Housing Court Decisions March 1999

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

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New York Law Journal,
decisions for the week of March 29-April 2, 1999 (8 cases)

Case Caption:: In Re Nelson Management Group, Ltd. V. DHCR
Issues/Legal Principles:: Court upholds the DHCR's dismissal of landlord's belatedly filed PAR.
Keywords:: late filing of PAR; presumptions
Court:: Appellate Division, First Department
Judge:: Lower court judge: Hon. Karla Moskowitz
Date:: March 29, 1999
Citation:: NYLJ, page 27, col 3
Referred Statutes:: CPLR Article 78
Summary:: The DHCR made a rent overcharge determination in tenant's favor. Landlord sought to challenge the DHCR's determination and filed a Petition for Administrative Review ("PAR") with the DHCR. A PAR must be filed within 35 days after the issuance of a DHCR determination. However, the landlord filed the PAR late. Therefore, the DHCR dismissed the landlord's PAR and the Supreme Court, New York County and the Appellate Division, First Department agreed with the DHCR's dismissal. The DHCR presented evidence - in the form of its routine mailing procedures - that the DHCR order was served upon landlord by a date certain. This evidence gives rise to a presumption of receipt. The landlord claimed that he only learned of the DHCR's determination after he was informed by tenant's attorney, and denied receipt of the determination from DHCR. The Court held that the landlord's denial did not overcome the presumption of receipt raised by DHCR's evidence of its routine mailing procedures.
Case Caption:: Matter of Central Queens Properties Corp. v. DHCR
Issues/Legal Principles:: The Supreme Court should not have issued an order about the merits of a DHCR rent overcharge determination, where the parties had already settled the rent overcharge issues in housing court.
Keywords:: settlements; rent overcharge
Court:: Appellate Division, Second Department
Judge:: lower court judge: Hon. Goldstein
Date:: March 29, 1999
Citation:: NYLJ, page 34, col 3
Referred Statutes:: CPLR Article 78; RSC Section 2520.13
Summary:: Landlord and tenant, represented by attorneys, settled tenant's overcharge complaint in Housing Court in the context of a nonpayment proceeding. Meanwhile, landlord's Article 78 proceeding, filed to challenge the DHCR's determination of rent overcharge, was pending in Supreme Court. Apparently the Supreme Court did not know that the overcharge case was settled and issued a determination granting the landlord's Article 78 petition and remanding the overcharge case to the DHCR for further proceedings. The Appellate Division, Second Department overturned the Supreme Court's determination and dismissed the landlord's Article 78 petition as "academic." Since the parties settled their rent overcharge dispute, there was no need for the Supreme Court to make a substantive determination on the merits of landlord's Article 78 petition.
Case Caption:: The Missionary Sisters of the Sacred Heart, Inc. v. Weiss
Issues/Legal Principles:: The landlord's acceptance of rent from someone other than the tenant of record does not create a tenancy.
Keywords:: acceptance of rent; roommates
Court:: Appellate Term, First Department
Judge:: lower court judge: Hon. Anne Katz
Date:: March 31, 1999
Citation:: NYLJ, page 29, col 2
Referred Statutes:: none cited
Summary:: The tenant of record (Weiss) vacated the premises in September 1996, leaving Schroepfer (her roommate) in possession. Thereafter, the landlord refused to accept any rent checks from Schroepfer. Schroepfer argued that she was entitled to a rent-stabilized lease in her own name, because the landlord had accepted one-half of the rent from Schroepfer and one-half of the rent from Weiss during all the years of the Weiss tenancy. Referring to earlier decisions, the Court held that the landlord's acceptance of rent does not create a tenancy. Moreover, the Court found that the landlord's acceptance of one-half of the rent from Schroepfer and one-half of the rent from Weiss indicated nothing more than landlord's recognition that Schroepfer was the roommate of Weiss.
Case Caption:: Talgo v. Pridgen
Issues/Legal Principles:: Landlord's Petition, which alleges a landlord-tenant relationship, but does not allege how landlord obtained title or ownership, is sufficient.
Keywords:: sufficiency of petition; warranty of habitability; nonpayment proceeding
Court:: Housing Part of the Civil Court, Kings County
Judge:: Hon. Balter
Date:: March 31, 1999
Citation:: NYLJ, page 35, col 3
Referred Statutes:: RPAPL Sections 721(1) and 741(1); RPL Section 235-b
Summary:: Landlord (the shareholder and proprietary lessee of a cooperative apartment) brought a nonpayment petition against tenant, alleging that Talgo was the landlord and Pridgen was the tenant. The Petition did not specifically allege that landlord is the shareholder and proprietary lessee of a cooperative apartment. Tenant moved to dismiss the landlord's petition on the grounds that petitioner did not sufficiently plead his interest in the subject premises. The Court denied tenant's motion. A landlord's petition is sufficient if it simply alleges a landlord-tenant relationship ("I am the tenant; you are the landlord"). It is not necessary for the landlord to allege or to prove his right to possession of the subject premises. As a defense to the nonpayment proceeding, tenant alleged that several conditions in the premises breached the warranty of habitability. The Court referred to RPL Section 235-b and said that the warranty of habitability was limited to three covenants: (1) that the premises are "fit for human habitation," (2) that the premises are fit for "the uses reasonably intended by the parties," and (3) that the occupants will not be subjected to conditions that are "dangerous, hazardous or detrimental to their life, health or safety." Although the tenant cited to many different conditions (some of which were actual violations), the Court found that only one condition constituted a breach of the warranty of habitability: a water leak in proximity to an electric outlet.
Case Caption:: Ling v. Quinones
Issues/Legal Principles:: Nonpayment petition is dismissed because it is predicated on a three-day notice, rather than the five-day notice required by the lease agreement.
Keywords:: rent demands; nonpayment proceedings
Court:: Housing Part of the Civil Court, Kings County
Judge:: Hon. Peter Wendt
Date:: March 31, 1999
Citation:: NYLJ, page 35, col 4
Referred Statutes:: RPAPL Section 711(2)
Summary:: Landlord served tenant with a three-day rent demand notice. When tenant did not pay the rent demanded within the three days, landlord served tenant with a notice of petition and petition. The Petition alleged that the tenant was served with a three-day notice prior to service of the notice of petition and petition. Tenant moved to dismiss the petition, because paragraph 16 of the tenant's lease required landlord to give tenant a written five-day notice if tenant failed to pay "rent or added rent on time." The Court granted the tenant's motion. Although RPAPL Section 711(2) allows a landlord to commence a summary nonpayment proceeding after service of a three-day notice, a landlord is obliged to serve a longer notice if required by the lease.
Case Caption:: In Re Irma Ortiz v. Ruben Franco
Issues/Legal Principles:: Court upholds NYCHA's eviction of tenant for nondesirability in case where police found 2,000 vials of crack cocaine in tenant's apartment.
Keywords:: NYCHA; eviction for nondesirability; eviction for possession of illegal drugs
Court:: Appellate Division, First Department
Judge:: lower court judge: Hon. William Wetzel
Date:: April 1, 1999
Citation:: NYLJ, page 28, col 3
Referred Statutes:: none cited
Summary:: The New York City Housing Authority ("NYCHA") conducted an administrative proceeding about whether tenant should be evicted. The evidence against tenant is that she was arrested by the police for possessing about 2,000 vials of crack cocaine in her apartment. Tenant pleaded guilty to criminal possession of a controlled substance in the fifth degree, a class D felony. NYCHA therefore determined that tenant should be evicted on the ground of nondesirability. Tenant brought an Article 78 proceeding to challenge NYCHA's finding. The Supreme Court (and eventually the Appellate Division, First Department) upheld NYCHA's determination, stating that eviction under these circumstances "is not shocking to our sense of fairness...."
Case Caption:: M.R.A. Realties, Inc. v. Groen
Issues/Legal Principles:: Where unit was subject to rent regulation pursuant to the Loft Law, landlord's summary nonpayment proceeding dismissed for alleging that premises was not subject to rent regulation.
Keywords:: rent regulatory status; Loft Law; deregulation of Loft unit; exemption from coverage of Loft unit
Court:: Appellate Term, First Department
Judge:: lower court judge: Hon. Howard Malatzky
Date:: April 1, 1999
Citation:: NYLJ, page 29, col 3
Referred Statutes:: The Loft Law; MDL Section 286(3) and 286(12); 10 RCNY Title 29, Sections 2-10(b) and 2-10(f)(1)
Summary:: Landlord brought a summary nonpayment proceeding against tenants alleging that the unit is not subject to rent regulation. Tenants brought a motion to dismiss alleging that their unit is rent-regulated pursuant to the Loft Law (MDL Sections 280 through 287). The trial court agreed with tenants, dismissed the petition, and the appellate court affirmed the trial court's decision. The landlord registered the unit with the Loft Board from 1983 through 1995, thereby acknowledging that the unit was covered by the Loft Law and its rent regulation provisions. The landlord apparently alleged that the unit became exempt from coverage or deregulated sometime after 1995. The Court explained that a unit may become exempt from coverage and/or deregulated for the following reasons: a "buy out" which takes place after June 21, 1982 (the effective date of the Loft Law); a "constructive purchase" of the fixtures; or "abandonment" of the unit as that term is defined by the Loft Board's regulations. Since none of these conditions were met, the unit is still covered by the Loft Law and rent regulated. Although the landlord bought out a prior tenant of the unit in May 1982 (that is, purchased the tenant's rights pursuant to the Loft Law contemporaneously with the tenant's vacatur), this event does not constitute a buy out because it took place prior to the effective date of the Loft Law. In March 1991, another prior tenant of the unit (the Langdales) vacated the unit and moved into another unit of the building at the landlord's request. The Court held that this event did not constitute a "constructive purchase" of the tenant's fixtures, because it was not shown that the Langdales had ever installed fixtures in the unit. There was no "abandonment" of the unit by any of the prior tenants as that term is defined by the regulations of the Loft Board. Regarding the abandonment issue, the court found that "Landlord never applied to the Loft Board for a determination to that effect.... The previous tenants either vacated at the end of their terms or surrendered with the acceptance of the landlord. Those tenants did not owe unpaid arrears and the owner did not reimburse them for any improvements made subsequent to the Loft Law." Finally, the Court found that tenants' execution of a lease (which no doubt provided for a rent higher than the legal rent pursuant to the Loft Board's regulations) did not "constitute a knowing waiver of their rights under the Loft Law or the regulated status of the premises."
Case Caption:: Levin v. Yeshiva University
Issues/Legal Principles:: University may deny two of its students the right to live together in student housing, even though the students are members of a homosexual couple in a committed long-term relationship.
Keywords:: roommate law; discrimination on the basis of marital status; discrimination on the basis of sexual orientation
Court:: Supreme Court, New York County
Judge:: Hon. Justice Weissberg
Date:: April 1, 1999
Citation:: NYLJ, page 31, col 3
Referred Statutes:: New York State Human Rights Law [Executive Law Sections 296(2-a), 296(4) and 296(5)(a)(1)]; New York City Human Rights Law [NYC Admin. Code Section 8-107(5) and Section 8-107(17)]; New York State Roommate Law [RPL Section 235-f]
Summary:: Plaintiffs Levin and Jones are lesbians who assert that they are life partners with a long-term committed relationship with each other. They are both medical students enrolled at the Albert Einstein College of Medicine, a division of defendant Yeshiva University. Yeshiva University offers housing to enrolled students and permits married couples to live together, in student housing, if they present Yeshiva with a marriage certificate. Levin and Jones sought student housing from Yeshiva and asked that they be permitted to live together on the basis of their long-term committed relationship. They obviously could not produce a marriage certificate because the state does not allow homosexual couples to marry. Yeshiva gave each of them a separate housing accommodation, but refused to allow them to live together. Because of their desire to live together, they both eventually left student housing and lived together elsewhere. They then brought this lawsuit alleging that (1) Yeshiva discriminated against them on the basis of their marital status, which is prohibited by both the State and the City Human Rights Law; (2) the City's Human Rights Law prohibits discrimination on the basis of sexual orientation, Yeshiva's housing policies have a disparate impact upon homosexual couples and Yeshiva's policies are therefore prohibited under the City Human Rights Law and (3) Yeshiva's policy violates their rights under the New York State Roommate Law. The Court rejected all of the tenants' arguments and dismissed the complaint. The Court found that Yeshiva did not discriminate against either Levin or Jones as individuals. Yeshiva did, in fact, offer them housing, notwithstanding their marital status or sexual orientation. Relying heavily on prior court decisions, the Court found that discrimination on the basis of marital status does not preclude discrimination based on an individual's relationships. Yeshiva is free to distinguish between married and unmarried couples. The Court said that the plaintiffs' "real complaint" is not with Yeshiva but "with the refusal of the New York State Legislature to sanction same-sex marriages." The Court said it was up to the legislature to change the law, not the Court. The Court rejected the roommate law argument on the grounds that the roommate law does not apply to college housing. Colleges can - and do - require students to share student housing, sometimes even with another student that the college - not the student - chooses.

