Housing Court Decisions June 1998

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Case Caption:

Rego Estates, A Partnership v. Lillian

Issues/Legal Principles:

Elderly rent-controlled tenant defeats nonprimary residence case notwithstanding the fact that she purchased a condo in Florida four years ago, she applied for and received the benefit of a homestead exemption in Florida and, on one occasion, she voted in Florida.

Keywords:

primary residence; nonprimary residence; holdover proceedings

Court:

Appellate Term, 2nd Dept.

Judge:

lower court judge: Hon. Grayshaw

Date:

June 23, 1998

Citation:

NYLJ, page 33, col 3

Referred Statutes:

none cited

Summary:

The lower court granted possession of the apartment to the landlord in its eviction proceeding against the rent-controlled tenant on the grounds of nonprimary residence and the appellate court reversed. The tenant is 81 years old, has lived in the rent-controlled apartment for 28 years and spends winters in Florida. She does not sublet her New York apartment while she is gone, she does not turn off the utilities or remove the furniture, her mail comes to New York and is forwarded to Florida, her pension and social security checks are deposited directly into a New York bank account, her credit card bills come to New York, her burial plot is in New York and her only son lives in the New York area. The appellate court found that under these circumstances the tenant has maintained an ongoing physical nexus with the subject premises for actual living purposes. The court made this finding notwithstanding the fact that she purchased a condo in Florida four years ago, she applied for and received the benefit of a homestead exemption in Florida and, on one occasion, she voted in Florida. The fact that she may have spent more than 183 days in Florida in the preceding year is relevant but not determinative.

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Case Caption:

Goldman v. Sears-Robbins

Issues/Legal Principles:

Court grants rent abatement of 75% to tenants who suffered from noxious fumes from the dry-cleaning store located directly below their apartment.

Keywords:

nonpayment proceeding; rent abatement; warranty of habitability; constructive eviction; partial constructive eviction; fumes; dry-cleaning store; covenant of quiet enjoyment; retaliatory eviction; attorney's fees

Court:

Civil Court, New York County, Housing Part

Judge:

Hon. Walter Strauss

Date:

June 24, 1998

Citation:

NYLJ, page 26, col 3

Referred Statutes:

6 NYCRR Section 232; RPL Section 235-b; RPL Section 223-b(5)

Summary:

This case was re-printed in the New York Law Journal. It was initially printed the week of June 22-26. See posting for that date for summary of case.

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Case Caption:

Bonsigore v. DeBove, Inc.

Issues/Legal Principles:

Court dismissed the nonpayment proceeding because the three-day notice included claims for money that tenant was obligated to pay pursuant to a stipulation of settlement of an earlier nonpayment proceeding.

Keywords:

non-payment proceeding; three-day notice; predicate notice; dismissal

Court:

Civil Court, New York County

Judge:

Hon. Ling-Cohan

Date:

June 24, 1998

Citation:

NYLJ, page 26, col 5

Referred Statutes:

CPLR Section 408, 3026 and 3212; RPAPL Section 711(2)

Summary:

Landlord served tenant with a three-day notice demanding payment of a certain amount of rent or vacatur of the premises by a date certain. The rent demanded in the three-day notice included a sum which tenant had agreed to pay in a stipulation which settled a prior nonpayment proceeding. The stipulation in the prior proceeding specifically stated that the landlord was barred from commencing a second eviction proceeding to collect the amount due under the terms of the stipulation. The notice of petition and petition for nonpayment of rent alleged tenant's failure to pay the rent demanded in the three-day notice. The court found that the three-day notice was not proper because it demanded payment of certain sums which constitute a debt owed pursuant to the prior stipulation of settlement. A nonpayment petition which is predicated upon an improper three-day notice must be dismissed. The landlord asked the court for permission to amend the defects in the three-day rent demand pursuant to CPLR Section 3026. The court ruled that although CPLR Section 3026 permits an amendment to a petition, it does not permit an amendment to a predicate notice, such as a three-day notice. The Court granted the tenant's motion to dismiss the proceeding based upon the landlord's failure to serve a proper rent demand as required by RPAPL Section 711(2).

Notes:

Although this case was brought against a commercial tenant, its legal holding applies equally to cases brought against residential tenants.

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Case Caption:

Washington Associates v. Torres

Issues/Legal Principles:

A holdover petition which fails to allege the rent regulatory status of the subject premises, in a precise and clear manner, must be dismissed.

