Housing Court Decisions July 97

edited by Colleen F. McGuire, Esq.

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New York Law Journal,
decisions for the week of July 28-August 1, 1997 (3 cases)


Case Caption:
Arnav Industries, Inc. v. Alexander
Issues/Legal Principles:
Where a process server is unable to ascertain if the person served is of suitable age and discretion, or is employed at or resides in, the subject premises, the predicate notice is defective, mandating dismissal.
Keywords:
Nonpayment, Rent demand, Substituted Service, Reasonable Application at Personal Service
Court:
New York City Civil Court, New York County
Judge:
Judge Donna Mills
Date:
July 30, 1997
Citation:
N.Y.L.J., p. 22, col. 6
Referred Statutes:
Real Property Actions and Proceedings Law ("RPAPL") section 711(2)
Summary:
Petitioner alleged that service of the rent demand in this nonpayment proceeding was accomplished by sliding under the door of the subject apartment, to a person of suitable age and discretion, a copy of the rent demand. The Civil Court noted that Real Property Actions and Proceedings Law ("RPAPL") section 711(2) provides that nonpayment proceedings must be preceded by a personal rent demand or a written rent demand notice. The Court also noted that that RPAPL section 735 permits substituted service by "delivering to and leaving personally with a person of suitable age and discretion who resides or is employed at the property sought to be recovered" a copy of the rent demand.

The Court found that the service in this case did not comply with RPAPL section 735 and did not constitute substituted service. The process server never saw the person served. Thus, the process server could not ascertain if the person served was a person of suitable age and discretion. Further the process server did not ascertain if the person served resided in, or was employed at, the subject premises. The Court found that the service was conspicuous and not substituted. The process server's single attempt at service did not satisfy the reasonable application standard of RPAPL section 735 required for conspicuous service. The lack of a proper demand deprived the Court of subject matter jurisdiction. Where a defect in a predicate notice deprives a Court of subject matter jurisdiction, the defect is unamendable and dismissal is mandated. This nonpayment was therefore dismissed.


Case Caption:
133 West L.L.C. v. Lew
Issues/Legal Principles:
Discovery is liberally granted in nonprimary residence holdover proceedings. Landlord granted judgment against tenant's repeated breach of stipulations to pay the rent.
Keywords:
"Golub Notice;" Nonprimary Residence
Court:
New York City Civil Court, Housing Part, New York County
Judge:
Hon. Kibbe Payne
Date:
July 30, 1997
Citation:
NYLJ, page 23, col 1
Referred Statutes:
9 NYCRR 2524.2(b)
Summary:
In this "nonprimary residence" holdover, the tenant moved for dismissal and landlord cross-moved for discovery and to strike defenses of the tenant. Tenant's motion was denied in its entirety, landlord's motion for discovery granted.

The tenant alleged that the "Golub Notice" (nonrenewal notice) was facially defective because it failed to allege sufficient facts. The Judge found that the notice alleged sufficient facts, stating that the lease would not be renewed because the tenant allegedly did not maintain the apartment as his primary residence. Therefore, the motion was denied, and the petition was not dismissed because the "Golub Notice" did contain sufficient facts. The tenant also claimed that since the predicate notice identifies an alternative address for the tenant in addition to the subject apartment, petitioner's failure to serve him with the predicate notice at this alternative address rendered the petition defective. The Judge found that to be an amendable defect, denied the tenant's motion and afforded the landlord an opportunity to amend the petition.

The Judge found that the landlord demonstrated sufficient ample need to warrant the granting of disclosure, because much of the information the landlord needs to proceed with his case is exclusively within the custody and control of the tenant. Further, discovery is liberally granted in "nonprimary residence" holdover proceedings. The Judge therefore ordered that the tanant's appear to be deposed. The landlord's motion for use and occupancy was granted, and several defenses were stricken.


