Housing Court Decisions March 1997

edited by Colleen F. McGuire, Esq.

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New York Law Journal,
decisions for the week of March 24-28, 1997 (7 cases)

Case Caption:
Podsiadlo v. Pacheco
Issues/Legal Principles:
Holdover notice cannot simultaneously accuse tenant of unlawful subletting and violation of the roommate law; eviction is not a remedy for alleged violations of the roommate law.
Keywords:
sublet; roommate
Court:
Civil Housing Court, Kings County
Judge:
Hon. Peter Wendt
Date:
March 26, 1997
Citation:
NYLJ, page 31, col 1
Referred Statutes:
RPL 226-b & 235-f; RSC 2524.2(b) & 2524.3 & 2524.4; RPAPL 711
Summary:
Landlord brought a holdover proceeding against Rent Stabilized tenant on grounds of unlawful subletting, in violation of RPL 226-b. The predicate notice also alleged that the tenant failed to comply with RPL 235-f by not informing the landlord of the name of any additional occupants in the premises (i.e., roommates) within 30 days of their occupancy. The notice alleged nothing regarding the whereabouts of the prime tenant. The tenant moved to dismiss on grounds that the notice was defective because it was contradictory in that a tenant cannot simultaneously be accused of unlawful subletting (meaning the tenant resides elsewhere) and accused of violating the roommate law (meaning the tenant lives with the occupants). To deflect this contradiction, the landlord argued that the notice mentioned the tenant's alleged violation of RPL 235-f as a way of stating that the tenant could not rely on the roommate law as a defense. The court disagreed and stated that the notice clearly relies on RPL 235-f as a grounds of termination. Further the court could not, as landlord suggested, sever RPL 235-f from the notice as a grounds for eviction since predicate notices are not amendable. The court also opined that any violation of RPL 235-f (such as having more roommates than permitted under that law) could not be grounds for eviction because RPL 235-f does not provide for eviction as a remedy in the event of a breach of the statute. The court dismissed the petition based on the defective contradictory pleadings.

Case Caption:
Double A Property Assocs. v. DeLeon
Issues/Legal Principles:
Lower court's restoration of occupant/girlfriend to apartment after eviction was reversed on appeal where landlord's agent denied that he agreed to restore her upon late payment of rent.
Keywords:
post-eviction
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Badillo
Date:
March 25, 1997
Citation:
NYLJ, page 29, col. 1
Referred Statutes:
none cited
Summary:
In a nonpayment proceeding, the occupant/girlfriend of the tenant of record defaulted in making payments of the arrears pursuant to a stipulation and was subsequently evicted. However, shortly after the eviction, the occupant paid the amount of the judgment to the landlord's agent. The occupant claimed that the landlord's agent told her that upon payment of the judgment, she would be restored to possession. The landlord's agent denied this allegation, maintaining that he repeatedly told the occupant that under no circumstances would she be able to move back in to the apartment. The lower court restored the occupant to possession, holding that she was "under the impression" that she would get the apartment if she paid the judgment. The Appellate Court reversed, holding that the trial court's decision was not justified by the record and the post-eviction payment by the former occupant did not justify restoring her to possession, and furthermore her payment was one month late under the stipulation schedule and paid only after she was evicted.

Case Caption:
Matter of Miller v. DHCR
Issues/Legal Principles:
DHCR Rent reduction orders freeze the rent only as to statutory guideline rent increases, not apartment improvement increases.
Keywords:
rent reduction orders
Court:
Supreme Court, Kings County
Judge:
Hon. Belen
Date:
March 26, 1997
Citation:
NYLJ, page 30, col 4
Referred Statutes:
RSC 2520.6, 2527.8, 2523.4
Summary:
Within four days of taking occupancy of the apartment, tenant filed a complaint for decrease in services arguing that on the base date window screens were a required service and landlord ceased to provide them. The DHCR reduced the rent to the level in effect prior to the most recent guidelines increase, pursuant to sections 2520.6 and 2523.4 of the Code. The tenant thereupon on his own determined that his rent should be reduced from $810 to $401.26, the amount paid by the preceding tenant. Subsequently the DHCR ruled that the reduction pertained solely to guidelines increases, and did not affect increases permitted to this or any landlord for apartment improvements. The tenant appealed on various grounds including that a DHCR internal memorandum statement "eliminating all intervening increases" should have been interpreted to mean that even apartment improvement increases should not be granted a landlord when a rent reduction order is in effect. Tenant further challenged DHCR's "arbitrary" reopening of the case without notifying tenant and sought a contempt order, and challenged DHCR's position that the internal memorandum should not be interpreted to encompass all increases, but only guideline increases. The Supreme Court held on the side of the DHCR's interpretation of its internal memo, i.e., that rent reduction orders were not intended to preclude rent increases based on apartment improvements. The court also held that an internal memo did not constitute a policy statement. The court dismissed the tenant's Article 78 appeal of the DHCR order.
TenantNet note:
The decision in this matter did not fully clarify the issue in our view and it is possible that owners might use this decision in the wrong way. TenantNet was consulted in this case and we're familiar with the underlying facts and issues. In this case there was no rent reduction in effect from prior tenants when the current tenant took occupancy. The improvements at issue were installed prior to the effective date of the rent reduction obtained by the current tenant, and therefore the court ruled that the rent reduction order could not be used to reduce the rent to the rent in effect prior to the point when the improvements were installed on the vacancy. In other cases that we've seen (and in which we've been involved), if a prior tenant had obtained a rent reduction order and the effective date of the order is prior to the vacancy, then that rent reduction and rent freeze holds for the new tenant and (here's where the two situations differ), the costs of any improvements cannot be passed on to the current tenant during the period the rent reduction order is in effect. This can be a complicated issue and any tenant finding themselves in such a situation should contact TenantNet as we even have a copy of a DHCR opinion letter backing our view on this.

Case Caption:
Diamond v. Ulrich
Issues/Legal Principles:
Tenants given credit on use and occupancy for discrepancies in water-sewer charges.
Keywords:
use and occupancy
Court:
Appellate Term, 9th & 10th Judicial Districts
Judge:
lower court: Hon. Kane, Jr.
Date:
March 25, 1997
Citation:
NYLJ, page 28, col. 6
Referred Statutes:
none cited
Summary:
The lower court determined that the plaintiffs/tenants in this appeal were holdover tenants and awarded use and occupancy to the landlord. The tenants appealed in order to reduce the amount of the judgment for use and occupancy owed during the holdover period. The tenants claimed that there were discrepancies as to the sewer and water bills in that they covered periods after they surrendered possession of the premises. The Appellate Term held that the documentary evidence submitted by the landlord in support of his claim for sewer and water charges due by the former tenants contained discrepancies and modified the judgment by reducing the amount of the landlord's award.

