Housing Court Decisions November 97

edited by Colleen F. McGuire, Esq.

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New York Law Journal,
decisions for the week of November 24-28, 1997 (11 cases)


Case Caption:
In re: Krystal Hargrove v. DHCR
Issues/Legal Principles:
Landlord's rent overcharge was willful and treble damages are imposed; the court found landlord's excuse - that he thought the J-51 benefits had expired - unbelievable.
Keywords:
rent overcharges; treble damages; willfulness
Court:
Appellate Division, First Department
Judge:
lower court judge: Hon. Lewis Friedman
Date:
11/24/97
Citation:
NYLJ, page 26, col 3
Referred Statutes:
Rent Stabilization Code Sections 26-516(a) and 26-517(e); DHCR Operational Bulletin 95-3
Summary:
The DHCR found that the landlord's rent overcharge was not willful and therefore treble damages were not imposed. The Appellate Division, First Department overturned the DHCR's decision and directed the DHCR to impose treble damages. The court noted that in accordance with the Rent Stabilization Law and Code, an overcharge is presumed willful, and warrants a treble damages award, unless the owner established by the preponderance of the evidence that the overcharge was not willful. The apartment became subject to rent regulation because the owner accepted a loan pursuant to New York City's J-51 tax abatement program. In exchange for the loan, the owner agreed that the apartments are subject to rent stabilization, and the tenants benefit from the tax break which the City gave the landlord. In support of a finding of nonwillful overcharge, the owner argued that the overcharge arose due to a mistaken belief that the J-51 tax benefits had expired, thereby entitling the owner to remove the apartment from rent regulation. DHCR believed the owner's explanation and found that the overcharge was not willful. The appellate court held that there was no rational basis in the record to support DHCR's determination. The court noted that the landlord had made conflicting statements to the DHCR about its beliefs regarding the J-51, apparently attempting to change its story to achieve the desired result (i.e., a finding of nonwillfulness). Although the owner did tender a refund to the tenant, this did not rebut the presumption of willfulness, because (1) the owner did not tender the refund until after it interposed an answer to the complaint and (2) the owner did not tender a refund for that part of the overcharge which occurred during the time period which predated the four-year statute of limitations.


Case Caption:
Targee Management, LLC v. Jones
Issues/Legal Principles:
RPAPL Section 747-a (the new rent deposit law) is unconstitutional.
Keywords:
Rent Regulatory Reform Act of 1997; stays of eviction warrants; unconstitutional statute>
Court:
Civil Court, Richmond County
Judge:
Hon. Philip S. Straniere
Date:
November 24, 1997
Citation:
NYLJ, page 36, col 1
Referred Statutes:
RPAPL Sections 747-a (as amended); 747, 749(3), 753; CPLR Sections 2104, 2204; NYS Constitution, Art. 1, Section 11
Summary:
Effective 10/17/97, the NYS legislature amended RPAPL Section 747-a to provide that when more than five days have passed since a judgment has been entered against a tenant, a court shall not stay an eviction warrant unless the tenant has either paid the judgment to the landlord in full or deposited the full amount of the judgment with the clerk of the court. The court found that RPAPL Section 747-a is unconstitutional. The landlord and tenant entered into a stipulation of settlement, which was so-ordered by the court, on 8/6/97. The tenant made the first two payments required (total amount $2,660.00) and paid her rent for September and October in a timely manner. The stipulation provided for three additional payments of $388.30 on 10/20/97, 11/20/97 and 12/20/97. The stipulation further provided that if the tenant missed any payments, the landlord could enter a judgment in the entire amount of $3,825.00. When the tenant missed the 10/20/97 payment, the landlord asked the clerk to issue a warrant of eviction. The tenant brought an order to show cause seeking a stay of eviction, and the Court granted her order to show cause, on the condition that the tenant post $388.30 with the Court. The Court did not require the tenant to post or pay the entire judgment amount, as required by the recent amendments to RPAPL Section 747-a, finding that the statute is unconstitutional. The court wrote a lengthy opinion, expressing many reasons in support of its finding that the statute is unconstitutional. Requiring a poor tenant to pay the entire amount of the judgment, before having his or her order to show cause heard, denies a poor tenant access to the courts and violates the equal protection clause of the New York State Constitution. 'Due process includes the right to have a hearing and establish any defense in a particular situation, free from the fetters of financial ability to pay.' Requiring a tenant to pay the entire judgment (which is, in this case, more money than the tenant owes pursuant to the payment plan set forth in the stipulation), would constitute a taking of the tenant's property (i.e., the excess deposit) without due process of law. The newly amended RPAPL Section 747-a conflicts with RPAPL Section 749, which gives the court the discretion to vacate a warrant prior to its execution for good cause shown. It also conflicts with CPLR Section 2201, which similarly grants a court discretion to stay a proceeding upon 'such terms as may be just.' In his conclusion, the judge noted that RPAPL Section 747-a is unconstitutional and 'is not applicable to a judgment entered after stipulation between the parties when the tenant has made payments to substantially reduce the amount of the judgment entered.'
Notes:
This case is the first case - but hopefully not the last case - which finds some aspect of the Rent Regulatory Reform Act of 1997 unconstitutional. The court's opinion also calls attention to the fact that stipulations drafted by landlords' attorneys often include a 'payout' provision and a provision that if even one payment is not timely made, the landlord may enter judgment in an amount equal to the entire judgment, as if the tenant had not made any payments at all. Only an uninformed tenant would agree to such a harsh provision; perhaps judges should not so-order stipulations which contain these abusive and unfair provisions.


Case Caption:
Edgecombe Revitalization Corp. v. Newbold
Issues/Legal Principles:
Court dismisses motion seeking a determination of contempt of a court order where tenant does not present proof, in the form of test results, that a lead paint hazard actually exists in the apartment.
Keywords:
contempt of court
Court:
Appellate Term, First Department
Judge:
lower court judge: Hon. Eardell J. Rashford
Date:
November 25, 1997
Citation:
NYLJ, page 25, col 2
Referred Statutes:
none cited
Summary:
Landlord and tenant entered into a stipulation, which was so-ordered by the court, requiring landlord to correct any lead paint hazards in the apartment. Landlord apparently did no lead abatement work in the apartment after signing the stipulation. Tenant brought a motion before the Court asking that the landlord be held in contempt for failure to comply with the court-ordered stipulation. The court denied the contempt motion and assessed attorney's fees and costs against the tenant's attorney. The court found that the contempt motion was frivolous, because the tenant did not present any proof, in the form of test results, to prove that a lead paint hazard exists in the apartment.
Notes:
It is best to have the stipulation contain an unequivocal admission, by the landlord, that a certain condition or violation actually exists in the apartment, together with a promise to correct the condition or violation. A promise to correct 'any condition which may exist' is an empty promise. It appears that the court may have treated the tenant's attorney harshly (assessing costs) because there was evidence that the attorney offered to withdraw the "frivilous" contempt motion in exchnage for certain rent waivers for the tenant. tHe court regarded this as somewhat extortionary (although that word was not used).


