Housing Court Decisions February 1998

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Case Caption:

Haberman v. Kunken

Issues/Legal Principles:

Subtenants cannot assert overcharge claims against landlord when subtenants were not a party to the lease nor paid rent directly to the landlord.

Keywords:

overcharges; subtenants

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Ruben Martino

Date:

February 24, 1998

Citation:

NYLJ, page 25, col 2

Referred Statutes:

RSC 2520.6(d)

Summary:

The tenants of record failed to appear and defaulted in the nonpayment proceeding. The court ruled that the subtenants have no right ("lack standing") to litigate claims of rent overcharges by landlord against the tenants since the subtenants were not parties to the lease between the landlord and tenants, and the subtenants did not pay rent to the landlord. The lower court's finding of an overcharge was reversed on appeal. The Appellate Term further held that the apartment was properly deregulated as a "high rent" apartment.

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Case Caption:

Prominence Realty Corp. v. Ramos

Issues/Legal Principles:

Tenant not required to deposit arrears which pertained to a retroactive rent restoration order; prior court orders prohibited collection of rent from other tenants for violations of common areas also pertains to this tenant.

Keywords:

rent deposits; collateral estoppel

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Douglas Hoffman

Date:

February 24, 1998

Citation:

NYLJ, page 25, col 1

Referred Statutes:

Multiple Dwelling Law 302-a(3)(c)

Summary:

In prior nonpayment proceedings against other tenants, residents of the same building, other courts had dismissed their petitions due to rent impairing conditions in the common areas which were not corrected until June 3, 1996. The landlord tried to collect rent from the tenants in this proceeding and the tenant argued that the landlord was collaterally estopped from collecting any rent from him before June 3, 1996. The lower court disagreed, but was reversed by the Appellate Term on grounds of collateral estoppel. The Appellate Term held that this tenant was not required to deposit the amount of rent sought in order to preserve his trial defenses because the material facts relating to the violations and correction of the underlying conditions were necessarily litigated and decided against the landlord in the prior cases. The Appellate Term also noted that it was not rent that was withheld by the tenant, but rather a lump sum attributable to a retroactive rent restoration order issued by the DHCR.

Notes:

The Appellate Term's dicta (i.e., side comments) in this case can perhaps be useful in the context of the new rent deposit law. The court distinguished between rent sought and "rent" owed in a lump sum from a retroactive rent restoration order. If tenants face court proceedings based on retroactive rent restoration orders, or analogous issues, it can be argued that these type of payments do not fall under the rubric of "rent" for the purposes of the new rent deposit law. Advocates of this issue should refer the court to Prominence Realty Corp. v. Ramos.

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Case Caption:

1665-75 Bryant Avenue Redevelopment Associates v. Montgomery

Issues/Legal Principles:

Tenant entitled to show she will return to apartment after her release from prison before landlord is permitted to recover the apartment in an unlawful sublet case.

Keywords:

sublets; incarceration

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Yalin Tao

Date:

February 24, 1998

Citation:

NYLJ, page 25, col 3

Referred Statutes:

CPLR 3025(b)

Summary:

The lower court denied landlord's summary judgment motion in this holdover proceeding based on alleged unlawful sublet. The court held that a question of fact existed as to whether or not the tenant intends to resume living at the apartment after her release from incarceration on the projected date of July 15, 1998. Also, the tenant's daughter has a potential succession rights claim.

Notes:

This case is important because it appears to hold that a tenant who is incarcerated cannot lose their apartment if they can show that they intend to return to the apartment upon their projected release from prison. There is no actual statute that protects a tenant's home from being taken away while they are incarcerated. In a succession rights case, the person claiming such right must show they resided in the apartment continuously with the tenant of record for two years (in a rent stabilized apartment). The law, however, enumerates certain exceptions to interrupt the two-year time period, such as service in the military and time spent full-time in school. Time served in prison is also counted as an interrupting factor under the statute. Previous to Montgomery, attorneys would argue that the succession rights law pertaining to imprisoned persons was analogous to incarcerated tenants who sublet their apartment. Now Montgomery appears to do away with having to make arguments by analogy to other statutes (as opposed to relying on prior case law) Although Montgomery is not equivalent to the succession rights law pertaining to interruption exemptions, the Court's holding is tantamount to an expansive cure period, while continuing to regard the situation as an unlawful sublet.

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Case Caption:

Lewis Morris Associates v. Rodriguez

Issues/Legal Principles:

Landlord failed to prove that tenant's pit bull was a nuisance and failed to timely commence the proceeding since tenant openly and notoriously harbored her dog.

