Housing Court Decisions May 1998

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

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New York Law Journal,
decisions for the week of May 25-29, 1998 (8 cases)

Case Caption:
Katz v. Gelman
Issues/Legal Principles:
Nonprimary residence proceeding is dismissed against tenant who returned to his loft after spending three years in residential facilities for treatment of depression and substance abuse.
Keywords:
nonprimary residence; primary residence; interim multiple dwelling
Court:
Appellate Term, First Department
Judge:
lower court judge: Hon. Anne Katz
Date:
Tuesday May 26, 1998
Citation:
NYLJ, page 27, col 4
Referred Statutes:
none cited
Summary:
Landlord brought a nonprimary residence holdover proceeding against a tenant protected by the Loft Law. The housing court granted the landlord a judgment of possession, but the Appellate Term, First Department reversed and dismissed the holdover proceeding. The tenant began occupying the loft in 1978. From November 1993 through August 1996 tenant was institutionalized in a residential facility for treatment of depression and substance abuse. Tenant then returned to live in the loft and has not suffered a relapse. The trial court found that tenant had given up the loft as his primary residence during the period he was institutionalized. The Appellate Court disagreed noting that the very purpose of the residential facility was to prepare the patient for independent living and that the tenant had in fact made a successful return to the loft. The Appellate Court said that the tenant's absence was transitory, tenant had not abandoned the premises (he kept his possessions at the premises) or established a new residence and tenant had in fact resumed occupancy. Tenant could not maintain "an ongoing, substantial, physical nexus with the controlled premises for actual living purposes" because of his medical condition. Under these circumstances, the tenant's absence from the premises is excusable.

Case Caption:
Lin v. Rivas
Issues/Legal Principles:
Failure to allege that the premises is a multiple dwelling is an amendable defect, so long as the multiple dwelling registration statement was actually on file at the time the petition was commenced.
Keywords:
amendment to petition; multiple dwelling registration
Court:
Appellate Term, Second Department
Judge:
lower court judge: Hon. Harriet George
Date:
Tuesday May 26, 1998
Citation:
NYLJ, page 30, col 5
Referred Statutes:
none cited
Summary:
Landlord brought a holdover (eviction) proceeding against tenant. In its first petition, landlord neglected to allege that the premises is a multiple dwelling and neglected to set forth the required registration information. Landlord then made a motion asking the Court for permission to amend the petition to include the multiple dwelling registration ("MDR") information. The court granted the motion and the landlord amended the petition. Ultimately the court granted the landlord's petition and evicted tenant. Tenant appealed, arguing that the lower court should not have given landlord permission to amend the petition. The Appellate Court upheld the lower court's decision, saying that it was proper to allow the amendment of the petition in this case, because an MDR was actually on file at the time the petition was brought.

Case Caption:
Pledge v. Langham Mansions
Issues/Legal Principles:
DHCR's order of deregulation is vacated in a case where tenant promptly responded to DHCR's high income / high rent deregulation order by filing a PAR and providing DHCR with a certification that the household income is under the threshold.
Keywords:
high income / high rent deregulation
Court:
Supreme Court, New York County
Judge:
Hon. Gangel-Jacob
Date:
Wednesday May 27, 1998
Citation:
NYLJ, page 25, col 6
Referred Statutes:
RSL Section 26-504; NYS Tax Law Section 171-b(3)(b)
Summary:
Tenant failed to respond to the income certification form and petition for deregulation which the owner filed with the Division of Housing and Community Renewal of the State of New York ("DHCR"). Due to tenant's failure to respond, DHCR issued an Order deregulating the rent. Tenant filed a timely Petition for Administrative Review ("PAR") including a certification that the household income was under the threshold. The DHCR denied the PAR finding tenant's excuse for not responding inadequate. The DHCR did not even consider the tenant's certification that their income was under the threshold. The tenant then challenged the DHCR's ruling by filing an Article 78 proceeding in the Supreme Court. The Court ruled for tenant, finding that the DHCR's determination is arbitrary. The Court held that under these circumstances, where the tenant timely responds to the DHCR's order of deregulation (by an appeal: PAR) with a certification that the household income is below the threshold, and the DHCR simply has to seek verification of the tenant's income from state tax authorities, it was arbitrary for the DHCR to deregulate the tenant's rent stabilized apartment.

Case Caption:
Adee Tower Apartments, Inc. v. Levy
Issues/Legal Principles:
Landlord waived its right to enforce no-pet clause against tenant by not objecting within three months of discovering that tenant was keeping a pet.
Keywords:
no-pet clause; holdover, substantial obligation of tenancy
Court:
Housing Court, Bronx County
Judge:
Hon. Anthony Fiorella
Date:
Wednesday May 27, 1998
Citation:
NYLJ, page 27, col 1
Referred Statutes:
NYC Administrative Code Section 27-2009; 9 NYCRR Section 1727-5.3
Summary:
Landlord, a cooperative corporation, brought an eviction proceeding against tenant / shareholder for harboring a pet (a cat) in violation of the no-pet clause of the proprietary lease. The law provides that a landlord must bring an eviction proceeding within three months of discovering the pet in tenant's apartment, or the right to enforce the no-pet clause in the lease is waived. In this case, the tenant had the cat for seven years before landlord served a termination notice and, after trial, the Court determined that the super and the managing agent knew about the cat for years. The Court held that the landlord waived its right to object to the cat, by not objecting in a timely fashion. The Court went a step further and said that the landlord had failed to show that the harboring of a cat was a substantial violation of the cooperative lease.

Case Caption:
River Terrace Apartments, Inc. v. Robinson
Issues/Legal Principles:
The Court granted a 50% rent abatement to tenants due to loud noise and vibrations from adjacent laundry room.
Keywords:
warranty of habitability; nonpayment; rent abatement; noise; vibrations
Court:
Civil Court, Bronx County
Judge:
Hon. Spears
Date:
Wednesday May 27, 1998
Citation:
NYLJ, page 27, col 3
Referred Statutes:
New York City Building Code (the relevant sections were not specified in the court's opinion)
Summary:
After tenant-shareholder purchased a cooperative apartment adjacent to the building's laundry room, the landlord (cooperative corporation) replaced the machines. Tenant immediately complained to the Landlord about excessive noise and vibrations. Landlord's engineer found that the noise in tenant's apartment was 25-30 decibels above the level recommended by the NYC Building Code for living spaces. Landlord attempted to lessen the noise by installing padding under the machines, with no success. When the tenant-shareholder withheld rent, the landlord brought a nonpayment proceeding. Landlord admitted that the machines were noisy, but said that as a co-op its duty was to the majority of the shareholders. Landlord agreed that tenant's sole recourse was to take action calculated to replace the Board of Directors or to put the issue to a shareholders vote. The Court said that the co-operative corporation is a landlord and a landlord is obligated to keep the premises habitable. The landlord cannot breach the warranty of habitability owed to these tenants in order to benefit other residents. The Court found that tenants are entitled to a 50% rent abatement.

Case Caption:
Clifton Court v. Williams
Issues/Legal Principles:
Court refused to evict tenants after police recovered a small quantity of illegal drugs from tenant's apartment on one single occasion because this does not prove that the premises were used in the illegal drug trade.
Keywords:
holdover; illegal trade or business; illegal drugs; illegal use
Court:
Appellate Term, Second Department
Judge:
lower court judge: Gus Reichbach
Date:
May 27, 1998
Citation:
NYLJ, page 28, col 6
Referred Statutes:
RPAPL Section 711(5) and 715(1)
Summary:
The police executed a search warrant in tenant's rent-stabilized apartment which revealed five dozen crack vials and drug paraphernalia. The Landlord brought a holdover proceeding alleging that the premises were being used to operate an illegal business or trade. The trial court held that Landlord's evidence consisted only of an amount of drugs that could be carried in a couple of pockets and that the Landlord had not proven that the presence of certain persons in tenant's apartment was for a commercial purpose (the sale of illegal drugs) rather than a social purpose. The trial court dismissed the holdover petition and the Appellate Court affirmed.

Case Caption:
247 Associates v. Rodriguez
Issues/Legal Principles:
Nonprimary residence proceeding is dismissed against loft tenant who sublet her loft to take care of her sick mother in Puerto Rico.
Keywords:
nonprimary residence; primary residence; interim multiple dwelling
Court:
Appellate Term, First Department
Judge:
lower court judge: Hon. Arthur Birnbaum
Date:
Thursday May 28, 1998
Citation:
NYLJ, page 28, col 3
Referred Statutes:
(none cited)
Summary:
The trial court evicted tenant on grounds of non-primary residence and the Appellate Court reversed. Tenant sublet her loft for 23 months, with landlord's consent, in order to care for her sick mother in Puerto Rico. When she returned, her subtenant refused to vacate. She commenced a holdover proceeding against the subtenant who eventually vacated. While the tenant's proceeding against subtenant was pending, the Landlord brought a nonprimary residence proceeding against tenant. The Appellate Court held that the proceeding against tenant should be dismissed, because tenant had not established another permanent residence during her absence and tried to re-occupy her loft after the sublease expired.

Case Caption:
Koppelman v. Sullivan
Issues/Legal Principles:
The Court limits the defenses which may be presented by an authorized occupant (illegal subtenant) in an eviction proceeding brought against the tenant.
Keywords:
illegal sublet; holdover proceeding
Court:
Appellate Term, First Department
Judge:
lower court judge: Hon. Ruben A. Martino
Date:
Thursday May 28, 1998
Citation:
NYLJ, page 28, col 4
Referred Statutes:
RPL Section 226-b
Summary:
The trial court dismissed the holdover proceeding against tenant and the Appellate Court reversed. The evidence at trial showed that tenant, without the Landlord's consent, sublet his apartment for an open-ended period or assigned his apartment. The Appellate Court said that the unauthorized occupant did not have the right to present a defense based upon a "perceived variance" between the allegations in the petition and the proof presented at trial.

New York Law Journal,
decisions for the week of May 18-22, 1998 (5 cases)

Case Caption:
Fountainbleau Estates v. Aucock
Issues/Legal Principles:
Appointment of guardian ad litem ruled necessary at tenant's nuisance trial.
Keywords:
guardian ad litem; nuisance
Court:
Appellate Term, First Department
Judge:
lower court: Hon. James Grayshaw
Date:
May 20, 1998
Citation:
NYLJ, page 25, col 1
Referred Statutes:
CPLR 1201
Summary:
Landlord brought a holdover proceeding against the rent controlled tenant on grounds that she had accumulated waste and debris (i.e., committing a nuisance). The lower court had appointed a guardian ad litem, but the guardian withdrew because of the tenant's alleged failure to cooperate. The court went ahead with the trial without tenant having benefit of a guardian. The sole witness for the landlord was the managing agent. A judgment of possession was granted against the tenant. After trial a guardian was appointed who tried to vacate the warrant but the lower court refused because the conditions still existed. The appeal was delayed by an Article 78 guardianship proceeding which did in fact result in the appointment of a special guardian (and not just a guardian ad litem whose purpose is limited to the court proceedings). The appeal was not heard until six years after the trial. The Appellate Term vacated the warrant on grounds that the tenant did not have benefit of a guardian at trial, and remanded the matter back to Housing Court to assess the present conditions of the apartment.

Case Caption:
Stahl Broadway Co. v. Haskins
Issues/Legal Principles:
Landlord denied a possessory judgment in a nonpayment proceeding based on rent arrears that were discharged in a bankruptcy proceeding before the nonpayment proceeding began.
Keywords:
bankruptcy; nonpayment; possessory judgment
Court:
Civil Housing Court, New York County
Judge:
Hon. Marcy Friedman
Date:
May 20, 1998
Citation:
NYLJ, page 27, col 3
Referred Statutes:
RPAPL 751(1) & 711(4); 11 USC 365;
Summary:
Landlord brought a nonpayment proceeding against tenant, but her court appointed guardian moved to dismiss on grounds that all the arrears at issue were discharged in a bankruptcy proceeding filed on the tenant's behalf. The arrears sought by the landlord in housing court accrued prior to the filing of the bankruptcy proceeding and were discharged on April 7, 1997, which relieved tenant of the debt. The landlord, however, argued that while the discharge of the rent debt prevents landlord from obtaining a money judgment against the tenant, the discharge does not prevent landlord from obtaining a possessory judgment and warrant of eviction based on the arrears. The tenant's attorney argued that a nonpayment proceeding is not the proper means for landlord to obtain the remedy landlord seeks. The court observed that a nonpayment proceeding is not a proceeding for possession only. In a nonpayment proceeding a tenant can pay the rent and avoid an eviction. Although this landlord claims that it seeks only a possessory judgment, the landlord did in fact serve a demand for the rent arrears even though they were already extinguished in the bankruptcy proceeding. The issue before the court was whether a landlord can commence a proceeding for a judgment of possession based solely on rent arrears which were discharged and not now owed. The court held that the landlord could not. The court held that the landlord could attempt to bring a holdover based on the tenant's breach of the lease by not paying the rent, but the judge offered no opinion as to whether such a holdover would succeed in obtaining the remedy the landlord sought: a possessory judgment and the eviction of the tenant.

Case Caption:
Bellport-Brookhaven Historical Society, Inc. v. Evans
Issues/Legal Principles:
Caretaker of property who was fired after complaining that landlord failed to provide protective equipment for lead paid is not entitled to a stay of an eviction proceeding pending his complaint to the U.S. Department of Labor for wrongful discharge.
Keywords:
caretaker; retaliation
Court:
District Court, Suffolk County
Judge:
Hon. Santorelli
Date:
May 20, 1998
Citation:
NYLJ, page 31, col 2
Referred Statutes:
29 USC 651; CPLR 2201; 22 NYCRR 130-1.1-a
Summary:
The respondent Evans was a caretaker of the property from 1990 to 1996 in exchange for living on the property rent-free. On November 30, 1996, the parties entered into a written agreement which allowed Evans to reside rent free in exchange for his caretaker services. In January, 1997, Evans states that he fell ill and in June was diagnosed with lead poisoning which he claims he contracted as a result of scraping paint from the interiors of certain buildings on the premises. In September, he asked the landlord to provide him with federally required protective equipment. Four days later, the landlord notified him that he was fired. Thereafter the landlord brought a holdover proceeding to evict Evans. Later Evans filed a complaint with the U.S. Department of Labor alleging that the landlord fired him in retaliation for his request for proper equipment. Evans asked the housing court judge for a stay (freeze) of the holdover proceeding against him until his federal complaint was determined. The court ruled that whether Evan was wrongfully discharged from his job had no bearing on the holdover proceeding and denied the stay.

Case Caption:
Semans Family Limited Partnership v. Kennedy
Issues/Legal Principles:
Landlord cannot bring holdover proceeding terminating the lease simply on grounds of tenants' refusal to pay rent for breaches of the warranty of habitability.
Keywords:
warranty of habitability
Court:
Civil Court, New York County
Judge:
Hon. Michael Stallman
Date:
May 20, 1998
Citation:
NYLJ, page 27, col 5
Referred Statutes:
Real Property Law 235-b; CPLR 3217(b); Multiple Dwelling Law 302(1)(b)
Summary:
Tenant didn't pay the rent and the landlord brought a holdover proceeding against the tenant based on the failure to pay the rent. In 1996, the parties entered into a lease for seven years which required the landlord to make substantial construction to customize the apartment for the tenants. The tenants refused to pay any rent because they contended that the construction was not substantially completed. After about six months of not receiving rent, the landlord served a notice cancelling the lease and terminating the tenancy on grounds of nonpayment of rent, and thereafter brought a holdover proceeding. The tenants sought to dismiss the holdover, arguing that it violated public policy to terminate a lease solely on the grounds that rent was not paid. The court examined the lease and observed that it contained a conditional limitation which provides that if there is a notice of default of the lease were sent, the lease would automatically expire on the termination date set in the default notice. The court observed that if landlords are not permitted to bring holdovers against tenants for chronic late payment of rent couched as a violation of a tenancy (citing a Court of Appeals case), then the conditional limitation in this case is also impermissible to terminate the tenancy simply on grounds of nonpayment of rent. The court also observed that the only meaningful weapon a tenant has against a landlord who refuses to maintain the premises in a habitable condition is to withhold rent. The court stated that the type of conditional limitation in this lease would discourage a tenant from withholding rent for breach of the warranty of habitability. Further, the conditional limitation of the lease violates public policy because it does not allow the tenant to cure the alleged default by paying the rent (and avoid an eviction) and further frustrates a tenant's right to litigate habitability defenses (because if the rent were paid before the default notice was serve, the case would not land up in court). The court dismissed the prejudice with prejudice which means the landlord is forever barred from collecting the rent sought in this petition.

Case Caption:
City of New York v. Omolukum
Issues/Legal Principles:
City-Landlord lacked "good cause" to evict tenant whose ex-boyfriend engaged in illegal activities long after the tenant ejected him from her apartment.
Keywords:
illegal usage
Court:
Civil Housing Court, Bronx County
dt>Judge:
Hon. Halprin
Date:
May 20, 1998
Citation:
NYLJ, page 28, col 3
Referred Statutes:
RPAPL 711(1); RPL 232(a)
Summary:
Landlord brought a holdover proceeding against tenant on grounds of alleged illegal usage in the premises. The tenant lived with her then boyfriend, but after he began drinking and engaging in violent behavior she ejected him from the apartment and removed him completely (including his property) in January 1996. In October and twice in November of 1996 her ex- boyfriend was arrested in the lobby and near the building for narcotics and gave the tenant's apartment as his address. At trial, the tenant offered detailed proof of her diligent efforts to keep the ex-boyfriend out of her life. She also testified that her new boyfriend moved in with her in September, 1996, well before the ex-boyfriend committed the crimes which tenant is now being held liable for and having her apartment in jeopardy. The court first noted that the City of New York was required to show "good cause" for the grounds of the eviction, although the City disputed that they should be held to this standard. The court also determined that the City failed to find a sufficient nexus between the tenant and her ex-boyfriend's illegal activity. The court found that this tenant "used all legally permissible means to rectify a bad situation" and the court felt that to evict her was an improper response to her efforts. The court dismissed the petition.

New York Law Journal,
decisions for the week of May 11-15, 1998 (9 cases)

Case Caption:
Soho Tribeca Space Corp. v. Mills
Issues/Legal Principles:
Three day rent demand signed by landlord's attorney violates the federal law, the Fair Debt Collection Practices Act which requires a thirty-day notice to debtors/tenants.
Keywords:
Fair Debt Collection Practices Act; three-day notice; thirty-day notice; motion to dismiss
Court:
Civil Court, New York County
Judge:
Hon. Ruben Martino
Date:
Wednesday May 13, 1998
Citation:
NYLJ, page 28, col 6
Referred Statutes:
15 USC Section 1692 et. seq. (Fair Debt Collection Practices Act); MDL Section 284; RPAPL Section 711; USCA Const. Art. VI, clause 2 (the Supremacy Clause).
Summary:
Landlord brought a non-payment proceeding against tenant after serving a three-day rent demand notice signed by the landlord's attorney. The proceeding was dismissed for failure to comply with the Fair Debt Collections Practices Act (FDCPA), a federal statute enacted to protect consumers from abusive conduct by debt collectors. In December, 1997, Federal Judge Lewis Kaplan ruled in Romea v. Heiberger & Associates, that an attorney can be deemed a "debt collector" and the three-day rent demand is an initial "communication" as those terms are defined the FDCPA. The FDCPA requires that debt collectors give debtors a thirty-day notice and opportunity to dispute the validity of all or a portion of the debt. Although state law (RPAPL Section 711) merely requires the service of a three-day notice demanding the rent before the tenant be taken to court, this law is preempted by the federal law (FDCPA) which requires a thirty-day notice. This is because the supremacy clause of the U.S. Constitution provides that the U.S. Congress has the right to preempt state law, which is what they did when they enacted the FDCPA.
Notes
Disclosure: Colleen McGuire's firm, McGuire & Zekaria, P.C., along with co-counsel Robert E. Sokolski, Esq., P.C. represent the plaintiff in the precedent setting case of Romea v. Heiberger & Associates. The federal court ruled that rent is a debt under the FDCPA and attorney's who attempt to collect the debt on behalf of their landlord-clients are debt collectors under the FDCPA and must comply with the FDCPA's requirements, one of which is that the consumer (i.e., tenant) be given 30 days to dispute the debt. Judge Ruben Martino is the first judge in Housing Court to apply the FDCPA to a summary proceeding. The attorneys who represented the tenant in this case were Karlsson & Ng.

Case Caption:
In Re John Mauro v. DHCR
Issues/Legal Principles:
It is neither illegal nor inappropriate for the DHCR to impose multiple penalties for many individual acts of harassment which were all part of a larger course of conduct, resulting in a civil penalty of $33,000.00.
Keywords:
harassment; civil penalties; due process; administrative agencies
Court:
Supreme Court, Appellate Division, First Department
Judge:
lower court judge: Supreme Court Justice Marilyn Diamond
Date:
Monday May 11, 1998
Citation:
NYLJ, page 26, col 4
Referred Statutes:
CPLR Article 78
Summary:
The Court upheld the DHCR's determination that landlord engaged in a course of conduct constituting harassment and upheld the DHCR's order that landlord should pay $33,000.00 in civil penalties. The Court said that it was "neither illegal nor inappropriate" for the DHCR to impose multiple penalties for many individual acts of harassment which were all part of a larger course of conduct. The Court decided that the landlord's constitutional right to due process of law was not violated because both the attorney who prosecuted the case and the hearing officer who heard the case were employed by the DHCR. The fact that the transcript of the hearing was not yet available to the landlord before landlord was presenting its administrative appeal to the DHCR does not violate due process because tape recordings of the entire hearing were available.

Case Caption:
Rosario v. 288 St. Nicholas Realty, Inc.
Issues/Legal Principles:
Tenants were "prevailing parties" and therefore entitled to an award of attorneys fees because the proceeding they brought was resolved by a court-ordered stipulation which was wholly favorable to tenants.
Keywords:
attorney's fees; prevailing party; stipulation of settlement; lead paint violations; housing part proceedings; HP proceedings
Court:
Appellate Term, First Department
Judge:
lower court judge: Jerald R. Klein
Date:
Monday May 11, 1998
Citation:
NYLJ, page 27, col 4
Referred Statutes:
RPL Section 234; 42 USC Section 1988
Summary:
Tenants brought an "HP" (housing part) proceeding against the landlord seeking correction of lead paint violations. Landlord entered into a stipulation of settlement to correct the violations and completed the work. Tenants then brought a motion for the assessment of the attorney's fees they incurred and their motion was denied by the Court because the landlord was diligent in correcting the condition and minimal court intervention was required. The appellate court reversed the trial court's determination and ordered the trial court to hold a hearing to assess the amount of attorney's fees incurred in the lower court and in the appellate court. The Court said that a party does not have to win a case after trial in order to be a "prevailing party" and therefore entitled to attorney's fees. In this case, the tenants were the prevailing party because they achieved the results they sought in a stipulation of settlement.

Case Caption:
Golden Properties, Inc. v. Knox
Issues/Legal Principles:
Rent-stabilized tenant is not entitled to receive notice and opportunity to cure prior to landlord's commencement of eviction proceeding for rent-gouging her subtenant.
Keywords:
holdover proceedings; notice to cure; notice of termination; rent-gouging; rent-profiteering; subletting; summary judgment motion
Court:
Civil Court, New York County
Judge:
Hon. Strauss
Date:
Wednesday May 13, 1998
Citation:
NYLJ, page 29, col 1
Referred Statutes:
RSC Section 2525.6(b); Administrative Code Section 4451-1.0; RPAPL Section 741(4)
Summary:
Landlord served rent-stabilized tenant with a termination notice alleging that she has been charging her subtenant rent which is three times greater than the legal regulated rent. Landlord's evidence consisted of an affidavit from the subtenant in which he stated how much rent he paid to tenant. In defense, the tenant said that the landlord should have served her with a notice to cure the rent-gouging prior to commencing the proceeding; the violation has in fact been cured because the subtenant has vacated; and seven and one-half months of overcharging a subtenant is not a sufficient level of rent-gouging to end her forty-year tenancy. The Court rejected the tenant's defenses and granted the landlord's motion for summary judgment. The Court said that "(t)he Rent Stabilization Law was designed, in part, to prevent profiteering and speculation by tenants receiving the benefit of statutory regulated rents. Respondent's agreement and conduct with her subtenant is in direct contravention to RSC Section 2525.6(b) and ground for termination of her tenancy."

Case Caption:
Obloj v. Shaw
Issues/Legal Principles:
Landlord's personal use holdover is dismissed because landlord failed to demonstrate a good faith desire to recover the premises.
Keywords:
holdover proceedings; personal use holdover; good faith
Court:
Civil Court, Kings County
Judge:
Hon. Peter Wendt
Date:
Wednesday May 13, 1998
Citation:
NYLJ, page 31, col 2
Referred Statutes:
RSC Section 2524.4(a)(1); RSC Section 2500.2(m)
Summary:
Landlord refused to offer a lease renewal to his rent stabilized tenant, alleging that he seeks to recover possession of the apartment for the personal use of a member of his immediate family, namely his granddaughter. Landlord then commenced a holdover proceeding against tenant which proceeded to trial. The court said that the landlord is "not required to prove a need for the apartment, but only a good faith desire to recover the premises." There were so many omissions and inconsistencies in the testimony of witnesses for the landlord that the court decided that landlord did not have a good faith desire to recover the apartment. The court found credible the testimony of a witness for the tenant. This witness testified that the landlord made disparaging remarks about the tenant's Korean wife and said that he does not want Koreans living in his building. The court found that this remark supported the tenant's claim that the landlord is not proceeding in good faith. The court dismissed the landlord's case, because the landlord was not able to establish that he is seeking the tenant's apartment for the use of a family member in good faith.

Case Caption:
2326 Grand Association v. Moran
Issues/Legal Principles:
Social Services Law Section 143 (the Spiegel Law) provides a defense for welfare recipients/tenants against nonpayment proceedings only when violations have been reported; tenant who denies access to her apartment for inspections and repairs cannot use Spiegel Law as a defense to a nonpayment proceeding.
Keywords:
Spiegel Law; nonpayment proceedings; social services recipient; motion to vacate judgment
Court:
Civil Court, Bronx County
Judge:
Hon. Fiorella
Date:
Wednesday May 13, 1998
Citation:
NYLJ, page 29, col 5
Referred Statutes:
CPLR Section 5015; Social Services Law Section 143-B
Summary:
On 8/12/97, the parties entered into a stipulation whereby the tenant promised to pay the rent she owed by 9/12/97. At that time, the Human Resources Administration ("HRA") advised the Court that it needed additional time to evaluate the rent arrears. On 10/6/97, the Court issued a final judgment, on the consent of both parties, providing that rent arrears should be paid by a date certain and staying execution of the warrant of eviction until 10/30/97. The final judgment also provided that tenant was to provide access to the landlord, on certain dates and times, in order to make repairs. Months later, tenant moved for an order vacating the court's judgment dated 10/6/97 and asked the Court to schedule a court-ordered inspection and an abatement hearing. Tenant cited to Social Services Law Section 143 (the Spiegel Law), which states that it's a defense to a non-payment proceeding if a welfare recipient can show that there are violations in the apartment which are dangerous, hazardous and detrimental to life, health and safety. The Spiegel Law also requires that the violations were reported to Social Services by the Department of Housing Preservation and Development ("DHPD"). The Court denied the tenant's motion, because the tenant could not prove that the alleged violations had been reported to Social Services by DHPD. The Court noted that the tenant had failed to provide access to inspectors on prior occasions and had also failed to provide access to landlord's workmen when they arrived to make repairs. The Court stayed the execution of the warrant until 4/9/98.

Case Caption:
Cruz v. Lanas
Issues/Legal Principles:
Default judgment should not have been taken against a tenant who had previously filed a bankruptcy proceeding.
Keywords:
motion to vacate judgment; default judgment; bankruptcy proceeding; bankruptcy stay
Court:
Appellate Term, 2nd Dept.
Judge:
lower court judge: Grayshaw
Date:
Wednesday May 13, 1998
Citation:
NYLJ, page 30, col 5
Referred Statutes:
none cited
Summary:
The tenant's motion to vacate a default judgment is granted and the case is remanded to the trial court for further proceedings. The default judgment should not have been issued because the tenant had filed a bankruptcy proceeding. As a result of the bankruptcy proceeding, a stay of all proceedings pending against tenant was in effect.

Case Caption:
Sedgwick Avenue Associates v. Constantine Kehaya
Issues/Legal Principles:
Where attorney failed to inform his adversary and the Court about a prior Court Order which evicted his client, and the parties then entered into a stipulation in which the landlord conceded that attorney's client was a tenant, the stipulation should be vacated.
Keywords:
stipulations; motion to vacate stipulation; unilateral mistake
Court:
Appellate Term, First Department
Judge:
lower court judge: Martin Shulman
Date:
Thursday May 14, 1998
Citation:
NYLJ, page 25, col 5
Referred Statutes:
none cited
Summary:
In 1992, the housing court issued an order evicting C. Kehaya on the grounds of nuisance. The Appellate Term, First Department affirmed the trial court's decision and denied the tenant's motion for leave to appeal to the Appellate Division, First Department. Tenant's attorney was fully aware of these proceedings, having represented the tenant throughout. The landlord then hired a new managing agent and a new attorney. They were apparently unaware of the court order evicting C. Kehaya. The new attorney brought a nonpayment proceeding against T. Kehaya (C. Kehaya's deceased father). The tenant's attorney did not tell the landlord's new attorney - or the Court - that C. Kehaya had been evicted. Instead, the tenant's attorney told landlord's attorney that T. Kehaya had died and that C. Kehaya, his son, was the tenant. The parties then entered into a court-ordered stipulation in which landlord agreed that C. Kehaya was the tenant. Tenant's attorney then brought a copy of the stipulation to landlord's former attorney, who decided that he could not proceed to evict C. Kehaya because of the stipulation in which landlord admitted that C. Kehaya was the tenant. When landlord's new attorney found out about the prior judgment of eviction against C. Kehaya, he made a motion asking the Court to vacate the stipulation, arguing that the stipulation should be vacated due to "unilateral mistake." The trial court denied the motion and the Appellate Term, First Department affirmed the denial. The Appellate Term, First Department reversed. Tenant's attorney told landlord's attorney that C. Kehaya was the tenant even though he knew that C. Kehaya was no longer a tenant because he was evicted. The Appellate Term, First Department said that "this was a fraud practiced on the new attorney for the landlord and the court and should not be allowed." The stipulation (which said that C. Kehaya was a tenant) should be vacated on the grounds of unilateral mistake.

Case Caption:
In Re Donnel Stern v. DHCR
Issues/Legal Principles:
DHCR's decision - which allowed landlord to submit evidence, for the first time, in the context of a petition for administrative review ("PAR") - is upheld.
Keywords:
DHCR; petitions for administrative review; evidence admissible during administrative appeal
Court:
Appellate Division, First Department
Judge:
lower court judge: Supreme Court Justice David Saxe
Date:
Thursday May 14, 1998
Citation:
NYLJ, page 26, col 1
Referred Statutes:
RSC Sections 2529.6, 2522.3(e),(f) and 2523.1
Summary:
DHCR's rent administrator did not give landlord an opportunity to submit certain evidence. When a petition for administrative review ("PAR") was filed, DHCR's commissioner gave landlord an opportunity to submit the evidence, citing RSC Section 2529.6, which states that the DHCR may accept evidence during a PAR proceeding that "could not reasonably have been offered or included in the proceeding prior to the issuance of the order." The Appellate Division, First Department upheld the decision of DHCR's commissioner, finding that the determination was rationally based, in compliance with DHCR's regulations and was not arbitrary and capricious.

New York Law Journal,
decisions for the week of May 4-8, 1998 (8 cases)

Case Caption:
In the Matter of Mennella v. Margarita Lopez Torres
Issues/Legal Principles:
Civil Court judges have no authority to condition a judgment of possession by requiring landlords to serve a copy of the judgment on tenants who fail to appear in housing court proceedings.
Keywords:
judgments; warrants; notice
Court:
Court of Appeals
Judge:
Hon. Levine; Hon. Ciparick concurring
Date:
May 6, 1998
Citation:
NYLJ, page 27, col 1
Referred Statutes:
RPAPL 749(3) & 732(3) & 731; 22 NYCRR 208.37(b) & 208.42.(i)
Summary:
The issue before the Court was the authority of Civil Court judges to impose additional procedural hurdles upon landlords before obtaining an eviction when a tenant fails to appear or answer in a summary proceeding. In this case the commercial tenant was properly served and landlord filed papers seeking a judgment of possession. The judge (the respondent in this action) rendered a default judgment with the words: "Final judgment of possession only. Warrant may issue 5 days after service of copy of the judgment upon the tenant by regular mail with a post office certificate of mailing to be filed with the clerk of court." The landlord then commenced an Article 78 proceeding for a mandamus to compel the judge to issue a warrant of eviction without requiring the landlord to mail a copy of the judgment upon the tenant. The judge then issued the warrant but amended the judgment to stay the execution of the warrant upon the same conditions of mailing and filing proof of mailing with the court clerk. The Supreme Court dismissed the landlord's petition, but the Appellate Division reversed relying upon a previous decision, Matter of Brusco v. Braun, 84 NY2d 674. The Court of Appeals upheld the Appellate Division's decision. The Court ascertained that the judge's general policy was to require additional safeguards, however the Court ruled that the judge had no statutory authority to condition the issuance or the execution of the warrant by requiring the landlord to first mail a copy of the judgment to the tenant, particularly since the statutory language of RPAPL 732(3) directs that the court "shall" issue a warrant when a final judgment for a landlord is awarded. The judge argued that the court has inherent powers in the interest of justice to stay or place conditions upon the execution of a warrant of eviction. The Court agreed that there might be such occasions, such as when a tenant seeks to vacate a warrant or there's a stay pending appeal from a judgment of eviction. But in the case at bar, the Civil Court stayed the judgment "for no particular reason arising out of the circumstances of this case." Rather it was based solely on the judge's propensity or personal policy to add a general notice requirement. The Court of Appeals ruled that the judge lacked discretionary legal authority to fashion such an additional procedural safeguard as a matter of policy for defaulting tenants.

Case Caption:
Bathija v. Chaudhry
Issues/Legal Principles:
Occupant who came into possession with permission is not a squatter.
Keywords:
licensees; squatters; collateral estoppel
Court:
Appellate Term, 2nd & 11th Judicial District
Judge:
lower court: Hon. Grayshaw
Date:
May 6, 1998
Citation:
NYLJ, page 31, col 5
Referred Statutes:
RPAPL 711
Summary:
Landlord served tenant a 10 day notice to quit claiming that the occupant was a trespasser-squatter. Another action was pending in the Supreme Court by the occupant against the landlord and the landlord's grantor. The Supreme Court case resulted in a stipulation where the parties agreed that the housing court proceeding could go forward on condition that the occupant be permitted to assert claims against the landlord and the grantor in the housing court proceeding. When the matter came for trial, however, the housing court refused to allow occupant to submit proof with respect to his claims and ruled that a prior housing court proceeding between the parties had conclusively established that the occupant was a licensee. The court awarded judgment to the landlord, but the appellate court reversed holding that the issue of whether the occupant was a licensee was not at issue in the previous case because that case merely determined that no landlord-tenant relationship existed between the parties. The appellate court also found that the parties were not bound by that prior proceeding because collateral estoppel can be waived, and was waived by the Supreme Court stipulation which allowed the occupant to interpose his claims as defenses. (Collateral estoppel means that the parties cannot re-litigate an issue of fact or law that was previously litigated.) The appellate court found, that in any event, this proceeding should be dismissed because the occupant was certainly not a squatter because he came into the apartment with permission, whereas a squatter is someone who did not receive anyone's permission to be in possession of an apartment.

Case Caption:
Northwood Village Inc. v. Curet
Issues/Legal Principles:
Tenant is given 100% rent abatement for conditions in apartment; landlord precluded from collecting future rent until conditions are cured.
Keywords:
warranty of habitability; abatement
Court:
District Court, Suffolk County
Judge:
Hon. Spinner
Date:
May 6, 1998
Citation:
NYLJ, page 34, col 4
Referred Statutes:
RPL 235-b
Summary:
Tenant admitted owing the landlord rent from July 1997 through the date of trial April, 1998, amounting to $5,342.90. The landlord testified that the Department of Social Services ("DSS") discontinued rental assistance payments on the tenant's behalf in July, 1997, but the tenant produced certified copies of DSS payment lists showing that the landlord had actually received monthly payments for the rent from DSS through December, 1997. The tenant also testified to various unsafe and unsanitary conditions in the apartment, including roach and vermin infestation, broken tiles which caused his daughter to injure herself and sustain stitches to her nose, leaks, falling plaster and "most appalling" the rupture of a flex pipe when landlord's workers were installing a stove in the apartment below. The ruptured pipe caused gas to fill up in tenant's apartment and compelled him and his family to vacate and the gas company to shut off all gas service. Over and over the tenant asked the landlord to restore his service, but the landlord refused and at one point used near force to remove the tenant from his office. The gas was still not turned on by the time of the trial. The court directed that all rent owed through the date of trial be abated, and further ordered that no future rent could be collected until all conditions in the apartment were cured.

Case Caption:
1286 First Realty v. Malatinksy
Issues/Legal Principles:
Elderly tenant in nursing home fails to establish proof of intent to return to the apartment; court rules that tenant forfeited the apartment as his primary residency.
Keywords:
nonprimary residency
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Eardell Rashford
Date:
May 4, 1998
Citation:
NYLJ, page 29, col 2
Referred Statutes:
none cited
Summary:
In this nonprimary residency proceeding, the parties stipulated to the facts. The facts demonstrated that the rent controlled tenant has not resided in his apartment since June, 1995 because he lived at a health care facility for approximately one year and then at an address in Queens. The stipulated facts also show that the tenant has not filed resident tax returns or voted from his Manhattan address since 1995. No telephone or cable television service is provided to the apartment and the utility service is at a bare minimum. The lower court held for the tenant on grounds that "there is no evidence presented to state that respondent shall be unable to return to the premises." The Appellate Term reversed and ruled that the tenant failed to make any representation as to his intention or ability to resume occupancy of the apartment and in light of the prolonged absence from the apartment, a vaguely articulated intent to return at some unspecified time in the future is insufficient to defend a nonprimary residency claim. The Appellate Term noted that the tenant failed to file an appellate brief, so only the landlord's position was argued before the appellate court.

Case Caption:
In Re 91 Fifth Avenue Corp. v. New York City Loft Board
Issues/Legal Principles:
Units subject to the Loft Law may be rent stabilized even though the units are in a building having less than six residential apartments.
Keywords:
lofts; rent stabilization
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Herman Cahn
Date:
May 4, 1998
Citation:
NYLJ, page 28, col 3
Referred Statutes:
Multiple Dwelling Law 286, McKinney's Consolidated Laws, Statutes 254
Summary:
The Appellate Division upheld the lower court's ruling that even though a loft apartment may be in a building with less than six units, if it is subject to Loft Law coverage, then the unit may be subject to rent stabilization (even though rent stabilized units normally must be in buildings having six or more residential units). The lower court ordered the landlord to offer tenants stabilized leases and to register the apartments with the DHCR.

Case Caption:
110-20 Road Apts Inc. v. Oberlander
Issues/Legal Principles:
Rent paid after tenancy terminated but prior to service of holdover petition leads to dismissal of holdover petition, since acceptance of rent during this time period reinstates the tenancy.
Keywords:
waiver; acceptance of rent
Court:
Civil Housing Court, Queens county
Judge:
Hon. James Grayshaw
Date:
May 6, 1998
Citation:
NYLJ, page 33, col 2
Referred Statutes:
none cited
Summary:
The tenants are shareholders of a co-op apartment and faced a holdover proceeding. The tenants argued that the case should be dismissed against them on the technicality that the co-op corporation (their "landlord") accepted maintenance ("rent") from them after the termination of their lease but prior to the commencement of the holdover proceeding. If this were true, then the acceptance of rent would contradict, and thereby nullify, the termination notice's intent to terminate the tenancy. At the hearing, the bookkeeper testified that she deposited the tenant's maintenance check on December 2nd and that she had authority whether or not to accept the tender of the check. The holdover proceeding was commenced on December 4th. On December 15th, the management company sent the tenants a "replacement check" with a cover letter explaining that the check had been cashed inadvertently through a lock box; court testimony proved this to be a false statement. The court dismissed the holdover on grounds that the checks was not cashed through a lock box but rather was done consciously by the corporation's own bookkeeper.
Notes:
Tenants need to be clear when a waiver argue will be a winning one in court. First, the time period in which the landlord cashes the rent check must occur after the termination notice expires and before the holdover proceeding begins. If the check is cashed after the holdover proceeding begins, courts have held that this is not cause to dismiss the petition. Also, if the landlord quickly returns the rent money with another check and explains in a letter that the cashing of the rent was an inadvertent mistake, the Appellate Division has ruled that this scenario likewise will not result in the dismissal of the petition.

Case Caption:
Hotel Preservation v. Byrne
Issues/Legal Principles:
Court refuses to vacate warrant of eviction against tenant even though guardian ad litems did not sign an affidavit upon their appointment.
Keywords:
guardian ad litem; possessory judgments
Court:
Civil Housing Court, New York County
Judge:
Hon. Timmie Elsner
Date:
May 6, 1998
Citation:
NYLJ, page 30, col 2
Referred Statutes:
CPLR 1202
Summary:
A nonpayment proceeding was commenced against the tenant and she defaulted. Thereafter the Department of Social Services (DSS)/Protective Services for Adults (PSA) sought to set aside the default and sought to have a guardian ad litem appointed for the tenant. Thereafter the parties entered into a stipulation which was signed by an attorney for PSA and a guardian ad litem was appointed for the tenant. The stipulation did not mandate a filing of an affidavit pursuant to CPLR 1202, nor did the guardian file one. The affidavit must state that the guardian consents to the appointment and facts showing his or her inability to answer for any damage sustained by his or her negligence or misconduct. The warrant and judgment remained in full force and effect and the tenant failed to comply with the stipulation to pay the rent. A year later an order to show cause was made to stay an eviction and another guardian ad litem was appointed for the tenant. She did not file an affidavit pursuant to CPLR 1202 either. Then the guardian commenced a bankruptcy proceeding on her ward's behalf which further prolonged the stay against an eviction. The debt was discharged in 1997. The current motion made on the tenant's behalf argues that since the two guardians never filed an affidavit, the stipulation should not be binding on the tenant (who defaulted in paying the rent). The tenant also argued that the bankruptcy decree rendered the landlord's possessory judgment void. The court ruled that it would not vacate the judgment simply because the guardians failed to sign affidavits pursuant to CPLR 1202 because the stipulations did not condition the appointments upon the signing of the affidavits. The court also noted that the signing of such an affidavit is a mere technicality and does not void the actions of either guardian. The court also cited case law for the principle that a bankruptcy discharge does not vitiate a landlord's possessory judgment. The court refused to vacate the warrant against the tenant, but gave the tenant a ten-day stay.

Case Caption:
Montauk Partners Realty Assoc. v. Fischetta
Issues/Legal Principles:
Petition which does not state landlord's actual corporate status is dismissed.
Keywords:
corporate status
Court:
Civil Court, Kings County
Judge:
Hon. Gustin Reichbach
Date:
May 6, 1998
Citation:
NYLJ, page 32, col 6
Referred Statutes:
General Business Law 130; RPAPL 741(1); CPLR 3-15(b) & 402
Summary:
Landlord brought a holdover proceeding against the rent controlled tenants by service of thirty day notice, then a holdover petition. The notice was signed by Owner, Montauk Partners Realty Assoc., by George Spada, agent. The petition also alleged that Montauk Partners Realty Assoc. owned the premises. The tenants claim that the landlord failed to file a business certificate pursuant to the General Business Law, but the owner responded that no such filing is needed because the owner is not a partnership but a corporation. The owner attached a copy of the deed which states that the property is owned by Montauk Partners Realty Assoc., Inc. The court found that the landlord failed to state its interest in the premises as required by RPAPL 741(1). The court noted that it would appear by the name of the owner in the petition (where no "Inc." was used) that the entity is a partnership, when in fact it is not. The appearance of a partnership was heightened by the fact that the notice was signed by an agent of the owner not a corporate officer. Since the tenants have filed counterclaims, the court observed that they would not be able to properly obtain judgments if the status of the owner were not properly ascertained. Under these circumstances, the court ruled that the petition was not subject to amendment, but rather to dismissal.