Case Caption:
Karmely v. Gill
Issues/Legal Principles:
Notice of nonrenewal on personal use grounds survives a motion to dismiss, notwithstanding the fact the landlord's deposition testimony contradicts some of the facts stated in the notice of nonrenewal.
Keywords:
notice of nonrenewal; personal use eviction proceedings; motions for summary judgment; motions to dismiss
Court:
Appellate Term, First Department
Judge:
lower court judge: Hon. Saralee Evans
Date:
November 25, 1997
Citation:
NYLJ, page 25, col 3
Referred Statutes:
CPLR Sections 3211 and 3212
Summary:
The landlord served a notice of nonrenewal and a holdover proceeding alleging that he wanted the apartment for his personal use. The lower court judge dismissed the holdover proceeding, on the basis that the predicate notice (i.e., the notice of nonrenewal) was legally insufficient. The appellate court found that the notice was legally sufficient, notwithstanding the fact that the landlord's deposition testimony may contradict some of the facts stated in the nonrenewal notice. Questions as to the landlord's good faith and credibility should be decided after trial and not in a summary fashion. The appellate court also found that the court should not have converted a CPLR 3211 motion to a motion for summary judgment without providing the landlord with notice.


Case Caption:
Mitchell Gardens No. 1 Cooperative Corp. v. Cataldo
Issues/Legal Principles:
RPL Section 235-f permits occupancy by an additional occupant, so long as the tenant of record maintains the premises as his or her primary residence.
Keywords:
permitted occupancies; occupancy restrictions
Court:
Appellate Term, Second Department
Judge:
lower court judge: Hon. B. Greenbaum
Date:
November 25, 1997
Citation:
NYLJ, page 27, col 4
Referred Statutes:
Rent Stabilization Code Section 2520.11; Real Property Law Section 235-f
Summary:
The cooperative corporation brought a holdover proceeding against tenant, alleging that the apartment was occupied in violation of the terms of the proprietary lease, due to occupancy by Eileen Sheridan, the stepdaughter of the shareholder, Sheila Sheridan. Sheila Sheridan is the former wife of Frank Cataldo; she acquired the apartment after her divorce from Frank Cataldo. Eileen Sheridan is the daughter of Mr. Sheridan (Sheila's new husband) and thus, Sheila Sheridan's stepdaughter. The appellate court held that the lower court should not have dismissed the holdover petition in response to tenant's summary judgment motion, because there was an issue of fact as to whether Eileen Sheridan occupied the premises alone or together with her step-mother, Sheila Sheridan. If the apartment is also the primary residence of Sheila Sheridan, than Eileen Sheridan should be permitted to occupy the apartment with her, in accordance with the provisions of RPL Section 235-f, subsections 3 and 4. Subsections 3 and 4 provide that a tenant must reside in the premises, as her primary residence, in order to permit an occupant (such as a stepdaughter) to lawfully reside there. The appellate court found that the court below should have relied on RPL Section 235-f, rather than on the definition of 'immediate family' set forth in the Rent Stabilization Law and Code, because cooperatives are not covered by the Rent Stabilization Law and Code.


Case Caption:
GK & J Subraj v. Smith
Issues/Legal Principles:
A court has no authority to award rent arrears to a landlord in response to landlord's holdover petition.
Keywords:
chronic nonpayment
Court:
Appellate Term, Second Department
Judge:
lower court judge: Hon. Grayshaw
Date:
November 25, 1997
Citation:
NYLJ, page 27, col 6
Referred Statutes:
none cited
Summary:
The landlord brought a holdover proceeding against tenant seeking an eviction on the basis that tenants had breached a substantial obligation of their tenancy by an alleged chronic nonpayment of rent. The lower court judge dismissed the petition, and in his decision stated that although the tenant had withheld rent and been sued for nonpayment many times, the tenants had legitimate reasons for withholding rent on each occasion. Although the judge's decision expresses the reasons why the holdover petition should be denied, the judge's order actually grants the landlord's holdover petition, awarding a 'holdover' judgment to landlord in the amount of $517.89, providing that the warrant should be stayed for five days. The landlord appealed the lower court's decision and the appellate court held that they would not entertain any appeal, 'because it is our view that the judgment does not accurately reflect the court's decision, that it is in any event improper, and that it is incapable of correction by this court since there has been no appeal by tenants.' The court was without authority to award rent arrears in response to landlord's holdover petition. The court noted that if the tenant had appealed, the court would have reversed the lower court's judgment and dismissed the petition.


Case Caption:
L&F Realty Co. v. Kazama
Issues/Legal Principles:
Before obtaining a default judgment and warrant of eviction, the landlord must present the court with an affidavit alleging sufficient facts in support of the conclusion that the defaulting tenant is not in the military service.
Keywords:
default judgments; non-military affidavits
Court:
Civil Court, New York County
Judge:
Hon. Ling-Cohan
Date:
November 26, 1997
Citation:
NYLJ, page 31, col 1
Referred Statutes:
Federal Soldiers' and Sailors' Civil Relief Act of 1940, 50 USCA Appendix Section 520(1); New York State Military Law Section 309
Summary:
Landlord brought a summary proceeding against tenant and tenant did not appear in court. Landlord then brought a motion asking the court to enter a default judgment against the tenant and issue a warrant of eviction. Federal law requires landlords to file a non-military affidavit with the court in order to obtain a default judgment and warrant of eviction. The purpose of the law is to protect persons serving in the military and their dependents from having judgments entered against then without their knowledge. The non-military affidavit must either (1) set forth facts showing that the tenant is not in the military service or (2) submit an affidavit showing that, after an investigation, the landlord is unable to determine whether the tenant is in the military service. The investigation must set forth detailed facts in support of the investigator's opinion that the tenant is not in the military service. In this case, the landlord simply presented the court with an affidavit by the managing agent which states that he went to the building on five occasions and was unable to locate the tenant to inquire about his military status, that neither the superintendent nor the managing agent have ever seen respondents in military uniform and that they have no reason to believe respondent is in the military service. The court refused to grant a default judgment and warrant of eviction to the landlord upon the strength of this affidavit. The court found that the affidavit fails to allege that an investigation was conducted and that the facts stated in the affidavit were just as consistent with the respondent's being in the military service as not. The court indicated that it would entertain another motion from the landlord, after the landlord conducts an investigation and obtains more facts in support of the tenant's alleged non-military status.


