Housing Court Decisions November 1999
Editors: Colleen F. McGuire, Esq., Chief Editor
Linda Rzesniowiecki, Esq. and Robert E. Sokolski, Esq.

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New York Law Journal,
decisions for the week of November 22-26, 1999 (7 cases)


Case Caption:
McCormick v. Moran
Issues/Legal Principles:
Landlord's costs for cleaning tobacco smoke residue resulting from tenant's heavy smoking was recoverable upon tenant's vacancy from apartment.
Keywords:
smoking; tobacco smoke residue; cleaning; excessive wear and tear; security deposit
Court:
City Court of Watertown
Judge:
Hon. Haberson
Date:
November 24, 1999
Citation:
NYLJ, page 35, col 3
Referred Statutes:
Public Health Law Article 13-E
Summary:
Upon vacating her apartment, tenant sued her landlord for the return of her $375.00 security deposit. The Landlord counterclaimed for $455.64, which the landlord paid to a local cleaning company for general cleaning of the apartment. The landlord claimed that the tenant's heavy smoking left a smelly residue on the floors, walls, windows, woodwork and carpets in the apartment which were above and beyond the "ordinary wear and tear" resulting from reasonable use of the premises by the tenant.

The court found that the tenant's excessive smoking and her failure to rectify the condition before she vacated created an offensive odor and a potential health risk that may arise to others who may use the premises. As evidence of the dangers caused by residue from smoking, the court cited Public Health Law Article 13-E, known as the "Clean Indoor Air Act," which allows hotel or motel operators to implement a smoking policy and if implemented, mandates the posting of notice as to the availability of non-smoking rooms. While the health statute itself is not applicable to private residences, the court awarded the landlord full costs of the cleaning, citing the lease provision which required the tenant to "use reasonable care to keep the premises in such condition as to prevent health and sanitation problems from arising." The court reasoned that the ordinary wear and tear "should not leave a leasehold in a condition that violates the warranty of habitability, which would be detrimental to the 'life, health or safety' of the next tenants, and subject the landlord to a violation of the warranty of habitability under Section 235-b of the Real Property Law."


Case Caption:
Yen v. Ramos
Issues/Legal Principles:
Absence of the words "primary residence" in landlord's notice of non-renewal is not fatal to an owner occupancy holdover proceeding.
Keywords:
owner occupancy; owner use; non-renewal notice;
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Carol H. Arber
Date:
November 24, 1999
Citation:
NYLJ, page 30, col 3
Referred Statutes:
RSC 2524.2(b)
Summary:
Landlord brought an owner occupancy holdover proceeding, based upon a notice of non- renewal which stated that the landlord "desires occupy [sic] for her own use and residence," and further explained the landlord's circumstances of the loss of her own New York apartment. The Housing Court, New York County dismissed the action, due to the landlord's failure to specify that she sought to use the premises as her "primary residence" in the non-renewal notice.

The Appellate Term, First Department reversed, and reinstated the petition, finding that the non-renewal notice conformed to the specificity required by Rent Stabilization Code 2524.2(b) and governing cases. The court reasoned that the words "primary residence" were terms of art and not specifically required, as long as the characterization of the intended use of the premises was "not inconsistent with its use as a primary residence."


Case Caption:
Change Tenants Association v. Carter
Issues/Legal Principles:
Relatives in Tenant Interim Lease buildings are not entitled to succession rights
Keywords:
TIL; tenant interim lease; succession rights
Court:
Housing Court, New York County
Judge:
Hon. Schachner
Date:
November 24, 1999
Citation:
NYLJ, page 32, col 4
Referred Statutes:
none cited
Summary:
After the record tenant in a Tenant Interim Lease ("TIL") building died, the landlord, a net lessee of the City of New York Department of Housing Preservation and Development ("HPD") pursuant to the TIL program, sought to evict the tenant's family members as licensees of the record tenant.

The Respondents claimed that they had succession rights to the TIL apartment. The court disagreed, noting that the regulations applicable to the TIL program, under the aegis of HPD's Division of Alternative Management Program, do not contain any provision for succession by a family member to the tenancy. Due to the regulation's silence on the issue of succession, and the fact that the City had adopted succession regulations for other types of HPD supervised buildings, the court was bound by the regulations, as well as prior case law rejecting TIL succession right claims. The court noted that the "failure of the City to address the issue of succession in its TIL regulations results in harsh consequences for family members of TIL tenants. It would certainly be appropriate for the City to establish guidelines for its TIL buildings on the issue of succession."

The Court granted summary judgment against the Respondents on their succession rights claim, but refused to dismiss the Respondent's claims for waiver and failure to name a necessary party, finding issues of fact that remained for trial and rejecting claims of petitioner's counsel that a prior judge had already dismissed the remaining claims.


Case Caption:
In re Yvonne Johnson v. New York City Housing Authority
Issues/Legal Principles:
Termination of public housing tenancy for violating stipulation excluding emancipated child from visiting the apartment was a penalty which shocked the conscience of the court, where the tenant was raising six children, relied upon public assistance for support and had an otherwise unblemished record in public housing.
Keywords:
public housing; termination; excessive penalty; excluded child
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Phyllis Gangel-Jacob
Date:
November 23, 1999
Citation:
NYLJ, page 24, col 4
Referred Statutes:
none cited
Summary:
A public housing tenant brought an Article 78 proceeding to challenge the New York City Housing Authority's termination of her tenancy based upon her violation of a stipulation of settlement in a prior nondesireability proceeding, where the tenant conditioned her eligibility upon the continued absence of her emancipated son from the apartment. The Supreme Court, New York County transferred the matter to the Appellate Division, First Department, pursuant to CPLR 7804(g), as the tenant presented issues of whether the Housing Authority's determination was supported by substantial evidence.

