Housing Court Decisions September 1998

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Case Caption:

Paikoff v. Harris

Issues/Legal Principles:

A non-purchasing tenant in a co-operative conversion plan includes a tenant who took occupancy after the effective date of the plan and after the closing date (the date the sponsor transfers ownership of the building to the cooperative corporation).

Keywords:

non-purchasing tenant

Court:

Civil Court, Kings County, Housing Court

Judge:

Hon. Finkelstein

Date:

September 30, 1998

Citation:

NYLJ, page 28, col 1

Referred Statutes:

General Business Law ("GBL") Section 352-eeee ("The Martin Act"); RSL Section 2520.11; RPL Section 223-b; RPAPL Section 741

Summary:

In February 1992, landlord (the sponsor of a non-eviction cooperative conversation plan) and tenant entered into a lease agreement, which was renewed. Landlord then offered tenant a second lease renewal (referred to by landlord as "the third lease"), but tenant refused to sign this renewal lease because they objected to the terms and conditions set forth in the lease. (In all probability, the offer of a renewal lease was rejected because the landlord asked for a rent increase which the tenant believed was excessive). The landlord then brought an eviction proceeding against tenant. In its petition, landlord alleged that tenant was not a "non-purchasing tenant" as defined by the Martin Act, and therefore was not protected by the Martin Act's proscription against unconscionable rent increases. (The landlord also argued that the rent increase requested was not unconscionable). The tenant's answer alleged that the tenant is a "non-purchasing tenant" as defined by the Martin Act and the Court agreed with tenant. In its opinion, the Court quoted from GBL Section 352-eeee(1)(e), which defines a non-purchasing tenant as "a person who has not purchased under the plan and who is a tenant entitled to possession at the time the plan is declared effective or a person to whom a dwelling unit is rented subsequent to the effective date." Since the effective date of the co-op plan was April 1987, and the tenant took occupancy in February 1992, the Court decided that the tenant in this case was "a person to whom a dwelling unit is rented subsequent to the effective date." The landlord argued that a "non-purchasing tenant" includes only tenants who took occupancy after the effective date of the plan (in this case, April 1997) but before the closing (the date the sponsor transferred ownership of the building to the cooperative corporation, in this case, May 1987). The Court rejected this argument because it goes against the plain language of the statute. The Court was also influenced by the fact that the Attorney General of the State of New York (the agency with jurisdiction over co-op conversions) submitted papers to the Court in support of the tenant's interpretation of the statute. The Court dismissed the landlord's petition because it did not accurately state the facts upon which the proceeding was based (as required by RPAPL Section 741) because it did not properly allege the rent regulatory status of the building, that is, that the tenant is protected by the Martin Act.

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Case Caption:

Dexter 345,Inc. v. Labosky

Issues/Legal Principles:

If landlord resorts to conspicuous place ("nail and mail") service, then the notice of petition and petition must be mailed to the actual residence of tenant rather than to the subject premises, if landlord has written notice that tenant's actual residence is other than the subject premises.

Keywords:

conspicuous place service; mailing of notice of petition and petition

Court:

Civil Court, New York County

Judge:

Hon. Malatzky

Date:

September 30, 1998

Citation:

NYLJ, page 26, col 6

Referred Statutes:

RPAPL Section 735

Summary:

Landlord brought a nonpayment proceeding against tenant and served tenant with a copy of the rent demand, the notice of petition and the petition upon tenant by posting the entrance door to Room 1311 of the subject building and by mailing to Room 1311. Tenant alleged that service was improper because she does not reside in Room 1311 - she resides in Rooms 1307 and 1308-1309 - and the landlord had received written notice of this fact. Landlord knew because, in a 1996 proceeding, in a case brought by Ms. Labosky (tenant) against Ms. Piccolino (subtenant), the Court decided that Ms. Piccolino was the tenant entitled to continued possession of Room 1311 (not Ms. Labosky) on grounds of illusary prime tenancy. Ms. Labosky mailed a copy of this decision to the landlord in June 1997 (before this nonpayment proceeding was initiated). In general, RPAPL Section 735 provides that "nail and mail" (conspicuous place) service may be made if tenant cannot be personally served or if personal service cannot be made upon a person of suitable age and discretion. However, if landlord resorts to "nail and mail," then the mailing can only be made to the subject premises (in this case, Room 1311) if it is the residence of the respondent-tenant. RPAPL Section 735 provides that "if such property is not the place of residence of such person and if the petitioner shall have written information of the residence address of such person, [then mailing must be made to] the last residence address as to which the petitioner has such information. . . ." Since the landlord had written information that the residence address of the tenant was actually Rooms 1307 and 1308-1309, the landlord should have sent the mail to these Rooms, rather than Room 1311. Since the landlord failed to do so, the Court dismissed the proceeding because the notice of petition and petition was not properly served in accordance with RPAPL Section 735. The Court also noted that under the circumstances of this case, the mailing to Room 1311 (where Ms. Piccolino resides) may not have been forwarded to Ms. Labovsky, "given their contentious history and the previous litigation which occurred between them."

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Case Caption:

442 Sterling Place Realty Corp. v. Smith

Issues/Legal Principles:

Tenant proved defense of retaliatory eviction where landlord served her with termination notice only four months after she obtained a court order requiring landlord to correct violations in her apartment.

