Housing Court Decisions June 1999

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

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New York Law Journal,
decisions for the week of June 28 - July 2, 1999 (2 cases)

Case Caption:
1 BK Street Corp. v. Blasini
Issues/Legal Principles:
Although trial court characterized the evidence as "equally split," the fact that the tenant prevailed in the holdover entitles tenant to attorney's fees.
Keywords:
attorney's fees; nuisance
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Faviola Soto
Date:
June 30, 1999
Citation:
NYLJ, page 26, col 2
Referred Statutes:
RPL 234
Summary:
Landlord brought a holdover proceeding against the tenant based on an alleged nuisance. At trial the tenant prevailed and the petition was dismissed. The lower court characterized the evidence as "equally split, 50/50" and found that "all the parties [were] credible." On that basis the trial court denied the tenant attorney's fees. The Appellate Term reversed, holding that since landlord failed to prove its claim of nuisance by a preponderance of the evidence and obtain the central relief sought, tenants should have been accorded the status of "prevailing party" entitling them to recover reasonable attorney's fees.

Case Caption:
Demott & Clement Segal v. Marsh
Issues/Legal Principles:
Landlord's motion for attorney's fees was properly brought after the merits of the case were decided.
Keywords:
attorney's fees
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Doris Ling-Cohan
Date:
June 30, 1999
Citation:
NYLJ, page 26, col 1
Referred Statutes:
none cited
Summary:
In a nonpayment proceeding, landlord's petition and tenant's answer both asked for attorney's fees. After trial, landlord moved to strike tenant's affirmative defenses and this motion was granted to the extent that tenant received no abatement of rent and landlord won a money judgment of all rent owed. The court did not reach the issue of attorney's fees in this motion (although it seemed that the landlord asked for fees in this motion). Thereafter, landlord moved to restore the proceeding to the calendar for the purpose of scheduling an attorney's fees hearing. The court treated the motion as one for reargument and denied it as untimely (since a motion to reargue must be brought within 30 days after notice of entry of the order). The trial court noted that the issue was "resolved" in the prior motion. The Appellate Term reversed, finding that the failure of the court to address the attorney's fees issue in the motion to strike should not have been construed as a "sub silentio" rejection of landlord's right to attorney's fees. Attorney's fees are typically addressed after a merits determination has been made, and landlord's motion to restore the mater to the calendar for a fee hearing should have been granted in that procedural context.

New York Law Journal,
decisions for the week of June 21-25, 1999 (6 cases)

Case Caption:
433 West Associates v. Murdock
Issues/Legal Principles:
Court denies tenant's post-judgment motion to dismiss petition that failed to allege tenant's Section 8 status.
Keywords
Section 8; motion to dismiss
Court:
Appellate Term, First Department
Judge:
lower court judge: Howard Malatzky
Date:
June 23, 1999
Citation:
NYLJ, page 26, col 1
Referred Statutes:
2 USC Section 1407(f); 24 CFR Section 982.310(e)(2); 42 USC Section 1437(f).
Summary:
Landlord brought a holdover proceeding against Section 8 tenant. Tenant, by her attorney, stipulated to the landlord's "prima facie" case, defended the case on the merits, and lost the case. Tenant did not appeal the trial court's determination. Instead, nearly one year later, tenant made a motion to dismiss the petition on the grounds that the petition failed to specify tenant's Section 8 status or allege that NYCHA (the New York City Housing Authority) received notice of the commencement of the holdover proceeding as required by federal law. The trial court denied the tenant's motion to dismiss. The appellate term panel, in a 2-1 decision, affirmed the trial court's decision, held that tenant waived her objections to the landlord's prima facie case (including any objection she may have made to landlord's failure to plead Section 8 status and notice to NYCHA) and that her argument was "technical" and did not relate to the court's subject matter jurisdiction.

Case Caption:
Eighty-First Associates v. Morell
Issues/Legal Principles:
Landlord's claim for attorneys fees - which accumulated prior to tenant's filing of a bankruptcy petition - are discharged in bankruptcy.
Keywords:
bankruptcy; attorney's fees
Court:
Appellate Term, First Department
Judge:
lower court judge: Hon. Malatzky
Date:
June 23, 1999
Citation:
NYLJ, page 26, col 2
Referred Statutes:
11 USC Section 523(a)(3); CPLR Section 4213(b)
Summary:
Tenant satisfied a nonpayment judgment obtained by the landlord. The landlord, as the successful party, moved for an award of attorney's fees. The trial court granted landlord's motion. Tenant appealed. The appellate term held that an attorney's fees award was proper, but remanded the case to the trial court with instructions to exclude fees that landlord's attorney earned prior to the tenant's filing of a bankruptcy petition. The bankruptcy petition listed a rent claim but not an attorney's fees claim. Although the landlord knew about the filing, the landlord did not protect its rights to pre-petition attorney's fees by filing a proof of claim with the bankruptcy court. Therefore, the pre-petition (pre bankruptcy filing) attorney's fees are discharged in bankruptcy, that is, they are no longer collectable by the landlord.

Case Caption:
246-248 Tenth Realty v. Olle
Issues/Legal Principles:
Tenant, who lives in a "horizontal multiple dwelling" which contains six or more dwelling units, is covered by the rent stabilization law.
Keywords:
horizontal multiple dwelling
Court:
Housing Part of the Civil Court, New York County
Judge:
Hon. Timmie Elsner
Date:
June 23, 1999
Citation:
NYLJ, page 28, col 4
Referred Statutes:
RSC Section 2520.11
Summary:
Landlord commenced a holdover proceeding against tenant when tenant's lease expired. At first blush, it appeared that tenant was not protected by rent stabilization because tenant lived in a building that contained less than six dwelling units. However, there were more than six dwelling units in the adjacent building plus the building in which tenant lived. The trial court conducted a hearing and it was determined that the two adjacent buildings together constituted a single horizontal multiple dwelling. The hearing revealed that the two adjacent buildings have shared common ownership, operation and management since the 1950s. The buildings also share a common back yard, the first floor and cellar are occupied by a single tenant, they share a fire balcony which provides a secondary means of egress, they are linked by a corridor which runs through their cellars, they are jointly registered as rent-regulated with the DHCR and are subject to the same note and mortgage, title and liability insurance policies. Although the landlord installed separate boiler and hot water plumbing systems just prior to the commencement of the holdover proceeding, the landlord was unable to avoid the horizontal multiple dwelling finding. On the contrary, since there was only one boiler and hot water plumbing system which served both buildings until recently, the court found that these common systems were yet another factor in support of the horizontal multiple dwelling finding.

Case Caption:
El-Ad Skyview, Inc. v. Porter
Issues/Legal Principles:
Landlord's discovery request in illegal sublet holdover proceeding is partly granted and partly denied.
Keywords:
discovery request; ample need; illegal sublet
Court:
Housing Part of the Civil Court, Bronx County
Judge:
Hon. Parisi-McGowan
Date:
June 23, 1999
Citation:
NYLJ, page 29, col 1
Referred Statutes:
RPL Section 226(b); CPLR Section 2214, 408, 3102 and 3107.
Summary:
Landlord brought an illegal sublet holdover proceeding against tenant. The Petition was predicated upon a notice of default which simply stated that tenant sublet the apartment without first obtaining the landlord's prior written consent, the tenant's current whereabouts are unknown to the landlord, and tenant was seen moving furniture out of the apartment in the Spring of 1998 and an unknown person was thereafter seen moving furniture into the apartment. Landlord then brought a motion seeking examinations before trial (EBTs) and the production of 29 types of documents. The court referred to the well-known case of NYU v. Farkas for the proposition that the landlord must demonstrate "ample need" for discovery requested in cases other than nonprimary residency proceedings. Although landlord requested certain documents dated or produced from January 1, 1997 to the present, the court held that the following documents should be produced for the current month only: bank statements, bills for services (telephone, gas), bills for credit cards and magazines and current insurance policies. By so limiting the production of documents, the court allowed the landlord to obtain information relating to the respondent's current address (which may reveal illegal sublet), without allowing landlord to discover information, which may reveal nonprimary residency, which is not alleged in the petition. The court also ordered that certain financial information (bank statements, firsts two pages of tax returns, W-2 forms) must be provided to landlord but permitted the tenant to redact the financial information. The court denied the landlord's request for certain documents (pre-nuptual agreements, marriage licenses, divorce decrees, separation agreements, children's birth certificates, wills) on the grounds that these events "can reasonably be expected to have taken place over a course of years and are not reasonably likely to reflect respondent's current addresses."