New York Law Journal,
decisions for the week of March 22-26, 1999 (4 cases)

Case Caption:: Mayfair York LLC v. Zimmerman
Issues/Legal Principles:: Rebuttal presumption provision of retaliatory eviction statute is not available where landlord's case is proven to lack merit, even though tenant has a lease (which ordinarily eliminates the applicability of the retaliatory eviction statute).
Keywords:: illegal alterations; retaliatory eviction
Court:: Civil Court, New York County
Judge:: Hon. Billings
Date:: March 24, 1999
Citation:: NYLJ, page 28, col 4
Referred Statutes:: RPL 223-b
Summary:: Landlord brought a holdover proceeding against the tenant on grounds that she had installed in one of eight windows in her apartment without the landlord's consent. At trial, testimony focussed on the prior landlord's replacement of the other windows which led the court to conclude that the prior landlord also repaired the window which triggered the current litigation. Therefore the court dismissed the holdover proceeding. The court then had to deal with whether the retaliatory eviction law (RPL 223-b) applied to this case. RPL 223-b provides that if within six months after a tenant's good faith complaint to a governmental agency of apartment violations the landlord commences a holdover proceeding, a presumption is created that the lawsuit was initiated in retaliation for the tenant's complaint. The law allows the landlord to rebut this presumption. RPL 223-b, however, also provides that "the presumption shall not apply in an action or proceeding based on the violation by the tenant of the terms and conditions of the lease.; The landlord's holdover was based on tenant's alleged violation of the lease. Upon dismissal of the proceeding, the court had to address a novel issue of whether the presumption operates in light of the lease issue. The court concluded that it would not make sense if the exemption from the presumption of retaliatory eviction applied where a landlord pursues an unmeritorious claim based on a lease violation. This is because a landlord could always avert the statutory presumption simply by commencing a proceeding based on an allegation that the tenant violated the lease. No tenant whom a landlord sought to evict based on a rental agreement could avail herself of the presumption. "Such a construction of the exemption from RPL 223-b would permit any landlord to avert the presumption with impunity. Therefore the exemption from the presumption must have been designed to apply in other circumstances." The court held that to apply the exemption from the statutory presumption when the landlord does not have meritorious claim based on a lease violation would gut the purpose of the presumption. Instead, the exemption from the statutory presumption applies in situations when the landlord has a meritorious claim based on a lease violation, yet the tenant claims the landlord is using the lease violation as a pretext to evict the tenant when the real reason is tenant's good faith complaint of violations. The court ruled that in such circumstances, the tenant may not take advantage of the presumption and must resort to affirmative proof of the retaliatory motive. In this case the tenant proved that she made good faith complaints within the six month period prior to the commencement of the proceeding, thereby proving that the landlord commenced the proceeding as an act of retaliation. The tenant was afforded an opportunity to prove her damages, as well as attorney's fees.
Case Caption:: Goldstein v. Hutton Ingram Yuzek Gainen Carrol & Bertolotti
Issues/Legal Principles:: Hearing required whether tenant collected overcharges from an alleged illegal subtenant thereby using the apartment for business or commercial usages which would defeat the applicability of tenant's FDCPA federal law suit against landlord's attorneys who sent a three day rent demand.
Keywords:: Fair Debt Collection Practices Act; illegal sublet; overcharges
Court:: United States District Court for the Southern District of New York
Judge:: Hon. Mariam Cederbaum
Date:: March 24, 1999
Citation:: NYLJ, page 27, col 5
Referred Statutes:: 15 USC 1692 et seq s
Summary:: Tenant brought a federal law suit against her landlord's attorney's law firm pursuant to the Fair Debt Collection Practices Act ("FDCPA"). A three day rent demand was served on the tenant, and signed by the managing agent's vice president. The name of the law firm appears at the top of the demand and their name and return address appear on both the envelope in which the rent demand was mailed and the certified mail receipt for the demand. The tenant argued that the attorneys are debt collectors and that the notice violates the FDCPA's requirements (a) to provide the consumer (i.e., the tenant) thirty days to dispute the debt, (b) disclose clearly that the law firm was attempting to collect a debt and that any information obtained would be used for that purpose, and (c) contains threats to take actions that could not legally be taken, or that were not intended to be taken. The law firm moved to dismiss the complaint for virtually all the reasons unsuccessfully proffered by the defendant law firm in Romea v. Heiberger & Associates . The case was put on hold until the outcome of Romea was decided by the Second Circuit Court of Appeals (which occurred on December 9, 1998). The defendant tried to distinguish its position from Romea by arguing that the managing agent, rather than an attorney, was the actual person who signed the notice. The court rejected this position by holding that the Second Circuit only speaks of the "sending" of the demand letter by the attorney, not necessarily limiting in its analysis to who "signed" the notice. Based on the Second Circuit's holding, this court further denied the defendant law firm's motion on all counts, except on one issue that was not relevant to nor raised in Romea . The defendant claimed that because the tenant was illegally subletting and profiteering off the subtenants, her rent arrears arose out of a commercial or business transaction, rather than one with a "personal, family or household purpose." The FDCPA does not cover commercial or business transactions. The court, however, held that questions of fact defeat a motion to dismiss, because it is not yet known whether an illegal sublet existed and, if so, whether the tenant engaged in rent gouging. The court also rejected the defendant's constitutional argument that the FDCPA as applied here abrogates the lease and thus is a "taking of landlords' rights prohibited by the law." The court noted that the law firm merely raised this issue in a bare statement but provided no explanation for its position. The court refrained from reaching this constitutional issue until it was properly presented.
Notes:: This case supports a consumer-tenant's position that the mere formality of a signature is immaterial. Rather, courts will look to the substantive role the attorney plays in sending or communicating the notice to the tenant. This is consistent with the area of federal consumer protection inasmuch as the federal courts do not elevate form over substance.
Case Caption:: Matter of Helman v. New York State DHCR
Issues/Legal Principles:: Tenants' attorney who fails to answer petition for luxury deregulation is insufficient reason to vacate the DHCR's order of destabilization which was granted on default.
Keywords:: luxury deregulation
Court:: Supreme Court, New York County
Judge:: Hon. Zweibel
Date:: March 24, 1999
Citation:: NYLJ, page 27, col 5
Referred Statutes:: CPLR 1012(a), 1013, 7802(d); RRRA-93; RSL 26-504.1 to .3
Summary:: Tenants resided in the rent stabilized apartment for 20 years. The landlord filed a petition with the DHCR for luxury deregulation. The tenants were in Italy, but someone picking up their mail passed the petition onto their bookkeeper who in turn passed it on to their attorney. The tenants claim that their attorney said he would take care of it. The attorney failed to submit any response to the petition and the DHCR ruled that the apartment was automatically deregulated. The tenants lost their appeal (PAR) and this Article 78 ensued. The court held that the tenants failed to seek reconsideration of the decision and the court was bound by the statute's strict 60-day rule that if the petition is not answered in that time period, automatic deregulation is mandatory. The court also noted that the tenants, who alleged that their household income for the past two years was approximately $60,000.00, paid a $3,166.17 monthly rent and owned a house in Italy that was featured in Architectural Digest. Their defense that they did not earn over $250,000 a year (the statutory threshold then in effect�it is now $175,000) was not deemed meritorious by the court. Further, the court noted that the tenants do not reside in the apartment, but rather their daughter, son-in-law and two small children occupy the premises.
Case Caption:: Walker v. Cox
Issues/Legal Principles:: Unauthorized tenant in public housing apartment lacks standing to maintain federal lawsuit against landlord.
Keywords:: discriminatory enforcement; unauthorized occupancy
Court:: United States District Court for the Eastern District of New York
Judge:: Hon. Eugene Nickerson
Date:: March 24, 1999
Citation:: NYLJ, page 36, col 3
Referred Statutes:: Title VIII of the Civil Rights Act of 1968, 42 USC 3601 (Fair Housing Act)
Summary:: Pro se Plaintiff (i.e., representing herself) brought an action under the Fair Housing Act alleging that the defendant-landlord was evicting her from her residence because she is a "light skinned black female with a perceived disability." In 1992, she moved into her half-brother's public housing apartment without his permission and refused to move out, threatening him with unspecified harm if she were to be removed from the apartment. The brother informed his landlord that she was living with him but that she was not an authorized occupant. In 1994, he cancelled his lease to the four-bedroom apartment in exchange for a smaller apartment in the complex, in accord with the Housing Authority's rule that limits single persons to one-bedroom apartments. A week later he told the landlord that he had to void the new lease because plaintiff and her fiance would not move out and he feared for his life were he to take action against them. The Housing Authority terminated his tenancy on grounds that additional unauthorized persons were living in the apartment, and because the tenant would not relocate to the smaller apartment. According to the Housing Authority, even if he moved into the smaller apartment, he still violated the rules by having unauthorized occupants living with him. Neither plaintiff or the tenant showed up for the hearing at which his tenancy was terminated.; The landlord brought an eviction proceeding in Housing Court, but only plaintiff appeared. A judgment of possession ensued but the marshal refrained from evicting because the brother appeared to be "at risk" of an emotional or psychological disorder. In 1995, the Housing Authority re-opened the termination hearing but this Court had no further knowledge of the outcome of that proceeding. In 1996, the tenant brought an eviction proceeding against plaintiff and obtained a judgment of eviction. She appealed, but this Court had no further knowledge of the outcome of that appeal. Thereafter, the Court dismissed plaintiff's claims in her original complaint that she was entitled to have her name put on her half-brother's lease as a tenant in her own right. The Court did not conclude at that time that she was a legal tenant, but rather that she was not eligible to be joined on the lease. The Court did not dismiss the entire case due to her amendment to the complaint which raised the claim that she was discriminated against by the landlord. The landlord sought to dismiss the complaint on grounds that she is not an authorized tenant, i.e., she has no standing to make a discriminatory action complaint because she's not the tenant of record.; Defendant's motion went to a magistrate who found that plaintiff had standing as an "aggrieved person" under the Fair Housing Act and because she presented facts sufficient to support a claim for discrimination. The Court, however, declined to accept the magistrate's recommendations. The Court said that it should have dismissed her case from the inception because its claims belonged in state courts since this is "essentially an eviction dispute where a nonresident plaintiff seeks to interpose federal defenses." The Court held that even if plaintiff was an "aggrieved person," she still had to demonstrate the minimum constitutional requirements of standing�injury, causation and redressability. Plaintiff alleges that defendants tried to force her half-brother to illegally evict her by enforcing housing rules to live in a family size apartment according to "your [definition of] family size," and that such enforcement of the occupancy rule was discriminatory because other tenants occupied apartments that were of an inappropriate size for them. She claims the basis for this discriminatory conduct is her status as "a light skinned black female with a perceived disability." The injury in her claim is that she would be evicted as a result of the discriminatory action. The Court noted that the plaintiff asserts injury to her own rights, not on behalf of her brother. Her alleged injury is not statutorily created but specifically in trying to prevent her own eviction.; The Court held that even if plaintiff established that the defendant engaged in discriminatory conduct, she fails to satisfy the minimum standing requirements especially with respect to causation. The Court held that even in the absence of defendant's alleged discriminatory conduct, the plaintiff would still be subject to eviction (her claimed injury) because the landlord brought termination proceedings against the tenant based on plaintiff's unauthorized occupancy of her brother's apartment. Moreover, the Court noted, that the target of the alleged discriminatory enforcement of the occupancy rule was her brother, not plaintiff, holding that illegal occupants had no constitutional property interest in apartments they occupy. The Court dismissed her complaint which will allow the defendant to finally evict her.

