Housing Court Decisions August 1999

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Case Caption:

Lukin v. DHCR

Issues/Legal Principles:

DHCR's unreasonable delay in deciding a case resulted in prejudice to landlord, wherein landlord should be entitled to collect rent increases after the overcharges are redetermined.

Keywords:

overcharges

Court:

Appellate Division, First Department

Judge:

lower court: Hon. Harold Tompkins

Date:

August 24, 1999

Citation:

NYLJ, page 22, col 1

Referred Statutes:

none cited

Summary:

This case was apparently initiated as an overcharge filed by the tenant sometime in the 1980s. The DHCR found an overcharge, but also froze the tenant's rent through January 4, 1985. The landlord appealed and the Supreme Court judge reversed the DHCR decision in its entirety, including vacating the overcharge award. The case does not state why the Supreme Court judge vacated the overcharge award, in any event the Appellate Division reinstated the overcharge award. The Appellate Division remanded the case back to the DHCR on the issue of the rent freeze from 1985, holding that landlord is entitled to lawful increases after January 4, 1985 after additional overcharges are determined subsequent to that date. The Appellate Division wrote: "We conclude that the DHCR's extraordinary delay in rendering a decision in this matter was unreasonable and substantially prejudiced petitioner (landlord) to the extent that it froze tenant's rent beyond January 4, 1985." DHCR tried to place the fault on the landlord, but the Appellate Division held that the record does not reflect this.

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Case Caption:

Matter of Boulevard Tenants Corp. v. DHCR

Issues/Legal Principles:

Landlord's correspondence to DHCR did not extend landlord's time to file an appeal (PAR) in the 35 day time period.

Keywords:

PAR; statute of limitations

Court:

Appellate Division, Second Department

Judge:

lower court: Hon. Price

Date:

August 23, 1999

Citation:

NYLJ, page 32, col 1

Referred Statutes:

RSC 2529.2

Summary:

The DHCR issued a final order on November 13, 1996 which reclassified the apartment as rent stabilized rather than rent controlled. The order also reduced the tenant's rent by a full guideline level, retroactive to April 1, 1988. The landlord had 35 days to file a PAR which is an administrative appeal within DHCR. The landlord wrote two letters to the agency but did not file a PAR until July 21, 1997. The DHCR rejected the PAR as untimely filed. The landlord appealed to the Supreme Court on grounds that his letters to the DHCR extended his time to file a PAR. The Supreme Court rejected the landlord's position, and the Appellate Division affirmed, likewise agreeing that the correspondence did not extend the landlord's 35 day time period for filing a PAR.

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Case Caption:

Milifred Associates Inc. v. Fulford

Issues/Legal Principles:

Corporate landlord's attorney who is also president of the corporation cannot act as an advocate and a witness for his client at the same time.

Keywords:

attorney's roles; stipulation

Court:

Civil Housing Court, Kings County

Judge:

Hon. Eva Alterman

Date:

August 25, 1999

Citation:

NYLJ, page 25, col 3

Referred Statutes:

CPLR 321(a), 2106; Section 130-1.1 Rules of Chief Administrator of the Court

Summary:

Landlord entered into a stipulation of settlement in a nonpayment proceeding but now asks the court to modify the agreement to reflect a larger amount of rental arrears owed by the tenant, and a judgment based on the increased rent owed. The landlord's attorney brought the motion only on the attorney's affirmation. The court told the attorney that he needed an affidavit from someone with personal knowledge, and suggested that he withdraw the motion and bring it again on proper papers. The attorney rejected the judge's suggestion, and the judge denied the request to amend the stipulation without prejudice that it be brought again on proper papers. The attorney now makes the same motion, but again includes no affidavit from a person with personal knowledge. The attorney for the landlord is in fact the president of the corporate landlord and its managing agent. However, the attorney cannot wear the hat of a landlord alone because corporations are required to be represented by lawyers. The attorney's affirmations do not show how as attorney he came into possession of the facts he alleges (i.e., that the rental arrears in the stipulation should have been higher). The court noted that an attorney who is allowed to use an affirmation cannot do so as a party to an action, and the landlord's attorney is attempting to use his own affirmation in support of the motion for a monetary judgment. The court stated that the attorney cannot use an affirmation if he is providing sworn statements as the president and managing agent of the corporate landlord. In such circumstances the attorney must submit an affidavit. An attorney cannot act as a witness and an attorney at the same time. The court found this position in violation of the disciplinary rules that prohibit a lawyer from accepting a case if he or she knows that they will be called as a witness. The attorney was unable to show how his disqualification would work as a substantial hardship on the landlord. The court held it was unseemly for counsel to be both witness and advocate in the same case, because as advocate counsel would be arguing in favor of his own credibility. The court had told the attorney that if he intended to remain as the attorney for the corporate landlord in which he is president, he needed to submit an affidavit from another person who had personal knowledge of the arrears (such as an employee of the corporate landlord). Or, he needed to get a different attorney on the case and then he could submit his own affidavit as president of the corporate landlord. Since the attorney failed to take either step, the court once again denied the motion to amend the stipulation.