Case Caption:
90-92 Wadsworth Avenue Tenant's Association v. City of New York Department of Housing Preservation and Development
Issues/Legal Principles:
Tenants Association's complaint dismissed where it waited too long to challenge HPD's approval of rehabilitation loan to landlord.
Keywords:
HPD rehabilitation loans; laches
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Harold Tompkins
Date:
March 24, 1997
Citation:
NYLJ, page 27, col. 4
Referred Statutes:
CPLR 217
Summary:
The Department of Housing Preservation and Development ("HPD") approved an Article 8A rehabilitation loan to the landlord for work on the premises. Sixteen months after the closing of the loan and after work had already begun, the tenants association commenced an Article 78 proceeding to challenge HPD's approval of the loan. The tenants alleged that they were not aware that the closing took place and that the landlord did not give them the required notice of said closing. The lower court denied landlord's motion to dismiss the tenants' petition. The Appellate Division unanimously reversed the lower court's ruling on both the law and the facts of the case. The Court held that the tenants association's action was untimely in that they failed to bring their action within 4 months from when they received notice of HPD's approval of the rehabilitation loan. Furthermore, HPD was not required to send additional notice as to the closing of the loan. Moreover, the Court held that not only did HPD comply with all of the notice requirements to the tenants, the facts of the case showed that the tenants were guilty of laches in that they waited over sixteen months to bring their claim and all the while construction was taking place "throughout their building and all around their apartments".

Case Caption:
Villaronga v. Birch Brook Manor, Inc.
Issues/Legal Principles:
Prospective tenant entitled to return of security deposit where no lease or any other agreement signed.
Keywords:
security deposit
Court:
Justice Court of Town of Ossining, Westchester County
Judge:
Town Justice Shapiro
Date:
March 26, 1997
Citation:
NYLJ, page 27, col. 4
Referred Statutes:
none cited
Summary:
Plaintiff was a former prospective tenant who paid the landlord's managing agent a deposit toward the rental of an apartment, prior to executing a lease. The lease was to commence on a certain date, however several days prior to that date plaintiff informed the landlord's agent that there was a death in her family and that she would need an extension of time. In the meantime, plaintiff lost her job and advised landlord's agent that she would not be able to take the apartment. At this time, plaintiff requested return of her security deposit. She was told that under the circumstances, the landlord relied on her commitment and the deposit was not refundable. The Court held that "an agreement to agree to a future contract lacks the essentials of a binding contract unless it specifies all of the material and essential terms, leaving none to be agreed upon as the result of future negotiations." In addition, the Court looked at the credibility of the testimony of both parties and concluded that both parties were not completely blameless. Moreover, the nonrefundable nature of the deposit to cover the landlord's damages, was not reduced to writing. The Court concluded that in light the landlord's position as the owner of a "substantial apartment building" it must be "charged with knowledge of the law." As a result, the Court held that the landlord had the means to adequately protect itself from sustaining losses that result from changed circumstances and awarded plaintiff her deposit back.

Case Caption:
Estate of Carl Harrison Jr. v. White
Issues/Legal Principles:
Petition bearing incorrect and non-existent address deprives court of jurisdiction and warrants dismissal.
Keywords:
service of petition
Court:
Civil Housing Court, Kings County
Judge:
Hon. Callender
Date:
March 26, 1997
Citation:
NYLJ, page 31, col. 4
Referred Statutes:
RPAPL 741(3)
Summary:
The parties entered into a stipulation where the tenant agreed to a money judgment and the immediate warrant of eviction could issue upon his default in the payout schedule. Subsequently, the tenant failed to comply with the terms of the stipulation and made a motion to dismiss the proceeding because the rent demand, notice of petition, petition and affidavits of service failed to state the correct address of the subject premises. The tenant alleged that notwithstanding the stipulation, this defect goes to the subject matter jurisdiction of the Court and required that the petition must be dismissed. The address described in the papers was not only incorrect, but nonexistent. The landlord argued that the error which indicated that the premises was located on "Ocean Boulevard" as opposed to the correct address on "Ocean Parkway," was at worst harmless. The Court dismissed the petition, holding that "since the Court fails to possess jurisdiction over the non-existent property, the papers cannot later be amended to give it power it never had in the first place."

New York Law Journal,
decisions for the week of March 17-21, 1997 (13 cases)

Case Caption:
Brause v. Polonez Press Box, Inc.
Issues/Legal Principles:
New owner could eject tenant based on prior owner's judgment, but new owner had to move to be substituted as a party to the action.
Keywords:
ejectment
Court:
Supreme Court, New York County
Judge:
Hon. David Saxe
Date:
March 19, 1997
Citation:
NYLJ, page 25, col 6
Referred Statutes:
RPL 223; CPLR 1018
Summary:
The old landlord won an order of ejectment to evict the tenant, but the tenant delayed the eviction by twice filing for bankruptcy and due to an evaluation by Protective Services. The new owner wants to enforce the judgment of ejectment. The court ruled that the successor landlord succeeded to the rights of the prior landlord, including being able to enforce the judgment, but the new owner must make a motion to be substituted as plaintiff in order to do so. The court held so long as the new owner is joined as a party to the action, the new owner did not have to initiate a new ejectment action against the tenant.

Case Caption:
New York City Housing Authority v. Fountain
Issues/Legal Principles:
Landlord's petition dismissed for failure to include zip code on service papers.
Keywords:
service of process
Court:
Civil Housing Court, Bronx County
Judge:
Hon. Ling-Cohan
Date:
March 19, 1997
Citation:
NYLJ, page 27, col 2
Referred Statutes:
RPAPL 735, 732(1) & (3)
Summary:
The landlord served two non-payments on two separate tenants by "nail and mail" service. The papers contained no zip code of tenants' address. Both tenants defaulted and landlord sought a judgment of possession. The court denied landlord the relief based on the fact the Court could not say that it was "virtually certain" the petition arrived absent the zip code.
Notes:
The court provided a very lengthy discussion of the requirements of service of process. Despite the case's focus on zip codes, this case is actually extremely useful as a general reference source for issues pertaining to service of process.

