Housing Court Decisions April 1998

edited by Colleen F. McGuire, Esq. and Linda Rzesniowiecki, Esq.

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New York Law Journal,
decisions for the week of April 27 - May 1, 1998 (6 cases)


Case Caption:
Dana Associates LLC v. Melvin and Aaman
Issues/Legal Principles:
Tenant, who was absent from rent stabilized apartment in NYC for two and one-half years but did not establish permanent or primary residency elsewhere, defeats landlord's claim of nonprimary residence.
Keywords:
nonprimary residence
Court:
Appellate Term, First Department
Judge:
lower court judge: Hon. Marian C. Doherty, J.
Date:
April 28, 1998
Citation:
NYLJ, page 26, col 2
Referred Statutes:
none cited
Summary:
Landlord brought a holdover proceeding against tenant alleging nonprimary residence. The trial court ruled for landlord but the appellate court reversed. Tenant resided in rent-stabilized apartment for a total of 19 years but went to California for two and one-half years on an artistic sabattical to paint. She did not establish any permanent residence in California, sublet her apartment for two six-month intervals with landlord's permission and returned to the apartment twice in two and one-half years. Due to insufficient income, she did not file NYS tax returns for the two calendar years in question, but she retained her voting registration and a checking account in NYC. One year before she received a notice of nonrenewal, she expressed her intention to return in a letter to the landlord. The appellate court held that tenant "maintained a sufficient nexus with the stabilized premises" and landlord failed to prove its nonprimary residence case "by prevailing evidence."


Case Caption:
Andrade v. Vientimilla
Issues/Legal Principles:
Court refuses to vacate stipulation of settlement signed by Spanish-speaking tenants, after a hearing which established that their attorney adequately explained the terms of the stipulation in Spanish.
Keywords:
stipulations of settlement; subpoena
Court:
Civil Court, New York County
Judge:
Hon. Timmie Elsner
Date:
April 29, 1998
Citation:
NYLJ, page 26, col 5
Referred Statutes:
none cited
Summary:
Tenants, represented by an attorney, entered into a stipulation of settlement which provided that they would not have to pay approximately $5,000.00 in use and occupancy if they vacated by a date certain. The Spanish-speaking tenants later moved to vacate the stipulation, alleging that they did not understand what they were signing because they could not understand their former attorney's Spanish. A hearing was held on this issue and the landlord issued a subpoena to tenants' former attorney, thereby compelling her to appear before the Court and testify. After hearing the testimony of tenant's former attorney as well as other witnesses, the Court found that the tenant's former attorney adequately explained the terms of the stipulation in Spanish. The Court rejected the tenants' claims that they did not understand their former attorney's Spanish as "disingenuous at best" particularly in light of the fact that they had been represented by the attorney for over a year and virtually all their prior discussions with the attorney were conducted in Spanish. The Court refused to vacate the stipulation, explaining that stipulations of settlement should not be vacated unless there is proof of "fraud, duress, collusion, mistake or accident." The Court awarded the landlord a final judgment of possession and, at the request of landlord, scheduled a hearing to determine attorney's fees owed by tenants to landlord.
Notes:
Disclosure. The tenants' former attorney was Colleen F. McGuire, editor of Tenant.Net's Housing Court decisions. In order to pursue the trial, the prior judge (Anne Katz) directed that the tenants pay all use and occupancy as a condition to continuing the trial. The tenants refused to pay even a penny of the outstanding use and occupancy which is the primary reason why they had to settle the case, not to mention the fact that they could never have prevailed at trial.


Case Caption:
Hudson Towers Associates v. Rubackin
Issues/Legal Principles:
Court finds that the lower rent set in nonpayment stipulation is not the legal rent upon which all future rent guidelines board increases should be calculated.
Keywords:
stipulations of settlement; preferential rent; failure to execute a renewal lease
Court:
Civil Court, New York County
Judge:
Hon. Heymann
Date:
April 29, 1998
Citation:
NYLJ, page 27, col 2
Referred Statutes:
RSC Section 2524.3(f)
Summary:
Landlord and tenant, represented by attorneys, settled a nonpayment proceeding by entering into a stipulation of settlement which provided that "in consideration of the tenant's claims for an abatement and for both sides claims relative to DHCR docket numbers," that landlord would accept rent for the 1995 through 1997 lease period in a stated amount which was lower than the maximum legal regulated rent. The next lease offered by landlord calculated rent guidelines increases over the maximum legal regulated rent for the period 1995-1997, rather than the lower amount set forth in the stipulation. Tenant refused to sign the renewal lease, claiming that the rent guidelines increases should have been computed over the lower rent set forth in the stipulation, which set a "preferential rent." Landlord brought a holdover proceeding for failure to execute a renewal lease. The Court supported the landlord's interpretation of the stipulation, finding that the lower rent was set only for the period 1995 through 1997. The Court awarded a final judgment of possession to the landlord, with a ten-day stay during which tenants would have the opportunity to execute the renewal lease offered by the landlord and thereby avoid eviction.


Case Caption:
In Re Diane Dowling v. DHCR
Issues/Legal Principles:
The DHCR properly re-opened a case due to irregularity in a vital matter where the DHCR made a decision without giving the new owner an opportunity to be heard.
Keywords:
re-opening case; irregularity in vital matter; conflict of interest
Court:
Supreme Court, New York County
Judge:
lower court judge: Hon. Ira Gammerman
Date:
April 30, 1998
Citation:
NYLJ, page 25, col 5
Referred Statutes:
RSC Section 2529.9
Summary:
Tenant - who later became 7A administrator of the building - brought an overcharge complaint with the DHCR and the DHCR issued an order setting her rent at $300.00. After DHCR issued this order, a new owner acquired the premises at a judicial foreclosure sale. Tenant then filed a Petition for Administrative Review ("PAR") alleging that her rent should be lower and, as proof, submitted rent registration statements which she had filed with the DHCR. However, tenant's PAR did not indicate that there was a new owner and the new owner was therefore not given an opportunity to be heard. The DHCR granted the PAR and set the rent at the lower level. When the DHCR realized that the new owner had not been made a party to the PAR, the DHCR re-opened the proceeding, as permitted by RSC Section 2529.9, which states that the DHCR may revoke or modify a prior order if it discovers that "such order was the result of illegality, irregularity in vital matters or fraud." The Supreme Court held that the DHCR should not have re-opened the cases because there was no evidence that the tenant acted improperly as 7A administrator. The Appellate Division, First Department reversed, dismissed the Article 78 proceeding and re-instated the DHCR's modified order, finding that the DHCR properly re-opened the case, because the tenant / 7A administrator filed a PAR without naming the building's new owners. Also, the tenant's conflict of interest justified the DHCR's reopening of the case due to "irregularity in vital matters."
Notes:
Landlords have two years to file for an MCI after the work is completed, otherwise they lose the right to seek an increase in rent based upon the improvements.