New York Law Journal,
decisions for the week of March 15-19, 1999 (12 cases)

Case Caption:: South Park Associates, LLC v. Andrea Toledano
Issues/Legal Principles:: Tenant who receives an offer of a renewal lease less than 120 days prior to its commencement date and wishes to remain, should sign and return renewal lease to landlord and treat the lease as if it commenced on the date it would have commenced had a timely offer been made.
Keywords: lease renewals
Court:: Appellate Division, First Department
Judge:: lower court judge: Harold Tompkins
Date:: March 15, 1999
Citation:: NYLJ, page 26, col 26
Referred Statutes:: RSC Section 2523.5
Summary:: Landlord offered rent-stabilized tenant a renewal lease on or about April 18, 1996 that commenced on May 1, 1996. Tenant refused to sign the lease because the lease should have been offered at least 120 days prior to the commencement date of the lease. Landlord then brought an action against tenant in Supreme Court (the lower court) asking for a "declaratory judgment" that the apartment was no longer subject to rent stabilization due to tenant's refusal to sign the lease. The lower court dismissed the landlord's complaint, found that the apartment was still rent-stabilized and ordered landlord to issue a renewal lease. (Although this is not clear from the opinion of the appellate court, we assume that the lower court ordered that the renewal lease should be offered at least 120 days before the commencement date of the lease). The appellate court reinstated the landlord's complaint and agreed with the lower court on only one issue: the apartment is still subject to rent stabilization, but only on the condition that tenant sign the renewal lease for the period May 1, 1996 through April 30, 1998 within ten days of the date of the court's order and pay the landlord the increased rent set forth in that lease. The appellate court based its decision on RSC Section 2523.5(c). This section states that if a tenant receives an offer of a renewal lease less than 120 days in advance of the commencement date stated on the lease, the tenant has two options. The first option is to treat the lease as if it commenced "on the date a renewal lease would have commenced had a timely offer been made. The second option is to treat the lease as if it commenced "on the first rent payment date occurring no less than 120 days after the date that the owner does offer the lease to the tenant." The tenant should then sign the lease and return it to landlord. (Although the court's opinion is not clear on this point, we believe that the tenant should not alter the commencement date fixed by the landlord, but rather when signing the renewal, be sure and date the signature, and in a cover letterr advise the landlord which option is sought). The tenant is not entitled to treat a renewal lease offered less than 120 days in advance of the commencement date as a nullity. Finding the tenant's action unjustified, the appellate court ordered the tenant to sign the lease for the period May 1, 1996 through April 30, 1998 and pay the rent increases accordingly.
Notes:: Here is an example of how the two options available to the tenant would differ. Suppose the renewal lease should have commenced on August 1st. This means that the renewal lease should have been tendered no later than April 1st (i.e., 120 days prior to its commencement). But suppose that the landlord did not tender the renewal until November 1st. The first option provides that the tenant can treat the lease as if it commenced "on the date a renewal lease would have commenced had a timely offer been made." This would be August 1st. The second option is to treat the lease as it it commenced " on the first rent payment date occurring no less than 120 days after the date that the owner does offer the lease to the tenant." This would be March 1st of the following year (i.e., 120 days after November 1st, the date of tender). One of the main factors that would influence which option a tenant would take would depend on the rental increases in effect that year. Each year the rent guidelines board adjusts the renewal lease increases (and other rental increases) effective every October 1st through the following September 30th. In our hypothetical, if the percentage increases for rents are raised on October 1st, it might make sense to choose the first option where the lease should commence on August 1st. On the other hand, if that particular year, the rental increases went down on October 1st, then the tenant may find the second option more desireous where the lease starts the following March 1st.; A second reason that would affect a tenant's option in these type of cases is whether or not the tenant wants the lease to start at an earlier or later date. For example, if the tenant feels that they want to give up the apartment when the lease is over, but they'd like a little more than two years, choosing option two in our scenario over option one would accomplish this goal.
Case Caption:: Hampton Bays Apartments v. Esposito
Issues/Legal Principles:: Eviction case dismissed because landlord accepted rent after serving the notice of termination but before serving the holdover petition.
Keywords:: termination notice; acceptance of rent
Court:: Appellate Term, 9th and 10th Judicial Districts
Judge:: lower court judge: Hon. E. Burke
Date:: March 16, 1999
Citation:: NYLJ, page 31, col 4
Referred Statutes:: none cited
Summary:: Landlord of federally subsidized housing project commenced a holdover (eviction) proceeding against tenant. Landlord served a termination notice dated May 14, 1996 stating that the tenancy would terminate on June 30, 1996. The federal rent subsidy was wired into landlord's bank account on June 12, 1996. Landlord knew that the subsidy was wired directly it its account and landlord instructed its attorney to hold on to the funds. Landlord's behavior is an acceptance of rent which vitiated the termination notice. In other words, although the termination notice said that the tenancy would end on June 30, 1996, the acceptance of rent on June 12, 1996 affirmed the tenancy and thereby vitiated (contradicted) the termination notice.
Case Caption:: Kew Gardens Hills Associates v. Tillet
Issues/Legal Principles:: Nonpayment proceeding is dismissed because the predicate rent demand, signed by an attorney and authorized agent for the landlord, violates the Fair Debt Collection Practices Act ("FDCPA").
Keywords:: rent demand; FDCPA
Court:: Housing Part of the Civil Court, Queens County
Judge:: Hon. Cavallo
Date:: March 18, 1999
Citation:: NYLJ, page 32, col 3
Referred Statutes:: RPAPL Section 711; FDCPA
Summary:: The tenant was served a three day rent demand. It was signed "Kew Gardens Hills Associates, Landlord." Under the printed signature, the form contrained the printed work "By" and the actual signature of Lauren DeLotto who was described as "Attorney and Authorized Agent for Landlord." Below the designation the form contained Ms. DeLotto's business address at Fischbein, Badillo, Wagner, Harding. Attached to the three day rent demand was an authorization signed by the landlord for Ms. DeLotto to act as agent. The landlord brought a nonpayment proceeding against the tenant and the tenant moved to dismiss on grounds that the rent demand violates the Fair Debt Collection Practices Act, pursuant to the decision in Romea v. Heiberger & Associates, 988 F. Supp. 712 (S.D.N.Y.), affirmed by the U.S. Court of Appeals for the Second Circuit (December 9, 1998). The court granted the tenant's motion holding that the attorney who signed the three day demand in this case has no different standing than the defendant attorney in Romea . The court ruled that lawyers sending demands pursuant to RPAPL 711 are debt collectors. It held that the landlord had options and could have signed the demand itself, or the lawyers could have signed the demand as an agent of the landlord, so long as they complied with the FDCPA (which requires a thirty-day debt validation period). The court held that the landlord failed to comply with federal law. As a result the demand does not satisfy the RPAPL.
Notes:: Although technically the rent demand does satisfy the RPAPL in the context of a limited review of the RPAPL, the point is that the RPAPL does not exist in a vacauum. All state laws may have occasion to intersect federal law, as happens here. Since the FDCPA's 30 day debt validation requirement conflicts with RPAPL's 3 day demand, the FDCPA must prevail since federal law preempts state law.
Case Caption:: Alef Realty Management Co., LLC v. Vidal
Issues/Legal Principles:: Record tenant's adult son need not be named and served as a respondent in a summary nonpayment proceeding.
Keywords:: necessary party; default judgments
Court:: Appellate Term, First Department
Judge:: lower court judge: Hon. Ruben Martino
Date:: March 18, 1999
Citation:: NYLJ, page 29, col 3
Referred Statutes:: none cited
Summary:: Landlord brought a nonpayment proceeding against tenant of record. She defaulted (failed to appear in court) and the court granted the landlord a judgment of possession. The tenant's son then brought a motion to vacate the default but the trial court denied the motion. Tenant's son appealed and argued that the nonpayment petition was jurisdictionally defective because it named only the tenant of record but not the tenant's son. The appellate court rejected this argument, finding that the tenant's son was not a "necessary party" to the proceeding. The appellate court also upheld the trial court's refusal to vacate the default judgment. A default judgment cannot be vacated unless the moving party demonstrates both a reasonably excuse for the failure to appear in court and a meritorious defense. Neither tenant (who had abandoned the premises some time ago) nor tenant's son demonstrated a reasonable excuse or a meritorious defense. Six weeks after the judgment issued, tenant still had not taken any steps to obtain the rent arrears.
Case Caption:: Bud and Frank LLC v. Datwani
Issues/Legal Principles:: Tenant evicted for nonprimary residency; tenant's son evicted because he could not establish succession rights.
Keywords:: nonprimary residency; succession rights
Court:: Appellate Term, First Department
Judge:: lower court judge: Hon. Shirley Werner Kornreich
Date:: March 18, 1999
Citation:: NYLJ, page 29, col 4
Referred Statutes:: RSC Section 2523.5; CPLR Section 3117(a)
Summary:: The jury found, after trial, that tenant did not maintain the subject premises as his primary residence and that his son did not establish succession rights by residing in the apartment together with his father for a period of two years. The appellate court affirmed the jury's findings. Tenant has been living abroad since 1993 and only occasionally returned to the apartment while visiting New York. During the years 1993 to 1995, he spent less than three months in the apartment per year.
Case Caption:: Matter of Hampton v. Franco
Issues/Legal Principles:: The Supreme Court overturns NYCHA's decision terminating tenancy due to chronic rent delinquency.
Keywords:: NYCHA; chronic rent delinquency
Court:: Supreme Court, New York County
Judge:: Hon. Justice Cahn
Date:: March 18, 1999
Citation:: NYLJ, page 30, col 1
Referred Statutes:: NYCHA Termination of Tenancy Procedures Paragraphs 9 and 69