Case Caption:
Department of Housing Preservation and Development v. Cupid
Issues/Legal Principles:
Petition seeking civil penalties dismissed where no proof existed that the respondents, former owners, had control or were sufficiently connected to the building during the time the violations remained uncorrected.
Keywords:
HP action
Court:
Civil Housing Court, Bronx County
Judge:
Hon. Anthony Fiorella
Date:
March 19, 1997
Citation:
NYLJ, page 28, col. 2
Referred Statutes:
Housing Maintenance Code 27-2004(45)
Summary:
Nine violations were placed against the building beginning in January, 1995 and remained uncorrected through November, 1996. Two of the respondents had owned the building at one time with another individual. However, when they obtained a mortgage, the mortgagee bank ordered the two respondents to terminate all connection with the property when a receiver was appointed in 1991. The court ruled that these two respondents no longer had control of the building for purposes of enforcing civil penalties against them. Further, there was no convincing evidence that the other individual controlled or had connections the building upon being assigned the mortgage in 1994. The court dismissed the petition.

Case Caption:
Root v. 650 Park Avenue Corp.
Issues/Legal Principles:
Co-op tenant denied injunction to stop garage noise when the unit was purchased "as is" and tenant was aware of the noise at the time of purchase.
Keywords:
noise
Court:
Supreme Court, New York County
Judge:
Hon. Tompkins
Date:
March 20, 1997
Citation:
NYLJ, page 27, col 4
Referred Statutes:
CPLR 3212(a)
Summary:
Plaintiff co-op tenant sought an injunction to close the garage located in the building between 11 pm and 7 am because its elevator noise was extremely disruptive. The garage's hours were 6 am to 2 am. The court took notice that apparently a prior tenant in the same apartment had also filed a similar complaint. The court denied the injunction because the tenant signed an agreement with the co-op corporation that he would take the premises on an "as is" basis. The defendant argued that the garage elevator was in full operation at the time plaintiff purchased the apartment, and the court held that the noise problem was thus one that could have been discovered by plaintiff before purchase. The court noted that plaintiff had further been living in the apartment for over two years before filing the complaint. The plaintiff claimed that she was unable to sell the apartment due to the noise, but the court held that she could not attribute the vagaries of the market place to the noise. Also, plaintiff failed to sue the garage owner. The co-op corporation's cross-motion for summary judgment was denied but several of plaintiff's claims were stricken, including punitive damages since they do not lie in a dispute involving a private contract.

Case Caption:
Federal Deposit Insurance Corp. v 7 Brothers Construction Corp.
Issues/Legal Principles:
Receiver not entitled to rent paid by tenant to landlord's agent before receiver's appointment, even if landlord didn't actually receive the rent at the time of appointment.
Keywords:
receivers
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Walter Schackman
Date:
March 20, 1997
Citation:
NYLJ, page 26, col 3
Referred Statutes:
none cited
Summary:
The receiver in a mortgage foreclosure action sought to hold defendant management company in contempt for failure to turn over to him accrued rent money they had collected before his appointment but not paid over to the owner until after his appointment. The lower court denied the receiver's motion and the appellate court upheld, ruling that a receiver is not entitled to accrued rent paid by a tenant to a managing agent before the receiver's appointment, even though not actually received by the landlord at the time of the appointment.

Case Caption:
298 15th Street Realty Corp. v. Fox
Issues/Legal Principles:
New owner entitled to judgment for rents where proper assignment made.
Keywords:
assignment of rents; substitution of owner
Court:
Civil Housing Court, Kings County
Judge:
Hon. Finkelstein
Date:
March 12, 1997
Citation:
NYLJ, page 30, col. 3
Referred Statutes:
CPLR 1018, 1021
Summary:
Landlord sold the building that was the subject of this nonpayment proceeding and his successor moved to amend the petition and judgment to substitute himself as both the petitioner and successor in interest. Tenant argued that the motion should be denied on several grounds: (1) the assignment of rents was not between the petitioner and the proposed assignee; (2) there was no landlord-tenant relationship between the current owner and respondent; (3) it appeared that the original petitioner was not the proper party to initiate this proceeding; (4) ownership of the premises were transferred more than 90 days ago; and (5) since an HP proceeding previously brought by tenant against former landlord had been dismissed, this proceeding should have also been dismissed. The Court held that substitution of landlord's successor normally requires proof of an assignment of rents. The new owner must possess both actual title to the property and a valid assignment of rents or a transfer of the right to rents from a property. The Court found that the assignment of rents was not from the original landlord, but from a bank (the bank owned the original petitioner's corporation) who was never involved in the proceeding. As a result, the Court held that this assignment standing alone, would have supported tenant's first three grounds for denial of the landlord's motion. However, the Court held that since the error with regard to the assignment of rents was acknowledged and corrected, the tenant's first three grounds for denial of the motion must fall. As to the tenant's fourth ground for dismissal, the Court held that tenant was incorrect because "a successor-in-interest may be substituted as petitioner even after entry of a final judgment granting possession" and that a 90 day rule is inapplicable. Finally, as to the tenant's fifth ground for dismissal, the Court held that dismissal of the HP action is irrelevant and does not form a basis to dismiss the instant proceeding.

Case Caption:
Committed Community Assoc. v. Croswell
Issues/Legal Principles:
Tenant entitled to abatement for period conditions last, not just for period landlord sues for rent; Section 8 tenant's abatement based on contract rent, not just tenant's share of rent.
Keywords:
Section 8; warranty of habitability
Court:
Appellate Term, 2nd & 11th Judicial Districts
Judge:
lower court: Hon. Calender
Date:
March 12, 1997
Citation:
NYLJ, page 29, col 2
Referred Statutes:
24 CFR 880; RPAPL 743; 42 USC 1437f(c)(1)
Summary:
Landlord brought a non-payment proceeding against a Section 8 tenant. Tenant's subsidized rent payments were $218 per month, while the total monthly rent was $1,419. The landlord sued to recover tenant's portion of the rent for which she was in arrears. Tenant counterclaim for warranty of habitability from the inception of her tenancy in 1992. In a pre- trial motion, the lower court ruled that the value of the apartment was to be measured based on the contract rent rather than the tenant's share of the contract rent. The court found that $2,398 in rent was owed and the conditions in the apartment justified an abatement to tenant of $2,300, leaving landlord a judgment of $98. The lower court also limited the tenant's time period for recovery to only the months for which rent was not paid, not prior months. The Appellate Term first held that tenants are entitled to counterclaim for breach of warranty of habitability for monies paid under the lease; in other words, tenants can get an abatement for rents already paid and not be limited to an abatement for just those months the landlord was suing for. However, since the parties did not present this issue to the appellate court, the Court was compelled to limit the abatement to the months the landlord sued for. The Court also ruled that the diminution in the value of the apartment must be measured by reference to the contract rent, and not tenant's portion, because the former represents the market value of the apartment. "The application of a measure of damages based only on tenant's share of the rent would result in landlord's recovery of rent in excess of the value of what he has provided tenant." The Court did not accept tenant's argument that a tenant should be allowed to recover damages for breach of the warranty of habitability in excess of his share of the rent. In this case, tenant's abatement was $98 less than the amount of rent due. The Appellate Term indicated that if the abatement were more than the rent owed, or more than the tenant's share, it would not be inclined to grant the tenant an abatement in excess of her share of the rent, such as if the rent owed was $2300 and tenant was given a $2400 abatement. The Appellate Term seemed to balk at giving the tenant the $100 beyond the amount owed. (The decision was conflicting and not sufficiently articulated).