Keywords:

pets; nuisance

Court:

Civil Housing Court, Bronx County

Judge:

Hon. Tao

Date:

February 25, 1998

Citation:

NYLJ, page 30, col 6

Referred Statutes:

Administrative Code of the City of New York 27-2009.1

Summary:

Landlord brought a holdover against the tenant on grounds that she violated a substantial obligation of her lease by harboring a pit bull who urinates and defecates in the building and who has attacked various residents when off a leash. The tenant moved into the apartment in April, 1996. On August 12, 1996, the landlord served a notice to cure, thereafter a notice of termination, and thereafter a notice of petition. On the date set for trial, the case was dismissed because the landlord was not ready to proceed to trial. The tenant was again served with the same set of papers, and the case was again dismissed because the landlord did not appear on the trial date. For the third time, on May 27, 1997, the tenant was served a notice to cure, and thereafter a notice of termination and notice of petition. The tenant moved to dismiss on grounds that the landlord failed to timely commence the proceeding within 3 months of learning of the dog. The court rejected tenant's argument, finding that the landlord acted diligently in commencing the proceeding. The landlord's prior inability to proceed was not excusable, but the court found it could not be interpreted as bad faith. Further, the court found the initial case was timely commenced if landlord did become aware of the dog in July, 1996 (apparently this was landlord's claimed date of knowledge). The court did, however, dismiss the petition on grounds that the landlord failed to substantiate by sufficient evidence or testimony that the allegations in the petition are true. The court also found that the tenant openly and notoriously harbored her dog and that the landlord's employees were aware of the dog's presence since the commencement of the tenant's occupancy. In this regard, the court found that the landlord failed to commence the proceeding within the statutory time period.

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Case Caption:

Leong v. Kwan

Issues/Legal Principles:

Condo owner who partitions and leases separate spaces in her unit must serve separate and distinct petitions for each tenant.

Keywords:

petitions

Court:

Civil Court, New York County

Judge:

Hon. Acosta

Date:

February 25, 1998

Citation:

NYLJ, page 29, col 6

Referred Statutes:

RPAPL 741(3); CPLR 3211(a)(2) & 1002(b); Civil Court Act 110(b); Multiple Dwelling Law 4(4)(7)

Summary:

The landlord owns a condominium apartment and brought a single holdover proceeding against the two tenants. Tenant Chong sought to dismiss on grounds that the petition fails to accurately describe the premises from which removal is sought. The petition describes the premises as Unit 5V at 50 Bayard Street. It describes the tenants as moving into the premises on the same date, yet Tenant Chong insists that she moved into the apartment a different date than Tenant Kwan. She also stated that there were four unrelated families living independently of each other in the apartment and that there were partitions erected to separate the families. The court concluded that Chong and Kwan clearly had separate leased space despite sharing common hallways. The petition failed to accurately set forth the differing interests of each tenant and thus the petition was dismissed. The court also noted that two respondents in one action can only be joined when the landlord's right to relief arises out of the same transaction, occurrence or series of transactions or occurrences. In light of the two separate and independent leasehold interests with distinct terms relating to subdivided portions of the apartment, the landlord was obliged to bring two separate proceedings.

Case Caption:

78/79 York Associates v. Rand

Issues/Legal Principles:

Tenant's claim for rent overcharge is not time-barred even though it was asserted more than four years after the initial overcharge; the overcharge is ongoing because tenant continues to pay rent in excess of the legal rent.

Keywords:

rent overcharge; four year statute of limitations; Rent Regulation Reform Act of 1997

Court:

Civil Court, New York County

Judge:

Hon. Timmie Elsner

Date:

February 18, 1998

Citation:

NYLJ, page 28, col 5

Referred Statutes:

CPLR Sections 213-a, 2221, 3211(a)(7) and 3212; RSC Sections 2522.4(a)(1), 2526.1

Summary:

Landlord sued tenant for nonpayment of rent; tenant filed an answer on October 3, 1995 including a counterclaim of rent overcharge. The tenancy began on August 5, 1991 at a monthly rent of $750.00 per month; whereas the legal rent registered by the prior landlord with the DHCR effective April 1991 was $267.45. The tenant alleged that this rent increase was illegal. However, since the rent increase took place more than four years prior to October 3, 1995 (the date of the tenant's counterclaim), the owner argued that the tenant's claim was barred by the four-year statute of limitations set forth in CPLR Section 213-a, as recently amended by the RRRA of 1997. CPLR Section 213-a, as amended by the Rent Regulation Reform Act ("RRRA") of 1997, states as follows: "An action on a residential rent overcharge shall be commenced within four years of the first overcharge alleged and no determination of an overcharge and no award or calculation of an award of the amount of any overcharge may be based upon an overcharge having occurred more than four years before the action is commenced. This section shall preclude examination of the rental history of the housing accommodation prior to the four-year period immediately preceding the commencement of the action." The court noted that the rent registration filed with the DHCR effective April 1, 1991 was never amended and remained in effect through March 30, 1992. The court found that it could examine this rent history because it is not more than four years old. Thus, the legal regulated registered rent as of October 1991 (four years prior to the tenant's counterclaim) was $267.45. The court therefore denied the landlord's motion to strike the tenant's overcharge counterclaim. In addition, the court rejected the owner's argument that the tenant's cause of action for overcharge accrued on August 5, 1991 (the date the tenant entered into the lease) and is therefore time-barred four years later. The court held that the cause of action for overcharge accrues on each occasion that the tenant pays rent in excess of the legal rent. Therefore, the cause of action accrues on an ongoing basis.

