Housing Court Decisions October 97

edited by Colleen F. McGuire, Esq.

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New York Law Journal,
decisions for the week of October 27-31, 1997 (4 cases)


Case Caption:
ACP 301 East 69th Street Associates, L.P. v. Blake
Issues/Legal Principles:
Occupant who claims succession rights to her grandmother's apartment is not bound by jury waiver clause in landlord's lease with tenant, because occupant did not sign the lease.
Keywords:
right to trial by jury; discovery; use and occupancy
Court:
Civil Court, New York County
Judge:
Hon. Ling-Cohan
Date:
October 29, 1997
Citation:
NYLJ, page 30, col 1
Referred Statutes:
RPL Section 234
Summary:
The tenant of this rent-stabilized apartment died and her granddaughter, Nicole Blake, refused to vacate, claiming that she has succession rights to the apartment because she lived with her grandmother for at least two years prior the her grandmother's death. Landlord brought a holdover (eviction) proceeding against Nicole Blake and she demanded a trial by jury. The landlord opposed Blake's request for a jury trial, stating that the lease landlord entered into with Blake's grandmother contained a clause which waived the tenant's right to a trial by jury. The court decided that Blake was entitled to a trial by jury. The court reasoned that a jury trial is an important constitutional right which should only be denied where it can be shown that a person knowingly abandoned this right. The tenant (Blake's grandmother) signed the jury waiver clause in the lease; Blake did not sign it. The landlord could hardly claim that Blake should be bound by the tenant's waiver, in fact, the landlord is disputing Blake's claim to succession rights, and therefore taking the position that Blake is not and should not be a tenant. Thus the tenant's waiver cannot bind Blake. In addition to upholding Blake's right to trial by jury, the court also denied the landlord's motion for use and occupancy, stating that it was not based upon respondent's second request for an adjournment, there was no proof that any delay in this proceeding could be attributed to the tenant and no special circumstances warranting an award of use and occupancy exist. The court also denied the landlord's request to take the deposition of Blake, because the proposed notice of deposition included an overly burdensome request for the production of documents.
Submitted by: Linda Rzesniowiecki, Esq.


Case Caption:
Elghanayan v. George
Issues/Legal Principles:
Prior landlord's written agreement - that tenant could occupy the apartment without time limitations and without restrictions of any kind - deemed contrary to rent regulation laws and tenant is evicted for nonprimary residence.
Keywords:
non-primary residence; summary judgment
Court:
Civil Court, New York County
Judge:
Hon. Mills
Date:
October 29, 1997
Citation:
NYLJ, page 30, col 2
Referred Statutes:
none cited
Summary:
Landlord brought a holdover proceeding against rent-stabilized tenants alleging that they no longer maintain the apartment as their primary residence. Landlord served tenants with a set of interrogatories (questions) and tenants answered that respondent Peter Hayes George has been away from the apartment for three years, receiving treatment for leukemia in England, and that respondent Annilele George has been traveling back and forth from England and spends about 95 days per year (25% of the year) at the apartment. Tenant's answers also revealed that they are not registered to vote, licensed to drive and have not filed income tax returns in the last five years. The landlord also found that tenants' gas accounts and electric accounts have been inactive for many years. After receiving this information, the landlord moved for summary judgment (that is, the landlord asked the court to evict the tenants without a trial, because the undisputed facts show nonprimary residence). In opposition to the summary judgment motion, tenants stated that they hoped to return to the apartment in January 1998, when Peter George is feeling better. In further opposition to the summary judgment motion, the tenant presented an agreement which the tenant and a former managing agent signed in 1973. In exchange for vacating apartment 16 and occupying apartment 5, the agreement said that apartment 5 can be occupied "without time limitations and without restrictions of any kind." The court said that the requirement that a tenant occupy a rent-regulated apartment as a primary residence was a "fundamental public policy of the state" and that the landlord cannot waive the state's interest by signing a written agreement with the tenant. The court found that all of the uncontroverted evidence indicated that the tenants did not use the apartment as their primary residence. The court therefore granted the landlord's motion for summary judgment and granted possession of the apartment to the landlord.
Notes:
This judge's decision should be appealed. The tenant moved from apartment 16 (which was presumably a rent-stabilized apartment) to apartment 5 at the landlord's request. In exchange, the landlord promised that the tenant could live in apartment 5 "without time limitations and without restrictions of any kind." In other words, the landlord arguably agreed that the tenant should be free of occupancy restrictions, such as the requirement that they must retain the apartment as their primary residence. A deal's a deal. There are many cases which say that tenants cannot waive their rights, unless they are represented by an attorney and waive their rights in the context of a court proceeding. There aren't any cases we know about - except this one - which say that the landlord cannot waive its rights.
Submitted by: Linda Rzesniowiecki, Esq.