Case Caption:

Quiroz v. DHCR

Issues/Legal Principles:

Tenant permitted to submit documents at PAR level at DHCR where she had not been served copies of landlord's MCI application for a rent increase.

Keywords:

MCIs

Court:

Supreme Court, New York County

Judge:

Hon. Richard Braun

Date:

August 18, 1999

Citation:

NYLJ, page 23, col 1

Referred Statutes:

RSC 2522.4(a) & 2529.1(a) & 2529.6

Summary:

The tenant filed a PAR (an appeal of a DHCR decision) challenging the DHCR Rent Administrator's decision to grant her landlord a rent increase for Major Capital Improvements (MCIs) to the building. The landlord applied to DHCR for an MCI based on re-piping in the building and replacement of the boiler, burner and hot water heater. In her PAR, the tenant claimed that the landlord did not apply for the MCI increase until more than two years after completion of the work, and she submitted evidence to show that at least some of the improvements were completed more than two years before the application was filed. The law provides that an owner must apply for the MCI within two years of completion of the work. When tenant lost at the PAR level, she then appealed in an Article 78 to the Supreme Court. The landlord argued that the PAR Commissioner properly rejected the tenant's documents because they were not submitted to the Rent Commissioner, but rather were submitted for the first time in the PAR. The tenant stated in her PAR that she had never received the landlord's application for an MCI increase which DHCR allegedly sent her, and thus never had the opportunity to submit the documents prior to the PAR. The court noted that the DHCR failed to show proof that a copy of the landlord's MCI application was ever sent to this particular tenant (although copies were sent to other tenants in the building). As a matter of fundamental fairness, the court remanded the matter back to DHCR so that the tenant's evidence can be evaluated by DHCR to determine whether the landlord is entitled to all the MCI increases awarded by DHCR.

Case Caption:

Merwest Realty Corp. v. Prager

Issues/Legal Principles:

Rent Controlled tenant may enter into out of court agreement to surrender their apartment for financial consideration so long as there is no evidence of bad faith or overreaching by landlord.

Keywords:

stipulations; waiver

Court:

Appellate Division, First Department

Judge:

lower court: Hon. Marcy Friedman

Date:

August 9, 1999

Citation:

NYLJ, page 23, col 3

Referred Statutes:

Rent Control Law 26-408(a); Administrative Code of the City of New York 26-408(a)

Summary:

The rent controlled tenant agreed to surrender her apartment for $10,000. An attorney represented her in the out of court negotiations. Apparently, the tenant did not leave at the agreed-upon date, and instead asserted that the agreement should be nullified on the principle that rent controlled tenants camnot waive away or surrender their rights. The lower court held for the tenant and dismissed the petition. The Appellate Term upheld the dismissal, but with a dissent. The Appellate Division, however, reversed, and held that the courts favor and encourage parties to settle disputes and that a tenant may stipulate away statutory or even constitutional rights. The Rent Control Law does not prohibit a tenant from surrendering their rights for consideration, where there is no evidence of bad faith or overreaching by the landlord, regardless of whether the agreement occurred in court or out of court.

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Case Caption:

Bannister v. Bittar

Issues/Legal Principles:

Daughter of rent controlled tenant fails to prove succession rights.

Keywords:

succession rights

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Eardell Rashford

Date:

August 10, 1999

Citation:

NYLJ, page 22, col 2

Referred Statutes:

NYC Rent and Eviction Laws 2204.6(d)

Summary:

The daughter of the deceased rent controlled tenant of record failed to prove succession rights to her father's apartment. She owned a condominium apartment in the Bronx, kept an active bank account at her previous Bronx bank and continued to receive mail at the Bronx condominium throughout her nine-month co-occupancy of the apartment prior to her father's death. The lower court and the Appellate Term held that the record supports a finding that she did not live with her father in a manner "bearing some indicia of permanence or continuity."