While the Appellate Division found that substantial evidence supported the Housing Authority's determination that the tenant's excluded son visited the apartment, the Appellate Division also found that the penalty of termination shocked the conscience of the court, and vacated the penalty of termination, remanding the case back to the Housing Authority for imposition of a lesser penalty. The Appellate Division reasoned that the tenant had an otherwise unblemished record in public housing, the tenant was raising six children including an adopted son and daughter and three foster children, she relied on public assistance and her disabled son's social security for her support, and the violation arose from the isolated act of her emancipated son who did not reside with her.


Case Caption:
East 77th Realty LLC v. Alin
Issues/Legal Principles:
Alleged violation of Fair Debt Collection Practices Act in predicate rent demand notice does not require dismissal of nonpayment summary proceeding.
Keywords:
Fair Debt Collection Practices Act; FDCPA; nonpayment summary proceeding
Court:
Housing Court, New York County
Judge:
Hon. Howard L. Malatzky
Date:
November 24, 1999
Citation:
NYLJ, page 32, col 2
Referred Statutes:
15 U.S.C. 1692; RPAPL 711(2)
Summary:
Tenant moved to dismiss a summary nonpayment proceeding, for failure to state a cause of action, and failure to comply with the Fair Debt Collection Practices Act, 15 U.S.C. 1692 ("FDCPA"). The predicate rent demand, which required payment of the alleged past due rent within three days, the minimum time required by RPAPL 711(2), was signed by a member of the petitioner. However, the rent demand notice was printed on the letterhead of petitioner's counsel.

The court denied the tenant's FDCPA claims, noting that it was bound by the Appellate Term's holding in Wilson Han Associates v. Arthur, 7/6/99 NYLJ 29, col. 4, which held that a rent demand notice which does not comply with the FDCPA may still be used as a predicate rent demand in a nonpayment summary proceeding. The Housing Court correctly noted that the effect of a debt collection communication upon a consumer is determined using the "least sophisticated consumer standard." However, the court then proceeded to find that the least sophisticated consumer who received a rent demand on an attorney's letterhead, would have no reason to believe that the demand was from the attorney, as the signature on the letter was the petitioner's.

The Housing Court further denied the tenant's motion to dismiss for failure to state a claim, noting that the predicate notice informed the tenant of the period for which the rent was sought, the amount claimed, the specific sums representing rent for specific months, and the expiration date of the three day notice.


Notes:
The FDCPA is a federal consumer protection law which requires that a consumer be given clear and effective written disclosure of certain items and their rights pursuant to 15 U.S.C. 1692g in the initial debt collection communication from a debt collector, or within five days from the debt collector's initial communication. The disclosure must inform the consumer of the amount of the debt and the name of the creditor. The consumer's rights include the right to dispute the debt within thirty days; the right to be provided a verification of the debt or a copy of the judgment by mail from the debt collector upon written request from the consumer within thirty days; and the right to be provided name and address of the original creditor, if different from the current creditor, upon the consumer's written request within thirty days. Moreover, if the consumer disputes the debt, the debt collector must cease collection efforts until verification of the debt is mailed to the consumer.

In Romea v. Heiberger and several related cases which are featured in the Romea Folder on this cite, the United States Court of Appeals for the Second Circuit and several United States District Courts held that the FDCPA applies to RPAPL 711(2) rent demand notices, if they are the initial communication from an attorney debt collector. The issue of whether rent demand notices which violate the FDCPA may still be used as a predicate in nonpayment summary proceedings has been, and will be, the subject of further litigation. In Wilson Han Associates v. Arthur, 7/6/99 NYLJ 29, col. 4, the Appellate Term for the Second and Eleventh Judicial Departments (covering Brooklyn and Queens), held that the notice could still be used in state court, despite the violations of federal law. At least two cases embracing this issue (amongst other issues) are currently pending post-argument before the Appellate Term, First Department (covering Manhattan), which has yet to speak on whether the state law (RPAPL) is preempted by the federal consumer protection law (FDCPA).

What is disconcerting about this particular case is not that the court followed the only existing Appellate Term decision which allows the notice as a predicate to nonpayment summary proceedings. Rather, the court, in a complete divergence from almost every single FDCPA case decided in state or federal courts across the country, speculates that the "least sophisticated consumer" could not be confused as to the origin of a demand letter written on an attorney's letterhead, but signed by the attorney's client.

Current FDCPA precedent squarely holds that the question of who signs the communication is irrelevant. The issue is who "communicated" the message or who the least sophisticated consumer could believe communicated the message. If there is more than one possible conclusion to be drawn, the letter is deceptive, per se. In fact, if the least sophisticated consumer would be led to believe that a debt collector was involved when it was not (such as here, where the creditor has signed the letterhead of the debt collector), both the creditor and the debt collector could become liable under, amongst other sections, 15 U.S.C. 1692j, entitled "Furnishing certain deceptive forms."