Case Caption:
In Re Claudia Henschke v. DHCR
Issues/Legal Principles:
The DHCR properly denied landlord's request to re-open case where landlord did not demonstrate fraud, illegality or irregularity in a vital matter.
Keywords:
re-opening case; irregularity in vital matter; conflict of interest
Court:
Appellate Division, First Department
Judge:
lower court judge: Hon. Robert Lippmann
Date:
April 30, 1998
Citation:
NYLJ, page 27, col 3
Referred Statutes:
RSC Section 2207.8[a]
Summary:
The DHCR denied landlord's application for a major capital improvement ("MCI") rent increase because the landlord repeatedly failed to provide the DHCR with a certain form issued by the Department of Buildings ("DOB") regarding certain plumbing work. Almost two years after the DHCR's decision denying the MCI, the landlord finally located the form and filed it with the DHCR and asked to re-open the case pursuant to RSC Section 2207.8[a], which permits the DHCR to re-open a case if there was fraud, illegality or irregularity in a vital matter. Although the DHCR initially granted the landlord's request to re-open, in response to the tenant's PAR, the DHCR ruled for the tenants and denied the landlord's request. The Supreme Court affirmed the DHCR's PAR decision and the Appellate Division, First Department affirmed. The landlord did not demonstrate fraud, illegality or irregularity in a vital matter and therefore the DHCR properly denied his request to re-open his MCI application.


Case Caption:
Matter of Mansour S. Zandieh v. DHCR
Issues/Legal Principles:
An apartment in a building which has six units or more as of the statutory base date (usually 1974) remains rent stabilized even if building is reconfigured into a less-than-six unit building.
Keywords:
applicability of rent stabilization law and code; buildings with less than six units
Court:
Appellate Division, Second Department
Judge:
lower court judge: Hon. Goldstein
Date:
May 1, 1998
Citation:
NYLJ, page 32, col 3
Referred Statutes:
RSC Sections 2520 - 2530
Summary:
In 1985-1986, Landlord broke up his buildings (a garden apartment complex) into 20 buildings all containing less than six units. (The rent stabilization law does not apply to buildings containing less than six units). The DHCR held that an apartment in the complex prior to the reconfiguration retained its rent stabilization status even after the reconfiguration (so long as the tenant remained in occupancy). The Supreme Court and the Appellate Court upheld the DHCR's decision, finding that it was neither irrational or arbitrary and capricious.


New York Law Journal,
decisions for the week of April 20-24, 1998 (8 cases)


Case Caption:
In re of 77 Avenue D Associates, Inc. v. DHCR
Issues/Legal Principles:
All decisions by DHCR rent administrators must be appealed by a PAR before an Article 78 can be commenced
Keywords:
Article 78; statute of limitations
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Stuart Cohen
Date:
April 20, 1998
Citation:
NYLJ, page 26, col 1
Referred Statutes:
CPLR 217; RSL 26-516(d)
Summary:
The tenant was awarded a huge overcharge judgment by the DHCR which prompted the landlord to challenge it by twice requesting the rent administrator to reconsider the decision. When the rent administrator stuck by the decision, the landlord filed an Article 78 in the Supreme Court. The Appellate Division affirmed the lower court's ruling that the denial of the reconsideration should have been challenged by way of a PAR (a DHCR appeal) first. Had this happened then an Article 78 would be appropriate. The court noted that had the landlord pursued its remedies properly, the case should have been reversed because the DHCR neglected to update their records in the rent overcharge proceeding to reflect that the landlord had moved its address.


Case Caption:
514 West 50 Street HDFC v. Lee
Issues/Legal Principles:
Defense of lack of certificate of occupancy cannot be raised for the first time on appeal.
Keywords:
appeals; certificate of occupancy
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Howard Malatzky
Date:
April 20, 1998
Citation:
NYLJ, page 27, col 1
Referred Statutes:
Multiple Dwelling Law 302
Summary:
A trial was held in this nonpayment proceeding and tenant received an abatement of rent. On appeal tenant argued that the building lacked a certificate of occupancy (presumably as tenant's defense no rent at all should be paid). The Appellate Term, however, held that if this issue was not raised at trial, it could not be raised for the first time on appeal.


Case Caption:
Lincoln Amsterdam House v. Baxter
Issues/Legal Principles:
Although surcharges are not "rent," landlord housing cooperative can maintain a summary proceeding in Housing Court for failure to pay surcharges.
Keywords:
surcharges
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Stuart Cohen
Date:
April 23, 1998
Citation:
NYLJ, page 28, col 1
Referred Statutes:
12 USC 1715z-1; 28 RCNY 3-03(a) (HPD rules)
Summary:
The tenant cooperative shareholder did not pay surcharges. The court held by previous decisions that surcharge payments are not "rent" under the National Housing Act. Further, the court held the plaintiff housing cooperative can pursue a summary proceeding for nonpayment of surcharges. (This seems a contradiction, but the case did not provide more insight).


Case Caption:
Pysher v. Goett-Mann
Issues/Legal Principles:
Appellate court directs trial court to re-determine landlord's attorney's fees since the record does not indicate whether the fee awarded was reasonable.
Keywords:
attorney's fees
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Eardell Rashford
Date:
April 23, 1998
Citation:
NYLJ, page 29, col 2
Referred Statutes:
none cited
Summary:
Landlord prevailed in the nonpayment proceeding and was awarded $765.80 in back rent. The judge further awarded the landlord attorney's fees of $1,500 without giving an explanation for its fee award or conducting a hearing. Landlord claimed $12,215 in attorney's fees, but its petition initially sought $1,360 in rent and not less than $1,500 in legal fees. On landlord's appeal the Appellate Court vacated the attorney's fees award and remanded the matter to the trial court because the record did not indicate as to whether the fees awarded was reasonable.


Case Caption:
Roth v. Cornwall
Issues/Legal Principles:
Landlord is not required to continue to accept personal checks from tenant due to tenant's history of presenting uncollectible checks.
Keywords:
rent
Court:
Appellate Term, 2nd & 11th Judicial District
Judge:
lower court: Hon. J. Rodriguez
Date:
April 23, 1998
Citation:
NYLJ, page 37, col 4
Referred Statutes:
none cited
Summary:
Tenant had a history of giving landlord bad checks. Tenant agreed in a stipulation in a nonpayment proceeding not to pay future rent by personal check in the event of the dishonor of any future checks. Landlords were within their right to reject tenant's tender of personal checks for the rent in question. The lower court and the appellate court rejected tenant's argument that landlord's refusal constituted a decrease of required services and an attempt to evade the legal maximum rent.