Case Caption:
Glenbriar Company v. Nesbitt
Issues/Legal Principles:
Landlord who refuses to renew lease on nonprimary residency grounds is permitted to sue for rent during period lease is in effect.
Keywords:
Golub notice; inconsistent causes of action; motion to dismiss
Court:
Civil Court, Bronx County
Judge:
Hon. Heymann
Date:
October 29, 1997
Citation:
NYLJ, page 31, col 1
Referred Statutes:
RSC Section 2524.4
Summary:
On 12/31/96, the landlord served the tenant with a notice of non-renewal of tenant's rent-stabilized lease ("Golub" notice) and notice of termination of tenancy. The notices advised the tenant that their lease was scheduled to expire on 4/30/97 but would not be renewed because the tenant was not using the apartment as a primary residence. The notices further advised that the landlord would commence a holdover (eviction) proceeding on or after 5/1/97. On 4/14/97, the landlord served tenant with a notice of petition and petition alleging nonpayment of rent. On 5/8/97, the landlord served the tenant with a holdover proceeding, in particular, a notice of petition and petition alleging that the tenant was not using the apartment as a primary residence and should therefore be evicted. The tenant made a motion to dismiss the holdover proceeding, alleging that the nonpayment proceeding, in which the landlord affirmed the landlord-tenant relationship by demanding the payment of rent, is inconsistent with the initiation of the holdover proceeding, in which the landlord repudiated the landlord-tenant relationship by demanding the tenant's eviction. The court denied the tenant's motion to dismiss, finding that the holdover proceeding was not initiated until after the nonpayment proceeding was initiated and therefore the notice of termination of tenancy had not been vitiated. The court explained that the holdover proceeding was not initiated by the service of the Golub notice and the termination notice, but was initiated by service of the notice of petition and petition. Thus, the nonpayment proceeding was initiated before the holdover proceeding. The court noted that if the holdover proceeding had been commenced before the nonpayment proceeding, the holdover proceeding would be dismissed, because the initiation of the nonpayment proceeding (which affirms the landlord-tenant relationship) would be inconsistent with the holdover proceeding (which repudiates the landlord-tenant relationship). In this case, the court found that there was nothing inconsistent about the landlord's intention to collect rent through the last day of the lease term and the landlord's intention to terminate the tenancy after the end of the lease term.
Submitted by: Linda Rzesniowiecki, Esq.


Case Caption:
Weil v. Kaplan
Issues/Legal Principles:
Tenant of owner-occupied two-family house cannot prevent eviction by asserting a defense of retaliatory eviction.
Keywords:
retaliatory eviction
Court:
Appellate Term, Second Department
Judge:
lower court judge: Hon. Falanga
Date:
October 30, 1997
Citation:
NYLJ, page 32, col 6
Referred Statutes:
RPL Section 223-b[6]
Summary:
The landlord (Weil) brought a holdover proceeding against the tenant (Kaplan) seeking to recover possession of the second floor apartment of his two-family house. There was no lease between the parties; tenant was a month-to-month tenant. In his answer, the tenant stated that the landlord was trying to evict him because tenant had brought a negligence action against landlord for damages tenant sustained when the stove in tenant's apartment exploded. The tenant argued that the attempted eviction was a retaliatory eviction, which is prohibited not only by statute - RPL Section 223-b[6] - but by case law (i.e., judicial decisions). The trial court dismissed the tenant's counterclaims, including the counterclaim for retaliatory eviction. The higher court (the Appellate Term, Second Department) affirmed the trial court's decision. RPL Section 223-b[6], the statute which prohibits retaliatory evictions, does not apply to owner-occupied dwellings with fewer than four residential units. Therefore, the statute does not protect this tenant. Although there is case law which prohibits retaliatory eviction, the appellate court decided that "(i)n the instant case, careful consideration of the competing interests leads us to conclude that the defense should not be allowed." The court was heavily influenced by the fact that this was a two-family house, and found that "the public interest" would not be served by "keeping together in one house this landlord and the tenant who is suing him for $2 million." The court noted that considerations of this nature may have led the New York State legislature to enact a retaliatory eviction statute which does not apply to owner-occupied dwellings with fewer than four residential units.
Submitted by: Linda Rzesniowiecki, Esq.