Case Caption:
Unicorn 151 Corp. v. Small
Issues/Legal Principles:
If tenant's conduct arguably constitutes both a nuisance and objectionable conduct prohibited by the lease, landlord must serve a notice to cure the objectionable conduct prior to commencing a holdover proceeding.
Keywords:
nuisance; objectionable conduct; notice to cure
Court:
Housing Part of the Civil Court, Kings County
Judge:
Hon. Rodriguez
Date:
June 23, 1999
Citation:
NYLJ, page 31, col 6
Referred Statutes:
RPAPL Section 753(4) and 754(4); RSC Section 2534.3(b)
Summary:
This case explores the difference between a holdover (eviction) proceeding which alleges "nuisance" and a holdover proceeding which alleges that the tenant has violated the lease by engaging in objectionable conduct (e.g., improper conduct which annoys other tenants). A landlord is obligated to serve a notice to cure and a notice of termination prior to commencing a holdover proceeding based upon objectionable conduct. The notice to cure gives the tenant an opportunity to stop engaging in the prohibited conduct (e.g., stop keeping the dog, stop playing loud music late at night or, in this case, stop keeping garbage and clutter in the apartment). If the tenant does not stop the activity, the landlord may serve a notice of termination of tenancy. In contrast, when a landlord alleges that the tenant's conduct is a nuisance (e.g., selling illegal drugs from the apartment), the landlord is not required to serve a notice to cure and need only serve a notice of termination. Nuisance is defined in RSC Section 2524.3(b). This section of the RSC states that "an action or proceeding to recover possession of any housing accommodation may only be commenced after service of [a termination notice] . . . upon one or more of the following grounds, wherein wrongful acts of the tenant are established, as follows: (b) the tenant is committing or permitting a nuisance in such housing accommodation or the building containing such housing accommodation; or is maliciously, or by reason of gross negligence, substantially damaging the housing accommodation; or engages in a course of conduct, the primary purpose of which is intended to harass the owner or other tenants or occupants . . . by interfering substantially with their comfort or safety. . . " In this case, the Landlord served a termination notice upon tenant and then brought a nuisance holdover proceeding in approximately May 1997. Landlord alleged that tenant's apartment was overly cluttered with garbage bags, newspapers, filled plastic bags, boxes, pans, pots, plastic containers and other items from floor to ceiling throughout the apartment. Landlord alleged that tenant, by keeping the apartment in this condition, engaged in conduct constituting a nuisance, as that term is defined in Section 2524.3(b) of the Rent Stabilization Code. At the trial, the landlord and a former tenant of landlord (who also used to be landlord's attorney) testified on behalf of landlord and landlord introduced a related DHPD violation into evidence; the architectural director of Pratt Institute (who visited the apartment on numerous occasions) and tenant testified on behalf of tenant. The trial court held that tenant and her witness were credible and proved that she had cleaned up the apartment significantly from March 1997 to the present, and that the condition of tenant's apartment did not constitute a nuisance. Moreover, landlord did not prove that tenant engaged in this conduct with the intention of harassing the owner or other tenants. The only tenant who testified on behalf of landlord was not a disinterested witness (she was the landlord's former attorney). The Court also held that the landlord should have served the tenant with a notice to cure prior to commencing a holdover proceeding. The tenant's lease prohibited objectionable conduct, such as "improper conduct by tenant annoying other tenants," and further provided that the landlord must serve tenant with a ten day notice to cure such conduct prior to serving a notice of termination and commencing a holdover proceeding. Therefore, the Court also dismissed landlord's holdover proceeding against tenant on the grounds that landlord should have served a notice to cure prior to commencing the proceeding but failed to do so.

Case Caption:
In Re Sylvette Todd v. NYCHA
Issues/Legal Principles:
Tenant must bring an article 78 proceeding to challenge a NYCHA determination terminating her tenancy within four months after NYCHA's determination.
Keywords:
statue of limitations, Article 78 proceeding
Court:
Appellate Division, First Department
Judge:
lower court judge: Hon. Bruce Allen
Date:
June 24, 1999
Citation:
NYLJ, page 28, col 1
Referred Statutes:
CPLR Section 217[1]
Summary:
NYCHA determined that tenant's tenancy should be terminated. Apparently, tenant also filed an application for reconsideration with NYCHA. (The decision does not say whether the reconsideration application was granted or denied). More than four months after NYCHA's determination, tenant brought an Article 78 proceeding to challenge the determination. The Supreme Court, New York County dismissed the Article 78, because it was not filed within the requisite four months after NYCHA's determination. The Appellate Court upheld the Supreme Court's dismissal, noting that NYCHA's "final" determination (that is, the determination which must be challenged) is the initial determination, not NYCHA's determination of tenant's reconsideration application.
Notes:
DHCR's rules regarding Article 78 proceedings differ from NYCHA's rules. A party aggrieved by a determination of DHCR's rent administrator must bring a timely Petition for Administrative Review ("PAR"). A party aggrieved by a PAR determination must bring an Article 78 proceeding within 60 days. Under DHCR rules, the PAR determination - not the rent administrator's determination - is DHCR's "final" determination.

New York Law Journal,
decisions for the week of June 14-18, 1999 (5 cases)

Case Caption:
8201 Realty Assoc. v. Navas
Issues/Legal Principles:
Federal certification requirement for commencing a nonpayment proceeding against a Section 8 tenant must comply with the Fair Debt Collections Practices Act.
Keywords:
Section 8; consent decree; debt collection
Court:
Civil Court, Kings County
Judge:
Hon. Peter Wendt
Date:
June 16, 1999
Citation:
NYLJ, page 32, col 4
Referred Statutes:
CPLR 3211(a)(7); 42 USC 1437(f); 15 USC 1692; RPAPL 711(2)
Summary:
Tenant is a Section 8 tenant. In order for the landlord to commence a nonpayment proceeding against a Section 8 tenant, the landlord is required to certify the basis for eviction and notify both the tenant and the New York City Housing Authority (NYCHA), the entity which supervises the Section 8 program. Landlord notified by serving the tenant and NYCHA a completed Certification of Basis for Eviction Form whose basis was nonpayment of the tenant's share of rent at $197.99 per month for about 10 months. Although the landlord signed the certification, to the right of the signature was the landlord's attorney's name and address. Tenant argued that this certification violated the Fair Debt Collection Practices Act (FDCPA).

The FDCPA sets forth certain requirements when a third party debt collector seeks to collect a debt on behalf of another. The FDCPA is a consumer protection statute designed to prevent abusive debt collection practices. Federal courts have established that rent is a debt under the FDCPA, and landlord attorneys who seek to collect rent from tenants are debt collectors subject to the statute's provisions (if they are regularly engaged in such practice). The court noted that the FDCPA defines "communication" broadly and deemed the certification letter as a "communication" by a debt collector to the tenant. The court concluded that this certification does not comply with the FDCPA requirements in a number of ways, such as, failing to provide the tenant a thirty day period in which to dispute the debt (i.e., the rent). The leading case which established the applicability of the FDCPA to tenants and rent payments is Romea v. Heiberger & Associates, 163 F3d 111 (2d Cir, 1998) (pronounced Row- MAY). The landlord argued that Romea was not applicable to this case because the Romea decision never addressed the question of whether a rent demand in violation of the FDCPA renders a Housing Court proceeding defective. The court, however, referred to the preemption provisions of the FDCPA and cited a string of cases where nonpayment petitions were dismissed in Housing Court for violations of the FDCPA relating to the standard 3 day rent demand required under New York law.