Case Caption:
54 Featherco, Inc. v. Correa And Maisonet
Issues/Legal Principles:
The "nontraditional family member" successor tenant must demonstrate a financial interdependancy and should show a formalizing of legal obligations with the tenant of record.
Keywords:
Succession, Nontraditional Family Member
Court:
Appellate Term, First Department
Judge:
Hon. Ostrau, Freedman and Davis (affirming judge Turner)
Date:
July 30, 1997
Citation:
New York Law Journal, p. 21, col. 1
Referred Statutes:
Rent Stabilization Code section 2520.6(o), RSC section 2523.5(b)
Summary:
In this "nontraditional family member succession" holdover, the Appellate Term, First Department affirmed the final judgement awarded by the Civil Court, which gave possession to the landlord. The Appellate Court gave deference to the findings of the Civil Court with regard to the tenant's failure to substantiate the succession claim.

The Appellate Court noted that the tenant offered no documentation corroborating the intermingling of finances, sharing of household expenses or execution of documents formalizing any legal obligations or joint responsibilities. Judge Freedman felt that since the two were "financially unsophisticated," any lack of formalized legal obligations or bank account sharing should be overlooked. Judge Freedman found that the two were financially interdependant.

There is a lengthly dissent by Judge Freedman. Judge Freedman found that the "successor" tenant and the former tenant of record had the type of loving, close relationship that satisfies the standard of Rent Stabilization Code section 2520.6(o). Judge Freedman cites similarities between this case and Braschi v. Stahl Assoc. The dissenting Judge also noted that the two had a "nontraditional family member" type of relationship, which entitled the "successor" to possession pursuant to RSC section 2523.5(b).


New York Law Journal,
decisions for the week of July 21-25, 1997 (7 cases)


Case Caption:
Clinton Avenue Tenants Corp. v. Fatsis
Issues/Legal Principles:
Retention of Rent, Acceptance of Rent, "Illegal Sublet" Holdover
Keywords:
Retention of rent, Acceptance of Rent, "Illegal Sublet" Holdover, Notice to Cure, Notice of Termintation
Court:
Appellate Term, Second and Eleventh Judicial Districts
Judge:
Scholnick, Aronin and Patterson (modifying order of V. Barron)
Date:
7/21/97
Citation:
N.Y.L.J., p. 30, col. 1
Referred Statutes:

Summary:
In this alleged "illegal sublet" holdover proceeding, the Appellate Term (2nd and 11th Judicial Districts) modified the Civil Court's order, by granting the tenant's cross-motion for summary judgement dismissing the petition. The Board of Directors voted on January 17, 1996 that the tenants' extension of sublease would not be approved. The landlord's managing agent alleges that on January 18, 1996 the tenants were informed that they would have to remove their subtenants by April 13, 1996. The tenants then prepaid for April and May's maintenance charges, as well as sublet fees, to the landlord on March 25, 1996. Landlord accepted the payment, and sent tenants a bill for a 10 cent balance. On April 25, 1996 landlord sent tenants a Notice to Cure and on May 13, 1996, it sent them a Notice of Termination. The Appellate Term held that the landlord's acceptance and retention of the tenants' payment for the period through May 31, 1996 was inconsistent with, and constituted a waiver of, the claim that the tenants sublet was illegal as of April 13, 1996.


Case Caption:
Coppolechia v. Burgos
Issues/Legal Principles:
Chronic Non-payment, Nuisance
Keywords:
Chronic Non-payment, Nuisance
Court:
Appellate Term, First Department
Judge:
Ostrau, Parness and Freedman (reversing Heymann)
Date:
7/23/97
Citation:
N.Y.L.J., p. 21, col. 3
Referred Statutes:
Rent Stabilization Law 2524.3(b)
Summary:
The Appellate Term, 1st Dept. reversed the final judgemnt of Judge George Heymann and dismissed the petition. In this alleged chronic non-payment holdover proceeding, the Appellate Term followed the recent Court of Appeals decision (Sharp v. Norwood, NYLJ, May 19, 1997, p. 28, col. 3) which set forth the standard for what constitutes a nuisance in a chronic nonpayment holdover proceeding. The administrative inconvenience and expense incurred in the repeated commencement of proceedings to collect rent does not make out a claim of nuisance, absent proof of aggravating circumstances or a showing that the conduct complained of actually interfered with the landlord's use and enjoyment of the property. Since the landlord failed to establish these elements at trial, the final judgment was reversed and the and the petition was dismissed.