New York Law Journal,
decisions for the week of October 20-24, 1997 (8 cases)


Case Caption:
Levine v. Segal
Issues/Legal Principles:
Guarantor of tenant's lease cannot be held liable to successive renewal leases where guarantor notified landlord of revocation of the guaranty
Keywords:
guarantors; renewal leases
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Margaret Taylor
Date:
October 22, 1997
Citation:
NYLJ, page 28, col 3
Referred Statutes:
RSC 2523.5(a)
Summary:
The defendant in landlord's action for rent arrears had signed a guaranty to the lease for her son, the tenant of record, agreeing to pay the rent in the event of his default. The guaranty agreed that she would continue to pay the rent even if the lease is renewed, changed or extended. After it was renewed the defendant wrote the landlord that she would no longer guarantee the tenant's obligation on any further lease renewals. When the tenant defaulted, the landlord sued the guarantor and the lower court granted landlord a judgment against the guarantor for the tenant's rent arrears. The Appellate Court held that in a Rent Stabilized lease which allows for an indefinite number of renewals, a guarantor cannot be held indefinitely where the guarantor revokes its liability, notwithstanding the language in the initial lease. The Appellate Term held that in light of the guarantor's revocation, the landlord was not compelled to tender the tenant a renewal lease because the Code requires a landlord to offer a renewal only "on the same terms and conditions as the expiring lease." The guaranty was a material term of the original lease, and as a result of the revocation by the guarantor, the landlord was relieved of its renewal obligations under the law.


Case Caption:
Hargrave Associates v. Dolan
Issues/Legal Principles:
Civil Court appoints guardian for tenant.
Keywords:
guardians
Court:
Civil Court, New York County
Judge:
Hon. Donna Mills
Date:
October 22, 1997
Citation:
NYLJ, page 30, col 2
Referred Statutes:
CPLR 1201, 1202, 1203
Summary:
The Commissioner of Social Services sought to have a guardian ad litem appointed for the tenant. The court noted that in general a guardianship must be appointed by a Supreme Court judge, but in cases where an adult is incapable of adequately prosecuting his or her rights, Civil Courts, including Housing Court, judges have discretion to appoint guardians, and that this does not require a determination that the adult is incompetent. Landlord's sole opposition to the motion was that it wanted the rent to be paid, but the court denied this request until the guardian was appointed.


Case Caption:
90th Realty Co. v. Winbush
Issues/Legal Principles:
Landlord failed to establish that tenant's alleged harboring of a dog was not on a "permanent" basis.
Keywords:
pets
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Eardell Rashford
Date:
October 22, 1997
Citation:
NYLJ, page 28, col 4
Referred Statutes:
CPLR 4401
Summary:
The landlord brought a holdover proceeding based on tenants' alleged harboring of a dog. Their lease permitted them to have a dog (described in the lease), but the landlord alleged that the dog who was seen going in and out the building was not the same dog as permitted under the lease. The record reflected that the owner's "dog log" indicated the dog complained of was sited at the building premises on no more than 19 and on as few as 3 days in any single month during the relevant time period. The lower court dismissed the petition on grounds that the tenants cured the alleged breach. The Appellate Term upheld the dismissal, but on different grounds: based on the record the tenant had not "permanently" harbored the dog. The dissent argued that there were 100 sitings of the dog in the building and that the tenants did not testify thereby raising a negative inference against them.


