Housing Court Decisions February 1997

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Case Caption:

Stern v. Young

Issues/Legal Principles:

Tenant still liable for rent even though landlord waited five years to present rent checks to the bank.

Keywords:

stale rent

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Margaret Taylor

Date:

February 24, 1997

Citation:

NYLJ, page 28, col 4

Referred Statutes:

UCC 3-502(1)(b); RPAPL 711(2)

Summary:

Landlord brought a plenary action against tenant to recover rent due under a Rent Stabilized lease from April 1989 through April 1994. (Tenant was no longer in possession, so the case was not brought in Housing Court). It was not disputed that the tenant timely tendered checks for the full amount of the monthly rent throughout the five-year period covered by the complaint. Landlord refrained from negotiating the rent checks until April 1994 because of an ongoing dispute over the lawful stabilized rent for the apartment. When landlord finally decided to cash the checks, they were no longer collectible upon presentation. The Appellate Term disagreed with tenant's argument that her liability as drawer of the checks was discharged by reason of landlord's delay in presentment. A drawer is discharged from liability only where presentment is unreasonably delayed and the drawee bank become insolvent during the delay. The Court also rejected the tenant's waiver or estoppel defenses, "there being no showing of a voluntary and intentional relinquishment of landlord's rent claim or any prejudicial change in tenant's position as a result of landlord's delay in negotiating the checks." The Court also held that landlord was not required to make a valid rent demand pursuant to RPAPL 711(2) since the complaint was not brought as a summary proceeding. The Court granted summary judgment to the landlord.

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Case Caption:

Nunez v. Giuliani

Issues/Legal Principles:

SCRIE tenant's "eligibility" date is upon application for exemption, not on date tenant may be qualified in general to receive exemption.

Keywords:

SCRIE

Court:

Appellate Division, First Department

Judge:

lower court: Hon. Louis York

Date:

February 24, 1997

Citation:

NYLJ, page 25, col 1

Referred Statutes:

Real Property Tax Law 467-b; Administrative Code 26-509, NYCRR 2202.20(d)(2)

Summary:

The lower court ordered the NYC Department of the Aging to alter its method of calculation of the Senior Citizen Rent Increase Exemption (SCRIE). To qualify for an exemption, the household head must be at least 62 years old, the annual aggregate disposable income of all household members "for the income tax year immediately preceding the date of making application" must not exceed $20,000, and the apartment rent must exceed one-third of the household income. The Administrative Code requires that upon receipt of a suitable application, the Department must issue an exemption order to take effect on the first day of the first month after the application's receipt is made. The landlord receives a property tax credit to offset the loss of rental income from the tenant. Recipients must reapply for the exemption every two years. This class action involved the meaning of the phrase "eligibility date." For more than 20 years, the Department has held that term to denote the date a qualified applicant applies for a SCRIE order. By this reading, a successful SCRIE applicant may be charged the rent in effect on the date of application, even if that figure includes rent increases which might have been avoided had the applicant applied for the exemption at an earlier time. The plaintiffs claim that "eligibility date" must refer instead to the earliest date that an applicant met the qualifying criteria of age, income and rent. By this view, a tenant who qualifies for the exemption could mean that the applicant's rent could be rolled back to a date preceding the application, perhaps by many years. The lower court adopted plaintiff's interpretation of the statute and ordered defendants to alter their method of calculating rental exemptions to conform with plaintiff's expectation. The Appellate Division reversed, holding that "eligibility" does not mean when a tenant might be eligible, but rather when the application is made, particularly since the statute explicitly states that income eligibility for the exemption be measured for the year immediately preceding the application date.

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Case Caption:

135th Street Corp. v. Sanchez

Issues/Legal Principles:

Court did not abuse its discretion to deny vacatur of pro se stipulation.

Keywords:

stipulations

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Arlene Hahn

Date:

February 25, 1997

Citation:

NYLJ, page 25, col 5

Referred Statutes:

none cited

Summary:

Pro Se tenant sought to vacate three so-ordered stipulations which gave the tenant substantial time to pay the arrears and secure "Jiggetts relief." The court rejected the ground that tenant's husband was unauthorized to sign the stipulation. Also no issue or repairs or rent overcharge was raised until tenant's motion to vacate was brought six months after the initial stipulation, nor did the tenant make a threshold showing of overcharge. The Court noted that "the Civil Court contemplates pro se litigation in the Housing Part." Presumably, tenant's further ground to vacate was based on her pro se status lacking a lawyer.

