Housing Court Decisions August 2000
Editors: Colleen F. McGuire, Esq., Chief Editor
Robert E. Sokolski, Esq., Catherine Grad, Esq. and David Weinraub, Esq.

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New York Law Journal,
decisions for the week of August 28- September 1, 2000 (6 cases)


Case Caption:
601 West Realty LLC v. Grigoroff
Issues/Legal Principles:
Landlord waived right to evict tenants who had washing machine for sixteen years despite "no waiver of lease provision."
Keywords:
nonwaiver clause; violation of lease
Court:
Civil Housing Court, New York County
Judge:
Hon. Lawrence Schachner
Date:
August 30, 2000
Citation:
NYLJ, page 23, col 4
Referred Statutes:
CPLR 3212(b)
Summary:
In a residential holdover proceeding the landlord alleged that the tenants were in violation of their lease due to the installation of a washing machine without prior written consent of the landlord. Landlord filed a motion seeking summary judgment, a final judgment of possession and to strike tenants' affirmative defenses and counterclaims. The Court granted summary judgment in favor of the tenants based on the documentation before the Court which established that the tenants had used the washing machine in the subject apartment for sixteen years with the knowledge of the landlord and its predecessor-in-interest. During this sixteen year period four different supers had made repairs to the apartment, including repairs to the kitchen where the washing machine was located. The Court held that the landlord had waived its right to evict the tenants on this basis despite the existence of a "non-waiver clause" in the tenants' lease citing Fanchild Investors, Inc. v. Cohen, 43 misc. 2d 36 (Civil Ct. Bronx 1964), Baker Ave. v. Rivera NYLJ, Oct. 27, 1993 p.27, col 3 and 818-862 Beck St. Assoc. v. Bettre, NYLJ 10/28/93, p.34 col. 1 (App. Term, First Dept.). The Court agreed with prior precedent that the landlord waived its right to evict the tenants by failing to take action and collecting rent despite its knowledge of the washing machine.


Case Caption:
Sulkow v. Stern and "Doe"
Issues/Legal Principles:
Absent good cause, default judgment and warrant of eviction should not be overturned.
Keywords:
vacate default judgment
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Timmie E. Elsner
Date:
August 29, 2000
Citation:
NYLJ, page 22, col 1
Referred Statutes:
none
Summary:
The trial judge vacated a default judgment and warrant of eviction in non-payment proceeding. The Appellate Term reversed stating that the nonappearance of the tenant or her attorney was not excusable, there had been a history of delay on tenant's part and no meritorious defense had been asserted. Absent good cause the judgment and warrant should not be overturned.


Case Caption:
Cadim Stonehenge 56th Street Association, L.P. v. Blue and "Doe"
Issues/Legal Principles:
Landlord's deposit of tenant's rent check after service of a notice of termination vitiated landlord's predicate notice.
Keywords:
vitiate predicate notice; notice of termination
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Carol H. Arber
Date:
August 29, 2000
Citation:
NYLJ, page 22, col 2
Referred Statutes:
none cited
Summary:
Appellate Term affirmed lower court decision that a landlord's deposit of tenant's rent check, after the service of the notice of termination, for a period beyond the termination date and prior to the commencement of the proceeding vitiates the predicate notice, requiring dismissal of the petition.


Case Caption:
Henriques v. Boitano
Issues/Legal Principles:
Nonparty subpoenas issued in licensee holdover proceeding in violation of procedural rules warrants suppression of the documents.
Keywords:
nonparty subpoenas; suppression of documents
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Debra Rose Samuels
Date:
August 29, 2000
Citation:
NYLJ, page 22, col 2
Referred Statutes:
CPLR 3107,3120[b], 3103[c]; 22 NYCRR 130-1.1[a]
Summary:
Petitioner's counsel in licensee holdover proceeding issued numerous nonparty subpoenas while the underlying proceeding was off calendar. The subpoenas were in violation of procedural rules in that petitioner's attorney served them without notice to respondents. Additionally, petitioner's attorney's cover letter accompanying subpoenas were "calculated to yield a turnover of documents directly to petitioner's counsel" and sought some information that was either privileged and/or not relevant to petitioner's case. The Appellate Term affirmed the lower court decision that all documents obtained as a result of these subpoenas be suppressed and sanctions imposed against petitioner's counsel for frivolous conduct.


Case Caption:
Jonas Equities, Inc. v. McLawrence
Issues/Legal Principles:
Stipulation set aside for "good cause" where tenant unknowingly waived her Martin Act rights; as a Martin Act tenant in a co-op unit, tenant could not be evicted except for "good cause."
Keywords:
Martin Act; co-op apartments; stipulations
Court:
Civil Court, Kings County
Judge:
Hon. Rodriguez
Date:
August 31, 2000
Citation:
NYLJ, page 28, col 3
Referred Statutes:
General Business Law 352-eeee
Summary:
Landlord brought a holdover proceeding against the tenant on grounds that a tenant was a mere month to month tenant. In April, 1999, the tenant agreed to vacate the apartment in October. Yet, the tenant did not leave in October. Several months later after retaining counsel the tenant sought to set aside the stipulation on ground that as a lessee of a co-op apartment rented to her by the holdover of unsold shares, she was protected from eviction under the Martin Act. The tenant stated that she was not aware of this defense when she signed the stipulation and additionally she was under great stress due to the death of her 17 year old daughter during a complicated pregnancy. During the same week she agreed to leave by October, she was also in court with the father of her granddaughter in a custody dispute, and subsequently lost custody.