Case Caption:
East Eleventh Street Associates v. Breslow
Issues/Legal Principles:
Where original lease lacked attorney's fees clause, landlord violated Rent Stabilization Code by inserting such a clause in renewal lease, and tenant was not bound by same.
Keywords:
attorney's fees; renewal leases
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Howard Malatzky
Date:
October 22, 1997
Citation:
NYLJ, page 28, col 4
Referred Statutes:
RSC 2523.5(a); RPL 234
Summary:
Landlord sought attorney's fees after prevailing on the non-payment proceeding. The initial lease did not have an attorney's fees clause, although the renewal lease did, but it was located inconspicuously at paragraph 20 on the fourth of five pages. The Appellate Term upheld the lower court's decision that the inclusion of a new provision in a renewal lease (the attorney's fees clause) violated the Rent Stabilization Code because renewal leases must be offered on the same terms and conditions as the initial lease. This is so even where new provisions might benefit a tenant, and even if the tenant was an attorney (as this tenant was).


Case Caption:
Cho v. Wong
Issues/Legal Principles:
Landlord faced sanctions for forcing tenant to sign false statement that repairs were made under threat of violence.
Keywords:
violations; sanctions
Court:
Civil Housing Court, Kings County
Judge:
Hon. Callender
Date:
October 22, 1997
Citation:
NYLJ, page 33, col 6
Referred Statutes:
none cited
Summary:
Landlord claimed no repairs were needed in the apartment because the tenant a statement that the work was done. The tenant, however, asserted that he signed landlord's document only because the landlord said he would beat him up if he refused to sign. In fact the repairs were not done and tenant sought an order of correction from the court and an abatement of rent. The judge went to the building himself and determined that the violations still existed. The landlord falsely certified to the court that they were done and threatened the tenant to go along with fraud. The tenant was awarded an abatement, the landlord ordered to correct the repairs, the case referred to HPD to investigate the fraud, and a hearing was set down to determine whether the landlord should be sanctioned.


Case Caption:
800 Grand Concourse Owners, Inc. v. Bailey
Issues/Legal Principles:
Landlord's failure to name the estate of the deceased owner of the co-operative shares requires dismissal of holdover petition against occupants who may be the beneficiaries of the shares.
Keywords:
necessary parties
Court:
Civil Housing Court, Bronx County
Judge:
Hon. Fiorella
Date:
October 22, 1997
Citation:
NYLJ, page 30, col 5
Referred Statutes:
CPLR 1001, 3211; RPAPL 721(7); EPTL 13-1.1
Summary:
The owner of the co-operative apartment shares died and the remaining occupants of the apartment were named as sole beneficiaries to the shares in the decedent's will. The will is still being probated despite the decedent's death five years earlier. The landlord claimed that the occupants are mere licensees subject to an eviction. The occupants sought dismissal of the case for the landlord's failure to name the estate of the decedent as a necessary party to the housing court holdover proceeding, and sought a stay pending the probate court's determination. The court ruled that the estate is most certainly a necessary party in order to determine who has a right to possession to this apartment, and dismissed the petition for the landlord's failure to so name the estate.


Case Caption:
Mahile Trust for Jeanie Nourafchar v. Paley
Issues/Legal Principles:
Tenant must plead "stale rent" claim as an affirmative defense in answer to the petition.
Keywords:
stale rent
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Eardell Rashford
Date:
October 24, 1997
Citation:
NYLJ, page 29, col 2
Referred Statutes:
none cited
Summary:
The lower court limited landlord's recovery of rent to ten months of arrears on grounds that the landlord "stipulated" at trial to that period "instead of the time period stated in the petition." The Appellate Term reversed because there was no record that the landlord waived its claim for rent sought prior thereto and tenant's warranty of habitability defense was rejected. The Court held that landlord was entitled to a judgment in the full amount of rent owed. Additionally, the Court rejected the lower court's reference to "stale rent" (doctrine of laches) because that defense was not pleaded in tenant's answer and tenant's motion to amend the answer was denied at trial.


Case Caption:
Rima 106 v. Gamberling
Issues/Legal Principles:
Landlord is bound by receiver's actions of accepting subtenant's rent for three years which created a landlord-tenant relationship.
Keywords:
waiver; receiver
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Saralee Evans
Date:
October 24, 1997
Citation:
NYLJ, page 29, col 2
Referred Statutes:
none cited
Summary:
When the current landlord purchased the Rent Stabilized building it was being run by a court appointed receiver. The court ruled that the receiver had authority to enter into leases. The receiver tendered the subtenants a lease (in the prime tenant's name) which the subtenants signed, although the receiver did not return their copy to them. The receiver accepted rent (which included a vacancy increase) directly from the subtenants for three years with knowledge of the prime tenant's departure. The lower court ruled, and the Appellate Term affirmed, that the receiver's conduct created a landlord-tenant relationship with the subtenants, and that the current owner was bound by the action of its predecessor in interest and purchased the premises subject to existing tenancies.