Keywords:

retaliatory eviction; nuisance holdover

Court:

Civil Court, Kings County

Judge:

Hon. Peter Wendt

Date:

September 30, 1998

Citation:

NYLJ, page 28, col 5

Referred Statutes:

RPL Section 223-b

Summary:

Landlord brought a holdover proceeding against rent-stabilized tenant alleging nuisance or gross negligence, damage to the subject premises and substantially interfering with the comfort and safety of other tenants. Landlord alleged, among other things, that tenant caused plumbing problems and water leaks and that her children behaved badly. After trial, the Court found that only one instance of flooding was caused by tenant, when her godson threw a toothbrush in the toilet, and that she promptly reported that incident to the landlord. In fact, the tenant suffered from faulty plumbing in the building. Regarding the children, the children were noisy during the day and the landlord could not establish that various disturbances (ringing the doorbells of neighbors) were caused by tenant's children rather than someone else. Based upon the facts proven at trial, the Court decided that tenant's conduct did not constitute a nuisance. The Court cited to many other cases which found that an isolated incident cannot establish a claim for nuisance. In considering the landlord's claim that tenant's children were too noisy, the Court noted that this is an urban apartment building, not a country house, and that a certain amount of noise is inevitable and cannot be held to constitute a nuisance. However, the Court found that the landlord instituted the holdover proceeding against tenant in retaliation for the fact that tenant commenced a housing part ("HP") proceeding against landlord which resulted in a court order requiring the landlord to correct violations. RPL Section 223-b provides that if the landlord commences a proceeding against tenant within six months after tenant brings a proceeding to enforce tenant's rights (e.g., an HP proceeding), there is a rebuttable presumption that landlord commenced the proceeding in retaliation for tenant's complaint. Since the tenant obtained an order requiring the landlord to correct violations just four months prior to the date the termination notice was served upon tenant, the rebuttable presumption applies. Landlord failed to give a "credible explanation of a non-retaliatory motive," so the presumption stands. The landlord's holdover petition against tenant was dismissed.

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Case Caption:

Nostrand Associates v. Simpson

Issues/Legal Principles:

The tenant's loss of his Section 8 rent subsidy is not a defense to the landlord's nonpayment proceeding, unless the termination was due to some failure on landlord's part.

Keywords:

Section 8

Court:

Appellate Term, Second Department

Judge:

lower court judge: Hon. C. Callender

Date:

October 1, 1998

Citation:

NYLJ, page 31, col 1

Referred Statutes:

none cited

Summary:

Landlord brought a nonpayment proceeding against tenant. Tenant defaulted and the lower court granted landlord a final judgment of possession. Tenant made a motion to vacate the default judgment, alleging that he had a meritorious defense against the proceeding, that is, the Section 8 rent subsidy program stopped paying its share of his rent due to problems relating to recertification. The tenant also alleged that the nonpayment case should be dismissed because the landlord had failed to name the New York City Housing Authority (NYCHA) as a party to the proceeding, as required by the consent decree in Williams v. NYCHA. The trial court granted tenant's motion to vacate. The appellate court reversed. The rent sought in the landlord's nonpayment petition accrued after the tenant's Section 8 rent subsidy was terminated. Therefore, the landlord was not obliged to name the NYCHA as a party to the proceeding and the lower court should not have dismissed the landlord's petition for this reason. The tenant's loss of his rent subsidy is not a defense to the landlord's nonpayment proceeding (unless the termination was due to some failure on the landlord's part, which is not the case here). Since tenant did not show a meritorious defense against this nonpayment proceeding, the lower court should not have vacated the default judgment. The appellate court reversed and reinstated the judgment of possession.

Case Caption:

Riveredge Apts., Inc. v. Levay

Issues/Legal Principles:

Tenant required to remove dogs in order to comply with postjudgment ten-day cure period.

Keywords:

pets; postjudgment cure

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Elizabeth J. Yalin Tao

Date:

September 22, 1998

Citation:

NYLJ, page 21, col 5

Referred Statutes:

RPAPL 753(4)

Summary:

Landlord brought a holdover proceeding against tenant alleging a substantial violation of the lease based on the tenant's harboring two dogs, including a 60 pound German Shepard. The issuance of the warrant was stayed for ten days to allow the tenant to correct the breach of the lease, but no express order was rendering requiring tenant to remove the dogs. During the ten-day cure period, no incidents occurred with the dogs. Three months later the tenant moved for postjudgment relief to vacate the final judgment and warrant and dismiss the petition. The lower court held that the tenant had cured during the ten day period and any subsequent breaches thereafter were "de minimis." The Appellate Term reversed finding that the landlord presented documentary and testimonial evidence that tenant continued to violate the lease in a substantial way and was unable to control the dogs' alleged aggressive conduct. The Appellate Term held that a proper cure required the removal of the dogs and not merely tenant's control of the dogs during a ten day period. The Court gave the tenant a ten day opportunity to cure by removing the dogs. If the tenant does remove the dogs, the tenant will save his apartment.

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Case Caption:

Rossmill Associates v. Westmoreland

Issues/Legal Principles:

Landlord deemed prevailing party in nonpayment proceeding, entitling landlord to awards of reasonable attorney's fees and prejudgment interest.

Keywords:

attorney's fees; prejudgment interest

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Anne Katz

Date:

September 22, 1998

Citation:

NYLJ, page 21, col 2

Referred Statutes:

none cited

Summary:

The Appellate Term reversed the lower court's decision which denied landlord's motion for attorney's fees. The Appellate Term deemed the landlord the prevailing party since the landlord recovered 8 months rent amounting to $3,609.72. Landlord was also granted a possessory judgment which means that if the rent was not paid, landlord would recover the apartment. Tenant, however, only received a 10% abatement for two months totalling $92.64, and tenant's counterclaim for punitive damages was dismissed. In this posture, the landlord held the status of prevailing party entitling it to attorney's fees. The Appellate Term also noted that landlord was entitled to an award of prejudgment interest since landlord was entitled to interest as of right upon its recovery for rent in the judgment dated July, 1997.

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Case Caption:

Pechock v. DHCR

Issues/Legal Principles:

Tenants' overcharges cannot be based on a calculation of the rent history that exceeds four years from the filing of the complaint.

Keywords:

overcharges; treble damages; illusory prime tenancy; improvements

Court:

Appellate Division, Fist Department

Judge:

lower court: Hon. Edward Lehner

Date:

September 21, 1998

Citation:

NYLJ, page 27, col 1

Referred Statutes:

RLS 26-516(a); 9 NYCRR 2526.1(a)(1)

Summary:

Various tenants filed an overcharge complaint (seemingly for the same apartment) with the DHCR and the DHCR found in their favor and imposed treble damages against the landlord. The landlord appealed, eventually to the Appellate Division. The Appellate Division found that DHCR's overcharge calculations referred to the apartment's rent in 1985, more than four years prior to the filing of the complaint in 1990. However, the recent 1997 rent law precludes any examination of rent history prior to the four-year period preceding the filing of a complaint, and the law is retroactive to include all cases pending at the time the law was enacted (June, 1997). Thus, the Appellate Division was compelled to reduce the amount of the tenants' overcharge awards. However, the Court did agree with DHCR's finding that the various tenants were overcharged on an illusory prime tenancy scheme and not the result of landlord's claim of arithmetic errors. The Court also upheld DHCR's denial of rent increases based on improvements since the landlord lacked details in the bills and invoice did not seem to support or explain the increase.

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Case Caption:

Rossmill Assoc. v. Cane

Issues/Legal Principles:

Landlord did not obtain a possessory judgment against tenant in sublet case and is therefore not the prevailing party for purposes of attorney's fees.

Keywords:

attorney's fees; sublets; roommates

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Eardell Rashford

Date:

September 23, 1998

Citation:

NYLJ, page 21, col 2

Referred Statutes:

none cited

Summary:

Landlord brought a holdover proceeding against tenant on grounds of alleged unlawful sublet. The matter was settled and tenant expressly reserved her right to assert a defense that the alleged illegal subtenant was actually a roommate. Thereafter tenant submitted an affidavit stating that her roommate had vacated and again denied the allegations. The lower court denied landlord's motion for attorney's fees and the landlord appealed. The Appellate Term confirmed the lower court's decision, holding that since landlord did not obtain a possessory judgment against tenant and the matter was never litigated on the merits, neither party prevailed (the standard for obtaining attorney's fees).

Notes:

Disclosure: Housing Court Decisions Editor Colleen McGuire's law office represented the tenant on appeal.

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Case Caption:

Eisenhauer v. Sarrabia

Issues/Legal Principles:

Owner and agent signed the petition, but this did not make the agent a party to the proceeding.

Keywords:

principle/agent; service of process

Court:

District Court, Nassau County

Judge:

Hon. Gewanter

Date:

September 23, 1998

Citation:

NYLJ, page 26, col 1

Referred Statutes:

RPAPL 741(4) & 721; 22 NYCRR 130-1.1-a

Summary:

In a nonpayment proceeding the tenant argued that because the agent also signed the petition (along with the owner) this act turned him into a party to the proceeding. The agent served the petition against a rule that a party cannot serve their own papers. The court noted that prior to 1977, an attorney or an agent could bring a summary proceeding on behalf of their client or principal, but the amendment to the law deleted this authority. The court further noted that there is no requirement that there be any signature on a petition, only that it be verified. The court was satisfied that the owner signed the petition and verification. The agent's signature along side the owner's was deemed superfluous. If only the agent had signed, and not the owner, then there would have been a jurisdictional problem. Therefore, by merely adding his signature next to the owner's, the agent did not make himself a party to the proceeding. The court ruled that it is permissible for an agent to serve its principal's legal papers. The court therefore declined to grant the tenant's request to dismiss the petition.

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Case Caption:

White Plains Housing Authority Inc. v. Marbury

Issues/Legal Principles:

Granddaughter of deceased tenant in federally subsidized housing is not entitled to succession rights since the landlord did not know of her occupancy of the apartment and she was not listed on prior certifications.

Keywords:

succession rights

Court:

City Court of White Plains, Westchester County

Judge:

Hon. Friia

Date:

September 23, 1998

Citation:

NYLJ, page 26, col 5

Referred Statutes:

24 CFR 5.403(6)(6) & 912.2

Summary:

This building is subject to federal subsidies and federal rules. The tenant passed away and his granddaughter sought succession rights as the tenant's remaining family member. She moved into the apartment initially with her mother, the daughter of the deceased tenant. The mother subsequently obtained another apartment in the building. The granddaughter claimed to have moved in in August 1995 and continually resided with him until his death in May, 1996. During the tenant's life, when he had filled out the annual certification forms, he listed only himself as the resident of the premises. However on April 30, 1997, a Personal Declaration Form was presented to the landlord signed by the mother which listed the granddaughter as an occupant of the grandfather's apartment. In prior years, the granddaughter was listed on the Declaration Form involving her mother's apartment. The court rejected the granddaughter's succession rights claim since the landlord did not approve of same and it allowed the tenant to "jump" ahead of the waiting list of qualified applicants for public housing.

Case Caption:

180 Varick Street Corp. v. Center for Entrepreneurial Management

Issues/Legal Principles:

Loft Board regulation which precludes tenants from filing coverage applications with the Loft Board after August 1, 1986 does not preclude Courts from hearing coverage claims after that date.

Keywords:

loft law coverage; statute of limitations

Court:

Civil Court, New York County, Part 52

Judge:

Hon. K. Smith

Date:

September 16, 1998

Citation:

NYLJ, page 22, col 3

Referred Statutes:

MDL Section 286(6); 29 RCNY Section 1-06.1

Summary:

Landlord brought an eviction proceeding against tenants because their commercial lease expired. Tenants assert that they are actually residential tenants who are rent-regulated and protected from eviction by the Loft Law. Landlord argued that it is too late for tenants to claim that they are protected by the Loft Law, because the Loft Board passed a regulation which required tenants to file coverage applications no later than August 1, 1986. The Court decided that this statute of limitations applies to the Loft Board but not to the Courts. The Loft Law gives the Courts and the Loft Board concurrent jurisdiction over Loft Law issues. The legislature did not give the Loft Board authority to set a statute of limitations which would apply to the Court - only the legislature has this power. The Court is free to hear Loft Law coverage issues until 1999, when the law expires.

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Case Caption:

684 E. 189th Street HDFC v. Cotrone

Issues/Legal Principles:

Summary nonpayment proceedings are dismissed because the predicate notice did not comply with the Federal Debt Collection Practices Act ("FDCPA").

Keywords:

FDCPA; rent demand

Court:

Civil Court, Bronx County

Judge:

Hon. Schneider

Date:

September 16, 1998

Citation:

NYLJ, p 22, col 6

Referred Statutes:

RPAPL Section 711(2); 15 USC Section 1692

Summary:

Landlord's attorney signed rent demands which were served upon tenants prior to the commencement of summary nonpayment proceedings. Tenants move to dismiss the nonpayment proceedings on the grounds that the rent demand notice violates the FDCPA. The Court granted tenants' motion. Citing Romea and other federal district court cases, the Court found that an attorney is a "debt collector" and a rent demand is a "communication" as those terms are defined in the FDCPA. The FDCPA requires that a communication signed by a debt collector must, among other things, give the debtor thirty days to dispute the debt in writing. The rent demand (the predicate notice) did not comply with the FDCPA and therefore the summary proceeding must be dismissed. The Court cited a Court of Appeals case (Chinatown Apartments v. Chu Cho Lam) for the proposition that an inadequate predicate notice cannot be amended after the fact.

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Case Caption:

Tabak v. Tabor

Issues/Legal Principles:

Landlord may accept rent up to the date set forth in the termination notice.

Keywords:

termination notice; acceptance of rent

Court:

Civil Court, New York County

Judge:

Hon. Shulman

Date:

September 16, 1998

Citation:

NYLJ, p 22, col 3

Referred Statutes:

(none cited)

Summary:

Landlord brought a non-primary holdover proceeding against tenant and tenant asserted defenses based upon landlord's acceptance of rent, breach of the warranty of habitability and harassment. The Court rejected all three of the tenant's defenses. The landlord's notice of non-renewal advised the tenant that the tenancy would terminate on May 31, 1998. Landlord was entitled to accept rent prior to May 31, 1998. Tenants do not allege that landlord accepted any rent after May 31, 1998. The warranty of habitability defense was stricken because it is not "inextricably intertwined" with the landlord's main claim for possession. The harassment claim (which was not supported) is irrelevant to landlord's possessory claim. According to the parties' stipulation, the holdover proceeding will be tried after landlord conducts discovery of tenant.

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Case Caption:

Fannie Mae v. Lindo

Issues/Legal Principles:

Predicate notice signed by landlord's attorney - rather than landlord - is defective and requires dismissal of summary proceeding.

Keywords:

defective predicate notice

Court:

District Court, Nassau County

Judge:

Hon. Gewanter

Date:

September 16, 1998

Citation:

NYLJ, p 24, col 3

Referred Statutes:

CPLR Section 3211(a)(7); RPAPL Section 713; RPAPL Section 711(2)

Summary:

Landlord (Fannie Mae) brought a post-foreclosure summary proceeding against tenant, after serving a ten-day notice to quit signed by landlord's attorney. Tenant moved to dismiss stating, among other things, that the case should be dismissed because the ten-day notice was signed by an attorney for the landlord rather than by the landlord. The Court granted tenant's motion. The Court explained that when an attorney - rather than the landlord - signs a notice, unaccompanied by an authorization document signed by the landlord, the notice leaves the tenant in doubt as to whether the attorney who signed the notice is actually entitled to act for the landlord. In this case, the attorney who signed the ten-day notice to quit was a different attorney than the one which Fannie Mae employed to prosecute the foreclosure proceeding. This could only add to the tenant's confusion. The tenant's motion was granted and the holdover proceeding was dismissed.

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Case Caption:

Mimikopoulos v. Nickalas

Issues/Legal Principles:

Since landlord entered into lease with tenant-husband but not with tenant-wife, wife is not a necessary party in a summary proceeding brought against tenant.

Keywords:

necessary party

Court:

Civil Court, Queens County

Judge:

Hon. Dollard

Date:

September 16, 1998

Citation:

NYLJ, p 24, col 1

Referred Statutes:

(none cited)

Summary:

Landlord brought a nonpayment proceeding against tenant-husband but did not name tenant's wife. After trial, the Court found that Landlord entered into a rental agreement with the husband, not with the wife. Under these circumstances, all of the wife's rights derive from the rights of her husband, since he is the tenant. The judge directed that a warrant should issue to the marshal, and that the warrant would apply not only to the tenant but to his wife. The Court said that "as a general rule it is accepted that a child, spouse or guest of a tenant can be removed under a warrant even though none of them is made a party to the summary proceeding."

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Case Caption:

Golden Blossom Realty, Inc. v. Chen

Issues/Legal Principles:

Trial court's decision that apartment is not tenant's primary residence is affirmed by appellate court.

Keywords:

non-primary residence

Court:

Appellate Term, First Department

Judge:

lower court judge: Hon. Howard Malatsky

Date:

September 18, 1998

Citation:

NYLJ, p 25, col 2

Referred Statutes:

(none cited)

Summary:

The trial court determined that the Manhattan apartment was not the tenant's primary residence and the appellate court affirmed. Tenant owns a two-family house in Queens where he maintains both a telephone and Con Edison account. His motor vehicle registration also lists his Queens address. Tenant did not produce his income tax returns for the relevant time period. In addition, the testimony of witnesses who testified on behalf of tenant contained "too many inconsistencies." The appellate court therefore affirmed the trial court's decision to evict the tenant on the grounds of non-primary residency.

Case Caption:

9-10 Alden Place v. Chen

Issues/Legal Principles:

Landlord given monetary judgment for "stale rent" in Housing Court proceeding, but denied a possessory judgment for the "stale rent."

Keywords:

stale rent

Court:

City Court of Mount Vernon, Westchester County

Judge:

Hon. Duffy

Date:

September 27, 1998

Citation:

NYLJ, page 27, col 3

Referred Statutes:

none cited

Summary:

In a nonpayment proceeding the tenant claims that he paid $1,250 per month for roughly 18 months to the prior owners, even though his rent was $577 per month. His motive was to assist the prior owner with his financial difficulties. The tenant claims that these overpayments constituted a pre-payment of the rent. Tenant offered no receipts or documentation as proof that the payments were for future rent. The alleged pre-payments which were supposed to represent rent paid through February, 1997, but tenant tendered checks for January and February and these latter two checks were never cashed. The court did not find the tenant credible and held that the tenant owed six months of outstanding rent for 1997. The court denied the landlord a possessory judgment for any rents alleged owed from 1995 to 1996 on grounds that said rent was "stale." The court, however, did not make the landlord commence a new civil court action against the tenant to obtain a monetary judgment for the stale rent (which is the normal procedure). Rather, the court awarded the landlord a monetary judgment for the stale rent, and all landlord would have to do is collect on the judgment (by for example, putting a restraining notice on the tenant's bank account, garnishing the tenant's wages, and other such means debt collectors employ to collect on a money judgment).

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Case Caption:

2424 Kings Associates v. Moeller

Issues/Legal Principles:

Nonpayment petition dismissed where landlord fails to serve City Housing Authority in a case where landlord claims tenant's Section 8 subsidies were terminated.

Keywords:

Section 8; service of process

Court:

Civil Housing Court, Kings County

Judge:

Hon. Callender

Date:

September 9, 1998

Citation:

NYLJ, page 24, col 3

Referred Statutes:

none cited

Summary:

The tenant is a recipient of Section 8 funds dispersed by the City, and the premises are subject to federal regulations. In its demand for rent, the landlord attached a copy from the City Housing Authority dated May 18, 1998 stating that effective February 28, 1998 the rent subsidy paid by the City will be terminated. The letter states that the tenant had been advised of this decision, but the tenant disputed ever seeing the letter until she came to court during the landlord's nonpayment proceeding. The proceeding was brought because the landlord sought the full amount of the tenant's rent, a portion of which had previously been paid by the City, but no longer. The rent notice was allegedly served on the tenant on June 4, 1998. The rent claimed in the petition sought arrears from March through June, 1998. The landlord did not serve the City with a copy of the nonpayment petition. The rent being sought included the Section 8 subsidy. Whether the subsidy is still in effect or had been terminated is a factual determination necessitating the Housing Authority's input and information. Since the City was not served or joined as a party, the answers to those questions are more difficult to resolve, according to the court. A federal court consent decree requires that the Housing Authority be notified or served and joined as a party in cases involving the termination of Section 8 subsidies. Since the landlord seeks a judgment for the subsidized and unsubsidized portion of the rent, the landlord was required to have served the City pursuant to the federal case. Since the landlord did not do so, the court dismissed the petition.

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Case Caption:

Townan Realty Co. v. Posner

Issues/Legal Principles:

Landlord must file initial rent registration upon decontrol of premises, which tenant may challenge, before apartment can be eligible to luxury deregulation exemption from stabilization laws.

Keywords:

initial rent registration; fair market rent appeal; luxury deregulation

Court:

Civil Housing Court, New York County

Judge:

Hon. Ruben Martino

Date:

September 9, 1998

Citation:

NYLJ, page 22, col 4

Referred Statutes:

9 NYCRR 2521.2 & 2523.1

Summary:

Tenant sought to dismiss the petition based on landlord's failure to file and serve an initial rent registration form. The landlord claimed the form was not required because the rent of this previously rent controlled apartment is over $2,000.00. The tenant leased an apartment at a rental of $3,100 per month pursuant to a lease which stated that the owner advised the tenant that because the rent was over $2,000, the apartment became decontrolled upon becoming vacant after 1997, and was not subject to the rent stabilization laws. The landlord allegedly made extensive renovations which brought the rent over $2,000. The tenant withheld rent on grounds of overcharge which prompted the landlord's nonpayment proceeding. The legal issue before the court was whether a landlord must file an initial rent registration form with the DHCR and serve it on the tenant for a rent controlled apartment which becomes vacant and immediately rents for more than $2,000 per month. Normally, the failure of a landlord to serve an initial rent registration form within 90 days after the apartment is decontrolled limits an owner to collection of the last collectible rent under rent control. The court cited one case that a landlord is obliged to follow this procedure even if the apartment is rented at over $2,000 a month (which would take it out of the stabilized protective status). The reason this procedure is required is because a tenant has the right to challenge the fair market rent before a unit is deregulated and only after the initial rent set by the landlord survives a challenge by the first tenant or remains unchallenged for more than 90 days does the apartment then become formally deregulated.
The landlord argues that the new Rent Regulation Reform Act of 1997 excludes from rent stabilization laws any apartment which is or becomes vacant after the effective date of the law where the legal regulated rent is $2,000 per month or more. The court noted that the Rent Stabilization Code's initial registration requirement only applies to apartments which become subject to rent stabilization after the vacancy. If the deregulation in the new law is automatic, then the apartment is not subject to any regulation and no registration is required. The court held that in this case where the apartment was formerly rent controlled, the process is not automatic. This is because the high rent exclusion applies to apartments which have a legal regulated rent of at least $2,000. When an apartment leaves rent control because of a vacancy the legal regulated rent for the apartment is determined through the fair market rent appeal procedures which require the filing of an initial rent registration. The court noted that the current high rent exclusion statute still contains the qualifying language that the legal regulated rent must be over $2,000 to qualify for deregulation. In this case the prior rent controlled rent was under $2,000 and was increased to over $2,000 due to improvements, according to the landlord. However, the new $3,100 rent is not yet the legal regulated rent according to the court because the tenant is allowed by law the right to contest the validity of the amount set by the landlord (through a fair market rent appeal). The court held that the filing of an initial registration is the only mechanism under the Rent Stabilization Code for establishing a new legal regulated rent for a previously rent controlled apartment. The court held unless there is a legal regulated rent of over $2,000, the deregulation statute, by its own terms, does not automatically apply.