Case Caption:
MMM Assoc., LLC v. Chang
Issues/Legal Principles:
An affidavit of service alone cannot defeat a tenant's sworn denial of service of the predicate notice and pleadings, mandating a traverse hearing to determine if service was proper.
Keywords:
Service, Affidavit of Service, Traverse Hearing
Court:
Appellate Term, First Department
Judge:
Ostrau, Parness and Freedman (affirming and modifying Judge Howard Malatsky)
Date:
July 23, 1997
Citation:
N.Y.L.J., p. 21, col. 4
Referred Statutes:

Summary:
The order of Judge Malatsky was modified to the extent that the appellate court sent back to the trial level court for a hearing to determine if the Rent Demand, Notice of Petition and Petition were properly served upon the tenants. The petitioner produced affidavits of service for the Rent Demand, Notice of Petition and Petition. The tenant's sworn denial of receipt requires a traverse hearing, since the affidavits of service are not conclusive.


Case Caption:
West End Associates v. Lasky
Issues/Legal Principles:
Non-purchasing Converted Cooperative Rent Stabilized tenants under a Non-Eviction Plan cannot rely upon General Business Law section 352 to dismiss a non-primary residence holdover proceeding.
Keywords:
Non-primary Residence, Non-Eviction Plan
Court:
Civil Court of the City of New York, Housing Part
Judge:
Donna Mills
Date:
July 23, 1997
Citation:
N.Y.L.J., p. 23, col. 3
Referred Statutes:
General Business Law section 352-359-h
Summary:
Respondent moved to dismiss this "non-primary residence" holdover proceeding alleging that a non-primary residence claim cannot be maintained against a non-purchasing rent stabilized tenant of a non-eviction converted cooperative plan. Respondent's motion was denied. The Court cited several cases which stand for the proposition that a non-purchasing rent stabilized tenant under a non-eviction converted cooperative plan cannot rely upon General Business Law section 352 to dismiss a non-primary residence holdover.


Case Caption:
Thurcon Development Co. v. Yacker
Issues/Legal Principles:
The landlord misplead the rent regulatory status of the subject premises, but was nevertheless permitted to amend the Petition.
Keywords:
Stay, Amendment of a Pleading, Rent Overcharge
Court:
Civil Court of the City of New York, Housing part
Judge:
Judge Lau
Date:
July 23, 1997
Citation:
N.Y.L.J., p. 23, col. 3
Referred Statutes:
CPLR 2201
Summary:
Petitioner in this nonpayment proceeding moved to amend the Petition to reflect that the premises were subject to the Rent Stabilization Law and to reflect the legal regulated rent for the subject apartment. Respondent cross-moved to dismiss, claiming that the Petition was unamendable (citing MSG Pomp v. Doe) or in the alternative to stay the proceeding (CPLR 2201) pending the resolution of the tenant's rent overcharge complaint pending before the New York State Division of Housing and Community Renewal (DHCR). Judge Lau noted the binding precent of MSG Pomp v. Doe, however, she found the circumstances herein constitute an exception to MSG Pomp rule of mandatory dismissal of misplead rent regulatory status. The Judge stated that the Petitioner in MSG Pomp knowingly made false statements, while the Petitioner herein plead the regulatory status as the Petitioner believed it to be, and plead in "good faith" that the subject apartment was not subject to Rent Stabilization. Further, the Petitioner herein amended the pleading voluntarily, well in advance of trial, and sought to refund the overcharged amount to Respondent. The Petitioner herein did wait until the tenant made a motion to vacate the judgment and dismiss the proceeding, as the Petitioner in MSG Pomp did, before divulging the true rent regulatory status. Petitioner's motion to amend was therefore granted, respondent's motion to dismiss was denied and respondent's motion for a stay pending the resolution of the DHCR complaint was also denied.