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Case Caption:

Weil v. Calhoun

Issues/Legal Principles:

Owner of co-op shares could not evict tenant in possession on owner occupancy grounds.

Keywords:

owner occupancy; co-op tenants in occupancy

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Marian Doherty

Date:

February 25, 1997

Citation:

NYLJ, page 25, col 4

Referred Statutes:

RSC 2524.4(a)(1); General Business Law 352-eeee(2)(c)(ii)

Summary:

The landlord, a proprietary lessee of a stabilized apartment converted to a co-op under a non-eviction plan, sought possession of the premises for her personal use and occupancy. The respondent, a non-purchasing tenant, had resided in the premises continuously since 1979 under consecutive renewal leases. The Appellate Term upheld the dismissal of the petition as a matter of law. The landlord unsuccessfully argued that the law pertaining to co-op conversions which prohibits evictions of non-purchasing tenants applies only to conversions that occurred after July 20, 1982. The court held that proprietary lessees could not evict non-purchasing tenants for personal use. The offering plan further stated that a tenant in occupancy in an apartment subject to Rent Stabilization on the date of presentation of the plan has the right to remain in occupancy if the shares allocated to the apartment are sold to a tenant residing in another apartment or a non-tenant, so long as the tenant in occupancy is not in default in his or her obligations under the lease or tenancy. As the prevailing party, the court awarded attorney's fees to the tenant in occupancy and held that it was not "manifestly unfair" since the law was clear at the time landlord brought the holdover proceeding.

Notes:

This is an important case that will deter others who buy co-ops that are already occupied by tenants from attempting to oust the tenant in occupancy. Seemingly, there has not been a case of this nature in the Appellate Term, First Department before.

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Case Caption:

Stanley v. Hawkins

Issues/Legal Principles:

Lower court's award of attorney's fees to non-lease holding tenant reversed on grounds that court failed to specify the frivolous conduct of landlord.

Keywords:

attorney's fees

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Arlene Hahn

Date:

February 25, 1997

Citation:

NYLJ, page 25, col 3

Referred Statutes:

Real Property Law 234; 22 NYCRR 130.-1.1(a)

Summary:

Landlord's holdover proceeding on alleged unlawful sublet grounds was dismissed and the matter was set down for a hearing on tenant's legal fees. The parties' lease did not contain an attorney's fees provision, so RPL 234 was not triggered. (RPL 234 is the statutory basis on which attorney's fees may be awarded to the prevailing party). The lower court, however, awarded fees and disbursements pursuant to court rules regarding frivolous litigation (22 NYCRR 130-1.1(a)). The Appellate Term ruled that in this case the award was improper because the lower court failed to specifically set forth the conduct on which the award was based and the reasons why the court found the landlord's conduct to be objectionable.

Notes:

This is an important case because it upholds the principle that if frivolous litigation is brought, a tenant can obtain attorney's fees even if there is no lease clause pertaining to attorney's fees. Usually, a lease is a necessary requirement to recover attorney's fees in landlord-tenant cases. Part 130 of the NYCRR, however, authorizes attorney's fees, not for "frivolous litigation," but for "frivolous conduct." Tenants seeking fees on this ground are advised to inform the judge the specific reasons why the landlord's conduct is objectionable, i.e., why the litigation was completely lacking in merit. In this case the Hawkins tenant should make a motion requesting that the judge revise the decision so that it complies with the statutory requirements.

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Case Caption:

Jefferson Tenants v. Isaacs

Issues/Legal Principles:

Landlord entitled to attorney's fees as prevailing party: relief sought by tenant was not attained at trial.