Case Caption:
DeCamp v. Dawson
Issues/Legal Principles:
Landlord sanctioned $1,000 for filing false affidavit of non-military service.
Keywords:
sanctions
Court:
Civil Housing Court, Kings County
Judge:
Hon. Callender
Date:
March 12, 1997
Citation:
NYLJ, page 30, col 4
Referred Statutes:
Uniform Rules of Trial Court 130
Summary:
Wife of the tenant brought a post-eviction order to show cause to be restored to possession. The landlord then agreed to allow the wife to remain in the apartment. The matter was set down for a sanctions hearing because the landlord signed a document, an affidavit of non-military service, falsely stating that he spoke with the tenant on September 23, 1995. In fact, the tenant was in prison on that date and the landlord was in Pennsylvania. The landlord claimed that he signed the document but didn't read its contents when it was presented to him. The court imposed $1,000 in sanctions and $100 in court costs.

Case Caption:
One Sickles Street Co. v. Vasquez
Issues/Legal Principles:
Military affidavit of service must be acceptable before court will grant possessory judgment on default.
Keywords:
service of process
Court:
Civil Housing Court, New York County
Judge:
Hon. Richard Braun
Date:
March 19, 1997
Citation:
NYLJ, page 26, col 3
Referred Statutes:
50 U.S.C. Appendix 520(1), (2); N.Y. Military Law 303(3), 309(2), (3); 10 U.S.C. 1251(a); 32 U.S.C. 313(a); Military Law 21(1)
Summary:
Landlord applied for a default final judgment in nonpayment proceeding. A military status affidavit is required in any type of action or proceeding both in State and Federal Courts when a party is in default. Judgement may not be entered against a party that is in the military service. The Court will appoint an attorney to protect his/her interests. Likewise, when a tenant has totally defaulted, a landlord's application for a judgement of possession or money judgment will not be signed by the clerk if a proper military status affidavit is not filed. "A military status affidavit is not acceptable where it does not contain a sufficient factual basis for an investigator's opinion that a respondent is not in the military service." The Court noted that the scope of this requirement extends to members of the reserves as well as active members of the military. The Court held that the landlord's investigator's affidavit was insufficient, as it merely stated that the tenant was between 40-50 and was regularly employed. These facts do not establish that the respondent was not in the military. The Court noted persons within the respondent's age bracket can be members of the military. Moreover, a member of the reserves may be regularly employed, however they are "particularly susceptible to having their lives disrupted by a sudden call up to active duty." In addition, the Court stated that "resourceful investigators have located a person at the Pentagon or personnel at the various branches of the armed services who will inform a caller as to the military status of a person." Therefore, the final judgment was signed, but the clerk was directed not to enter the judgment until the landlord provides a "non-conclusory military status affidavit with the clerk of the court."

Case Caption:
Berman v. 300 West 108 Owners Group
Issues/Legal Principles:
Co-op tenant must post bond of 80% of maintenance owed to obtain injunction.
Keywords:
co-op warranty of habitability; liens
Court:
Supreme Court, New York County
Judge:
Hon. Lebedeff
Date:
March 19, 1997
Citation:
NYLJ, page 25, col. 2
Referred Statutes:
CPLR 325 (c); (d)
Summary:
Plaintiff/shareholder is the proprietary lessee of residential shares in a cooperative apartment building. Plaintiff suffers from asthma and has been unable to live in her apartment due to persistent dampness caused by recurrent leaks in her unit. As a result, plaintiff ceased paying maintenance fees, alleging that the Corporation breached the warranty of habitability. The Corporation served plaintiffs with a Notice of Default and a Notice of Cancellation and Termination which stated that the Corporation would terminate the proprietary lease and cancel the plaintiff's shares in the corporation if plaintiffs did not cure their default of over $13,000 in unpaid maintenance fees. The Corporation argued that the plaintiff's shares were personal property whereby the Corporation had a lien on the plaintiff's apartment for the unpaid maintenance. Plaintiffs moved for a preliminary injunction. Plaintiff argued that the Corporation had impermissibly circumvented a law which provides that a landlord may not apply a conditional limitation to terminate a tenancy when there is a nonpayment of rent or maintenance because of a claimed breach of warranty of habitability. In its holding, the Court did not reach the question as to whether a corporation may proceed against a residential shareholder by utilizing "Lien Law" remedies. Instead, the Court granted the plaintiff's motion for a preliminary injunction, but required that plaintiffs post an undertaking in the amount of 80% of the accrued maintenance as an injunction bond. As an aside, the Court encouraged the plaintiff to commence an HP proceeding in Housing Court to compel the correction of violation as "a less expensive and more expeditious path to secure that end than Supreme Court litigation." The Court further noted that if that step were taken, the issues raised in the Supreme Court action could be fully addressed by the Civil Court, either by summary proceeding or pursuant to remand.