Summary:: Landlord, New York City Housing Authority (NYCHA), brought an administrative proceeding to terminate the tenant's tenancy due to chronic delinquency in the payment of rent from May 1996 through December 1997. Tenant's monthly rent of $421 is based upon tenant's anticipated earnings for a given year. At the administrative hearing, tenant admitted that she had been delinquent in rent payments during that period because of circumstances that have now changed for the better. She was suffering from diabetes. This illness caused many absences from work and she was not paid during her absences. She was under a doctor's care. Because of her sick leave, in two quarters of the year 1997, her gross earnings were actually less than her anticipated earnings. Now her illness was in control and she was no longer missing work. During the period of rent delinquency, tenant had two grandchildren and her younger daughter living with her and she assisted in their financial support. Now she has only her younger daughter living with her and her financial burdens have decreased. Despite tenant's explanation, NYCHA's hearing officer found that her tenancy should be terminated. NYCHA accepted the hearing officer's recommendation and terminated the tenancy. Tenant then filed an Article 78 proceeding with the Supreme Court. The Supreme Court overturned the decision of NYCHA finding that it was arbitrary, capricious and not rationally based. The Court also remanded the case to the NYCHA for further proceedings consistent with its opinion. Although the NYCHA hearing officer heard the mitigating evidence introduced by tenant (her ill health, the financial dependence of her two grandchildren), his opinion indicates that he did not give any weight to this evidence. In addition, the NYCHA hearing officer erred by considering certain evidence against tenant. The tenant did not introduce good character evidence on her behalf or pretend that she had an unblemished record. Therefore, it was improper for NYCHA to introduce evidence in the nature of rebuttal evidence (tenant's 1996 bankruptcy filing, tenant's 1993 probation for rent delinquency) to good character evidence that tenant did not introduce. The hearing officer's opinion indicates that he was greatly swayed by this evidence, which he should not have even considered.
Case Caption:: Tabak v. Pinzon
Issues/Legal Principles:: A rent controlled tenant's failure to respond to a demand notice sent by landlord, inquiring about occupancy of the apartment, is not a valid reason to evict tenant.
Keywords:: HMC demand notice; occupancy of apartment
Court:: Civil Court, New York County
Judge:: Hon. Reuben Martino
Date:: March 18, 1999
Citation:: NYLJ, page 30, col 4
Referred Statutes:: Housing Maintenance Code Section 27-2075
Summary:: Landlord served rent-controlled tenant with a demand notice pursuant Housing Maintenance Code ("HMC") Section 27-2075 requesting the names and relationship of all persons living in the subject apartment and the ages of all such persons under 21 years old. The notice warned tenant that tenant's failure to comply with the request may subject tenant to criminal penalties and sanctions pursuant to the HMC. Tenant failed to respond to the notice. Landlord then brought a holdover (eviction) proceeding against tenant. When tenant failed to appear in court, the court conducted an inquest proceeding. (An inquest proceeding is a hearing where only one side appears). The court dismissed the landlord's proceeding, finding that the rent controlled tenant's failure to respond to landlord's demand notice alone is not a valid reason to evict the tenant. Moreover, landlord could not explain what provision of the lease tenant violated by failure to respond to the demand notice.
Case Caption:: Seckin v. Davenport
Issues/Legal Principles:: Rent stabilized tenants who are occupying premises in violation of the certificate of occupancy can be evicted only if legalizing apartment would be unduly burdensome or economically improvident and the certificate of occupancy violation can only be cured by eviction.
Keywords:: illegal occupancy; Certificate of occupancy
Court:: Appellate Term, 2nd and 11th Judicial Districts
Judge:: lower court judge: Hon. R. Mason
Date:: March 18, 1999
Citation:: NYLJ, page 31, col 2
Referred Statutes:: MDL Sections 301 and 302; RSC Section 2524.3
Summary:: Landlord brought a holdover proceeding against rent stabilized tenants alleging that their occupancy was illegal because the Certificate of Occupancy ("C/O") provides that the premises is to be occupied by "one family and boarders." (The Court's decision does not say how the premises are occupied but it is apparently occupied contrary to the provisions of the C/O). The civil court granted landlord's motion for summary judgment (meaning that the tenants would be evicted without a trial) and denied tenant's motion for summary judgment (meaning that the tenants cannot be evicted and no trial is necessary). The appellate court overturned the civil court's decision, finding for the tenants. The court explained that "in order to be entitled to summary judgment of possession upon the ground that tenants' occupancies are illegal, landlords were required to show that the alleged illegality can be removed only by evicting tenants or that compliance with the legal requirements would be unduly burdensome or economically improvident. (citations omitted) Inasmuch as landlords failed to make this showing, their cross motions for summary judgment should have been denied and tenants' motion therefor granted."
Case Caption:: Farchester Gardens v. Licini
Issues/Legal Principles:: Landlord, who commenced a holdover proceeding without seeking the court's permission to withdraw the prior proceeding, must pay tenant's attorney's fees in the amount of $750 and costs in an unspecified amount.
Keywords:: attorney's fees; sanctions; costs
Court:: Appellate Term, 9th and 10th Judicial Districts
Judge:: lower court judge: Hon. J. Nocca
Date:: March 18, 1999
Citation:: NYLJ, page 31, col 3
Referred Statutes:: CPLR Sections 2201 and 3217; UCCA Sections 209 and 212; 22 NYCRR Section 130-1.1(a); RPAPL Article 7; RPL Section 234
Summary:: Landlord commenced four proceedings against tenant, one after another. The first three proceedings were holdover (eviction) proceedings alleging that tenant had illegally sublet her rent-stabilized apartment. The fourth proceeding was a summary proceeding seeking to recover unpaid use and occupancy. The landlord sought to withdraw the first proceeding before tenant filed a response. The appellate court found that the landlord was entitled to withdraw this proceeding as of right. The trial court erred when, at tenant's request, it signed an order to show cause enjoining landlord from commencing a second holdover proceeding and conditioning the withdrawal of the first proceeding upon payment of tenant's attorney's fees. The appellate court held that landlord was thus entitled to commence the second holdover proceeding. However, landlord made a mistake when it commenced the third holdover proceeding without seeking the court's permission to discontinue the second holdover proceeding. The commencement of the third proceeding was frivolous and resulted in award of attorney's fees of $750 to tenant and costs pursuant to 22 NYCRR Section 130-1.1(a). The appellate court held that the commencement of the fourth proceeding for use and occupancy was properly dismissed. However, since there is some incorrect case law supporting such a proceeding, landlord's proceeding is not frivolous and sanctions will not be imposed. The appellate court granted the landlord's request to discontinue all three proceedings without prejudice to commencing a new holdover proceeding on the condition that landlord pay tenant's attorney's fees in the amount of $500.
Case Caption:: DeMuro v. Hofstede
Issues/Legal Principles:: Tenants cannot obtain a further rent abatement in nonpayment proceeding brought after DHCR rent reduction order issued.
Keywords:: rent abatement; rent reduction
Court:: City Court of Yonkers
Judge:: Hon. Dickerson
Date:: March 19, 1999
Citation:: NYLJ, page 33, col 4
Referred Statutes:: RPL Section 234-b
Summary:: Landlord filed a complaint with the DHCR requesting a rent reduction due to landlord's breach of the warranty of habitability (failure to make repairs, etc.). The DHCR awarded a $50.00 rent reduction. Then landlord sued tenant for nonpayment of rent. Tenants asked the court for a further rent reduction due to landlord's breach of the warranty of habitability. The Court refused because tenants had already obtained this relief from the DHCR.
Case Caption:: Hudson Towers Associates v. Ben Rubackin
Issues/Legal Principles:: Court gives tenant a final opportunity to sign a renewal lease, after trial, rather than evicting tenant for failure to sign it when it was offered by landlord.
Keywords:: renewal leases
Court:: Appellate Term, First Department
Judge:: lower court judge: Hon. George M. Heymann
Date:: March 19, 1999
Citation:: NYLJ, page 26, col 2
Referred Statutes:: none cited
Summary:: The trial court found that tenant's refusal to accept the landlord's offer of a renewal lease was not deliberate or willful. (The decision does not explain the tenant's reasons for not signing the renewal lease). Rather than evicting tenant for failure to sign a renewal lease, the trial court therefore gave tenant another opportunity, after trial, to sign a renewal lease and preserve his lengthy rent-stabilized tenancy. The appellate court found that the trial court did not abuse its discretion by giving the tenant another chance to sign a renewal lease.
Notes:: Compare this case with South Park Associates, LLC v. Andrea Toledano, decided on March 15, 1999, and reported in this week's housing court decisions. In South Park Associates, LLC, the court also gave the tenant another opportunity to sign a renewal lease, even though the court found that the tenant's failure to sign the renewal lease in the first instance was "unjustified."
Case Caption:: Schneider v. McEnaney
Issues/Legal Principles:: Rent stabilized tenant is evicted because landlord established, at trial, her genuine intention to recover the rent-stabilized apartment for the personal use and occupancy of her adult grandson as his primary residence.
Keywords:: personal use holdover; retention of rent check
Court:: Appellate Term, First Department
Judge:: lower court judge: Hon. Faviola A. Soto
Date:: March 19, 1999
Citation:: NYLJ, page 26, col 2
Referred Statutes:: RSC Section 2524
Summary:: At trial, the landlord established her genuine intention to recover the rent-stabilized apartment for the personal use and occupancy of her adult grandson as his primary residence. (The decision does not recite the details). The trial court found that the landlord's testimony was credible. The appellate court said that it could not disturb the credibility determination of the trial court unless "the court's fact-based credibility determination could not be reached under any fair interpretation of the evidence." Applying this standard, the appellate court found that the trial court's decision should be upheld. In addition, the court held that the landlord did not vitiate the termination notice. Landlord served a termination notice that terminated the tenancy on December 31, 1997. The tenant then received and retained tenant's check dated January 3, 1998. Landlord served tenant with the holdover (eviction) petition in mid-January 1998. Landlord finally discovered its "clerical error" and returned the rent check to tenant on February 10, 1998. The appellate court found that the landlord had not waived its rights to commence a holdover proceeding against tenant by its "brief retention" of tenant's January 3, 1998 rent check.