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Case Caption:

Spanish Naturopath Society, Inc. v. Herbert

Issues/Legal Principles:

Tenants in bungalows in Staten Island are not covered under any rent regulatory laws.

Keywords:

rent control; rent stabilization; multiple dwellings; horizontal multiple dwelling.

Court:

Civil Court, Richmond County

Judge:

Hon. Straniere

Date:

September 9, 1998

Citation:

NYLJ, page 24, col 6

Referred Statutes:

RPAPL 735, 741; Multiple Dwelling Law 4(4), 4(8), 4(9) & 325; General Business Law 5-702; Rent Control Law 26-401, 403(2), 408

Summary:

The landlord commenced holdover proceedings against 60 tenants (37 cases) who live in Staten Island on land that is somewhat unique. The court explained the history of the landlord's ownership and the occupants since 1929. Some of the occupants were members of the Society, others were vacationers who leased space as individuals or groups as a summer camping area. Over time the Society entered into agreements, oral and written, with the tenants or their predecessors. The oldest written agreement is dated 1993, whole the oral leases originate as of 1963. The written leases indicate that the tenant has "purchased" a bungalow from the landlord for $10.00 and the tenant leases the land upon which the bungalow is located as a month to month tenant with no set duration and either party could terminate on 30 days written notice. In 1974 the Society's became a not-for-profit corporation and some of the members of the Society are also tenants in the holdover proceeding. There was prior litigation between the members and the Society which was resolved in the Society's favor which allowed the Society to sell the land if it so choose. The litigation resulted in the Society's usage of written agreements for all ground leases. The Society moved for summary judgment in this holdover proceeding and the court granted it, holding that the tenants failed to raise any triable issues of fact that would allow them to continue their residencies.
The motion dealt with several issues, including the tenants' argument that the premises are a multiple dwelling which would require the landlord to register the premises and comply with a myriad of regulations concerning such buildings. The court examined the statutory definition of a multiple dwelling and whether the tenants' structures constitute "dwellings." The law defines dwellings as "any building or structure or portion thereof which is occupied in whole or apart as the home, residence or sleeping place of one or more human beings." The court determined that the leases did not involve dwellings, but only the land upon which the structures rested. Although amendments were made to the Emergency Tenant Protection Act to cover ground leases, no such amendments were made to the Multiple Dwelling Law. The court concluded that the premises are not a multiple dwelling since there are individual bungalows constructed by the tenants on land leased from the Society, and the residences in question are all independent free standing structures. The multiple dwelling law concerns dwellings leased or rented to three or more families living independently of each other in the same structure, which is not the case here.
The tenants further argued that the premises constitute a horizontal multiple dwelling. This entails an analysis of whether there are sufficient indicia of common facilities, common ownership, management and operation to warrant treating the various housing as an integrated unit. The tenants noted that the bungalows share a water line and water main, common streets and road lighting and common mail boxes, all of which are owned and maintained by the landlord and appear as one tax lot. The court, however, found that these common factors alone were insufficient to deem the premises a horizontal multiple dwelling, and further recited various factors that indicate non-commonalities, such as no common electric services. The court held that the interpretation by the tenants, if accepted, would allow multiple dwelling status to be conferred on every town house development of one-family houses and for a tenant in any one of those units to claim multiple dwelling status if an individual unit owner sought to rent the unit later and evict the occupant. The court concluded that this could not be the intent of the statute. The court noted that the only difference between the tenants here and a condominium owner is that the tenants own the dwelling unit and lease the ground from the Society, and in theory the structure is moveable at the end of the lease term. In a condo, the occupant owns the individual unit, but has an easement over the land underneath it and the unit is not moveable. In short, the premises are not a multiple dwelling and therefore the petitions are not dismissable since the landlord was not obliged to allege that the premises have this status.
The tenants also argued that the premises are subject to rent control or rent stabilization. The court recited excerpts from the rent control law and concluded that the residences might fit within the purview of the statute since the law specifically mentions the rent of a plot or parcel of land on which a tenant is permitted to construct a private dwelling if rented before May 1, 1950 and occupied by the tenant or their immediate family after June 1, 1971. However, the court ultimately concluded that the premises are not subject to the rent control law or rent stabilization. The court stated that an initial determination must be made whether the land in question under each bungalow was rented by the Society or its predecessor-in-interest to a tenant for the purpose of constructing a dwelling. If the parcel was not rented for that purpose prior to May 1, 1950, then the Emergency Tenant Protection Act would not apply and neither would rent control or rent stabilization. Since none of the tenants could establish that they are either an original occupant from before May 1, 950, or an immediate relative of such an occupant, the court concluded that the ETPA is not applicable, nor is rent control or rent stabilization. In light of the lack of any triable issues of fact, the court granted the landlord summary judgement.

Case Caption:

Primrose Management v. Nancy Donahoe

Issues/Legal Principles:

Illegal subtenant of illusory tenant is protected by the rent laws and may not be evicted, since landlord had constructive knowledge of the illegal sublet for many years.