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Case Caption:

Capit Realty Co. v. Murphy

Issues/Legal Principles:

Tenant's usage of rear yard constituted a mere license, not a tenancy, and abatements were not appropriate when landlord installed a lock on the gate to the yard.

Keywords:

eviction; license

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Howard Malatzky

Date:

August 10, 1999

Citation:

NYLJ, page 22, col 3

Referred Statutes:

none cited

Summary:

Landlord brought a nonpayment proceeding against tenant. Tenant claimed that the building's rear yard was either part of her 2-room apartment or an "appurtenance." The Appellate Term, however, found that the use of the rear yard, accessible only from a public hallway and exit door, constituted a mere license, revocable at will by the landlord, and did not constitute a tenancy, particularly since no mention of it was made in the lease. Thus, landlord's recent installation of a "panic bar lock" on the exit in question to improve the building's security did not constitute an eviction against the tenant. The lower court had granted the tenant an abatement based on the installation of the lock (presumably due to a decrease in services), but the Appellate Term reversed, finding that an abatement was inappropriate since the tenant did not have exclusive use of the rear yard, and the use only amounted to a license or permission, not a tenancy. The Appellate Term also vacated the attorneys fees awarded to tenant by the lower court.

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Case Caption:

Singh v. Pierson

Issues/Legal Principles:

Tenant entitled to discovery to ascertain landlord's proof of "substantial renovations."

Keywords:

overcharges; discovery

Court:

Civil Housing Court, Kings County

Judge:

Hon. Baynes

Date:

August 11, 1999

Citation:

NYLJ, page 28, col 4

Referred Statutes:

RSC 2522.4(A)(1); CPLR 408, 406

Summary:

The parties initially settled this nonpayment proceeding by a stipulation wherein it was agreed that the rent was $650 per month. The tenant then sought to vacate the stipulation on grounds that the rent constituted an overcharge because the tenant discovered that the landlord had failed to register the apartment with the DHCR since 1993 and that the last registered rent was $329.75. The landlord claimed that substantial renovations were done in 1994 and the rent was increased by 1/40th of the costs of the improvements. The tenant then asked permission to conduct discovery (i.e., ask the landlord questions). The court granted the tenant's discovery request in light of landlord's bald allegations of "substantial renovations" absent any documentary proof of same, such as invoices and proof of payment. The court also ruled that the tenant is entitled to a list of the witnesses that the landlord is intending to call at trial to avert unfair surprise.

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Case Caption:

Walton Avenue Properties v. Smith

Issues/Legal Principles:

Tenant entitled to abatement where super acknowledged leaks in bathroom, even if managing agent claims lack of knowledge of the leaks.

Keywords:

abatement; breach of warranty of habitability

Court:

Civil Housing Court, Bronx County

Judge:

Hon. Heymann

Date:

August 11, 1999

Citation:

NYLJ, page 24, col 5

Referred Statutes:

RSL 26-514

Summary:

Landlord brought a nonpayment proceeding against the tenant who had withheld rent. During trial the tenant testified that she suffered leaks in her bathroom and that the ceiling had previously collapsed. She contacted the super and the ceiling was fixed that day, although the leaks continued. The landlord claimed to be surprised by this information and asked for a postponement so that she could call the super as a witnesses. The trial was postponed at which time the tenant concluded her case. The tenant introduced photos of the ceiling into evidence, as well as proof of a DHCR inspection which had not as yet produced any findings. On cross- examination the tenant admitted that she didn't tell the managing agent about the leaks. She assumed the agent was aware of the leaks based on her discussions with the super. The super testified that there was leakage in the tenant's apartment due to the fact that the apartment above has an inadequate shower curtain. The court noted that the landlord's own witness supported tenant's version of events. The court held that the fact that the tenant did not raise the leaks with the managing agent did not negate their existence or the tenant's right to seek an abatement, particularly since the super was fully aware. The landlord argued that the tenant chose her forum by having the DHCR inspection, but the court still awarded the tenant an abatement (20%), holding that if the DHCR reduced the tenant's rent, the reduction would take into account the abatement (since RSL 26-514 does not allow "double dipping," i.e., an abatement in court plus a rent reduction at the DHCR).