Case Caption:
Green Properties v. Warr
Issues/Legal Principles:
Landlord cannot evict tenants who took possession during a period landlord received J-51 tax benefits; the tenants remain rent stabilized because their leases lacked a statutory notice informing tenants that their rent stabilized status would cease after the benefits expired.
Keywords:
J-51 tax benefits; rent stabilization
Court:
Civil Court, New York County
Judge:
Hon. Martin Shulman
Date:
April 22, 1998
Citation:
NYLJ, page 26, col 3
Referred Statutes:
NYC Administrative Code 11-243 & 11-244; RSL 26-504(c); RSC 2520.11(o)
Summary:
Tenant Warr's attorney requested the court to consolidate Warr's case with six other pending holdover proceedings. The landlord's attorney cross-moved for summary judgment, or alternatively striking the demand for a jury. The court first granted the motion to consolidate the cases because the cases all concern questions relating to the regulatory status of the apartments. The landlord's predecessor had attempted to substantially rehabilitate the building from an old law tenement to a Class A multiple dwelling in 1974-75. The former owner's receipt of J-51 benefits was contingent upon the rehabilitation. Thereafter the building was to be deregulated when the J-51 abatements expired. Each of the tenants commenced occupancy after 1978 and executed vacancy leases with rent stabilization riders, and renewal leases which all expired in 1995. Thereafter they all became month to month tenants. The former owner defaulted on its mortgage obligations and the current landlord took title pursuant to a nonjudicial foreclosure sale. The landlord sent all the tenants a 30 day termination notice claiming that they were not protected by the rent stabilization laws because their apartments were substantially rehabilitated after 1974 and the tax abatements have expired. However, in order for an apartment to become deregulated after J-51 tax abatements have expired, either the tenant vacates voluntarily during the J-51 tax benefit period or the tenant remains in occupancy and is warned that deregulation would occur by operation of law after the benefits expired and no renewal leases would be given. The tenants argue that absent such language in the lease, the premises cannot become deregulated and the landlord cannot evict the tenants. The landlord argues that no notice was necessary because these tenants all took occupancy when the rent controlled tenants vacated and during the J-51 period. Thus, rent stabilization never attached to their tenancies. The court disagreed and granted summary judgment to the tenants and dismissed the eviction proceedings against them. The court referred to various DHCR decisions which held that "notwithstanding the occurrence of a vacancy otherwise decontrolling a rent- controlled apartment during the J-51 tax benefit period, the next tenant to take occupancy while the owner continues to receive J-51 benefits, becomes subject to stabilization. The court also noted that the landlord never filed statutory reports of decontrol or notifying the tax department to cancel the appropriate share of benefits with respect to the decontrolled apartments in question. The court concluded that each of the former rent controlled apartments in the building became rent stabilized by virtue of the former owner's continued receipt of J-51 tax benefits. Since none of the tenants received notices in their leases that their rent regulatory status would cease after J-51 tax abatements expired, the court held that these tenants remained rent stabilized and the landlord could not evict them.
Notes:
This case provides really useful information in determining J-51 cases. The judge wrote a very lucid and helpful decision.


Case Caption:
Howard v. Stern
Issues/Legal Principles:
Civil court lacks jurisdiction to impose a constructive trust on property.
Keywords:
licensee; constructive trust; jurisdiction
Court:
Civil District Court, Suffolk County
Judge:
Hon. Santorelli
Date:
April 22, 1998
Citation:
NYLJ, page 30, col 5
Referred Statutes:
RPAPL 713(7) & 743; CPLR 3211
Summary:
Landlord bought a licensee proceeding against the occupant-respondent. The respondent sought a constructive trust, alleging that he or she (the occupant's gender is not noted) is a co- owner of the premises and therefore the proceeding must be dismissed. There is a pending Supreme Court action to determine the issue of ownership. The court held that it did not have jurisdiction to hear an equitable counterclaim such as a constructive trust.
Notes:
A constructive trust is sought when someone believes they have an ownership in property but they lack formal title. Constructive trusts arise in circumstances where there is an intimate relationship between the parties which the person seeking the trust relied on based on a promise or agreement between them that the property would be protected. For example, a wife turns over all her property to her husband in the belief that he will always look out for her. Yet, when he later sells the property, she can assert a constructive trust that he was never meant to sell it. If a court grants a constructive trust, it is essentially giving the property back to the person who gave it away.


Case Caption:
St. James Court v. Booker
Issues/Legal Principles:
Rent demand which states a lump sum of rent owed and "miscellaneous" charges is improper for its vagueness, and petition is dismissed.
Keywords:
rent demand
Court:
Civil Housing Court, Kings County
Judge:
Hon. Debra Thomas
Date:
April 22, 1998
Citation:
NYLJ, page 28, col 5
Referred Statutes:
RPAPL 711(2)
Summary:
Landlord began a nonpayment proceeding against a tenant who is a recipient of DAS, Department of AIDS Services which sends a monthly rent check to the landlord on tenant's behalf. The landlord claimed lack of receipt of the checks from DAS. If the landlord's rent demand is inaccurate, the tenant is unable to confirm with DAS what rent is owed, nor can tenant receive additional rent checks if the rent was already paid simply to satisfy landlord's three-day notice. The court ruled that the rent demand was inadequate because it merely sought a lump sum amount for the period of rent alleged due. The demand was also deemed vague and misleading by the court, thereby failing to provide the tenant with a proper notice to allow him to defend himself against the proceeding. The court held that this rent demand seeking "miscellaneous" charges fails to provide a clear, unequivocal notice to tenant. The court dismissed the petition for lack of a proper rent demand.


Case Caption:
Parkchester Apartments v. Lewis
Issues/Legal Principles:
Landlord not entitled to late fees in summary proceeding because they were too excessive.
Keywords:
late fees
Court:
Civil Court, Bronx County
Judge:
Hon. Schneider
Date:
April 22, 1998
Citation:
NYLJ, page 27, col 3
Referred Statutes:
none cited
Summary:
During the nonpayment proceeding, the tenant agreed that he owed $1950 in rent, but he felt that $457.50 in late charges was unfair. The court held that late charges can be recovered in a summary proceeding provided (1) there is an agreement between the parties to pay them, (2) the agreement states that late charges are "additional rent," and (3) the amount charged is not punitive, but reasonably related to the actual cost to the landlord of the late payment. The agreement between the parties provides for payment of a late fee of 5% per month if rent is not received by the 10th day of the month, and that such charge constitutes "additional rent." But the court noted that an appellate case with the identical lease clause held that the late fee charge was excessive, therefore the court did not allow this landlord to collect late fee charges in a summary proceeding. The court also rejected the landlord's claim for attorney's fees because the lease did not contain a clause providing for them.