Notes:

This is the first case that challenges the new rent overcharge law. The judge makes a creative argument, but it probably won't fly with the appellate courts. The new statute is very precise and firm about holding to a four year period to examine or calculate the rent.

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Case Caption:

Aaros Realty LLC v. Clements

Issues/Legal Principles:

Court grants tenant's pre-answer motion to dismiss holdover proceeding because landlord vitiated termination notice by accepting rent; however court refuses to treat motion to dismiss as motion for summary judgment.

Keywords:

motion to dismiss; motion for summary judgment; holdover; illegal sublet

Court:

Civil Court, New York County

Judge:

Hon. Acosta

Date:

February 18, 1998

Citation:

NYLJ, page 28, col 5

Referred Statutes:

CPLR Sections 3211(a)(7) and 3212

Summary:

Landlord served tenant with notice of termination for illegal sublet but accepted rent from tenant prior to serving the notice of petition and petition. The tenant did not file an answer to the proceeding and instead made a motion to dismiss. The court granted the tenant's motion and dismissed the petition without prejudice. The service of the notice of termination ended the tenancy; the owner's acceptance of rent affirmed the landlord-tenant relationship and "vitiated" (contradicted) the notice of termination; since the petition alleged that the tenancy was terminated (although it had been revived by the acceptance of rent) the petition was dismissed. The tenant argued that the Court should treat its pre-answer motion to dismiss as a motion for summary judgment, and grant summary judgment for the tenant. Summary judgment for the tenant would mean that the landlord could not bring another eviction case against the tenant for the alleged illegal sublet. The Court refused the tenant's request to treat its motion to dismiss as a motion for summary judgment, because a summary judgment motion cannot ordinarily be made before an answer is filed.

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Case Caption:

Pomeroy Company v. Kyung-Wook Jang

Issues/Legal Principles:

Tenant was restored to possession after the eviction warrant was executed.

Keywords:

execution of warrant; restoration to premises; stipulations

Court:

Appellate Term, First Department

Judge:

lower court judge: Hon. Douglas E. Hoffman

Date:

February 20, 1998

Citation:

NYLJ, page 27, col 1

Referred Statutes:

none cited

Summary:

Tenant and landlord entered into a stipulation whereby tenant agreed to make payments on certain dates and landlord agreed to make certain repairs. However, the tenant's obligation to make payments were not dependent upon the landlord's obligation to make repairs. The stipulation apparently also provided that the a warrant of eviction may issue if the tenant failed to make any of the specified payments. When the landlord allegedly did not make a certain repair, the tenant withheld the second payment, which was a default pursuant to the terms of the stipulation. The landlord then obtained a warrant of eviction and the warrant was executed. The tenant was away on a business trip on the day the warrant was executed. On the same day the warrant was executed, the tenant's roommate made a motion before the court asking to be restored to the premises. The landlord argued that the apartment had already been rented to someone named Borrel and displayed a signed lease, but the trial court found that Borrel never took physical possession of the apartment and was an "illusory tenant." The trial court granted the tenant's motion to be restored to the apartment on the condition that tenant make the payments required by the stipulation. The appellate court affirmed the trial court's decision but modified it to require the tenant to pay the marshal's fees and the attorney's fees incident to the eviction.

Notes:

When you settle your nonpayment case in housing court, it's best if the stipulation you sign with the landlord conditions your obligation to make installment payments upon the owner's obligation to make repairs. Unrepresented tenants often don't understand the meaning of the stipulations they sign in housing court. Before you withhold a payment you are required to make pursuant to a stipulation, bring the stipulation to an attorney and get advice. If you can't afford an attorney, there are tenant clinics throughout the City where you can have a free consultation with an attorney. If you withhold a payment and you didn't have the right to do so, you may be evicted. This tenant was very lucky. He almost lost his apartment. If the landlord had already rented the apartment to a bona fide new tenant, the tenant may not have been restored to his apartment.

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Case Caption:

Alter v. Levenson

Issues/Legal Principles:

Landlord cannot prove that he would have obtained a higher rent because apartment was occupied by more than one person; landlord's fraud claim against tenant dismissed.

