Housing Court Decisions August 1998

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Case Caption:

St. Lewis v. Lewis

Issues/Legal Principles:

Petition that bears incorrect apartment address deprives the court of jurisdiction and must be dismissed.

Keywords:

jurisdiction; service of papers

Court:

Civil Housing Court, Kings County

Judge:

Hon. Callendar

Date:

August 26, 1998

Citation:

NYLJ, page 24, col 6

Referred Statutes:

none cited

Summary:

The tenant lives in Apartment 4B. However, the petition lists the apartment as 4C and the process server served the petition at Apartment 4C (by conspicuous place service). The landlord requested to amend the petition to change it to Apartment 4B, arguing that the tenant had already entered into a stipulation consenting to a $5,000 judgment, therefore the tenant long ago waived jurisdiction issues. The court held that defective descriptions of the premises are more than mere irregularities, but rather are fundamental errors which substantially affect the power of the court to proceed. The court also noted that subject matter jurisdiction can be raised at any time (whereas personal jurisdiction issues, i.e., improper service, technically must be raised on one's first court appearance or this defense is waived). The court vacated the judgment and dismissed the petition.

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Case Caption:

Matter of Ross v. DHCR

Issues/Legal Principles:

Tenants fail to show sufficient commonalities between their two buildings in their efforts to seek rent stabilization status.

Keywords:

horizontal multiple dwelling

Court:

Supreme Court, New York County

Judge:

Hon. Walter Tolub

Date:

August 26, 1998

Citation:

NYLJ, page 22, col 1

Referred Statutes:

CPLR 7804(f) & 7802(d) & 1013

Summary:

The tenants filed a complaint with the DHCR arguing that their two buildings constitute a "horizontal multiple dwelling," and should be subject to rent stabilization. The DHCR disagreed and the tenants appealed via an Article 78 to the Supreme Court naming the defendant as the DHCR. The landlord sought to intervene in the Article 78 and sought the dismissal of the tenants' petition. The court granted her motion to intervene even though some case law holds that the proposed intervenor should submit a proposed pleading for why the intervention is sought. The court held that she had an interest in whether her property was to be subject to rent regulation or not. A building with less than 6 units is not subject to rent regulatory status. However, if two or more buildings share a host of commonalities, and together they have 6 or more units, then courts have held that they are a horizontal multiple dwelling and the tenants are protected by the rent stabilized laws. In this case the two buildings each have less than 6 units, but together have more than 6 units. They are in a Greenwich Village historic district and one of them was once a carriage house constructed to house horse-drawn carriages. They do not abut each other, rather they are separated by a courtyard. The tenants argued that they are located on the same block and lot, taxed as one unit, have one insurance policy by the owner and are registered on one form as a multiple dwelling with one multiple dwelling number. DHCR pointed out that the buildings have two separate heating systems, water mains, sewer pipes, gas connections, roofs, entrances and electrical connections, plus the buildings lacked a common entrance. The tenants argued that the DHCR misstated the common sewer and water lines, and submitted proof during the PAR of these commonalities, but this evidence was rejected as untimely and no reason submitted for why this evidence could not have been submitted earlier. In any event, the DHCR found that these factors were insufficient to overcome the host of non-commonalities of the two buildings. The Supreme Court upheld the DHCR ruling rejecting the tenants' claim on grounds that the ruling was not arbitrary or capricious or an abuse of discretion.