Keywords:

attorney's fees; abatements; harassment

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Judith Gische

Date:

February 25, 1997

Citation:

NYLJ, page 25, col 2

Referred Statutes:

none cited

Summary:

Landlord was awarded attorney's fees in this non-payment proceeding. The Court noted that an award of attorney's fees requires an examination of the scope of the issues litigated, including a comparison between the relief sought by the parties in their respective pleadings with actual recovery at trial. Landlord recovered rent for 21 months in the amount of $21,411.89. Tenant's warranty of habitability claims for water leakage was granted only to the extent of a 10% abatement for 18 months and a 5% abatement for 3 months, totaling $2,359.67. Tenant was also awarded $1,000 as reimbursement for repairs, for which he had sought $4,593.59. The tenant's other counterclaims - constructive eviction, intentional infliction of mental distress, harassment and punitive damages, each for $100,000 were dismissed in their entirety. In this posture, the Appellate Court agreed that the landlord was the prevailing party entitled to attorney's fees.

Notes:

This case is noteworthy for a number of reasons. For one, the Appellate Court did not reverse the award of $1,000 tenant received for making his own repairs. Although there is precedent on this issue, it is useful that another appellate case is available on the repair and deduct issue (lower courts do not often allow tenant's deduction claims). Secondly, it should be a warning to tenants to be cautious in the monetary amounts demanded in their answer's counterclaims. Since one of the standards for determining who is the "prevailing party" is to compare the relief sought in the pleadings with actual recovery at trial, it is advised that tenants not specify a precise monetary amount demanded in the abatement. Rather, a suggestible phrase for claims (or counterclaims) for an abatement (or other relief) could be stated "Tenant seeks relief in an amount to be determined by the court." Finally, this case shows that the Civil Court, for whatever reason, does not generally hear claims for harassment - contrary to most tenants' expectations of the law.

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Case Caption:

JR Building Associates v. Ellman

Issues/Legal Principles:

Landlord's holdover against tenant was not waived by acceptance of rent prior to the termination date of the tenancy, nor was landlord required to prove compliance with certain Multiple Dwelling Laws in a holdover proceeding.

Keywords:

non-primary residency; waiver

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Kibbe Payne

Date:

February 25, 1997

Citation:

NYLJ, page 25, col 1

Referred Statutes:

Multiple Dwelling Law 285(1)

Summary:

Landlord brought a non-primary residency action against a loft tenant. After service of the predicate notice, but prior to commencement of the proceeding, landlord accepted rent from the tenant. The court ruled that this acceptance did not waive landlord's non-primary residency claim or vitiate the notice because the landlord was free to accept rent for any period prior to actual termination of the tenancy. The court also ruled that the landlord did not have to prove compliance with the Multiple Dwelling Law 285(1) since the case was a holdover, not a non- payment proceeding.

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Case Caption:

NYCHA-Van Dyke Houses v. Murphy

Issues/Legal Principles:

Public housing tenant's motion to vacate stipulation is denied.

Keywords:

stipulations

Court:

Civil Housing Court, Brooklyn County

Judge:

Hon. Hoahng

Date:

February 26, 1997

Citation:

NYLJ, page 31, col 4

Referred Statutes:

none cited

Summary:

Public housing tenant entered into a stipulation to vacate the premises during a holdover proceeding. The tenancy had previously been terminated because tenant's boyfriend was arrested for drugs in the housing project and his occupancy in the apartment was unauthorized. The tenant sought to vacate the stipulation on grounds that her boyfriend moved out and she had cured the condition. The court denied her motion. The court analyzed the law with respect to vacating stipulations, but held that deference should be given to the Housing Authority because "its policies must be presumed to be an expression of the will of the people of this state," that it is not providing housing for profit, and that its policy of evicting occupants for drug usage and other violations is for the good of the vast majority of law abiding tenant-citizens of the housing projects. The court also found that the nature of the violation served to diminish the tenant's credibility. The court also noted that tenant had an attorney and rejected the tenant's claim that she had been "ill advised." The court ordered the tenant's eviction.

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Case Caption:

Tobias Corp. v. Marion Jones

Issues/Legal Principles:

Tender's untimely tender of rent in an amount less than what was due will not stop warrant of eviction from issuing.

Keywords:

warrants

Court:

Appellate Division, Second Department

Judge:

lower court: Hon. Shaw

Date:

February 28, 1997

Citation:

NYLJ, page 32, col 4

Referred Statutes:

none cited

Summary:

Tenant failed to tender the proper amount due for use and occupancy before the warrant of eviction issued. The Court upheld prior case law that the proffer of rent prior to the issuance of the warrant is not a lawful tender if it was made for a sum less than what was due and was tendered untimely.