Keywords:

dismissal; inadequate pleading; rent control

Court:

Civil Court, Kings County, Housing Part

Judge:

Hon. Bruce Kramer

Date:

June 24, 1998

Citation:

NYLJ, page 30, col 4

Referred Statutes:

CPLR Sections 3211 and 3212; RPAPL Section 741(4); RSC Section 2520.11; NYC Admin. Code Section 26-403(2)(k)(3)

Summary:

Landlord brought a holdover (eviction) proceeding against tenant alleging that tenant is a month-to-month tenant whose tenancy was terminated by a thirty-day notice. The petition stated that the tenant was not subject to rent control because the building in which the premises was situated contained less than six units. The tenant moved to dismiss the petition because it did not adequately set forth the facts upon which the proceeding is based, as required by RPAPL 741(4). One of the facts upon which the proceeding is based is the rent regulatory status of the premises. The tenant argued that the petition did not explain why the landlord alleged that the premises is not subject to rent control. The court agreed with tenant and dismissed the case. An apartment may be subject to rent control even if it is in a building which contains less than six units. The applicability of rent control has to do with the duration of a tenancy. A tenancy which commenced prior to June 30, 1971 in a building which contains three or more units is subject to rent control. A tenancy which commenced prior to April 1, 1953 in a one or two family house may be subject to rent control. The petition must be dismissed because it fails to explain why the landlord believes the premises is not subject to rent control. This omission is especially glaring in this case because the tenant claims to have commenced occupancy in June 1971.

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Case Caption:

Leeari Realty Corp. v. Seward

Issues/Legal Principles:

When a nuisance holdover proceeding is based upon conduct of tenant which threatens the safety of other occupants, the landlord need not serve a notice to cure prior to commencing the proceeding.

Keywords:

notice to cure; holdover proceeding; nuisance

Court:

Appellate Term, 2nd Dept.

Judge:

lower court judge: Hon. Ernest Cavallo

Date:

June 25, 1998

Citation:

NYLJ, page 33, col 2

Referred Statutes:

none cited

Summary:

The lower court judge granted the tenant's motion to dismiss but the appellate court reversed. Landlord commenced a holdover proceeding against tenant alleging that tenant was engaging in conduct which threatened the safety of other tenants and caused the destruction of landlord's property. Landlord did not serve a notice to cure upon tenant prior to commencing the holdover proceeding even though the lease required a ten-day notice to cure if tenant engaged in improper conduct which annoyed other tenants. The appellate court differentiated between annoying conduct and conduct which threatened the safety of other tenants or caused the destruction of landlord's property. Although the case did not state what unlawful conduct the tenant allegedly engaged in, apparently it was of the second type since the appellate court ruled that no notice to cure was necessary.

Case Caption:

Goldman v. Sears-Robbins/Robins

Issues/Legal Principles:

Tenants' rent is abated by 93% due to toxic fumes from dry cleaners located on ground floor of tenants' building

Keywords:

constructive eviction; warranty of habitability; quiet enjoyment; abatements

Court:

Civil Housing Court, New York County

Judge:

Hon. Walter Strauss

Date:

June 15, 1998

Citation:

NYLJ, page 30, col 3

Referred Statutes:

6 NYCRR 232; RPL 235-b

Summary:

The tenants of two separate apartments complained to the landlord of toxic fumes emanating from the dry cleaners store located on the ground floor of their building. The chemicals consisted of perchlocoethylene ("perc") as a solvent for cleaning apparel. The dry cleaner had been in the building for sixty years and had always used perc. The landlord made some effort to fix the perc leaks, but not sufficiently to abate the problem. Eventually, in the fall of 1996, the City Health Department closed the dry cleaners down. The tenants withheld rent, the landlord brought a nonpayment proceeding and the tenants counterclaimed for breach of warranty of habitability, constructive and actual eviction, and breach of quiet enjoyment. The trial began in March, 1997 and ended almost a year later in February, 1998. At trial the tenants testified as to the illnesses and discomforts they sustained arising from perc (one tenant was pregnant at the time), the number of occasions they were forced to physically vacate the apartment, and had a State health official testify as to the dangers of perc. The landlord called no witnesses, but merely tried to argue that the effects of fumes on tenants were minor inconveniences. The court held for the tenants and awarded them each a 93% abatement for their claims. Since the abated rent exceeded the amount of rent due, the tenants were given a judgment against the landlord for the excess amount.

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Case Caption:

247 West 11th Street Realty Assoc v. Houser

Issues/Legal Principles:

Landlord who purchases building at foreclosure is not liable for rent overcharges incurred by prior landlord.

Keywords:

overcharges; foreclosure

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Saralee Evans

Date:

June 16, 1998

Citation:

NYLJ, page 25, col 1

Referred Statutes:

9 NYCRR 2526.1(f)(2)

Summary:

In a nonpayment proceeding the tenant sought to offset a DHCR rent overcharge award won against the previous landlord. The present landlord bought the building after a judgment of foreclosure and judicial sale as assignee of the foreclosing mortgagee. The lower court allowed the tenant to deduct the award from the rent owed to the present landlord. The Appellate Term reversed on grounds that the Rent Stabilization Code contains an exemption from carry-over liability for rent overcharges where the current owner purchased at a judicial sale and "no records sufficient to establish the legal regulated rent" were provided at such sale. The Appellate Term rejected the lower court's finding that the current landlord received records at the judicial sale which were sufficient to establish the legal regulated rent or apprise the current landlord of the prior rent overcharge at the time the current landlord took title. Justice Helen Freedman dissented on the point that there were sufficient records of the overcharge that the current landlord should have been put on notice. In light of the available records, Justice Freedman would have shifted the burden back to the landlord to prove lack of notice and absence of collusion.