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Case Caption:

Chester Brady Avenue v. Perez

Issues/Legal Principles:

Trial needed to determine whether holdover proceeding can be maintained where landlord accepted rent before the termination notice was served, but the rent covered a period after the tenancy terminated,

Keywords:

unlawful sublet; waiver

Court:

Civil Housing Court, Bronx County

Judge:

Hon. Tao

Date:

August 26, 1998

Citation:

NYLJ, page 23, col 3

Referred Statutes:

NYCCCA 102

Summary:

Landlord brought an unlawful sublet proceeding against the tenant who moved to dismiss the petition on a variety of technical defenses. One such ground alleged that the petition set forth that the premises were in the County of New York, rather than Bronx County. The court rejected this argument, stating that it elevated form over substance and was harmless error. The court also addressed the tenant's defense that the landlord accepted rent prior to the service of the termination notice, but the rent covered a period after termination of the tenancy and prior to the commencement of the proceeding. The landlord returned the payment three weeks later. The acceptance of rent, or in some cases the retention of the rent checks, would reinstate a tenancy that the landlord had terminated. In this case, the court examined a plethora of case law addressing this topic and studied a variety of scenarios. (The decision provides a good recitation of the various cases on this topic). Ultimately the court concluded that there was too little information in the motion papers to determine whether the landlord took sufficient steps to mitigate the confusion caused by the acceptance of rent. Among such questions reserved for trial were whether the landlord solicited the rent or if tenants voluntarily tendered it, whether the tenant had previously made any advance payments of rent, and whether landlord deposited the rent and wrote the tenant a check for the rent amount or simply sent back the tenant's own check.

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Case Caption:

Khalil v. Rivera

Issues/Legal Principles:

Termination notice which fails to sufficiently explain the apartment's alleged non- regulatory status is defective and petition dismissed.

Keywords:

rent regulatory status

Court:

Civil Housing Court, Kings County

Judge:

Hon. Rodriguez

Date:

August 26, 1998

Citation:

NYLJ, page 24, col 5

Referred Statutes:

none cited

Summary:

Landlord brought a holdover against the tenant alleging that there were only five units in the building and the tenant was not subject to rent control or rent stabilization. At one time the building had seven apartments, but the building was altered in 1982 and the certificate of occupancy changed so that now there are only 5 units. (Six or more apartments make a building rent stabilized. By and large, tenants living in units prior to 1971 are rent controlled). If the tenant was residing in a rent regulated apartment before the alterations, the tenant's status remains protected even though the building might no longer be subject to rent regulatory status. In this case the tenant moved in after the alterations were made, in 1995, which would preclude the tenant from protection under the rent laws. The court, however, noted that in previous cases, the landlord had alleged that the apartment was subject to the city rent law. In light of such past history, the court ruled that the landlord was required to provide additional facts in the termination notice and the petition.

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Case Caption:

East 72nd Realty LLC v. Dakis

Issues/Legal Principles:

Holdover proceeding based on tenant's alleged illegal harboring of a dog is stayed pending tenant's federal complaint of discrimination that dog is needed as companion to cope with his disability.

Keywords:

pets; stays

Court:

Civil Housing Court, New York County
dt>Judge:

Hon. Ruben Martino

Date:

August 26, 1998

Citation:

NYLJ, page 22, col 6

Referred Statutes:

CPLR 2201 & 3211

Summary:

Landlord brought a holdover against the tenant on grounds that his harboring a pet dog was in violation of the lease. Within hours before tenant was served the petition, he filed a disability complaint with the U.S. Department of Housing and Urban Development (HUD) stating that he needs his dog for companionship to help cope with his disability and that the landlord was discriminating against him. The tenant asked the judge to stay the eviction proceeding until the HUD proceeding was determined. The court observed that an administrative agency has superior expertise in matters of discrimination. The court also held that the tenant has been living in the apartment for 20 years and should HUD find that the landlord improperly refused to accommodate the tenant, this would (according to the court) constitute a valid defense to the holdover proceeding. The court did not regard the tenant's defense as irrelevant to the underlying claim, but rather "potentially dispositive." The court exercised its discretion and granted the stay pending the outcome of the HUD complaint, or six months, whichever is sooner. During the pendency of the stay, the tenant was ordered to pay ongoing rent, and to mail the court's decision to HUD for an expedited hearing.

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Case Caption:

Milan Assoc. v. Bailey & Apeldorf

Issues/Legal Principles:

Overcharges reversed and denied where tenants did not challenge within four years the failure of the prior landlord to file initial rent registration.