Keywords:

illusory tenancy

Court:

Supreme Court, Appellate Division, First Department

Judge:

lower court judge: Hon. Eardell-Rashford

Date:

August 31, 1998

Citation:

NYLJ, p 26, col 3

Referred Statutes:

(none cited)

Summary:

The prime tenants illegally sublet their rent-controlled apartment for 14 years. In 1990, prime tenants illegally sublet the apartment to subsequent subtenant at a rent in excess of the amount charged to them by landlord pursuant to the rent control laws. In 1994, a newly hired superintendent realized that the occupants of the apartment were not the tenants of record and reported this fact to the landlord. The landlord instituted a on-primary residency proceeding against the prime tenants who then surrendered the apartment to the landlord in 1995. The landlord the brought an eviction proceeding against the subtenants, who defended on the grounds that the prime tenant's tenancy was illusory and that they should be granted the status of a prime rent-controlled tenant. The trial court and the appellate term decided that the subtenants should not be evicted. The Appellate Division agreed, because the prime tenants were illusory tenants. The court explained that the "hallmark" of an illusory tenancy is the prime tenant's collecting rent from the subtenant in an amount that exceeds the legal rent. When an illusory tenancy is found, the subtenant should be granted the protection of the rent laws. The subtenant argued that the proper remedy would be to allow her to assume the prime tenant's rent-controlled tenancy. The appellate division disagreed, because this would result in a windfall to the subtenant. Instead, the appellate division found that the prospective rent of the subtenant should be based upon the fair market rent (the initial legal regulated rent in accordance with the rent stabilization law and code) as of 1990, the date the subtenant took occupancy plus any permissible increases since that date. The Court remanded the matter to the DHCR for a decision on this issue. A determination of an illusory tenancy requires a finding of actual or constructive knowledge of the landlord. The appellate division found that the former superintendent knew of the illegal sublet (and thus the illusory tenancy), the landlord knew or should have known about it, and therefore the landlord had at least constructive knowledge of the illusory tenancy.

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Case Caption:

In re: Ingrid Stroman v. Ruben Franco

Issues/Legal Principles:

NYCHA tenant cannot be evicted for the undesirable conduct of her adult son, absent proof that her son was residing with her.

Keywords:

NYCHA; undesirable conduct of non-resident family member

Court:

Supreme Court, Appellate Division, First Department

Judge:

lower court judge: Hon. Alice Schlesinger

Date:

August 31, 1998

Citation:

NYLJ, p 25, col 5

Referred Statutes:

CPLR Section 7804(g); NYCHA Termination of Tenancy Procedures Sections 6[a], [d]

Summary:

After an administrative hearing, the NYCHA terminated the tenant's tenancy on the grounds that her adult son engaged in certain undesirable conduct at the premises. (An earlier eviction proceeding against tenant, also based on the son's undesirable conduct, was settled by tenant's promise to ban her adult son from living at the premises). The appellate court decided that the tenant should not have bee evicted. The court reviewed the evidence presented at the NYCHA hearing and concluded that the NYCHA had not presented substantial evidence that the son was indeed residing at the subject premises on the date the son engaged in the undesirable conduct. To the contrary, tenant presented evidence of non-occupancy which was not rebutted by the NYCHA, which was never specifically contradicted by the NYCHA. The appellate court remanded the matter to the NYCHA for further proceedings.

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Case Caption:

Matter of McManus v. NYS-DHCR

Issues/Legal Principles:

Rent Stabilization Code provision which exempts new owners from liability for rent overcharges prior to April 1, 1984 does not apply in this case because individual landlord was a partner in the company which previously owned the premises.

Keywords:

rent overcharges

Court:

Supreme Court, New York County

Judge:

Hon. Justice Tolub

Date:

September 2, 1998

Citation:

NYLJ, p 22, col 3

Referred Statutes:

RSC Section 2526.1[f]

Summary:

The DHCR's rent administrator found that landlord wilfully overcharged tenant from 1982 to 1987 and awarded treble damages. The rent administrator's finding was upheld by DHCR's administrative review process. The landlord then brought an Article 78 proceeding in the Supreme Court, New York County and the Court found that the landlord should not have been held responsible for overcharges prior to April 1, 1984. The Supreme Court based its decision on RSC Section 2526.1[f][1], which states that with respect to rent "overcharges collected prior to April 1, 1984, an owner will be held responsible only for his or her portion of the overcharges, in the absence of collusion or any relationship between such owner and any prior owners." Since ownership had apparently been transferred to a new corporation, the Supreme Court found that the new owner should not be responsible for overcharges prior to April 1, 1984. The tenant was not a party to this action, which involved only the landlord and the DHCR. After the tenant learned of this decision, tenant brought a proceeding to vacate the DHCR's decision. Tenant presented proof (business certificates) that the present individual owner was one of two partners in the company which previously owned the building. The Court granted the tenant's petition, vacated the DHCR's decision, and remanded the case to the DHCR.

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Case Caption:

509 Saratoga Corp. v. Williams

Issues/Legal Principles:

Improvements made to a rent stabilized apartment after the lease commences and without the tenant's written consent cannot form the basis for a 1/40th rent increase.

Keywords:

rent overcharge

Court:

Civil Court, Kings County, Housing Part

Judge:

Hon. Rodriguez

Date:

September 2, 1998

Citation:

NYLJ, p 26, col 2

Referred Statutes:

RGB Order Number 27, RSC Section 2522(a)(1), RSC Section 2522.4(a)(1)

Summary:

Tenant moved to dismiss landlord's nonpayment proceeding and the landlord defended by presenting two invoices indicating that improvements had been made to the apartment. The RSC provides that a landlord who makes improvements to an apartment is entitled to increase the rent in an amount equal to 1/40th of the cost of the improvements. If a tenant is in occupancy when the improvements are made, the tenant must give written consent for the improvements. If the apartment is vacant, o consent is needed. Since the landlord did not obtain the written consent of the tenant, the court held that the landlord was not entitled to increase the rent based upon the invoice which post-dated the commencement date of the lease. However, the court denied the tenant's motion to dismiss without prejudice and scheduled a trial during which the landlord was expected to prove entitlement to a rent increase based upon the work indicated on the invoice which pre-dated the commencement date of the lease. The court noted that it was obvious that some of the work (e.g., painting the apartment)was routine repair and maintenance and did not qualify as an apartment improvement.