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Case Caption:

Masbel Realty Corp. v. Birnbaum

Issues/Legal Principles:

Housing Court retains jurisdiction over post-judgment attorney's fees claims.

Keywords:

attorney's fees

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Arthur Birnbaum

Date:

June 16, 1998

Citation:

NYLJ, page 25, col 3

Referred Statutes:

none cited

Summary:

Landlord won the housing court case against the tenant and also won attorney's fees in the amount of $12,376. Tenant made a motion to the court below to vacate the attorney's fees judgment which was denied. Tenant appealed the denial and the appeal was denied as well. Landlord then sought attorney's fees based on the tenant's motion and the appeals. The Appellate Term held that the lower court retained jurisdiction over landlord's new fees arising out of the motion and the appeal and that "fees on fees" were permissible (i.e., attorneys' fees incurred in seeking attorney's fees). The appellate court, however, ruled that the award of $16,375 was higher than the initial award and reduced the landlord's fees to $7,500. The court held that the attorney's records were faulty, such as illegible and not kept contemporaneously, and noted that the work and time expended was not commensurate with the simple issues involved in defending the initial award for fees, as exemplified by a 50 page brief on appeal.

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Case Caption:

Matter of Gelston v. New York State DHCR

Issues/Legal Principles:

Tenant overcharge claim filed in 1990 seeking overcharges from 1985-1990 is dismissed based on the 1997 new rent law which allows an examination of rental history only four years prior to the filing of an overcharge complaint.

Keywords:

overcharges

Court:

Supreme Court, Queens County

Judge:

Hon. Milano

Date:

June 17, 1998

Citation:

NYLJ, page 32, col 6

Referred Statutes:

CPLR 213-a; RPL 234; 42 USC 1983; Rent Regulation Reform Act of 1997 26-516(a)

Summary:

The tenants took occupancy on April 1, 1985 and on June 12, 1990 filed an overcharge complaint. The prior owner submitted the complete rental history of the apartment and rebutted that not only was there no overcharge, but that due to extensive renovations the tenants were actually undercharged. The DHCR found by order dated January 24, 1994 that the legal regulated rent was $1,088.52, effective April 1, 1993 and froze the from December, 1985 to June, 1993 tenant at $760 per month due to the owner's failure to serve the tenant with an amended initial registration form in 1985. The DHCR found overcharges of $14,310. The tenants filed a PAR (an appeal) stating that the figures were erroneous based on a prior DHCR decision in another proceeding. The landlord also filed a PAR on grounds that the order should be reversed because there were no overcharges. The owner also asserted that the complaint should have been dismissed due to the Rent Regulation Reform Act of 1997. The owner also served the tenants with an amended registration form. The court ruled that the new rent law precluded any examination of rental history beyond the four-year period prior to the filing of the complaint. For these tenants, this meant that they could not recover overcharges because the rental history could not be examined prior to June 12, 1986, and the DHCR was wrong to base an award on events which occurred more than four years prior to the filing of the rent overcharge. The tenants argued that the new rent law was unconstitutional because the new law affects all cases, even those that were initiated before the law was passed. The court dismissed this claim on grounds that the new law is valid.

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Case Caption:

Gonzalez v. Peterson

Issues/Legal Principles:

Keywords:

nuisance

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Arlene Hahn

Date:

June 19, 1998

Citation:

NYLJ, page 25, col 6

Referred Statutes:

RPAPL 711(1); 9 NYCRR 2204.2(a) & 2524.2(b)

Summary:

Landlord brought a holdover against the tenants on grounds of nuisance by service of a thirty day notice terminating the tenancy. Tenants had obtained a lease through a prior stipulation of settlement and the lease stated it was "deemed automatically renewed for subsequent two-years terms. The lease did not contain a provision "giving the landlord the right to terminate the time fixed for occupancy . . . if the landlord deems the tenant objectionable." The appellate court reversed the lower court's granting the landlord a possessory judgment on grounds that the parties' lease did not permit summary termination of the tenancy if the landlord deemed the tenants objectionable, or for any other reason. Absent such a lease provision, the landlord lacked authority to terminate the tenancy. Since the premises are not subject to rent regulation (there are only four units in the building), the court observed that the landlord could not rely upon any rent control or rent stabilization nuisance provisions. Although this legal argument was not raised at the trial court, the appellate court held that this jurisdictional issue may be raised on appeal given that there should have been no holdover proceeding to begin with since the landlord did not have legal grounds under the lease to commence one against the tenant on nuisance grounds. Justice William McCooe dissented, stating that he regarded the lower court as having jurisdiction, and further, that since the issue was not raised at trial, it must be deemed waived and not one that the tenant could introduce for the first time on appeal.