Keywords:

overcharges

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Margaret Taylor

Date:

August 27, 1998

Citation:

NYLJ, page 21, col 2

Referred Statutes:

RSL 26-516(a); Rent Regulation Reform Act of 1977

Summary:

The lower court dismissed the petition and granted tenant's counterclaim for overcharges. The Appellate Term reversed and reinstated the petition, holding that in light of the new 1997 rent law (which is applied retroactively, the tenants are not entitled to a rent overcharge award because they did not challenge the former landlord's failure to file an initial rent registration in 1988 within four years of that date. The 1997 law now provides that where the amount of rent set forth in the annual rent registration statement is not challenged within four years of its filing with the DHCR "neither such rent nor service of any registration shall be subject to challenge at any time thereafter." The landlord had filed annual rent registrations since 1988, except for 1989. The registered rent is greater than the preferential rent in tenants' lease and the tenants never challenged the rent in the registration statements or lease until May, 1996 during the nonpayment proceeding. Thus, the lower court erred by considering the tenants' overcharge complaint which went beyond a four-year period.

Case Caption:

IG Second Generation Partners v. Lin

Issues/Legal Principles:

Where DHCR rent reduction order becomes effective the same date as tenant's lease renewal (July 1, 1987), tenant's rent is rolled back to rent in effect in tenant's 1983-1985 lease, not his 1985-1987 lease.

Keywords:

rent reduction order; rent roll-back

Court:

Civil Court, New York County

Judge:

Hon. Timmie Elsner

Date:

August 14, 1998

Citation:

unreported

Referred Statutes:

RSL 26-514; RSC 2523.4

Summary:

Several tenants initiated a proceeding with the DHCR claiming a decrease in services. The DHCR found in the tenant's favor and reduced the legal rent, effective July 1, 1987. The landlord's PAR, Article 78, appeal to the Appellate Division and leave to appeal to the Court of Appeals were all denied. The landlord commenced a nonpayment proceeding against one of the rent stabilized tenants, Mr. Lin, on grounds that he failed to pay the proper rent. Lin's renewal lease in 1987 came up for renewal on the same date as the DHCR order went into effect, July 1, 1987. The law provides that a reduction in services requires the rent to be rolled back "to the level in effect prior to the most recent guidelines adjustment." (RSC 2523.4). Lin argued that his rent roll back should arise from his July 1, 1983 to June 30, 1985 lease. The rent in effect at that time was $280.14. The landlord argued that Lin's rent roll-back should cover the July 1, 1985 to June 30, 1987 lease. The rent in effect at that time was $305.53. Lin submitted an opinion letter from the DHCR wherein another neighboring tenant from the building asked what rent should be paid when a tenant's lease commenced on the same date as the DHCR Rent Reduction Order? The DHCR's response coincided with Lin's position, holding that "a guidelines adjustment that is contemporaneous with the effective date of the rent reduction order cannot be considered the most recent guidelines order." The General Counsel of DHCR further confirmed that this was DHCR's current policy. The court held that the DHCR's interpretation of regulations was to be given deference if not irrational or unreasonable. The court agreed that for the purpose of determining Lin's rent roll-back, the July 1, 1983 to June 30, 1985 lease rent was applicable. Thus, the collectible rent on the apartment would remain at $280.14 until such time as the landlord obtained a rent restoration order from the DHCR (by providing the services complained of and having DHCR confirm the services were restored).

Notes:

This was a case of first impression, meaning that there were no previously reported decisions on this unique issue. Disclosure: Colleen McGuire is Mr. Lin's attorney who made the motion on his behalf which resulted in Judge Elsner's decision.

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Case Caption:

Matter of Elkin v. Roldan

Issues/Legal Principles:

Court overturns DHCR's order of deregulation because the tenant filed its answer only ten days late and the tenant's income was below the threshold.