The landlord opposes the motion on grounds that the Martin Act is not applicable and also that when the stipulation was signed tenant was asked if she wanted to retain counsel and the tenant said no. The landlord also states that the tenant is in arrears because tenant's Jiggetts rent payments were not paid by the City. The building was converted to co-operative ownership on March 31, 1998. The landlord is also the sponsor and holder of unsold shares. The tenant moved in in 1991. Since 1995 her lease has not been renewed.

Following the Appellate Term, Second Department's ruling in Paikoff v. Harris (see Housing Court Archives for the week of October 19, 1999), the court considered the tenant a "non-purchasing tenant" pursuant to the Martin Act. The landlord, however, argued that the settlement stipulation was entered into before the Appellate Term had decided Paikoff. Therefore, the court had to determine whether the stipulation should be set aside. The court ruled that stipulations are not lightly set aside unless they are unduly harsh or unjust and the parties may be restored to their former status. The court ruled that "good cause" is demonstrated where it appears that a party has "inadvertently, inadvisably or improvidently entered into an agreement which will take the case out of the due and ordinary course of proceeding in the action, and work to his prejudice." Here, the court noted that the tenant did not have an attorney, was unaware that her tenancy was protected pursuant to the Martin Act and that the landlord was required to allege and establish good cause in order to terminate her tenancy under the Martin Act's provisions. The court held the tenant signed the stipulation unknowingly waiving a significant and meritorious defense which would have defeated the petition. The court concluded that the tenant demonstrated good cause to justify vacating the stipulation. Since the tenant was protected by the Martin Act and since the landlord failed to show a good cause reason to evict her, the petition was dismissed.


Case Caption:
Beach Haven Apartments #1, Inc. v. Cheseborough
Issues/Legal Principles:
Landlord who does not commence litigation within 90 days after knowledge of a tenant's harboring of a pet in violation of the no-pet clause of the lease, waives its right to evict the tenant.
Keywords:
pet law; notice to cure
Court:
Civil Housing Court, Kings County
Judge:
Hon. Kenneth Bedford
Date:
August 30, 2000
Citation:
NYLJ, page 25, col 1
Referred Statutes:
Administrative Code of the City of New York 27-2009; CPLR 3212
Summary:
The landlord brought a holdover proceeding against the tenants on grounds that the tenants were harboring a dog since July 1999. The tenant, however, stated that the dog has been in the premises since June 1, 1999. The tenants claim that on the day the dog moved in, the doorman came over to them and pet the dog. Additionally, the tenants claim that numerous other agents saw the dog because the dog was frequently walked and taken outside. The landlord, however, claims it learned of the dog in late July and on July 23, 1999 sent a letter to tenants advising them that the dog's presence was a violation of their lease. A notice to cure was sent on August 25, 1999. A termination notice was sent on September 16, 1999. The holdover proceeding commenced on October 28, 1999.

The tenant moved to dismissed the petition on grounds that the landlord waived its right to evict for the alleged violation of the "no-pet" clause of the lease based on Administrative Code of the City of New York 27-2009. This law provides that if a tenant openly and notoriously for three or more months harbors a dog and the owner or its agents have knowledge of this fact, and the owner fails to commence litigation within that three month period, the owner then waives the right to evict based on the no-pet clause of the lease. The court found that the landlord had knowledge of the pet on June 1, 1999. The three month period expired on August 30, 1999. Since the action was not commenced until October 28, 1999, the court ruled that the landlord waived its right to evict the tenants on grounds of harboring a dog in violation of the lease. The landlord tried to argue that in the interim the parties were negotiating and therefore the three month period was tolled, but the court readily rejected this position.


New York Law Journal,
decisions for the week of August 21-25, 2000 (5 cases)


Case Caption:
Kim v. Midtown Moving & Storage Inc.
Issues/Legal Principles:
Cooperative corporation waives its objection to improper service in tenant's action for property loss by asserting unrelated counterclaim for alleged unpaid maintenance and other charges
Keywords:
improper service; personal jurisdiction; unrelated counterclaim
Court:
Civil Housing Court, New York County
Judge:
Hon. Milton Tingling
Date:
August 23, 2000
Citation:
NYLJ, page 22, col 5
Referred Statutes:
CPLR 311; CPLR 3211; CPLR 3212; BCL 306; BCL 307
Summary:
Tenant brought an action against the cooperative corporation and managing agent for personal property which was lost or damaged during the eviction of the tenant by the U.S. Marshall Service from his cooperative unit. However, the tenant failed to effectuate proper service upon the two corporate defendants pursuant to CPLR 311. Both defendants moved to dismiss.

The Court granted the managing agent's motion to dismiss for lack of personal jurisdiction. However, the cooperative, which asserted a counterclaim for alleged past due maintenance, management fees legal fees and/or other charges, waived the objection to service (lack of personal jurisdiction) by bringing a counterclaim which was found to be unrelated to the tenant's claims for property loss. The Court denied the cooperative corporation's motion.

Notes:

Tenants should always be cautious not to assert counterclaims which are unrelated to the landlord's claims in a summary proceeding, if they intend to raise improper service (lack of personal jurisdiction) as a defense.