Case Caption:
Matter of Berlet v. NYS - DHCR
Issues/Legal Principles:
DHCR's order of high income / high rent deregulation is found arbitrary and capricious where tenant's failure to file a timely answwer was not willful and tenant alleges that her income is below the deregulation threshold.
Keywords:
high income / high rent deregulation
Court:
Supreme Court, New York County
Judge:
Hon. McCooe
Date:
November 26, 1997
Citation:
NYLJ, page 30, col 3
Referred Statutes:
RRRA of 1993; RSL Sections 504.1, 504.2, 504.3; RSC Section 2527.9(a); CPLR Sections 3211 and 7804
Summary:
Tenant was served with a copy of landlord's petition for high income deregulation and did not file an answer with the DHCR within 60 days as required by the Rent Stabilization Law and Code. In accordance with the applicable provisions of the law and code, the DHCR then issued an order deregulating the apartment, without investigating whether the tenant's income falls above or below the deregulation threshold. Tenant then filed a Petition for Administrative Review ('PAR') with the DHCR, submitting evidence (her tax returns) showing that her income was below the threshold and explaining why she did not respond within the sixty days. She said that she had completed an answer and forwarded it to her attorneys, but she was not sure whether the attorneys had ever filed the answer. She also said that she failed to respond because she was confused by 'overlapping' notices sent by the DHCR. Tenant's PAR was denied and she therefore challenged the DHCR's decision in the Supreme Court, by filing a proceeding pursuant to Article 78 of the CPLR. The Court rejected the tenant's argument that the statute was unconstitutional, but held that the tenant's failure to file a timely answer was not 'willful' and that she alleged that her income was below the deregulation threshold. The court held that the DHCR has discretion to open up the default and hear the case on its merits. Under the circumstances of this case, the DHCR's decision not to vacate the tenant's default was arbitrary and capricious. The court excused the tenant's default and remanded the case to the DHCR for a determination about whether the tenant's income is below the threshold.


Case Caption:
In re: Norman Nick v. DHCR
Issues/Legal Principles:
The high rent / high income provisions of the rent stabilization law and code do not violate due process or equal protection of the laws, even where an order of deregulation is issued due to a tenant's default.
Keywords:
high income / high rent decontrol
Court:
Appellate Division, First Department
Judge:
lower court judge: Hon. Salvador Collazo
Date:
November 28, 1997
Citation:
NYLJ, page 27, col 5
Referred Statutes:
CPLR Article 78; RSC Section 504.3
Summary:
The owner filed a petition for high income / high rent deregulation with the DHCR but the tenant failed to file a timely response. As permitted by the rent stabilization law and code, the DHCR issued an order deregulating the apartment. The tenant's PAR was presumably denied. The tenant then brought an Article 78 proceeding to challenge the Order of deregulation which was dismissed by the Supreme Court, New York County. This dismissal was affirmed by the Appellate Division, First Department. The Court found that the high income / high rent decontrol law does not violate due process or equal protection. There is no denial of due process because tenant was given 'reasonable notice and reasonable opportunity to be heard.' There is no denial of equal protection because the Code provision was 'reasonably related to the legislative scheme underlying rent regulations.' The DHCR was mandated to issue an order of decontrol when tenant failed to make a timely submission to the DHCR.
Notes:
This case concerned two apartments combined as one residential unit. The evidence indicated that the tenant's aggregate monthly rental for the combined units exceeded $2,000, and apparently their income exceeded $250,000 for the last two calendar years. Perhaps these two factors explain why this defaulting tenant was not given the benefit of having the case remanded based on a failure to answer -- unlike the defaulting tenant in the above case ( Matter of Berlet v. NYS - DHCR ) whose income in fact did not exceed $250,000, and her apartment would not have been exempted but for her default.


Case Caption:
112 MacDougal Street Realty Association, Inc. v. DHCR
Issues/Legal Principles:
Landlord failed to timely challenge the DHCR's finding of rent overcharge.
Keywords:
rent overcharge; Article 78 proceedings; Petition for Administrative Review; timeliness
Court:
Appellate Division, 1st Department
Judge:
lower court judge: Hon. Stuart Cohen
Date:
November 28, 1997
Citation:
NYLJ, page 27, col 4
Referred Statutes:
RSL Section 516[d]; RSC Section 2529.2; Article 78 of the CPLR
Summary:
On 1/26/93, a DHCR rent administrator made a finding that tenant had been overcharged. On May 11, 1993, tenant obtained a Supreme Court judgment in the amount of the overcharge. Landlord should have filed a Petition for Administrative Review ('PAR') with the DHCR, to challenge the DHCR's 1/26/93 Order, within 35 days of the date of the Order, but failed to do so. Landlord filed a PAR in September 1993, alleging that he had no knowledge of DHCR's 1/26/93 Order until tenant attached landlord's bank account to enforce the 5/11/93 judgment. On 2/1/94, the DHCR dismissed the landlord's PAR because it was not filed in a timely fashion. The DHCR's decision on a PAR could be challenged in the Supreme Court, by bringing a proceeding pursuant to Article 78 of the CPLR within sixty days of the PAR decision. The landlord brought an Article 78 proceeding to challenge the DHCR's 2/1/94 decision in July 1993, but it was dismissed as untimely. Landlord then brought a motion to vacate the judgment dated 5/11/93 before the Supreme Court and it was treated as an Article 78 proceeding and denied on 8/19/96. The Appellate Division, 1st Department affirmed the lower court's decision stating that landlord's motion was properly denied because landlord had failed to exhaust his administrative remedies by not filing a timely PAR.