Despite the state courts' reluctance to protect and enforce federal consumer rights and protections, it must be emphasized that tenant-consumers may still enforce their FDCPA rights in federal court. The FDCPA allows for attorneys fees, actual damages and statutory awards for up to $1,000.00 per case (even in the absence of proven damage), even if only a single violation is proven. Private lawsuits are the primary enforcement mechanism for most federal consumer protection laws, including the FDCPA.


Case Caption:
Draper v. Georgia Properties, Inc.
Issues/Legal Principles:
Court of Appeals affirms rent overcharge and denial of landlord's request for discovery, despite landlord's claims of non-primary usage and provisions of non-primary residential lease.
Keywords:
non-primary; de-regulation; overcharge
Court:
Court of Appeals
Judge:
lower court: not cited
Date:
November 24, 1999
Citation:
NYLJ, page 28, col 5
Referred Statutes:
RSC 2525.3(b);RSC 2520.13; RSL 26-403
Summary:
Trial Court awarded tenant summary judgment and denied landlord's application for discovery on her rent overcharge claims, and the award was affirmed by the Appellate Division. The landlord appealed to the Court of Appeals (as of right on a two-justice dissent), arguing that it should have been allowed to conduct discovery concerning the tenant's primary residence, particularly since her lease stated that she would not use the apartment as her primary residence.

The Court of Appeals affirmed the award of summary judgment, inasmuch as the Rent Stabilization Code 2525.3(b) expressly prohibits an owner from requiring a respective tenant "to represent or agree as a condition of renting a housing accommodation that the housing accommodation shall not be used as the . . . prospective tenant's primary residence." The Court of Appeals further noted that Rent Stabilization Code 2320.13 provides that "[a]n agreement by the tenant to waive the benefit of any provision of the [Rent Stabilization Law] or this Code is void." The Court rejected the landlord's attempt to de-regulate the apartment by contract, emphasizing that de-regulation was available through "regular, officially authorized means [citing RSL 26-403]."

As to the landlord's application for discovery, the Court affirmed the lower court's denial of discovery, noting that the tenant's submission of her affidavit and cogent and complete documentary evidence negated the necessity for discovery and fully supported summary judgment. Moreover, since the tenant provided copies of her driver's license, voter registration card, tax returns, utility bills, an enrollment contract for her son at a nearby private school and other letters to her by the landlord and others, all noting the subject premises as her address, the Court found that landlord could neither discover nor present evidence to overcome the tenant's position that no triable issue of fact was present as to her primary residence.


Case Caption:
Brinckerhoff v. New York State Division of Housing and Community Renewal
Issues/Legal Principles:
Landlord's failure to file an initial apartment registration (RR-1) has no effect upon the four year statute of limitations precluding the DHCR from examining the rental history of the apartment prior to the four years preceding the filing of an overcharge complaint.
Keywords:
overcharge complaint; RR-1; initial registration; 1997 RRRA
Court:
Supreme Court, New York County
Judge:
Hon. Beverly Cohen
Date:
November 24, 1999
Citation:
NYLJ, page 30, col 4
Referred Statutes:
RSL 26-516(a); CPLR 213-a; RSL 26-516(a)(2); CPLR 3001; 42 U.S.C 1983
Summary:
Tenant filed an overcharge complaint on April 6, 1989, which resulted in an "Order and Determination Finding Rent Overcharge Where Owner Failed to Initially Register," rendered by the Rent Administrator on January 21, 1994, awarding the tenant $86,763.99 (trebling the award of $28,921.33) and rejecting the landlord's claims to rent increases due to renovations. The landlord filed a Petition for Administrative Review ("PAR"), which was granted, vacating the overcharge finding in its entirety. The PAR's finding of no rent overcharge was based upon a prohibition of Rent Regulation Reform Act of 1997 ("1997 RRRA"), which precludes the DHCR, or any court, from examining the rental history of a housing accommodation for more than four years preceding the filing of an overcharge complaint.

The tenant brought an Article 78 proceeding, which the Supreme Court, New York County resolved by affirming the PAR, finding that the 1997 RRRA's four year statute of limitations and prohibitions against examination of the rental history for more than four years prior to the overcharge complaint applied, notwithstanding that the landlord did not file the initial apartment registration ("RR-1") until November 9, 1992. The Court rejected the tenant's argument that it would be inappropriate to apply the 1997 RRRA where the owner failed to file the RR-1 before the overcharge claim was brought, and affirmed the base date of April 6, 1985 (four years prior to the April 6, 1989 overcharge complaint).

The court also rejected the tenant's claims that the 1997 RRRA was unconstitutional as retroactively applied, noting that the tenant did not have a property right in the Rent Administrator's order of January 21, 1994, which was rendered intermediate and nonbinding upon the filing of the PAR.


Notes:
Curiously missing from this case is whether the tenant filed a Fair Market Rent Appeal ("FMRA") within 90 days after the owner filed the initial apartment registration (RR-1) on November 9, 1992. The FMRA would have given the tenant a second means of challenging the registered rent.