Keywords:

high rent - high income deregulation

Court:

Supreme Court, New York County

Judge:

Hon. Justice Wetzel

Date:

August 19, 1998

Citation:

NYLJ, page 22, col 1

Referred Statutes:

CPLR Section 2221; RSL Section 26-504.3(c)(3).

Summary:

On August 18, 1997, the Supreme Court overturned the DHCR's order deregulating tenant's apartment, because tenant's income was below the deregulation threshold and because the tenant sent its answer to the owner's deregulation petition only ten days late. The owner then brought a motion for reargument, which can only be granted if a higher court has issued a decision which would mandate a different result. The Court reviewed the decisions of the Appellate Term, First Department in the following cases: Nick; Dowling; Bazbaz and Leepson. The Court determined that all of these appellate court cases were different than the case before the court, and therefore the court denied the motion for reargument, leaving its August 18, 1997 order, in favor of the tenant, in full force and effect. The appellate court cases are different because the tenants in those cases (1) never filed the required responses with the DHCR (Nick, Bazbaz, Dowling); failed to file a timely Petition for Administrative Review ("PAR") (Dowling); or admitted that their income was over the threshold amount (Leepson). In one case, the DHCR ordered deregulation based on the tenant's non-response in part because the DHCR did not have sufficient information to determine whether the tenant's income was over the threshold (Bazbaz). In contrast, in the case before the court, the tenant filed an answer with the DHCR only ten days late.

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Case Caption:

Kirschbaum v. Martinez

Issues/Legal Principles:

Landlord's failure to file certain annual apartment registration statements with the DHCR freezes the rent at the amount set in the last registration statement filed with the DHCR.

Keywords:

rent overcharge

Court:

Civil Court, Housing Part, New York County

Judge:

Hon. Callender

Date:

August 19, 1998

Citation:

NYLJ, page 22, col 3

Referred Statutes:

RSL Section 26-517; RSC Sections 2525.1 and 2528.4; NYCCA Section 110; Housing Maintenance Code (court does not cite section)

Summary:

Landlord brought a nonpayment proceeding against tenant. Tenant made a motion for summary judgment and dismissal against tenant alleging that the amount demanded by landlord is in excess of the legal rent. The Court agreed with tenant and dismissed the landlord's nonpayment petition. The landlord did not file annual apartment rent registration statements with the DHCR for the years 1986 through 1988, and therefore the legal rent is frozen at the amount registered for the year 1985. The legal rent can only be raised after the owner files the missing registrations. Since the landlord sued for rent in an amount which exceeds the rent in effect in 1985, the rent demanded by the landlord is illegal and the nonpayment petition must be dismissed.

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Case Caption:

600 Riverside Drive Aldo Associates LLC v. Marte

Issues/Legal Principles:

Court granted stay of holdover proceeding pending the NLRB's determination about whether the live-in building superintendent was fired because of his union activities.

Keywords:

stay of proceedings

Court:

Civil Court, Housing Part, New York County

Judge:

Hon. Ling-Cohan

Date:

August 19, 1998

Citation:

NYLJ, page 22, col 3

Referred Statutes:

NYCCA Sections 204 and 212; CPLR Section 2201

Summary:

Landlord fired its superintendent and then brought a holdover proceeding against him to evict him from the apartment he occupied in connection with his employment. The super asked the Court to stay the eviction pending the NLRB's determination of his wrongful termination complaint. The Court granted the stay because the NLRB's decision as to whether the super was wrongfully terminated because of union activities will also determine whether he is entitled to remain in his apartment.

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Case Caption:

Eina Realty v. Calixte

Issues/Legal Principles:

Court restores tenant to possession because rent demand served by landlord did not comply with the Fair Debt Collections Practices Act ("FDCPA").