The court held that application of the provisions of the FDCPA to the certification is an equally straightforward task and that it is clear the FDCPA applies. Further the certification notice was not mandated by the RPAPL (the statutes relating to Housing Court procedures), but rather was mandated by a federal consent decree relating to Section 8 tenants. The landlord tried to argue that since Romea involved RPAPL 711(2) and this case involved the federal consent decree, that Romea is not applicable. The court, however, noted that the consent decree specifically still requires a landlord to comply with all federal, state or local law. The court concluded that compliance with the consent decree can be had if the landlord alone signs the certification. Also, the court noted that where certification is required, the landlord must served the requisite notice at least 25 days, with 5 additional mailing days, before the proceeding may be brought. Therefore, compliance with the FDCPA's 30 day debt validation period (where the attorney signs the certification) would not create an additional burden.
Notes:
Disclosure: Colleen McGuire's law firm represented the plaintiff Romea. Judge Wendt's decision is a perfect example of how the Romea decision has just begun to alter landlord-tenant practice. Its nuances and creative application to rent disputes will assuredly affect tenants' rights in the realm of housing law for years to come.

Case Caption:
Cippollone v. Torres
Issues/Legal Principles:
Tenants not entitled to thirty days notice in Civil Court ejectment action.
Keywords:
ejectment; certificate of occupancy; multiple dwelling
Court:
Civil Court, Queens County
Judge:
Hon. B. Greenbaum
Date:
June 16, 1999
Citation:
NYLJ, page 33, col 6
Referred Statutes:
NYCCCA 203(j)
Summary:
Landlord brought an action for ejectment in the Civil Court claiming illegal occupancy by defendants of a basement apartment. The tenants state that they have resided there for 2 years as month to month tenants. The court noted that for the landlords to prevail, they must show that they are the owners, the assessed tax valuation of the house is under $25,000 and the building is only a legal two family home, all of which the landlords satisfied to the sufficiency of the court. The tenants, however, object because the house is occupied as a three family house and the tax assessment should be raised to reflect this, which in turn would place the valuation over $25,000, and thereby require a Supreme Court action instead of a Civil Court action. The court, however, found all this speculative, and relied upon the landlord's documents showing the assessed value as approximately $19,000.
The tenants also argued that as month to month tenants they were entitled to a thirty day notice of termination. The court, however, ruled that since the tenants reside in an illegal apartment, any tenancy arising out of such a lease (oral or written) is a void contract and not enforceable under the law. The court reasoned that since the tenancy is therefore void, "there is no necessity to give a notice to the tenant who has acquired no right in the occupancy." The court held that under common law principles an ejectment action (unlike a summary proceeding in Housing court) does not require the landlord to provide a termination notice to the tenant. The court also noted that since the landlord cannot collect any rent, the tenant is profiting by his continued illegal occupancy. The court granted the landlord a warrant of eviction with a ten day stay.
Notes:
This court's argument that the tenants do not merit a thirty day notice of termination on grounds that the apartment is illegal which makes their tenancy illegal is an argument that puts the cart before the horse. By ruling that a landlord need not serve a thirty day notice, the court in effect is allowing the landlord to act as judge to determine the legality of the apartment. In fact, this should be an issue for trial.

Case Caption:
River York Stratford LLC v. Ostrow
Issues/Legal Principles:
Tenant's harboring of a dog for 20 years who died does not give rise to a perpetual right to acquire new pets when landlord objects.
Keywords:
pets; waiver
Court:
Civil Housing Court, New York County
Judge:
Hon. Howard Malatzky
Date:
June 16, 1999
Citation:
NYLJ, page 27, col 4
Referred Statutes:
RPAPL 743; CPLR 3211, 409(b), 213; Administrative Code of the City of New York 27-2009.01
Summary:
When the tenant moved into the apartment, he had a dog and he tried to alter the lease to allow him to keep the dog because the lease contained a clause that prohibited pets. The landlord refused to accept this alteration, although apparently the landlord acquiesced in allowing the tenant to keep the dog for the duration of his 20 year tenancy. He sought in later lease renewals to again make such changes in the lease, but the landlord again objected. In 1998 the tenant's dog died and he obtained a new dog. The landlord immediately notified the tenant that he must get rid of the new dog, but tenant refused. The landlord then brought a holdover proceeding. The tenant argued that since the landlord allowed him to keep a dog for over 20 years, the landlord waived a right to ever protest tenant's harboring of a dog. The judge resolutely refused to accept the tenant's position. The court held, in reliance on appellate case law, that just because the tenant once harbored a dog does not give rise to a perpetual right to have an animal. The court was sympathetic to tenant's argument that his chronic medical condition made it necessary to have a dog, but this did not rise to the level of a legal right. The court ordered the tenant to remove the dog and gave him ten days to do so. If the tenant does not remove the dog in ten days, he will face eviction.

Case Caption:
Boyd v. Kellman
Issues/Legal Principles:
Petition dismissed and sanctions imposed against attorney where over 20 defects, irregularities and improprieties exist when "agent" of landlord commences unwarranted nonpayment proceeding.
Keywords:
forgery; notary; sanctions; verification
Court:
Civil Housing Court, Kings County
Judge:
Hon. Callender
Date:
June 16, 1999
Citation:
NYLJ, page 32, col 6
Referred Statutes:
22 NYCRR 130-1.1
Summary:
The court dismissed a nonpayment proceeding against a tenant after finding 22 defects, irregularities or improprieties. The petition was falsely signed by someone who was not the landlord, nor was the rent demand signed by the landlord. The notarization was improper as the landlord never signed his signature to the papers. The notary notarized a blank space on the affidavit of service and the name of the person served was left blank on the affidavit. A previous Supreme Court action precluded the landlord from bringing a proceeding in Housing Court, but no mention is made of this in the petition. The court cited a myriad of other serious problems. The agent for the landlord is a part time worker at the information table of Housing Court where he met the landlord and agreed to become his agent for the building. The court noted numerous falsehoods in this man's testimony. The court also noted the collusion of the landlord's attorney in giving her permission to put her name on the court papers without looking at them beforehand. The reason she gave was because she relied on the agent as a Housing court employee as having an expertise in the area and knowing the requirements of summary proceedings. The court deemed the proceeding to be a harassment of the tenant, particularly since the landlord's signature was forged. The court faulted the landlord's attorney who allowed her name to be used without supervising the preparation of the papers. The court regarded the attorney's conduct as sanctionable. The court regretted that he could not sanction the Housing Court employee as the landlord's agent because he was not a party to the proceeding. The court stated that this "is the latest among a series of cases in which this Court has been involved with nonparty impostors who are able to engage in a multitude of fraudulent practices and go forward unsanctioned by the Courts. Such glaring examples cry out for a change in the ability of the Court to sanction non parties who engage in egregious conduct, which exhibits reprehensible behavior and grossly frivolous conduct." The court did not sanction the landlord because the evidence showed that he was ill and had nothing to do with case, that it was brought in his name by the court employee. The court sanctioned the attorney $100.00 because she was inexperienced and trying to learn the ropes and had naively relied on the court employee. The court referred the agent's name to the District Attorney's office.