New York Law Journal,
decisions for the week of November 15-19, 1999 (5 cases)


Case Caption:
Zumo Management Inc. v. DHCR
Issues/Legal Principles:
An owner is prohibited from collecting any rent increase - including guidelines, vacancy and 1/40th increases - after the DHCR issues a rent reduction order.
Keywords
rent reduction order; rent increases
Court:
Supreme Court, Queens County
Judge:
Justice LaTorella
Date:
November 17, 1999
Citation:
NYLJ, page 32, col 1
Referred Statutes:
RSL Sections 26-511[a], 26-514 and 26-516; RSC Section 2526.1[a][1]; Operational Bulletin 95-1
Summary:
In February 1993, in response to a tenant complaint of a decrease in services, DHCR issued a rent reduction order and ordered a rent rollback. The landlord filed an application for rent restoration on February 6, 1996 and it was granted by DHCR on May 7, 1997 and made effective as of April 1, 1996. Thus, the rent reduction order was in effect from February 1993 until April 1, 1996. In January 1994 a tenant vacated and the landlord made improvements to the apartment. When Wilma Ruiz became the tenant in March 1994, the landlord charged a vacancy increase and increased the rent by 1/40th the cost of the improvements. In February 1997, tenant Ruiz filed a rent overcharge complaint and the DHCR determined that she had been overcharged because the landlord should not have collected a vacancy increase, guidelines increase or 1/40th increase from tenant Ruiz while the rent reduction order was in effect. Landlord filed an Article 78 proceeding with the Supreme Court and the Supreme Court upheld the DHCR's determination. Both RSL Section 26-514 and the DHCR's Operational Bulletin 95-1 clearly state that the owner is prohibited from collecting any rent increase once a rent reduction order issues. The landlord cited to cases where the landlord was permitted to collect a 1/40th rent increase despite the existence of a rent reduction order. In those cases, the landlord had completed the improvements and the tenant began paying the 1/40th rent increase before the rent reduction order issued. This case is different. The landlord made the improvements and began charging the 1/40th increase after the rent reduction order issued. In other words, in this case, the landlord ignored the rent reduction order. The Supreme Court upheld the DHCR's overcharge award.


Case Caption:
Metz v. Duenas
Issues/Legal Principles:
Landlord must give tenant a clear and unequivocal demand for rent in a specified amount prior to serving a notice of petition and petition upon tenant.
Keywords:
rent demand
Court:
District Court, Nassau County
Judge:
Hon. Slano
Date:
November 17, 1999
Citation:
NYLJ, page 33, col 2
Referred Statutes:
RPAPL Sections 711 and 743; CPLR Sections 3018(b) and 3211
Summary:
Landlord brought a nonpayment proceeding against tenant predicated upon an oral rent demand. Landlord - Ms. Metz - testified that she orally demanded rent from tenant but could not recall whether she demanded the rent in late March, April or early May. She offered no testimony about the amount of rent she demanded. Ms. Metz, who does not understand Spanish, said that her Spanish-speaking secretary made a rent demand in Spanish, but the secretary did not testify at the hearing. The tenant testified, through a Spanish translator, that she had discussions about the rent with the secretary and Ms. Metz's brother but offered no testimony to the effect that an actual rent demand was made. The Court granted the tenant's motion to dismiss the case. The landlord did not comply with RPAPL Section 711, which requires that landlord give tenant a clear and unequivocal demand for rent in a specified amount prior to serving a notice of petition and petition upon tenant. The Court further held that the Spanish-speaking tenant should have received a rent demand in Spanish.


Case Caption:
Ardache Corporation v. Shea
Issues/Legal Principles:
Attorneys' fees may not be awarded to subtenant who prevailed in litigation against landlord.
Keywords:
attorneys' fees
Court:
Civil Court, New York County
Judge:
Hon. Peter Wendt
Date:
November 17, 1999
Citation:
NYLJ, page 28, col 3
Referred Statutes:
RPL Section 234; CPLR Section 5519(c)
Summary:
Landlord brought a proceeding against tenant Shea for illegally subletting the apartment to respondent Lawson. Lawson defeated the landlord's case by proving that the landlord had waived any objections it had to the sublet. Lawson then asked the court to award attorney's fees to Lawson because he was the prevailing party in the litigation. The court refused to do so. The Court explained that the lease does contain a clause that permits the landlord to obtain attorney's fees if the landlord is successful in litigation against tenant. As a result, RPL Section 234 would allow the tenant to obtain attorney's fees against landlord, if tenant is successful in litigation against landlord. However Lawson is not the tenant but the subtenant. As the subtenant, he is not the person who entered into the contract with the landlord. Therefore, attorneys' fees may not be awarded to Lawson. Furthermore, although the courts have held that a successor to the tenant may be awarded attorneys fees, Lawson is a subtenant - not a successor to the tenant - and may not be awarded attorney's fees on this basis.


Case Caption:
Broome Realty Associates v. Eng
Issues/Legal Principles:
Housing Court judge may not order landlord to remove surveillance camera pointed at tenant's door.
Keywords:
injunctive relief
Court:
Appellate Term, First Department
Judge:
lower court judge: Hon. Douglas E. Hoffman
Date:
November 15, 1999
Citation:
NYLJ, page 26, col 1
Referred Statutes:
Civil Court Act Sections 110[a][4] and 203[o]
Summary:
Landlord brought a nonprimary residence proceeding against tenant. Tenant asked the housing court judge to issue an order requiring landlord to remove a surveillance camera located on the wall opposite tenant's door. The judge issued the order but the appellate court reversed, explaining that it is inappropriate for the housing court to grant injunctive relief. (Injunctive relief consists of a court order requiring a person to do something or refrain from doing something). The housing court may grant injunctive relief only under limited circumstances, such as to enforce housing standards (e.g., order the correction of violations) or for certain provisional remedies allowed by Section 209(b) of the Civil Court Act.
Notes:
The Appellate Term is not saying that the tenant has no right to challenge the surveillance camera under an invasion of privacy argument. The Appellate Term is simply ruling that the tenant cannot raise that issue in Housing Court. The tenant could go to Supreme Court to challenge the surveillance camera, although that would be a relatively costly proceeding.