Case Caption:
Eight-17 Associates v. Geran
Issues/Legal Principles:
Tenant granted stay of eviction upon filing tenant's filing for bankruptcy despite tenant's signing of stipulation that she would be evicted if the rent was not paid.
Keywords:
bankruptcy
Court:
Civil Housing Court, New York County
Judge:
Hon. Arthur Birnbaum
Date:
March 19, 1997
Citation:
NYLJ, page 26, col. 4
Referred Statutes:
CPLR 2004 & 2001, Administrative Code 26-501, 502; 11 USC 362
Summary:
In this nonpayment proceeding, landlord requested and was granted a warrant of eviction and pursuant to a stipulation, the warrant was stayed on condition of the tenant paying the arrears. Shortly thereafter, the tenant filed for bankruptcy. As a result, landlord served a 72 hour notice. Tenant moved to vacate this notice because she was up to date with payments to the Bankruptcy Trustee and that moreover, she is entitled to an automatic stay until her confirmation in the Bankruptcy Court. Landlord asserted that the automatic bankruptcy stay is inapplicable because final judgment was entered in the landlord's favor and a warrant was issued prior to respondent's filing for bankruptcy. The Court reviewed the applicable law and held that the bankruptcy stay was effective "[d]ue to the special circumstances of the rent-stabilized tenancy, the tenant remaining in possession, the filing of the petition during such possession and the policy that in rent-stabilized cases until after actual eviction the matter is deemed to be pending even after the issuance of a warrant . . .."

Case Caption:
Dice v. Inwood Hills Condominium
Issues/Legal Principles:
General non-waiver clause in condo by-laws does not necessarily allow condo board to enforce no pets provision against tenant owner.
Keywords:
pets; waiver
Court:
Appellate Division, Second Department
Judge:
lower court: Hon. Owen
Date:
March 21, 1997
Citation:
NYLJ, page 21, col. 5
Referred Statutes:
none cited
Summary:
Plaintiff, owner of a condo unit, brought an action regarding the Condominium Board's attempt to prohibit his ownership of a pet. Defendant argued that the existence of a general non- waiver clause in the condominum by laws meant that it was not precluded from enforcing a provision of the by-laws. The Court ruled that a waiver is the voluntary abandonment of a known right, and the existence of the non-waiver clause in the by-laws was not dispositive. The case would have to be tried to determine if the Board waived a right to enforce the non-pet clause against this plaintiff.

Case Caption:
Tracto Equipment Corp. v. White
Issues/Legal Principles:
Loft tenant entitled to Rent Stabilized renewal lease because tenant was covered by the loft law.
Keywords:
Loft Law; Rent Stabilization; certificates of occupancy
Court:
Appellate Division, Second Department
Judge:
lower court: Hon. Mason
Date:
March 21, 1997
Citation:
NYLJ, page 36, col. 4
Referred Statutes:
Multiple Dwelling Law 281(1)
Summary:
Landlord brought a holdover proceeding after the expiration of tenant's lease. Tenant claimed that he was entitled to a renewal lease and that his apartment was covered by the Rent Stabilization Law. The trial court found that the building was an Interim Multiple Dwelling (i.e., a loft), thereby the tenant was entitled to a renewal lease and the landlord appealed. The Appellate Division agreed with the lower court's factual finding in that the lease between the parties contemplated the conversion of commercial space to residential space on the condition the conversion complied with the Rent Stabilization Code. The Appellate Court was faced with the issue as to whether the enactment of the "Loft Law" which requires that "nonresidential space shall be offered for residential use only after the obtaining of a residential certificate of occupancy for such space." The Court held that although the landlord was correct in arguing that the new law required a finding in its favor, the lease indicated the intention of the parties to create a residential living area prior to the landlord obtaining a certificate of occupancy for the area. Moreover, since the tenant converted the space pursuant to the lease agreement and paid for many of the repairs and renovations itself, the Court held that the tenant was entitled to a renewal lease.

New York Law Journal,
decisions for the week of March 10-14, 1997 (8 cases)

Case Caption:
Spitzer v. Nancy J. Schneider, Ltd.
Issues/Legal Principles:
Landlord's non-renewal notice not deemed defective for naming individual officer as tenant instead of the actual corporate tenant.
Keywords:
non-primary residency; corporate tenant; discovery
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Salvador Collazo
Date:
March 11, 1997
Citation:
NYLJ, page 25, col 2
Referred Statutes:
RSC 2524.2(b)
Summary:
The Appellate Court reversed the lower court's denial of the landlord's cross-motion to conduct discovery on the tenant and to amend the caption to name Nancy J. Schneider as a party. Nancy J. Schneider, Ltd, a New York corporation, leased a Rent Stabilized apartment for the intended occupancy of its president, Nancy J. Schneider. The landlord served a non- renewal notice on non-primary residency grounds and addressed it to Schneider, not her corporation. The tenant moved to dismiss the petition because the notice failed to designate the actual tenant and alleged insufficient facts. The Appellate Term reversed the lower court's dismissal of the petition, holding that the tenant's argument "merely serves to elevate form over substance." The Court also held that the appropriate test for a facially sufficient notice is "reasonable in view of the attendant circumstances, and only in circumstances where such a notice contains substantial and prejudicial misstatements will it be subject to strict construction as a matter of equity." The Court held that putting the corporate name as opposed to Schneider's individual name could not have materially misled or confused the corporate tenant or its officers or hindered their defense preparation. The Court also found that naming Nancy Schneider as a "Jane Doe" in the petition was an amendable defect. The Court granted the landlord discovery of the tenant.

Case Caption:
Heywood Towers Inc. Valdes
Issues/Legal Principles:
Rent demand is defective for failure to specify the period for which the rent is sought.
Keywords:
rent demand
Court:
Civil Court, New York County
Judge:
Hon. Richard Braun
Date:
March 12, 1997
Citation:
NYLJ, page 27, col 1
Referred Statutes:
CPLR 3211(a) & 3213(a); RPAPL 711(2)
Summary:
In this nonpayment proceeding, the tenant moved to dismiss the petition on grounds of defective notice. The apartment was subject to HUD regulations. The ten day rent demand sought $4,700 due to "No Certification," and $2,330 due to HUD "excesses." The tenant argued that she recertified every year and did not know what the excesses were about. The Court dismissed the petition because of the landlord's failure to set forth with specificity the period for which the rent was sought, especially in light of letters sent to the tenant's attorney which alleged a different amount of rent due.

Case Caption:
Washington v. Gulbreath
Issues/Legal Principles:
Rent demand valid even if miscellaneous charges are not itemized, so long as the rent itself is itemized.
Keywords:
rent demand
Court:
Appellate Term, 2nd & 11th Judicial Districts
Judge:
lower court: Hon. Callender
Date:
March 12, 1997
Citation:
NYLJ, page 29, col. 1
Referred Statutes:
RPAPL 711
Summary:
Tenant entered into a stipulation to pay six months of rent and miscellaneous charges of $1,343.78. When tenant defaulted, landlord moved for a final judgment. Tenant retained counsel who cross-moved to vacate the stipulation on grounds that the rent demand was defective for failing to itemize the miscellaneous charges. The lower court vacated the stipulation and dismissed the petition. The Appellate Term reversed holding that the failure to itemize miscellaneous charges was not a major issue since the notice did itemize the rent owed and the rent is what is important.