Case Caption:
1325 Parkway Estates, Llc v. Weathers
Issues/Legal Principles:
Where a stipulation is silent as to where to apply future payments, the general accounting method of FIFO (first in, first out) is used to calculate where the payments are applied. Thus, payments are credited to the arrears first, then current rent, unless the parties agree otherwise.
Keywords:
Stipulation, Restore to Possession
Court:
Civil Court of the City of New York, Kings County, Housing Part
Judge:
D. Thomas
Date:
July 23, 1997
Citation:
N.Y.L.J. p. 28, col. 5
Referred Statutes:

Summary:
Respondent made a motion seeking to be restored to possession, and the motion was granted. The parties entered into a stipulation of settlement dated February 7, 1997 in which respondent agreed to pay $2,950.00 as all rent due through 2/28/97. Petitioner was granted a final judgment and the warrant of eviction was stayed to February 14, 1997. It is undisputed that the respondent paid $2,750.00 in the month of February, 1997 (leaving a balance of $200.00 due petitioner). Respondent paid $550.00 in March 1997. There is some dispute as to additional payments, however, there is no dispute that some rent in addition to the $200.00 balance left after the February 1997 payment was outstanding through July 1997. On June 9, 1997 the warrant of eviction issued. The landlord's own records show that the tenant paid all the rent under the stipulation even though she paid the money late. Nonetheless, she paid the judgment amount before the warrant of eviction issued. Petitioner's records show that the $550.00 paid in March was applied to March's rent by petitioner, which left a $200.00 balance under the stipulation, even after the payment. Petitioner evicted respondent based upon this $200.00 balance. The warrant of eviction should not have issued. The stipulation was silent as to future rent payments. Standard accounting methods use the FIFO method, first in, first out. Thus, the oldest debt is paid first with new money, before any newer debts. The Court held that the landlord cannot decide on its own to apply the rent in such a manner as to evict the tenant. The Court noted that petitioner would first have to obtain a final judgment for any additional rent that was due beyond February 28, 1997, if it wanted to evict respondent under the facts hereunder. Thus, the Court found the eviction illegal and ordered the landlord to restore the tenant to possession. The third party occupant/new lessee (who was joined as a party and then defaulted) was ordered to vacate the subject premises immediately, with a warrant to issue immediately. Landlord was responsible for the costs of restoring the tenant to possession. Respondent awarded a final judgment of possession.


Case Caption:
Cohen & Zerenowitz Realty Corp. v. Asero
Issues/Legal Principles:
"Breach of lease" holdover tenants must be provided with a ten day period to cure the lease violation after trial pursuant to RPAPL section 753(4).
Keywords:
Cure period, Dog, Holdover
Court:
Appellate Term, First Department
Judge:
Ostrau, McCooe and Davis (modifying order of J. Pierre Turner)
Date:
July 24, 1997
Citation:
N.Y.L.J., p. 25, col 2
Referred Statutes:
RPAPL 753(4)-Post-trial cure period
Summary:
The Appellate Term held that the trial level court properly awarded a final judgment in favor of the petitioner where the tenant was harboring more than one dog, in violation of the lease. The Appellate Term gave deference to the demeanor evidence as viewed by the trial court. The Appellate Term held however that the respondent must be granted a 10 day cure period following a judgment in favor of the landlord based upon a breach of the lease. See RPAPL 753(4). The cure period contained in that statute is remedial in nature and should be liberally construed to spread its benefits as wide as possible. Thus, issuance of the warrant of eviction was stayed ten days after service of a copy of the order, so that the tenant had an opportunity to correct the breach by removing the additional dog.


New York Law Journal,
decisions for the week of July 14-18, 1997 (2 cases)