Case Caption:
Tieger v. Alvarez
Issues/Legal Principles:
Tenant is not entitled to legal fees upon dismissal of nonpayment proceeding after traverse hearing, as further litigation was likely and no ultimate outcome was reached on the claims of landlord and tenant.
Keywords:
attorney's fees; legal fees; ultimate outcome
Court:
Civil Housing Court, Bronx County
Judge:
Hon. Halprin
Date:
August 23, 2000
Citation:
NYLJ, page 24, col 2
Referred Statutes:
RPL 234
Summary:

Landlord brought a nonpayment summary proceeding against the tenant, and the tenant asserted substantial warranty of habitability and repair defenses. The tenant obtained dismissal after the Court sustained the tenant's traverse claim. The tenant moved for legal fees.

The Court denied the tenant's motion for attorney's fees without prejudice to renew in a subsequent proceeding, inasmuch as the controversy had not reached its "ultimate outcome." Although the Housing Court agreed that in some cases a tenant may be awarded attorney's fees for a matter which is dismissed on procedural grounds (i.e. not on the merits): For example, where the landlord either fails to re-file the action within a reasonable time frame or takes an action which re-affirms the landlord-tenant relationship. The nonpayment case before the court indicated that the landlord intended to re-file the action.


Case Caption:
Crosby v. Hucko
Issues/Legal Principles:
Martin Act law is no longer applicable to tenants in buildings which lose their co- operative status due to foreclosure.
Keywords:
owner occupancy; foreclosure; Martin Act
Court:
Civil Housing Court, New York County
Judge:
Hon. Peter Wendt
Date:
August 23, 2000
Citation:
NYLJ, page 23, col 2
Referred Statutes:
General Business Law 352-eeee; RSC 2524.4(a); CPLR 3211(f)
Summary:
Landlords brought an owner occupancy proceeding against the tenant and claimed that the tenant is a Rent Stabilized tenant. The tenant■s building converted to cooperative ownership, but at the time of the conversion she chose not to purchase the shares to her apartment. The tenant apparently moved into the apartment in or about October 1, 1974, according to the owner■s Exhibit A, a statement from the utility company of the date her utilities service account commenced. After the conversion the building was foreclosed upon and a new deed issued to the mortgagee who then assigned ownership to a third party at a judicial party. It appears that the individuals who brought this holdover proceeding are the current owners of the building. Tenant argues that she is not Rent Stabilized, but rather rent controlled because one time the former owner of the premises sent her a Notice of Maximum Collectable Rent dated December 20, 1976 which is a notice served under the rent controlled laws, not Rent Stabilization. The owners argued, correctly, that a mere notice does not make one a rent controlled tenant, but rather the facts dictate the result. The owners claim that the tenant was and still is Rent Stabilized even though the building is no longer a co-op due to the foreclosure. As a Rent Stabilized tenant, the owners are not precluded from commencing an owner occupancy claim against the tenant, so long as their claim is in good faith and the requisite Golub Notice was properly served.

Since the court did not accept the tenant■s argument that she is rent controlled, the tenant then argued that the Martin Act laws applicable to co-operatives and condominiums, apply here even though the building is no longer a co-op. The Martin Act has a clause that provides that an owner of a unit or the shares of a unit cannot evict a non-purchasing tenant on owner occupancy grounds. However, the court held that once the building lost its co-op status, the Martin Act also lost its purpose, and therefore the Martin Act law precluding owners from commencing owner occupancy proceedings against non-purchasing rent regulated tenants no longer applied. The court ruled that the tenant■s right to be protected under the Martin Act did not survive the foreclosure.

Tenant also argued that the back of the petition contained a wrong apartment number, #86 instead of #8. But the court said that a mere back does not constitute part of the pleadings, and that the pleadings themselves contain the correct information. The tenant also argues that the petition should be dismissed because the caption of the notice of petition states her street address as 129 West 8th Street, when in fact she resides at 129 West 86th Street. The owners■ process server submitted an affidavit of service testifying that he served the papers at 129 West 86th Street. The court held that the tenant did not formally challenged improper service in the motion and therefore the court could not entertain that issue.

Notes:
The owners■ uncontested evidence indicates that the tenant moved into her apartment on or about October 1, 1974. Had this tenant moved into the premises before July 1, 1974 and after 1971, she would quite possibly have been a special type of Rent Stabilized tenant, one covered by the Emergency Tenant Protection Act of 1974. The ETPA does not permit owner occupancy proceedings against ETPA Rent Stabilized tenants. See Rosenfeld v. Hall Housing Court Decisions Archives for the week of September 4-8, 2000


Case Caption:
Parkchester Preservation Co. L.P. v. Hanks
Issues/Legal Principles:
Bronx judge rules that non-regulated tenants in condo units are not entitled to non- eviction protection of the Martin Act.
Keywords:
Martin Act; sponsors; non-purchasing tenants; retaliatory eviction
Court:
Civil Housing Court, Bronx County
Judge:
Hon. Anthony Fiorella
Date:
August 21, 2000
Citation:
NYLJ, page 23, col 5
Referred Statutes:
General Business Law 352-eeee
Summary:
The owner brought six separate holdover proceedings against six separate tenants. The tenants argued that they cannot be evicted because their tenancies in condominium units are subject to the Martin Act. The court accepted owner■s assertion that it was not the sponsor of the condo conversion. The owner owns 6,000 condo units. The court also found that the tenants had no violations of record, thereby rejecting their retaliatory eviction claims. The tenants argue that they are ■non-purchasing tenants■ as defined by the Martin Act, and therefore protected from eviction and unconscionable rent increases.