Keywords:

fraud; roommate law; occupancy limitations

Court:

Appellate Term, First Department

Judge:

lower court judge: Hon. Bernard Fuchs

Date:

February 20, 1998

Citation:

NYLJ, page 27, col 2

Referred Statutes:

RPL Section 235-f

Summary:

Landlord sublet a co-operative apartment to tenant, landlord did not return tenant's security deposit at the end of the term, tenant sued for the security deposit and landlord initiated an action against tenant alleging fraud and property damage. The alleged fraud was that tenant led landlord to believe that she would be occupying the apartment alone but she actually occupied the apartment with a companion and occasionally with her son, a college student. Landlord alleged that he would have charged a higher rent if he knew that more than one person would be occupying the apartment. The court dismissed the landlord's claim as speculative. The landlord couldn't show that he would have charged a higher rent if he knew that the apartment would have been occupied by more than one person. There is no proof that the rental rate was contingent on the number of occupants (the apartment was rented for the advertised price), the lease between the parties did not contain any occupancy limitations and furthermore occupancy limitations in a lease are prohibited by RPL Section 235-f[2]. The Court granted the tenant's motion for summary judgment and dismissed the landlord's action for fraud.

Case Caption:

Rose Associates v. Johnson

Issues/Legal Principles:

Tenant failed to pay use and occupancy in ongoing nonprimary residency case and lost the apartment for this reason, not on the merits of the case.

Keywords:

nonprimary residency; use and occupancy

Court:

Appellate Division, First Department

Judge:

lower court: Hon. Charles Ramos

Date:

February 9, 1998

Citation:

NYLJ, page 26, col 2

Referred Statutes:

none cited

Summary:

Landlord brought a nonprimary residency action in Supreme Court against tenant. Tenant was obliged through a prior order to pay ongoing use and occupancy (i.e., rent). Her failure to do so "permitted [landlord] to apply for appropriate relief, e.g., a money judgment or eviction or both." Tenant failed to pay the rent and a hearing was held. Tenant did not appear at the hearing and the special referee set the rent at a rate higher than the lease, since the apartment became deregulated by a DHCR order.

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Case Caption:

Grove Street Corp. v. Groat

Issues/Legal Principles:

Tenants periodic usage of vacation homes did not violate nonprimary residency laws.

Keywords:

nonprimary residency

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Marian Doherty

Date:

February 10, 1998

Citation:

NYLJ, page 25, col 2

Referred Statutes:

none cited

Summary:

The record showed that during the relevant time period the elderly tenants were active in several Manhattan-based community organizations and listed the apartment on important documents, including their tax returns, voters registration, and bank statements. The court concluded that the tenants did not abandon the apartment as their primary residence and they had a sufficient nexus to the New York apartment. The court further held that they did not establish a primary residence at either of the vacation homes they maintained and concededly visited.

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Case Caption:

Theoharidou v. Newgarden

Issues/Legal Principles:

Landlord appealed an overcharge award to tenant, but court now reverses due to new law which affects all pending cases, even appeals.

Keywords:

overcharges

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Margaret Taylor

Date:

February 10, 1998

Citation:

NYLJ, page 25, col 3

Referred Statutes:

RSL 26-516(a); Rent Regulation Reform Act of 1997 46(1)

Summary:

Tenant's overcharge claim was based upon an increase in the registered rent from $235.71 in 1984 to $670 in 1985, the year tenant commenced occupancy. The lower court granted tenant's motion for summary judgment, finding that landlord "failed to show any justification for the rent increase." The decision was made on October 29, 1996. Thereafter on June 19, 1997, the Legislature enacted Rent Regulation Reform Act of 1997 46(1) which provides that no calculation or award of an overcharge may be based on any overcharge occurring more than four years before an overcharge complaint is filed, and further that no examination of the rental history can take place beyond that four-year period. The new law was made effective on June 19, 1997 and was made applicable to any action or proceeding pending on June 19, 1997. Since the overcharge related to a 1985 unlawful rental increase, it was beyond the time period for consideration. Thus the Appellate Term was forced to reverse the lower court.

Notes:

Had the landlord not appealed the decision, the tenant would have been safe. However, the new law was passed during the appellate process. Thus, this case was still "pending" on June 19, 1997, making the new law applicable.

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Case Caption:

Venezia v. Beresford

Issues/Legal Principles:

Landlord required to install separate heating in tenant's apartment because tenant's heat is unlawfully controlled by a downstairs tenant.

Keywords:

warranty of habitability

Court:

District Court, Nassau County

Judge:

Hon. Gewanter

Date:

February 11, 1998

Citation:

NYLJ, page 31, col 1

Referred Statutes:

RPL 235-b

Summary:

Landlord brought a nonpayment proceeding against tenant who withheld rent when landlord failed to supply adequate heat and hot water. The apartment consists of a living room and kitchenette where heat is supplied by a radiator that is part of the heating system which primarily serves the downstairs tenant of the two family house. The other two rooms are supplied with electric baseboard heating units with turn-on switches controlled by the tenant. The tenant said that she refused to turn on the electric units out of concern for the costs, since she is responsible for electricity. The lease stated that the tenant was responsible for utilities and services, including electric, telephone and exterminating. The words gas, water, fuel and gardening were stricken out. A rider to the lease also had stricken a clause that tenant would pay a percentage of the heating and electric bill. The court noted the implication that the landlord would supply heat. When the tenant first inspected the apartment there was no discussion as to heat, but she assumed that heat was supplied by the landlord when she saw the radiator. After the landlord had overcharged the downstairs tenant with respect to heat, the downstairs tenant was permitted to install the meter in her own name. The downstairs tenant confirmed that her meter controls the tenant's heat and that she keeps it at 60 degrees. A City Inspector testified that on his visit to the premises he found the heat at 50 degrees when it was 30 degree outside. He also found the radiator as warm but not hot. The court found a violation of the warranty of habitability and awarded the tenant an abatement of $125 off her $525.00 monthly rent for three months. Further the court held that until the landlord supplies the tenant's apartment with its own heating and hot water supply, the tenant shall continue to deduct $125 off the monthly rent. The court did not hold the landlord liable to pay for electric heat in the other two rooms.

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Case Caption:

Penny Lane Owners Corp. v. Vinokur

Issues/Legal Principles:

Tenant given ten-day cure period to restore illegally altered apartment.

Keywords:

illegal alterations; post-judgement cure

Court:

Appellate Division, First Department

Judge:

lower court: Hon. Howard Malatsky

Date:

February 13, 1998

Citation:

NYLJ, page 30, col 1

Referred Statutes:

RPAPL 753(4)

Summary:

Tenant made extensive alterations to the apartment, including reconstructions of kitchen and bathroom, removal of kitchen ceiling, installation of new appliances and cabinets, replacement of bathroom plumbing and fixtures, demolishment and replacement of new staircase, and installation of an elevated plexiglass walkway connecting two previously separated areas of the second floor space. The lower court dismissed the petition on grounds that the alterations were merely aesthetic. The Appellate Division reversed holding that the tenant's actions materially changed the apartment's structure and substantially breached the "no alterations" clauses of the proprietary lease. Tenant was given a ten-day cure period to restore the apartment to its previous condition.

Notes:

This tenant lost the case on appeal and must undergo massive work to put the apartment back to its prior condition. The tenant is no doubt greatly aggrieved by the loss as the tenant surely valued the changes he made. However, this tenant must consider himself extremely lucky that the Appellate Division awarded him a cure period because many other illegal alteration cases have denied tenants such a cure period. The cure period will enable the tenant to keep his apartment. This tenant should make an order to show cause to the court requesting an enlargement of the cure period because surely the work needed to restore the apartment cannot be accomplished within a mere ten days. If the tenant can show that he is diligently curing, courts have granted tenants more time than just ten days to cure.

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Case Caption:

Lew Realty LLC v. Chiremba

Issues/Legal Principles:

Landlord not obliged to serve notice to cure before bringing nuisance action, although tenant would be entitled to a post-judgment cure period.

Keywords:

nuisance; notice to cure; post-judgment cure; jury waiver clause

Court:

Civil Housing Court, New York County

Judge:

Hon. Acosta

Date:

February 11, 1998

Citation:

NYLJ, page 26, col 4

Referred Statutes:

CPLR 3211(b); RSC 2524.3(b), Rent and Rehabilitation Law 26-408(2); NYC Rent and Eviction Regulation 2204.2(2); RPAPL 753(4)

Summary:

Landlord brought a nuisance holdover proceeding against the rent controlled tenant on grounds that he has denied the landlord access to inspect and make plumbing repairs and due to a "collier" type apartment, i.e., dangerously cluttered. The tenant sought dismissal of the petition for failure to service a notice to cure. The court agreed with the landlord that where the tenant is committing a nuisance, a notice to cure is not required. The tenant argued that the landlord's case lacked merit and his accumulation of numerous books and documents represents merely the amassing of the "tools" of his "trade" as a professor at Queens College. The court, however, held that service of a notice to cure is not dependent upon the likely merit of the alleged ground for eviction. The court held that a trial would determine if the landlord's case had merit, and in any event, the tenant would be entitled to a ten-day post-judgment cure period. The court also rejected tenant's argument that he was entitled to a jury because the initial jury waiver clause of the lease projected into the statutory rent controlled tenancy.

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Case Caption:

Rudd v. Devine

Issues/Legal Principles:

Where owner of building consists of several individuals, only one of them is entitled to recover apartments in the building based on owner occupancy claims.

Keywords:

owner occupancy

Court:

Civil Housing Court, New York County

Judge:

Hon. Ryp

Date:

February 11, 1998

Citation:

NYLJ, page 26, col 4

Referred Statutes:

RSC 2524.4(a); CPLR 3211; RPAPL 745

Summary:

The issue before this court in this owner occupancy holdover is whether owners in common can recover more than one rent stabilized apartment for personal use and occupancy under the Rent Stabilization laws. Landlord sought to recover tenant's apartment, but tenant claimed that landlord already recovered another apartment in the building for personal usage and must be barred from recovering a second apartment. The landlord claimed that the tenant in that proceeding voluntarily surrendered possession through a court stipulation, and this outcome did not count as an apartment recovered by the owners under owner occupancy laws. The court rejected the landlord's claim because the statute only permits one owner, not several, to recover an apartment in a building.