Case Caption:
Carmine Limited v. Olariu
Issues/Legal Principles:
Tenant who agreed by court stipulation to convert non-payment into a holdover and surrender possession of apartment could not vacate the terms of the stipulation.
Keywords:
stipulations
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Anne Katz
Date:
October 24, 1997
Citation:
NYLJ, page 29, col 2
Referred Statutes:
RPAPL 732(2)
Summary:
A non-payment proceeding was brought against the tenant for arrears amounting to $570.00. Although the tenant agreed to convert the proceeding into a holdover and forfeit her tenancy for rent equivalent of $2,400, she later sought to vacate the stipulation on grounds that she entered into it improvidently. The lower court refused to vacate stating that tenant understood and still understands its terms and accepted them. The Appellate Term upheld this decision. The dissent, however, pointed out that the tenant resided in the apartment for 19 years and was in the process of obtaining a "one-shot deal" from a housing agency to pay the arrears, and would not have given up her apartment for so little consideration had she had the rent■which she later obtained. The dissent held that the stipulation should be vacated under the totality of the circumstances.


New York Law Journal,
decisions for the week of October 6-10, 1997 (1 case)


Case Caption:
Sunset Park Development Corp. v. Hickerson
Issues/Legal Principles:
Holdover proceeding dismissed where landlord's claims against tenant are contradictory and inconsistent
Keywords:
notices; sublets
Court:
Civil Court, Kings County
Judge:
Hon. Gustin Reichbach
Date:
October 8, 1997
Citation:
NYLJ, page 27, col 2
Referred Statutes:
RPL 235-f; RPAPL 741(4); MDL Section 31
Summary:
The landlord served tenant with a 10-day notice to cure alleging 8 separate claims that the tenant was violating substantial obligations of his tenancy. The 10-day notice was followed by service of a notice of petition and petition seeking the tenant's eviction. The court granted the tenant's motion to dismiss the proceeding because the 10-day notice was not "definite and unequivocal" and the landlord failed to set forth specific facts regarding his claims, as required by RPL Section 741(4). It is well established that the notice upon which a holdover proceeding is predicated (in this case, the 10-day notice), must be definite and unequivocal or the proceeding will be dismissed. Chinatown Apartments v. Chu Cho Lam, 51 NY2d 786 (1980). The Court found that the 10-day notice in this case was not "definite and unequivocal" because some of the landlord's claims contradicted his other claims. The landlord claimed that the apartment was occupied by too many other people, but also claimed that the tenant was no longer occupying the apartment as his primary residence and was subletting without the consent of the landlord. These claims are contradictory and inconsistent. The court reviewed other court decisions where judges have either upheld or dismissed holdover proceedings based upon alternative allegations. For example, in cases where the landlord alleges that the tenant is a "licensee" or "a squatter," the courts have held that these claims are not inconsistent because they are both based on the theory that the tenant does not have a formal relationship with the landlord. Newman v. Sirkin, 153 misc.2d 864 (Civ. Ct. NY Co.); 349 E. 49th St. Equities v. Vought, NYLJ, 5/27/82, p. 5., col. 4. Other courts have held that allegations of alternative causes of action fail to comply with RPAPL Section 741(4), for example, Cheung v. Li, 48 Misc.2d 55 (Civ. Ct., Kings Co. 1989). In addition, the ten-day notice does not set forth any specific facts in support of the landlord's claims. For example, although the landlord claims that the tenant's primary residence is elsewhere, the landlord failed to name the tenant's other residence. Failure to recite the facts upon which a non-primary residence proceeding is based in a predicate notice will result in the dismissal of the holdover (eviction) proceeding. First Sterling Corp. v. Zurkowski, 542 NYS2d 899, 900 (App. Term 1st Dept. 1988).