Case Caption:
Johnson v. Lewis
Issues/Legal Principles:
Tenants denial of access for landlord to make repairs was reasonable because landlord consistently failed to show up for appointed repair dates.
Keywords:
access; cure
Court:
Appellate Term, 2nd & 11th Judicial Departments
Judge:
lower court: Hon. Dowery-Rodriguez
Date:
June 17, 1999
Citation:
NYLJ, page 32, col 5
Referred Statutes:
Emergency Tenant Protection Regulations 2504.2(e)
Summary:
The Appellate Term reversed the lower court's order which granted landlord a judgment of possession. The landlord brought a holdover proceeding on grounds that the tenant unreasonably refused the landlord access for the purpose of making repairs (which is grounds to remove a tenant under the Emergency Tenant Protection Act). But, in this instance the tenants' refusal to provide access on weekdays during business hours was not unreasonable in view of landlord's history of failing to keep appointments made. The Appellate Term held that the tenants were not required to continue to forfeit wages and to jeopardize their jobs in order to accommodate the landlord who, while he sought reimbursement from tenants for his expenses, was careless with theirs. Additionally, it appeared that even if tenants' refusals to provide access were improper, the breach was cured and all the necessary repairs were made prior to the service of the notice to cure, and in any event, such breaches were not substantial enough to justify termination of the long term tenancy.

New York Law Journal,
decisions for the week of June 7-11, 1999 (13 cases)

Case Caption:
In Re Howard Shapiro v. DHCR
Issues/Legal Principles:
The DHCR should not have issued an order deregulating tenant's rent-stabilized apartment where tenant's income was below the luxury decontrol threshold, the DHCR had received tenant's tax returns from the State tax department confirming that the tenant's income was below the threshold and the tenant answered the landlord's petition for deregulation only three days late.
Keywords:
luxury deregulation
Court:
Appellate Division, First Department
Judge:
lower court judge: Hon. Walter Tolub
Date:
June 7, 1999
Citation:
NYLJ, page 26, col 2
Referred Statutes:
RSC Section 26-504.3
Summary:
Landlord sent tenant an income verification form asking the tenant to verify income for the two prior years. Tenant timely sent the form to landlord, indicating that his income was below $250,000.00 (the luxury rent deregulation threshold). The following year, Landlord sent tenant an income verification form asking the tenant to verify income for the two prior years. Once again, tenant timely sent the form to landlord, indicating that his income was below $250,000.00. Landlord then filed a petition requesting deregulation and the tenant filed an answer postmarked three days after the DHCR's 60-day period for submitting an answer. The DHCR issued an order deregulating the apartment and the tenant brought an Article 78 proceeding before the Supreme Court, New York County. The Supreme Court, New York County granted the tenant's Article 78 petition and the Appellate Division, First Department affirmed. The appellate court explained: "(i)n light of petitioner's timely responses to two Income Certification Forms, his submission of evidence that his annual income fell below the statutory threshold, his de minimis delay in responding to the Income Verification Form, the fact that the requested information [the tax returns] was received by DHCR long before the agency belatedly issued its deregulation order, nearly one year subsequent to the expiration of the period within which DHCR is to issue such determinations [code cite omitted], and in light of the fact that neither the agency nor the landlord suffered any prejudice by reason of petitioner's three-day delay, Supreme Court properly determined that DHCR's refusal to accept the late filing was arbitrary and capricious. Plainly, this was a case in which the tenant's default could have been and should have been excused (case cites omitted)."

Case Caption:
In Re Warren Lewis v. New York City Housing Authority
Issues/Legal Principles:
Tenant's Article 78 challenge to NYCHA determination is dismissed because it was not brought within four months of receipt of the determination.
Keywords:
statute of limitations; Article 78 proceedings
Court:
Appellate Division, First Department
Judge:
lower court judge: Hon. Franklin Weissberg
Date:
June 7, 1999
Citation:
NYLJ, page 26, col 1
Referred Statutes:
CPLR Section 217
Summary:
The New York City Housing Authority ("NYCHA") issued a determination terminating tenant's tenancy after he failed to appear at a hearing to answer charges of chronic rent delinquency. Tenant then filed an Article 78 petition with the Supreme Court, New York County to challenge NYCHA's determination. However, tenant filed the Article 78 proceeding more than four months after he received a copy of NYCHA's order terminating his tenancy. A proceeding to challenge an agency determination must be brought within four months of receipt of the agency determination. For this reason, the Supreme Court dismissed the Article 78 petition and the Appellate Division, First Department affirmed.
Notes:
Note that an Article 78 proceeding to challenge a determination of the DHCR must be brought within 60 days of receipt of the determination.

Case Caption:
North Shore Associates v. Knox
Issues/Legal Principles:
Landlord's notice terminating the tenancy for illegal drug activity is a sufficient predicate to landlord's holdover petition because landlord annexed various documents (police reports, etc.) that more fully describe the extent of drug activity at the subject premises.
Keywords:
illegal or immoral use; sufficiency of termination notice
Court:
Housing Part of the Civil Court, Richmond County
Judge:
Hon. Judge Aliotta
Date:
June 9, 1999
Citation:
NYLJ, page 35, col 6
Referred Statutes:
RPAPL Sections 711, 715, 741; RPL Section 231; CPLR Sections 404, 3211(7); Rules and Regulations of DHPD; Rules and Regulations of HUD
Summary:
Landlord served tenant with a notice of termination of tenancy for using the premises for an immoral or illegal purpose, that is, selling, storing, packaging or manufacturing a controlled substance. The notice of termination indicated the date the police searched the apartment and arrested the tenant and also contained a seven-point list of facts surrounding the tenant's arrest. In addition, the notice of termination annexed copies of the following documents: the search warrant, arrest reports, the police laboratory controlled substance analysis report indicating that 1 7/8 ounces of marijuana and 41 grams of marijuana were seized at the premises, and a police report indicating that a scale and packaging materials also seized at the apartment. The tenant moved to dismiss the landlord's petition, arguing that the termination notice did not adequately describe the tenant's violations. Since the landlord's petition is predicated upon the termination notice, the tenant argued that the landlord's petition should be dismissed for failure to properly state the facts upon which the proceeding is based, as required by RPAPL Section 741. (The court's decision does not set forth the tenant's arguments in detail). The Court refused to dismiss the landlord's petition. The Court construed the word "use" in the termination notice to mean continuous and recurrent use, noting that other courts have construed the word "use" in this fashion. (Note that the law does not permit a tenant to be evicted for one instance of illegal use of the premises - the use must be continuous and recurrent. Therefore the Court's construction of the word "use" is very important). To the extent that the termination notice may have been lacking in detail, the documents annexed to the termination notice (the search warrant, arrest reports, the police laboratory controlled substance analysis report indicating that 1 7/8 ounces of marijuana and 41 grams of marijuana were seized at the premises, and a police report indicating that a scale and packaging materials also seized at the apartment) gave clear notice to the tenant of the events which led to landlord's petition and adequately set out the landlord's cause of action. The documents which refer to the quantity of drugs recovered and the packaging materials, in particular, gave tenant clear notice of landlord's allegation that tenant participated or acquiesced in the use of the apartment for illegal drug sales.

Case Caption:
Metropolitan Life Insurance Co. v. Karlin
Issues/Legal Principles:
The Court refused to dismiss the landlord's petition, finding that the predicate notices served by landlord sufficiently indicated that notices came from landlord, rather than from an unauthorized agent.
Keywords:
landlord authorization; predicate notice; Siegel v. Kentucky Fried Chicken
Court:
Housing Part of the Civil Court
Judge:
Hon. Judge Malatzky
Date:
June 9, 1999
Citation:
NYLJ, page 31, col 1
Referred Statutes:
CPLR Section 3211
Summary:
Tenant was served with a notice of non-renewal (due to alleged non-primary residency) and a notice of termination (also alleging non-primary residency). Landlord then commenced a nonprimary residency holdover proceeding when tenant failed to vacate at the end of her lease term. Tenant asked the Court to dismiss the petition alleging that she did not know that the notices served upon her came from the landlord and therefore did not know that she was required to act or reply to such papers. (The notices are "predicate notices"; if the predicate notices are defective, the petition must be dismissed). The tenant's motion is based upon a case called Siegel v. Kentucky Fried Chicken, where an attorney (allegedly the landlord's attorney) unknown to the tenant issued a termination notice without annexing proof (e.g., a letter from the landlord) that the landlord had authorized the attorney to serve the termination notice. The Court refused to grant the tenant's motion to dismiss, finding that this case was different from Siegel v. Kentucky Fried Chicken. The notices were mailed to the tenant in envelopes bearing the return address of the landlord: Peter Cooper Village/Stuyvesant Town, Management Office (etc). The Notices set forth the name of the landlord (Metropolitan Life Insurance Company) and also listed the landlord's address and telephone number. The Notices were signed by a person alleging to be an employee and authorized agent of the landlord, Metropolitan Life Insurance Company. The Notices were not signed by someone employees by an unknown management company. For all of these reasons, the Court refused to dismiss the landlord's petition.