Case Caption:

Wittenberg v. Ortega

Issues/Legal Principles:

Daughter of rent-stabilized tenant, who continuously and primarily resided with mother for more than two years prior to mother's permanent vacature of premises, has succession rights.

Keywords:

succession rights; holdover proceeding; nonprimary residence

Court:

Appellate Term, First Department

Judge:

lower court judge: Hon. Anne Katz

Date:

June 9, 1998

Citation:

NYLJ, page 25, col 1

Referred Statutes:

RSC Section 2523.5[b][1]

Summary:

Landlord brought nonprimary residence proceeding against rent-stabilized tenant Ortega. Although Ortega permanently vacated the apartment in 1992, Ortega's daughter proved that she continuously and primarily resided in the apartment with her mother since 1983, a period of more than two years. The Rent Stabilization Code ("RSC") provides that a family member of a rent stabilized tenant is entitled to the issuance of a renewal lease in his or her own name (that is, succession rights) if he or she has continuously and primarily resided in the apartment for a period of at least two years prior to the death or permanent vacature of the rent stabilized tenant. The trial court denied the landlord's petition to evict Ortega's daughter and the appellate court affirmed.

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Case Caption:

49-50 Second Associates v. Meyers

Issues/Legal Principles:

Tenant is not entitled to receive a notice to cure prior to Landlord's commencement of a holdover (eviction) proceeding based upon chronic nonpayment of rent.

Keywords:

holdover proceedings; substantial obligation of tenancy; chronic nonpayment of rent; notice to cure

Court:

Civil Court, New York County

Judge:

Hon. Martino

Date:

Wednesday June 10, 1998

Citation:

NYLJ, page 28, col 6

Referred Statutes:

RSC Section 2524.3(a)

Summary:

Landlord brought a holdover (eviction) proceeding against tenant alleging chronic nonpayment of rent, which is a violation of a substantial obligation of the tenancy. Tenant moved to dismiss the proceeding because Landlord did not serve Tenant with a notice to cure prior to commencing the proceeding. The purpose of a notice to cure is to give Tenant an opportunity to take action to correct a violation of the tenancy, for example, by removing an unauthorized washing machine, and thereby avoid forfeiting the tenancy. However, in the case of chronic nonpayment of rent, a notice to cure is not required because it would serve no useful purpose - the alleged violations took place in the past and the tenant could do nothing to correct them. Therefore the Court denied the Tenant's motion to dismiss and scheduled a trial.

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Case Caption:

Flagg Court Realty Co. v. Holland

Issues/Legal Principles:

DHCR's decision of rent overcharge - based upon Landlord's failure to provide DHCR with the apartment's rent history covering a period prior to Landlord's ownership - is upheld by the reviewing court.

Keywords:

rent overcharge; Article 78 proceedings; rent history; prior owner

Court:

Supreme Court, Kings County

Judge:

Hon. Justice Belen

Date:

Wednesday June 10, 1998

Citation:

NYLJ, page 31, col 1

Referred Statutes:

CPLR Article 78

Summary:

Tenant filed a rent overcharge application with the DHCR. The DHCR then asked the Landlord to provide copies of leases and rent records for the subject apartment for a certain period of time. Landlord informed the DHCR that it was unable to comply with this request because Landlord did not own the building at the time. The DHCR would not accept the Landlord's excuse and, after repeated warnings, made a finding of rent overcharge. The DHCR also denied Landlord's Petition for Administrative Review ("PAR"). The Landlord then brought an Article 78 proceeding in Supreme Court challenging DHCR's denial of the PAR. The Supreme Court upheld the DHCR's PAR decision because the decision had a rational basis and was not arbitrary and capricious. The Landlord's failure to provide the DHCR with a complete rent history is a rational basis for DHCR's determination of rent overcharge. The fact that the Landlord did not obtain rent records from the prior owner at the time Landlord purchased the building is not an excuse. The owner of a building "steps into the shoes" of the prior owner.

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Case Caption:

Northern Daybreak, L.P. v. Burgos

Issues/Legal Principles:

Landlord's motion to enter default judgment against Tenant is denied because Landlord did not serve Tenant with a copy of the motion papers.

Keywords:

process servers; traverse hearing; improper service

Court:

Civil Court, Kings County

Judge:

Hon. Finkelstein

Date:

June 10, 1998

Citation:

NYLJ, page 31, col 5

Referred Statutes:

none cited

Summary:

Landlord and Tenant entered into a stipulation of settlement of a nonpayment action wherein Tenant agreed to pay rent arrears in installments, and if Tenant failed to make timely payments, Landlord could make a motion to enter a default judgment against Tenant for a sum certain. Tenant failed to make timely payments and Landlord brought a motion to enter a default judgment. The Court denied the motion because the motion papers had not been properly served upon the Tenant. Although the process server's affidavit indicated that he served the motion papers upon Tenant at the subject apartment on a certain date, an off-handed remark by the Landlord's attorney alerted the Court to the possibility that the Tenant had actually vacated the apartment well before the date the process server allegedly served the motion papers upon Tenant at the apartment. At a hearing scheduled by the Court, the building's superintendent unequivocally testified that the Tenant moved out on a certain date approximately one month before the process server allegedly served the Tenant with the motion papers. The Court referred this matter to the agency which regulates licensed process servers - the Department of Consumer Affairs - for appropriate action against the process server.

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Case Caption:

Slope Spaces, Inc. v. Vasquez

Issues/Legal Principles:

Succession rights denied to companion of deceased rent stabilized tenant because the facts demonstrate that their relationship was not characterized by emotional and financial commitment and interdependence.

Keywords:

succession rights; right to renewal lease; licensee; holdover proceeding

Court:

Civil Court, Kings County

Judge:

Hon. Peter Wendt

Date:

Wednesday June 10, 1998

Citation:

NYLJ, page 31, col 6

Referred Statutes:

RSC Section 2520.6(o)(2)

Summary:

Landlord brought a holdover proceeding against Vasquez, alleging that he is a licensee whose license to occupy the apartment expired upon the death of Neilson, the rent stabilized tenant. Vasquez alleged that he has succession rights to the apartment, because he lived with Neilson, as husband and wife, during the last seven years of Neilson's life. Since Neilson and Vasquez are not family members (they were not legally married), the issue is whether their relationship is characterized by emotional and financial commitment and interdependence. This is the standard which was set forth in Braschi v. Stahl which was later codified in RSC Section 2520.6(o). After considering the testimony and evidence submitted at trial, the Court decided that the relationship did not meet the Braschi standard and evicted Vasquez. Vasquez and Neilson did not have any joint bank accounts or credit cards. They did not name each other in a will or a power of attorney. Neilson did not list Vasquez on her application for SCRIE benefits and she did not inform the Landlord, pursuant to RSC Section 2503.5(e), that Vasquez was occupying the apartment with her. Neilson named her son as beneficiary under her bank account. It appeared that they did not socialize with each others families, because Vasquez did not even know the names of Neilson's children. There was only one incident where Neilson asked her bank to allow Vasquez to cash her checks, referring to him as her husband in one of the notes. This isolated incident did not persuade the Court that they had an emotionally and financially intertwined relationship.

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Case Caption:

In Re 119 Fifth Avenue Corporation v. The New York City Loft Board

Issues/Legal Principles:

Owners of apartments situated in legalized interim multiple dwellings (lofts) must register the apartments with the DHCR, even if there are less than six apartments in the building.

Keywords:

Loft Law; interim multiple dwelling; DHCR; registration

Court:

Appellate Division, First Department

Judge:

lower court judge: Hon. Herman Cahn

Date:

Thursday June 11, 1998

Citation:

NYLJ, page 28, col 3

Referred Statutes:

CPLR Article 78

Summary:

The New York City Loft Board determined that certain apartments (formerly interim multiple dwelling units as defined by the Loft Law) are subject to rent stabilization and directed the Landlord to register the apartments with the Division of Housing and Community Renewal (DHCR). The Landlord challenged the Loft Board's determination by filing an Article 78 proceeding in Supreme Court. The Landlord argued that it should not be required to register the apartments with the DHCR because the apartments are situated in a building which contained fewer than six regulated apartments. Both the Supreme Court and the Appellate Court upheld the Loft Board's determination. Owners of apartments situated in legalized interim multiple dwellings must register the apartments with the DHCR, even if there are less than six apartments in the building.

Case Caption:

245 Realty Associates v. Sussis

Issues/Legal Principles:

Attorney's fees granted to Rent Stabilized tenant who prevailed on a succession rights claim.

Keywords:

attorney's fees; succession rights

Court:

Appellate Division First Department

Judge:

lower court: Hon. Marilyn Shafer

Date:

June 1, 1998

Citation:

NYLJ, page 25, col 3

Referred Statutes:

Real Property Law 234; 9 NYCRR 2523.5(b)(1) & 2520.(6)(d); CPLR 1201

Summary:

The tenant of record died shortly before the Rent Stabilized expired. His brother who resided with him for the requisite two-year period prior to the tenant's death, signed the renewal lease and returned it with a note that his brother died and he now sought succession rights to the lease. The landlord commenced a holdover proceeding against the brother and also named the deceased tenant's estate as a party. Although the brother won his case, the lower court denied the brother attorney's fees. The Appellate Term affirmed, but the Appellate Division reversed on grounds that the attorney's fees provision in the lease was only enforceable between its signatories (i.e., the landlord and the tenant of record). Judge Peter Tom writing for the Appellate Division held that the lease was binding on the owner, the tenant and "on those who succeed to the interests of owner or you [the brother with succession rights] by law" (a clause in the lease). The Court rejected the position that the right to attorneys fees ripened only with the conclusion of the holdover proceeding. Rather the brother's rights as a successor-in-interest "logically must relate back to the date creating his statutory rights, the death of the tenant of record." The landlord argued that this would create a result whereby remaining family members would automatically become the tenant of record upon the death or vacatur of the prime tenant, when in fact the Rent Stabilization laws provide that upon the prime tenant's vacatur or death the tenant "is entitled to be named as a tenant on a renewal lease"; the law does not state the remaining family member "shall" be entitled to be named on the renewal lease. The Court pointed out that the lease clause which contemplated the extension of certain benefits to successors-in-interests meant that it was not automatic that the brother succeed to the tenancy; rather the lease clause provided for certain benefits (i.e., attorney's fees) once the brother did succeed to the lease. The dissent accused the majority of interpreting the brother's succession rights as arising out of the lease clause when such rights can actually arise only pursuant to statute. The majority, however, held that the brother's rights existed at the time of the tenant's death, even if they were not yet adjudicated and that there was nothing unfair about this. The Court reasoned that since the landlord could recover attorney's fees from the estate if the landlord had prevailed, then it was only fair that the reciprocal provision of the attorney's fees clause in the lease also be applied against the landlord when the landlord lost the case.

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Case Caption:

Baitch v. Winter

Issues/Legal Principles:

"Landlord" did not have possessory interest in the apartment and therefore could not evict tenants.

Keywords:

standing; landlord-tenant relationship

Court:

Civil Housing Court, Kings County

Judge:

Hon. Callender

Date:

June 3, 1998

Citation:

NYLJ, page 28, col 2

Referred Statutes:

none cited

Summary:

"Landlord" brought a holdover proceeding against the tenants. At trial the landlord produced a deed, a lease and an agreement. The deed revealed that two other people owned the building. The lease showed that those owners conveyed to the landlord a possessory interest in the building for a period of ten years from 1997 to 2006. The possessory agreement, signed July 14, 1997, was between the landlord and the tenants which allowed the tenants to reside in the apartment until November, 1997. This agreement stated that there was no landlord-tenant relationship between the landlord and the tenants. The tenant then put into evidence a lease between his father and the owners whose rider gave the father an option to renew the lease for 5 years upon its expiration on July 14, 1996. The tenants claim the lease option was executed on April 12, 1996. The court ruled that the lease between the actual owner and the tenant's father was still in existence due to the renewal option. No evidence was presented that this lease was ever terminated. By cashing the father's checks after the termination of the lease, the court ruled, that the owner had accepted the option to renew. The court ruled that the renewal lease to the apartment meant that the landlord in fact had no right of possession to the same apartment for the same period in which it leased the apartment to the tenants. There cannot be two contracts to the same place with different parties, and the court concluded that the lease between the owner and the tenant's father pre-dated the agreement the "landlord" executed with the tenants. The court dismissed the holdover petition on grounds that the "landlord" had no legal interest in the property and therefore had no standing to maintain an eviction action against the tenants.

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Case Caption:

390 West End Associates v. Atkins

Issues/Legal Principles:

Legality of landlord/partnership cannot be determined in Housing Court.

Keywords:

partnerships; Golub notice; nonprimary residency; service of process; waiver

Court:

Civil Housing Court, New York County

Judge:

Hon. Ruben Martino

Date:

June 3, 1998

Citation:

NYLJ, page 26, col 3

Referred Statutes:

General Business Law 130(9); RSC 2523.5(c); CPLR 3212

Summary:

Landlord brought a nonprimary residence proceeding against tenant and then asked the court to strike the tenant's affirmative defenses, including the claim that the landlord was unable to maintain the proceeding because it no longer existed as a legal entity (partnership). The tenants challenged the partnership because the four former partners died and the 1963 limited partnership expired. The court rejected the tenant's argument on grounds that in the absence of fraud, the filing of a certificate is conclusive evidence as to the formation of a partnership. The Appellate Term had previously found the landlord to be a valid entity. The tenant also tried to argue that the last renewal lease was tendered late which would effectively extend the time period of the lease by the number of days the renewal lease was tendered late. In this circumstances, the landlord's nonrenewal notice was issued prematurely. The court, however, ruled that the tenant cannot now complain two years later about the lateness of the renewal lease which the tenant signed two years ago. The tenant also sought to argue that service of the petition was defective because the landlord did not also serve the petition at the tenant's secondary address. The landlord, however, produced a letter from the tenant which stated that the tenant did not receive mail at that address, but at another address in California. The court concluded that the landlord was not obliged to serve the tenant a petition at the secondary address in light of tenant's previous written notice that no mail was received there. The court also rejected tenant's argument that a "temporary roommate" (words tenant used in a letter to landlord) was not named or served and that she is therefore a necessary party to the proceeding. The court also rejected this argument because the tenant did not refute that the woman was once a temporary house guest and more importantly the tenant did not claim that she is currently residing in the apartment or resided there during the period relevant to the holdover proceeding. The court also rejected tenant's argument that the landlord accepted the rent after the termination notice, which vitiated the termination notice, and therefore the petition should be dismissed. The landlord charged and tenant paid a surcharge of 10% above the rent. The tenant argued that the prepayment of four months of surcharges which extended after the termination of the lease constitute a waiver. The court rejected this argument since there was no evidence that landlord intended to reinstate the tenancy based on these prepayments. The court granted landlord's motion to set the matter down for a deposition of the tenant and dismissed tenant's affirmative defenses cited above.

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Case Caption:

Simkowitz v. DHCR

Issues/Legal Principles:

DHCR properly reduced tenant's rent on grounds of defective refrigerator

Keywords:

rent reduction order

Court:

Appellate Division, First Department

Judge:

lower court: Hon. Ira Gammerman

Date:

June 4, 1998

Citation:

NYLJ, page 26, col 1

Referred Statutes:

none cited

Summary:

Rent Stabilized tenant filed a complaint for decrease in services with the DHCR on grounds that her refrigerator was not working properly, froze food, and leaked. Her allegations were confirmed by an impartial on-site inspection conducted by DHCR. As a result, the DHCR issued a rent reduction order in the tenant's favor. (The rent remains reduced to the last lease rent until such time as the landlord fixes the condition and applies for and receives from the DHCR a rent restoration order). The landlord lost on appeal as the appellate courts found that the DHCR's decision was rational and reasonable and not arbitrary or capricious.

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Case Caption:

Kyriakos v. Markopoulos

Issues/Legal Principles:

Owner occupancy proceeding cannot be maintained unless owner serves tenant notice of its intent to recover the apartment on this ground at least 120 and no more than 150 days before the tenant's lease expires.

Keywords:

renewal lease; owner occupancy

Court:

Civil Housing Court, Queens County

Judge:

Hon. Cavallo

Date:

June 3, 1998

Citation:

NYLJ, page 29, col 2

Referred Statutes:

RPL 234; CPLR 3212; RSC 2524.4(c) & 2523.5

Summary:

The landlord brought a holdover petition against the tenant on ground that he wanted the apartment for personal use and occupancy for his immediate family member, his daughter. The termination notice, known as a "Golub" notice, purports to terminate the tenancy as of February 28, 1998, but in fact the tenant's last renewal lease expired on June 30, 1997. Landlords are not permitted to pursue an owner occupancy case unless they have served the tenant the Golub notice which is a notice that their lease will not be renewed, and the Golub notice must be served at least 120 and no more than 150 days prior to the lease's expiration. The landlord did not serve a notice until long after the tenant's last lease expired, therefore the landlord was denied by the court the right to pursue the owner occupancy holdover proceeding against the tenant.

Notes:

The landlord will now have to tender a new renewal lease (effective 120 dates after the date of tender) and cannot bring another owner occupancy proceeding against the tenant until the end of this renewal lease's term. By then, the circumstances might no longer be the same (the daughter might have made other plans) and maybe the landlord will abandon any plans to take over the apartment.

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Case Caption:

Jerome v. Famby

Issues/Legal Principles:

Landlord barred from bringing three separate small claims actions against tenant for alleged rental arrears so as to impermissibly circumvent the $3,000.00 jurisdictional ceiling of small claims court.

Keywords:

small claims action;

Court:

City Court of Yonkers, Westchester County

Judge:

Hon. Dickerson

Date:

June 3, 1998

Citation:

NYLJ, page 30, col 3

Referred Statutes:

22 NYCRR 130.1-1; UCCA 1810

Summary:

The tenant vacated the apartment, but allegedly owed rent when he left. The tenant claimed that he didn't owe rent because he was a super and his services were in exchange for free rent. The landlord brought a small claim action against the tenant and won. The landlord then went to a second court and filed another small claims case for additional rents for other months. The motive for bringing two small claims actions lies from the fact that the small claims jurisdictional limit is $3,000.00 and the landlord was trying to circumvent that limit (and avoid Civil Court) by bringing separate claims. The second court, however, held that the landlord could not split its actions and denied the claims. The landlord then went back to the first court and filed another small claims action against the tenant seeking rental arrears. The small claims action requires filling out a form that states that no prior actions have been brought against the defendant involving the same claim. The landlord signed off on this form, although it was not a true statement due to the prior cases. The court dismissed the claims and found the suit was frivolous and brought to harass, intimidate, oppress and annoy the defendant. The court barred the landlord from filing new lawsuits for one year, unless a small claims judge allowed it to go forward after reviewing the complaint.

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Case Caption:

Kew Realty Company v. Charles

Issues/Legal Principles:

Landlord must apply tenant's rent to the month designated by tenant on the rent check, and not to a prior month designated by landlord.