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Case Caption:

Marshall Estates v. Ahrens

Issues/Legal Principles:

Landlord's lawyer is sanctioned by the court for material misrepresentations and attempting to obtain information from non-parties which was not authorized by the court.

Keywords:

sanctions; subpoenas

Court:

Civil Housing Court, New York County

Judge:

Hon. Spears

Date:

August 11, 1999

Citation:

NYLJ, page 23, col 5

Referred Statutes:

CPLR 2304, 4504 , 3120(b), 3103(c); 22 NYCRR 130.1-1(a)

Summary:

Landlord brought a licensee proceeding against the occupants. The case doesn't state the defense(s) raised by the occupants, but succession rights is likely. (For convenience sake, the "occupants" will be referred to as "tenants.") Landlord's attorney made a number of motions to the court but the one at issue in this decision involves landlord's motion and tenant's cross-motion to quash various subpoenas served by both sides. Tenant's subpoenas were served on agents and/or principles of the landlord. In other words, the subpoenas were served on parties to the proceeding (according to the judge's decision). The court therefore refused to grant landlord's motion to quash the subpoenas because they "appear relevant and [were] served on parties who would be known to have the information requested." The court rejected landlord's position that the tenant's subpoenas were overbroad, irrelevant or intentionally harassing.

On the other hand, the landlord's attorneys served subpoenas on non-party witnesses, including the tenant's dentist and banks. The court noted that there is a doctor-client privilege with respect to the dentist, and that it was an abuse of process to use a subpoena to obtain confidential and/or privileged records from a non-party. The judge further noted that there had been a previous discussion in open court wherein the tenants' privacy rights were discussed. Up to this point, landlord's counsel had received four separate discovery decisions, and had never asked any judge for clarification of the discovery orders, i.e., whether subpoenas to the dentists were permissible. Landlord's counsel's argued that because the tenant had attached dentist bills to previous opposition papers, that this gave the landlord some kind of right to issue subpoenas to the dentist. The court rejected this position, stating that while the bills gave the tenant's adversary a glimpse of information or evidence, the inclusion of such document "does not in and of itself give the petitioner the right to further delve into those areas without the proper notice and court approval, particularly when the information is privileged." The court admonished the attorneys for not taking seriously the severity of their actions and for acting as if no wrong had been done.

Additionally, the attorneys represented to the court that the entities subpoenaed voluntarily sent documents to their office. The court, however, made its own investigation and learned that this was a false statement. The court determined that in at least two instances, the attorneys followed up their subpoenas with letters to the non-parties which enabled the attorneys to view the documents in an unedited form, contrary to two prior court orders addressing the tenant's privacy issues. The court quashed the subpoenas issued by the landlord and suppressed the usage of any information obtained by the landlord's attorney's as a result of their improper, unauthorized tactics.

Correction:

TenantNet had previously identified the landlord attorneys in this case as the firm of Mitofsky & Shapiro. This was an error in that the Housing Court computer database had not been updated to reflect that Mitofsky & Shapiro had ceased acting as counsel for the landlord in this case as of April 16, 1998. We have made the correction in the summary above and apologize for the error.

Case Caption:

In Re Philip Malek v. Ruben Franco

Issues/Legal Principles:

NYCHA's policy of requiring a potential Section 8 tenant to obtain the cooperative corporation's signature to Section 8 Lease Addendum, in addition to the signature of the shareholder (landlord), is neither irrational nor unreasonable.

Keywords

Section 8; cooperative corporations

Court:

Appellate Division, First Department

Judge:

lower court judge: Hon. Karla Moskowitz

Date:

August 2, 1999

Citation:

NYLJ, page 27, col 1

Referred Statutes:

42 USC Section 1437-f; 24 CFR Section 982.401

Summary:

Malek qualified for a rent subsidy pursuant to the federal Section 8 program and obtained a "Certificate of Family Participation." He then located suitable housing, namely a cooperative apartment. The New York City Housing Authority (NYCHA) (one of the two agencies which administers the program for New York City) then sent a "Lease Addendum" to tenant requiring the signature of the landlord (the shareholders, who are Malek's parents) and the cooperative corporation (the shareholders' landlord). The Lease Addendum contained at least one provision that offended the cooperative corporation. This provision stated that the Lease Addendum shall prevail over the terms of the cooperative corporation's occupancy agreement (also known as the proprietary lease). The officers of the cooperative corporation crossed out this provision and changed it to state that the terms of the occupancy agreement (proprietary lease) shall prevail. NYCHA would not accept this altered document and ultimately terminated Malek's Section 8 rent subsidy. Malek brought an Article 78 proceeding in the Supreme Court, New York County. The Judge determined that NYCHA's "practice of refusing to approve Section 8 leases unless the subtenant obtains an authorized signature of the cooperative corporation on the Section 8 Lease Addendum contract was unlawful and ultra vires." The Appellate Division reversed the lower court's decision, stating that it was an abuse of discretion. NYCHA's regulations require the landlord to sign the Lease Addendum. In this case, the shareholder is the landlord. However, the Lease Addendum requires the landlord to comply with NYCHA's Housing Quality Standards ("HQS"). The shareholder could not meet the HQS inside the apartment; the cooperative apartment is responsible for meeting the HQS outside the apartment. The Appellate Division therefore found that NYCHA's policy of demanding the cooperative corporation's signature to the Lease Addendum, in addition to the shareholder's signature, is "neither irrational nor unreasonable."

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Case Caption:

Park Towers South Co. LLC v. Universal Attraction

Issues/Legal Principles:

Courts refuse to enforce stipulation whereby landlord agreed not to evict tenant on grounds of nonprimary residence and tenant agreed to an unauthorized increase in the legal rent stabilized rent.

Keywords:

public policy; unenforceable stipulation; nonprimary residence

Court:

Appellate Term, First Department

Judge:

Hon. Donna M. Mills

Date:

August 3, 1999

Citation:

NYLJ, page 22, col 1

Referred Statutes:

RSC Section 2520.13; McKinney's Consolidated Laws of NY, Book 1, Statutes Section 74

Summary:

Landlord's attorney served predicate notices upon tenant corporation alleging that tenant was not a primary resident of the apartment. The attorneys for the parties then entered into a stipulation whereby an additional tenant (an individual) was named on the lease, the landlord waived its rights to evict tenants on nonprimary residence grounds and the tenant agreed to an increase in the rent stabilized rent from $585 to $950. Despite the stipulation, the landlord brought a nonprimary residence holdover proceeding against tenants. Tenants moved to dismiss on the grounds of the stipulation. The trial court denied the tenants motion to dismiss and the appellate term panel affirmed, in a 2-1 decision. Citing to a case called Draper v. Georgia Properties, the courts decided that they would not uphold the parties' private agreement because it contravenes public policy. One of the purposes of the rent stabilization law is to "preserve affordable housing stock for occupancy by primary residents." This purpose is not served when an agreement is entered into to increase the rent above the legally regulated rent in exchange for releasing the tenant from the obligation to retain the apartment as a primary residence. The court expressly limited its decision to the circumstances of this case, stating that "there may be circumstances where a landlord could permissibly waive the right to evict upon the ground of nonprimary residence."

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Case Caption:

34-64 Hillside Ave., LLC v. Udoh

Issues/Legal Principles:

Where stipulation settling a nonpayment proceeding did not provide that landlord may make motion to enter judgment against tenant upon tenant's default, court should not have granted landlord's motion to enter judgment, but should have scheduled hearing to determine the parties claims.

Keywords:

stipulations

Court:

Appellate Term, First Department

Judge:

lower court judge: Hon. Dianne T. Renwick

Date:

August 3, 1999

Citation:

NYLJ, page 22, col 2

Referred Statutes:

none cited

Summary:

Landlord and tenant settled a nonpayment proceeding by a stipulation whereby tenants were required to pay certain arrears and landlord was required to complete certain repairs. The stipulation did not provide for entry of judgment in the event tenant failed to make timely payments. The stipulation merely provided that "either party may restore proceeding in event of a default." When tenant did not make timely payments, landlord made a motion requesting the court to enter judgment in its favor. The trial court granted the motion. The tenant's appeal of the trial court's decision was granted. The trial court should not have granted landlord's motion, because the stipulation did not even provide for entry of judgment in the event of tenant default. It merely permitted either party to restore the proceeding in the event of default. The trial court should have scheduled a hearing to determine all of the disputed issues: the amount of rent due; whether landlord made the promised repairs and whether tenant granted access to landlord.

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Case Caption:

69 West 105 Corp. v. Fuentes

Issues/Legal Principles:

The Pet Law does not apply to holdover proceeding where lease does not prohibit harboring of pets but permits tenant to keep one cat and one dog.

Keywords:

Pet Law

Court:

Housing Part of the Civil Court, New York County

Judge:

Hon. Judge Sara Lee Evans

Date:

August 4, 1999

Citation:

NYLJ, page 23, col 4

Referred Statutes:

CPLR Section 3212(b); NY Admin. Code Section 27-2009.1 ("the Pet Law"); RPAPL Section 731

Summary:

Landlord brought a holdover proceeding against tenant for harboring four dogs, in violation of a lease agreement, which permits her to keep one dog and one cat. The tenant argued that the landlord's case against her must be dismissed, because landlord did not commence a holdover proceeding against her within three months of learning about her four dogs, as required by the Pet Law. The landlord argued that the Pet Law does not apply to this case. The Pet Law applies only when there is a lease clause that prohibits a tenant from keeping pets. Tenant's lease rider includes paragraph 32, which modified the no pet clause (paragraph 9) in her lease and permitted tenant to keep one cat and one dog. There is no provision in tenant's lease that prohibits tenant from keeping pets; there is only a provision permitting her to keep one cat and one dog. The court agreed with the landlord's arguments and found that the Pet Law does not apply to this case. However, the court found that it would ultimately be landlord's burden to establish whether the tenant's violation of the "one cat, one dog" provision in the lease constitutes a violation of a substantial obligation of the tenant's lease. (Although the court did not expressly say so, the tenant cannot be evicted unless the landlord establishes this point; the landlord withdrew its claim that the dogs constitute a nuisance.) The court denied both parties' motions for summary judgment and restored the case to the court's calendar.

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Case Caption:

Liberman v. Schmerler

Issues/Legal Principles:

Holdover proceeding is dismissed due to landlord's failure to allege tenants' Section 8 status and good cause for the eviction.

Keywords:

Section 8; good cause; holdover

Court:

Housing Part of the Civil Court, Kings County

Judge:

Hon. Peter Wendt

Date:

August 3, 1999

Citation:

NYLJ, p 24, col 5

Referred Statutes:

none cited

Summary:

Landlord brought a holdover proceeding against tenants after serving them with a termination notice. The termination notice stated that the tenancy is being terminated because "tenant is a month-to-month tenant with no written lease in effect." Neither the termination notice nor the petition alleged that tenants are recipients of a Section 8 rent subsidy administered by NYCHA. The tenants made a motion to dismiss the holdover proceeding on the grounds that (1) landlord did not properly describe the status of the apartment in the termination notice and petition and (2) the termination notice fails to properly state the grounds upon which the proceeding is based. The court granted the motion to dismiss on both grounds. The landlord should have alleged the Section 8 status of the tenants in the notice of termination and the petition. Although landlord served a copy of the petition upon NYCHA, this service was useless, because the petition did not inform NYCHA that the tenants received Section 8. Section 8 tenants have the right to continued occupancy unless the landlord alleges and proves good cause for eviction. The notice of termination in this case is improper, because it failed to allege good cause for the eviction. Since the termination notice is improper, the holdover proceeding upon which it is based must be dismissed.

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Case Caption:

Tullock v. "John Doe" and "Jane Doe"

Issues/Legal Principles:

Licensee holdover proceeding against apartment occupants is dismissed because landlord failed to prove her allegations: that tenant of record vacated and that the license to occupy the apartment expired simultaneously.

Keywords:

licensee; holdover; apartment surrender

Court:

Housing Part of the Civil Court, Kings County

Judge:

Hon. Finkelstein

Date:

August 4, 1999

Citation:

NYLJ, p 24, col 6

Referred Statutes:

(none cited)

Summary:

The tenant of record of the rent-stabilized apartment at issue in this case is Berneda Jackson. The landlord believed that Berneda Jackson vacated in October 1997; her daughter, Ramika Jackson, vacated in August 1998, both without any intention to return. The landlord also believed that "Jane Doe" (Bonita Staten) and "John Doe" (Bonita Staten's boyfriend) occupied the apartment with the permission (also called "license") of the Jacksons and that the Does' license to occupy expired when the Jacksons vacated the premises. The landlord therefore brought a licensee holdover proceeding alleging these facts. (Most attorneys would have brought a holdover proceeding based upon nonprimary residence or illegal sublet). In order to prevail at trial, the landlord had to prove that Bereneda Jackson (the tenant of record) permanently vacated the apartment without intent to return. Then Jackson could not have sublet to the Does or granted them a license. The landlord failed to prove that the tenant of record permanently vacated without intent to return and the holdover case was therefore dismissed. At trial, Bereneda Jackson testified that she temporarily vacated the apartment in November 1997, after her son was murdered in the neighborhood. For this reason, she often stayed with friends. From May to October 1998, she took a job as a live-in home health aide and stayed in the apartment on weekends only. Although Tamika Jackson permanently vacated in August 1998, moving most of her belongings, Bereneda Jackson's belongings remained. While tenant was working as a home health aide, her cousin, Bonita Staten (Jane Doe), came in to check on the apartment from time to time. After Tamika Jackson left in August 1998, Ms. Staten came to live in the apartment full time, together with the tenant of record, and they continue to live together to this day. "John Doe" is Ms. Staten's boyfriend, who occasionally stays at the apartment with Ms. Staten on the weekend. The respondents also introduced into evidence various documents that were mailed to the tenant at the apartment. After hearing these facts, the Court held that landlord failed to prove that Bereneda Jackson (the tenant of record) permanently vacated the apartment and therefore dismissed the landlord's petition.

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Case Caption:

Matter of Barriga v. DHCR

Issues/Legal Principles:

Landlord may improve an apartment and increase the rent by 1/40th of the cost while a DHCR service reduction order is in effect.

Keywords:

apartment improvements, DHCR service reduction orders

Court:

Supreme Court, Queens County

Judge:

Hon. Justice Milano

Date:

August 4, 1999

Citation:

NYLJ, page 26, col 1

Referred Statutes:

NYC Admin. Code Sections 16-511[a], 514 and 516; 9 NYCRR Sections 2522.4, 2523.4, 2526.1 and 2529.11

Summary:

Tenant filed a rent overcharge complaint with the DHCR on August 21, 1997. The District Rent Administrator ("DRA") made a determination of rent overcharge. The landlord filed a Petition for Administrative Review ("PAR") which the Deputy Commissioner granted, in part, resulting in a large reduction of the rent overcharge. Tenant then filed an Article 78 proceeding with the Supreme Court asking the court to reinstate the DRA's Order and determine that the Deputy Commissioner's Order is arbitrary and capricious. The DRA's Order and the Deputy Commissioner's Order differed in their treatment of a 1/40th rent increase for improvements which landlord made to the apartment in 1987. (The decision is unclear as to whether the apartment improvements were made before or after Barriga's tenancy commenced). The DRA's order excluded the 1/40th increase in the belief that the owner was not entitled to a 1/40th increase because a service reduction order, which was issued by the DHCR on March 31, 1988, remained in effect. The Deputy Commissioner determined that the DRA made a mistake in this regard. DHCR's regulations provide that while a rent reduction order remains in effect, a landlord may not collect any further rent guidelines increases from the tenant. However, the regulations do not bar a landlord from collecting a 1/40th apartment increase during this time. The Deputy Commissioner corrected this error by adding in the 1/40th rent increase, which resulted in a reduction of the rent overcharge. The Supreme Court found that the Deputy Commissioner's order was not irrational, arbitrary and capricious and dismissed the tenant's Article 78 petition.

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Case Caption:

Schultz v. Gonzalez

Issues/Legal Principles:

Court refuses to decide that tenant's daughter is not entitled to succession rights, based upon language ("dicta") in prior court decision, where the judge in the prior case did not give the parties and opportunity to present evidence on this issue.