New York Law Journal,
decisions for the week of April 13-17, 1998 (9 cases)


Case Caption:
Vacca v. Scilla
Issues/Legal Principles:
It was not an abuse of discretion for the Court to condition landlord's request to discontinue the summary proceeding upon payment of tenant's legal costs.
Keywords:
attorney's fees; discontinuance
Court:
Appellate Term, First Department
Judge:
lower court judge: Hon. Jerald R. Klein
Date:
April 14, 1998
Citation:
NYLJ, page 25, col 4
Referred Statutes:
RPL Section 234; CPLR Section 3217(b)
Summary:
The landlord commenced a summary proceeding against the tenant and then sought to discontinue the proceeding. The lease between the parties provided for an award of attorney's fees to landlord in the event that landlord was successful in a summary proceeding against tenant. RPL Section 234 provides that if there is a clause in a lease that allows a successful landlord-litigant to recover attorney's fees, then a successful tenant-litigant may also recover attorney's fees. When the landlord asked the Court for permission to discontinue the case pursuant to CPLR Section 3217(b), the housing court judge permitted the discontinuance only on condition that landlord pay tenant's legal costs. In effect, the housing court judge determined that the tenant was the successful litigant and awarded attorney's fees to the tenant. The appellate court held that the housing court's decision was not an abuse of discretion.


Case Caption:
19 East 80th Street Associates v. Karman
Issues/Legal Principles:
Landlord waived enforcement of the no pet clause in the lease by not serving tenant with a notice of petition and petition within three months after landlord had knowledge of the pet.
Keywords:
No pet clause; waiver; summary judgment motion
Court:
Appellate Term, First Department
Judge:
lower court judge: Debra A. James
Date:
April 14, 1998
Citation:
NYLJ, page 25, col 4
Referred Statutes:
NYC Admin. Code Section 27-2009.1
Summary:
Landlord served tenant with a notice to cure alleging that tenant has been harboring a dog since May 6, 1996 in violation of a "no pet" clause in her lease. Landlord's agent wrote tenant another letter warning her to get rid of the dog on May 14, 1996. The law [NYC Admin. Code Section 27-2009.1] provides that if a landlord does not commence a summary proceeding within three months after it learned that tenant was harboring a pet, then the landlord is deemed to have waived enforcement of the no pet clause. The landlord served the notice of petition and petition upon tenant on August 15, 1996, which is more than three months after the landlord learned about the dog. Since the landlord's notice to cure and correspondence demonstrated that the landlord knew about the dog more than three months before the landlord served the petition upon the tenant, the lower court's decision to grant the tenant's motion for summary judgment and to dismiss the case was proper.
Notes:
The Court's decision does not indicate the date upon which the landlord served the tenant with a notice to cure. It seems likely that the notice to cure was served upon the tenant within three months after the landlord first learned about the dog. However, a summary proceeding is "commenced" by service of the notice of petition and petition, not by service of a notice to cure. Thus, the proceeding was dismissed because it was not "commenced" within three months.


Case Caption:
Swett v. Batraville
Issues/Legal Principles:
Landlord's eviction proceeding against tenant was dismissed because landlord did not prove that more than two boarders occupied tenant's rent stabilized apartment at the same time.
Keywords:
holdover proceeding; rooming house; boarders; roommates; occupants; profiteering
Court:
Appellate Term, First Department
Judge:
lower court judge: Bruce J. Gould
Date:
April 14, 1998
Citation:
NYLJ, page 25, col 5
Referred Statutes:
MDL Section 248; Penal Law Section 180.55; NYC Admin. Code Section 27-2078
Summary:
Landlord commenced a holdover (eviction) proceeding against tenant alleging that tenant was conducting an illegal rooming house business. At trial, landlord proved that tenant advertized for roomers and that two roomers (in addition to tenant) occupied the apartment for a period of ten days. The lower court held that this was insufficient proof of a statutory violation and the appellate court upheld this decision. The landlord failed to prove simultaneous occupancy by more than two roomers (NYC Admin. Code Section 27-2078) and failed to show that the health and safety requirements of the local zoning resolution had been violated. The court also noted that although a rent stabilized tenant can be evicted for profiteering, taking money from two roomers for a period of ten days doesn't rise to the level of profiteering.


Case Caption:
Sipos v. Ching
Issues/Legal Principles:
Senior citizen seeking succession rights need only prove one year or more co-occupancy with tenant of record.
Keywords:
succession rights; senior citizen; primary resident; family
Court:
Appellate Term, 2nd and 11th Judicial Districts
Judge:
lower court judge: Hon. G. Badillo
Date:
April 14, 1998
Citation:
NYLJ, page 29, col 4
Referred Statutes:
RSC Section 2523.5(b)(1)
Summary:
The lower court dismissed the eviction proceeding against tenant and the appellate court affirmed the dismissal. In a brief opinion, the appellate court stated as follows: "(t)he evidence adduced upon the trial was sufficient to support the lower court's finding that the tenant, a senior citizen and member of the prior tenant's family, had resided in the subject rent stabilized apartment as a primary resident for no less than one year immediately prior to her son-in-law permanently vacating the housing accommodation and was therefore entitled to the protections afforded by Section 2523.5(b)(1) of the Rent Stabilization Code."


Case Caption:
Rally Realty Co. v. Commerato
Issues/Legal Principles:
Landlord's motion for summary judgment is denied, where tenant-husband demonstrated that although his wife and children moved to New Jersey, he maintained the rent-stabilized apartment as his primary residence.
Keywords:
summary judgment motion; non-primary residence
Court:
Civil Court, Housing Court, Bronx County
Judge:
Hon. Fiorella
Date:
April 15, 1998
Citation:
NYLJ, page 26, col 6
Referred Statutes:
CPLR Section 3212
Summary:
Landlord commenced a non-primary residence holdover proceeding against tenants (a married couple), alleging that they lived in New Jersey rather than in the rent-stabilized apartment. Landlord brought a summary judgment motion, that is, landlord asked the court to decide the case in landlord's favor without a trial, because the factual issues were indisputable. In support of its claim that tenants resided in New Jersey, landlord presented proof consisting of Federal and NJ Income Tax Returns for the years 1992 - 1996, which indicate that the tenants reside in Vernon, New Jersey. Landlord's agent also presented an affidavit stating that he had not seen tenant-husband or tenant-wife at the apartment in two years. In opposition to the summary judgment motion, respondent submitted affidavits showing that although the wife and children now reside in New Jersey, tenant-husband remains in the Bronx apartment and visits the family on weekends. The tenants explained that the family decided that New Jersey provided a better environment for the children, but that husband, who does not have a driver's license, would be better off living in the Bronx apartment. Respondents further explained that they filed taxes from NJ, rather than NY, because of certain tax advantages. The Court found that there was a factual dispute requiring a trial and denied the landlord's motion for summary judgment. Documentary evidence (driver's license, voter's registration, tax returns, telephone and bank records) is not the only evidence which may be presented to prove or disprove primary residence. Credible personal testimony is also relevant. The parties have presented conflicting evidence and the court must make a credibility determination after trial, not in the context of a summary judgment motion.