Case Caption:
In Re Michael Dattoma v. DHCR
Issues/Legal Principles:
The DHCR set the tenant's rent in this overcharge proceeding by using its default formula, because the landlord did not, upon DHCR's request, provide DHCR with a rent history for the apartment.
Keywords:
overcharge proceedings; default formula
Court:
Appellate Division, First Department
Judge:
lower court judge: Hon. Stanley Sklar
Date:
June 10, 1999
Citation:
NYLJ, page 28, col 2
Referred Statutes:
CPLR Article 78
Summary:
Tenant filed an overcharge complaint with the DHCR. The DHCR set the legal regulated rent for tenant's apartment at $1,115.25 and assessed $31,369.43 in overcharges and treble damages against the landlord. The DHCR set the tenant's rent by using its default formula, because the landlord did not, upon DHCR's request, provide DHCR with a rent history for the apartment. The tenant was aggrieved by the DHCR's determination and commenced an Article 78 proceeding in the Supreme Court, New York County. (Although the tenant admitted that the DHCR properly used its default formula, the tenant apparently objected to the application of the default formula to the facts of this case). The Supreme Court denied the tenant's Article 78 petition and the Appellate Division, First Department affirmed. (The Court's opinion is very brief. The tenant's arguments and the court's opinion for rejecting tenant's arguments are not fully stated).

Case Caption:
Howard Elisofon v. DHCR
Issues/Legal Principles:
Landlord may charge a 1/40th increase, without obtaining tenant's consent, for improvements made after the tenant signed the lease but before the effective date of the lease.
Keywords:
rent increase for apartment improvements; 1/40th rent increase
Court:
Appellate Division, First Department
Judge:
lower court judge: Hon. Harold Tomkins
Date:
June 10, 1999
Citation:
NYLJ, page 27, col 1
Referred Statutes:
CPLR Article 78; RSL Section 26-511(c )(13); RSC Sections 2522.4(a)(1) and 2520.6(d)
Summary:
The DHCR denied tenant's overcharge complaint, finding that the landlord was entitled to increase the rent, prior to the effective date of tenant's lease, by 1/40th of the cost of landlord's improvements. The Supreme Court, New York County dismissed the tenant's Article 78 proceeding and the Appellate Division, First Department affirmed. The tenant argued that the landlord made the improvements after the tenant signed the lease (but before the effective date of the lease) and therefore the landlord cannot assess a 1/40th increase without tenant's consent. The Court rejected tenant's argument. The Court found that the landlord made the improvements while the apartment was vacant and therefore was not required to obtain tenant's consent to the 1/40th increase. The Court further noted that all improvements were completed before the effective date of tenant's lease. The tenant's Article 78 proceeding was denied by the Supreme Court, New York county and the Appellate Division, First Department affirmed.

Case Caption:
In Re Dorothy Williams v. Ruben Franco
Issues/Legal Principles:
NYCHA's termination of tenancy for acts of emancipated adult daughter "shocks the conscience" of the court; court remands matter to NYCHA for the imposition of a lesser penalty.
Keywords:
NYCHA; termination of tenancy; emancipated adult child of tenant
Court:
Appellate Division, First Department
Judge:
lower court judge: Hon. Stanley Parness
Date:
June 10, 1999
Citation:
NYLJ, page 27, col 1
Referred Statutes:
CPLR Article 78
Summary:
Tenant of public housing entered into a court-ordered stipulation of settlement with her landlord in which she agreed to exclude her emancipated adult daughter (who had apparently engaged in unspecified undesirable conduct) from her apartment. Landlord inspected the apartment on a certain day, found the adult daughter in the apartment and terminated the tenancy. Tenant brought an Article 78 proceeding to challenge the termination. The court vacated the penalty of termination and remanded the matter to NYCHA for the imposition of a lesser penalty. The Court stated that "the penalty of termination shocks our conscience in view of petitioner's long-time residency in public housing, her large household including seven children and three disabled persons, her reliance on public assistance and social security for support, her past unblemished record and the fact that the violation emanates from the acts of an emancipated child who does not reside with her."

Case Caption:
Rose Associates v. Lenox Hill Hospital
Issues/Legal Principles:
Trial court's calculation of prejudgment interest on judgment for use and occupancy is upheld by appellate court.
Keywords:
prejudgment interest; use and occupancy
Court:
Appellate Division, First Department
Judge:
lower court judge: Hon. Martin Schoenfeld
Date:
June 10, 1999
Citation:
NYLJ, page 29, col 2
Referred Statutes:
Chapter 940 of the Laws of 1984; CPLR Sections 5001
Summary:
This case is the "next chapter" in the continuing litigation between Lenox Hill Hospital and its landlord. In October 1994, the Court of Appeals ruled against Lenox Hill Hospital, by striking down a certain section of the Rent Stabilization Law. The statute required the landlord to offer rent stabilization renewal leases to the employees (subtenants) of Lenox Hill, even though the tenant (Lenox Hill) was not the primary resident of the apartments in question. The Court of Appeals held that the statute was unconstitutional because it did not advance a legitimate state interest to justify imposing restrictions upon landlord's private property rights. In May 1997, the Supreme Court granted the landlord an order ejecting the subtenants of Lenox Hill. Lenox Hill's leases for the subject apartments expired on September 30, 1992 but some of Lenox Hill's subtenants remained beyond the expiration of the lease term. (In other words, the subtenants held over). The last apartment was vacated in September 1997. The landlord therefore asked the court to grant it a judgment for the fair market value of the use and occupancy of the apartments during the holdover period. The Supreme Court granted the landlord a judgment in the amount of approximately one and one-half million dollars for the fair market value of the subtenant's use and occupancy from October 1, 1992 through the various dates they vacated plus prejudgment interest from about March 1, 1995 (a date midway between October 1, 1992 and September 1997). The appellate court affirmed the Supreme Court's order. Lenox Hill and the landlord entered into various stipulations whereby they agreed that if Lenox Hill lost its case (which sought a judgment that their subtenants were entitled to rent-stabilized renewal leases), that their subtenants would be considered holdover tenants and use and occupancy would be assessed at fair market value. Lenox Hill lost its case before the Court of Appeals in October 1994. Thus, the Supreme Court's order merely enforces the parties' stipulations. Regarding the issue of pre-judgment interest, CPLR Section 5001 entitles a property-owner to recover pre-judgement interest on a sum awarded (such as an award of use and occupancy). CPLR Section 5001 also states that interest shall be computed from the date the cause of action existed or, when damages are incurred at various times, from a "single reasonable intermediate date." In this case, damages were incurred at various times, that is from October 1, 1992 through September 1997. The appellate court held that a prejudgment interest award running from March 1, 1995 (a date midway between October 1, 1992 - the date after the leases expired and the date the holdover period commenced - and September 1997 - the date the last subtenant vacated) was a "single reasonable intermediate date" from which to calculate prejudgment interest on the monetary judgment for use and occupancy.