The definition of nonpurchasing tenant is one ■who has not purchased under the plan and who is a tenant entitled to possession at the time the plan is declared effective or a person to whom a dwelling unit is rented subsequent to the date■ The Martin Act also provides that ■no eviction proceeding will be commenced at any time against non-purchasing tenants for failure to purchase or upon any other reason applicable to expiration of tenancy.■ The court, however, rejected the applicability of the Martin Act to their tenancies. The court noted that each of the tenants■ leases contains a clause stating that they are not rent regulated and that their leases have no restriction on the amount of rent or any renewal rights. The leading case on this issue Peikoff v. Harris, 178 Misc.2d 366, which was affirmed by the Appellate Term, Second Department (NYLJ, October 19, 1999, 28:4), held that the tenants there did qualify as non-purchasing tenants and could not be evicted. In the case here, this judge distinguishes the facts from Paikoff on grounds that the Paikoff owner was a sponsor of the plan, unlike this case. (But actually the Martin Act is applicable to ■holders of unsold shares■ whether they are the sponsors or not). In any event, in 1998, the sponsor sold all the units which the court held allegedly precludes the tenants from ■non-purchasing tenant■ status.

Notes:
There is a split of opinion about the applicability of the Martin Act to tenants who took occupancy in co-op or condo units after the conversion became effective (i.e., non-rent regulated tenants). The Appellate Term, Second Department in Brooklyn upheld the Act■s protection of such tenants in its interpretation of the Act■s language regarding ■non-purchasing tenant.■ See Peikoff v. Harris . The Appellate Term, First Department in Manhattan, Bronx and Queens has not weighed in as yet. The lower court in Park West Village Associates v. Nishioka NYLJ, May 26, 1999, 27:3 (Civ. Ct. NY Co), declined to follow Peikoff, but it is on appeal to the Appellate Term, First Department. Everyone is waiting to see if the Appellate Term will reverse and share the opinion of Brooklyn■s Appellate Term, or whether the First Department will reject the Peikoff holding. In either event, it is most likely that eventually the issue is going up to the Appellate Division and most likely the Court of Appeals. Meanwhile, while it■s winding its way up the court system, tenants in co-ops or condos would be advised to assert Martin Act protection in the event the courts do interpret the statute as protecting their tenancies from eviction. (Keep in mind that owners can still charges such tenants market rents, so long as the rent is not unconscionable).


Case Caption:
Thelma Realty Co. v. Harvey
Issues/Legal Principles:
Four year statute of limitations for overcharges is not applicable to 1987 DHCR rent reduction order since landlord is under a continuing obligation to charge the lower rent until a rent restoration order is issued.
Keywords:
overcharges; rent reduction order; statute of limitations
Court:
Civil Housing Court, Kings County
Judge:
Hon. Michael Pinckney
Date:
August 23, 2000
Citation:
NYLJ, page 26, col 3
Referred Statutes:
CPLR 213-a; RSL 26-516 & 517(e)
Summary:

On November 30, 1987 DHCR reduced the rent due to rent impairing violations and no rent restoration order has since been issued. The rent, however, was never reduced despite the DHCR order. The tenant claims that he did not fully understand the meaning of the order and therefore did not pay the lower rent (i.e., the rent of the ■most recent rent adjustment■ which is usually the last lease amount) until after the nonpayment proceeding began. The owner claims it was unaware of the order because it did not acquire the building until 1988. The issue before the court was whether the four year statute of limitations on overcharges is relevant, since over four years elapsed since the tenant asserted his claim that he paid more rent than he was legally obligated to and now seeks a refund.

The court, however, distinguished this type of case from an overcharge claim, which is what the laws pertaining to a four year statute of limitations addresses. The court ruled that the tenant is not basing its overcharge complaint on some irregularity contained in a periodic increase or registration statement that would require the examination of the rental history year by year for a period over four years. The DHCR Order reducing the rent in 1987 has not been rescinded nor a rent restoration ordered. The rental history for the past four years reveals a rent being billed and collected at a level above the DHCR order. The owner has an ongoing duty to apply the order. The court referred to an Appellate Term case which held that ■at all times■ the landlord was under a duty to reduce the rent in accordance with the DHCR rent reduction order ■so that tenant■s claim is not based solely on an overcharge which occurred more than four years before the overcharge claim was interposed.■ Hollis Realty v. Glover 686 N.Y.S.2d 265 (App Term, 2nd & 11th Judicial District 1999). The tenant, however, can only collect the excess rent paid for the last four years and cannot go back to 1987.


New York Law Journal,
decisions for the week of August 14-18, 2000 (9 cases)