Notes:

The facts and holding in this case were not articulated very well. It appears as if the owner of this building consisted of several owners holding a tenancy in common (a type of ownership involving several people). The court seemed to be saying that if one individual owner was going to occupy the surrendered apartment, that same individual owner would also have to occupy this tenant's apartment. Reading between the lines, it appeared as if another individual owner was planning to occupy this tenant's apartment. The law permits an owner to recover more than one apartment in a building, but only one individual among the owner(s) can receive that benefit; it can't be split between them.

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Case Caption:

Dawkins Inc. v. Marks

Issues/Legal Principles:

Trial needed to determine if subtenant was a commercial tenant or a Stabilized tenant.

Keywords:

mixed usage; use and occupancy

Court:

Civil Court, New York County

Judge:

Hon. Donna Mills

Date:

February 11, 1998

Citation:

NYLJ, page 26, col 3

Referred Statutes:

CPLR 3212(e) RPAPL 741; RPL 232-c

Summary:

The prime tenant entered into a lease to occupy the first and second floors in the building as a commercial tenant. He used the first floor as a show room for his jewelry and initially used the second floor as an office space. Thereafter, he decided he didn't need the second floor and he located a subtenant to lease that floor. He claims the subtenant knew it was commercial space from the beginning. Thereafter he brought a holdover against the subtenant on grounds that the subtenant installed a shower and had begun to live there. The subtenant claims that despite a lease clause between them specifying a commercial lease, the prime tenant knew he lived there and he was thus a Rent Stabilized tenant. He further argued that a 30 day notice of termination served on him was contrary to the Rent Stabilization laws. He also argued that the prime tenant was an illusory prime tenant and overcharged him above the legal registered rent. The court observed that neither party attached a copy of the certificate of occupancy or any DHCR registration papers to ascertain the status of the premises. Thus, the court denied the motion to dismiss and reserved the issues for trial. In the interim, the court directed the subtenant to pay outstanding use and occupancy at the sublease rate of $2000 per month.

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Case Caption:

1552-75-82 President Street Realty Corp. v. Hudson

Issues/Legal Principles:

Tenants who timely failed to sign lease tendered in settlement agreement are permitted to sign lease belatedly since they all along paid increased rent.

Keywords:

leases; cure of default

Court:

Civil Housing Court, Kings County

Judge:

Hon. Peter Wendt

Date:

February 11, 1998

Citation:

NYLJ, page 29, col 5

Referred Statutes:

RPAPL 753(4); CPLR 2005

Summary:

Landlord brought a holdover proceeding against tenant on grounds that she did not occupy the apartment as her primary residence and was unlawfully subletting to another person without landlord's permission. The alleged subtenant was the tenant's daughter's friend. The case settled in 1995 by a stipulation which provided for the execution of a two year lease between the landlord and the tenant's daughter (who sought succession rights) and her friend, the subtenant. It appears as if the tenants did not timely sign the lease and pay the security deposit, due initially to disputes in its terms, and thereafter due to their attorney's own delay. In the meantime the tenants continued to pay the monthly rent. The tenants argued that despite their failure to timely sign the lease and pay the security deposit, the law provides them a ten- day cure period. The landlord argued that the statute is not applicable because it pertains to a breach of a lease, not a breach of a stipulation whose terms provided the time period for signing the lease. Further, their failure to sign the lease precludes them from being tenants at all, and thus not capable of receiving the benefit of a ten-day cure period. The court held that the stipulation failed to provide for a remedy if either side breached the stipulation. The court found that although the lease was never formalized, its underlying terms were set forth in the stipulation and the tenants abided by those terms for the past two years, i.e., paying the monthly rent at the increased rental despite the fact that the new lease (with increased rental) was not signed. The court held that the landlord was not prejudiced since it received the benefit of the increased rent. The court excused the tenants from their default on grounds of law office failure since their attorney admitted that his delay led to the default. The court held that the signing of the lease was a mere formality since the parties had throughout the two years otherwise engaged in a landlord-tenant relationship.

Case Caption:

New York City Housing Authority v. Boney

Issues/Legal Principles:

One-time sale of illegal drugs to an undercover detective does not entitle landlord to a judgment of possession.