Case Caption:
Rima 106 LLP v. Gilbert
Issues/Legal Principles:
Following a recent Appellate Division decision involving the same building, the Appellate Term finds clauses in certain rent stabilized leases void as violative of public policy; the clauses gave the tenant unlimited rights to sublet and assign and the right to continued occupancy despite non-primary residency.
Keywords:
public policy; void or voidable lease
Court:
Appellate Term, First Department
Judge:
lower court judge: Hon. Anne Katz
Date:
June 11, 1999
Citation:
NYLJ, page 30, col 1
Referred Statutes:
RPL Section 226-b
Summary:
The former landlord of the building gave its attorney, Melvin Freedman, a rent stabilized apartment lease which permitted Freedman to sublet or assign without obtaining the landlord's prior consent and also waived the landlord's right to evict Freedman due to nonprimary residency. Freedman never occupied the apartment but sublet it to the Gilberts. Landlords commenced a non-primary residency proceeding against the Gilberts but the housing court dismissed the petition on the grounds that the prior owner had waived the right to object to nonprimary residency. (It is not clear whether the landlord also named Freedman as a respondent; we assume the landlord did so). The Court stated that it was obliged to follow the recent decision of the Appellate Division, First Department in Rima 106 LLP v. Alvarez, decided on May 17, 1999, a case which involves the same building, the same former landlord but different tenants. In Rima v. Alvarez, the Appellate Division declared the lease clauses in question void as violative of public policy, the rent stabilization laws and RPL Section 226-b (the subletting law). (A summary of Rima 106 LLP v. Alvarez may be found in our housing court decisions for the month of May 1999). The Court therefore held that the landlord's petition should be reinstated (rather than dismissed) and the housing court should hold a hearing on the merits of landlord's nonprimary residency claim.

Case Caption:
Crystal Realty Company v. Ribot
Issues/Legal Principles:
Where landlord had performed residential conversion work pursuant to an alteration application filed with the Department of Buildings, landlord's claim for rent will not be precluded, unless the absence of a residential Certificate of Occupancy adversely affected the tenant's residential occupancy.
Keywords:
defense of no residential Certificate of Occupancy; nonpayment proceedings;
Court:
Appellate Term, First Department
Judge:
lower court judge: Hon. Karen S. Smith
Date:
June 11, 1999
Citation:
NYLJ, page 30, col 2
Referred Statutes:
MDL Section 301(2)
Summary:
Landlord commenced a nonpayment proceeding against a residential tenant. The tenant moved to dismiss the petition on the grounds that the landlord had never obtained a residential Certificate of Occupancy ("C/O") for the premises occupied by tenant. The lower court therefore dismissed the nonpayment petition, in accordance with MDL Section 302(b), which prohibits landlords from collecting rent from tenants who are residentially occupying premises for which the landlord has not obtained a residential C/O. The Appellate Term, First Department reversed the housing court's decision, reinstated the petition and remanded the matter to the lower court for further proceedings. The appellate term stated that "the absence of a C/O is not necessarily fatal to the landlord's rent claim. On this record, which contains Buildings Department records certifying that the 1938 alteration work converting the building into a multiple dwelling was 'found to confirm in all respects to the approved plans and specifications and to the requirements of the Building Code...," there is a least a question of fact as to whether the absence of a CO adversely affected the tenant's residential occupancy (cite omitted)."

Case Caption:
Forty Central Park South, Inc. v. Traverse
Issues/Legal Principles:
Tenant evicted on nonprimary residence grounds; in light of other compelling facts, tenant's indication of his New York City apartment on his New York City and New York State tax returns does not protect tenant from a finding of nonprimary residence.
Keywords:
nonprimary residence
Court:
Appellate Term, First Department
Judge:
lower court judge: Hon. Howard Malatzky
Date:
June 11, 1999
Citation:
NYLJ, page 30, col 1
Referred Statutes:
none cited
Summary:
Landlord brought a nonprimary residency holdover proceeding against tenant and the housing court granted the landlord's petition and ordered the eviction of the tenant. The appellate court affirmed the housing court's decision. The housing court properly found that the tenant "does not maintain an 'ongoing, substantial, physical nexus' with the stabilized premises for actual living purposes." In fact, the tenant primary resides in Millbrook, New York, where he owns and occupies a house. The housing court reached its decision in reliance upon the following facts. Although tenant filed New York State and City Income tax returns and indicated his New York City address as his residence, the tax returns indicated a Millbrook mailing address. The Millbrook address was also listed on his driver's license and motor vehicle registration. Although there was extensive usage of the telephone in the New York City apartment, it was not established that tenant - rather than another occupant - made the calls. Lobby attendants at the landlord's building testified that they only saw tenant ten times or less a year during recent years. In addition, tenant's mortgage to his Millbrook home required tenant to reside there for at least six months during each calendar year. Under these facts, the housing court properly determined that tenant did not occupy the rent stabilized apartment as his primary residence.

Case Caption:
200-218 Soundview Realty Corp. v. Sherlock
Issues/Legal Principles:
Although owner and tenant of house (one of eight houses situated on a parcel of land) did not purchase house directly from the former rent-stabilized tenant, owner of house is protected by rent stabilization.
Keywords:
rent stabilization protection
Court:
Appellate Term, First Department
Judge:
lower court judge: Hon. George M. Heymann, Bronx County
Date:
June 11, 1999
Citation:
NYLJ, page 30, col 1
Referred Statutes:
RSC Section 2520.6[a]
Summary:
This case cannot be fully understood without reference to the opinion of the lower court. The rent-stabilized unit at issue is unique. It is one of eight individual houses that form a part of "Glenz Estate" in Bronx County. In a prior proceeding before the DHCR, the DHCR found that these houses were protected by rent control. When the Emergency Tenant Protection Act was passed in 1974, the units became protected by rent stabilization. On November 8, 1995, the Estate of Ana Burke sold a rent-stabilized unit (a house) to Sherlock. (Ana Burke was the prior rent-stabilized tenant of the house). On the same day, Sherlock sold the house to his son-in-law, Kowalsky. The owner of the land upon which the rent-stabilized house is situated (the landowner) brought a nonprimary residency proceeding against Kowalsky and lost. The Housing Court held that Kowalsky occupied the premises as his primary residence and that Kowalsky is protected by rent stabilization, even though he did not purchase the house directly from the estate of the prior rent-stabilized owner. The lower court explained that, in determining the tenant's rights, the proper focus is the status of the premises, not the status of an individual tenant. For example, if a landlord succeeds in evicting a rent-stabilized tenant, the next occupant will also be protected by rent stabilization. The landowner (Soundview) appealed the lower court's order. The appellate court affirmed the lower court's order, stating as follows: "Petitioner does not dispute that the property would have remained rent stabilized had the current tenant (Kowalsky) directly purchased the dwelling unit situated thereon from the prior rent stabilized tenant. The fact that Kowalsky's purchase of the dwelling unit was accomplished indirectly for economic reasons - with Kowalsky's father-in-law, respondent Sherlock, nominally taking title to the dwelling unit and transferring it to Kowalsky without ever residing at the premises - dos not affect the bona fides of Kowalsky's tenancy or serve to remove the property from the protective mantle of rent stabilization."