Case Caption:
Rosenfeld v. Hall
Issues/Legal Principles:
In addition to the Rent Stabilization Code, Emergency Tenant Protection Act applies in owner occupancy proceeding: tenant who has resided in the apartment for more than twenty years cannot be evicted on landlord's personal use grounds.
Keywords:
owner occupancy; longterm tenants; twenty-year rule
Court:
Civil Housing Court, New York County
Judge:
Hon. Peter Wendt
Date:
August 15, 2000
Citation:
NYLJ, page 23, col 3
Referred Statutes:
Emergency Tenant Protection Act (ETPA) 14(a); Emergency Tenant Protection Regulations (ETPR) 2500.4, 2504.4(a); RSC 2524.4(a); McKinney's Consolidated Laws, Statutes 221;
Summary:
Landlord commenced an owner-occupancy proceeding to recover the subject rent stabilized premises for his daughter's primary residence. The tenants (Mr. and Mrs. Hall) argued that since Mr. Hall moved into the apartment in June, 1973, their tenancy was protected not only by the Rent Stabilization Code (RSC), but also by the Emergency Tenant Protection Act (ETPA). When the ETPA was enacted on May 29, 1974, it brought apartments which were vacancy decontrolled between the time period July 1, 1971 through May 29, 1974 into the protections of the rent stabilization laws in effect since 1969. The Emergency Tenant Protection Regulations (ETPR) are the regulation enacted pursuant to the ETPA. Included in the ETPR is a protection against owner-occupancy proceedings for long-term ETPA tenancies of over twenty years. This protection does not exist for rent stabilized tenants not covered by the ETPA. The landlord argued that since the subject apartment is located within the City of New York, the RSC is the applicable law and not the ETPR. In dismissing the landlord's holdover petition, the Court held that the Hall tenancy was in fact subject to both the RSC as well as the ETPA-ETPR. The Court looked to the fact that the landlord did not dispute filing a report of statutory decontrol on or about June 13, 1973 as well as the length of Mr. Hall's twenty-seven year tenancy. Accordingly, the Court held that the Hall tenancy is protected by the prohibition against owner-occupancy proceedings contained in the ETPR. In reaching this holding, the Court determined that since the ETPR did not conflict with the RSC (instead it added certain protections to prevent dislocation of long-term ETPA tenants), there is no reason why both sets of regulations should not apply. The Court concluded that there is nothing in the Rent Stabilization Law or Code as well as the Emergency Tenant Protection Act or Regulations that states that the ETPR does not apply to New York City tenants who are protected by both the ETPA as well as the Rent Stabilization Laws.
Notes:
Disclosure: The tenants in this case were represented by Colleen McGuire's law firm, McGuire & Zekaria. Judge Lau recently ruled that the ETPA precludes owners from maintaining personal use proceedings where the tenant is an ETPA tenant and has resided in the apartment in excess of twenty years. See Brusco v. Armstrong , Housing Court archives for the week of July 12, 2000, which is also a McGuire & Zekaria case. Judge Wendt's decision expanded on Judge Lau's decision. This concept, that the ETPA and the Rent Stabilization Code are applicable to 20 year tenants in an owner occupancy proceeding, is novel. There had previously been no case law on this issue. The landlord in Rosenfeld v. Hall plans to appeal Judge Wendt's decision.


Case Caption:
RRL, LLC v. Narasin
Issues/Legal Principles:
Trial court abused its discretion in refusing to allow tenant to amend its answer to include warranty of habitability defenses.
Keywords:
answer; amendment; warranty of habitability
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Jose Padilla
Date:
August 14, 2000
Citation:
NYLJ, page 28, col. 2
Referred Statutes:
CPLR 3025(b)
Summary:
Landlord sued tenant for rent in a plenary action (i.e., not in Housing Court since the tenant had apparently vacated the premises). Tenant filed a pro se answer and four months later retained counsel. Tenant's attorney then made a motion to amend the answer to include such defenses as breach of the warranty of habitability and constructive eviction. The lower court denied tenant's motion. The Appellate Term held that the amended answer was meritorious and the tenant demonstrated a reasonable excuse for the delay in moving to amend the answer. The Court held: "Since landlord cannot claim surprise or prejudice resulting directly from the delay (CPLR 3025(b)), the motion for leave to amend the answer should have been granted.


Case Caption:
Goldman v. O'Brien
Issues/Legal Principles:
Tenant's abatement award reduced on appeal, but not so much as to negate tenant's status as prevailing party entitled to legal fees.
Keywords:
warranty of habitability; legal fees; prevailing party
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Walter Strauss
Date:
August 14, 2000
Citation:
NYLJ, page 28, col. 3
Referred Statutes:
none cited
Summary:
In consolidated nonpayment proceedings, the tenants were awarded a 75% abatement at trial as a result of noxious fumes emanating from a dry cleaners located directly below the second floor apartments. The Appellate Term agreed with landlord's appeal that the award was excessive and reduced it to 50% for all conditions during the relevant period. The Court rejected landlord's argument that only a nominal abatement should be given. The court determined that the chronic nature of the conditions affected a vital portion of tenants' living space and resulted in the violations issued by city agencies. The Court noted that the reduced abatement does not alter tenants' status as a prevailing party in the litigation, having substantially succeeded on their habitability claims which were the central issue at trial.


Case Caption:
Rocky 116 LLC v. Weston
Issues/Legal Principles:
Prior landlord's agreement not to bring action against tenant on nonprimary residency grounds is not binding on successor landlord.
Keywords:
rent stabilization; waiver; nonprimary residence; stipulation
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Shirley Kornreich
Date:
August 14, 2000
Citation:
NYLJ, page 28, col. 3
Referred Statutes:
none cited
Summary:
In 1985, Stanley Weston was the tenant of a stabilized apartment 15N and his daughter Cindy was the stabilized tenant of apartment 6N. The building underwent a condominium conversion process at that time and the landlord brought a holdover proceeding against the daughter for 6N. The landlord, Cindy and her father all settled the 6N case whereby Cindy surrendered 6N and in return landlord agreed to give Stanley a lease to rent stabilized apartment 3F. The agreement provided that landlord "shall not thereafter object to the occupancy of said apartment 3F on the ground that it is being occupied other than as the primary residence of the tenant." An accompanying letter agreement provided that the landlord would not take action against Stanley regarding 15N and eventually Stanley sold 15N at the insider's price.