Case Caption:
Matter of Lopez
Issues/Legal Principles:
City Housing rules deemed ambiguous and violative of due process rights with respect to succession rights for family members who vacate and then resume occupancy.
Keywords:
remaining family members; succession rights
Court:
Supreme Court, New York County
Judge:
Hon. Emily Goodman
Date:
July 16, 1997
Citation:
NYLJ, page 22, col 3
Referred Statutes:
none cited
Summary:
Edgardo Lopez, the petitioner in an Article 78 proceeding, challenged the New York City Housing Authority's denial of his application to succeed to the lease of his mother, the tenant of record who passed away, as a remaining family member. He claimed that he moved into the apartment with her and their family and resided continuously with her until 1988, returned to the apartment in 1989 and cared for his mother until her death in 1993. The Housing Authority denied his application because it did not have formal notice of his occupancy and he wasn't listed on his mother's annual recertifications as an occupant of the apartment. The court noted that in 1988 the Authority revised their standards for claims of remaining family member status so that notice of occupancy in the agency's files was necessary, not just "constructive knowledge" on the agency's part, defined as "participation by the claimant in project activities to the point where the community accepts this individual as a resident of the apartment." Lopez presented facts at his hearing to support a constructive knowledge claim, including a petition signed by his neighbors stating that he resided in the apartment since 1985. The Hearing Officer held that the revised rules "obviate the requirement of management's written permission only if the claimant was an original family member whose resumed occupancy was actually known to management, as evidenced by an annotation in the tenant's file." Lopez lost because the agency never made any such annotation about him. The court noted that the sole evidence of the agency's lack of knowledge was that Lopez wasn't listed on the recertifications, but the court noted that he was being penalized for an omission by his mother. The court also noted that the forms relating to family members who go away and come back are ambiguous and that the mother could have believed that she did not have to list him based on the language of the forms. Lopez was listed in his mother's original Tenant's Certificate as a family member, and the court held that an interpretation of a particular agency regulation seemed to obviate the requirement for the mother to have listed her son on the recertifications. The court held that it was unfair to deny him remaining family status because he didn't have written consent from the Authority because other regulations are ambiguous when dealing with a family member who was initially listed on forms, vacates, and resumes occupancy. The court held that in light of the ambiguities created by the form income affidavit and the Authority's own rules and regulations, the standards used to exclude Lopez denied him due process. The court directed the Authority to tender Lopez a lease in his name as a remaining family member.


Case Caption:
Butsikares v. Khalil
Issues/Legal Principles:
Good cause shown to extend execution of the warrant to evict.
Keywords:
Jiggetts; good cause; stays
Court:
Civil Housing Court, Kings County
Judge:
Hon. Peter Wendt
Date:
July 16, 1997
Citation:
NYLJ, page 27, col 3
Referred Statutes:
RPAPL 749(3)
Summary:
The tenant fell behind in rent and landlord obtained a final judgment of possession if the arrears were not paid by a date certain. The tenant moved by order to show cause to extend the stay of the execution of the warrant on grounds that "good cause" existed. The tenant submitted a Jiggetts request for monies and her request was granted. However, the money was not forthcoming as promised even though the tenant's attorney consistently and diligently communicated with the Department of Social Service as to the dates the monies would be tendered by their office to the landlord. The court granted the tenant's motion to extend the warrant, holding that good cause existed because the monies were already guaranteed, that the tenant's attorney made consistent efforts to obtain the monies, and that to deny the tenant her motion (she has dependent children) would cause greater harm than for the landlord to have to wait a little longer for the DSS to deliver the rent arrears. The court cited numerous cases to support its position of "good cause" shown.


New York Law Journal,
decisions for the week of July 7-11, 1997 (7 cases)


Case Caption:
64th Street 3rd Ave. Assoc. v. Wall
Issues/Legal Principles:
Landlord granted judgment against tenant's repeated breach of stipulations to pay the rent.
Keywords:
chronic non-payment; nuisance
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Arthur Birnbaum
Date:
July 7, 1997
Citation:
NYLJ, page 26, col 2
Referred Statutes:
9 NYCRR 2524.3(b)
Summary:
Landlord commenced the underlying holdover proceeding on the grounds that tenant committed a nuisance by repeatedly tendering rent in an untimely manner. This behavior forced the landlord to commence numerous nonpayment proceedings over a period of five years. Moreover, tenant failed to comply with the terms of two "so-ordered" stipulations that were entered into in the parties' attempt to settle the nuisance holdover. Tenant moved to vacate the stipulations and the Civil Court awarded the landlord a possessory and monetary judgment based upon tenant's recurring defaults under the stipulations. The Appellate Term upheld the lower court's ruling and noted that since the tenant was an attorney and entered into the stipulations with the benefit of counsel, no legal cause has been shown to vacate either stipulation. Moreover, the Appellate Court held that since the tenant entered into these stipulations, he is now precluded from resurrecting the defense that the landlord failed to allege "aggravated circumstances" to sustain a claim of nuisance.