Case Caption:
Kent v. Bedford Apartments
Issues/Legal Principles:
Roommate bound by stipulation which gave her a rent stabilized lease but also waived her rights to challenge rent overcharges
Keywords:
overcharges
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Charles Ramos
Date:
March 13, 1997
Citation:
NYLJ, page 26, col 1
Referred Statutes:
RSC 2520.13
Summary:
The plaintiff had previously entered into a stipulation of settlement in a holdover proceeding against the landlord, who was the defendant in this Supreme Court action. The plaintiff was a roommate of the deceased tenant of record. In the stipulation, the plaintiff was given a rent stabilized lease to the apartment, but waived any right to challenge the rent. Although the Code prohibits a waiver under any and all circumstances of a tenant's rights under the Rent Stabilization Law, including waiver of an unlawful rent, the court below ruled that plaintiff was not a rent stabilized tenant at the time she entered into the stipulation. Therefore, she had no rent stabilization rights to waive. The lower court granted the landlord's motion to dismiss plaintiff's complaint for rent overcharges, and the Appellate Division upheld. The Court ruled that plaintiff had a choice either to obtain a judicial declaration of her status and the legal rent, or enter into the stipulation which conferred rent stabilization status upon her, albeit in consideration of waiving her rights to challenge the rent.

Case Caption:
Goldman v. Zaccaro
Issues/Legal Principles:
Nonprimary residence proceeding dismissed because termination notice did not contain sufficient facts.
Keywords:
nonprimary residence
Court:
Civil Court, New York County
Judge:
Hon. Marilyn Schafer
Date:
March 10, 1997
Citation:
NYLJ, page 27, col 1
Referred Statutes:
New York City Rent and Eviction Regulations [9 NYCRR] 2204.3[b]
Summary:
Landlord brought holdover proceeding to recover possession of a rent-controlled apartment, alleging that the tenant did not occupy the premises as his primary residence. Landlord had no knowledge of any other apartment where the tenant may be residing, nonetheless, landlord made a motion requesting the Court's permission to depose the tenant. Tenant cross moved to dismiss the petition, alleging that the 30-day termination notice failed to state sufficient facts to support a claim of nonprimary residence. The Court held that in nonprimary residence proceedings, "the notice of termination must state not only the ground for eviction but also the facts necessary to establish the existence of such a ground." Landlord argued that the predicate notices were adequate because they stated that the tenant has not been seen at the subject premises for quite some time. The Court disagreed with the landlord, holding that the predicate notices were "devoid of specific facts or particularized allegations" and dismissed the petition. In deciding these motions, the Court seemed to take notice of the fact that it was undisputed that Mr. Zaccaro occupied the subject premises, and had paid rent since the late 1970's. Moreover, since the landlord purchased the building, the conditions drastically deteriorated (ie: no security; no mailboxes; heat and hot water are sporadic), so that only two of the twenty-three residential rooms were occupied.

Case Caption:
298 15th Street Realty Corp. v. Fox
Issues/Legal Principles:
New owner entitled to judgment for rents where proper assignment made.
Keywords:
assignment of rents; substitution of owner
Court:
Civil Housing Court, Kings County
Judge:
Hon. Finkelstein
Date:
March 12, 1997
Citation:
NYLJ, page 30, col. 3
Referred Statutes:
CPLR 1018, 1021
Summary:
Landlord sold the building that was the subject of this nonpayment proceeding and his successor moved to amend the petition and judgment to substitute himself as both the petitioner and successor in interest. Tenant argued that the motion should be denied on several grounds: (1) the assignment of rents was not between the petitioner and the proposed assignee; (2) there was no landlord-tenant relationship between the current owner and respondent; (3) it appeared that the original petitioner was not the proper party to initiate this proceeding; (4) ownership of the premises were transferred more than 90 days ago; and (5) since an HP proceeding previously brought by tenant against former landlord had been dismissed, this proceeding should have also been dismissed. The Court held that substitution of landlord's successor normally requires proof of an assignment of rents. The new owner must possess both actual title to the property and a valid assignment of rents or a transfer of the right to rents from a property. The Court found that the assignment of rents was not from the original landlord, but from a bank (the bank owned the original petitioner's corporation) who was never involved in the proceeding. As a result, the Court held that this assignment standing alone, would have supported tenant's first three grounds for denial of the landlord's motion. However, the Court held that since the error with regard to the assignment of rents was acknowledged and corrected, the tenant's first three grounds for denial of the motion must fall. As to the tenant's fourth ground for dismissal, the Court held that tenant was incorrect because "a successor-in-interest may be substituted as petitioner even after entry of a final judgment granting possession" and that a 90 day rule is inapplicable. Finally, as to the tenant's fifth ground for dismissal, the Court held that dismissal of the HP action is irrelevant and does not form a basis to dismiss the instant proceeding.

Case Caption:
Committed Community Assoc. v. Croswell
Issues/Legal Principles:
Tenant entitled to abatement for period conditions last, not just for period landlord sues for rent; Section 8 tenant's abatement based on contract rent, not just tenant's share of rent.
Keywords:
Section 8; warranty of habitability
Court:
Appellate Term, 2nd & 11th Judicial Districts
Judge:
lower court: Hon. Calender
Date:
March 12, 1997
Citation:
NYLJ, page 29, col 2
Referred Statutes:
24 CFR 880; RPAPL 743; 42 USC 1437f(c)(1)
Summary:
Landlord brought a non-payment proceeding against a Section 8 tenant. Tenant's subsidized rent payments were $218 per month, while the total monthly rent was $1,419. The landlord sued to recover tenant's portion of the rent for which she was in arrears. Tenant counterclaim for warranty of habitability from the inception of her tenancy in 1992. In a pre- trial motion, the lower court ruled that the value of the apartment was to be measured based on the contract rent rather than the tenant's share of the contract rent. The court found that $2,398 in rent was owed and the conditions in the apartment justified an abatement to tenant of $2,300, leaving landlord a judgment of $98. The lower court also limited the tenant's time period for recovery to only the months for which rent was not paid, not prior months. The Appellate Term first held that tenants are entitled to counterclaim for breach of warranty of habitability for monies paid under the lease; in other words, tenants can get an abatement for rents already paid and not be limited to an abatement for just those months the landlord was suing for. However, since the parties did not present this issue to the appellate court, the Court was compelled to limit the abatement to the months the landlord sued for. The Court also ruled that the diminution in the value of the apartment must be measured by reference to the contract rent, and not tenant's portion, because the former represents the market value of the apartment. "The application of a measure of damages based only on tenant's share of the rent would result in landlord's recovery of rent in excess of the value of what he has provided tenant." The Court did not accept tenant's argument that a tenant should be allowed to recover damages for breach of the warranty of habitability in excess of his share of the rent. In this case, tenant's abatement was $98 less than the amount of rent due. The Appellate Term indicated that if the abatement were more than the rent owed, or more than the tenant's share, it would not be inclined to grant the tenant an abatement in excess of her share of the rent, such as if the rent owed was $2300 and tenant was given a $2400 abatement. The Appellate Term seemed to balk at giving the tenant the $100 beyond the amount owed. (The decision was conflicting and not sufficiently articulated).