Case Caption:
Pilo v. Tal
Issues/Legal Principles:
Although tenant failed to appear and defend against landlord's holdover (eviction) proceeding, court nonetheless dismissed landlord's case because landlord's petition is defective.
Keywords:
holdover proceeding; eviction proceeding; inquest; default judgment; legally sufficient pleadings; defective pleadings; failure to describe the premises; failure to state the status of the premises
Court:
Civil Court, Housing Part, Kings County
Judge:
Hon. Hoahng
Date:
April 15, 1998
Citation:
NYLJ, page 27, col 2
Referred Statutes:
RPAPL Sections 731(2) and 732; CPLR Sections 409 and 3013
Summary:
Landlord brought a holdover (eviction) proceeding against tenant. The tenant did not appear on the day the case was scheduled for trial and the landlord asked the court for a decision in its favor. Citing to the case Brusco v. Braun, 199 AD2d 27 (1993), the court advised the landlord that the Court was required to review the landlord's petition for defects, even when tenant fails to appear and present a defense. The landlord's petition stated that the premises are not subject to rent stabilization by reason of the fact that the building in which the premises is located is not a multiple dwelling. The court held that this allegation did not sufficiently describe the premises and state the status of the premises to be sought, as required by RPAPL Sections 731(2) and 732. By stating that the building is not a multiple dwelling, the landlord was only stating that the building contained less than three units. The landlord should have said whether the building was a one-family or a two-family house. The Court dismissed the landlord's petition for failure to properly describe the premises sought to be recovered.


Case Caption:
Sobers v. Baker
Issues/Legal Principles:
The housing court cannot order the NYCHA to reinstate tenant's Section 8 rent subsidy; tenant must bring an Article 78 proceeding in the Supreme Court in order to obtain such relief.
Keywords:
Section 8; rent subsidy; nonpayment proceedings; jurisdiction of housing court; power of housing court
Court:
Civil Court, Housing Part, Kings County
Judge:
Hon. D. Thomas
Date:
April 15, 1998
Citation:
NYLJ, page 27, col 3
Referred Statutes:
CPLR Sections 3211 and 3212; General Construction Law Section 46
Summary:
Landlord sued tenant for nonpayment of rent. Tenant made a motion asking the Court to join the New York City Housing Authority ("NYCHA") as a party to this proceeding and stay the nonpayment proceeding pending the resolution of respondent's NYCHA Section 8 certificate status. Tenant was a Section 8 tenant, meaning that a portion of her rent was paid by a federal subsidy because of her low income. However, the NYCHA terminated tenant's Section 8 status when she failed to respond to Section 8's request for proof of income. After her status was terminated, she presented NYCHA with proof of income and NYCHA agreed to re-instate her into the program only if the landlord agreed to sign a new Section 8 lease and a new Housing Assistance Program ("HAP") contract with the NYCHA and only if the apartment passed inspection. The NYCHA decided that it was not responsible to pay any share of the rent between the date of termination and reinstatement. The NYCHA decided not to reinstate tenant into the program because the apartment did not pass inspection and required certain repairs. The Court denied the tenant's motion, because the housing court does not have jurisdiction to implead the NYCHA and compel it to pay a subsidy that it had decided not to pay. If the tenant wishes to challenge the decision of the NYCHA, then the tenant must bring a proceeding pursuant to CPLR Article 78 in the Supreme Court. The Supreme Court - but not the housing court - would have the power to order the NYCHA to restore tenant's Section 8 status and her rent subsidy. The tenant should ask the Supreme Court for an order staying the housing court proceeding pending the Supreme Court's determination of her case against the NYCHA.


Case Caption:
Y&Y Realty LLC v. Van Arken
Issues/Legal Principles:
Wife who moved in with husband is a necessary party who must be named and served as a party, and not denominated as a "Jane Doe."
Keywords:
necessary parties; licensees
Court:
Civil Court, Housing Part, Queens County
Judge:
Hon. Cavallo
Date:
April 15, 1998
Citation:
NYLJ, page 29, col 3
Referred Statutes:
RPAPL Section 721(4)
Summary:
Landlord brought a licensee holdover proceeding against John Doe and Jane Doe. An occupant of the apartment appeared and stipulated to vacate the premises by a date certain and he in fact vacated on that date. The stipulation did not mention that the occupant's wife and child also lived in the apartment. When the wife learned about the holdover proceeding and the stipulation, after her husband abruptly left her, she made a motion to dismiss the proceeding because (1) the landlord had failed to name her and serve her as a necessary party to the holdover proceeding and (2) the landlord's notice of termination incorrectly describes "Jane Doe" as a licensee when, in fact, she and her husband came into possession of the apartment with the consent of the prior landlord. The tenant's motion was supported by her affidavit but the landlord's opposition did not include a statement by anyone with knowledge which refuted the tenant allegations. The Court held that the landlord's petition must be dismissed for the reasons stated by tenant. The petition is defective because it failed to properly state the facts upon which the petition is based as required by RPAPL Section 721(4). The petition stated that tenant was a licensee (a person who came into possession without the landlord's consent) rather than a tenant, who came into possession with the consent of the prior owner. The petition must also be dismissed for failure to name a necessary party, that is, the wife. There is no indication that the husband, when he entered into the stipulation, was acting on behalf of his wife. Since the tenants' apartment was actually next door to the super's apartment, the landlord's claim that it did not know that wife existed is not credible.