Case Caption:
York Associates v. Drozdikova
Issues/Legal Principles:
Despite settlement of a prior unlawful sublet proceeding, the subtenants were not deemed tenants because no lease was ever tendered to them.
Keywords:
waiver; subtenants
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Donna Mills
Date:
July 7, 1997
Citation:
NYLJ, page 26, col 1
Referred Statutes:
RPAPL 713
Summary:
The Appellate Term upheld the trial court's holding granting partial summary judgment as against the undertenants. The court awarded the landlord possession of the subject premises based on the fact that after the statutory tenant vacated the premises, the undertenants continued in possession. In reaching this decision, the Appellate Court rejected the undertenant's claim that the landlord agreed to rent the apartment to them based on the terms of a "so-ordered" stipulation that was entered into to resolve a nonprimary/illegal sublet proceeding brought by the prior landlord against both the statutory tenant and the undertenants. The Appellate Court held that any negotiations which did not result in the execution of a lease are not binding on the landlord. The Court looked to the terms of the stipulation which conditioned the respondent's occupancy as a tenant upon payment of accrued use and occupancy. Yet, respondents failed to make these required payments. In addition, the Court held that a prior letter sent by the landlord did not constitute an acceptance or recognition of the undertenants as tenants in their own right. Moreover, the Court held that a trial would not be required on the issue as to whether the aforementioned letter created a tenancy.


Case Caption:
Lado v. Brown
Issues/Legal Principles:
Building with three or more occupied units is multiple dwelling, even though a tenant in one of the units had been evicted earlier leaving only two units for this proceeding.
Keywords:
multiple dwelling; illegal apartment
Court:
Appellate Term, Second and Eleventh Judicial Districts
Judge:
lower court: Hon. J. Grayshaw
Date:
July 8, 1997
Citation:
NYLJ, page 32, col 4
Referred Statutes:
MDL 4(1),(7)
Summary:
The lower court accepted the landlord's argument that the subject premises was not a multiple dwelling as it was not "intended, arranged or designed to be used or occupied" by three or more families living independently of each other, and awarded possession of said premises to the landlord. In furtherance of his position, landlord offered proof that the tenants in one of the illegal basement apartments were evicted a few days before the instant proceeding was commenced. As a result the building presumably now had only two units occupied instead of three, but the tenant argued that the prior evicted tenant was proof that the building had three occupied units at one time (which would make it a multiple dwelling). The Appellate Term reversed holding that the building was a de facto multiple dwelling and "inasmuch as it appears that the building was not registered as a multiple dwelling, this proceeding cannot be maintained."


Case Caption:
Lillian Goldman and The Lillian Goldman Family, LLC v. Falk
Issues/Legal Principles:
Landlord was entitled to an adjournment to obtain substitute counsel.
Keywords:
adjournments
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Margaret Taylor
Date:
July 9, 1997
Citation:
NYLJ, page 25, col 3
Referred Statutes:
RPAPL 745(2)(d)
Summary:
In this nonpayment proceeding, the trial court denied landlord's application to proceed with substituted counsel and dismissed the case "with prejudice." The Appellate Term reversed, holding that landlord should have been granted a short extension to obtain other counsel if the court deemed the substitution of the particular law firm objectionable. The Court further held that the underlying nonpayment proceeding is arguably meritorious and therefore the landlord should be entitled to its day in court. Moreover, the Court held that "even in a situation where a landlord has requested excessive adjournments, which is shown here, the court is only authorized in dismissing the summary proceeding without prejudice."


Case Caption:
Colum 75, Inc. v. Jordan J. Braiu
Issues/Legal Principles:
Ten day notice under proprietary lease not necessary in non-payment proceeding.
Keywords:
coop maintenance arrears; proprietary lease
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Marian C. Doherty
Date:
July 9, 1997
Citation:
NYLJ, page 25, col 1
Referred Statutes:
RPAPL 711(2)
Summary:
Landlord, a cooperative corporation brought a nonpayment proceeding against a proprietary lessee for maintenance arrears. Tenant paid the arrears due at trial, but the court dismissed the petition on grounds that the proprietary lease required a ten day notice of default. The Appellate Term reversed holding that no such notice was required for a non-payment brought under RPAPL 711(2).