New York Law Journal,
decisions for the week of March 8-12, 1999 (10 cases)

Case Caption:: Mattioli v. Caso
Issues/Legal Principles:: In "deceased tenant" nonpayment proceeding, the petition cannot be served simply on the apartment where landlord is aware that the party to be served resides elsewhere.
Keywords:: service of process; deceased tenants; licensees; estates
Court:: Civil Housing Court, Kings County
Judge:: Hon. Hoahng
Date:: March 10, 1999
Citation:: NYLJ, page 30, col 3
Referred Statutes:: RPAPL 711(2) & 735
Summary:: The prime tenant of the apartment died and the only occupant residing in the apartment with her for the past 7 years was her full-time caretaker. The landlord commenced a previous holdover proceeding which was dismissed because the petition described the tenant as "surrendering" the apartment without stating that the tenant had died. The current proceeding is a non-payment proceeding brought pursuant to RPAPL 711(2) which provides that when a tenant dies during the term of the lease and rent has not been paid and no estate executor has been appointed, a nonpayment proceeding may be commenced three months after the death by joining the surviving spouse, or if none, than any one of the distributees. The tenant has a sister, but she resides in a nursing home. The landlord served the nonpayment petition on the caretaker who still occupies the apartment and on the sister. However, the sister was not served at the nursing home. Rather, the copy of the sister's petition was served by conspicuous place service at the apartment and copies mailed to the nursing home by regular and certified mail. The sister failed to appear in court.; The landlord argued that it had complied with RPAPL's service provision that only if the landlord has written information where the person to be served resides is service required at that alternative address. Otherwise, service is proper at the apartment. The court firstly dismissed the petition with prejudice as against the caretaker since she is not liable under the statute for the tenant's rental arrears. As to the sister, the court dismissed the petition without prejudice for the landlord to either serve her personally at the nursing home, or commence a probate proceeding for an administrator to be appointed and then serve the administrator with a petition for the rental arrears. The court held that the landlord had to have had some sort of written information of the sister's whereabouts (regardless of where obtained) because copies of the petition were mailed to the nursing home. The court also held that satisfying the statutory service requirements to make service on the apartment creates an absurd result in "deceased tenant"" proceedings, since often enough the person who must be served does not reside in the apartment, therefore it can never be sufficient to simply serve the apartment without serving the person where they actually reside, especially in this instance where the landlord knew the sister's address.
Case Caption:: 12 East 86th Street v. Wesser
Issues/Legal Principles:: Tenant with two apartments is not a roommate to occupants of second apartment and cannot cure the illegal sublease where the occupants were overcharged.
Keywords:: illegal sublet; overcharge
Court:: Civil Housing Court, New York County
Judge:: Hon. Timmie Elsner
Date:: March 10, 1999
Citation:: NYLJ, page 27, col 4
Referred Statutes:: RPL 235-f(1)(b); RSC 2525.6(b); NYC Administrative Code 26-511(c)(12)
Summary:: Tenant held a lease to two apartments which were separate units. To gain entry to either apartment, the tenant admitted that one had to step out into the common hallway. Tenant occupied one apartment herself and claimed that the two people who resided in the other apartment were her roommates. She also charged them a rent in excess of the legal regulated rent. If there was a true roommate situation, the court deferred to the Appellate Division case, 520 East 81st Street Assoc. v. Roughton Hester which held that a tenant can charge a roommate any amount of rent without being susceptible to a forfeiture of the tenancy on grounds of rent overcharges. However, if the situation is a sublease as opposed to a roommate, then overcharges are not permissible and the tenant cannot cure this, even if the tenant attempted to refund the overcharges.; The landlord's witnesses included two men who had previously occupied the second apartment. They testified that the tenant had no access to their living space and didn't even have a key. Further, they testified that they paid an amount above the legal rent, but that the tenant claimed this was for "expenses." Later the tenant testified that she currently still has two "roommates" and that her charges above the regulated rent included legal fees for having to defend the holdover proceeding. The Court held that this situation involved a sublease because the tenant did not share the space with the other apartment's occupants, nor they with her. The Court further found that the tenant was not entitled to pass on to the subtenants legal fees since the tenant is not an attorney, and the extra charges exceeded the lawful rent. Therefore, the tenant improperly overcharged, which she cannot cure, and she forfeits the apartment.
Case Caption:: 165 South 9th Realty v. Bumgardner
Issues/Legal Principles:: Tenant of apartment for 54 years who later became superintendent does not lose tenancy status even after employment is terminated.
Keywords:: superintendents
Court:: Civil Housing Court, Kings County
Judge:: Hon. Callender
Date:: March 10, 1999
Citation:: NYLJ, page 30, col 2
Referred Statutes:: RPAPL 713(11)
Summary:: The owner brought a licensee holdover proceeding against the superintendent who had occupied the apartment for the past 54 years. The super presented two rent receipts from 1978 and testified that she had previously paid rent in cash from a prior principle in support of her argument that she was a tenant. There were also documents from the Rent Control office showing that she was listed as the tenant with a lease in 1968. The landlord argued that she was not a tenant, only a super, and that the Rent Control records indicate that the apartment was exempt from regulation because it had always been occupied as an incident to employment. The attorney argued that papers were sent to the DHCR merely to establish a rental for the apartment in case there came a time when the super ceased to be employed. The landlord denied that there was ever a lease naming her as a tenant. The court noted that case law has held that if the person entered into an apartment as a tenant and then becomes a super, the landlord tenant relationship would not have terminated. The subsequent employment relationship does not nullify the prior landlord tenant relationship which survives the termination of employment. The court determined that a landlord tenant relationship existed and that the tenant held rent controlled status for 54 years. The court rejected the landlord's argument that the court should be bound by the DHCR statements which indicated an exempt unit. The court, however, regarded the DHCR papers (filed as "mere instances of contrivance") as constituting a fraud, and most certainly the landlord should not be rewarded for this by evicting an 80 year old woman from her rent controlled apartment. The court dismissed the petition.
Case Caption:: Citywide Capital LLC v. Villanueva
Issues/Legal Principles:: Possessory interests of rent paying tenant who was not a party to a foreclosure action remain in place and new owner cannot evict tenant as a mere licensee.
Keywords:: licensee; foreclosure; recording statutes
Court:: Civil Court, Kings County
Judge:: Hon. Baynes
Date:: March 10, 1999
Citation:: NYLJ, page 29, col 6
Referred Statutes:: RPL 290 & 291; NY State Constitution Article 6, Section 15(b); Civil Court Act 905
Summary:: Tenant entered into a lease with the former owner in 1992 for a rent of $400 per month for ten years in consideration for the tenant's agreement to repair and maintain the premises. The tenant invested about $30,000 into the apartment in this regard. In 1996, a judgment of foreclosure was entered against the former owner and the property was sold at a public auction. The new owner brought a holdover proceeding against the tenant. The owner argued that the lease is subordinate to the previous owner's mortgage and should be deemed to have been terminated by the foreclosure judgment. Alternatively, the owner argued that the lease is void in view of the tenant's failure to record it in accord with New York's recording statutes. The tenant has sought to dismiss the petition on grounds that he was not made a party to the foreclosure action despite being in open, visible and continuous possession of the premises, and that his possessory rights are not affected by the foreclosure despite not having recorded the ten- year lease.; With respect to the first argument, the Court agreed with the tenant that if a rent paying tenant is not named a party to a foreclosure action, as a general rule the "possessory interests" may not be affected by a judgment of foreclosure. In such instances, the purchaser takes title subject to any rights or interest which the tenant may establish. The Court then was forced to examine the precise nature of the tenant's "possessory interests." The landlord argued that since the ten-year lease was not recorded, the tenant is a mere licensee. The Recording Statutes provide that with the exception of a lease lasting three years or less, every other written instrument which affects or even may effect title to real property is a conveyance and as such is void against subsequent "good faith" purchasers who have purchased for "valuable consideration," unless the documents are duly recorded. The tenant, however, cited cases that if a tenant is occupying the premises in an open, visible manner, then constructive notice is had of the possessory interest, and the purchaser has a duty to inquire of such interests prior to purchasing the property. Other cases held that if there was constructive notice of the unrecorded deed, the burden of proof shifts to the purchaser to prove that he or she was a good faith purchaser, i.e., that he or she failed to discover the prior right of the tenant, notwithstanding the exercise of proper diligence on their part. The court held that it could not determine good faith issues on motion papers and that a hearing was necessary on this issue. The court added, however, that these sorts of issues concern equitable relief which the court may or may not have jurisdiction over. The court denied the motion without ruling on the larger jurisdictional issues.