Case Caption:
Mengoni v. Passy
Issues/Legal Principles:
Tenant who replaces fixtures, after complaining to landlord but receiving no response, cannot be evicted for altering apartment without landlord's consent.
Keywords:
alterations; breach of substantial obligation of tenancy; holdovers
Court:
Appellate Term, 1st Department
Judge:
lower court judge: Anne Katz
Date:
November 28, 1997
Citation:
NYLJ, page 28, col 3
Referred Statutes:
9 NYCRR Section 2204.2[a][1]; RPAPL Section 753(4)
Summary:
Tenant has been the rent-controlled tenant since 1976 and therefore occupies the apartment pursuant to statute and without a written lease. However, by operation of law, the provisions of the tenant's first lease are controlling. This lease provides that tenant shall not make alterations without landlord's prior written consent. The tenant complained to landlord that various appliances and fixtures in the kitchen and bathroom were defective but landlord ignored these complaints. Tenant went ahead and replaced the defective appliances and fixtures. When landlord found out, Landlord brought a holdover proceeding against tenant, alleging that he had breached a substantial obligation of his tenancy (i.e., the lease provision which prohibited tenant from making alterations). After hearing the tenant's testimony about how he asked the landlord to make repairs but the landlord refused, the lower court dismissed the landlord's eviction proceeding. The appellate term, first department affirmed, explaining that 'it makes no sense to view a tenant's replacement of broken appliances with working ones as a breach of a valid tenancy.' Note that there are three justices which serve on the Appellate Term, First Department. Two justices affirmed but one justice dissented and wrote a dissenting opinion.


New York Law Journal,
decisions for the week of November 17-21, 1997 (5 cases)


Case Caption:
12 East 86th Street Assoc. v. Goldberg
Issues/Legal Principles:
Landlord entitled to high rent deregulation based on proper documentation.
Keywords:
high rent deregulation
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Arlene Hahn
Date:
November 17, 1997
Citation:
NYLJ, page 28, col 5
Referred Statutes:
RSC 2522.4(a)(1)
Summary:
The prior stabilized tenant vacated the unit and landlord undertook renovations in the apartment which, together with applicable vacancy and rent guidelines increases, caused the rent to exceed $2,000, thereby allowing the apartment to be deregulated based on high rent deregulation laws. The subtenant of the departed tenant acquiesced in the renovations which were implemented prior to the execution of a lease in his name. The lower court granted the landlord summary judgment and the appellate court affirmed, holding that the landlord presented all its proof to justify the increases and thereby deregulate the apartment.
Notes:
The case does not state whether it was a holdover or non-payment proceeding. If it was a holdover, the new tenant (i.e., prior subtenant) probably refused to sign the lease after it was presented to him, no doubt because it would not have been a rent stabilized lease due to the rental exceeding $2,000.00. If it was a non-payment proceeding, the tenant signed the lease, but probably challenged the excessive rental amount. In any event, this case is a lesson for subtenants who are offered leases before a rental is set. This subtenant probably bargained for a lease, but didn't realize that the landlord would be able to push the rent so high as to de- stabilize the apartment.


Case Caption:
3300 Company v. Rodde
Issues/Legal Principles:
Rent control tenant not entitled to jury trial.
Keywords:
jury clause; rent control
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Ruben Martino
Date:
November 17, 1997
Citation:
NYLJ, page 28, col 4
Referred Statutes:
CPLR 4544
Summary:
Tenant moved into the apartment in 1968 pursuant to a two-year lease and continued in occupancy thereafter as a statutory rent control tenant. The lease contained an enforceable jury waiver provision which projected into the statutory tenancy. The lower court declined to give effect to the waiver in this holdover proceeding due to CPLR 4544's prohibition against enforcement of small print clauses in residential leases. But the appellate court noted that the statute also provides that the small print provision shall not apply to agreements or contracts entered into after the effective date of the statute, which was July 1, 1976. Since the lease predated the statute's effective date, the tenant was not permitted to rely on the statute, and therefore the jury waiver clause remained effective. The appellate court reversed the lower court and ruled that the tenant was not entitled to a jury.


Case Caption:
A.B. Ilibassi Realty Co. v. Lieberman
Issues/Legal Principles:
Landlord is allowed to amend the petition where pleading defects are of an amendable nature.
Keywords:
petition; traverse
Court:
Civil Court, New York County
Judge:
Hon. Donna Mills
Date:
November 19, 1997
Citation:
NYLJ, page 29, col 1
Referred Statutes:
none cited
Summary:
Landlord brought a holdover against the rent controlled tenant on grounds that the apartment was not her primary residence. Tenant made a motion claiming, inter alia, that the landlord failed to properly identify itself in the petition, that the petition was not officially dated, and that the petition does not identify the landlord's place of business. She further claimed that service of the petition was improper. The court held that pleadings are to be liberally construed and these types of errors will not result in a dismissal of the petition. The court held that the issues tenant raised are amendable defects. The court further held that unless an affidavit by the tenant denies receipt of the papers, the process server's affidavit of service is sufficient.


Case Caption:
Honig v. Nixon
Issues/Legal Principles:
Landlord cannot sue tenant for same rent twice.
Keywords:
res judicata; attorneys fees
Court:
Civil Court, New York County
Judge:
Hon. Saralee Evans
Date:
November 20, 1997
Citation:
NYLJ, page 29, col 3
Referred Statutes:
CPLR 3212 & 3215
Summary:
Plaintiff/landlord had previously sued defendant/tenant in a summary proceeding for rent owed from July, 1991 through June, 1992. The tenant defaulted and was evicted by a marshal. Landlord then sued tenant in a plenary proceeding for rent owed for the same period and was awarded a judgment of $11,300 on tenant's default. The money judgment was never entered with the clerk of court. Over a year later landlord now brings another civil court action seeking rent for the same period. Landlord argues in a summary judgment motion to the court that the first plenary action was abandoned because over a year had elapsed and the money judgment was never entered, so it doesn't count anymore. The tenant argued that landlord cannot sue twice for the same sums (res judicata). The judge held that there was a decision on the merits, albeit at an inquest, and that the prior judge's decision should not be disregarded just because the landlord abandoned the case by neglecting to enter or collect on the decision's judgment. The court dismissed the complaint with prejudice. The court further denied the tenant attorney's fees without prejudice to renew the request if tenant can produce a copy of the lease bearing an attorney's fees clause.


Case Caption:
EGA Associates v. Ziegler & Freaso
Issues/Legal Principles:
Undertenant not entitled to any tenancy rights after prime tenant surrenders apartment and after stipulation which gave undertenant a lease was vacated.
Keywords:
stipulations; rent stabilized status
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Strauss
Date:
November 20, 1997
Citation:
NYLJ, page 28, col 3
Referred Statutes:
none cited
Summary:
The Appellate Term reversed the lower court's finding that the undertenant be accorded rent stabilized status "by operation of law and the intent of the petitioner." After the former rent controlled tenant of record surrendered the apartment, the undertenant signed a stipulation granting him an initial five-year lease not subject to regulation. It was further agreed that in the event the stipulation and tenancy were set aside, the matter would be restored to the calendar for the entry of a money judgment and a possessory judgment. The stipulation was later set aside in a subsequent nonpayment proceeding, and the parties were restored to their former status. The former status of the undertenant was that he had no rights once the prime tenant surrendered. Since the stipulation was vacated, the undertenant had no rights and was subject to eviction.


