section 302, the court permitted a landlord to collect rent, notwithstanding the lack of a C/O, where the conditions preventing the issuance of a C/O were not hazardous and did not affect the tenant's occupancy. The Court found that this case involved different facts and a different statute and did not apply. The court reviewed earlier cases involving MDL Section 325 and found that no exceptions had been made to the rule that rent cannot be collected for the period prior to the landlord's registration of the building as a multiple dwelling.

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Case Caption:

Bascome v. Turano

Issues/Legal Principles:

Landlord's acceptance of payments which are clearly defined as "use and occupancy" does not create a landlord-tenant relationship.

Keywords:

holdover proceedings; use and occupancy payments; notice to quit; notice of termination

Court:

Civil Court, Kings County

Judge:

Hon. Finkelstein

Date:

December 24, 1997

Citation:

NYLJ, page 24, col 6

Referred Statutes:

CPLR Section 3211(a)(1),(2) and (7); RPL Section 232-a

Summary:

Respondent (tenant) sold the apartment to petitioner (landlord) and remained in possession. The contract of sale provided that the apartment was to be delivered vacant but that if respondent-seller did not vacate, seller must pay use and occupancy of $75.00 per day and that payment of the per diem should be made in a lump sum on the first day of each month. Seller (tenant) did not vacate and purchaser (landlord) served tenant with a notice to quit and then brought a holdover (eviction) proceeding. A notice to quit is a type of notice which alleges that there is no landlord-tenant relationship between the parties. The tenant made a motion to dismiss, alleging that landlord's acceptance of payments for five months created a month-to-month tenancy. Tenant argued that since tenant is a month-to-month tenant, landlord should have served tenant with a thirty-day notice of termination as required by RPL Section 232-a, instead of a notice to quit. The court denied tenant's motion to dismiss, finding that the agreement between the parties (which was entered into on the same day as the real estate closing) characterized the anticipated payments from respondent to petitioner as use and occupancy. The petitioner's acceptance of these use and occupancy payments did not create a month-to-month tenancy. Service of a notice to quit was proper.

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Case Caption:

Board of Managers of 140 East 56th Street Condominium v. Josef Hausner

Issues/Legal Principles:

Attorney's fees are awarded in an amount which is reasonable under all of the circumstances, particularly with reference to the amount in controversy in the underlying proceeding.

Keywords:

attorney's fees

Court:

Appellate Division, First Department

Judge:

lower court judge: Hon. William McCooe, Supreme Court, New York County

Date:

December 26. 1997

Citation:

NYLJ, page 22, col 6

Referred Statutes:

none cited

Summary:

The Board of Managers of a condominium assessed common charges in the amount of $3,600.00 for the installation of new windows and lobby renovations. The owner of a certain condominium unit refused to pay this assessment, the Board of Managers placed a lien on his unit and then brought an action in Supreme Court, New York County to foreclose upon the lien. The Supreme Court held that the unit owner was liable for the assessment because the assessment was based upon lawful action by the Board of Managers. The Supreme Court also awarded attorney's fees to the Board of Managers in an amount which is not specifically stated in the published opinion. The Appellate Division, First Department lowered the amount of attorney's fees awarded to $3,750.00, finding that "any such fee more than $3,750.00 would be unreasonable and excessive in light of the amount of the outstanding common charges of approximately $3,600.00 and the other attendant circumstances herein."

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Case Caption:

In re: Doran Zabari v. New York City Loft Board

Issues/Legal Principles:

The Loft Board's determination that tenant had implicitly waived his rights to rent regulation is arbitrary and capricious.

Keywords:

waiver of rights; sale of rights; arbitrary and capricious

Court:

Appellate Division, First Department

Judge:

lower court judge: Hon. Salvador Collazo

Date:

December 26, 1997

Citation:

NYLJ, page 22, col 2

Referred Statutes:

MDL Section 286(12); CPLR Section 217; 29 RCNY Section 2-10(b)

Summary:

The Loft Board determined (in Loft Board Order # 1899 dated October 16, 1995) that tenant implicitly waived his rights to rent regulation. Tenant challenged this determination by filing a proceeding in Supreme Court, New York County pursuant to Article 78 of the CPLR. The Supreme Court upheld the Loft Board's determination but the Appellate Division, First Department reversed, stating that the determination [that tenant had implicitly waived his rights] was "arbitrary and capricious, in view of MDL Section 286(12), permitting an owner to purchase an occupant's rights under the Loft Law, 29 RCNY Section 2-10(b), requiring the owner to file a record of such sale with the Board."

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Case Caption:

In re The Delano Village Companies by Axelrod Management Co., Inc. v. New York State Division of Housing and Community Renewal

Issues/Legal Principles:

If a landlord fails to provide services, a tenant may obtain a rent reduction order from the DHCR in addition to any other remedy, such as a rent abatement which may be awarded by the housing court in the context of a nonpayment proceeding.