Case Caption:
Rudd and Klein v. Devine
Issues/Legal Principles:
where two or more landlords own a builidng, only one landlord may seek to recover an apartment for personal use.
Keywords:
owner occupancy proceeding
Court:
Appellate Term, First Department
Judge:
lower court judge: Hon. Norman C. Ryp
Date:
November 15, 1999
Citation:
NYLJ, page 26, col 1
Referred Statutes:
RSC Section 2524.4(a)(3)
Summary:
Rudd and Klein sued tenant Devine in order to recover an apartment for the personal use of Klein or one of his immediate family members. The trial court dismissed the landlord's petition and the appellate term upheld the dismissal. Since landlord previously commenced a proceeding against another tenant to recover an apartment for the personal use of Rudd, landlord may not now recover an apartment for the personal use of Klein. This is because RSC Section 2524.4(a)(3) provides that only one individual building owner (in this case Rudd) may recover possession of an apartment for personal use.


New York Law Journal,
decisions for the week of November 8-12, 1999 (4 cases)


Case Caption:
Matter of IG Second Generation Partners LP v. DHCR
Issues/Legal Principles:
Landlords must declare the amount of the last rent controlled rent when registering the first rent stabilized rent, and the failure to set forth the last rent constitutes a defective notice; tenant is not obligated to file a Fair Market Rent Appeal until tenant is served a proper notice of the first rent stabilized rent.
Keywords:
Fair Market Rent Appeal
Court:
Supreme Court, New York County
Judge:
Hon. Weissberg
Date:
November 10, 1999
Citation:
NYLJ, page 27, col 5
Referred Statutes:
RSC 2521.1, 2522.3, 2522.4, 2528.2; Administrative Code of City of New York 26- 513, 26-511
Summary:
The tenant's apartment was formerly rent controlled and was decontrolled in 1986 when the first rent stabilized tenant took occupancy. As the first rent stabilized tenant, the tenant filed a Fair Market Rent Appeal (FMRA) to determine the legality of the first stabilized rent. The DHCR ruled that the first rent charged by the landlord was not a fair market rent, and thereupon reduced her rent by about $900 and ordered the landlord to refund tenant the excess rent which she had paid above the reduced rent (which amounted to about $11,000). The landlord filed a PAR which held for the tenant, and then the landlord filed an Article 78 which is a form of an appeal of the DHCR decision to the Supreme Court.

The first point made by the landlord in support of its argument that the rent charged the tenant was proper was that the DHCR failed to consider the landlord's appraisal report in determining the fair market rent. The report was evidence of prevailing rents for substantially similar housing in the community in which the apartment is located. The Supreme Court judge, however, agreed with the DHCR that the apartments discussed in the appraisal report were much larger than the tenant's apartment and differed too much in their layout so as to provide a proper comparison for the purpose of setting the tenant's first stabilized rent. Further, DHCR granted the landlord the 1/40th MCI rent increases, but not for those which could not be directly linked to the tenant's apartment.

The landlord also argued that it had created a new dwelling space and can charge a higher first rent as a "new rent." The evidence, however, indicated that the alleged new dwelling space, referred to by landlord as a "sun room," was really no more than a glass enclosure around a terrace which had already been available to the previous tenants of the apartment. The Supreme Court ruled that simply because the DHCR found the tenant's affidavit more credible on this issue than the superintendent's did not make the decision arbitrary or capricious (which is the standard for overturning a DHCR decision). The Court also ruled that DHCR's refusal to hold a hearing on the FMRA issue is not a denial of due process because the landlord had an opportunity to be heard via documentary submissions. The Court also held that the agency was correct to rule that landlords registering a newly decontrolled unit must report the last maximum base rent charged for the apartment when it was subject to rent control. Failure to do this constitutes a defective registration and the tenant's right to file a FMRA remains open until such time as a proper registration is filed.


Case Caption:
ACP 150 West End Ave. Associates v. Rosendahl
Issues/Legal Principles:
A trial is needed to determine whether 90-year old tenant who does not own a car may continue to hold lease to a parking lot space.
Keywords:
parking lot; ancillary service
Court:
Civil Housing Court, New York County
Judge:
Hon. Debra James
Date:
November 10, 1999
Citation:
NYLJ, page 28, col 4
Referred Statutes:
CPLR 33211(c); RSC 2520.6(r)(4)(xi); RPAPL 743
Summary:
The tenant is 90 years old. The landlord commenced a holdover proceeding in the Commercial Part of Housing Court to seek a judgment of possession of the tenant's parking space. The case was sent to the Housing Court for determination. The tenant is a rent stabilized tenant whose lease includes a rider that confers her a parking spot but solely for her usage. The landlord sent tenant a notice of non-renewal of lease for her parking lot space on grounds that the tenant does not own or use a car and the space is used by persons not entitled to occupancy of the space. Noting that the space is subject to the rent stabilization laws, the landlord made an argument analogous to the non-primary residency laws. The landlord's alternative argument was that since there is no common ownership between the operator of the car and the tenant of the parking space, the landlord is no longer required to lease the space to tenant as an "ancillary service."

The tenant argued that the parking space is an ancillary service under the Rent Stabilization Code and that she is entitled to a renewal lease of the space. She further argued that even if she is not using the space herself, she is entitled to it because it is an ancillary service, and primary residency laws are irrelevant. The managing agent's affidavit indicates that the landlord, the proprietary lessee of the co-operative apartment, might be a mere licensee with respect to the parking lot. This is because excerpts from the co-op plan appear to make usage of the parking lot subject to renewal rights of tenants (akin to lease renewal rights for regulated apartments). The court denied landlord's application for a judgment because there were questions of fact regarding a common ownership between the tenant's apartment and the parking space. (The court did not address the parties' dispute as to whether the parking lot constitutes an ancillary service).


Case Caption:
Mazda Realty Associates v. Green
Issues/Legal Principles:
Loft unit does not become subject to rent stabilization until the Loft Board issues a final rent order.
Keywords:
Lofts; nonprimary residency; rent stabilization; discovery
Court:
Civil Housing Court, New York County
Judge:
Hon. Schlomo Hagler
Date:
November 10, 1999
Citation:
NYLJ, page 28, col 1
Referred Statutes:
CPLR 408, 3211(a); MDL 286(2)(i); 29 RCNY 2-08(j), 2-01; RPAPL 745
Summary:
Landlord brought a holdover proceeding against tenant on grounds of nonprimary residency. The tenant is a Loft tenant since 1976. Landlord served tenant a thirty-day notice of termination as if tenant were a mere month to month tenant. All apartments declared to be lofts are supposed to be brought up to the Building Code standards and move into the rent regulatory system so that eventually each loft tenant becomes a rent stabilized tenant.

In 1996 the landlord obtained a certificate of occupancy from the Department of Buildings. Once a certificate of occupancy is obtained, the Loft Board rules allow the landlord to start seeking an increased rent from the tenant and those rent increases are to correspond to the percentage rent increases applicable to one-year or two-year leases akin to rent stabilization increases. The law provides that the increase will be binding for the entire prior "prior to registration of the building with the DHCR." The landlord wrote tenant a letter asking whether tenant wanted a one-year or two-year increase and tenant opted for a two-year increase. In July, 1998, the landlord submitted an application to the Loft Board for a final determination of the rent status of the tenants of the building, although for reasons unknown that application was withdrawn by June, 1999.

The issue before the Court was: at what point does a Loft become a rent stabilized unit? The tenant argued that rent stabilization status kicks in at the time the landlord obtains a certificate of occupancy. If the tenant's argument is correct, the petition would have to be dismissed because the landlord did not send a notice that the lease would not be renewed on non- primary residency grounds (commonly known as a Golub Notice). The landlord argued that rent stabilization rights do not vest until after the Loft Board issues a final rent adjustment order setting the initial legal rent for a Loft tenant. Since the Loft Board has not done this as yet in this case, the landlord would not be obliged to serve the tenant a Golub Notice and could proceed on its nonprimary residency claim.

The court analyzed the Loft Law and its recent amendments. It used to be that an initial regulated rent could not be set by the Loft Board until the owner set the process in motion. Previously there was no impetus for the owner to do so because there was no deadline. The new law, effective May 7, 1999, imposes a deadline. Within 9 months after obtaining a certificate of occupancy, the owner must file for "code compliance rent adjustments" or by February 1, 2000 whichever is later. If the owner does not file in a timely manner, the law deems the owner to have waived the right to seek rent adjustments. The law also now allows the Loft Board to set the initial regulated rent even if the owner has not applied to do so. The court surmised that the landlord's mandatory obligation to offer a rent stabilized lease "presumably will occur only after the Loft Board sets the rent."

The court also disagreed with the tenant who claimed that the document given to her by the landlord which sought a rent increase was a rent stabilized lease. The court held that it was not a rent stabilized lease, but rather "an election to pay interim RGB [rent guidelines board] increases pending the completion of the Loft Board's procedure to set the initial legal regulated rent and to transfer its jurisdiction over the IMD [interim multiple dwelling, i.e., a loft] to the DHCR." The court held that the tenant's interpretation of the document, as well as the Loft laws, do not conform with the legislative intent of the law to expedite the transition of the lofts into the rent stabilization scheme. The court concluded that since no final rent order had been issued by the Loft Board and the landlord's time to do so had not expired, the Loft is not covered by rent stabilization at this time, and thus the landlord was not required to serve a Golub Notice on tenant to commence a nonprimary residency proceeding. The court further granted the landlord's application for discovery upon the tenant. The court rejected tenant's request for discovery on the landlord because no ample need was shown and the information necessary to litigate a nonprimary residency case is "peculiarly within the tenant's knowledge."

Notes:
It would seem that the reason the landlord withdrew its application to the Loft Board for a final determination of the rents is because the landlord would then, upon said determination, be required to give the tenant a rent stabilized lease. The landlord would have to wait until that lease is expired in two years before the landlord could then commence a nonprimary residency proceeding against the tenant. Whereas now, in the absence of a final rent determination, the landlord need only serve a thirty day notice to start the eviction proceeding based on nonprimary residence.