Apartment 3F, a rent stabilized apartment in Stanley's name, was purchased by the petitioner-landlord who brought a holdover proceeding against Stanley on grounds of nonprimary residency. Tenant defended on grounds that the 1985 stipulation of settlement precludes the current landlord from raising this issue under the legal theory of collateral estoppel. The lower court granted tenant's motion dismissing the petition, ruling that the nonprimary residence waiver was not against public policy and was binding upon successors in interest (meaning the current landlord).

The Appellate Term reversed and reinstated the petition on grounds that the "practice of permitting tenants to stockpile rent stabilized apartments, immune from the requirement of primary residence should not be rewarded." The Court declined to give effect to the nonprimary residence waiver. The Court noted that the agreement was not made binding on the parties' successors or assigns. Even though the lower court "correctly recognized" that a purchaser takes premises subject to existing tenancies, `the key to the liability of the successor-in-interest is notice of the relevant lease provision or waiver thereof.'" The Court held that there was nothing in 3F's lease which gives notice of any waiver of the right to maintain a nonprimary residency action. In this case the Court held that the current landlord "cannot reasonably be said to have had actual or constructive notice of a private waiver wholly inconsistent with the rent stabilization scheme."


Case Caption:
Adams Tower Limited Partnership v. Richter
Issues/Legal Principles:
Eviction upheld against Tenant who is not allowed to cure chronic nonpayment of rent.
Keywords:
chronic nonpayment; breach of lease; nuisance; cure
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Oymin Chin
Date:
August 16, 2000
Citation:
NYLJ, page 23, col. 1
Referred Statutes:
9 NYCRR 2524.3(a); RPAPL 753(4)
Summary:
Landlord brought a motion for summary judgment (which is like a trial on papers) seeking the eviction of the tenant on grounds of chronic nonpayment of rent. The uncontradicted evidence showed that landlord was required to commence 9 nonpayment proceeding from June 1995 to October 1998. The proceedings were always resolved by stipulation wherein the tenant consented to a judgment and agreed to pay the rent arrears in full without seeking an abatement. The tenant never alleged any warranty of habitability claims. Rather, the tenant attributed their financial problems to their son's medical condition. The holdover proceeding was brought on grounds that tenant violated a substantial obligation of their tenancy. The proceeding was not brought on nuisance grounds, the standard of which is "aggravated circumstances." The Appellate Term confirmed that the breach of lease by consistent nonpayment was firmly documented in the record. The Court expressed sympathy with the tenant, but noted that the matter did not involve an isolated occasion and further that landlord should not have to constantly resort to eviction proceedings just to collect the rent. The Court upheld that part of the lower court's decision which held that a notice to cure was not required because the cumulative pattern of tenant's course of conduct was incapable of "cure" within ten days. The fact that a lease or statute provides time for a cure "does not necessarily imply that a means or method to cure must exist in every case." Hence, the Appellate Term likewise refused to allow the tenant a post-judgment ten day cure period under RPAPL 753(4).


Case Caption:
Seventh FGP, Inc. v. Yee
Issues/Legal Principles:
Landlord not entitled to recoup returned SCRIE payments from tenant where the six year statute of limitations had elapsed.
Keywords:
SCRIE; statute of limitations
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Norman C. Ryp
Date:
August 16, 2000
Citation:
NYLJ, page 23, col. 2
Referred Statutes:
CPLR 213(2)
Summary:
Plaintiff-landlord sued tenant in November, 1998 after an abatement audit determination revealed that landlord's predecessor was not entitled to Senior Citizen Rent Increase Exemption ("SCRIE") benefits after December 31, 1984. Landlord had to re-pay the Department of Finance for the recoupment, and now turned to tenant to be reimbursed on the theory of unjust enrichment since tenant had continued to receive SCRIE exemptions from 1985 to 1991. The Appellate Term reversed the lower court's holding in favor of the landlord. The Court ruled that a contract action based upon unjust enrichment is subject to a six-year statute of limitations and the claim accrues on the date a payment is made resulting in the unjust enrichment: the claim does not accrue on the date a party receives knowledge of the unjust enrichment. The Court found that this was so especially in this case because the prior landlord was the recipient of the tax abatements and therefore had direct knowledge that the payment was made. Since any unjust enrichment to tenant occurred, at the latest, with tenant's rent payment of October, 1991, and since tenant was not sued until November 1998, the case must be thrown out since more than six years had elapsed.
Notes:
The case is not clear whether landlord knew about the excess benefits before the statute of limitations passed, or was notified by the City after the six years had already accrued or whether the six years accrued in the midst of the abatement audit.