Keywords:

rent reduction; rent abatement; waiver of rights

Court:

Appellate Division, First Department

Judge:

lower court judge: Hon. Salvador Collazo

Date:

December 26, 1997

Citation:

NYLJ, page 22, col 1

Referred Statutes:

Rent Stabilization Law Section 26-514; Rent Stabilization Law Section 2520.13

Summary:

On March 2, 1990, landlord and tenants entered into a stipulation of settlement in housing court. The court's decision does not describe the provisions of the stipulation. However, it seems that the stipulation provided a rent abatement for the tenants due to a lack of services. In 1992, the tenants filed a complaint with the DHCR seeking a rent reduction, pursuant to RSL Section 26-514, because certain services had not been provided. The owner argued that the tenants had already obtained a rent abatement in housing court and should not also be entitled to a rent reduction from the DHCR. The appellate court held that DHCR's rent reduction order was proper because (1) the rent reduction remedy which tenants may obtain by filing a complaint with the DHCR is available in addition to any other remedy provided by law and (2) the tenants, when they signed the stipulation of settlement in the housing court, did not waive their right to file an application for a rent reduction with the DHCR. The court cited prior decisions which held that "prospective waivers of rent stabilization rights in a settlement agreement are invalid as a matter of public policy."

Notes:

This case preceded the new rent laws. The opposite result would now ensue based on 1997 Rent Regulation Reform Act Section 46(7) which amends Section 26-514, and 1997 RRRA Section 39 which amends the Emergency Tenant Protection Act, as well as the warranty of habitability law, RPL 235-b. These amendments now prohibit what landlords refer to as "double- dipping," i.e., a tenant receiving a rent reduction from the DHCR and an abatement in Housing Court for the same violations. The new laws provide that if a tenant receives a rent reduction order, it "shall be reduced by any credit, abatement or offset in rent which the tenant has received pursuant to RPL 235-b that relates to one or more conditions covered by such order." Similarly, the new laws provide that if a tenant receives an abatement the court "shall reduce the amount awarded by the total amount of any rent reduction ordered issued by DHCR, from the effective date of such rent reduction order, that relates to one or more matters" for an abatement was granted. These laws should not prompt tenants to opt for one forum of relief or the other. Tenants should still seek a rent reduction and an abatement as both forums (DHCR and Housing Court, respectively) are two avenues to continue to pressure the landlord to make repairs. The new laws simply limit the tenant's recovery arising from the uncorrected violations.

Case Caption:

In Re Jemrock Realty Co. v. DHCR

Issues/Legal Principles:

DHCR has no obligation to inform landlord of amendments to the law relating to establishing initial legal rent.

Keywords:

fair market rent appeal; overcharges

Court:

Appellate Division, First Department

Judge:

lower court: Hon. Barry Cozier

Date:

December 15, 1997

Citation:

NYLJ, page 26, col 1

Referred Statutes:

none cited

Summary:

The Supreme Court denied landlord's application in an Article 78 proceeding to annul DHCR's determination which established the fair market initial stabilized rent and granted the tenant overcharges was affirmed by the Appellate Division. The landlord claimed that it was denied due process because DHCR failed to give it notice and opportunity to submit comparability data by not telling the landlord of amendments made to the Rent Stabilized Law and Code. Landlord claimed that had it been aware of the amendments, additional information could have affected the DHCR's determination. The Appellate Division ruled that since the landlord did not argue denial of due process at the administrative level, it could not be considered for the first time on appeal. The court also opined that the claim lacks merit because there is no requirement that DHCR notify the landlord of the existence of such amendments to the law.

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Case Caption:

Roger Williams Assoc. v. Korsak

Issues/Legal Principles:

Motion to renew or reargue prior order must be brought within 30 days after service of notice of entry.

Keywords:

statute of limitations; renew/reargue

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Saralee Evans

Date:

December 17, 1997

Citation:

NYLJ, page 21, col 1

Referred Statutes:

CPLR 5513(a)

Summary:

The lower court dismissed landlord's nonpayment petition and denied tenant's motion to amend their answer to include a claim for overcharges. No appeal was taken of that order which was dated July 25, 1996. On or about October 11, 1996, the tenant moved for reargument. The landlord's attorney affirmed that the tenants were served by mail with a copy of the July 25th order with notice of entry on July 29, 1996, but the tenants' attorney denied receipt of same. The court granted tenants' motion to reargue and permitted them to amend their answer to include the counterclaims. The Appellate Term reversed on grounds that a motion to renew or reargue an order must be done within 30 days after service of the notice of entry, similar to the time period required to file a notice of appeal. The Appellate Term held that instead of granting the tenants' reargument motion, the lower court should have conducted a hearing on the service of the notice of entry. If the landlord can show that the notice of entry was properly served, then presumably the lower court must deny the tenants' October motion as untimely.

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Case Caption:

UBO Realty Corp. v. Mollica

Issues/Legal Principles:

Tenant's longterm residence in commercial space precludes landlord from evicting tenant.

Keywords:

mixed usage

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Leona Freedman

Date:

December 17, 1997

Citation:

NYLJ, page 21, col 2

Referred Statutes:

none cited

Summary:

Tenant resided in the storefront premises of the multiple dwelling since 1979. The premises had a loft bed, kitchen and bathroom facilities when he commenced occupancy. He originally lived in the entire space for 3 years and then began to utilize the front half for his copy shop business. He signed a series of commercial leases which provided the premises were used for "printing and photo copiers," but the phrase "and for no other purpose" was deleted and initialed in the latest lease. At trial the landlord failed to produce a witness with personal knowledge to contest the tenant's duration and character of occupancy. The Appellate Term upheld the lower court's dismissal of the holdover petition on grounds that a landlord's acquiescence in a long-term mixed use of living/working space triggers the protections of the Emergency Tenant Protection Act of 1974.