Keywords:

Fair Debt Collections Practices Act ("FDCPA"); rent demand

Court:

Civil Court, Kings County, Housing Part

Judge:

Hon. Acosta

Date:

August 19, 1998

Citation:

NYLJ, page 24, col 1

Referred Statutes:

15 USCA Sections 1692[a]; 1692e(11), 1692g(a)(3); 1692n; RPAPL Section 711(2); United States Constitution, Art. VI, cl. 2

Summary:

The landlord brought a nonpayment proceeding against tenant and the court issued an order evicting tenant. Tenant then made a motion, relying upon the federal court's decision in Romea v. Heiberger & Associates, 988 F. Supp. 712, asking the Court to vacate the order of eviction and to restore her to possession of the apartment. The Court granted tenant's motion, because the nonpayment proceeding was based upon a defective rent demand. The rent demand was defective because it did not comply with the FDCPA. Rent is a "debt" and an attorney, who regularly brings nonpayment cases against tenants, is a "debt collector" as that term is defined by the FDCPA. When a rent demand is signed by an attorney - debt collector, the FDCPA must inform the tenant that the demand was an attempt to collect a debt and that tenant has the right to dispute the validity of the debt within thirty days. The landlord in this case did not comply with the FDCPA but simply served the tenant with a five-day rent demand signed by its attorney. If the landlord wished to avoid the applicability of the FDCPA, he could have signed the five-day rent demand himself instead of having his attorney sign it.

Notes:

This is the third reported case where a Housing Court judge has dismissed a nonpayment petition in reliance on federal law and Romea v. Heiberger & Associates.

Case Caption:

210 Realty v. Corny

Issues/Legal Principles:

Tenant who received a 35% abatement for lack of gas is the prevailing party in a nonpayment proceeding.

Keywords:

abatement; warranty of habitability; attorney's fees

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Arlene Hahn

Date:

August 10, 1998

Citation:

NYLJ, page 27, col 2

Referred Statutes:

RPL 235-b & 234

Summary:

At trial it was established that gas supply to the building had been shut off by Con Edison due to a gas leak in the basement. Service was not restored for approximately 2 months because the existing system had to be replaced. The tenant was deprived of hot water and an operative stove during that period. It is not clear what abatement the lower court gave the tenant, but the Appellate Term increased it to 35%. The Court held that it was irrelevant that the tenant paid for individually metered gas service since landlord had a nondelegable obligation under the lease to supply gas. When tenant withheld her rent, the landlord brought a nonpayment proceeding. The lower court denied tenant attorney's fees, but the Appellate Term reversed and sent the case back to determine the tenant's attorney's fees since she was the prevailing party.

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Case Caption:

Soobiah v. Nolan

Issues/Legal Principles:

Subtenants of co-op Loft tenant are not entitled to right of first refusal to purchase the proprietary lease once their sublease had expired.

Keywords:

Lofts; lease interpretation

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Lorin Duckman

Date:

August 10, 1998

Citation:

NYLJ, page 27, col 2

Referred Statutes:

none cited

Summary:

The proprietary lessee (the prime tenant) of a co-op apartment in a loft building brought a holdover proceeding against the subtenants. The subtenants had a five-year lease with the tenant and one of its clauses stated that the subtenant had the first right of refusal to purchase the shares to the apartment. However, the clause also stated that it was applicable to the lease term only. The lease term ended and the subtenants held over. The Appellate Term affirmed the lower court's decision which held that the lease clause was only applicable during the lease term and not during a period that the subtenants held over.

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Case Caption:

Merwest Realty Corp. v. Prager

Issues/Legal Principles:

Rent control tenant is not bound by surrender of her rights in an agreement arising from nonpayment of rent.