Case Caption:
Blalock v. Amityville Senior Development Corporation
Issues/Legal Principles:
Court concluded that landlord discriminated against mentally ill tenant by refusing to tender a renewal lease after two incidents of vandalism.
Keywords:
discrimination; handicaps; fair housing
Court:
U.S. District Court for the Eastern District of New York
Judge:
Hon. Hurley
Date:
November 12, 1999
Citation:
NYLJ, page 36, col 3
Referred Statutes:
42 USC 3601 et seq.
Summary:
Plaintiffs-Tenants (a father and son) brought a motion before the court asking that the defendant-landlord be stayed from evicting the son in state court. The facts were not in dispute by the parties. The tenants lived as co-tenants in the apartment for the past three years during which time the landlord received two complaints which accused the son of vandalism in the recreation room and turning off the electrical power to several other apartments. The father testified that when his wife suffered a stroke their son neglected to take the medication prescribed for his schizophrenic illness which caused him to become agitated and disoriented. The son was hospitalized and released with a doctor and caseworker assigned to him to visit him at home on a regular basis and monitor his condition. The father also testified that his son had never been violent and that they were unable to afford alternative housing given their survival on disability payments totaling only about $1,500 per month. The landlord accused them of not making sufficient efforts to find alternative housing, but the court believed the father that they had been diligently looking.

A witness from the treatment program testified that the son's condition has been stable since his discharge and that the father has been a valuable resource in his son's treatments. She declined to attribute the vandalism to his mental illness, but did note that he was significantly impaired both socially and in his ability to function in the workplace. The son's testimony largely paralleled his father's. The superintendent of the building, who is also a minister of religion, testified about the complaints against the son, but confirmed that since his release from the hospital the son has not engaged in any further violent acts. A tenant testified to witnessing one act of violence (discharging a fire extinguisher in the recreation room) and felt afraid of the son. Another witness with experience in rentals testified it would be unlikely for the plaintiff to be able to obtain an affordable comparable apartment if evicted.

Based on all the evidence, the court concluded that the plaintiffs established their burden for a preliminary injunction to stay the landlord from evicting the son during the pendency of this federal action. The court determined that the son is a "covered person" under the Fair Housing Amendment Act which prohibits discrimination based on, among other things, tenants with handicaps. The son's "handicap" is his mental impairment of paranoid schizophrenic which substantially limits his ability to work and socialize, both of which constitute "major life activities." The father is also a protected person under the statute based on his association with his son. The "reasonable accommodation" required to be made by defendant dictates that the father and son, co-tenants of the now expired lease, not be separated given the father' pivotal role in his son's treatment. (It was not disputed that the statute applies to a renewal lease and not just an initial lease). For the plaintiffs to prevail, they must establish that the vandalism is traceable to the son's handicap.

The court reviewed the evidence, including that the vandalism incidents occurred before hospitalization and no similar complaints have been made since. The court held that it is reasonable to conclude that the two incidents underlying defendant's refusal to renew plaintiffs' lease were attributable to the son's handicap. The court also held that the landlord failed to offer a "reasonable accommodation to Plaintiffs or to demonstrate that no reasonable accommodation may be fashioned under the circumstances." The landlord argued that it was not in violation of the statute because it would not have renewed the lease of a non-handicapped person under the same circumstances. The court, however, noted that certain protections are provided to handicapped persons that are not applicable to non-handicapped persons, and reminded the landlord that it had still offered no reasonable accommodation. The court also rejected landlord's argument that to keep the plaintiffs as tenants would be injurious to the property. The court observed that no tenants have vacated the apartment complex because of the son's past behavior. Further, the evidence suggests that the conduct is unlikely to recur given the procedures in place to monitor the son's medication and behavior. Irreparable harm would befall the plaintiffs if they were evicted because they would assuredly succumb to homelessness.


New York Law Journal,
decisions for the week of November 1-5, 1999 (4 cases)


Case Caption:
166 E. 82 Street, L.L.C. v. Hara
Issues/Legal Principles:
Tenant failed to prove landlord's actual or constructive notice of her harboring a dog sufficient to trigger the Pet Law's three month waiver rule, where she was unable to show that a part-time, off-site superintendent ever actually saw her pet at any time prior to the three months preceding the landlord's Notice to Cure.
Keywords:
Pet Law; pet; waiver
Court:
Housing Court, New York County
Judge:
Hon. Howard Malatzky
Date:
November 3, 1999
Citation:
NYLJ, page 28, col 5
Referred Statutes:
Administrative Code of the City of New York 27-2009.1(b)
Summary:
Tenant breached a substantial obligation of her tenancy by harboring a dog in her apartment without the landlord's consent. The tenant claimed that the landlord waived her breach of the no pet provision pursuant to the Administrative Code of the City of New York 27- 2009.1(b) ("Pet Law"), which provides that where a tenant of a multiple dwelling openly and notoriously harbors a pet for a period of three months or more and the owner or his agent has knowledge of this fact and fails to commence a summary proceeding to enforce the no pet lease provision, that such lease provision shall be deemed waived by the landlord. However, the tenant failed to produce sufficient proof at trial that the part-time, off-site superintendent (who lived across the street) ever saw the dog at any time prior to the three months preceding the summary proceeding. There were no on-site employees regularly attending the five story "walk up" building. The trial court distinguished between "on site" employees (where constructive notice would be more likely due to regular contacts with the building), and "off cite" employees (who would have lesser, sporadic contacts with the building), and found that the tenant failed to show that the off-site superintendent knew about her dog, and when he knew of it. Moreover, the managing agent, who took over management some three months before the proceedings began, testified that the first predicate notice was served within two months of the agent's actual notice of the dog. The trial court found that the tenant failed to sustain her burden of proof on her affirmative defense of waiver, but granted her thirty days to find a home for her pet or to vacate the premises.