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Case Caption:

Alawlaqi v. Kelly

Issues/Legal Principles:

Private landlords' holdover proceedings against Section 8 tenants must also be properly served on the New York City Housing Authority.

Keywords:

service of process; Section 8 tenants

Court:

Civil Housing Court, Kings County

Judge:

Hon. Callender

Date:

December 17, 1997

Citation:

NYLJ, page 25, col 3

Referred Statutes:

none cited

Summary:

The issue in this case is whether a private landlord in a Section 8 subsidized program or with a Section 8 tenant can serve the New York City Housing Authority copies of the eviction papers against the tenant in any manner it chooses when it is evident that the NYCHA has no objection to a holdover eviction proceeding against the tenant. The court referred to a federal case (Diedre Williams et al v. NYCHA, 81 Civ. 1801, US District Court for the Southern District 1995) where it was held that in a good cause eviction proceeding, NYCHA must be served the petition and notice of petition pursuant to state law or by overnight mail. The order makes no other reference of service available to a private landlord. For reasons unclear, the process server served copies of the eviction proceeding only by mail. The landlord's attorney argued that this method was reasonable since NYCHA had no objections to the proceeding. The court ruled that the Williams order must be adhered to, or the landlord must refrain from bringing eviction proceedings against their Section 8 tenants. In reliance on the federal case, the court dismissed the petition for improper service on NYCHA.

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Case Caption:

Erica Lee Corp. v. Goldenberg

Issues/Legal Principles:

Tenants on rent strike permitted to consolidate their petitions

Keywords:

rent strike; consolidation

Court:

Civil Court, New York County

Judge:

Hon. Donna Mills

Date:

December 17, 1997

Citation:

NYLJ, page 24, col 1

Referred Statutes:

NY Civil Ct. Act 110(b); CPLR 602(a)

Summary:

9 tenants went on a rent strike and each received a petition to appear in court. They sought to consolidate their cases into one case for trial. The court granted the tenant's motion to consolidate finding that each of the tenant's answers to the petitions make similar claims (e.g., breach of warranty of habitability, no certificate of occupancy, etc.) The court noted that each case involves the same building, same landlord, same law firms representing the tenants, and thus share common questions of law and fact.

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Case Caption:

Chong v. Chu Bing Sung

Issues/Legal Principles:

Tenant allowed to occupy two apartments as her primary residence since she uses both apartments for residential purposes.

Keywords:

primary residency; combined units

Court:

Civil Housing Court, New York County

Judge:

Hon. Howard Malatzky

Date:

December 17, 1997

Citation:

NYLJ, page 24, col 2

Referred Statutes:

CPLR 3211

Summary:

The tenant began living in Apartments 9 and 10 in the 1950s and asserts that she has always occupied both units as her primary residency with her family even after her husband's death in 1997. The landlord brought a holdover proceeding against her on grounds that she occupies unit 10 as her principal residence and therefore cannot also occupy unit 9 since she is, according to the landlord, not permitted to occupy two rent controlled apartments. The apartments lie next to each other on the same floor. In comparing past cases, the court concluded that a tenant can occupy two apartments as their primary residence, provided both apartments are used for residential purposes. A tenant cannot use one apartment as a residence and the other for storage, or business or hobby, or a guest room.

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Case Caption:

Yellen v. Baez

Issues/Legal Principles:

Tenant who seeks adjournment based on the need for an interpreter cannot be required to make a rent deposit under the new rent deposit law as it violates the due process and equal protection clauses of the U.S. and New York State Constitutions.

Keywords:

rent deposit law; interpreters; due process; equal protection

Court:

Civil Court, Richmond County

Judge:

Hon. Straniere

Date:

December 17, 1997

Citation:

NYLJ, page 26, col 2

Referred Statutes:

RPAPL 745; Civil Rights Law 40-c

Summary:

Landlord brought a non-payment proceeding against the tenant who appeared pro se on the return date, December 2, 1997. The tenant needed an interpreter but one is not available on a daily basis in Richmond County so the case was adjourned to December 9th so that an interpreter could be procured. The new rent deposit law provides that if a tenant seeks a second adjournment, or upon the 30th day after the first appearance by the court less any days that the proceeding has been adjourned upon the request of the petitioner, which ever occurs sooner, the court shall direct the tenant upon application by the landlord to deposit with the court within 5 days the rent accrued from the date the petition was served on the tenant. The landlord asked the court to determine if the tenant's adjournment triggered the statute thereby necessitating a rent deposit by the tenant. The court noted that the statute makes no provisions for waiving the deposit if the court is unavailable or if the tenant needs an interpreter. One adjournment is permitted to find or consult with an attorney without charging the adjournment to the tenant. The court ruled that it would be violative of the due process and equal protection clauses of the US and New York State Constitutions to charge the adjournment to the tenant. The court found that RPAPL 745 discriminates against non-English speaking tenants and places them at a disadvantage. The court stated: "The unjust and ludicrous result is that the time is charged the tenant when the Court cannot even inform the tenant of his or her rights, including the right to counsel, let alone discuss the intricacies of the new rent deposit law or the merits of the case. It is entirely possible that the tenant could be charged with the two adjournments within days of the first appearance (one for an interpreter and the second after the court informs the tenant through an interpreter of the right to counsel), and thereby be penalized before even consulting with an attorney." The court held that due process of law includes the right to have an adequate interpretation of the proceedings. The court held that language can be a basis of finding of discrimination based on national origin when it creates a discriminatory result against all persons who do not speak English, and this is violative of the US and New York State's Constitution's equal protection clause. The court also held that the due process and equal protection clauses are also violated for persons who need assistance because of a disability.