Case Caption:
Valentine v. Thomas
Issues/Legal Principles:
City must be joined as a party to landlord's holdover proceeding where evidence indicates City recognized occupant as a tenant prior to selling the building to landlord.
Keywords:
trial; joinder
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Pierre Turner
Date:
August 16, 2000
Citation:
NYLJ, page 23, col. 1
Referred Statutes:
CPLR 1031; NYCCCA 110(d)
Summary:
Landlord bought this building from the City of New York through the City's Department of Housing Preservation and Development, and then began a holdover proceeding against the apartment on grounds that it was exempt from rent regulation because the premises is a one family house. Tenant argued that the landlord is required to offer him a lease under the Tenant Ownership Program. Although tenant was not listed in the closing documents from HPD as the tenant of record, there was other material in the file which did recognize him as a tenant. The Appellate Term ruled that the lower court did not properly grant the landlord's request for an eviction since there was no summary judgment motion (trial on paper) and no trial or testimony taken. The Court ruled that the case should go back to the judge for further determination and HPD should be joined as a party since they were so integral to the proceeding, particularly with regard to whether this occupant is in fact a tenant and was offered a lease.


Case Caption:
140 West Equities v. Fernandez
Issues/Legal Principles:
Tenant's court appointed guardian must be joined as a party to litigate substantive rights affecting the tenant, such as settlement of a hearing transcript.
Keywords:
guardian; guardian ad litem; transcript settlement; nuisance
Court:
Civil Housing Court, New York County
Judge:
Hon. Douglas Hoffman
Date:
August 16, 2000
Citation:
NYLJ, page 24, col. 1
Referred Statutes:
CPLR 5525(c), 1207
Summary:
In a nuisance proceeding against the tenant, the court had previously conducted a full hearing to determine if the tenant needed a guardian ad litem (GAL), as requested by the New York City Department of Social Services. The court denied that motion. Thereafter, a guardian was appointed for the tenant in Supreme Court pursuant to Article 81 of the Mental Hygiene Law. (A guardian appointed under Article 81 has far more expansive powers over the person than the limited capacity of a guardian ad litem). The City sought to settle the hearing's transcript. However, since the tenant was incapacitated and now had a guardian the tenant could not settle the transcript by herself. Thus, the guardian needed to be joined as a party to the proceeding to engage in that substantive issue.


Case Caption:
1300 Ocean Avenue Realty Corp. v. McGregor
Issues/Legal Principles:
Lease clause specifying that all notices be in writing is not applicable to warranty of habitability claims (repairs) as a matter of public policy.
Keywords:
warranty of habitability; notice
Court:
Civil Housing Court, Kings County
Judge:
Hon. Lauren Baily-Schiffman
Date:
August 16, 2000
Citation:
NYLJ, page 25, col. 4
Referred Statutes:
RPL 235-b(2)
Summary:
The court conducted a hearing to determine if tenant was entitled to an abatement of rent based on any breaches of the warranty of habitability. The landlord argued that tenant should not be entitled to an abatement because tenant failed to give written notice to the landlord of the conditions in need of repair. The lease contained a standard clause that any notice to landlord must be in writing. The court, however, referred to Real Property Law Section 2350b(2) which provides that any agreement by a lessee or tenant of a dwelling waiving or modifying his rights (under this law) shall be void as contrary to public policy, and that the lease clause landlord points to requiring written notice cannot be applicable to tenant's complaint of repairs. After trial, the court found that tenant's testimony supported her claim that there were leaks and the ceiling collapsed and that she had given landlord timely oral notice of the condition to landlord or landlord's son (landlord's agent). The court granted tenant an abatement and directed landlord to make the repairs in seven days.


New York Law Journal,
decisions for the week of August 7-August 11, 2000 (2 cases)


Case Caption:
335 East 70th Realty Inc. v. Sara A. M.
Issues/Legal Principles:
Where there is overwhelming evidence that disabled, adult child of rent-controlled tenant lived with tenant for one year before tenant died, facts reflecting that child traveled and that tenant had denied childĺs presence in apartment to qualify for home-care are not adequate to defeat succession claim.
Keywords:
succession rights
Court:
Civ. Ct., New York Co.
Judge:
Hon. Maria Milin
Date:
August 9, 2000
Citation:
NYLJ, page 23, col. 5
Referred Statutes:
9 NYCRR Section 2204(6)(d)(1) and Section 2204 (6)(d)(3)
Summary:
Landlord brought licensee holdover against remaining occupants after rent-controlled tenant died. Court found that documentary evidence and testimony established that one of occupants was tenantĺs adult daughter. In addition, the Court found that the daughter was disabled within the meaning of the rent control laws because she suffered from AIDS. Thus, the Court applied one-year period to establish succession claim. The daughter submitted ample documentary proof to demonstrate that she had lived with the tenant, her father, for one year before his death. Such evidence included her driverĺs license, voter registration, NYC Library card, bank account statements, Medicaid-related documents and Social Security. In addition, family members, neighbors and home care attendants testified that they saw her in the apartment. Although the evidence also showed that the daughter had traveled abroad frequently and often stayed with her mother on the weekends, the Court found, in light of the evidence, that the daughter had lived with the tenant as her primary residence for the year before his death. The landlord presented evidence reflecting that the daughter received credit card bills and had telephone service at the address where her mother lived. However, the Court held that such evidence did not negate the substantial evidence that the apartment was the daughterĺs primary residence since she ôreasonably explainedö such documents. In addition, the Court found that documents reflecting that the deceased tenant had said that he lived alone did not undermine the daughterĺs claim since the tenant had had a motive to fabricate: had DSS known that the daughter lived in the apartment with the tenant, it would not have given the tenant home care. The court found that the improprieties of the tenant should not be held against the daughter. Court also discounted landlordĺs witnesses as unreliable or unpersuasive. Many of them were not in the home frequently and other witnesses were not credible.
Notes:
This case could be helpful in preparing a succession claim since it lists the type of evidence courts consider in making a determination and how to address adverse evidence.