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


Case Caption:
Matter of Paulsen Real Estate Corp. v. Robert Grammick
Issues/Legal Principles:
Where lease contains a no waiver clause, landlord's acceptance of rent with knowledge of lease violation does not prevent landlord from maintaining an eviction proceeding.
Keywords:
Waiver; lease violation; pets
Court:
Appellate Division, Second Department
Judge:
lower court judge: Hon. Phelan
Date:
November 10, 1997
Citation:
NYLJ, page 31 , col 4
Referred Statutes:
None cited
Summary:
The tenant occupies an apartment pursuant to a lease which prohibits pets. Tenant allegedly keeps a dog in his apartment, in violation of the lease. The lease also provides that the landlord's acceptance of rent with knowledge of any violation of the lease does not constitute a waiver of such violation and the lease further provides that the landlord may waive a violation only by entering into a written agreement with tenant. Landlord accepted the rent from the tenant with knowledge that tenant was keeping a dog. Landlord brought a holdover (eviction) proceeding against the tenant for harboring the dog in violation of the lease. The tenant made a motion before the court asking that the holdover proceeding be dismissed because the landlord's acceptance of his rent, with knowledge of the lease violation, constituted a waiver of the lease violation. The District Court of Nassau County (the lower court) denied the tenant's motion, finding that the no-waiver clause in the lease protected the landlord from waiving its rights by accepting rent. The Appellate Division, Second Department reinstated the lower court's decision, noting that although in some cases the landlord's acceptance of rent will constitute waiver of a lease violation, such a waiver will not be found in a case where the lease expressly provides that acceptance of rent will not constitute a waiver.


Case Caption:
Sanchez v. Vierra
Issues/Legal Principles:
A notice to terminate a Section 8 tenant must specify the legal grounds.
Keywords:
Section 8; termination notice
Court:
Appellate Term, 2 & 11th Judicial District
Judge:
lower court: Hon. Callender
Date:
November 12, 1997
Citation:
NYLJ, page 29, col 5
Referred Statutes:
RPAPL 741(2); 24 CFR 982.309(b)
Summary:
The petition was dismissed by the lower court and upheld on appeal because the landlord's petition failed to set forth the term (duration) of the tenancy. Since this was a Section 8 tenancy which can only be terminated upon specified grounds, landlords were required to set forth the legal basis for terminating the tenancy; a mere thirty day notice was insufficient.


Case Caption:
NLI/Lutz, LLC v. NLI/Lutz, LLC et. al.
Issues/Legal Principles:
Court refuses to evict tenants, because they may be entitled to protection of the Loft Law and should be given an opportunity to present their claim to the Loft Board.
Keywords:
Receiver; Ejectment Action; Loft Law
Court:
Supreme Court, New York County
Judge:
Hon. David Saxe
Date:
November 12, 1997
Citation:
NYLJ, page 26, col 2
Referred Statutes:
MDL Section 280 (the "Loft Law")
Summary:
The premises which is the subject of this proceeding is in the control of a Receiver, who was appointed by the Supreme Court in the context of a mortgage foreclosure proceeding. The Receiver's role is to be the landlord of the building until the foreclosure proceeding is concluded and the Court issues an order discharging the Receiver. In this case, the Receiver brought a motion before the Court seeking to terminate the tenancy rights of a number of tenants and, on June 11, 1996, the Court granted the motion and issued an order of ejectment. Various tenants then made a motion to the Court to vacate the order of ejectment.

The Court refused to vacate the Order against tenants Tate and McCoy. The Court found that they were in default, that is, they failed to file an answer in response to the Receiver's motion and their excuse - that their former attorney did not advise them properly - was not valid. The court refused to vacate the order against Tate and McCoy, even though the Receiver's motion papers did not name them personally, was not personally served upon them and did not specify that the Receiver sought to oust these particular occupants.

However, the Court vacated the order of ejectment and warrant of eviction against tenants Shorr, Hunte and Aslan. These tenants persuaded the Court that they may be entitled to the protection of the Loft Law and, if so, they would be entitled to remain in their units. Although the Supreme Court has jurisdiction over their claim of entitlement to Loft Law protection, the Judge decided that the tenants' claim would be "best left to the appropriate administrative agency," that is, the Loft Board. Until the Loft Board decides their claim, the tenants could remain in occupancy so long as they continue to pay monthly use and occupancy to the Receiver.


Case Caption:
Citibank, N.A. v. Mendelsohn
Issues/Legal Principles:
Affixing the petition and notice of petition to the building's entrance door does not constitute proper service of a tenant residing in a third floor apartment.
Keywords:
Service of process; reasonable application; substituted service
Court:
Civil Court, New York County
Judge:
Hon. Peter Wendt
Date:
November 12, 1997
Citation:
NYLJ, page 30, col 3
Referred Statutes:
RPAPL Section 735(1); CPLR Section 308(7)
Summary:
The landlord (Citibank) brought a holdover (eviction) proceeding against the tenants, the tenants failed to appear and the Court, after holding an inquest proceeding, granted possession to the landlord. Then, the tenants became aware of this proceeding, for the first time, when they found a 72 hour eviction notice directed against them in the building's garbage can. The tenants made a motion asking the Court to vacate the default judgment on the ground that they were not properly served with the notice of petition and petition.

The Court conducted a traverse hearing, that is, a hearing to determine whether the tenants had been served in accordance with the requirements of the relevant statute, RPAPL Section 735. RPAPL Section 735(1) provides that if a process server makes reasonable application but cannot personally deliver the notice of petition and petition to the respondent or a personal of suitable age and discretion, then the process server may affix "a copy of the notice of petition and petition upon a conspicuous part of the property sought to be recovered. . . ." The process server testified that he affixed the notice of petition and petition to the entrance door of the building, rather than to the entrance door of the tenant's apartment on the third floor. The Court granted the tenants' motion to vacate the default judgment, and dismissed the landlord's eviction proceeding, because service was improper for two reasons. First, the process server should have made "reasonable attempts" to personally deliver the papers to the tenants before resorting to a form of substituted service, such as affixing the papers on the door. Second, even if the process server had made reasonable attempts which were not successful, he should have affixed the papers on the door of the premises sought to be recovered (the entrance door to the third floor apartment) rather than the entrance door to the building. The Court noted that since Citibank owned the entire building, not just this condominium apartment, Citibank's process server could have obtained access through the front door of the building, and then to the tenants' apartment, simply by making arrangements with one of its employees at the building.