Case Caption:
Greene Avenue Associates v. Reape
Issues/Legal Principles:
Absence of tenant's son's name on tenant's mandatory recertification for tenancy in a apartment receiving a "project-based" Section 8 federal subsidy is not dispositive as to the issue of son's succession rights to occupy the unit. The court distinguished between succession rights to a Section 8 "tenant-based" subsidy, and succession rights to occupy a unit receiving a "project-based" Section 8 subsidy.
Keywords:
succession rights; Section 8; recertification
Court:
Housing Court, Kings County
Judge:
Hon. Bally-Shiffman
Date:
November 3, 1999
Citation:
NYLJ, page 33, col 4
Referred Statutes:
RSC 2523.5(b)(4); RSC 2523.5(b)(1); 24 CFR 982
Summary:
Landlord brought squatter holdover proceeding against respondent, alleging that respondent came into occupancy of apartment after the death of his mother. Respondent claimed succession rights to the unit, which was receiving a "project-based" Section 8 subsidy, applicable to the building which housed elderly and disabled residents. The landlord claimed that under Evans v. Franco, 93 N.Y.2d 823 (1999) the failure of the tenant to list her son in a 1997 mandatory recertification was dispositive as to the respondent's tenancy rights. While the court found that the respondent failed to show that he lived with his mother for one year prior to her death [as respondent was disabled, a one year residency, rather than two years is required for succession rights pursuant to RSC 2523.5(b)(1), 9 NYCRR 2523.5(b)(1)], the court disagreed that Evans v. Franco controlled, pointing out that the subsidy at issue in Evans was a "tenant- based" Section 8 subsidy, governed by 24 CFR 982 rather that a "project-based" Section 8 federal subsidy in this case. Thus, the issue was not continuation of a subsidy under federal law, but rather, the respondent's succession rights to occupy the apartment under state law. The court noted that the issue of respondent's entitlement to receive a subsidy was not properly before the court.


Case Caption:
Horowitz v. NYS Division of Housing and Community Renewal
Issues/Legal Principles:
DHCR must serve rent stabilization tenants with a copy of the landlord's entire application for a rental increase based upon major capital improvements rather than a simple form which summarizes the capital improvement rent increase application.
Keywords:
MCI; rent increase; DHCR
Court:
Supreme Court, Queens County
Judge:
Hon. Luther V. Dye
Date:
November 3, 1999
Citation:
NYLJ, page 34, col 1
Referred Statutes:
9 NYCRR 2527.3(a)
Summary:
Tenants brought Article 78 Petition to reverse the decision of the DHCR, which denied their Petition for Administrative Review ("PAR") seeking to annul the decision of the Rent Administrator granting the landlord's application for a MCI rental increase. DHCR denied the PAR on the basis that the tenants failed to oppose the application while it was pending before the Rent Administrator, and thus, their challenge could not be made for the first time on appeal. The court disagreed, finding that the notices sent by the DHCR, which complied with the agency's mailing practices, were clearly insufficient, as they failed to comply with 9 NYCRR 2527.3(a), which requires the DHCR to serve all adversely affected parties with a copy of the application. The DHCR's notice, which merely summarized the owner's MCI application and informed the tenant that the MCI application and supporting documentation could be examined at the DHCR's offices or at the owner's rental office, violated 9 NYCRR 2527.3(a) and could not be relied upon by the DHCR in order to deny the tenants' PAR. While the court granted the petitioners' application to vacate and remand the decision, the Supreme Court declined to issue an injunction prohibiting the DHCR from using the form notice throughout the state and enjoining any proceedings in which the MCI notification form was used by the DHCR.


Case Caption:
Buhagiar v. Henrichs
Issues/Legal Principles:
Apartment unit in building which was part of a horizontal multiple dwelling in 1974, when the Emergency Tenant Protection Act ("ETPA") was adopted, was still subject to Rent Stabilization, notwithstanding fact that Tenant entered into occupancy in 1993, after the buildings were divided in 1981.
Keywords:
horizontal multiple dwelling; rent stabilization; conversion
Court:
Supreme Court, New York County
Judge:
Justice Lehner
Date:
November 3, 1999
Citation:
NYLJ, page 27, col 2
Referred Statutes:
ETPA 8625a(4)(a); RSL 11(d); NYCRR 2520.11, RSL 26-505
Summary:
Landlord brought an Article 78 proceeding seeking to annul the determination of the DHCR that the subject building, which was formerly part of a horizontal multiple dwelling, was still subject to rent stabilization after its change in circumstances and separation in ownership and service from all other buildings in or about 1981. The DHCR, in adopting RSL 11(d) (NYCRR 2520.11), set June 30, 1974 (the effective date of the ETPA) as the base date for determination of the building's regulation status. Thus, since the building was part of a horizontal multiple dwelling on June 30, 1974, the DHCR found that the building was subject to rent stabilization, notwithstanding the fact that the building was separated and no longer part of a horizontal multiple dwelling and contained only five units since 1981. The current tenant, who took possession in 1993, was still rent stabilized by virtue of the application of the June 30, 1974 base date. The court upheld the DHCR's determination and application of the base date, finding that separating common ownership and services was no more reason for exempting the building from rent regulation under the ETPA then a reduction in the number of units to less than 6 (noting prior cases which held the reduction in units not to exempt buildings from rent regulation).