Case Caption:
The Adar Co. LLC v. Snyder
Issues/Legal Principles:
Pro Se tenant proved retaliatory eviction was landlord's motivation in commencing a holdover against her.
Keywords:
retaliatory eviction
Court:
District Court, Nassau County
Judge:
Hon. Stack
Date:
July 9, 1997
Citation:
NYLJ, page 34, col 6
Referred Statutes:
RPL 223-b
Summary:
The landlord became a stockholder in the co-op corporation and became the owner of the tenant's apartment. The tenant was offered a lease by the managing agent in August 1995, but one was never tendered. The tenant's lease expired in December, 1996 and she remained as a month to month tenant. The tenant sent the landlord various letters during the tenancy complaining of conditions and code violations. The landlord's response was that the managing agent was responsible for repairs. The tenant deducted the cost she paid for a broken lock from her rent. The landlord explained that it singled out the tenant and decided to not renew her lease because she deducted the lock money from the rent without their permission. The tenant also filed a complaint with the New York State Division of Human Rights stating that as a minority tenant she was treated unfairly and in a discriminatory manner. She also was active in the tenant's association to assert her rights. The landlord thereafter brought a holdover proceeding against the tenant. The court noted that the retaliatory eviction law was designed to encourage tenant to report health, safety and housing code violations and to assert their warranty of habitability tenancy rights without fear of retribution by landlords. The statute provides a rebuttable presumption that a landlord is acting in a retaliatory manner if the tenant proves that the landlord instituted an action to recover possession within six months after a good faith complaint was made to a governmental authority about the landlord's violation of a regulation or code relating to the premises. The tenant's complaint to the Human Rights division was followed within six months by the holdover proceeding. The landlord claimed that he was not retaliating, but rather sought to sell the apartment, yet the landlord could not state to the court how many other apartments were available at the same time. He also alleged that the tenant paid rent late, but the court determined she was never behind within any month, except for the deduction for the lock. The landlord also stated that attempts were always made to work issues out with tenants, but admitted that no such conversations took place with this tenant. The court held that retaliatory eviction did occur in this case and precluded the landlord from attempting to evict the tenant for another six months (as per the statute). The court also awarded the pro se tenant her costs.


Case Caption:
Santos v. Aquasvivas
Issues/Legal Principles:
Failure to register a multiple dwelling and state that it is a multiple dwelling in the petition compels a dismissal of the petition.
Keywords:
multiple dwelling
Court:
Appellate Term, Second and Eleventh Judicial Districts
Judge:
lower court: Hon. J.R. Grayshaw
Date:
July 10, 1997
Citation:
NYLJ, page 32, col 5
Referred Statutes:
MDL 325, 4(7); RPAPL 743(4)
Summary:
Landlord commenced a holdover proceeding to evict tenant from an illegal basement apartment. The parties conceded that the subject premises is an illegal three family dwelling and that the landlords did not register the dwelling as required by the Multiple Dwelling Law. The respondent is an elderly woman with an apparent mental illness who has resided in the premises since 1992 paying $500 per month. In December, 1995, the landlord served the tenant a thirty- day termination notice terminating her month to month tenancy. On the trial date the tenant refused to enter the courtroom and a default was entered against her. At the inquest the landlord admitted that the building was an illegal three family house with no registration. Nonetheless the court granted the landlord a final judgment of possession. Thereafter a legal services organization brought an order to show cause on behalf of the tenant to vacate the default and dismiss the proceeding on grounds that the petition falsely alleged that the premises was not a multiple dwelling, when in fact it was. The tenant's papers also asserted that she speaks only Spanish and didn't understand the procedure on the trial date. The court denied the tenant's motion finding no reasonable excuse for the default and no meritorious defense in that there was a danger to the health and safety of the tenant and the court could not permit habitation when the building department regulations prohibit her occupation, thus she could "never be successful on the merits" of her case. The Appellate Term reversed holding that the lower court lacked jurisdiction over the tenant since it was an illegal three family house and no registration existed, and the petition was clearly defective for failure to state the proper rent regulatory status of the premises. The Appellate Term held that the landlord should have commenced an action for ejectment in Supreme Court.