Keywords:

holdover proceedings; use of apartment for illegal business

Court:

Civil Court, Kings County

Judge:

Hon. Gus Reichbach

Date:

February 3, 1998

Citation:

NYLJ, page 29, col 5

Referred Statutes:

RPAPL Section 711(5), 715(1) and 721(8)

Summary:

The New York City Housing Authority (landlord) brought an eviction proceeding against tenant pursuant to RPAPL Section 711(5), alleging that tenant's apartment was being used for the illegal sale of drugs. At the trial, the landlord was only able to prove that tenant sold one vial of cocaine on one occasion to an undercover detective. Immediately after the sale, the detective searched the apartment pursuant to a warrant and found a glass pipe in the possession of tenant's friend, one vial of crack cocaine in tenant's bedroom and the marked $5.00 bill that the undercover detective had used to buy the crack vial. The judge found that the facts proven by the landlord were consistent with personal drug use. The judge also found that the sale appeared to be a one-time event, because the search did not turn up any of the indicia of a commercial drug operation (paraphernalia, packaging materials, measuring and cutting devices, beepers, records, large amounts of cash, weapons). The statute prohibits the buying and selling of drugs from an apartment on an ongoing basis. The Court therefore dismissed the petition and entered judgment for the tenant.

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Case Caption:

New York City Housing Authority v. Ward

Issues/Legal Principles:

Tenant is evicted because others are using her apartment for the sale of illegal drugs.

Keywords:

holdover proceedings; use of apartment for illegal business

Court:

Civil Court, Kings County

Judge:

Hon. Gus Reichback

Date:

February 3, 1998

Citation:

NYLJ, page 29, col 6

Referred Statutes:

RPAPL Section 715(1), 711(5), 721(8)

Summary:

The New York City Housing Authority (landlord) brought an eviction proceeding against tenant pursuant to RPAPL Section 711(5), alleging that tenant's apartment was being used for the illegal sale of drugs. The landlord presented proof that undercover agents had purchased illegal drugs from someone inside the apartment on three separate occasions and executed a search warrant on a fourth occasion, when 18 vials of crack cocaine were thrown from the apartment window, as observed by a security guard below. Although there was no proof that the respondent-tenant was personally involved in these sales, or that she actually knew about the sales, such proof is not required in order to evict tenant. The circumstances show that it is more likely than not that respondent was simply indifferent to the illegal activity of others in her apartment, rather than "pardonably ignorant." Tenant knew or reasonably should have known that her apartment was being used for illegal drug sales. The Court granted a final judgment of possession to the landlord and evicted tenant.

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Case Caption:

Negron v. Goldman

Issues/Legal Principles:

The initial legal regulated rent for a rent stabilized apartment may not be based upon the rent charged to a prior commercial tenant.

Keywords:

rent overcharge; statute of limitations; attorney's fees

Court:

Civil Court, New York County

Judge:

Hon. Ling-Cohan

Date:

February 4, 1998

Citation:

NYLJ, page 26, col 2

Referred Statutes:

RSC Section 2526.1; New York City Civil Court Act Section 202; CPLR Section 3212(b); CPLR Section 105(u); RSC Section 26-517(e)

Summary:

Residential tenants commenced a civil court action alleging that they have been overcharged since April 1, 1991. The landlord asserted an affirmative defense based upon the four-year statute of limitations. However, the landlord did not file its initial (1984) registration statement until 1996. The court dismissed the landlord's affirmative defense, holding that the statute of limitations did not begin to run until the landlord filed the initial registration statement in 1996. The Court granted the tenant's motion for summary judgment and found that the landlord had overcharged the tenant, because the initial legal regulated rent was incorrectly based upon the rent charged to the commercial tenant ($900.00) who occupied the apartment from 1985 to 1991, just before the plaintiff (residential tenant) took occupancy. The initial legal regulated rent should have been based upon the rent charged to the last residential tenant ($403.60). The rent charged to a commercial tenant may not be used to calculate the base rent for the next residential tenant.

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Case Caption:

564 Morgan Avenue Corp. v. Santos

Issues/Legal Principles:

The Court will not order a rent deposit pursuant to the new rent deposit law if one of the two adjournments was required by the landlord as well as the tenant; application for a rent deposit cannot be granted unless at least 30 days after the parties first appeared in court together.

Keywords:

rent deposit law

Court:

Civil Court, Kings County

Judge:

Hon. Jacobson

Date:

February 4, 1998

Citation:

NYLJ, page 30, col 4

Referred Statutes:

Rent Deposit Law (RPAPL Section 745)

Summary:

The landlord applied for the deposit of one month's rent with the court 29 days after the case was first placed on the court's calendar and after the case had been adjourned two times. The Rent Deposit Law allows the landlord to make an application for a rent deposit if at least 30 days have elapsed since the landlord and the tenant first appeared in court together or the tenant has asked the Court for a second adjournment. The Court denied the landlord's application, finding that although the first adjournment was requested by the tenant, the petitioner was also not ready to proceed on that day because the petitioner was not even in court. Thus, the adjournment was not granted solely because the tenant was not ready. Since the landlord's application for a rent deposit was made 29 days after the case first appeared on the Court's calendar - rather than after 30 days - the Court would not order the tenant to make a rent deposit.