Case Caption:
1438 Third Avenue Assoc. v. Billan
Issues/Legal Principles:
Court holds that tenant is not protected from eviction by the rent stabilization law just because landlord made the minor mistake of offering tenant a lease stating that the apartment would become deregulated upon expiration of 421-a tax abatement instead of "upon the expiration of the last lease or rental agreement entered into during the tax benefit period," the language required by the Rent Stabilization Code.
Keywords:
tax abatement programs
Court:
Housing Part of the Civil Court, New York County
Judge:
Hon. Judge Hoffman
Date:
June 11, 1999
Citation:
NYLJ, page 31, col 5
Referred Statutes:
CPLR Section 3212 and 3042(d); Real Property Tax Law Section 421-a; RSC Section 2520.11(p)(2)
Summary:
Landlord brought a holdover proceeding against tenant after tenant's most recent renewal lease expired at the end of August 1998. The Petition alleged that the subject premises is not subject to rent stabilization because a residential certificate of occupancy was issued for the building in which the subject premises is situated after January 1, 1974. (Apartments in new construction are not ordinarily subject to rent stabilization). The Petition also alleged that the tenant was no longer entitled to rent stabilization protection pursuant to Section 421-a, a tax abatement program. (Building owners who participate in this program receive government tax abatements but must, in exchange, offer their tenants rent stabilization protection). The Petition further alleged that rent stabilization protection ended because the tax abatement landlord received expired on June 30, 1997 and the tenant's lease ended at the end of August 1998. The tenant moved for summary judgment in its favor (which would result in the dismissal of the petition and continued rent stabilization protection) alleging that the landlord failed, as required by RSC Section 2520.11(p)(2), to include a proper warning in the tenant's first lease and all subsequent renewal leases. The notice must be in at least 12-point type and must state that the apartment will become deregulated "upon the expiration of the last lease or rental agreement entered into during the tax benefit period and states the approximate date on which such tax benefit period is scheduled to expire." (If a landlord fails to include such a notice, the apartment remains rent-stabilized until the protected tenant vacates). The landlord in the instant case did include a notice in the Rider to the first lease. The clause in the Rider informs the tenant of the 421-a benefits and states that the benefits were scheduled to expire on June 30, 1997. The clause then states that the rent on the apartment will become deregulated and no longer subject to rent stabilization or rent control "upon expiration of said exemption." In other words, the landlord made the mistake of stating that the apartment would become deregulated "upon expiration of said exemption" instead of stating that deregulation would occur "upon the expiration of the last lease or rental agreement entered into during the tax benefit period." The Court decided that the landlord's mistake was minimal and refused to grant summary judgment to the tenant. The Court noted that the landlord properly waited until the expiration date of the tenant's lease prior to commencing the holdover proceeding. In addition, the tenant did not allege that it was prejudiced by landlord's mistake, that is, the tenant understood the rent regulatory status of the apartment and the landlord's mistake did not mislead the tenant or cause a misunderstanding.

New York Law Journal,
decisions for the week of May 31 -- June 4, 1999 (5 cases)

Case Caption:
433 West Associates v. Vermette
Issues/Legal Principles:
Landlord who accepts tenant's rent for over a year waives a right to challenge the tenant's breach of an agreement not to file an overcharge claim.
Keywords:
waiver; stipulation
Court:
Civil Court, New York County
Judge:
Hon. Samuels
Date:
June 2, 1999
Citation:
NYLJ, page 27, col 2
Referred Statutes:
none cited
Summary:
Landlord brought a holdover proceeding against the tenant, but the case settled wherein the subtenant was given the prime lease. The landlord claimed that the subtenant (hereinafter referred to as the tenant) breached the stipulation of settlement by his pledge that he would not challenge the $1,500 monthly rent under the lease by filing an overcharge complaint with the DHCR. Apparently the tenant did file a complaint, but the landlord continued to accept his rent for over a year despite knowledge of the breach. The landlord asked the court to vacate the settlement and grant the landlord a judgment of possession against the tenant (i.e., treat him as a mere subtenant with no rights). The court initially concluded that the landlord waived the provision under the stipulation barring the tenant from challenging the legality of the rent by (1) accepting his rent for over a year despite his overcharge complaint, and (2) by entering into a lease with a Stabilization Rider (which the court treated as part of the lease) that included language informing the tenant of his right to challenge the legality of the lease rent.
Landlord made a second motion to the court asking that it revise its initial decision which found a waiver occurred. The court agreed that it initially incorrectly treated the rider as part of the lease. The rider contained a statement that its provisions do not modify the lease. The court therefore concluded that it failed to regard that particular statement and in light of its language, the landlord could not be found to have waived its right to challenge tenant's breach of the stipulation on grounds of the lease term advising tenant of a right to challenge the legality of the rent. The court, however, did find a waiver with respect to the year long acceptance of rent. The landlord pointed out that the stipulation contained a "no waiver" clause, meaning that unless the terms of the stipulation were changed in writing, the landlord did not waive its rights under the stipulation. The court was aware of the leading case on the "no waiver" issue (Jefpaul Garage Corp. v Presbyterian Hospital, 474 N.Y.S.2d 458 [Court of Appeals 1984]). The court, however, said that this case must be read in conjunction with subsequent Appellate Division decisions, including Lee v. Wright, 488 N.Y.S.2d 543 (1st Dept. 1985) which held that a "no waiver" clause can be waived by a party. The court concluded that the landlord's acceptance of rent for over a year constituted the landlord's waiver of the "no waiver" clause. This means that this landlord cannot challenge tenant's breach of the stipulation in filing an overcharge when he promised not to, because landlord continued to accept the tenant's rent in full knowledge that tenant had breached their agreement. If landlord felt aggrieved by tenant's filing of an overcharge, landlord should have taken action against the tenant in the beginning instead of cashing the tenant's rent for over a year.

Case Caption:
Williamsburg Court HDFC v. Cevallos
Issues/Legal Principles:
Warrant vacated for good cause where tenant's inability to pay the rent was based on welfare's arbitrary cut-off of public assistance to tenant.
Keywords:
stipulations; warrants; judgments; Jiggetts
Court:
Civil Housing Court, Kings County
Judge:
Hon. Callender
Date:
June 2, 1999
Citation:
NYLJ, page 35, col 3
Referred Statutes:
RPAPL 749(3); CPLR 5015; NYCCCA 212
Summary:
During a nonpayment proceeding tenant entered into a stipulation agreeing to give up the apartment provided she pay two months rent ($3,000) which was reduced to a possessory judgment. The outstanding arrears of about $10,000 was reduced to a monetary judgment only. If tenant did not pay the two month's rent, landlord could execute on the warrant. The tenant sought to set aside the stipulation on grounds that no consideration was given. The landlord, however, argued that the tenant did receive consideration: she was given two months to remain in the apartment so long as those two months rent were paid, rather than on condition of payment of the hefty arrears. The court found that consideration was extended to the tenant and thus the court declined to set aside the stipulation on this ground.
The tenant, however, also sought to vacate the warrant and asked the court to compel the landlord to accept the judgment amount (i.e., $3,000 or so) which she had now come up with. The tenant was on Jiggetts relief (i.e., public assistance). She had to go to housing court and could not make an appointment scheduled for the same time with DSS (i.e., public assistance). DSS refused to change the date of the appointment and because the tenant went to housing court instead, DSS cancelled her rent subsidies. It was for this reason that the tenant was unable to pay the two months rent required under the stipulation. However, tenant appealed DSS's decision and won. She then attempted to pay the landlord the judgment amount ($3,000) but the landlord refused to accept the funds since the warrant had already issued. Once a warrant issues, the landlord tenant relationship is severed. The court, however, determined that despite such severance, if good cause exists, the warrant can be vacated. The court concluded that good cause did exist because DSS was at fault for its arbitrary rescission of tenant's rent assistance which led to tenant's default under the stipulation. The landlord's position was that if the court was going to vacate the stipulation, then the full amount of the arrears should be paid or else the tenant would receive a windfall. The court, however, only required the tenant to pay the $3,000 and current rent and reinstated her tenancy.