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Case Caption:

300 E. 34th Street Co. v. Habeeb

Issues/Legal Principles:

The absence of documents is not conclusive evidence of a tenant's primary residence, nor is documentary evidence required under the statute.

Keywords:

nonprimary residency

Court:

Appellate Division, First Department

Judge:

lower court: Hon. Howard Malatzky

Date:

December 18, 1997

Citation:

NYLJ, page 25, col 3

Referred Statutes:

RSC 2523.5(b)(1) & 2520.6(o)

Summary:

Respondent-occupant Habeeb sought succession rights to his deceased uncle's rent stabilized apartment. Habeeb was the nephew and godson of the tenant of record who died in July, 1993 from AIDS complications. A trial was held wherein Habeeb asserted that he lived with his ailing uncle as his primary residence for at least two years prior to his uncle's death (the necessary time period under the succession rights statute). He testified that he moved into the apartment on a full-time basis in November 1990 to care for his uncle. Prior thereto he lived with his parents in Peekskill, New York and spent 2-3 nights at the apartment shortly after his uncle was diagnosed with AIDS. He testified that he changed employment in order to obtain more flexible hours to attend to his uncle's needs, such as cleaning bandages, cooking and feeding, taking his uncle to medical appointments, and transporting work assignments from his uncle's employer to and fro. The uncle's housekeeper, Irene Mora, testified that she worked for the uncle from the mid-1980s until his death and observed Habeeb residing in the apartment full-time staring in November or December, 1990. She stated that the uncle installed an additional towel rack in the bathroom for Habeeb's personal items. Frank Tignino, a good friend of the uncle, testified that he observed Habeeb living in the apartment on a daily and nightly basis for more than two years before the uncle died. He often dined in the apartment, called daily and Habeeb would answer the phone. Habeeb's mother corroborated her son's testimony setting forth the date when her son moved into the uncle's apartment and forwarded her son's mail to the apartment. The landlord's doorman testified for the landlord and testified that he saw Habeeb only sporadically, but conceded that he saw Habeeb regularly in the mornings after 1993. This was not inconsistent with Habeeb's testimony of his work hours. Habeeb's witnesses were not controverted, except for the doorman's "sporadic" seeing of Habeeb prior to 1993. The lower court granted succession rights to Habeeb. The Appellate Term reversed on grounds that Habeeb's "paper trial" of residency was insufficient to substantiate the nephew's claim. The landlord had submitted documents showing that Habeeb paid taxes at Peekskill prior to 1993, paid no New York City taxes after 1993, maintained a Peekskill address for voter's registration and the 1991 driver's license listed Peekskill. Habeeb stated that he did not drive and saw no need to change his address because his parents forwarded his mail to the apartment. The landlord submitted other evidence which supposedly undermined Habeeb's position. The Appellate Division held that it would not disturb the trial court's findings of facts unless it was obvious that the court's conclusions could not be reached under any fair interpretation of the evidence. The Appellate Term did not counter the lower court's findings of fact, but simply held that Habeeb's paper trail was insufficient. The Appellate Term's ruling raised the question of whether documentary evidence is required in nonprimary residency issues. The Appellate Division held that it was not. The Appellate Division held that "paper trial" documents (such as driver's license, tax returns, telephone records, etc.) are competent evidence establishing a period of residency, but the statute does not require such evidence as conclusive proof. Documents, or the absence of documents, are useful in evaluating primary residency cases, but they are not dispositive, particularly where there is a preponderance of credible personal testimony. The Appellate Division upheld the trial court's findings of credibility with respect to Habeeb and his witnesses. The Appellate Division also rejected the landlord's argument that the new 1997 law whereby nephews are not allowed succession rights should be applied. The court held that the new statute should not act retroactively.

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Case Caption:

Mendez v. Davana Realty Corp.

Issues/Legal Principles:

Summary judgment granted to plaintiff where tenant proved that landlord had knowledge of her children's ages, and landlord's failed to abate lead paint conditions.

Keywords:

lead paint

Court:

Supreme Court, New York County

Judge:

Hon. Emily Goodman

Date:

December 19, 1997

Citation:

NYLJ, page 29, col 6

Referred Statutes:

Administrative Code 27-2013

Summary:

The infant plaintiff sued the landlord through their mother, their natural guardian. The landlord was sued for injuries sustained to the children by lead poisoning. Both children resided in the premises since birth and both were severely damaged as a result of eating paint chips laden with lead paint found within the apartment. The law provides that landlords are obligated to remove lead-based paint in apartments where a child or children under six years of age resides. A landlord is liable for damages if it had actual or constructive notice of the child and failed to reasonably remedy a hazardous lead condition. The defendant landlord claimed that it had no notice that a child under 6 lived in the apartment. The court rejected this position in light of the numerous letters sent by the landlord confirming the mother's residency in the apartment with her four children, and the lease application stating the age of 1« years. From 1976 onward the landlord had notice of the lead paint and took no steps to abate it. The court granted plaintiff's motion for summary judgment on the issue of liability and set the matter down for a jury trial on the damages.