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Case Caption:

Achim Bros. LLC v. Nelson

Issues/Legal Principles:

In nonpayment proceeding brought against tenant, where tenant's defense is that the warranty of habitability has been breached by noisy tenant in apartment above, the court denies the landlord's application to join the noisy tenant as a third-party respondent to the nonpayment proceeding.

Keywords:

jurisdiction; noise

Court:

Civil Court, Kings County

Judge:

Hon. Peter Wendt

Date:

February 4, 1998

Citation:

NYLJ, page 30, col 5

Referred Statutes:

RPAPL Article 7; NYCCCA Section 110; HMC Section 27-2120 and 2121; RSC Section 2524.2(c)

Summary:

Landlord brought nonpayment proceeding against tenant. In defense, tenant alleged a breach of the warranty of habitability based upon the noise created by the tenant living directly above her. Landlord made a motion to join the noisy tenant as a third-party respondent, so that it could ask the court for injunctive relief against the noisy tenant (that is, so that the court could order the noisy tenant to stop making noise) and for indemnification (that is, so that the court could order the noisy tenant to pay money to the landlord in an amount equal to the abatement which the court may award to tenant). The Court denied the motion, explaining that the housing court's jurisdiction is limited. The housing court does not have the authority to hear a landlord's claims for indemnification against a tenant; neither does the housing court have the authority to grant injunctive relief against a tenant. The landlord may commence a separate proceeding against the noisy tenant, seeking her eviction on the grounds of nuisance, but only after the landlord serves the noisy tenant, who is rent stabilized, with all of the predicate notices required by the rent stabilization laws (that is, a notice to cure and a notice of termination).

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Case Caption:

Jerome v. Famby

Issues/Legal Principles:

An action for rent (or any other debt) must demand all unpaid installments; bringing two or more separate actions for unpaid installments, which is called splitting a cause of action, is not permitted.

Keywords:

splitting a cause of action; actions for unpaid rent

Court:

City Court, Mount Vernon

Judge:

Hon. Seiden

Date:

February 4, 1998

Citation:

NYLJ, page 32, col 2

Referred Statutes:

none cited

Summary:

The plaintiff (landlord) brought an action against tenant (who vacated premises in April 1997) for unpaid rent for the months of October 1996, November 1996 and April 1997 and obtained a judgment, in small claims court, for $1,815.00. Then the landlord brought a second small claims action against the tenant for unpaid rent for the months of December 1996, January, February, May and June 1997. Apparently, the landlord did not bring both actions at the same time because the court's judgment would have exceeded $3,000.00, which is the jurisdictional limit of the small claims court. The Court dismissed the second proceeding, because the landlord was attempting to "split a cause of action." An action for rent (or any other debt) should ask for all installments which have not been paid; if all installments are not requested, the Court may dismiss a later claim for recovery of the unpaid installments.

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Case Caption:

New York City Housing Authority v. Winkler

Issues/Legal Principles:

The Housing Authority's failure to allege, in a holdover petition, that it had conducted an administrative proceeding does not require reversal of the judgment of eviction.

Keywords:

Housing Authority; licensee holdover; family member

Court:

Appellate Term, Second Department

Judge:

lower court judge: Hon. S. Hoahng

Date:

February 4, 1998

Citation:

NYLJ, page 29, col 2

Referred Statutes:

24 Code of Federal Regulations ("CFR") Ch. IX, part 966, Subpart B, Section 966.53[f]; CPLR Section 3026

Summary:

The New York City Housing Authority brought a holdover (eviction) proceeding against respondents, who remained in possession of the apartment after the tenant of record died. Prior to commencing court proceedings, and as required by federal regulations, the Housing Authority conducted an administrative proceeding in order to allow the respondents to prove that they were entitled to remain in possession of the apartment because they were family members of the deceased tenant. After the respondents failed to prove their family member status at the administrative proceeding, the landlord served them with a ten-day notice to quit and then a notice of petition and petition. The petition alleged that respondents were licensees whose license expired upon the death of the tenant of record. The trial court granted the landlord's petition and awarded possession to the landlord. The respondents appealed, arguing that trial court should not have granted judgment for the landlord because both the ten-day notice and the petition were defective. The ten-day notice and the petition should have alleged that the required administrative proceeding was conducted by the Housing Authority and that the Housing Authority found that the respondents did not prove that they were family members of the deceased tenant. The appellate court held that the landlord's failure to make this allegation does not require reversal, because the administrative proceeding was in fact conducted, all the facts about the proceeding were introduced at the trial and the respondents suffered no prejudice because of the landlord's failure to make this allegation. The appellate court applied CPLR Section 3026 and found that the pleading (the petition) would be treated as if it had been amended to conform to the proof. The trial court's judgment of possession for the landlord was affirmed.