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Case Caption:

Fourth Federal Savings Bank v. 32-22 Owners Corp. Def.

Issues/Legal Principles:

Tenants entitled to warranty of habitability claims regardless if claims are made during a foreclosure proceeding against a receiver

Keywords:

warranty of habitability; foreclosure; receivers

Court:

Appellate Division, First Department

Judge:

lower court: Hon. Harold Tompkins

Date:

February 28, 1997

Citation:

NYLJ, page 25, col 3

Referred Statutes:

Real Property Law 235-b; General Obligations Law 9-101; CPLR 8004(b)

Summary:

Plaintiff bank began a foreclosure proceeding against defendant corporation and the court appointed a receiver to collect rents from the building's five tenants (2 commercial, 2 residential and one loft authorized for use for business purposes). The non-party tenants claimed that the premises were kept in grossly inferior condition, the elevator inoperable, the roof leaked and other problems. They claimed to have spent more than $50,000 in their own money on repairs. The tenants went on rent strike when the receiver was appointed in April, 1994. The receiver brought a writ of assistance to compel the payments of the tenants' rents. The lower court rejected the tenants' claim that they are entitled to abatements due to the warranty of habitability. The court held that the receiver needed the rent to operate the building and the tenants were not permitted to withhold rent payments. The court ruled that if the tenants did not pay the rent, they would be subject to an eviction. The tenants appealed. On appeal the receiver argued that it is not bound under the warranty of habitability because the matter is a foreclosure proceeding, not a landlord-tenant proceeding in Housing Court. The receiver's position was that the tenants should commence a separate proceeding against the owner to recover under the warranty of habitability. The Appellate Division disagreed and reversed the lower court holding that a foreclosure proceeding alone does not preclude the receiver from the obligations due the tenants under Real Property Law 235-b, the warranty of habitability law. The Court also noted that the order of appointment compelled the receiver to make repairs, and it would be inequitable if the tenants were compelled to advance funds for housing which they are not receiving. This case might be appealed further since there was not a unanimous decision. The dissenting judge held that there was no conventional landlord-tenant relationship here because there was no attornment, and commercial tenants are not entitled to warranty of habitability defenses.

Case Caption:

200 West 54th Street Partnership v. Sanger

Issues/Legal Principles:

Attorney's fees award must be based on testimony at a hearing, not just an attorney's affirmation and time records.

Keywords:

attorney's fees

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Arthur Birnbaum

Date:

February 18, 1997

Citation:

NYLJ, page 26, col 1

Referred Statutes:

none cited

Summary:

Tenant was the prevailing party in the holdover proceeding brought by landlord on grounds of alleged unlawful subletting. Apparently, the trial court based the award of attorney's fees recoverable by the tenant solely on the attorney's written affirmation and time records. The Appellate Term ruled that the landlord is entitled to contest the amounts in a full adversarial hearing, and remanded the matter for such a hearing.

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Case Caption:

City of New York v. Camacho

Issues/Legal Principles:

Police officer's testimony of drugs and weaponry found in apartment resulted in tenant's eviction.

Keywords:

illegal usage

Court:

Civil Housing Court, Bronx County

Judge:

Hon. Howard Sherman

Date:

February 19, 1997

Citation:

NYLJ, page 32, col 5

Referred Statutes:

none cited

Summary:

The landlord brought a holdover against the tenant on grounds of illegal usage of the premises, to wit; possession and/or sale of narcotics. A police officer testified about the tenant's arrest and that pursuant to a search warrant 11 vials of crack were recovered, as well as $2200 in cash and various weapons and ammunition. The tenant testified that the drugs belonged to the man who lives with her, that the gun was his and was kept for protection, and the money was received from tuition loans for her schooling. The tenant denied narcotics activity occurred in the apartment. On cross-examination she admitted that the man still lived with her. The man was also arrested, but charges were dropped against him. The court held that the nature and quantity of evidence found in the premises, the tenant's apparent guilty plea support, and the failure of her roommate to step forward and testify, support a finding of illegal usage of the apartment and ordered the tenant's eviction.

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Case Caption:

People v. Carlo Rizzo

Issues/Legal Principles:

Landlord convicted for leasing basement apartment absent a certificate of occupancy.