Case Caption:: Estate of DeCaylus v. Lewis
Issues/Legal Principles:: Estate cannot maintain eviction holdover proceeding against common law husband of deceased tenant when estate already has a removal action in Surrogate's Court for the same relief.
Keywords:: estates; licensees; pending actions
Court:: Civil Court, New York County
Judge:: Hon. Acosta
Date:: March 10, 1999
Citation:: NYLJ, page 27, col 2
Referred Statutes:: CPLR 3211 & 325(e); Surrogate's Court Procedure Act 2103(a); RPAPL 701 & 713
Summary:: The tenant of record died and Lewis claimed rights to the cooperative apartment on grounds that the tenant was his common law wife for 20 years. Lewis claimed that another action is pending in Surrogate's Court between the parties and that a dismissal or stay of the licensee holdover petition brought by the tenant's estate is warranted. The deceased tenant purchased the cooperative years ago and the estate admits that Lewis resided with the tenant for 15 years. The tenant's will directed that all her property, including the co-op apartment, be sold. The deceased tenant's brother is contesting the will and Lewis has filed a notice of election, claiming a share of the decedent's estate as a surviving common law spouse. The estate sought to have Lewis removed, but the Surrogate's Court said it would not determine that issue until the elective share issue was determined. The estate's request to remove Lewis within the context of the Surrogate's Court proceeding was effectively adjourned indefinitely. The Civil Court judge held that pursuant to CPLR 3211(a)(4) a court may dismiss a case where there is another action pending between the same parties on the same cause of action. The overriding purpose of the statute is to prevent a party from being harassed by a multiplicity of lawsuits. The court held that the removal petition pending in Surrogate's Court is substantially identical to the eviction holdover proceeding since both actions seek the same relief: possession of the apartment and the removal or eviction of Lewis. Further, the parties in both actions are the same. Under these circumstances the Court held that there is clearly "another action pending" and therefore dismissed the petition without prejudice pending the outcome of the removal action in Surrogate's Court. The Court held that even if it did not dismiss the proceeding, it would stay the holdover pending the outcome in the Surrogate's Court. The Court lamented that it would like to transfer the case to the Surrogate's Court but that it lacked jurisdictional and constitutional authority to do so.
Case Caption:: Helfer v. Conway
Issues/Legal Principles:: Landlord's claim that tenant is using the premises more for commercial purposes than residential purposes requires the service of a notice to cure and notice of termination.
Keywords:: lofts; mixed use; post-judgment cure
Court:: Appellate Term, First Department
Judge:: lower court: Hon. Debra James
Date:: March 11, 1999
Citation:: NYLJ, page 28, col 3
Referred Statutes:: RSC 2524.2(a) & 2524.3; RPAPL 753(4)
Summary:: Without serving a notice to cure or notice of termination, landlord commenced a holdover proceeding against the Rent Stabilized premises on grounds that the tenant used the space primarily or exclusively for commercial purposes. The former loft unit was equipped with residential facilities and rented to the tenant under an apartment lease which authorized "such accessory home occupation use as may be permitted by law." The lower court dismissed the petition for failure to serve the predicate notices. The landlord argued that an apartment occupied for commercial purposes is automatically exempted from stabilization protection so no notices needed to be served. The landlord alleged that the apartment was used strictly in a commercial manner. The Appellate Term rejected the landlord's position and affirmed the lower court, holding that no eviction action based upon a Rent Stabilized tenant's alleged wrongful acts may be commenced unless the owner has served a notice to cure and a notice of termination. The Court held that landlord's procedure would effectively deprive tenants the right to cure in mixed use situations where there is a "significant violation" of the use and occupancy restrictions. In other words, if the tenant loses at trial and the usage proves to be more commercial than residential, the tenant is entitled to fix the situation (i.e., cure) by beginning to use the premises more residentially than commercially. Every Rent Stabilized tenant has a right to cure a substantial violation of the lease within ten days after a judgment against them is rendered pursuant to RPAPL 753(4).
Case Caption:: Plon Realty Corp. v. Ford
Issues/Legal Principles:: Excessive passage of time defeats current owner's attempt to evict tenant based on alleged illegal alterations that occurred nine years ago where current owner fails to contest tenant's assertion that prior owner authorized removal of a wall.
Keywords:: illegal alterations; statute of limitations
Court:: Appellate Term, First Department
Judge:: lower court: Hon. Margaret Cammer
Date:: March 12, 1999
Citation:: NYLJ, page 26, col 1
Referred Statutes:: CPLR 3211(c)
Summary:: In a holdover proceeding based on illegal alterations, the current owner failed to contest tenant's sworn assertions that the principal of the former owner authorized removal of a wall in the apartment in 1989, nine years earlier. The lower court concluded that the landlord's claim for possession based upon tenant's violation of the "no alteration" provision of the lease is time- barred. The Appellate Term upheld the court's dismissal of the petition.
Case Caption:: 30 West 70th Street Corp. v. Sylvor
Issues/Legal Principles:: Landlord's proof of improvements to the apartment did not constitute mere maintenance or repair thereby the rent increase from $564 to $1500 is a legal rent.
Keywords:: overcharges; improvements
Court:: Appellate Term, First Department
Judge:: lower court: Hon. Howard Malatzky
Date:: March 12, 1999
Citation:: NYLJ, page 26, col 1
Referred Statutes:: RSC 2522.4(a)
Summary:: The lower court determined that the monthly rent of $1,500 was not an overcharge. The DHCR rent registrations dating back to 1991 showed that the prior tenants' rent was $564. However, the new $1500 rent was validly based upon the applicable vacancy increase and owner's entitlement to an increase due to gut renovations. At trial landlord submitted a signed contract to remodel the premises at a cost of $37,500, as well as checks payable to the contractor as the work progressed. The principal of the contractor testified with specificity as to the renovations made and the installation of new appliances and fixtures which the Appellate Term deemed as qualifying as "improvements" rather than mere maintenance and repair. The lower court's decision in favor of the landlord was upheld on appeal.
Case Caption:: Hotel Preservation v. Byrne
Issues/Legal Principles:: Court vacates default judgment against mentally incompetent tenant particularly where landlord knew or had reason to know of tenant's disability.
Keywords:: default
Court:: Appellate Term, First Department
Judge:: lower court: Hon. Timmie Elsner
Date:: March 12, 1999
Citation:: NYLJ, page 26, col 1
Referred Statutes:: CPLR 1203
Summary:: Landlord brought a nonpayment proceeding and tenant failed to appear. The lower court vacated the default judgment against tenant since tenant was a mentally incapacitated person and it appeared that landlord knew or had reason to know of the tenant's incapability of protecting her interests. The Appellate Term upheld the order.
Case Caption:: Bel Air Leasing Limited Partnership v. DHCR
Issues/Legal Principles:: Owner not entitled to see or respond to a DHCR inspector's report as a requirement before the DHCR issues a rent reduction order based upon the report.
Keywords:: rent reduction order
Court:: Appellate Division, Second Department
Judge:: lower court: Hon. Vaughn
Date:: March 12, 1999
Citation:: NYLJ, page 31, col 5
Referred Statutes:: none cited
Summary:: In 1996 the DHCR notified the owner that the tenant had filed a complaint. The owner claimed that the condition complained of by the tenant had been repaired. Two months later a DHCR inspector came to the apartment and found that the condition had not been effectively remedied. Thereafter the DHCR issued a rent reduction order which was upheld in an administrative appeal. The Appellate Division rejected owner's contention that owner was entitled to notice of the inspector's report and an additional opportunity to remedy the defective condition prior to the issuance of the rent reduction order.

New York Law Journal,
decisions for the week of March 1-5, 1999 (9 cases)

Case Caption:: In re Peter Sudarsky v. DHCR
Issues/Legal Principles:: High income / high rent deregulation is mandatory when a rent-stabilized tenant fails to timely respond to DHCR's request to certify household income.
Keywords:: high income / high rent deregulation
Court:: Appellate Division, First Department
Judge:: lower court judge: Hon. Herman Cahn
Date:: March 1, 1999
Citation:: NYLJ, page 27, col 1
Referred Statutes:: CPLR Article 78; CPLR Section 7803; RSC Section 2529.12
Summary:: DHCR issued an order of high rent/high income rent deregulation based upon tenant Sudarsky's failure to timely and properly respond to landlord's and DHCR's requests for income verification. The tenant filed a PAR where he alleged that he belatedly sent a response to landlord's attorneys; attorneys' employee filed an affidavit denying receipt of tenant's response. The DHCR denied the tenant's PAR. Tenant then filed an Article 78 proceeding with the Supreme Court where, for the first time, he claimed that he did not timely respond to the forms because he was in a clinical depression and his wife, a concert pianist, was on tour. The Supreme court granted tenant's Article 78 and remanded the matter to the DHCR for a hearing to resolve conflicting evidence. The landlord appealed from the Supreme Court's order remanding the case to the DHCR. The Appellate Division, First Department overturned the Supreme Court's decision, thereby affirming the DHCR's deregulation order. The appellate court cited to various Supreme Court cases (Bazbaz v. DHCR, Nick v. DHCR) and to an Appellate Division, First Department case (Pledge v. DHCR). These cases say that deregulation is mandatory where the tenant fails to certify household income within the sixty day period set forth in the Rent Stabilization Code ("RSC"). The court also found that the tenant's excuses were not valid and were offered belatedly.
Case Caption:: 427-428 45th Street Associates v. Spence
Issues/Legal Principles:: Tenant, who has not primarily resided in rent-stabilized premises, cannot prevent eviction by re-commencing primary residency.
Keywords:: holdover; nonprimary residence
Court:: Appellate Term, First Department
Judge:: lower court judges: Hon. Faviola A. Soto and Hon. Dianne T. Renwick
Date:: March 1, 1999
Citation:: NYLJ, page 29, col 3
Referred Statutes:: RPAPL Section 753
Summary:: The appellate court affirmed the trial court's decision evicting tenant for nonprimary residence. The documentary evidence (lease applications and leases signed by tenant to another apartment, a verified complaint in a federal lawsuit and an application for a business loan) demonstrated that tenant and her husband primarily resided in New Jersey and Pennsylvania during the lease term which expired on May 31, 1997. Tenant's efforts to re-commence primary residency in the apartment in May 1997 (an attempt to "cure her default") is unavailing. A holdover (eviction) proceeding alleging nonprimary residence is not based upon a tenant's breach of a lease. Since it is not a breach of the lease, tenant cannot cure it. A tenant's nonprimary residence is a "statutory exemption" for nonrenewal of the lease. The Court also found that the landlord's notice of nonrenewal (given 150 to 120 days prior to the expiration of the lease on May 31, 1997) was proper because it fairly apprised the tenants of the facts.
Case Caption:: 463-464 East River Housing Corp. v. Ierardi
Issues/Legal Principles:: Landlord timely commenced a holdover proceeding against tenant for harboring a dog in violation of the lease, by commencing the proceeding within three months after receiving a complaint from another tenant.
Keywords:: holdover; pets
Court:: Appellate Term, First Department
Judge:: lower court judge: Hon. Ruben A. Martino
Date:: March 3, 1999
Citation:: NYLJ, page 26, col 1
Referred Statutes:: NYC Admin. Code Section 27-2009.1; CPLR Section 5015(a); RPAPL Section 753(4)
Summary:: The appellate court affirmed the trial court's determination that tenant may be evicted for harboring a dog in violation of a lease provision and without the landlord's consent. [Tenant still has the right to cure the breach and avoid eviction by getting rid of the dog within ten days, as provided by RPAPL Section 753(4)]. Landlord first learned that tenants were keeping a dog in October 1996, after receiving a complaint from another tenant. Landlord timely commenced this proceeding within the three-month period required by law, that is, in December 1996. Although tenant adopted the dog in April 1996, the dog spent many weekends and the entire summer of 1996 in upstate New York at the home of tenants' relatives. This explains whey the landlord or its agents may not have seen the dog earlier. In order to claim a waiver, tenant has the burden of proof to show that landlord had knowledge of a pet but did not act on that information (i.e., commence a proceeding) until after 90 days had passed. Tenant's claim - that the building's employees knew about the dog for many months prior to the commencement of this proceeding - was found "not supported by the record" for reasons not mentioned in the Court's opinion.
Case Caption:: New York Life Insurance Co. v. V.K.
Issues/Legal Principles:: Default judgment against tenant for nonpayment of rent is vacated where landlord knew that tenant was not capable of defending herself (for psychological reasons) but failed to inform the court.
Keywords:: default judgements, vacating default judgments on grounds of fraud
Court:: Housing Part of Civil Court, New York County
Judge:: Hon. Billings
Date:: March 3, 1999
Citation:: NYLJ, page 27, col 5
Referred Statutes:: CPLR Sections 401, 1002, 1012, 1013, 1201-1204, 5015(a)(1), 5051; Social Services Law Sections 473; 18 NYCRR Section 457; 22 NYCRR Section 36; NY Domestic Relations Law Section 172(1); Family Court Act Section 1035(d); Lien Law Section 72(3)(b); NYCCCA Section 110(d).
Summary:: Landlord sued tenant for nonpayment of rent, tenant failed to appear and the court issued a default judgment providing for a judgment of possession to landlord and a warrant of eviction against tenant. The Court vacated its judgment and appointed a guardian ad litem when it discovered that tenant V.K. is incapable of defending her rights in the case. A Department of Social Services ("DSS") doctor examined tenant and found that she had problems involving concentration, attention, short term and long term memory and calculation. She could not remember the amount of her rent, was not aware of any rent arrears and could not remember her financial resources. The court discovered that the tenant was incapable of defending her rights only when DSS made a belated motion to intervene for the appointment of a guardian ad litem. The Court granted DSS's motion on the basis that DSS is a "friend" of the tenant, finding a lack of statutory authority for the appointment of a guardian ad litem on the basis of DSS's status as a protective services agency. The court found that the landlord knew that tenant was incapable of defending her rights, but should have informed the court of this fact. By failing to do so, and proceeding to obtain a default judgment, landlord committed a fraud upon the court, which is a basis for vacating the default judgment. CPLR Section 5051(a)(3) and (4). Landlord should have told the court that tenant was incapable of defending herself.
Case Caption:: 433 West Associates v. Vermette
Issues/Legal Principles:: Undertenant may agree to pay rent in excess of legal regulated rent in exchange for landlord's recognition of his tenancy rights; the "no waiver" provision of the Rent Stabilization Code does not apply.
Keywords:: waiver of rights
Court:: Housing Part of Civil Court, New York County
Judge:: Hon. Samuels
Date:: March 3, 1999
Citation:: NYLJ, page 28, col 4
Referred Statutes:: RSC Section 2520.13
Summary:: Landlord brought a non-primary residency proceeding against rent-controlled tenant (Vermette) and undertenant (Corsini). Vermette was willing to vacate the apartment but Corsini claimed succession rights as a family member of Vermette. The parties entered into a stipulation of settlement whereby Vermette agreed to vacate and Corsini was recognized as the tenant of record. The stipulation also provided that the initial rent-stabilized rent would be set at $1,500.00 per month and that Corsini (who was represented by an attorney) would not file an overcharge complaint with the DHCR. However, four months after the stipulation was signed, Corsini filed an overcharge complaint with the DHCR. Although Corsini violated the stipulation by filing the DHCR complaint, landlord continued to accept rent for fourteen months. Finally, landlord brought a motion asking the Court to restore this case to the Court's calendar, grant a final judgment of possession and award landlord attorney's fees. The Court denied the landlord's motion. Corsini argued that the stipulation itself was void because, as provided in RSC Section 2520.13, "any agreement by the tenant to waive the benefits of the RSL or this Code is void." The Court, citing to a similar case called Kent v. Bedford Apartments (App. Div., First Department 1997), said that Corsini was represented by an attorney and in exchange for agreeing to the legal rent, the landlord consented to Corsini's tenancy rights which he otherwise would not have been entitled to. Nevertheless, the Court denied landlord's motion for two reasons. First, the landlord waived its rights to object to Corsini's breach of the stipulation by accepting his rent for fourteen months with full knowledge of the breach. Second, after the stipulation was entered into, the landlord offered Corsini a rent-stabilized lease that provided (in paragraph 4B of the Rent Stabilization Lease Rider) that Corsini may file a fair market rent appeal with the DHCR if he believes that his rent is in excess of the legal rent. (Landlord did not strike out this language before offering Corsini the lease, but instead wrote in the rental amount, which indicated landlord's awareness of this paragraph). By offering this lease including paragraph 4B of the rider, the landlord lost what Corsini gave to him in the stipulation, that is, the promise not to file a rent overcharge complaint.
Notes:: Compare this case the following case, 149 West Four Assoc. v. Brakeley.
Case Caption:: 149 West Four Assoc. v. Brakeley