Keywords:

rent control; surrender; stipulations

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Marcie Freedman

Date:

August 10, 1998

Citation:

NYLJ, page 27, col 4

Referred Statutes:

Rent Control law 26-408(a)

Summary:

The rent controlled tenant fell behind in the rent by 8 months and it seems as if the landlord brought a nonpayment proceeding. She retained an attorney and the proceeding was resolved by the landlord's waiving the rent and giving the tenant $10,000 if she vacated the apartment by a certain date. Thereafter the tenant did not vacate the apartment and so the landlord then brought a holdover proceeding, whereupon the tenant sought to have the agreement declared void. The lower court held that the agreement was void ab initio because a rent controlled tenant cannot waive their rights under the rent controlled laws. The Appellate Term agreed, although Justice McCooe offered a long dissent. He noted that the rent controlled laws provide that so long as the tenant continues to pay the rent they cannot waive their rights under the law, and he observed that this tenant did not pay the rent, so she bargained for and negotiated a waiver of the rent and her rights. He also noted that this tenant initiated the negotiations to give up her rights, that the consideration she received was not unconscionable and she also received legal advice. He held that the legal principles applicable to vacating stipulations should apply here, and there were no grounds to vacate the stipulation in his opinion.

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Case Caption:

Triolo v. Sasso

Issues/Legal Principles:

Eviction proceedings are automatically stayed when tenants file a bankruptcy petition and remain stayed until the bankruptcy stay is lifted, notwithstanding tenant's initial agreement to vacate on a date before the stay is officially lifted.

Keywords:

bankruptcy; stays

Court:

Civil Housing Court, Kings County

Judge:

Hon. Birnbaum

Date:

August 12, 1998

Citation:

NYLJ, page 26, col 2

Referred Statutes:

11 USC 541; RPAPL 749

Summary:

Landlord brought a holdover proceeding against month to month tenants, but the day before the court hearing the tenants filed for bankruptcy. In court the tenants stipulated to a final judgment of possession against them with a two-month stay on execution of the warrant and all rent was waived. The court on its own (sua sponte) restored the matter to the calendar to determine whether the proceeding was stayed by the filing of a bankruptcy petition. Under federal bankruptcy laws, the filing of a bankruptcy petition automatically stays a landlord's attempt to recover the apartment. Although the issuance of a warrant severs the landlord-tenant relationship, in this case the warrant did not issue until after the bankruptcy stay went into effect. Therefore the judge concluded that the tenants would not have to vacate until the bankruptcy stay is lifted. The judge noted that since the tenants were allowed to remain in the apartment for two months by the parties' stipulation, the landlord would have sufficient time to move in bankruptcy court to lift the automatic stay.

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Case Caption:

Glenbriar Co. v. Nesbitt

Issues/Legal Principles:

Landlord cannot use the same Golub notice against a tenant in a nonprimary residency proceeding when a prior proceeding on which it was based was dismissed.

Keywords:

nonprimary residency; Golub notice

Court:

Civil Court, Bronx County

Judge:

Hon. Schneider

Date:

August 12, 1998

Citation:

NYLJ, page 24, col 5

Referred Statutes:

9 NYCRR 2524.2(a)(3) & 2524.4(c)

Summary:

Landlord brought a holdover proceeding against the rent stabilized tenant on grounds of nonprimary residency. In order to bring such a proceeding, a landlord must first serve the tenant a notice that the landlord elects not to renew the lease (often called the "Golub" notice). A Golub notice must be served 120-150 days prior to the lease's termination. The law also requires the landlord to serve a 30 day notice of intent to commence a proceeding. The two notices can be combined and were in this case. The landlord commenced a holdover proceeding in January, but it was dismissed for improper service. The landlord now brings a second proceeding and seeks to rely on the prior Golub notice. The court dismissed the case in reliance on Kaycee West 113th Corp. v. Diakoff , where the Appellate Division held that where a nonprimary case is dismissed, the landlord must serve a new notice. The Kaycee case, however, involved a rent controlled tenant. Such tenants do not have leases and therefore only a 30 day notice is necessary. The court held that the two rent regulatory systems are indistinguishable for the purpose of notices and dismissed the petition, but also relied on other case law involving rent stabilized tenants which supported the court's holding.