Keywords:

certificate of occupancy; multiple dwellings

Court:

Justice Court, Nassau County

Judge:

Hon. Bogle

Date:

February 19, 1997

Citation:

NYLJ, page 35, col 2

Referred Statutes:

Nassau Village Code 99-3211; 9 NYCRR 711.1(b)

Summary:

The landlord defendant was convicted because his two-family dwelling had no certificate of occupancy, yet the landlord rented out a basement apartment which violates the New York State fire and safety and housing regulations, and local law. Defendant argued that the premises was a three family house, but the court found that evidence to support this was vague, and no evidence existed that the basement/cellar unit was ever a lawful dwelling unit.

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Case Caption:

Manocherian v. Lenox Hill Hospital

Issues/Legal Principles:

Employee/subtenants of not-for-profit corporation are not entitled to Rent Stabilized leases in their own names.

Keywords:

sublets; Rent Stabilization status

Court:

Appellate Division, First Department

Judge:

lower court: Hon. Walter Schackman

Date:

February 20, 1997

Citation:

NYLJ, page 25, col 3

Referred Statutes:

RSL 26-511(c)(12)(d)(g); RSL 26-504(a)(1)(f); Omnibus Housing Act of 1983

Summary:

This is a long standing case involving Lenox Hill Hospital's subleasing on a month-to- month basis of 15 apartments for housing of some of its nurse/employees. In 1969, the apartments became subject to the Rent Stabilization Law. The landlord purchased the building in 1976 and offered Lenox Hill renewal leases. Each sublease notified the subtenants that the apartment was not subject to Rent Stabilization. The nurses were evicted when the employment relationship ended. Lenox Hill lobbied the Legislature to amend the Omnibus Housing Act to allow a not-for-profit hospital renting a housing unit for residential use to be amended to permit the resident to be deemed a tenant without obtaining the landlord's written consent (as the law requires in a sublet). The Legislature did amend the law. The landlord challenged the amended law (Chapter 940) and served non-renewal notices on Lenox Hill on grounds that the law was unconstitutional and sought a declaration in Supreme Court based on its unconstitutionality and further sought an order to evict both Lenox Hill and the subtenants. The Court of Appeals ruled that Chapter 940 was an unconstitutional taking of property. On remand to the Supreme Court, the landlord moved for summary judgment on the ground that because the leases did not specifically name the intended occupants (employees of the Hospital), they created the possibility of a tenancy in perpetuity, therefore the leases did not have to be renewed. Lenox Hill raised for the first time the contention that if Chapter 940 was unconstitutional then the subtenants should have the right to renew the leases in their own names. The Supreme Court held that the individual subtenants were entitled to renewal leases based on Cale Dev. Co. v CAB, another Court of Appeals case which permitted lease renewals to corporate entities where the lease in question specifically named the individual intended occupant. The Appellate Division reversed the Supreme Court on grounds that the previous Manocherian v. Lenox Hill appeal limited the scope of the Cale doctrine. The Court analyzed in depth how and why the two cases were distinguishable and why the lower court erred in directing the landlord to offer the subtenants leases in their own names.

Case Caption:

Matter of Hallman Sea Associates v. New York City Loft Board

Issues/Legal Principles:

Landlord denied right to challenge loft tenant's sale of fixtures

Keywords:

Loft Board

Court:

Appellate Division, First Department

Judge:

lower court: Hon. Walter Schackman

Date:

February 14, 1997

Citation:

NYLJ, page 29, col 1

Referred Statutes:

none cited

Summary:

The Loft tenants sought to sell their fixtures to prospective tenants and served the landlord a Sales Improvement Disclosure Form. The landlord served its objections to the proposed sale on the 20th day after it received the tenants' response to landlord's request for additional information, as the instructions on the Form provided. The next day the landlord called the Loft Board to ask whether it had to do anything else and was told that it had to file a Challenge Application which landlord did the next day. The Loft Board rejected the Challenge as untimely by two days because under its rules the application also had to be filed within 20 days after landlord received the tenant's additional information. The landlord appealed the Loft Board's decision in an Article 78 claiming that the instructions on the Disclosure Form do not mention Challenge Applications and the Loft Board should be estopped from asserting untimeliness. The court upheld the Loft Board's decision because the instructions provide a telephone number for "further information and any questions regarding" the matter, so the landlord should have consulted the Loft Board or the Loft Law regulations instead of relying on the Disclosure Form itself. The Appellate Division found that the Disclosure Form explains only how to frame a fair market valuation dispute, not resolve it and thus it should have been obvious to the landlord that further instructions were needed. The Appellate Division upheld the Article 78's ruling against the landlord because the landlord should have called the Loft Board sooner, i.e., before the 20 day period for filings expired.

Case Caption:

Matter of the New School for Social Research v. DHCR

Issues/Legal Principles:

School unable to show need for apartments; certificates of eviction denied

Keywords:

educational usage

Court:

Appellate Division, First Department

Judge:

lower court: Hon. Walter Schackman

Date:

February 3, 1997

Citation:

NYLJ, page 26, col 1

Referred Statutes:

NYCRR 2204.9(a)(3)

Summary:

Petitioner New School for Social Research applied for certificates of eviction from DHCR to recover various residential apartments for educational usage by the school. The DHCR denied the application on grounds that the School failed to show it required the premises for its immediate use in connection with its charitable or educational purposes. The denial was upheld in an Article 78 and by the Appellate Division. The record showed that former apartments converted into offices in the same building were vacant or underutilized, the School lacked specific plans as to when or how the apartments would be used, vacant offices also existed in other buildings owned by the School and the School was actually unaware of the number of vacant offices it held.

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Case Caption:

KDB Associates v. Rome

Issues/Legal Principles:

Tenant's claim that landlord orally agreed to tenant's breaking lease disallowed as evidence.

Keywords:

premature surrender

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Judith Gische

Date:

February 3, 1997

Citation:

NYLJ, page 27, col. 4

Referred Statutes:

none cited

Summary:

Tenant vacated the apartment before the end of the lease term. When landlord sued for uncollected rent and attorney's fees, tenant claimed that he had an oral agreement with the landlord for premature termination of the lease. The lower court relied on a lease clause that precluded oral modifications of the lease. Further, the record showed that the tenant had already decided to leave because of dissatisfaction with the apartment, and at the time of vacatur, the tenant had not secured a new tenant to assume the balance of the lease. Partial summary judgment was granted in landlord's favor for the rent. The amount due for additional charges and attorney's fees was remanded by the Appellate Term for a hearing.

Notes:

It is unusual that the case bears no mention of landlord's duty to mitigate damages. This means that when the landlord becomes aware that the tenant is breaking the lease prematurely, the landlord must make reasonable efforts to find a new tenant. If landlord does not make such reasonable efforts, case law holds that tenant is not liable for future rent. If landlord does make reasonable efforts, case law holds that tenant is liable only until a new tenant is installed. This case seems to diminish the mitigation of duty obligation on the landlord when it notes that the tenant failed to find a new tenant to assume the balance of the lease. Although a tenant can find someone to assign the lease to, this still should not do away completely with the mitigation of damages rule that landlord must make reasonable efforts to find a new tenant.

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Case Caption:

1701 Albemarle Realty Corp. v. Palmer

Issues/Legal Principles:

Petition dismissed when landlord failed to serve daughter of tenants of record, knowing that her parents vacated the apartment and she had succession rights.

Keywords:

succession rights; necessary party

Court:

Civil Housing Court, Kings County

Judge:

Hon. Baynes

Date:

February 5, 1997

Citation:

NYLJ, page 33, col. 3

Referred Statutes:

none cited

Summary:

The daughter of the tenants of record sought to vacate a default judgment of a non- payment proceeding on grounds that she had occupancy rights independent of her parents and should have been served a petition in her name. Her mother submitted an affidavit stating that she and her husband moved out over two years ago and that the landlord's agent assisted them with the move. Also, the daughter had lived in the apartment since she was 10 years old. Thus, although formal notice was not given that they surrendered the apartment, landlord clearly knew of the move. The landlord argued that it is only bound to serve a petition on the tenants of record. The court disagreed and dismissed the petition for failure to name a necessary party, the daughter.

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Case Caption:

Castillo v. Rodriguez

Issues/Legal Principles:

Petition dismissed for failure to serve non-renewal notice, and other irregularities.

