Housing Court Decisions January 2000
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 January 24-28, 2000 (2 cases)

Case Caption:
Gruss v. Cheung
Issues/Legal Principles:
Tenant's award of summary judgment for rent overcharge, based upon landlord's failure to timely file an initial rent registration, is reversed on appeal, where landlord subsequently served and filed the initial rent registration and tenant failed to file a fair market rent appeal.
Keywords:
RR-1; initial rent registration; overcharge; fair market rent appeal
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Brenda Spears
Date:
January 25, 2000
Citation:
NYLJ, page 26, col 1
Referred Statutes:
RSL sec. 26-517(e); RSL sec. 26-516(a)
Summary:
Landlord commenced an unspecified action against tenant, and tenant filed a counterclaim for rent overcharge, based upon the landlord's failure to timely serve and file an initial rent registration (RR-1) statement. The trial court granted the tenant summary judgment on the tenant's counterclaim. On appeal, the Appellate Term reversed, noting that Rent Stabilization Law 26-517(e) provides that no overcharge exists based upon the failure to file a timely registration, where the landlord subsequently serves and files a late registration. Moreover, the treble damages awarded by the trial court were reversed, pursuant to Rent Stabilization Law 26- 516(a), which prohibits treble damages based solely upon a landlord's failure to timely file an initial or annual rent registration statement.
Notes:
In this case, the landlord apparently served and filed a late initial rent registration statement (RR-1) (and perhaps subsequent annual registration statements). Tenant's should know that they only have ninety (90) days to challenge the rent asserted by a landlord in an RR-1 with a Fair Market Rent Appeal ("FMRA"). In this case, despite landlord's late filing of the RR-1, tenant neglected to timely challenge the rent by not filing a FMRA (which was noted by the Appellate Term in this case). In these circumstances, the court permit the landlord to retroactively correct the legal rent and avoid claims of overcharge. Note, however, the case of Matter of Kempner v. DHCR (see Housing Court Archives for the week of October 27, 1999) where the landlord belatedly filed the RR-1, over four years after it should have been filed. Yet, as soon as the landlord did serve and file the RR-1, the tenant filed a FMRA. The Supreme Court ruled that the tenant's FMRA was timely since it was filed within the 90-day period to challenge a FMRA (rather than perfunctorily ruling that the four-year period from when the RR-1 should have been filed is past and tenant's time to file a FMRA is barred).

Case Caption:
240 West 73rd Street LLC v. Weber
Issues/Legal Principles:
Tenant's award of summary judgment finding that tenant is rent-stabilized is affirmed on appeal, where undisputed evidence shows that tenant continuously resided in unit since 1993 and landlord's predecessor accepted her checks referencing the unit.
Keywords:
estoppel; waiver; rent stabilized status
Court:
Appellate Term, First Department
Judge:
lower court; Oymin Chin
Date:
January 25, 2000
Citation:
NYLJ, page 26, col 2
Referred Statutes:
9 NYCRR sec. 26-518; 9 NYCRR sec 2520.6(j)
Summary:
Trial Court granted tenant summary judgment, finding that she was a rent-stabilized tenant in a hotel unit. The Appellate Term affirmed, noting that the tenant produced undisputed evidence showing that she lived in the unit continuously since at least 1993 and that the landlord's predecessor accepted rent checks directly from her for more than three years via checks bearing the tenant's name and referencing the subject unit. The Appellate Term held that under the circumstances in this case, the tenant conclusively established her status as a permanent residence entitled to the protections of the Rent Stabilization Law.
Notes:
This case appears to be in conflict with several other Appellate Term cases, finding that a tenancy may not be created by "waiver" or "estoppel." Occupants should not be lulled into thinking that just because the landlord cashes rent checks for a number of years, that this does not automatically convert the occupant into a tenant. Other factors are usually looked at such as conversations between the occupant and the landlord.

New York Law Journal,
decisions for the week of January 17-21, 2000 (4 cases)

Case Caption:
Sonaal Industries v. Santiago
Issues/Legal Principles:
Rent stabilized tenant did not waive her right to possession of the apartment when she approached landlord, unrepresented by counsel, and asked that her son's name be added to the lease in order to facilitate his receipt of a governmental rent grant.
Keywords:
waiver; dismissal of petition
Court:
Housing Part of the Civil Court, Kings County
Judge:
Hon. Judge R. Rivera
Date:
January 19, 2000
Citation:
NYLJ, page 30, col 5
Referred Statutes:
RSC Section 2520.13
Summary:
Lucia Rivera has been the rent-stabilized tenant of the subject apartment since March 1, 1992. In 1996, she asked the former landlord to name her son - Mr. Santiago - on the lease in order to facilitate the son's receipt of a grant from the Division of Aids Services ("DAS"). The landlord then changed the lease to name Mr. Santiago only. In all annual apartment registration statements filed with the DHCR, the landlord named only Mr. Santiago. Ms. Rivera continued to occupy the apartment together with her son. In 1999, the landlord commenced a summary nonpayment proceeding against Mr. Santiago. Landlord failed to name and serve Ms. Rivera. The Court determined that the landlord's failure to name and serve Ms. Rivera was a mistake, because a rent-stabilized tenant cannot waive the benefits of the rent stabilization law and code except under very limited circumstances which do not apply in this case. The court found that the circumstances of this case certainly didn't fall within the limited exceptions because "it did not involve a waiver of a complaint then pending before DHCR; rather, it was a private arrangement, negotiated without the benefit of counsel, between the landlord and Ms. Rivera who at the time had been a rent stabilized tenant at the subject apartment for at least four years." The Court vacated the default judgement and the warrant of eviction, ordered that Ms. Rivera and Ms. Santiago be restored to the apartment at the landlord's expense and dismissed the nonpayment petition for failure to name a necessary party.

Case Caption:
Ballesteros v. Rosello
Issues/Legal Principles:
Since tenants were month-to-month tenants of the prior landlord, the current landlord was entitled to treat them as month-to-month tenants for the purposes of holdover proceedings.
Keywords:
month-to-month tenant
Court:
Housing Part of the Civil Court, Kings County
Judge:
Hon. Judge Sikowitz
Date:
January 19, 2000
Citation:
NYLJ, page 30, col 4
Referred Statutes:
RPL Sections 223 and 248
Summary:
New landlord served Rosello and Cardona with thirty-day notices of termination of their month-to-month tenancies. Rosello and Cardona did not have a lease (with either new landlord or prior landlord) and are not protected by either rent stabilization or rent control. New landlord then served Rosello and Cardona with holdover petitions. They argued that the petitions against them should be dismissed because they are licensees (occupants who do not have a landlord-tenant relationship with petitioner) and, therefore, landlord should have served them with a ten-day licensee notice, rather than a thirty-day notice. In further support of this argument, Rosello and Cardona asserted that they had never paid rent to the new landlord. However, they admitted that they were month-to-month tenants of the prior landlord. The Court held that since they were month-to-month tenants of the prior landlord that the current landlord was also entitled to treat them as month-to-month tenants. The Court relied on RPL Section 223, which states that the buyer (grantee) of real property has the same rights and remedies as the seller (grantor). The fact that the Rosello and Cardona did not pay rent to the new landlord is a non-issue.

Case Caption:
Marbar Inc. v. Katz
Issues/Legal Principles:
Tenant is evicted for making alterations in the back yard of the premises without prior consent of the landlord unless, within ten days, she removes the concrete patio and posts a bond in the amount of $5,000.00 to guarantee removal of new wood deck installed over old wood deck.
Keywords:
alterations
Court:
Housing Part of the Civil Court, New York County
Judge:
Hon. Judge Hoffman
Date:
January 20, 2000
Citation:
NYLJ, page 28, col 5
Referred Statutes:
RPAPL Section 753(4)
Summary:
Landlord brought a holdover proceeding against tenant alleging, among other things, that tenant had breached a substantial obligation of her tenancy by making certain alterations in the back yard without first obtaining landlord's consent. The tenant replaced the aged outdoor wooden deck with a new, improved slightly larger deck and installed a brand new brick and cement patio. The landlord claimed a breach of a substantial obligation of the tenancy because the lease prohibits the tenant from making any alterations without the permission of the landlord. The decision in this case reviewed many court decisions on the subject of illegal alterations. The court then decided that it had the power to fashion a remedy which would serve the interests of both the tenant (a longstanding rent-regulated tenant) and the landlord. The court was heavily influenced by the fact that the new deck was superior to the old deck, that all of the alterations improved the appearance of the back yard and probably enhanced the value of landlord's property and that the tenant was a longstanding rent-regulated tenant. Therefore, the court granted a final judgment of possession in favor of the landlord but gave tenant a post-judgment opportunity to cure. The court stayed issuance of the warrant of eviction for ten days, during which the tenant would have an opportunity to cure. Within the ten days, the tenant must remove the cement patio entirely. If the original wood deck remains beneath the new wood deck, the tenant must remove the new wood deck. The court did not wish to see the tenant evicted if the old deck had been removed - it would clearly be impossible to re-create the old deck in a mere ten days. So that court provided that if the old deck has been removed, which is probably the case, then tenant must post a bond in the amount of $5,000.00 "to secure the cost of any damage caused by removal of the present deck and restoration of the equivalent of the prior deck upon [tenant's] permanent vacatur from the premises. In the event that restoration is not effected upon vacatur, tenant shall forfeit the bond."

Case Caption:
Matter of Clear Holding Company v. DHCR
Issues/Legal Principles:
DHCR decision - which determined the legal rent in accordance with a default formula after the landlord failed to provide rent records - is upheld by Supreme Court and by Appellate Division.
Keywords:
Article 78 proceeding; arbitrary; capricious
Court:
Appellate Division, Second Department
Judge:
lower court judge: Hon. Justice Berke
Date:
January 21, 2000
Citation:
NYLJ, page 31, col 4
Referred Statutes:
none cited
Summary:
Tenants filed an overcharge complaint with the DHCR. DHCR's rent administrator asked the landlord to provide certain rent records so that the rent can be determined. Landlord failed to provide the rent records as requested. The DHCR therefore determined the rent in accordance with its default formula, which resulted in a lowering of the rent to $227 and an overcharging finding of about $48,000.00. The landlord filed a petition for administrative review ("PAR"). The Deputy Commissioner who decided the PAR upheld the rent administrator's determination except that the overcharge amount was slightly lowered by the amount of three months of unpaid rent. The landlord filed an Article 78 petition with the Supreme Court, Queens County in order to challenge the PAR. The Supreme Court upheld the PAR order, finding that it was neither arbitrary nor capricious for the DHCR to apply its default formula after the landlord failed to provide the requested rent information.

New York Law Journal,
decisions for the week of January 10-14, 2000 (7 cases)

Case Caption:
Jemrock Realty Co. v. Olivola
Issues/Legal Principles:
Oral agreement by landlord to give lease to subtenant is not effective since an actual lease was never signed or tendered.
Keywords:
leases; subtenant
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Arlene Hahn
Date:
January 10, 2000
Citation:
NYLJ, page 29, col 2
Referred Statutes:
General Obligations Law 5-703(2)
Summary:
The subtenant claimed that she and the landlord reached an oral agreement that she could become the tenant, and that a proposed lease was signed. However, the testimony indicates that no actual lease was ever signed or tendered to the subtenant after her credit history was checked. Without a valid lease, the subtenant had no rights to remain in occupancy of the apartment once the landlord sought her eviction.

Case Caption:
Chou v. Norambuena
Issues/Legal Principles:
Rent Stabilized lease is not void and its jury waiver clause is upheld even though lease incorrectly alleges that the apartment is not subject to rent stabilization.
Keywords:
jury waiver clauses
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Brenda Spears
Date:
January 13, 2000
Citation:
NYLJ, page 28, col 5
Referred Statutes:
none cited
Summary:
Landlord brought a number of nonpayment proceedings against various tenants, all of whom demanded a trial by jury. The leases, however, contained valid and enforceable jury waiver provisions. The lower court refused the landlord's request to strike the jury clauses from the leases because the leases also contained a clause stating that the benefits of the Rent Stabilization Laws were waived. The lower court concluded that the leases were void because they contained this clause, and if void, then there no jury waiver clauses. The landlord inserted the non-stabilization clauses under the "mistaken belief" that the building qualified for rehabilitation exemption. However, the status of the apartments, the Appellate Term held, was not an issue in the proceedings because the nonpayment proceedings affirmatively allege that the premises are in fact subject to rent stabilization. Thus, the erroneous representation in the leases as to stabilized status should have been disregarded or severed. The Appellate Term reversed the lower court's holding by determining that the jury waiver clauses were valid and enforceable.

Case Caption:
Park Towers South Company v. Brick
Issues/Legal Principles:
Landlord was not entitled to seek deregulated rent of $3,300 since the Supreme Court reversed the DHCR's luxury deregulation order and remanded for a new determination.
Keywords:
luxury deregulation; attorneys fees
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Walter Strauss
Date:
January 13, 2000
Citation:
NYLJ, page 28, col 5
Referred Statutes:
22 NYCRR 2529.12; CPLR 5519(a)
Summary:
The lower court dismissed the nonpayment petition and this was upheld on appeal. The Supreme Court had previously ruled that the landlord's application for high income rent deregulation be remanded to the DHCR for reconsideration. Thus, the original DHCR order which deregulated the apartment was stayed pending the outcome of tenant's PAR with the DHCR. Prior to the Supreme Court's reconsideration order the parties had signed a "deregulation renewal lease" in reliance on the initial DHCR deregulation order at a rental of $3,300 per month. The Appellate Term held that since the initial deregulation order was stayed, the deregulation lease rental of $3,300 could not be enforced. