Housing Court Decisions November 1998

Return to current month
Return to main index
Return to 1998 index

Case Caption:

Lang v. Pataki

Issues/Legal Principles:

The Rent Deposit Law is constitutional on its face but may be unconstitutional as applied to certain tenants in certain situations.

Keywords:

Rent Deposit Law; constitutionality

Court:

Supreme Court, New York County

Judge:

Hon. Lehner

Date:

November 25, 1998

Citation:

NYLJ, page 28, col 3

Referred Statutes:

RPAPL Sections 745(2), 745(c)(ii), 747-a and 749(3)

Summary:

Tenant brought a case seeking a declaration that certain sections of the Rent Deposit Law of 1997 [RPAPL Section 745(2) and 747-a] are unconstitutional on their face. The Court determined that both sections were constitutional on their face but may be unconstitutional as applied to certain tenants in certain situations. These determinations will be made on a case-by-case basis. Section 745(c)(ii) of the Rent Deposit Law prohibits the tenant from requesting an adjournment of the trial where tenant made a deposit but fails to make a subsequent payment. The Judge said that this section is facially constitutional, but would not be constitutional as applied to a tenant who requested an adjournment because tenant could not be physically present in court due to illness or other emergency such as death or serious illness in the family. RPAPL Section 747-a prohibits the Court from vacating a warrant without requiring the tenant to make a rent deposit. This provision is constitutional because a judge still has the authority to vacate a warrant "for good cause shown" and without requiring a deposit pursuant to RPAPL Section 749(3).

Notes:

Justice Lehner's prior decision of March 30, 1998 can be accessed in decisions for the month of March 1998.

---

Case Caption:

Massachusetts Mutual Life Insurance v. Shefferes

Issues/Legal Principles:

The automatic stay provisions of the bankruptcy code protect a tenant from eviction by the housing court even when the warrant of eviction issued prior to the tenant's filing of a bankruptcy petition.

Keywords:

automatic stay; eviction

Court:

Civil Court, New York County, Housing Part

Judge:

Hon. Judge Malatzky

Date:

November 25, 1998

Citation:

NYLJ, page 29, col 6

Referred Statutes:

11 USC Sections 362(a), 541 and 1306; RPAPL Section 749(3)

Summary:

Landlord brought a nonpayment proceeding against tenant which was eventually settled by a stipulation requiring tenant to make payments in installments and authorized the issuance of a warrant of eviction if tenant failed to make a payment. Tenant failed to make a payment, the warrant issued on September 15, 1998 and the tenant filed a bankruptcy petition on September 29, 1998. RPAPL Section 749(3) provides that "the issuing of a warrant for the removal of a tenant cancels the agreement under which the person removed held the premises, and annuls the relation of landlord and tenant. . . . 11 USC Section 541 (a section of the bankruptcy code) states that the commencement of a bankruptcy case creates an estate which includes "all legal or equitable interests of the debtor in property as of the commencement of the case." The bankruptcy code also includes a very important "automatic stay" provision [11 USC Section 362(a)]. The automatic stay provision prohibits the debtor's creditors from commencing or continuing any proceeding against the debtor. The creditor must apply to the bankruptcy court for relief against the debtor. In this case, the warrant of eviction issued against the tenant before the tenant filed a petition in bankruptcy court. Under similar facts in another case, a housing court judge in Queens decided that automatic stay protections do not apply to protect the tenancy, because the issuance of the warrant ended the tenancy agreement and therefore the apartment is not part of the bankruptcy estate. However, this court declined to follow the Queens case, reasoning that the eviction of the tenant is actually the continuation of the nonpayment proceeding and the automatic stay provision prohibits not only the commencement but the continuation of any proceeding against the debtor. Thus, the tenant's filing of a bankruptcy petition prevents the housing court from allowing the landlord's marshal to execute the warrant (evict the tenant). If landlord wants to evict tenant, landlord's only remedy is to apply to the bankruptcy court. Where federal law conflicts with state law, federal law applies.

Notes:

Although this court's decision protects a tenant-debtor from eviction in housing court when the warrant has issued, another court made a different decision. A tenant with a nonpayment case pending who is also considering bankruptcy should be certain to file the bankruptcy petition before the warrant of eviction issues.

---

Case Caption:

City of New York v. Britt

Issues/Legal Principles:

Tenant is evicted for collecting and converting other tenants' rent money without authorization.

Keywords:

nuisance

Court:

Civil Court, Kings County, Housing Part

Judge:

Hon. Judge Alterman

Date:

November 25, 1998

Citation:

NYLJ, page 31, col 2

Referred Statutes:

none cited

Summary:

City of New York served tenant with a thirty-day notice that his month-to-month tenancy was terminated because he had illegally collected and converted other tenants' rent money. (Although the apartment is not rent-stabilized or rent-controlled, a government landlord must notify a tenant of the alleged cause for termination before bringing an eviction proceeding.) The prior private landlord had defaulted on its mortgage and the property came into the control of the mortgagees. On 1991, tenant was authorized to collect rent on behalf of the mortgagees. Eventually, in October 1992, the City of New York became the owner of the building but the respondent-tenant continued to collect rent from the other tenants. The Court understood the respondent-tenant's confusion, since the City of New York did not notify him that it was the landlord and certain departmental violations were addressed to him. However, the Court held that respondent-tenant's confusion should have ended in September 1996, when the City of New York sued two tenants of the building for nonpayment of rent and respondent-tenant accompanied them to Court. At that time, the landlord's attorney and the judge informed him that New York City was the landlord. Nevertheless, respondent continued to collect rent for at least one additional year and did not even turn over the rents collected to the City. The Court held that the respondent's tenancy should be terminated. Respondent placed other tenants in danger of eviction, because their payment of rent to him did not relieve them of their obligation to pay rent to the City of New York. The Court found that tenant was a menace to the other tenants in the building.

Notes:

When the City of New York takes over a building, it should immediately inform all tenants, so that they do not fall victim to unscrupulous individuals such as the respondent in this case, and so they know who to call regarding repairs and maintenance.

---

Case Caption:

In Re Hampton Management v. DHCR

Issues/Legal Principles:

Landlord's application to the DHCR for a Major Capitol Improvement ("MCI") rent increase is denied, because landlord did not file application within two years of completing the work.

Keywords:

major capitol improvement rent increase

Court:

Appellate Division, First Department

Judge:

lower court judge: Hon. Justice Harold Tompkins

Date:

November 27, 1998

Citation:

NYLJ, page 27, col 5

Referred Statutes:

RSC Section 2522.4(a)(8)

Summary:

Landlord completed a major capitol improvement ("MCI") to the building in March 1990, but did not file an application for an increase with the DHCR for more than two years thereafter, although the RSC requires landlords who wish to obtain an increase to file within two years. The DHCR denied landlord's application, the landlord filed an Article 78 proceeding with the Supreme Court, the Supreme Court upheld the DHCR's decision and was affirmed by the Appellate Division, First Department.

---

Case Caption:

2340-2341-2342-2343-2344 BLF Realty Holding Corp. v. Miguel Cano

Issues/Legal Principles:

Default judgment of possession upheld where tenant failed to establish a meritorious defense or a reasonable excuse for failure to answer the landlord's complaint.

Keywords:

default judgments; motions to vacate default judgments

Court:

Appellate Division, First Department

Judge:

lower court judge: Hon. Justice Edward Lehner

Date:

November 27, 1998

Citation:

NYLJ, page 28, col 1

Referred Statutes:

CPLR 5015(a)

Summary:

Landlord sued tenant for nonpayment of rent. Tenant failed to appear and landlord obtained a default judgment for possession of the premises and rent arrears. Landlord moved to enter the judgment and tenant opposed. The lower court found that the default judgment should not be vacated because the tenant failed to establish a meritorious defense or a reasonable excuse for failure to answer the complaint and the appellate court affirmed. The opinion of the court does not discuss the reasons the tenant offered in support of vacating the default judgment.

Case Caption:

Crosdale v. Crosdale

Issues/Legal Principles:

Owner-Husband can maintain eviction proceeding against ex-wife when separation agreement spells out the rights of the parties.

Keywords:

licensee; necessary parties

Court:

Civil Housing Court, Kings County

Judge:

Hon. D. Thomas

Date:

November 18, 1998

Citation:

NYLJ, page 32, col 2

Referred Statutes:

CPLR 3211(a)(2); RPAPL 741(4)

Summary:

The husband is one of the owners of the house where his former wife lives. They received a judgment of divorce on March 19, 1998 based on a separation agreement. The court noted that summary proceedings to remove a spouse may not lie under the RPAPL when the marital status and rights under the marital relationship have not been dissolved or determined by a court of appropriate jurisdiction, prior to the commencement of the summary proceeding. The court held that this case was an exception because the couple had voluntarily separated pursuant to an agreement and their rights were incorporated into the subsequent divorce. The court looked to the agreement to determine if the husband had a right to maintain the proceeding. The agreement was silent as to how long the wife could remain in the house. On the one hand, this could be interpreted as allowing the husband to commence a licensee eviction proceeding at any time. On the other hand, the agreement provided that the husband would be responsible for the carrying charges and his share of the mortgage payments for two years. The court presumed that the agreement intended for the wife to remain in the house for two years. The court therefore concluded that the husband was authorized to commence the eviction proceeding within two years after the separation agreement was entered into, or after June 21, 1998.

The wife also argued that the husband failed to join the children as necessary parties to the proceeding. The court rejected this position on grounds that the children do not have an independent possessory right to occupy the apartment. In this case, the children's rights are derived and flow from their mother and therefore they need not be named. The court also rejected the wife's argument that the husband failed to attach a copy of the separation agreement to the holdover petition, since this is not a legal prerequisite to the holdover proceeding. The petition must set forth the facts, but it need not attach documents.

---

Case Caption:

Dafjan NY Ltd. v. Mishiyev

Issues/Legal Principles:

Court denies landlord's initial request for judgments because the submitted affidavits of non-military service lack sufficient information to determine if tenants' defaults arose while serving in the military.

Keywords:

affidavit of non-military service

Court:

Civil Court, Kings County

Judge:

Hon. Acosta

Date:

November 18, 1998

Citation:

NYLJ, page 32, col 3

Referred Statutes:

New York Military Law 303(3); 50 USCA 520(1)

Summary:

The landlord seeks a judgment of possession and warrant of eviction against various tenants whose cases are unrelated and all of whom have failed to appear (have defaulted). The issue the court examines is whether the landlord's affidavits of non-military service related to each tenant is sufficient to permit the court to grant judgments. The court observed that each affidavit is virtually identical in form, except for the names of the tenants. The purpose of the law requiring such affidavits is to prevent default judgments from being entered against members of the Armed Services in circumstances where they might be unable to defend themselves. The court noted that a proper affidavit can derive information from the super or neighbors or state the age of the tenant (i.e., a senior citizen would presumably not be in the miliary) that would infer that the tenant is not in the military service. The affidavits in these cases were woefully inadequate because there was insufficient information to permit a court to draw a conclusion as to whether the tenant was in the service or not. The court therefore "sua sponte" (i.e., on its own initiative) denied the landlord's request for judgments and warrants without prejudice to request again upon the submission of proper affidavits.

---

Case Caption:

NYCHA v. Freytes

Issues/Legal Principles:

NYCHA respondents fail to establish claim to their deceased mother's apartment.

Keywords:

succession rights

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Howard Sherman

Date:

November 19, 1998

Citation:

NYLJ, page 32, col 5

Referred Statutes:

none cited

Summary:

The Appellate Term reversed the lower court's decision and found that the respondents failed to establish their entitle to possession as "remaining family members" of the Housing Authority following the death of their mother, the tenant of record. The case does not state why the tenants failed to show succession rights claim, but it did note that the tenants did not pay rent for roughly 11 months after their mother died, and also noted that they could prove no ability to pay rent or the source of any income. The final observation seemed dispositive: one of the respondents was arrested twice for marijuana possession and criminal trespass on the housing project grounds.

---

Case Caption:

321 West 16th Street Assoc. v. Wiesner

Issues/Legal Principles:

Tenant charged with nuisance is denied rights to vacate a stipulation settling the case.

Keywords:

stipulations; nuisance

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Walter Strauss

Date:

November 19, 1998

Citation:

NYLJ, page 32, col 4

Referred Statutes:

none cited

Summary:

The Appellate Term upheld the lower court's decision to deny tenant's motion to vacate a stipulation. The Court held that the "tenant was afforded considerable latitude to clear the long-standing nuisance she had created in the dwelling's common areas." The Appellate Term ruled that the lower court was obligated to protect the rights of other building tenants whose health and safety ere at risk particularly given the evidence of a fire in the first floor hallway where tenant had stored boxes of refuse, clothes and other flammables. Presumably, tenant's stipulation sought to deter her eviction.

---

Case Caption:

City of New York v. Hernandez

Issues/Legal Principles:

.

Keywords:

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Howard Sherman

Date:

November 19, 1998

Citation:

NYLJ, page 32, col 4

Referred Statutes:

none cited

Summary:

The Appellate Term reversed the lower court's decision which involved the tenant's alleged illegal use of the apartment. The Court held that the trial court improperly permitted the landlord to introduce evidence of events unrelated in time or substance to the acts stated in the notice of termination and petition as grounds for eviction. The trial court also erred in taking judicial notice of an unrelated holdover proceeding brought against the tenant roughly three years earlier (in which the tenant prevailed on the merits), and expressly basing its negative assessment of the tenant's credibility in the instant case on the facts derived from the prior proceeding. Although the unrepresented tenant did not object to these errors at trial, they were clearly prejudicial, according to the Court, in the context of this "close case" which stemmed from two occurrences that took place outside the building premises and involved no claim of active misconduct on the part of the tenant personally. (The occurrences are not described.)

---

Case Caption:

Daniel v. NYS DHCR

Issues/Legal Principles:

Four year statute of limitation on tenants' overcharge complaints is upheld, even where tenants allege fraud by prior owner.

Keywords:

overcharges; statute of limitations; class action; mandamus

Court:

Supreme Court, New York County

Judge:

Hon. William Davis

Date:

November 18, 1998

Citation:

NYLJ, page 26, col 3

Referred Statutes:

Rent Regulation Reform Act of 1997 ("RRRA"); RSC 2529.11 & 2510.10 & 2529.2 & 2527.6 & 2530.1; CPLR 7801; Administrative Code of the City of New York 26-516 & 26-517; CPLR 213-a

Summary:

Petitioners are a small group of tenants who filed 8 separate overcharge complaints with the DHCR in 1992. Although some of the complaints have culminated in a final determination by the agency, most of the complaints are still pending at the PAR stage within the DHCR. The petitioner-tenants charge in their Supreme Court Article 78 proceeding that the DHCR has uniformly denied legitimate overcharge complaints by engaging in improper and wrongful conduct, as follows: (1) denying any complaint based on overcharges occurring more than four years prior to the filing of the complaint; (2) deliberately ignoring binding law which requires the agency to consider evidence of overcharges occurring more than four years prior the filing of the complaint; (3) unlawfully delaying decisions for four years or more; and (4) relying upon the Rent Regulations Reform Act of 1997 (RRRA) which the tenants charge is unconstitutional.

Petitioners' Article 78 proceeding is not an appeal of DHCR decisions. Rather, it is a mandamus. They are asking the Supreme Court to direct and compel the DHCR to render a decision in their cases. Their Article 78 proceeding also seeks class action certification and reversal of thousands of decisions made by DHCR which denied overcharges based on events occurring more than four years prior to the filing of the action. The tenants also seek a declaration that RRRA is unconstitutional because it prevents inquiry into events occurring more than four years prior to the filing of the overcharge complaint.

The court held that it cannot determine Petitioners' complaints until Petitioners have exhausted the administrative remedies. In other words, they cannot seek relief in the Supreme Court until the DHCR decides their cases (some of which have been pending for five years). The Court ordered the DHCR to decide the PARs and the initial complaints that are pending within 90 days. The Court denied the tenants' request to certify their complaint with class action status. The Court stated that "there is no single issue of fact or law common to the proposed class which predominates over any questions affecting only individual members."

One of the eight overcharge complaints denied on PAR was ripe for the Supreme Court to hear. The Court examined the Wollman/Schmertz overcharge claim. The Wollmans commenced occupancy on May 1, 1986 paying $822.00 per month. The Schmertz's moved in after them in March, 1989 and paid $1,024.46 per month in rent. Both couples charge that the landlord failed to serve the first rent stabilized tenant with a Notice of Initial Legal Registered Rent by certified mail (which would preclude the owner from increasing the rent from the prior rent control rent to a first stabilized market rent). The landlord fraudulently listed the last rent paid on the Wollman's rider as $721.06, when in fact the last tenant paid $499.06. The Rent Administrator found no overcharge in the Wollman case (i.e., the rent of $822 was valid), but found that the Schmertz's rent should have been only $994.62 per month, which resulted in overcharges of $2,369.13.

The Wollmans and the Schmertzs filed PARs. The Commissioner upheld both decisions of the Rent Administrator. The Wollmans filed their complaint on December 1, 1992, making the base date December 1, 1988 at which time the registered rent was $822.00. The Commission also rejected the Wollmans' claim that the first stabilized tenant was not served with the initial rent registration, finding that the owner had properly served the RR1 form and that tenant did not challenge the rent within 90 days of service. The Commissioner also rejected the fraud claim because the Rider stated that the rent was also based on improvements. Finally the Commissioner agreed with the Administrator that RRRA limits the DHCR's examination to a period of four years prior to the filing of the complaint. The Commission did not disturb the Administrator's finding of overcharge in the Schmertz's case. The Court ruled that the DHCR was correct to adhere to the RRRA's four-year rule and that the DHCR had no authority to examine the rental history beyond four years from the date the complaint was filed. The Court further stated that even an allegation of fraud cannot circumvent the four-year statute of limitations!.

In assessing Petitioners' challenge of the constitutionality of the RRRA, the Court preliminary outlined the judicial and legislative history of the statute. The Court determined that the new law "neither created nor diminished nor abrogated the tenants' right to commence and maintain an overcharge proceeding under the Rent Stabilization Law. Since Petitioners had the full four years to bring a proceeding, no statutory right was abridged. The [new law] merely clarified the law to limit the examination of the rental history to the same four year period. An individual does not have a vested interest in any rule of law or legislative policy which entitled him to have such law or policy remain unaltered for his or her own benefit." The Court concluded that RRRA is constitutional.

Notes:

Let us pray these tenants fight the "good fight" on behalf of all New York City tenants and take their case up to the Appellate Division. It is outrageous that a landlord could engage in fraud and be shielded by the four-year rule of this statute. It is not hard to imagine scenarios where the landlord installs a fake tenant paying a rent in gross excess above the prior rent. All the landlord has to do is allow this "straw man" to remain in occupancy for four years, and then landlord has it made. No other future tenants could ever challenge the excess rent due to the four year statute of limitations. Apparently this Court has no problems with such inequitable practices.