Case Caption:
DeCamp v. Dawson
Issues/Legal Principles:
Landlord sanctioned $1,000 for filing false affidavit of non-military service.
Keywords:
sanctions
Court:
Civil Housing Court, Kings County
Judge:
Hon. Callender
Date:
March 12, 1997
Citation:
NYLJ, page 30, col 4
Referred Statutes:
Uniform Rules of Trial Court 130
Summary:
Wife of the tenant brought a post-eviction order to show cause to be restored to possession. The landlord then agreed to allow the wife to remain in the apartment. The matter was set down for a sanctions hearing because the landlord signed a document, an affidavit of non-military service, falsely stating that he spoke with the tenant on September 23, 1995. In fact, the tenant was in prison on that date and the landlord was in Pennsylvania. The landlord claimed that he signed the document but didn't read its contents when it was presented to him. The court imposed $1,000 in sanctions and $100 in court costs.

New York Law Journal,
decisions for the week of March 3-7, 1997 (9 cases)

Case Caption:
102-116 Eighth Ave. Assoc. v. Tapia
Issues/Legal Principles:
Trial needed to determine if tenant's unlawful sublet is non-curable due to tenant's charging excessive rent to subtenant.
Keywords:
overcharge; subletting
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Salvador Collazo
Date:
March 3, 1997
Citation:
NYLJ, page 27, col 3
Referred Statutes:
RPAPL 753(4)
Summary:
The Appellate Court reversed the lower court's ruling of summary judgment in landlord's favor because there were too many issues of fact that could not be determined on papers alone. The lower court found that as a matter of law that the tenant had sublet the premises without the landlord's consent and that the lease violation was not curable because the tenant charged rent to the occupant in excess of the legal regulated rent. The various questions of fact that necessitated a trial included whether the occupant, who originally entered the premises as a roommate of a previous subtenant, was in fact a sublessee, and whether the landlord knew about the occupant's occupancy when the landlord accepted rent from the tenant (which would be a known waiver of a violation).

Case Caption:
Capital Holding Corp. v. Ward
Issues/Legal Principles:
Late tender of rent by 2 days does not justify forfeiting 30 year rent controlled tenancy.
Keywords:
stipulations
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Anne Katz
Date:
March 3, 1997
Citation:
NYLJ, page 27, col 3
Referred Statutes:
none cited
Summary:
In this nonpayment proceeding, the parties reached a settlement whereby the tenant agreed to pay the arrears by a specified date, including monthly installments for the landlord's attorney's fees. Two days after the stipulated date, the tenant tendered a certified check for the lump sum due to the landlord. However, the landlord rejected the tender as untimely and sought to execute the warrant of eviction. The lower court held in favor of the landlord and the Appellate Term unanimously reversed, stating that the violation was "de minimus"and should not result in the forfeiture of a 30 year, rent controlled tenancy.
Notes:
Judge Anne Katz is known for her harsh application of due dates of rents owed. Hopefully, this case will prompt her to be more flexible and look at the entire circumstances, such as here where a 30 year rent controlled tenancy was almost lost by a mere 2 days. There are other means to penalize a tenant for lateness, such as costs or attorney's fees for the tenant's 2 day delay. One can imagine the terror, fear and hassle this tenant went through by having to appeal this decision.

Case Caption:
240 Associates v. Theodor
Issues/Legal Principles:
Landlord's refusal of tenant's sublet request deemed unreasonable because tenant could return to apartment at the end of the sublease term.
Keywords:
sublet
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Marian C. Doherty
Date:
March 3, 1997
Citation:
NYLJ, page 28, col. 5
Referred Statutes:
Real Property Law s 226-b[2][a]; Rent Stabilization Code s 2525.6[c]; CPLR s 3212[b]
Summary:
Tenant attempted to sublet her apartment when she was offered out of state employment. Landlord refused this request, stating that tenant "does not intend to return to the apartment upon conclusion of the sublet period." The lower court held that the landlord's refusal was "unreasonable as a matter of law" and granted summary judgment in favor of the tenant. In reaching its conclusion, the Court noted that the employment was "at will" and therefore the tenant remained free to return to New York within 2 years (ie: at the end of the sublet term). The Appellate Term upheld this decision.

Case Caption:
Stanford Realty Assoc. v. Markell
Issues/Legal Principles:
Wife who returned to apartment is not entitled to succession rights as a matter of law; trial is necessary to determine wife's primary residency.
Keywords:
succession rights; sublet; primary residency
Court:
Appellate Term: First Department
Judge:
lower court: Hon. Louis York
Date:
March 4, 1997
Citation:
NYLJ, page 25, col 2
Referred Statutes:
Real Property Law 226-b and 235-f
Summary:
Landlord brought a holdover alleging that the prime tenant vacated the apartment in December, 1993 and installed DeSouza in possession. DeSouza was the wife of Markell, the prime tenant. The lower court dismissed the petition on grounds that as a matter of law a proceeding could not be maintained against DeSouza because, as the spouse of the prime tenant, she was a lawful occupant of the apartment. The Appellate Term reversed, noting that the couple maintained separate residences during their marriage, they never lived together in the apartment, and DeSouza moved in after she had previously permanently vacated the apartment. DeSouza alleged that during her marriage the apartment remained her primary residency. The Court noted that succession rights contemplates "concurrent occupancy" with the prime tenant, and that her primary residency is an issue that must be heard at trial, and that the case should not have been dismissed without a trial.

Case Caption:
NYC DHPD v. 1805-1815 Univ. Ave. Assoc.
Issues/Legal Principles:
Owner who transferred property after falsely certifying that violations were corrected is still liable for civil penalties.
Keywords:
HP proceeding; civil penalties
Court:
Civil Housing Court, Bronx County
Judge:
Hon. Anthony Fiorella
Date:
March 5, 1997
Citation:
NYLJ, page 27, col 3
Referred Statutes:
Housing Maintenance Code 27-2116(b) & 27-2004(a)(45) & 27-2005(b); Multiple Dwelling Law 4(44); CPLR 214
Summary:
HPD sought civil penalties against the respondent-owner for falsely certifying that violations were corrected when they were not. Respondent moved to dismiss the proceeding on grounds that 1805-1815 University Ave. Assoc. is not the actual owner of the premises because the property was transferred about two months after HPD made its motion for civil penalties. The court, however, noted that the false certifications occurred in 1995 when the respondent did own the property. The court refused to dismiss HPD's motion on this ground.

Case Caption:
757 East 169th Street HDFC v. Haney
Issues/Legal Principles:
Grandson of deceased tenant of record who never purchased the apartment when it converted into a low income co-operative cannot assert succession rights.
Keywords:
succession rights; licensee
Court:
Civil Housing Court, Bronx County
Judge:
Hon. Heymann
Date:
March 5, 1997
Citation:
NYLJ, page 27, col 4
Referred Statutes:
General Business Law 352 eeee; Article 11 Private Housing Finance Law
Summary:
Landlord brought a licensee holdover against the grandson of the deceased tenant of record. The building was converted to low income co-op units, but the tenant of record never purchased his unit and remained a month-to-month tenant until his death. The grandson stated that he lived with his grandfather for thirty years. He moved to set aside the default judgment and dismiss the petition for its failure to set forth the cause and basis of eviction. The tenant cited to 512 East 11th Street HDFC v. Grimmet, 581 NYS 2d 24 (App. Div. 1st Dept. 1992) for the principle that a reason or cause (such as nuisance, for example) must be stated before an eviction can be had. However, the court noted that Grimmet was the tenant of record, unlike the grandson in this case, and even Grimmet held that Rent Stabilization is inapplicable to co-op conversions. Therefore, the grandson has no succession rights.

Case Caption:
King v. Sinclair
Issues/Legal Principles:
Landlord's rent demand to tenant was basis for court to recognize the latter's tenancy status and restore him to his rented room in apartment.
Keywords:
lock-out
Court:
Civil Housing Court, Kings County
Judge:
Hon. Finkelstein
Date:
March 5, 1997
Citation:
NYLJ, page 29, col 1
Referred Statutes:
none cited
Summary:
Landlord and tenant both brought orders to show causes alleging a lock-out. The landlord is a resident of the building and the same apartment as tenant. The tenant claimed the landlord locked him out, he brought a proceeding, she didn't appear in court, and after a hearing upon landlord's default, he was awarded restoration to the room he leased from landlord. The court also had ordered that he be given a key to the building, that the door to his room be put back and his possessions returned. Apparently, the landlord refused to comply with the court order so the tenant restored the case to the calendar for a contempt hearing. Neither side appeared for that show cause. The landlord alleges in her show cause that the tenant locked her out of the building, claiming that the tenant changed the building entrance door and she is unable to enter her house. In response to the tenant's show cause, the landlord stated that she was never served it and that the tenant is not her tenant at all, that he's just a friend of a prior tenant, and is just shaking her down for money. Both parties claimed that they have been threatened by each other and their respective friends. The landlord procured an order of protection against the tenant. The court found that there was little documentary evidence to indicate that the tenant was ever a tenant in the building, except a notice sent by the landlord to him demanding the rent. Based on the notice the court restored him to possession, and issued other relief pertaining to the parties' behavior toward each other.

Case Caption:
Riverbend Housing Co., Inc. v. Stephenson
Issues/Legal Principles:
Co-op can collect equity increases or assessments as "rent" in a summary proceeding.
Keywords:
coops; equity increase; capital improvements
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Marilyn Schafer
Date:
March 4, 1997
Citation:
NYLJ, page 25, col 1
Referred Statutes:
RPAPL 711(2)
Summary:
Landlord brought a nonpayment proceeding as a result of tenant/shareholder's failure to pay the "equity increase" (for necessary capital improvements) that was approved by the cooperators of the tenant's Mitchell Lama housing company and subsequently authorized by the DHPD. The lower court dismissed the proceeding on grounds that the equity increase did not constitute rent or additional rent as required by law in nonpayment proceedings. The Appellate Term reversed, holding that nonpayment of an equity increase constitutes rent and a landlord is entitled to invoke its possessory remedy for default in payment. In reaching this conclusion, the Court looked to the governing occupancy agreement which requires the tenant/shareholders to pay as annual rent, their proportionate shares of the cash requirements of the company. Cash requirements were broadly defined as including all reasonable and necessary expenses growing out of or connected with the ownership, maintenance and operation of the building. Moreover, the Court noted that it was clear from the record that if the equity increase had not been approved, the cooperative board would have sought a carrying charge increase (which would constitute additional rent) in order to pay for the necessary improvements. In sum, the appellate court ruled that the landlord did not have to collect an equity increase in a plenary action, but could recover this money in a summary proceeding.

Case Caption:
24 Realty Corp. v. Urena
Issues/Legal Principles:
Tenant who vacates apartment retains right to challenge a court stipulation made before the tenant had moved.
Keywords:
overcharge
Court:
Appellate Term, 2nd & 11th Judicial District
Judge:
lower court: Hon. Harriet George
Date:
March 7, 1997
Citation:
NYLJ, page 31, col 2
Referred Statutes:
CPLR 5015
Summary:
Tenant defaulted on a stipulation in a non-payment proceeding and moved out of the apartment after the warrant issued and a 72 hour notice was served. Thereafter, tenant moved to vacate the stipulation on grounds that the landlord illegally charged a high rent and that the landlord, a corporation, improperly commenced the proceeding without an attorney. The lower court denied tenant's motion, stating that the tenant lacked standing since she was out of possession of the apartment. The Appellate Term reversed and ruled that the court retains jurisdiction to grant relief from its judgments even after the tenant is no longer in possession pursuant to CPLR 5015. The Court also ruled that the tenant's relief should have been granted since the landlord, as a corporation, should have had an attorney.