Case Caption:
Ellen Crimmins v. Handler & Company
Issues/Legal Principles:
The four-year statue of limitations set forth in CPLR Section 213-a means that an action must be brought within four years of the first month for which damages are sought to be recovered - not that an action is forever barred where the overcharge extends over a period in excess of four years.
Keywords:
rent overcharge; enforcement of DHCR orders; four-year statute of limitations
Court:
Appellate Division, First Department
Judge:
lower court judge: Hon. Norman Ryp
Date:
April 16, 1998
Citation:
NYLJ, page 26, col 3
Referred Statutes:
RSC Sections 2520-2530; ETPA Section 8632; RSL Section 26-516; CPLR Section 213-a; CPLR Articles 52 and 78; NYC Admin. Code Section 26-516; NYC Rent & Rehab. Law Section 26-413(d)(2)(b)
Summary:
The Appellate Court upheld the Supreme Court's dismissal of the complaint to the extent that the complaint sought to enforce certain DHCR orders which found that the landlord overcharged the rent-stabilized tenant. The court held that a tenant who receives a favorable DHCR rent overcharge order has the option of taking either a 20% offset against the monthly rent or filing the order in the same manner as a judgment. RSL Section 26-516(a)(5). However, the Appellate Court modified the Supreme Court's order and reinstated the plaintiff-tenant's claim of rent overcharges incurred by plaintiff during the four years prior to service of the summons, and remanded this matter to the Supreme Court for further proceedings. The Court interpreted CPLR Section 213-a ("an action on a residential rent overcharge shall be commenced within four years of the first overcharge alleged") to mean "that the action must be brought within four years of the first month for which damages are sought to be recovered and not, as defendants suggest, that an action is forever barred where the overcharge extends over a period in excess of four years."


New York Law Journal,
decisions for the week of April 5-10, 1998 (11 cases)


Case Caption:
Allmen v. Andre
Issues/Legal Principles:
Consent adjournments agreed upon by the parties' attorneys is not a basis for triggering deposit of rent under new law.
Case Caption:
Berwick Land Corp. v. Dr. Louis Mucelli
Issues/Legal Principles:
Tenant who returns to apartment 3-4 months prior to termination notice after a 20 year absence loses apartment on grounds of nonprimary residency; due to absence of contemporaneous co-occupancy, his children cannot claim succession rights.
Keywords:
nonprimary residency; succession rights
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Arlene Hahn
Date:
April 5, 1998
Citation:
NYLJ, page 28, col 6
Referred Statutes:
RSC 2325.5
Summary:
The tenant resided in the apartment 3 or 4 months prior to service of the termination, but otherwise had not lived in the apartment between 1974 and 1993, nor had the tenant resided in the apartment for the first 16 months of the 24 month renewal period. The lower court, the Appellate Term and the Appellate Division all held that in such circumstances the tenant did not maintain an "ongoing substantial physical nexus with the controlled premises for actual living purposes." The courts further held that since the tenant could not show a primary residency status with the apartment, then his remaining family members could not claim succession rights since there had been no contemporaneous occupancy.


Case Caption:
New York City Housing Authority v. Clark
Issues/Legal Principles:
City housing tenant must challenge City's termination decision in Supreme Court, not Housing Court.
Keywords:
appeals; administrative determination
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Howard Malatzky
Date:
April 8, 1998
Citation:
NYLJ, page 28, col 3
Referred Statutes:
none cited
Summary:
After an administrative hearing, the City landlord terminated the tenant's tenancy for nondesireability based on drug traffic in the apartment. To challenge an administrative hearing, the tenant must file an Article 78 in the Supreme Court. This tenant simply tried to re-litigate the issue in Housing Court. The lower court granted the landlord a judgment of possession and the Appellate Term upheld.
Notes:
The case does not state whether or not the administrative hearing officer attached a notice to the termination decision advising the tenant that an Article 78 is the avenue to challenge and appeal a decision. Due process should make such a notice a standard agency practice, or else tenants, such as this one, would reasonably, but incorrectly, assume that Housing Court is a proper forum to challenge the hearing officer's decision. By the time the case gets to Housing Court, however, the tenant's deadline for filing an Apartment Article 78 (4 months) will invariably have elapsed.


Case Caption:
1374 York Associates v. Pardisi
Issues/Legal Principles:
Dismissal of the petition did not preclude tenant from winning attorney's fees on tenant's counterclaims.
Keywords:
attorney's fees; jurisdiction; counterclaims
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Jose Rodriguez
Date:
April 8, 1998
Citation:
NYLJ, page 28, col 3
Referred Statutes:
RPL 234
Summary:
In a nonpayment proceeding, tenant was the prevailing party since the petition got dismissed and tenant received abatements ranging from 15% to 45% over a 3 year period. The landlord tried to argue that since the petition was dismissed, the lower court lost jurisdiction and had no authority to award tenant attorney's fees. The Appellate Term rejected this argument.


Case Caption:
Tabak v. Baez
Issues/Legal Principles:
Lower court's finding that tenant's behavior was "intolerable" and should be evicted was upheld on appeal.
Keywords:
nuisance; appeals
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Howard Malatzky
Date:
April 8, 1998
Citation:
NYLJ, page 28, col 1
Referred Statutes:
none cited
Summary:
The Appellate Term upheld the lower court's factual findings that the tenant's "continuous course" of antisocial conduct and repeated fights and noise and verbal abuse created an "intolerable situation" for the other tenants in the building. The standard of review on appeal is whether the lower court's conclusions could not have been reached under any fair interpretation of the evidence. The lower court's findings satisfied this criteria for the Appellate Term.


Case Caption:
Grasso v. Matarazzo
Issues/Legal Principles:
Elderly tenant cannot waive rent controlled rights; tenant was restored to possession of apartment following guardian ad litem hearing.
Keywords:
guardian ad litem; waiver of rent controlled status
Court:
Civil Court, Kings County
Judge:
Hon. Debra Thomas
Date:
April 8, 1998
Citation:
NYLJ, page 32, col 3
Referred Statutes:
CPLR 1202
Summary:
The tenant brought an unlawful eviction proceeding and sought restoration to the apartment and the appointment of a guardian ad litem. The court held a hearing and determined that the elderly tenant did need a guardian ad litem. This is not a formal adjudication of incompetency, but rather a guardian ad litem is appointed where the tenant is incapable of adequately defending their rights. In this matter the landlord had gotten the tenant to sign an agreement where the tenant gave up his rent controlled apartment where he had lived since about 1962. The landlord argued that the tenant gave up his rights knowingly and voluntarily and in consideration for $2,500. The court held that an agreement by a tenant to waive the benefit of the rent control laws is void. The court ordered the tenant restored to possession, ordered the eviction of the new tenants, and ordered landlord to restore tenant's possessions to the premises. One of the reasons the court doubted landlord's position that the agreement was all done on the "up and up" was because the tenant left some possessions in the premises and the landlord changed the locks the very day the agreement was signed.