Case Caption:
Taylor v. Singletary
Issues/Legal Principles:
A notary has the obligation to make certain that the person who signs a document in front of them is actually the person whose name is being signed.
Keywords:
Notaries
Court:
Civil Court, Kings County
Judge:
Hon. Callendar
Date:
November 12, 1997
Citation:
NYLJ, page 30, col 5
Referred Statutes:
MDL Section 325; CPLR Section 3021; RPAPL Sections 721 and 741; Executive Law Section 135-a; 51 RCNY Section 2-08; Part 130 of the Uniform Rules of the Trial Courts
Summary:
The Court dismissed the landlord's nonpayment proceeding because the landlord failed to prove ownership and a landlord-tenant relationship with the respondent. In addition, although the premises is a four-family house and therefore a multiple dwelling, the landlord failed to prove that the premises was registered as a multiple dwelling with the Department of Housing, Preservation and Development ("DHPD").

Due to the improper conduct of the notary who witnessed the signature on the holdover petition, the Court referred this matter to the District Attorney and the Secretary of State of the State of New York. In this case, the notary knew that the signature on the petition was not that of the petitioner-landlord, but the petitioner's brother. He witnessed the signature anyway, which is not only improper but a criminal offense. A notary is required to ask a signatory to provide identification in order to determine that the person appearing before them is the person whose name is being signed.


Case Caption:
ATM Four LLC v. Rodriguez
Issues/Legal Principles:
If conditions in the leased premises breach the warranty of habitability, tenant may be entitled to a rent abatement and tenant's attorney may be entitled to an award of attorney's fees.
Keywords:
warranty of habitability; rent abatement; attorney's fees
Court:
District Court, Nassau County
Judge:
Hon. Bergstein
Date:
November 12, 1997
Citation:
NYLJ, page 31, col 1
Referred Statutes:
RPL Section 234
Summary:
The landlord brought a proceeding for nonpayment of one month's rent and legal fees in the amount of $400.00; the tenants counterclaimed that they were entitled to a rent abatement and to attorney's fees in the amount of $400.00. After trial, the Court found that the bathroom displayed water stains, cracks and leakage; the window locks were rusted and inoperative; and the apartment was roach, rodent and vermin infested. The Court found that these conditions constituted a breach of the warranty of habitability and entitled the tenants to a rent abatement of $90.00 per month for 13 months, for a total of $1,170.00, and awarded legal fees in the amount of $400.00 to the tenant's attorney. The Court issued judgment to the tenants in an amount which included the rent abatement, the return of a security and key deposit, and attorney's fees in accordance with RPL Section 234.


Case Caption:
Park West Village Associates v. Ambroise
Issues/Legal Principles:
Tenant's attorney is awarded attorney's fees for the hours spent in proving entitlement to attorney's fees at a hearing and for the successful prosecution of the ensuing appeal.
Keywords:
attorney's fees; fees on fees
Court:
Appellate Term, First Department
Judge:
lower court judge: Hon. Eardell J. Rashford
Date:
November 14, 1997
Citation:
NYLJ, page 25, col 3
Referred Statutes:
RPL Section 234
Summary:
Tenant's attorney successfully defended tenant against a nuisance holdover proceeding and requested an award of fees in the amount of $225.00 per hour for 5.8 hours of work. Landlord would not consent and tenant's attorney therefore was required to prove entitlement to fees at a hearing. After hearing, the trial court awarded the amount requested to tenant's attorney. The trial court refused to award the tenant's attorney a "fee on a fee." The appellate court held that the case should be remanded (sent back) to the trial court for a determination of the amount of fees which should be awarded to the tenant's attorney for proving entitlement to fees before both the trial and appellate courts.


Case Caption:
Plon Realty Corp v. D'Abbracci
Issues/Legal Principles:
By accepting rent checks directly from subtenant, landlord did not recognize subtenant as a tenant in her own right.
Keywords:
Waiver; creation of landlord-tenant relationship
Court:
Appellate Term, First Department
Judge:
lower court judge: Hon. Judith J. Gische
Date:
November 14, 1997
Citation:
NYLJ, page 25, col 4
Referred Statutes:
None cited
Summary:
Landlord brought a holdover (eviction) proceeding against D'Abbracci, the subtenant of the tenant of record. The tenant of record had previously surrendered legal possession to the landlord. In defense, the subtenant claimed that the landlord's predecessor had accepted rent checks directly from the subtenant and that by accepting these checks, the landlord consented to the subtenant as a tenant in her own right. The trial court agreed with the tenant but the appellate court reversed, stating that "a tenancy may not generally be created by waiver or estoppel." At most, the acceptance of the rent checks from the subtenant was an expression of the landlord's consent to the continuation of the subtenancy. The appellate court granted the landlord's holdover petition against the subtenant.


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


Case Caption:
Stern v. Levanthal
Issues/Legal Principles:
Where wife is not a party to the lease, landlord must first sue husband for rent arrears, and only if he has insufficient funds can landlord then attempt to collect from her.
Keywords:
rent arrears; spouses
Court:
Appellate Term, 2 & 11th Judicial District
Judge:
lower court: Hon. Resnik
Date:
November 4, 1997
Citation:
NYLJ, page 33, col 2
Referred Statutes:
General Obligations Law 3-305
Summary:
The Appellate Term reversed the lower court's monetary judgment in favor of the plaintiff-landlord in a civil action for rental arrears againt the former tenants, a husband and wife. The defendant-tenants had failed to show up for trial, and argued that their counsel had withdrawn from the case on the eve of trial and they were unaware of the formalities in obtaining an adjournment. The Appellate Term accepted this ground as a reasonable excuse and viewed their allegation of rat infestation as a meritorious defense (the two criteria necessary to vacate a default judgment). The Court furthermore held that the landlord could not bring an action against the wife who was not a party to the lease. The landlord must first pursue the husband and only if he has insufficient funds may the landlord then look to the wife for recovery.