Case Caption:

Elkind v. Joyner

Issues/Legal Principles:

Landlord's failure to serve a copy of the motion papers and the judgment upon tenant's attorney, who had filed a notice of appearance, leads to vacatur of default judgment against tenant.

Keywords:

default judgment; motions to vacate default judgments; notice of appearance

Court:

Civil Court, New York County

Judge:

Hon. Callender

Date:

December 10, 1997

Citation:

NYLJ, page 35, col 2

Referred Statutes:

CPLR Sections 321 and 5015

Summary:

The attorney for the respondent-tenant filed a notice of appearance with the Court. A notice of appearance indicates that a party is represented by an attorney and sets forth the name, address and telephone number of the attorney. At some point in the proceedings, the case was marked off the calendar. Later, the attorney for the petitioner-landlord made a motion to restore the case to the calendar and sent a copy of the motion papers to the respondent-tenant but not to the tenant's attorney. The landlord's attorney appeared in Court on the date set forth in the motion papers but neither the tenant nor the tenant's attorney appeared. The Court awarded a default judgment to the landlord. The landlord's attorney served a copy of the default judgment upon the tenant but not the tenant's attorney. The tenant's attorney then moved to vacate the default judgment. The Court decided to vacate the default judgment because the landlord's attorney failed to serve a copy of the motion and the default judgment upon the tenant's attorney. Once an attorney files a notice of appearance, the Court can take no action in the case unless the attorney for the party is present. CPLR Section 321. Thus, the Court had no jurisdiction to issue a judgment against the tenant and was therefore compelled to vacate the judgment. Since the tenant was not properly served, the judgment was vacated without requiring the tenant to show that tenant has a meritorious defense, as required by CPLR Section 5015.

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Case Caption:

NYC Coalition to End Lead Poisoning v. Helen Walker

Issues/Legal Principles:

A finding of civil contempt against the City of New York is proper because of the City's failure to issue and enforce regulations to protect children from lead paint.

Keywords:

civil contempt; criminal contempt; lead paint

Court:

Appellate Division, First Department

Judge:

lower court judge: Hon. Louis York, Supreme Court, New York County

Date:

December 11, 1997

Citation:

NYLJ, page 26, col 2

Referred Statutes:

Housing Maintenance Code Sections 2013(h) and 2115; Judiciary Law Sections 753[A][3] and 750[A][3]; 24 RCNY Section 173.14; 28 NYCRR Section 11-01; CPLR Section 904.

Summary:

The Supreme Court issued an order (a preliminary injunction) requiring the City of New York to promulgate and enforce written rules and procedures, as required by Housing Maintenance Code Section 2013(h) and other statutes, to alleviate the danger of children's exposure to lead-based paint in multiple dwellings. Plaintiff Coalition brought a motion before the Supreme Court for various forms of relief including an order finding the City in civil and criminal contempt of Court for failure to comply with the Court's order. The Supreme Court granted the motion. The Appellate Division, First Department affirmed the finding of civil contempt but reversed the finding of criminal contempt because there was insufficient evidence that the City had willfully disobeyed the Court's order. The Appellate Division, First Department found that the civil contempt finding was proper for many reasons. For example, the court had ordered the Department of Housing Preservation and Development of the City of New York ('DHPD') to promulgate regulations about when children and pregnant women must be relocated during an abatement procedure. Although the City issued regulations about abatement standards [24 RCNY Section 173.14], the standards do not address the relocation issue. DHPD also failed to create time limits for conducting inspections and issuing notices of violation. The Appellate Division, First Department also vacated the Supreme Court's order of class certification and assessment of attorney's fees against the State defendants and remanded the issue of notice to the Class as against the City defendants.

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Case Caption:

In re: Lucia Ortiz v. New York City Housing Authority

Issues/Legal Principles:

Termination of public housing tenancy for drug dealing is upheld.

Keywords:

Housing Authority; termination of tenancy; drug dealing

Court:

Appellate Division, First Department

Judge:

lower court judge: Hon. Carmen Ciparick

Date:

December 11, 1997

Citation:

NYLJ, page 28, col 4

Referred Statutes:

CPLR Article 78

Summary:

The Housing Authority terminated the petitioner's public housing tenancy on the grounds of nondesireability due to the sale and possession of illegal drugs from the apartment. The tenant brought a proceeding pursuant to Article 78 of the CPLR to challenge the Housing Authority's finding. The Supreme court dismissed the Article 78 proceeding and this determination was affirmed by the Appellate Division, First Department. The Appellate Division, First Department noted that the charges of nondesireability were well supported by the testimony of the police officers who arrested petitioner and the police officers who executed search warrants at the apartment.

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Case Caption:

Matter of Louis Sutherland v. DHCR

Issues/Legal Principles:

DHCR's order granting MCI rent increases to landlord is upheld because it was supported by substantial evidence.