Case Caption:
Tsororos v. Lauriello
Issues/Legal Principles:
Landlord's owner occupancy petition dismissed for failure to clearly offer elderly tenants alternative comparable housing at a comparable rent.
Keywords:
owner occupancy
Court:
Civil Housing Court, Kings County
Judge:
Hon. Peter Wendt
Date:
April 9, 1998
Citation:
NYLJ, page 32, col 5
Referred Statutes:
RSC 2523.5 & 2524.1(a) & 2524.4(a)(2) & 2520.6; RSL 26-511(c)(9)(b)
Summary:
Landlord brought a holdover proceeding against an elderly couple seeking to recover possession of the apartment for the landlord's personal use. The trial testimony revealed that after the tenants' 1995 lease expired they were not offered a renewal lease, except verbally. Where a landlord seeks to recover an apartment for personal use, the law provides that if the tenants are senior citizens (62 years or older) the landlord must provide alternative comparable housing. The landlord claimed to have offered to relocate the tenants to an upstairs apartment, but the offer seemed to be at a higher rent and it was unclear whether the offer would have made the tenants stabilized tenants with the right to renew their lease. In fact, the tenants were never actually shown another apartment. The court rejected the landlord's petition, and also noted that whichever apartment was offered entailed the elderly tenants to negotiate stairs which would not have made such an apartment "equivalent" to their ground floor home.


Case Caption:
One East River Place Realty v. Avent
Issues/Legal Principles:
Tenant who left roommate in apartment did not surrender premises and was liable for rent accrued during roommate's continued occupancy.
Keywords:
roommates; surrender
Court:
Civil Housing Court, New York County
Judge:
Hon. Laurie Lau
Date:
April 8, 1998
Citation:
NYLJ, page 30, col 4
Referred Statutes:
none cited
Summary:
In this nonpayment proceeding, the tenant had a girlfriend who lived with him on and off as a roommate. They terminated their relationship but she continued to come to the apartment, so he changed the locks which prompted her to go to the police and the police told him that he could not lock her out except by court order. He testified that on advice of an attorney, the super and the managing agent, if he vacated the apartment she would have no greater rights to the apartment than he had and he would be free of her. He moved out in July, changed the locks and gave the keys to the super. Apparently, she came to the rental agent's office crying, but the landlord refused to grant her entry. She somehow changed the locks and was able to get into the apartment where she remained until December. The landlord sought rent from the tenant from June onward and brought a nonpayment proceeding in August. The tenant contends that he surrendered the apartment in July and was not obligated to pay any rent thereafter. The court, however, noted that the tenant had left behind his girlfriend's possessions and thus had not totally surrendered the apartment. Since the girlfriend was still in the apartment when the tenant attempted to surrender, she remained as a licensee. The court held that the tenant did not surrender when he left, but rather when his girlfriend finally left. The court noted that it was not fair that the tenant left the landlord with the responsibility of getting rid of the girlfriend and it should not be the landlord's burden to evict her. Thus, the court ordered that tenant pay the rent from June through September 30, the date tenant's lease expired.
Notes:
The court's analysis is correct that a tenant cannot simply surrender an apartment and leave another person occupying it; this is not a "meaningful surrender." However, the girlfriend did not leave until December. Under the court's theory, the tenant should have been liable for the rent through December. Seemingly, the court did the tenant a favor by limiting his liability to the end of September. This case should cause tenants to be aware that simply turning in their own key to an apartment is insufficient if they likewise leave a roommate or subtenant still in possession.


Case Caption:
Trump v. Meyer
Issues/Legal Principles:
Tenants who continue to reside in apartments where no housing violations presently exist cannot avoid paying rent on grounds of constructive eviction.
Keywords:
constructive eviction; use and occupancy
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Edward Lehrer
Date:
April 9, 1998
Citation:
NYLJ, page 26, col 1
Referred Statutes:
RPL 220
Summary:
The landlord brought a Supreme Court action for ejectment against the tenants who possess five adjoined rent stabilized apartments, and their children claim succession rights. They have not paid rent for several years claiming a constructive eviction (unusable apartment) and harassment. The landlord made an application for use and occupancy (i.e., rent). The tenants argued that they should not have to pay because the landlord's activities hindered their use of the apartments. The court ruled that they must pay because they are in fact residing in the apartments, there are presently no housing code violations, nor do the tenants deny that many of their possessions remain in the apartments. Thus they are using and occupying the apartments and must pay the landlord for that right.


Case Caption:
Matter of Shapiro v DHCR
Issues/Legal Principles:
Court rejects DHCR's luxury deregulation of tenant's apartment, finding it incumbent upon the agency to independently verify tenant's income with the Tax Department regardless of whether tenant defaults in supplying their tax returns.
Keywords:
luxury deregulation
Court:
Supreme Court, New York County
Judge:
Hon. Walter Tolub
Date:
April 8, 1998
Citation:
NYLJ, page 28, col 4
Referred Statutes:
RSL 26-504.3(c)(1); Tax Law 171-b
Summary:
The tenant brought an Article 78 in Supreme Court to challenge the DHCR's decision to deregulate the tenant's rent stabilized apartment under the "luxury decontrol" law. The two novel questions before the court are: (1) does a technical default by the tenant allow DHCR to shirk its legislatively imposed burden of verifying the tenant's income with the state's Department of Taxation and Finance? and (2) may DHCR make a ruling on default which is manifestly wrong according to information actually in DHCR's possession at the time of the default? The court answer both questions in the negative. The tenant has resided in his rent stabilized apartment for 19 years. His current monthly rent is $2,724.19. In 1994 the landlord sought income verification and the tenant advised the landlord that in 1993 and 1994 his income was less than $250,000 a year. (In June, 1997, the revised law lowered the threshold to $75,000). The landlord petitioned the DHCR to deregulate the apartment. The tenant sent DHCR an answer in an envelope metered October 16, 1995, but postmarked October 23, 1995 which was three days after the DHCR's 60 day period for submitting a response. The DHCR processed the answer, despite the untimely submission and forwarded a copy to the landlord for the landlord to respond. However, under the luxury decontrol statute a landlord is not accorded a right to respond to the tenant's answer. The landlord did respond with a request for a copy of the postmarked envelope, and upon receipt of the envelope, the landlord argued that the tenant's answer was untimely and must be rejected. Thereafter DHCR deregulated the tenant's apartment. The court opined that the luxury deregulation statute was internally inconsistent and hence unenforceable according to all of its terms. The law states that whether or not a tenant responds to the DHCR's request for income verification, the DHCR has an affirmative duty to verify whether the tenant's income exceeds $250,000 in each of the two years prior to landlord's deregulation application by requesting verification from the Tax Department. Once the Tax Department notifies the DHCR of the tenant's income, the DHCR is supposed to share that information with both the tenant and the landlord. Thus, there is no genuine obligation on the tenant to even participate in the process. In other words, tenants should not be penalized simply because they defaulted and did not provide their tax returns. Rather, whether the tenant responds to the landlord's application or not is immaterial to DHCR's independent duty to ascertain the tenant's income from the Tax Department. The court noted that the only information the Tax Department is supposed to release is the tenant's income (not social security numbers or anything else), and all that is needed to get this information from the Tax Department is the tenant's name and address. Yet, the statute states that the tenant should supply their income verification (i.e., tax returns) to the DHCR. The court found this inconsistent, and noted that it also leads "to the impermissibly forced disclosure of tax returns when there is not the slightest need for them." Further, the statute requires DHCR to deregulate the apartment when the tenant does not supply the requisite information within 60 days . . . information which the DHCR is obligated to obtain from the Tax Department itself. Thus, even though the DHCR may well have received the tenant's income information from the Tax Department indicating that the tenant earned less than $250,000, the law requires DHCR to deregulate the apartment anyway if the tenant themselves fails to also provide the information within 60 days. The court found this absurd and ruled that DHCR's decision to decontrol the apartment based on the tenant's default was arbitrary and capricious.
Notes:
This is an excellent case challenging the very nature of the luxury decontrol law. The judge examined the statute as a whole, and not just isolated provisions of it, and found it full of internal inconsistency. Why should a tenant have to produce their entire tax returns when the only information needed for the DHCR to make a determination is the bottom line income statement, not anything else contained in the tenant's tax return? The court also wisely attacked DHCR for dogmatically defaulting a tenant who failed to produce such returns when the statute mandates DHCR to find out the identical information on its own by an independent verification with the Tax Department. This decision is very lucid and well-reasoned.