Case Caption:
Whitman Village Housing Development Corp. v. Lewis
Issues/Legal Principles:
.Co-resident's arrest and guilty plea for drug possession "on or near" the building is too vague; trial needed to determine if violation of lease clause prohibiting criminal activity in premises was triggered by co-resident's actions.
Keywords:
nuisance; criminal activity
Court:
Appellate Term, 2nd & 11th Judicial District
Judge:
lower court: Hon. R. Costello
Date:
November 4, 1997
Citation:
NYLJ, page 33, col 2
Referred Statutes:
none cited
Summary:
Tenant residing in a HUD subsidized apartment had an occupancy agreement which prohibited drug activity in the premises. Landlord brought a holdover proceeding against the tenant for violation of this particular clause. In seeking to win a summary judgment, the landlord attached as an exhibit a copy of the transcript of the Criminal Court plea entered into by tenant's husband, a co-resident. The husband admitted that "on or near" the landlord's building he possessed a quantity of cocaine and pled guilty to the offense. To the landlord that was proof positive that the tenant should be evicted. The lower court and the Appellate Term disagreed, holding that the term "on or near" the building was too vague to charge the tenant with violating the lease on alleged drug possession grounds and directed a trial on the facts in dispute.


Case Caption:
4-14 Mulford Place, Inc. V. DiGeronimo
Issues/Legal Principles:
.Littigation of tenants' alleged refusal to give landlord a set of keys should be heard in housing court, not Supreme Court.
Keywords:

Court:
Appellate Term, 2nd & 11th Judicial District
Judge:
lower court: Hon. F. Grella
Date:
November 4, 1997
Citation:
NYLJ, page 33, col 4
Referred Statutes:
none cited
Summary:
Landlord began a holdover against the tenants on grounds that they breached the lease by failing to provide the landlord with a set of keys to the apartment. Two prior cases were dismissed on technical grounds. One day before landlord commenced its third holdover proceeding, the tenants brought a Supreme Court action concerning the keys issue. The tenants moved to stay the landlord from pursuing the third holdover proceeding. The Supreme Court granted the tenants' motion, but the appellate court reversed on grounds that "a summary proceeding should be stayed only when the lower court is without the authority to grant the relief sought." Since the keys issue was an issue that the lower court was empowered to address, the appellate court held that the lower court "abused its discretion in staying the summary proceeding."


Case Caption:
Matter of Vahab v. NYS DHCR
Issues/Legal Principles:
DHCR decision reversed where the agency irrationally deregulated tenant's Rent Stabilized apartment on grounds of luxury decontrol despite information made known to the agency that tenant's income for the 1993 year was less than $250,000.
Keywords:
luxury deregulation
Court:
Supreme Court, New York County
Judge:
Hon. Gans
Date:
November 5, 1997
Citation:
NYLJ, page 26, col 2
Referred Statutes:
RSL 26-504.3
Summary:
In February, 1994, landlord initiated a high income rent deregulation proceeding by sending the tenant an Income Certification Form seeking income information for the preceding two years, 1992 and 1993. The tenant filled it out stating that his income for the preceding two years was less than $250,000 and sent it to the landlord. In April, 1994, the owner filed with the DHCR a petition to deregulate the apartment based on tenant's high rent in 1992 and 1993. Apparently, the tenant never received a form mailed to him by the DHCR to respond to the landlord's petition and present evidence of income verification which would have disproved his alleged high income status. As a result, the DHCR granted the landlord's petition and issued an order deregulating the apartment. The tenant received the DHCR order and filed a PAR (appeal). The agency then sent the tenant for a second time the forms needed to respond and again sought income verification for 1992 and 1993. Receiving no response from the tenant, the DHCR upheld its initial order and deregulated the apartment. Where a tenant does not respond to the proceedings, the law creates a presumption that the tenant's income exceeds $250,00 for the preceeding two years prior to the year the landlord files a petition. The agency's deregulation order pertained to tenant's income for the years 1992 and 1993. While the proceedings were pending-but before the DHCR issued its order upholding the decision to deregulate the apartment-the owner filed a second petition to deregulate the apartment in 1995, which entails an examination of tenant's income for the years 1993 and 1994. The luxury deregulation law permits a landlord to seek income verification every year and each separate petition is given a different docket number by the DHCR. The tenant filed an answer to this second petition with the DHCR and provided income verification showing that in the years 1993 and 1994 he earned less than $250,000 a year. The DHCR denied landlord's second petition to deregulate the apartment based on the fact that the tenant's income for the years 1993 and 1994 did not exceed $250,000. At issue in this case is tenant's Article 78 petition appealing the DHCR decision involving the landlord's first petition to deregulate his apartment. As noted, the deregulation order ensued solely because the agency received no income verification for the 1992 and 1993 calendar years, and thus presumed that the tenant's income for those years exceeded $250,000. The court, however, declared DHCR's decision to be arbitrary and lacking a rational basis. Tenant had submitted verification for 1993 and 1994 on landlord's second petition for deregulation. Landlord's papers submitted in the second petition made reference to the first petition, the pending PAR in that matter, and the fact that the first petition also involved the year 1993 (and 1992). Thus, how could DHCR on the one hand deny landlord's second petition because tenant's income was not high enough in 1993 (and 1994), but grant the landlord's first petition even though it also involved 1993 income (and 1994)? The contradiction was glaring to the court. The court held that DHCR should not have just automatically presumed tenant's income exceeded $250,000 in the first petition simply because the tenant did not submit an answer. During the second petition, DHCR should have investigated the facts made known to it (i.e., that another petition was pending), and it would have become obvious that both petitions involved tenant's 1993 income. The court remanded the first petition back to the DHCR for a hearing concerning tenant's rent for the years 1992 and 1993.
Notes:
This tenant was saved from a deregulation because the landlord had made two petitions for income verification which happened to overlap for 1993. What if a second petition had not been submitted making reference to the first petition? The judge would then have been unable to charge DHCR with knowledge of the 1993 income. The judge would have been forced to decide against the tenant because the tenant failed to supply income verification: the statute creates a presumption that if the tenant does not respond then it is assumed the tenant's income exceeds the statutory limit. The extent of landlord's political muscle is evident here, because the law could have been written to provide that DHCR could not make any such presumptions, that DHCR should be required to send tenant a certified letter seeking income verification, or any number of means to communicate with the tenant. Reliance solely on regular mail when the stakes are so high is frightening. This case does not explain why the tenant did not respond to DHCR's second request for income verification. One can infer that he didn't receive the second request either. The case shows that the tenant responded timely to the second petition; it doesn't make sense that he would thus ignore the first petition request for information. The new 1997 amendment to the luxury deregulation law lowered the income level from $250,000 to $175,000, thereby expanding the number of apartments subject to deregulation.