Keywords:

MCI rent increase

Court:

Appellate Division; Second Department

Judge:

lower court judge: Hon. LeVine

Date:

December 12, 1997

Citation:

NYLJ, page 31, col 3

Referred Statutes:

9 NYCRR Section 2522; CPLR Article 78

Summary:

The DHCR granted the landlord's application for rent increases based upon major capitol improvements (MCI). the landlord had replaced 13,932 windows at a cost of about $2,500,000.00. The tenants brought an action pursuant to Article 78 of the CPLR to challenge the DHCR's order. The Supreme Court dismissed the petition and the Appellate Division, Second Department affirmed, finding that the entitlement to the MCI rent increases was supported by substantial evidence. Tenants' claims that the financing of the MCI was irregular were not supported. After the Court dismissed the Article 78 proceeding, the tenants brought an action seeking to permanently enjoin the landlord from continuing to collect the rent increases. The Supreme Court dismissed this action and the Appellate Division, Second Department affirmed. The action for a permanent injunction is barred by the legal principle of 'res judicata,' which means the thing ('res') has been adjudicated ('judicata'). Both causes of action / requests for relief arise out of the same transaction or serious of transactions. The second action (for a permanent injunction) cannot be heard because the Court ruled against the tenants in the first action (the Article 78).

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Case Caption:

Brusco v. Gray

Issues/Legal Principles:

Tenant is evicted for subletting his apartment without first requesting the landlord's consent.

Keywords:

illegal subletting; non-primary residence; roommate law

Court:

Appellate Term, First Department

Judge:

lower court judge: Hon. Marion C. Doherty

Date:

December 12, 1997

Citation:

NYLJ, page 26, col 3

Referred Statutes:

Real Property Law Sections 226-b, 234-f and 235-f[3]; Rent Stabilization Code Section 2525.6[a].

Summary:

The landlord brought a holdover proceeding against the tenant [Gray] for unlawfully subletting his rent stabilized apartment to Edwards. The trial court granted judgment for landlord and this determination was upheld by the Appellate Term, 1st Department. Tenant breached a substantial obligation of his tenancy by subletting his apartment without first requesting the permission of the landlord. RPL Section 226-b. Furthermore, the fact that tenant is employed in Washington, D.C. and maintains a driver's license there indicates that he has not maintained the apartment as his primary residence and does not intend to occupy it as his primary residence after the sublease ends. Edwards is a subtenant, not a roommate, because there is no proof that tenant contemporaneously occupied the apartment with her and that tenant maintained the apartment as his primary residence during Edwards' occupancy. There was also no proof that landlord recognized Edwards as a tenant in her own right or waived the right to contest her continued occupancy. Since all renewal leases were signed by Gray, the rent was paid by Gray and Gray made no formal request to sublet, landlord could only have recognized Edwards as an occupant, not a tenant.

Case Caption:

Primrose Management Co. v. Donahoe

Issues/Legal Principles:

Subtenant is given apartment where illusory prime tenant vacated 23 years ago.

Keywords:

illusory prime tenant; subtenants

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Eardell Rashford

Date:

December 1, 1997

Citation:

NYLJ, page 25, col 2

Referred Statutes:

none cited

Summary:

The rent controlled tenant permanently relocated to California in 1974 but continued to sublet the apartment. The previous subtenant occupied the apartment for 14 years. The current subtenant moved in in January, 1900 and was charged a rent roughly $300 above the legal regulated rent. The landlord brought a holdover proceeding and the lower court held that the prime tenant was an illusory prime tenant and awarded the apartment to the subtenant. The Appellate Term upheld the decision even though there was no evidence that the landlord profited from the prime tenant's actions (i.e., the landlord did not receive any rent above the legal rent) and no evidence that the landlord colluded with the prime tenant. The Appellate Term held that these factors were not a requirement in finding whether an illusory prime tenancy existed. The Court held that the number of years the prime tenant was out of possession was a "salient consideration" and "it strains credulity that neither the landlord nor its agents lacked knowledge that third parties other than the tenant were residing at the premises." In this fact pattern the Appellate Term held that the subtenant should be deemed the tenant of the apartment and accorded protection from eviction. Justice McCooe offered a very long and vigorous dissent. In his opinion the case was just one concerning a prolonged unlawful subtenancy, and he would have awarded the apartment to the landlord. Justice McCooe analyzed at length prior case law concerning illusory tenants and took the position that in order to establish an illusory prime tenancy prior case law dictates that there must be a showing of the landlord's collusion with the prime tenant. Given his articulate dissent, it is likely that the landlord will appeal this matter to the Appellate Division.

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Case Caption:

Johnson v. DeFeo

Issues/Legal Principles:

Lease did not require tenant to install carpet as a condition to occupancy

Keywords:

lease terms

Court:

City Court of Mount Vernon, Westchester County

Judge:

Hon. Seiden

Date:

December 3, 1997

Citation:

NYLJ, page 35, col 1

Referred Statutes:

none cited

Summary:

The plaintiff sued for recovery of one month's rent, a security deposit, and return of the finder's fee paid for the apartment. He claimed to have signed the lease without reading it. He obtained the keys from the super and was told not to worry about carpeting the apartment. The lease contained a clause that the tenant was required to carpet 90% of the apartment. When plaintiff claimed lack of funds to purchase the carpeting the owner would not permit him to commence occupancy until the carpeting was laid down. The court held that the lease provision requiring carpeting does not explicitly set forth that the tenant is precluded from occupancy if no carpeting is provided and therefore the landlord was wrong to prevent the tenant from moving in. The court also rejected the landlord's position that the no carpeting rule was written on the tenant's application for the apartment, because the application was not part of the lease. The court awarded the plaintiff a refund of all monies he paid.