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Case Caption:

Ramos v. DHCR

Issues/Legal Principles:

Overcharges upheld where landlord failed to submit leases and other documentation in its initial response to tenant's DHCR complaint after numerous opportunities to do so.

Keywords:

improvements; overcharges; treble damages

Court:

Supreme Court, New York County

Judge:

Hon. Eileen Bransten

Date:

August 12, 1998

Citation:

NYLJ, page 22, col 5

Referred Statutes:

RSC 2526.1(a)(3)

Summary:

The tenant took occupancy in 1987 at a rent of $1,100 per month and in 1988 she filed an overcharge complaint with the DHCR. The landlord responded by stating that $5,600 worth of improvements were made in the apartment prior to the tenant's occupancy and attached copies of a work proposal and contractor's agreement. The contract price was listed as $5,600 and it detailed the work to be done in the apartment, including demolition and removal of debris, but it did not itemize the cost of each task. The landlord also submitted copies of two checks, each in the amount of $2,800 which bore the apartment number, but there was no other writing indicating what the checks were payment for. The DHCR requested the landlord to submit a more specific breakdown of each item of work performed, including the cost for each improvement. Several months later the DHCR sent a second "Final Notice" asking for the same information, plus the two leases prior to the tenant's occupancy. Landlord finally responded to the DHCR's request, but merely sent a copy of the same documents previously proffered. Despite its Final Notice, the DHCR again requested the prior leases from the landlord. On March 14, 1990, the rent administrator ruled that there was an overcharge and set the tenant's rent at $933.55 per month based on the rent listed in the 1984 apartment registration statement, ($751.67), plus the applicable vacancy increases. The rent administrator also found treble damages against the landlord in the amount of $25,548.35. The landlord filed a PAR (appeal) charging that the administrator erred (a) by disallowing the cost of the renovations, (b) by not granting yearly guideline increases allowed by law and (c) by not calculating previously granted MCI increase (building-wide renovations). During the PAR, the landlord now produced copies of five MCI orders and the 1985 and 1986 apartment registration listings (documents previously sought by the rent administrator), but produced no leases. In 1995, the PAR commissioner granted some of the landlord's requests on appeal, such as allowing some of the MCI increases and reducing the amount of the overcharges, but otherwise upheld the initial order. The landlord brought a Supreme Court Article 78 (appeal) and thereafter the DHCR modified its order to allow the improvements to be calculated in determining the tenant's rent. The overcharge was reduced by about $5,000 which reduced the treble damages to almost $11,000. Both landlord and tenant challenged this latest ruling in the landlord's second Article 78. For the first time, the landlord now produced the prior tenant's lease. The landlord also claimed that he had initially sent the DHCR copies of the requested leases, but the DHCR asserted that the envelope containing the landlord's submissions never contained the leases and the DHCR's confirmation letter of its contents belied the landlord's current allegation. Further, on reconsideration the DHCR held that during the PAR stage, the landlord's new submissions would not be considered because the landlord showed no reason why the submissions were not given to the rent administrator when demanded on two occasions. Further, the DHCR held to the treble damages as the landlord did not show sufficient proof of lack of wilfulness on its part. On reconsideration the DHCR held by its initial PAR holding. The judge in the second Article 78 held that the DHCR's ruling was not arbitrary or capricious. The judge also rejected the tenant's argument that the improvements were mere maintenance and that demolition costs should not be allowed. The DHCR allowed the demolition costs since they were necessary and performed simultaneously with the improvements. The court also agreed with the DHCR that the checks which contained the apartment number were sufficient proof that the work done by the contractor was for the tenant's apartment.

Case Caption:

RNR Realty Corp. v. Smith

Issues/Legal Principles:

Court orders tenant to stop using washing machine because its use - which frequently resulted in water overflowing onto the floor - constituted a nuisance.