New York Law Journal,
decisions for the week of June 30 to July 4, 1997 (3 cases)


Case Caption:
Matter of Duke 367 Realty Corp. v. Aponte
Issues/Legal Principles:
DHCR cannot extend time for filing a PAR, particularly where new owner failed to inform DHCR of its new address.
Keywords:
PARs
Court:
Appellate Division, Second Department
Judge:
lower court: Hon. Kramer
Date:
July 1, 1997
Citation:
NYLJ, page 30, col 3
Referred Statutes:
9 NYCRR 2529.2, 2523.8
Summary:
The DHCR dismissed landlord's PAR of an order because it was filed late. Apparently, the building changed hands and the new owner did not notify the DHCR of the change of ownership or its new address within 30 days of the conveyance. As a result, the new owner missed its PAR 35-day filing deadline because it didn't receive the order. The owner brought an Article 78 appealing the PAR and the lower court dismissed the petition. This decision was upheld by the Appellate Division which affirmed that the DHCR is under no obligation to extend the time period for filing a PAR, especially in light of the owner's failure to notify the DHCR of its new address. It was not the DHCR's fault that the order got sent to the previous owner's address.


Case Caption:
Martine Realty v. Meyers
Issues/Legal Principles:
Termination notice which does not provide a full thirty-day period for a month to month tenant to vacate is defective, requiring the petition's dismissal.
Keywords:
termination notices
Court:
City Court, Westchester County
Judge:
Hon. Washington
Date:
July 2, 1997
Citation:
NYLJ, page 33, col 3
Referred Statutes:
RPAPL 741(4); RPL 232-b
Summary:
Tenant moved to dismiss the holdover petition on various grounds, including the fact that the termination notice was not attached to the petition. The court held that the petition can be amended to include the notice, particularly since the tenant did not deny receiving the notice prior to the commencement of the proceeding. The court, however, did dismiss the petition where the petition alleged that the month to month tenancy terminated on April 1, 1997 pursuant to a termination notice which was served on March 20, 1997. The lack of a full thirty day period terminating the tenancy rendered the notice defective.


Case Caption:
City of New York v. Clemons
Issues/Legal Principles:
City-landlord must show "good cause" to terminate a tenancy even in buildings the City acquired through an in rem tax foreclosure.
Keywords:
in rem foreclosures; termination notices
Court:
Civil Housing Court, Kings County
Judge:
Hon. Hoahng
Date:
July 2, 1997
Citation:
NYLJ, page 31, col 1
Referred Statutes:
RPL 232-a; Administrative Code 11-412(b)
Summary:
Tenant defaulted in a holdover proceeding and the court conducted an inquest in landlord's application for a possessory judgment. The building was acquired by the City of New York (the landlord) in an in rem tax foreclosure (i.e., the landlord didn't pay its taxes and the City took over the building by foreclosure). The City used to take the position that government agencies must show good cause as a grounds to evict a tenant. Based on an Appellate Term case, the City changed its posture and now submits that no cause whatsoever is needed in cases involving property acquired in an in rem foreclosure; that like private landlords the City need not state a reason to evict a month to month tenant. Thus, no grounds for terminating the tenancy were set forth in its termination notice to recover the apartment against the tenant in this case. The City differentiates foreclosure cases and claims it is a "reluctant landlord." The court, however, noted that the City does not have to take on the property, that it can offer the property to private entities to purchase upon foreclosure, and that by choosing to take on ownership and control, the City's purpose in these types of cases is not that much different from any other type of governmental landlord■to provide and maintain housing. Therefore, the court did not buy the City's effort to distinguish this case from its other housing cases where good cause for terminating a tenancy must be set forth in the termination notice. The court also noted that section 11-412(b) provides that where the City brings a holdover against a tenant residing in an in rem building and that tenant pays rent to someone other than a City employee, the rent payment shall not be construed as a waiver of the City's right to terminate the tenancy "for good cause." The court interpreted this statute to indicate that there exists a good cause caveat to evict a tenant even in an in rem building. The court analyzed other case law to support its holding that the City must show good cause to evict a tenant from an in rem buildings. Since the City's termination notice failed to specify any good cause grounds, the court dismissed the petition without prejudice for the City to recommence the proceeding with a proper termination notice.