Case Caption:
Allmen v. Andre
Issues/Legal Principles:
Consent adjournments agreed upon by the parties' attorneys is not a basis for triggering deposit of rent under new law.
Keywords:
rent deposit law
Court:
Civil Court, New York County
Judge:
Hon. Marcie Friedman
Date:
April 8, 1998
Citation:
NYLJ, page 30, col 1
Referred Statutes:
RPAPL 745(2)
Summary:
In a nonpayment proceeding, the landlord asked that the tenant deposit the rent pursuant to the new rent deposit law [RPAPL 745(2)] and the tenant opposed the application. The issue on the application was whether the tenant made two requests for adjournments (which would trigger the necessity to deposit the rent) or whether the tenant is "chargeable" with paying the rent since 30 days have elapsed since the proceeding began (another event which would trigger the necessity to deposit rent). The first court date was November 13, 1997, and the matter was adjourned "on consent" by agreement between the parties' attorneys to November 25, 1997 "or the next available date at the request of the tenant." On November 25th the matter was adjourned to December 16th, and it was recorded as an adjournment "on consent" and the reason given was because the tenant "needs time to make motion." The tenant did in fact make a motion returnable on December 16. On December 16th, the matter was adjourned to December 30th for the submission of additional papers. The motion was determined and the matter restored to the calendar for February 25th at which time the landlord made its application for the rent. The landlord argued that since the consent adjournments were at the tenant's request, the tenant should be charged with the court time accrued. But since the landlord also made a cross-motion, the tenant argued that it would be unfair to charge only the tenant with the time that elapsed in motion practice. Analyzing the language of the statute, the court held that consent adjournments at the tenant's "request" are not "adjournments" within the meaning of RPAPL 745(2). The court noted that a tenant's "request" for an adjournment is subject to opposition from the landlord and that the court could arbitrate the "request." This is different from a consent adjournment agreed upon between the parties and assented to by the landlord The court analyzed the legislative history of the new statute and concluded that the amended RPAPL 745(2) did not change the meaning of the term "request for adjournment" as one where the tenant must seek the court's permission because the landlord opposes the request. The court further concluded that "there is no indication in the legislative history that the legislature intended to change prior law so as to impose a deposit requirement based on consent adjournments." The court thus ruled that the consent adjournments were not ones which would trigger the rent to be deposited by the tenant. The court also rejected that the 30 day rule should be chargeable to the tenant since it should not be approached any differently than the two- adjournment request rule. The court reasoned that a consent adjournment is appropriately considered a request by both parties to the court for an adjournment, and the statute expressly exempts a landlord's request for an adjournment as part of the time calculations. The court further ruled that the judge's time (over one month) spent deciding the motions should not be chargeable solely to the tenant as that would be fundamentally unfair.


Case Caption:
City of New York v. Stewart
Issues/Legal Principles:
Landlord's holdover must include Tenant's Association as a party to the proceeding because the Assocation held a net lease to the property.
Keywords:
licensee
Court:
Appellate Term, 2nd & 11th Judicial Districts
Judge:
lower court: Hon. S. Hoahng
Date:
April 10, 1998
Citation:
NYLJ, page 34, col 5
Referred Statutes:
none cited
Summary:
The City landlord brought a licensee proceeding against the occupant of Apartment 2CW in Brooklyn who the City claimed was given possession of the apartment by the "former" Tenants Association. The Tenants Association's lease expired and was not renewed, so that made the tenant a licensee. The tenant answered the holdover petition and also sought to be restored to possession of Apartment 2DW on grounds that she was the tenant there from 1981 until that apartment was flooded out in 1994, at which time she moved into the bedroom of Apartment 2CW which was the Tenant's Association's office. Tenant (the president of the Association) claimed to use 2CW, that 2DW was still unhabitable and that the City changed the lock on her original apartment and locked her out. The lower court granted the City possession to 2CW and dismissed tenant's petition to be restored to 2DW. The Appellate Term reversed. The court noted that the Tenant's Association had a net lease to the entire building and used 2CW as its office, but that the record was unclear when their lease actually terminated. The court held that the City should have brought a proceeding against the Tenant's Association for 2CW, rather than just a licensee proceeding against the tenant, since it did not appear that the Association had surrendered their right to 2CW. The Appellate Term reversed the lower court's award of summary judgment to the City and remanded the matter for a determination of the facts. With respect to tenant's effort to recover 2DW, the court noted that tenant's proof of residency included not only her claim of rent paid, but an affidavit from a former 7-A Administration attesting that the tenant faithfully paid rent each month until his discharge in August 1993. The Appellate Term ruled that there was a question of fact as to whether there was and remained a landlord-tenant relationship, so this case was likewise sent back to the trial judge to determine more facts.