Case Caption:
GCM Corp. v. Johnson
Issues/Legal Principles:
Despite foreclosure of building and tenant's non-payment of rent, tenant remains a rent stabilized tenant.
Keywords:
foreclosure; collateral estoppel
Court:
Civil Housing Court, Kings County
Judge:
Hon. Ronni Birnbaum
Date:
November 5, 1997
Citation:
NYLJ, page 31, col 3
Referred Statutes:
none cited
Summary:
Landlord brought a holdover against a tenant claiming that he was a mere licensee, while the tenant asserted that he is a rent stabilized tenant. Prior to a foreclosure the tenant was indeed rent stabilized. The landlord tried to argue that during the foreclosure proceeding the tenant never raised his stabilization status, and was therefore now precluded from doing so in Housing Court. The court held that since the tenant's status was not an issue pertinent to or raised during the foreclosure proceeding, the tenant was not collaterally estopped (i.e., prevented) from raising this as a defense in the landlord's licensee holdover proceeding. The landlord also argued that the tenant lost his stabilization rights because he didn't pay his rent. This is a bizarre argument, and the court rightly rejected it; non-payment of rent is not a statutory ground on which a tenant may lose stabilized protections.


Case Caption:
Blackjack Realty Corp. v. DeLaRosa
Issues/Legal Principles:
16 petitions served within one-minute intervals is not proper service; Tenant allowed to deposit rent into court where landlord was on notice of rent impairing violations and did not repair them within six months.
Keywords:
traverse; rent deposits
Court:
Civil Housing Court: New York County
Judge:
Hon. Ling-Cohan
Date:
November 5, 1997
Citation:
NYLJ, page 28, col 4
Referred Statutes:
RPAPL 711(2); RPAPL 741; Multiple Dwelling Law 302-a
Summary:
Eighteen tenants went on rent strike and the court was presented with their motions to (a) consolidate all their cases, (b) dismiss the cases for lack of service of the papers or improper service, and (c) seeking permission to deposit the undisputed rents with the court. 16 of the rent demands were served by conspicuous place service (i.e., left on the door or under the door and copies mailed by regular and certified mailings). The process server's affidavit alleges that the 16 tenants were served in one-minute intervals. In other words, tenant A was served at 9:28 am, tenant B at 9:29 am, tenant C at 9:30 am, and so on. The process server's affidavit further claimed that 12 of the petitions were also served in one-minute intervals. The tenants assert that service of process in one-minute intervals is invalid as a matter of law. The process server claimed that several apartments are on each floor and that by knocking on each door and standing in one place he could see if anyone responded to his knocks, and lacking responses he made service on all apartments on one floor and then went to another floor and did the same procedure. The tenants, however, stated that the hallways are U-shaped and there is no spot where one can stand and view all apartments simultaneously. The court ruled that service was improper, observing that it is entirely possible that a tenant, upon hearing a knock, would look through the peephole, and seeing no one there since the process server was standing in the middle of the hallway would reasonably not open their door. Therefore, the procedure utilized did not constitute a reasonable application at service and the 16 petitions were dismissed. A 17th petition was dismissed for similar reasons. The court denied the request to consolidate the cases since there was nothing left to consolidate for the 18th tenant. This tenant sought to deposit her rent into court because rent impairing violations existed on city records, and notice of the violations was mailed to the owner. Multiple Dwelling Law 302-a provides that where rent impairing violations exist and the owner fails to correct themwithin 6 months after notice, no rent can be recovered by the owner after the 6 month period. The court thus permitted the tenant to deposit the rent with the court pending the outcome of the litigation.


Case Caption:
France v. Stahl Associates
Issues/Legal Principles:
Tenant who caused violations cannot recover attorney's fees.
Keywords:
attorney's fees; violations
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Peter Wendt
Date:
November 7, 1997
Citation:
NYLJ, page 25, col 1
Referred Statutes:
none cited
Summary:
In an HP proceeding the lower court ordered landlord to correct violations of record by restoring the apartment to a habitable condition, notwithstanding that the tenant may have been responsible for the inhabitability of the apartment. The Appellate Term upheld on this issue, but reversed the lower court's award to the tenant of attorney's fees. The dissent held that the evidence clearly showed that the super demolished the apartment at the direction of the tenant who is an architect and interior designer. The demolishment was done so that the tenant could then renovate the apartment in connection with his HP action for roof leaks. The demolishment occurred two years ago, but only now did the tenant raise it as an issue in an HP proceeding to compel landlord to correct violations on the roof. The dissent held that in such circumstances, the tenant was responsible for the demolition and should be responsible for restoring the apartment to its original configuration.


Case Caption:
Stahl Associates v. France
Issues/Legal Principles:
Tenant's alleged contribution to violations must be considered by the court in determining an abatement for a breach of the warranty of habitability.
Keywords:
warranty of habitability
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Margaret Taylor
Date:
November 7, 1997
Citation:
NYLJ, page 25, col 3
Referred Statutes:
RPL 235-b
Summary:
This non-payment proceeding is a companion case to the HP proceeding cited above. Tenant withheld rent and sought an abatement for breach of thewarranty of habitability. The lower court granted tenant the abatement based on the HP court's determination that the apartment was unhabitable. The HP court, however, never took into consideration the issue of whether the tenant caused the damage when it rendered its determination that the landlord must make the apartment habitable. In fact, the HP judge refused the tenant's suggestion to incorporate in the court's written findings that the tenant was not liable for the damage. Thus, the Appellate Term held that the lower court in the non-payment proceeding should have taken into account the tenant's "misconduct" in determining whether to award an abatement. It therefore reversed the abatement and attorney's fees awarded to tenant and remanded the case for a new trial.


Case Caption:
H&H Equities v. Baez
Issues/Legal Principles:
Tenant's expert determined that apartment contained hazardous levels of lead paint.
Keywords:
lead paint
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Pierre Turner
Date:
November 7, 1997
Citation:
NYLJ, page 25, col 5
Referred Statutes:
Administrative Code 2013(h)
Summary:
In a non-payment proceeding, the tenant sought an inspection to determine if a lead paint hazard existed in the apartment she shared with her child. At a hearing the parties presented conflicting expert opinion testimony and divergent scientific test results on the lead hazard issue. The court credited the testimony of tenant's expert over that of landlord's expert. Based on the tenant's expert's testimony the court found that lead paint was present in the apartment in amounts exceeding the law. The landlord appealed, but the Appellate Term affirmed the lower court's decision as rationally based.
Notes:
This case is useful for anyone desiring information concerning the various methods employed to determine the presence of lead paint. Apparently, there are several scientific ways to examine the issue, and the experts disagree on which is more effective. This case explored in some detail the varying methods.