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Case Caption:

Ciufetelli v. Meginn

Issues/Legal Principles:

Tenant allowed to vacate stipulation on grounds of mistake concerning DSS payments

Keywords:

stipulations; DSS

Court:

Appellate Term, 9th & 10th Judicial Districts

Judge:

lower court: Hon. R. Liebowitz

Date:

December 3, 1997

Citation:

NYLJ, page 33, col 1

Referred Statutes:

none cited

Summary:

Tenant sought to vacate a stipulation that granted landlord a final judgment and warrant of eviction in exchange for a waiver of all rent due. The elderly tenant, a recipient of welfare shelter benefits, moved to vacate the stipulation on grounds there was a mistake. She argued to the court below that landlord failed to file an executed W-9 statement with the Department of Social Services and this prevented the release of the shelter funds. Tenant was mistakenly told by DSS that a W-9 was necessary in order to release shelter funds and that the landlord had a vendor identification number on file with DSS. Apparently this was all wrong information, but the lower court declined to vacate the stipulation. The appellate court reversed finding that this was an innocent mistake on the tenant's part, and but for the failure of DSS to release funds, the rent would have been paid and she would have kept the apartment. The appellate court also noted that DSS was ready and willing to pay the arrears. In the interest of justice the appellate court vacated the stipulation.

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Case Caption:

Leander v. Burnett

Issues/Legal Principles:

Petition dismissed for process server's faulty practices.

Keywords:

process servers

Court:

Civil Court, Kings County

Judge:

Hon. Callender

Date:

December 3, 1997

Citation:

NYLJ, page 33, col 5

Referred Statutes:

General Business Law 89-cc(2)(L); Rules of the City of New York 2-333

Summary:

The court dismissed a petition upon finding that the process server's testimony was inconsistent and its practice of serving petitions faulty, including: the log book entries did not indicate the date or times of the various attempts of service made, the log book made no distinction as to what occurred on the first visit when compared with the second visit to an apartment, and the log book failed to specify the color of the apartment door, description of the halls, entrance doors, elevators, etc. The court reported the process server to the Department of Consumer Affairs which regulates process servers.

Notes:

This case provides useful information to ascertain the standards applied to process servers in maintaining their log books.

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Case Caption:

Uses Realty Corp. v. Johnson

Issues/Legal Principles:

Tenant evicted on nuisance grounds

Keywords:

nuisance

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Arthur Birnbaum

Date:

December 3, 1997

Citation:

NYLJ, page 29, col 2

Referred Statutes:

RSC 2524.3(b)

Summary:

Landlord brought a nuisance holdover against tenant on grounds of excessive noise, repeatedly allowing water to overflow and offensive odors emanating from tenant's apartment. This activity threatened the comfort and safety of the building tenants. The Appellate Term upheld the lower court's decision to evict the tenant on grounds of nuisance. The case does not state whether the tenant was provided a ten-day post-judgment cure period.

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Case Caption:

Riverbend Housing Co. v. Prince

Issues/Legal Principles:

Mitchell Lama stock equity increases are deemed "rent."

Keywords:

Mitchell Lama

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Jerald R. Klein

Date:

December 3, 1997

Citation:

NYLJ, page 29, col 1

Referred Statutes:

RPAPL 711(2)

Summary:

The lower court vacated a judgment against the Mitchell Lama tenant in this nonpayment proceeding on grounds that the stock equity increases charges were not "rent" subject to a summary proceeding if the tenant did not pay them. The Appellate Term reversed in reliance on a case decided by the Appellate Term one year earlier. The tenant's occupancy agreement required her to pay as rent her proportionate shares defined as "all reasonable and necessary expenses and outlays growing out of or connected with the ownership, maintenance and operation of the building . . . including cost of improvements, additions, alterations, replacements and repairs." A well-argued dissent was offered by Justice Helen Freedman on grounds that charging the tenant for these costs should not be deemed rent subject to a summary eviction proceeding. The dissent argued that the landlord suffers minimal prejudice if the tenant does not pay the charges, but the other two justices stated that the dissent failed to take into account that the other tenant shareholders would be prejudiced because they would have to pay their share of the charges, and that it is not fair if the other tenants have to pay and this tenant be excused. The end result would be that the property would fall into disrepair if no one paid the charges. The dissent argued that the occupancy agreement does not expressly provide for stock equity increases payments. She also noted that the elderly tenant was denied SCRIE benefits (Senior Citizen Rent Increase Exemptions) for rent increases arising out of stock equity increases, "thus making clear its position that these increases are not rent or carrying charges."

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Case Caption:

Matter of Cowens v. NYC DHPD

Issues/Legal Principles:

Mitchell Lama succession tenant evicted for failure to move to smaller apartment.