Case Caption:
BLF Realty Holding Corp. v. Kasher
Issues/Legal Principles:
Specific language of lease clause governs award of attorney's fees in nonprimary residency case that began in Supreme Court and was transferred to Housing Court.
Keywords:
legal fees; nonprimary residency; unlawful sublet; declaratory judgment
Court:
Civil Housing Court, New York County
Judge:
Hon. Douglas Hoffman
Date:
June 2, 1999
Citation:
NYLJ, page 26, col 6
Referred Statutes:
RPL 234; CPLR 325(d)
Summary:
The landlord commenced a declaratory judgment in Supreme Court against the tenant on nonprimary residency grounds. The Supreme Court transferred the case to the Housing Court, the more "appropriate forum." Landlord never appealed this decision or sought to discontinue the case. Once the action was transferred to housing court, it proceeded as a typical summary proceeding. The landlord eventually lost. The issue in this case was whether the tenant was entitled to attorney's fees. The landlord argued that appellate case law has pointed to decisions where the lease clause pertaining to attorney's fees was written in such a way so as to preclude the tenant from obtaining legal fees in the context of a landlord's declaratory judgment action based on nonprimary residency. The court, however, did not take these cases as the final authority since other appellate term cases state that a determination of whether to grant legal fees "will necessarily depend upon the language and scope of the particular [lease] clause at issue." This led the court to review the tenant's lease, and the court discovered that the lease provided for the landlord to recover attorney's fees in the case of tenant's default "and/or dispossess by summary proceedings or otherwise" [emphasis in original]. Where the tenant is the prevailing party in an action or proceeding, Real Property Law 234 provides that the lease clause for attorney's fees be reciprocal to the tenant. Notwithstanding that the case commenced as a declaratory judgment action, once it was transferred to Civil Court, it had to be treated no differently from any other holdover proceeding. Since the landlord failed to obtain a possessory judgment against the tenant, the tenant must be deemed the prevailing party, and based on the parties' specific lease provision, the tenant was awarded attorney's fees.

Case Caption:
Collins v. Alexander Muss & Sons
Issues/Legal Principles:
Tenant's surrender of the premises was effectuated where landlord accepted the keys from the deceased tenant's representative with knowledge that their tender was for purposes of surrender the lease.
Keywords:
surrender
Court:
Appellate Term, 2nd & 11th Judicial District
Judge:
lower court: Hon. Johnson
Date:
June 2, 1999
Citation:
NYLJ, page 34, col 5
Referred Statutes:
none cited
Summary:
It appears that the tenant died and its estate or representative brought a Small Claims action against the landlord. The decision does not state why the plaintiff sued, but given the amount of the judgment in plaintiff's favor ($975), one can only surmise that the claim was sought for a return of the security deposit. The issue on appeal was whether the defendant- landlord accepted the plaintiff's surrender of the premises. Apparently the keys were turned over to the landlord. The Court held that the mere retention by the landlord of keys, standing by itself, is not such an unequivocal act constituting conclusive evidence of an acceptance of a tenant's surrender of the lease. However, in this case the landlord knew the tenant had died and understood that the tender of the keys was for the purpose of surrendering the lease. In such circumstances the Court found that it was incumbent upon the landlord to do some act to indicate that it would not accept surrender of the lease. The Court found that the landlord failed to rebut the evidence of the surrender of the lease. Additionally, the landlord should be estopped from claiming that plaintiff did not have authority to surrender the lease since the landlord took no action showing that it would not accept the surrender of the lease.

Case Caption:
Arnie Realty Corp. v. Torres
Issues/Legal Principles:
Succession rights awarded to remaining family member in a nontraditional family relationship despite evidence of alleged insufficient emotional and financial ties between the respondent and the deceased tenant.
Keywords:
succession rights; nontraditional family relationship
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Delores Thomas
Date:
June 3, 1999
Citation:
NYLJ, page 27, col 6
Referred Statutes:
9 NYCRR 2204.6(d)
Summary:
Landlord brought a holdover proceeding against respondent Torres. Torres argued that he was a nontraditional remaining family member entitled to succeed to the rent controlled tenancy of the deceased tenant who was his alleged life time partner. The lower court held for Torres and the Appellate Term affirmed the order, although Justice McCooe rendered a vigorous dissent. The majority found that the couple lived together for eight years and that Torres took care of the household while the tenant worked, and later cared for him during his final illness. They sought to formalize their relationship in their church community and tenant made financial provision for Torres' support after his death, arranging for his parish priest to use the proceeds of his insurance policy for Torres' benefit. The Appellate Term concluded that it was clear the tenant and Torres "intended to and did create a long term, emotionally committed family relationship." Conspicuously absent from the Appellate Term's decision is any mention of the second criteria for succession rights in nontraditional family relationships: a financial interrelationship between the couple. This is a subject that Justice McCooe broached in his dissent.
Justice McCooe set out more facts that the majority's decision. Torres was 23 when he moved into the apartment with the 53 year old tenant. He noted that the record was silent as to how much money accrued from the insurance policy for Torres' benefit, but added that "the desire to give any surplus is equally consistent with giving to an employee or friend for services rendered." The landlord testified that the tenant told him Torres was a mere "boarder." The justice observed that there was no testimony regarding the pension beneficiary of the tenant who was a retired State employee receiving benefits during his lifetime. The justice also challenged whether an emotional relationship was established because the landlord's attorney sought to question Torres as to whether he had a child by another woman. The lower court did not allow the attorney to pursue this area on grounds that the law does not require Torres and the tenant to live in a monogamous relationship. Justice McCooe noted: "This may be correct but it is evidence of a lack of emotional commitment." He further noted that even if there was a sexual relationship between Torres and the tenant in the early stages of the relationship, this is not synonymous with an emotional commitment. The justice added that the record demonstrated a lack of knowledge by Torres of the personal facts about the tenant's life, his family and an absence of any jointly attending family functions. He further pointed out that the funeral arrangements we handled by tenant's cousins.

Case Caption:
47 Plus 40 41st Street Realty Corp. v. Ortiz
Issues/Legal Principles:
Landlord may not maintain a summary nonpayment proceeding against tenant if tenant actually paid rent but landlord failed to cash tenant's checks; MCI is not collectable if the tenant never signed a lease agreeing to pay the MCI.
Keywords:
grounds for bringing summary proceeding; major capitol improvement ("MCI") increase
Court:
Appellate Term, Second Department
Judge:
lower court judge: Hon. Judge Ernest Cavallo
Date:
June 1, 1999
Citation:
NYLJ, page 30, col 6
Referred Statutes:
RPAPL Section 711(2)
Summary:
Landlord brought nonpayment proceeding against tenant. Tenant moved to dismiss the proceeding for many reasons, including that (a) the predicate rent demand was defective because it demanded rent in the amount of $331.99 (which included an uncollectable MCI increase) instead of $290.77 (which did not include the MCI increase) and (b) a nonpayment proceeding should not have been brought because tenant timely sent her rent check to landlord each and every month but landlord had refused to cash her rent checks. Landlord admitted that he failed to accept tenant's rent checks but explained that he would not cash them because they did not include the MCI increase. The lower court dismissed the petition, as requested by tenant. The appellate court upheld the lower court's dismissal. The appellate court explained that the rent demanded by the landlord - $331.99 - is not correct because the landlord was not entitled to collect the MCI. "Tenant's last renewal lease, which expired on March 31, 1992, provided for a rent of $290.77. The MCI increase claimed by landlord was not awarded until June 8, 1992, after the lease had expired. Although tenant's original 1977 lease obligated tenant to pay for increases for "specified" work, no work was specified either in the 1977 lease or in the renewal lease which expired on March 31, 1992. Under the circumstances, there was no agreement by tenant to pay the MCI increase. In the absence of such an agreement, tenant is not liable for the increase." The appellate court further held that a nonpayment proceeding is not maintainable against a tenant who timely pays rent each and every month. A summary proceeding for nonpayment is maintainable if the tenant "has defaulted in the payment of rent." RPAPL Section 711(2). Since the tenant timely paid her rent each and every month, the landlord may not bring a summary nonpayment proceeding.
Notes:
The landlord had no choice but to admit that tenant had tendered her rent, in a timely fashion, each and every month, because the tenant sent her rent checks to the landlord by certified mail, return receipt requested. Tenants: when your landlord refuses to cash your rent checks, mailing your checks to the landlord by certified mail, return receipt requested is a good idea. If the landlord then brings a summary nonpayment proceeding against you, you can show the judge your proof that you mailed by certified mail and that the landlord signed for it. Then the housing court judge will probably not require a trial on the issue of whether or not you mailed your rental payments to the landlord.
Disclosure:
Linda Rzesniowiecki, co-editor of housing court decisions for tenant.net, represented the tenant Ortiz before the trial court and the appellate court.