Keywords:

dogs; washing machine; nuisance

Court:

Civil Court, Kings County

Judge:

Hon. Peter Wendt

Date:

August 5, 1998

Citation:

NYLJ, page 23, col 2

Referred Statutes:

NYC Admin. Code Sections 27-2009.1(b) and 17-342; RSC Sections 2524.2 and 2524.3; RPAPL Section 753(4)

Summary:

Landlord brought an eviction proceeding against tenant for harboring dogs, keeping a washing machine in the apartment and creating a nuisance due to the dogs' conduct and the negligent operation of the washing machine. The lease prohibited harboring dogs and keeping a washing machine. The Court dismissed the landlord's claim for harboring the dogs, because the landlord did not commence the proceeding within three months after landlord learned that tenant was keeping the dogs. After considering the evidence presented at trial, the court found that the dogs did not constitute a nuisance. There was only one isolated instance of objectionable behavior: the dog urinated in front of the building. However, the tenant immediately cleaned up after the dog with soap and water. The Court said that a nuisance involved a continuing course of conduct, and this was only one isolated event. An isolated event cannot be considered a nuisance, unless the incident causes serious injury to a person or damage to property. The landlord failed to prove that the dogs constituted a nuisance. In addition, the landlord argued that tenant's pit bulls are inherently dangerous animals. The Court refused to consider this argument, because the landlord did not raise this issue in the predicate notice (the notice to cure). The evidence at trial indicated that tenant had been keeping a washing machine in the apartment for eight years and that landlord knew about it. By accepting rent for eight years while he knew about the washing machine, the landlord waived his right to object on the basis that keeping a washing machine is a lease violation. In addition, a lease violation is a breach of contract claim and the statute of limitations is six years. For these reasons, the Court would not order tenants to remove the washing machine. However, the Court found that the manner in which tenant operated the washing machine was a nuisance in that it frequently overflowed onto the floor and there was no filter to prevent suds and lint from entering into the building's waste lines. The Court therefor granted the landlord a judgment of possession but allowed the tenant a ten-day opportunity to cure by disconnecting the washing machine from the plumbing system and by discontinuing its use.

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Case Caption:

Rosenfeld and Pagan v. The New York City Rent Guidelines Board

Issues/Legal Principles:

Court orders Chairman of Rent Guidelines Report to give Board members a copy of the Movers and Renters Report within 48 hours, but reverses its earlier decision to enjoin implementation of Rent Guidelines Board Order Number 30.

Keywords:

rent guidelines board

Court:

Supreme Court, New York County

Judge:

Hon. York

Date:

August 5, 1998

Citation:

NYLJ, page 21, col 2

Referred Statutes:

The Rent Regulation Reform Act of 1997, Sections 1.03 and 2.10; NYC Administrative Code Sections 26-510(b), 26-610; RSC Section 2503.5; Public Officers Law Article 7

Summary:

In a decision which was published in the New York Law Journal on July 15, 1998 (see tenant.net summaries for the week of July 13-17, 1998), Justice York preliminary enjoined implementation of the most recent Rent Guidelines Board Order (Order Number 30) because the Chairman of the Rent Guidelines Board had refused to give the tenant members of the Board (plaintiffs Rosenfeld and Pagan) a copy of a "Movers and Renters" report. The Movers and Renters report compared the most recent rent stabilized rent before the Rent Regulation Reform Act of 1997 took effect with the rent stabilized rent after the Act took effect. In this most recent decision, the Court ordered the Chairman to release the Movers and Renters Report to the members of the Rent Guidelines Board within forty-eight hours. However, the Court vacated its earlier preliminary injunction against the implementation of RGB Order Number 30. The Court explained that Order Number 30 was scheduled to go into effect on October 1, 1998, and enjoining implementation would only cause disruption in the lease renewal process, confusion to tenants and unfairness to landlords who would not be able to "take advantage of the guidelines increases through no fault of their own." In addition, the Court noted that most members of the Rent Guidelines Board voted on Order Number 30 even though objections had already been raised about the Chairman's failure to release the Report.