Keywords:

Mitchell Lama

Court:

Supreme Court, New York County

Judge:

Hon. Fried

Date:

December 3, 1997

Citation:

NYLJ, page 30, col 1

Referred Statutes:

28 Rules of the City of New York 3-01; Private Housing Finance Law

Summary:

Petitioner Cowens and her cousin/godmother Dismuke resided in a two bedroom cooperative Mitchell Lama apartment. In 1995, Dismuke (the original stockholder) permanently vacated the apartment and requested that Cowens be given succession rights to the apartment. Cowens wrote the landlord a letter stating that she understood that she could remain in the apartment until a one-bedroom apartment became available. The landlord agreed that if her succession claim was granted she would be given the first available one-bedroom apartment. Cowens signed a document entitled "Incoming Stockholder's Succession Affidavit" which permitted her to move to a one bedroom when it became available. Cowens and the landlord also signed an occupancy agreement for an apartment. When an apartment became available Cowens rejected it because she wanted an eastern view. The landlord consented and later offered her an apartment with an eastern view which she rejected apparently on grounds that the landlord did not offer her the first one-bedroom apartment to become available in the building. The case does not sufficiently explain Cowens' motives for rejecting the eastern view apartment which the landlord eventually offered her. In any event, the landlord sought a certificate of eviction from HPD and it was granted on grounds that Cowens signed the Succession Affidavit which explicitly required her to move into a one-bedroom apartment. Cowens challenged this in an Article 78 proceeding and lost.

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Case Caption:

Avon Bard Co. v. Aquarian Foundation

Issues/Legal Principles:

Corporation that did not turn over stabilized apartment to a series of corporate employees or officers did not create a perpetual tenancy.

Keywords:

perpetual tenancy; corporations; subletting

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Howard Malatzky

Date:

December 3, 1997

Citation:

NYLJ, page 29, col 1

Referred Statutes:

RSC 2524.2[b]

Summary:

Landlord sought to evict a religious corporation on the grounds that a perpetual tenancy had been created. The landlord claimed that respondent corporation could not primarily reside in the apartment, relying on a prior case where a corporation continuously sublet rent stabilized apartments to a series of different employees. The lower court dismissed the petition because the landlord erroneously described the tenant as a "charitable foundation" rather than a "religious corporation." The Appellate Court distinguished the prior case and affirmed the lower court's dismissal of the holdover petition on other grounds. The Court held that the subject premises was rented for the benefit of an identified individual, who signed the lease and resided in the apartment for 17 years. Since there was "no turnover of the premises to a succession of corporate employees or officers," no perpetual tenancy had been created. Moreover, since there was no allegation in the notice of termination that either the corporation or the identified individual (1) had sublet the premises; (2) had another primary residence; or (3) did not occupy the subject premises as a primary residence, the holdover petition was dismissed.

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Case Caption:

New Amsterdam Apartments Co. v. Sheets

Issues/Legal Principles:

Chipped paint may not be automatic breach of the warranty of habitability.

Keywords:

abatement; paint

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Bruce J. Gould

Date:

December 3, 1997

Citation:

NYLJ, page 29, col 1

Referred Statutes:

RPL 235-b; Housing Maintenance Code 27-2013

Summary:

Appellate Term vacated a rent abatement of 6% which was granted for a period of almost six years, finding that the small areas of chipped paint in the bedroom and living room did not establish that the tenant had been " . . . subjected to any conditions which would be dangerous, hazardous or detrimental to life, health or safety." The Court held that the fact that the apartment was not timely painted is not an automatic breach of the warranty of habitability. Moreover, the Court considered that the tenant did not request that the apartment be painted until after the nonpayment proceeding was commenced, and that tenant did not respond to the landlord's request for access to the apartment.

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Case Caption:

United Welfare Fund-Security Division v. LAP Realty Corp.

Issues/Legal Principles:

Landlord-tenant relationship is created when landlord receives deed in foreclosure

Keywords:

foreclosure; predicate notice; conditional limitation

Court:

Appellate Term, Ninth and Tenth Judicial Districts

Judge:

lower court: Hon. K. Resnick

Date:

December 3, 1997

Citation:

NYLJ, page 33, col 1

Referred Statutes:

Real Property Law 223; RPAPL 711(1), (2)

Summary:

The trial court granted tenant's motion for summary judgement, finding that a landlord- tenant relationship was not created when the landlord received the deed to the demised property in foreclosure. The Appellate Term affirmed tenant's motion on different grounds. While the Court held that a landlord-tenant relationship was in fact created between the parties, the nonpayment proceeding nonetheless required dismissal because the predicate notice did not demand in the alternative payment of the rent or possession of the premises. Moreover, the Court found that the action was not maintainable as a holdover proceeding as there was no conditional limitation in the lease allowing for automatic termination in the event of default.

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Case Caption:

Dreams Development Inc. v. Marinucci

Issues/Legal Principles:

Landlord may not unilaterally increase the rent during the course of litigation.

Keywords:

rent increase

Court:

Appellate Term, Ninth and Tenth Judicial Districts

Judge:

lower court: Hon. T. Wood

Date:

December 3, 1997

Citation:

NYLJ, page 33, col 1

Referred Statutes:

RPAPL 749(3)

Summary:

Appellate Term held that during the summary proceeding, but prior to issuance of the warrant terminating the landlord-tenant relationship, a tenant is not liable for increased rent unilaterally charged by the landlord.

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