Case Caption:
Zanders v. Pine Management Inc.
Issues/Legal Principles:
Landlord liable for damage to property where damage resulted from breach of warranty of habitability.
Keywords:
property damage; breach of warranty of habitability
Court:
Small Claims Court, New York County
Judge:
Hon. Silber
Date:
August 9, 2000
Citation:
NYLJ, page 26, col. 6
Referred Statutes:
RPL. Section 235-b
Summary:
Tenant sued landlord for damage that his property suffered as a result of the leak from the apartment above him. The landlord defended itself against the claim on the ground that the lease contained a provision that absolved it from liability for property damage. The Court found that the provision of the lease was void as against public policy because it constituted a waiver of the tenantĺs right to a warranty of habitability. The Court found that the leak constituted a breach of the warranty and held that the landlord was responsible for the resulting damage to property.
Notes:
Beware! Not all courts would agree with this holding. Some courts have held that the landlord is only liable for property damage if it results from landlordĺs negligence and will not hold landlord strictly liable for damages resulting from breach of warranty of habitability.


New York Law Journal,
decisions for the week of July 31 to August 4, 2000 (2 cases)


Case Caption:
New York City Housing Authority v. Harvell
Issues/Legal Principles:
The New York City Housing Authority must serve a 30 Day Notice of Termination prior to bringing a summary holdover proceeding against a tenant for drug related criminal activity allegedly conducted in the apartment.
Keywords:
drug related criminal activity; illegal use; termination notice; NYCHA
Court:
Civil Housing Court, Bronx County
Judge:
Hon. Turner
Date:
August 2, 2000
Citation:
NYLJ, page 28, col 3
Referred Statutes:
RPAPL 711(5); RPAPL 715(1); RPL 231(1); RSC 2524.2(1)(2);24 CFR 966.4; 24 CFR 966.51; 24 CFR 247.4; 24 CFR 247.3
Summary:
The New York City Housing Authority ("NYCHA") brought an illegal use summary holdover proceeding against the tenant, alleging that the tenant and others acting with the tenant's knowledge, permission, or acquiescence, were using and occupying the tenant's apartment unlawfully for storage, packaging and/or sale of controlled substances. The tenant moved to dismiss, claiming that NYCHA was required to serve a 30 day notice of termination prior to bringing an illegal use summary holdover proceeding for drug related criminal activity.

The Court, noted the general rule that termination notices are not required for illegal use proceedings pursuant to RPAPL 711(5) and RPAPL 715(1), as illegal use proceedings are founded on the statutory authority of RPL 231(1) rather than the prior termination of the tenancy (the predicate for the garden variety holdover summary proceeding). However, the Court recognized that NYCHA was governed by Title 24 of the Code of Federal Regulations ("CFR"), and specifically, 24 CFR 966.4, which requires a 30 day notice of termination. Moreover, even though prior courts held that a notice of termination required by the related 24 CFR 247.4 was not applicable to the termination of federally subsidized tenancies based upon illegal drug activity, 24 CFR 247.3 was amended on September 6, 1996, to expressly provide for such evictions, and the two related statutes (24 CFR 247.3 and 24 CFR 247.4) must be read in harmony to require a notice of termination. Moreover, 24 CFR 966.4 (the public housing counterpart to 24 CFR 247.3 and 24 CFR 247.4) was also amended to specify grounds for drug related criminal activity, and clearly requires a 30 day notice of termination. The Court dismissed the action without prejudice.


Case Caption:
Lenox Brooklyn Associates v. Franks
Issues/Legal Principles:
Housing Court does not lack subject matter jurisdiction over a nonpayment summary proceeding for failure of the rent demand to state the name of the managing agent who renewed the last lease, landlord's name was sufficient
Keywords:
rent demand; nonpayment summary proceeding; subject matter jurisdiction
Court:
Civil Housing Court, New York County
Judge:
Hon. Rodriguez
Date:
August 2, 2000
Citation:
NYLJ, page 30, col 4
Referred Statutes:
CPLR 3211(b)
Summary:
Landlord brought a nonpayment summary proceeding against the tenant, and after the tenant defaulted under the terms of a stipulation, the landlord obtained a possessory and monetary judgment. Tenant brought an Order to Show Cause, stating that public assistance only paid a portion of her rent, and she had no other financial resources except help from welfare. The tenant also moved to dismiss the action, because the three day demand identified the landlord instead of the managing agent. The tenant claimed that the identification in the rent notice was confusing, as the managing agent signed her last lease renewal, and that she was entitled to a clear and unambiguous demand for rent from the party she was obligated to pay rent to, in accordance with Siegel v. Kentucky Fried Chicken, 108 A.D.2d 218, 488 N.Y.S.2d 744 (2d Dept. 1985).

The Court disagreed, finding that since the landlord signed the notice, Siegel v. Kentucky Fried Chicken did not apply. Moreover, the landlord signed the tenant's initial lease, and the tenant paid rent to the landlord for the past thirteen years. Thus, it was unlikely that the tenant could be surprised or confused by the landlord's name on the rent demand. The renewal lease also showed that the managing agent signed in an agent's capacity.

The Court also stated that even if the notice was improper, it would still have subject matter jurisdiction over the action, despite the defective predicate notice. The Court denied the tenant's motion to dismiss, but stayed the execution of the warrant to give the tenant time to satisfy the judgment.