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Case Caption:

Hudson Towers Associates v. Rubackin

Issues/Legal Principles:

The ten-day post-judgment cure period may be extended by the court under appropriate circumstances.

Keywords:

renewal leases; eviction for failure to execute renewal leases; ten-day post-judgement cure period.

Court:

Civil Court, Housing Part, Bronx County

Judge:

Hon. Heymann

Date:

September 2, 1998

Citation:

NYLJ, p 24, col 3

Referred Statutes:

RSC Section 2524.3(f), 22 NYCRR Section 130.1, RPAPL Sections 753(4) and 749(3), NYCCA Section 110(c), CPLR Section 2201

Summary:

Landlord brought a holdover proceeding against tenant for failure to execute a renewal lease. Tenant did not sign the renewal lease because tenant believed that all future rent increases should be calculated upon the preferential rent set forth in the prior lease; the court agreed with landlord that, under the circumstances of this case, the landlord agreed to a preferential rent for only one lease term. The Court then issued a judgment of possession for the landlord and the immediate issuance of a warrant with a stay of ten days during which the tenant could avoid eviction by executing a renewal lease and returning it to the landlord. Tenants did not return the renewal lease to landlord within the ten-day period but returned it fifty-six days after they received it. Landlord did not accept the late-delivered renewal lease but instead was attempting to execute the warrant of eviction. Tenants then made a motion to the Court for an order vacating the judgment of possession and the warrant. After a full review of the circumstances and governing case law, the court decided to grant tenants' motion on condition that tenants sign a renewal lease within five days of receiving a copy of the Court's decision. RPAPL Section 753(4) provides that after the Court directs issuance of a warrant, the tenant has ten days in which to cure the lease violation which led to the issuance of a warrant. The question presented in this case is whether the Court has the authority to extend the ten-day cure period. The Court decided that under the circumstances of his case, the ten-day cure period should be extended. The tenants are in their eighties, tenant-wife is very ill and tenant-husband cares for her. They have been tenants for thirty-five years. Although the parties have engaged in litigation for the past thirty years, all of the cases have resulted in a stipulation which permitted the continuation of the tenancy. The tenant-husband states that he was not aware that the renewal lease had to be returned to the landlord within ten days. The tenant's attorney affirms that she did not specifically instruct the tenant on this point. The landlord sent a cover letter with the renewal lease which failed to warn the tenant to return it within ten days. Well after the ten days had expired, the landlord sent tenants a letter seeking to make certain required repairs and this letter further led the tenants to believe that their tenancy was not in any danger. It also appeared that tenant's failure to return the renewal lease was not intentional. Tenant returned the renewal lease to the landlord prior to receiving notice that a warrant had been issued. The landlord was unable to demonstrate any prejudice or harm it would suffer if the Court extended the ten-day cure period.

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Case Caption:

Kavanagh v. McGrory

Issues/Legal Principles:

The housing court does not have jurisdiction to direct tenant to pay housing court money judgment to landlord's judgment creditor instead of to the landlord, unless such an order would further the court's mission to further enforcement of housing maintenance standards.

Keywords:

Subject matter jurisdiction of the housing court

Court:

Civil Court, Bronx County

Judge:

Hon. Spears

Date:

September 2, 1998

Citation:

NYLJ, p 24, col 6

Referred Statutes:

15 USC Section 1692; RPAPL Section 721; 22 NYCRR Section 208.43; Article VI of the NYS Constitution; CPLR Sections 101, 401, 409, 1001, 1002, 1012, 1013, 5015, 5018, 5200, 5221, 5225, 5227 and 5228; NYCCCA Section 110, 203, 209, 1505 and 1508.

Summary:

Landlord brought a nonpayment proceeding in housing court against tenant and obtained a money judgment. A third party, who had obtained a money judgment against landlord in Supreme Court, made amotion to the housing court asking, among other things, for an order requiring the tenant to pay the money to the third party rather than to the landlord. The housing court refused for many reasons, including the fact that it does not have jurisdiction. The housing court exists to enforce housing maintenance standards and preside over summary proceedings for possession and collection of rent. The court also has broad equitable powers that may be exercised to enforce housing maintenance standards. The relief sought by the third party (landlord's creditor) does not further any of these purposes. If, for example, landlord's credit was an agency of the city government, such as DHPD, and DHPD were attempting to collect money it had expended in making emergency repairs to the premises, the result would be different. In contrast, the relief sought by the third party (landlord's creditor) in this case would do nothing to further enforcement of housing maintenance standards. Landlord's judgment creditor should go to the Supreme Court to ask for the relief requested or for other relief that may result in collection of the judgment. The Supreme Court has subject matter jurisdiction over such issues.

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Case Caption:

Sumkin v. Hammonds

Issues/Legal Principles:

Landlord's petition is dismissed for lack of personal jurisdiction over tenant because pro se landlord notarized affidavit of service of notice of petition and petition.

Keywords:

notary public; affidavit of service

Court:

District Court, Nassau County

Judge:

Hon. Gewanter

Date:

September 2, 1998

Citation:

NYLJ, p 27, col 2

Referred Statutes:

Executive Law Sections 134-138.

Summary:

Landlord brought a proceeding against tenant and obtained a default judgment. Tenant moved to vacate the default judgment alleging that she was never served. The court examined the affidavit of service of the petition and notice of petition and noticed that the affidavits were notarized by the petitioner-landlord. The court reviewed certain provision of the Executive Law which applies to nary publics and concluded that the affidavit of service should be treated as a nullity because it was notarized by a person who is a party to the proceeding and had a direct interest in the outcome of the proceeding. since there is no valid affidavit of service, the court does not have personal jurisdiction over the tenant, the default judgement must be vacated and the landlord's petition dismissed.