Keywords:

owner occupancy; termination notice

Court:

Civil Housing Court, Kings County

Judge:

Hon. Callender

Date:

February 5, 1997

Citation:

NYLJ, page 33, col. 4

Referred Statutes:

RSC 2524.2, 2524.4, 2523.5

Summary:

The notice of termination set forth three different grounds for the termination of the tenancy: (1) tenant failed to comply with the notice to cure, but in fact no notice to cure was ever served, (2) the landlord wanted the apartment for her own personal use, and (3) the tenant was illegally subletting the apartment. The court held that the notice's claims were inconsistent, ambivalent and put the tenant in doubt about why her tenancy was being terminated. The court also noted that the tenant's lease had already expired 47 days prior to when the landlord served the notice which stated the tenancy would not be renewed on grounds of owner occupancy. The court dismissed the petition.

Notes:

The termination notice was probably served by a pro se landlord because it had too many stupid mistakes. An owner occupancy proceeding for a Rent Stabilized apartment is not started by terminating a lease, but rather by refusing to renew a lease which must be done 120 to 150 days prior to the lease's termination.

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Case Caption:

Nutter v. W&J Hotel Co.

Issues/Legal Principles:

Rent Stabilized hotel owner who failed to tender occupant a lease upon her request and called the police to remove her the next day committed an unlawful eviction since the occupant acquired rent stabilized rights upon her request for a lease.

Keywords:

hotel, illegal eviction

Court:

Civil Housing Court, New York County

Judge:

Hon. Douglas Hoffman

Date:

February 5, 1997

Citation:

NYLJ, page 30, col. 6

Referred Statutes:

RSC 2520.6, 2522.5; RPAPL 711; Administrative Code 26-251

Summary:

Petitioner Nutter registered for a room at the Washington Jefferson Hotel, a rent stabilized hotel, on December 20, 1996 and paid $117 for one night. She falsely told the desk clerk she lived in Texas and was just visiting New York City to shop and only needed the room for one night. Upon her registration, the hotel management failed to comply with Rent Stabilization Code Section 2522.(c)(2) which requires that each person who registers at a hotel be furnished a Notice of Rights advising her that she could request a lease and become a permanent tenant. Later that afternoon Petitioner tried to give the manager a written demand for a lease, but he wouldn't take it. On December 21st, 15 minutes prior to check-out time, the manager denied her second request for a lease and asked her to leave. She refused and the police were called and removed Petitioner after check-out time. Petitioner claims that upon her request for a lease on December 20th, she became a permanent tenant subject to the protection of the Rent Stabilization Laws, and that her removal from the hotel by the police constituted an illegal eviction. Respondent (hotel owner) argued that she was a "transient" and self-help was permissible and she had no right to continued occupancy. The court held that upon Petitioner's request for a rent stabilized lease while she was an occupant of a rent stabilized hotel room, she became a "permanent tenant" and the owner was required to tender for a lease within 15 days for a term of six months under the Code's section 2522.5(a)(2) read in conjunction with section 2520.6(j). The owner conceded that he was required to give her a Rent Stabilized lease upon her request for same. The court rejected the landlord's claim that he could resort to self-help. Since she would qualify as a rent stabilized tenant, then the owner would have no more right to evict her through self-help than would a landlord who would try to evict a Rent Stabilized apartment tenant who had lived in an apartment less than 30 days. The court clearly rejected the owner's transient and self-help argument. The court ordered the owner to restore petitioner to possession of the room forthwith.

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Case Caption:

Saracco v. DHCR

Issues/Legal Principles:

Landlord not allowed rent increases to rent controlled apartment for failure to annually register the premises.

Keywords:

annual registration

Court:

Appellate Division, First Department

Judge:

lower court: Hon. Edith Miller

Date:

February 6, 1997

Citation:

NYLJ, page 26, col. 6

Referred Statutes:

NYCRR 2201.1(b)(e), 2202.3(b)(2), 2203.7, 2200.15

Summary:

DHCR determined that the apartment was subject to rent control and fixed the maximum legal rent at $104.60 based on the 1970 base date rent ($39.60) set forth on the initial registration form, with applicable regulatory increases. The DHCR also disallowed any other increases, prior to and subsequent to the base date due to the landlord's ongoing failure to register the apartment since the tenant took occupancy in 1966 or to apply for and provide the tenant with information to support any rent increases. The decision was upheld on appeal.