Issues/Legal Principles:: Undertenant may agree to pay rent in excess of legal regulated rent in exchange for landlord's recognition of his tenancy rights; the "no waiver" provision of the Rent Stabilization Code does not apply.
Keywords:: waiver of rights
Court:: Housing Part of the Civil Court, New York County
Judge:: Hon. Malatzky
Date:: March 3, 1999
Citation:: NYLJ, page 27, col 5
Referred Statutes:: RSC Section 2520.13
Summary:: Landlord brought a holdover proceeding against two tenants (Gottlieb and Pesic) of an apartment formed by the combination of apartments 5A and 5B. The parties entered into a stipulation whereby the landlord agreed to separate the apartment into two separate units (5A and 5B), Pesic was recognized as the tenant of 5A and Gottlieb as the tenant of 5B. The parties agreed that both 5A and 5B were "newly created" and a first legal rent-stabilized rent was set by agreement of the parties. The tenants, who were both represented by attorneys, stipulated that they would not challenge the legal rent in any forum. This stipulation was so-ordered by the court. One year and four months later, Pesic filed an overcharge complaint with the DHCR. Landlord brought a contempt proceeding against the tenant in housing court, alleging that tenant violated the court-ordered stipulation and was thereby damaged. Pesic argued that the stipulation itself was void because, as provided in RSC Section 2520.13, "any agreement by the tenant to waive the benefits of the RSL on this Code is void." The Court, citing to a similar case called Kent v. Bedford Apartments (Appellate Division, First Department 1997), said that Pesic was represented by an attorney, he had not yet established his right as the rent stabilized tenant of Apt. 5A at the time the stipulation was entered into, and the "rent-stabilized lease was given in the stipulation in exchange for the waiver of the right to challenge the rent." In other words, the no-waiver provision of the RSC does not apply to an occupant who has not yet obtained a judicial declaration of his status as rent-stabilized tenant. The Court strongly suggested that the tenant withdraw his DHCR rent overcharge complaint in order to avoid causing monetary damage to the landlord and that the landlord respond by withdrawing its contempt motion. In the event that tenant refuses to withdraw the DHCR overcharge complaint, then the parties must await the DHCR's decision and, if the landlord is monetarily damaged thereby, the Court would calculate the damages at that time and order the tenant to compensate the landlord.
Notes:: Compare this case with the previous case, 433 West Associates v. Vermette. In this case, it appears that the landlord took action against the tenant, by making a motion for contempt, shortly after the tenant filed the overcharge complaint. The landlord prevailed. In 433 West Associates v. Vermette, the landlord delayed taking action against the tenant and even continued to accept the rent. The landlord lost. There is a lesson here for tenants as well as landlords: assert your rights immediately; you may lose your rights if you delay.
Case Caption:: 715 Ocean Parkway Owners Corp. v. Ostrinsky
Issues/Legal Principles:: Under the facts of this case, officer of sponsor corporation, who is also an officer of the Cooperative Corporation's Board of Directors, acted as Board's agent in authorizing occupancy of the apartment by a dog.
Keywords:: holdover; pets
Court:: Housing Part of the Civil Court, Kings County
Judge:: Hon. Baynes
Date:: March 3, 1999
Citation:: NYLJ, page 31, col 4
Referred Statutes:: CPLR Section 408 and 3123; Article 6, Section 15(b) of the NYS Constitution
Summary:: Landlord, a cooperative corporation, brought a holdover proceeding against tenant-shareholder for harboring a dog without obtaining the prior written consent of the Board of Directors of the cooperative corporation. Tenant defended the proceeding on the grounds that Mr. Levine (a member of the Board, an officer of sponsor corporation and an officer of the managing agent corporation) gave consent when he sold the apartment to tenant-shareholder. The dog was listed as an occupant of the apartment and the paragraph of the form sales contract, which required tenant to obtain the Board's consent to the sale, was crossed out. (The proprietary lease contained a typical provision allowing the sponsor to sell his units without the Board's consent). The court's decision involved an interpretation of the law of agency. When Mr. Levine signed the contract, was he acting as agent for the Board or only as agent for the Sponsor? The court decided that he was also acting as agent for the Sponsor and that the case against tenant must be dismissed. The court decided that Mr. Levine acted with the Board's "apparent authority" and "implied authority" when he agreed to the dog's occupancy. The court explained that "the Coop unconditionally deferred its power to approve the sale of certain units to the Sponsor and elected not to have any direct contact with persons purchasing units from Sponsor. Such actions placed the Sponsor in a position where a person of reasonable prudence conversant with the purchase and sale of cooperative apartments would be justified in assuming that a Sponsor which is authorized to waive Coop approval, and which executes a sales contract specifically referencing a dog as one of the occupants, is authorized to waive the Coop's written pet approval provision." An additional fact, which persuaded the court to decide the case in tenant's favor, was that the proprietary lease did not absolutely prohibit pets under all circumstances. The lease only required prior Board approval of the pet.
Case Caption:: Millman v. Jack
Issues/Legal Principles:: Where landlord brings nonpayment proceeding against tenant in Housing Court, in violation of certain orders of the Supreme Court and the Bankruptcy Court, Housing Court has power to find landlord in civil contempt.
Keywords:: civil contempt
Court:: Housing Part of Civil Court, Kings County
Judge:: Hon. Callender
Date:: March 3, 1999
Citation:: NYLJ, page 32, col 4
Referred Statutes:: Judiciary Law Sections 750, 753 and 753A
Summary:: The landlord corporation (Yvon Mils, Inc.) defaulted on its mortgage payments and the mortgagee (Millman) obtained a judgment of foreclosure from the Supreme Court and an order prohibiting the landlord corporation or its president (William Mauro) from seeking any rent from the building's tenants. The Bankruptcy court issued a similar order. Notwithstanding these orders, the landlord continued to demand rent from the tenants and even brought a nonpayment proceeding in housing court. The tenant asked the court to find the landlord in contempt. The landlord argued, among other things, that only the courts that issued the orders (the Supreme Court and the Bankruptcy Court) have the authority to find landlord in contempt of its orders. The tenant argued that the Housing Court should have the power to find the landlord in contempt, because the landlord was attempting to abuse the Housing Court by asking the Housing Court to subvert the orders of the other courts. The court reviewed the Judiciary Law and decided that it did have the authority to make a finding of civil contempt - but not criminal contempt - against the landlord. The Court found that the provisions of Judiciary Law Sections 753 and 753A give the "court of record" expansive powers to punish for civil contempt.
Case Caption:: Kew Gardens Hills Associates v. Tillet
Issues/Legal Principles:: Rent demand signed by attorney, despite authorization from landlord-client, fails to satisfy the Fair Debt Collections Practices Act, and therefore the petition must be dismissed.
Keywords:: rent demand
Court:: Civil Housing Court, Queens County
Judge:: Hon. Ernest Cavallo
Date:: March 1, 1999
Citation:: unpublished decision, index no. L&T 91175/98
Referred Statutes:: Fair Debt Collections Practices Act (15 U.S.C. 1692 et seq); RPAPL 711
Summary:: The tenant was served a three day rent demand. It was signed "Kew Gardens Hills Associates, Landlord." Under the printed signature, the form contrained the printed work "By" and the actual signature of Lauren DeLotto who was described as "Attorney and Authorized Agent for Landlord." Below the designation the form contained Ms. DeLotto's business address at Fischbein, Badillo, Wagner, Harding. Attached to the three day rent demand was an authorization signed by the landlord for Ms. DeLotto to act as agent. The landlord brought a nonpayment proceeding against the tenant and the tenant moved to dismiss on grounds that the rent demand violates the Fair Debt Collection Practices Act, pursuant to the decision in Romea v. Heiberger & Associates, 988 F. Supp. 712 (S.D.N.Y.), affirmed by the U.S. Court of Appeals for the Second Circuit (December 9, 1998). The court granted the tenant's motion holding that the attorney who signed the three day demand in this case has no different standing than the defendant attorney in Romea . The court ruled that lawyers sending demands pursuant to RPAPL 711 are debt collectors. It held that the landlord had options and could have signed the demand itself, or the lawyers could have signed the demand as an agent of the landlord, so long as they complied with the FDCPA (which requires a thirty-day debt validation period). The court held that the landlord failed to comply with federal law. As a result the demand does not satisfy the RPAPL.
Notes:: Although technically the rent demand does satisfy the RPAPL in the context of a limited review of the RPAPL, the point is that the RPAPL does not exist in a vacauum. All state laws may have occasion to intersect federal law, as happens here. Since the FDCPA's 30 day debt validation requirement conflicts with RPAPL's 3 day demand, the FDCPA must prevail since federal law preempts state law.

Housing Court Decisions March 1999

New York Law Journal, decisions for the week of March 29-April 2, 1999 (8 cases)

New York Law Journal, decisions for the week of March 22-26, 1999 (4 cases)

New York Law Journal, decisions for the week of March 15-19, 1999 (12 cases)

New York Law Journal, decisions for the week of March 8-12, 1999 (10 cases)

New York Law Journal, decisions for the week of March 1-5, 1999 (9 cases)

New York Law Journal,
decisions for the week of March 29-April 2, 1999 (8 cases)

New York Law Journal,
decisions for the week of March 22-26, 1999 (4 cases)

New York Law Journal,
decisions for the week of March 15-19, 1999 (12 cases)

New York Law Journal,
decisions for the week of March 8-12, 1999 (10 cases)

New York Law Journal,
decisions for the week of March 1-5, 1999 (9 cases)