Keywords:

succession rights, collateral estoppel, res judicata, summary judgment

Court:

Housing Part of the Civil Court, Queens County

Judge:

Hon. Judge Brown

Date:

August 3, 1999

Citation:

NYLJ, page 26, col 4

Referred Statutes:

RSC Section 2523.5(b)

Summary:

The landlord brought a licensee holdover proceeding against Caridad Gonzalez and her husband, alleging that their license to occupy the subject apartment expired upon the death of Mrs. Gonzalez' mother - Mrs. Gomez - in 1998. Mrs. Gonzalez' answer alleged that she has succession rights to the apartment. The landlord argued that he brought a nonprimary residency and illegal sublet proceeding against Gomez (the prime tenant) and Gonzalez (the subtenant) in 1995, and although landlord lost that case, the judge wrote an opinion stating that Mrs. Gonzalez does not have succession rights. In reliance upon this statement, the landlord brought a summary judgment motion. (A court will grant a summary judgment motion when there are no issues of fact to be determined after trial - only legal issues must be determined). The landlord's argument in support of summary judgment was based on the closely related legal doctrines of res judicata and collateral estoppel. To put it simply, these doctrines mean that a judge cannot decide an issue differently than it was decided in a prior case - and the judge in the prior case decided that Mrs. Gonzalez does not have succession rights. The judge in this case decided that it would be inappropriate to apply the doctrines of res judicata and collateral estoppel to the pending succession rights case, because the judge who decided the 1995 case did not even give the parties the opportunity to be heard or to put forth any evidence on the issue of succession rights. Thus, the landlord's motion for summary judgment was denied. If the parties do not settle the case, there will be a trial to determine whether Mrs. Gonzalez is entitled to succession rights. (The issues to be determined would include whether Mrs. Gonzalez occupied the premises as her primary residence for two years prior to her mother's death).

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Case Caption:

Harvey v. Dan Heller Realty Corp.

Issues/Legal Principles:

Trial court's order reversed by appellate term because of trial court's failure to allow tenant to present evidence that subject premises is rent stabilized, despite the commercial lease.

Keywords:

rent stabilization coverage; commercial lease

Court:

Appellate Term, First Department

Judge:

lower court judge: Hon. Donna M. Mills

Date:

August 5, 1999

Citation:

NYLJ, page 26, col 1

Referred Statutes:

RSC Section 2520.11[n]

Summary:

The appellate court reversed the trial court's decision in favor of landlord and remanded the case to the trial court for a retrial of certain issues. (The Court's opinion does not say what the trial court proceeding was about, but it appears that landlord brought a holdover proceeding alleging that the subject apartment was not subject to rent stabilization). The landlord argued that the subject apartment was no longer subject to rent stabilization because it was leased to Dan Heller Realty Corp. solely for commercial purposes. (The lease is a commercial lease). The tenant argued that the landlord knew that its subtenant had been residentially occupying the subject premises for two years prior to the commencement of the proceeding and that the premises had been registered with the DHCR as rent stabilized (and therefore residential) from 1984 through 1997. The trial court did not allow the respondent-tenant (Dan Heller Realty Corp.) to present these defenses because a complaint was pending at the DHCR about these issues. The appellate court disagreed and remanded the case to the trial court with instructions to conduct a new trial so that tenant would have the opportunity to present these defenses.

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Case Caption:

Solow v. Bradley

Issues/Legal Principles:

Landlord entitled to an award of attorney's fees as prevailing party in nonpayment proceedings where tenants only obtained a one-year five percent abatement.

Keywords:

attorneys' fees; warranty of habitability; luxury apartments

Court:

Appellate Term, First Department

Judge:

lower court judge: Hon. Martin Shulman

Date:

August 6, 1999

Citation:

NYLJ, page 26, col 1

Referred Statutes:

RPL Section 235-b

Summary:

Landlord brought nonpayment proceedings against tenants. Tenants claimed a breach of the warranty of habitability based on building-wide and apartment conditions. Tenants also argued that the landlord had presented the building and their apartments as "luxury" apartments and tenants were therefore entitled to "heightened" protection pursuant to the warranty of habitability statute (RPL Section 235-b). Although the trial court agreed with the "heightened protection" argument, the appellate courts disagreed. Ultimately, the tenants were granted only a modest abatement - a one-year five percent abatement for faulty elevator service. The landlord then made a motion to the trial court for an award of attorney's fees, arguing that it was the "prevailing party" (the winner) of these summary nonpayment proceedings, because the tenants were granted only a small abatement. The trial court denied the landlord's motion for summary judgment. The landlord appealed and the appellate term, which consists of a panel of three judges, made a 2-1 decision in landlord's favor. The majority held that "the true scope of the dispute litigated, followed by a comparison of what was achieved within that scope (case citations omitted) it is clear that the landlord should be accorded the status of "prevailing party" and entitled to attorneys' fees pursuant to the leases (case citation omitted)"