Keywords:

rent arrears

Court:

Appellate Term, 2nd & 11th Judicial Districts

Judge:

lower court: Hon. James Grayshaw

Date:

June 5, 1998

Citation:

NYLJ, page 27, col 2

Referred Statutes:

UCC 3-802(1)(b)

Summary:

Tenant sought relief from a stipulation she entered into in a nonpayment proceeding. She annexed copies of her checks indicating that they satisfied the rent for months landlord claimed was owing in the petition. Apparently, landlord earmarked these checks for rents owed in previous months. The appellate court held that the landlord was not entitled to apply tenant's earmarked checks as it saw fit but was required to apply them toward rent for the months that the tenant indicated on the checks. The appellate court reversed the lower court's decision by vacating the stipulation.

Notes:

This is a really good case for tenants because it gives some credibility to tenant's records of rent owed, instead of the usual deference to the landlord's records, specifically when the landlord's records claim rent arrears from months previous. So often tenants have paid the rent, have their cancelled checks on hand to prove it, and then the landlord claims in court that the arrears are really for months earlier that were in dispute. Sometimes those months go back several years. This case stands for the principle that if the tenant's check has a specific month written on it, for example, "April, 1998 rent," the landlord cannot record the payment in its own records as payment for any other month except April, 1998, that it cannot be applied for example to March, 1998 rent whether or not rent is owed for March, 1998.

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Case Caption:

Wittenberg v. Ortega

Issues/Legal Principles:

Despite tenant of record's nonprimary status, her daughter had succession rights to the apartment.

Keywords:

nonprimary residency; succession rights

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Anne Katz

Date:

June 5, 1998

Citation:

NYLJ, page 29, col 3

Referred Statutes:

9 NYCRR 2523.5(b)

Summary:

Landlord brought a nonprimary residency action against the rent stabilized tenant. The daughter of the tenant moved into the apartment with her mother in 1983 and resided there continuously since then. The mother permanently vacated the premises in or about 1992. Since the daughter had continuously and primarily resided in the apartment, she did so during the two year period immediately preceding her mother's permanent vacatur of the apartment. Therefore the daughter is entitled to succeed to her mother's lease. The Appellate Term ruled that just because the lower court found that the mother did not occupy the apartment as her primary residency, this did not automatically mean that the daughter had no rights. The Appellate Term ruled that the daughter had an independent right to succeed to the lease and the lower court erred for failing to find in favor of the daughter.

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Case Caption:

Rakoff v. Hebert

Issues/Legal Principles:

Granddaughter of rent controlled tenant of record is allowed succession rights upon her grandmother's death.

Keywords:

nonprimary residency; succession rights

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Bruce J. Gould

Date:

June 5, 1998

Citation:

NYLJ, page 29, col 3

Referred Statutes:

9 NYCRR 2204.6(d)(1)

Summary:

The granddaughter of the rent controlled tenant of record lived in the apartment for the two year period with the tenant immediately preceding the tenant's death. Landlord argued that the tenant was not a primary resident of the apartment, but the Appellate Term rejected this position holding that the prime tenant was a long-term primary resident of the apartment who resided in Florida each year during the winter months, and there was no showing that she relinquished her New York City apartment.

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Case Caption:

142 E. 16 Cooperative Owners' Inc. v. Jacobson

Issues/Legal Principles:

Tenant not occupying the apartment cannot claim breach of warranty of habitability defense in nonpayment proceeding.

Keywords:

warranty of habitability

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Kibbie F. Payne

Date:

June 5, 1998

Citation:

NYLJ, page 29, col 3

Referred Statutes:

none cited

Summary:

Landlord brought a nonpayment proceeding against tenant (a cooperative shareholder) and tenant counterclaimed for breach of the warranty of habitability. The court held that the tenant cannot assert such counterclaim because he has not resided in the apartment since 1989 and the premises have been left vacant and for sale since the departure of the subtenant. A habitability defense cannot be sustained if the tenant is not occupying the apartment.

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Case Caption:

Baptist v. New York

Issues/Legal Principles:

Landlord remains on continuous notice of lead paint hazard until such time as hazard is abated.

Keywords:

lead paint

Court:

Civil Court, Kings County

Judge:

Hon. Kramer

Date:

June 5, 1998

Citation:

NYLJ, page 36, col 1

Referred Statutes:

none cited

Summary:

The issue in this case is whether a landlord who has been notified of a lead paint hazard continues to remain on notice until the hazard is abated. Local Law 1 provides that a landlord is placed on constructive notice of a lead paint hazard in a building built before 1960 that the landlord knows is occupied by a child under the age of 7. The City landlord asked the court to dismiss the tenant's civil court. The City claimed that it knew of tenant's children, but lacked notice that the youngest known resident child had previously reached the age of 7 and was unaware of the presence of the infant plaintiff. The court ruled that the landlord remains on constructive notice of the hazard and remains on notice until the problem is abated; further the notice runs to any child who may be affected by the hazard. The tenant filed window guard forms and that is how the City was on actual notice that the tenant had children under 7 years of age in the apartment.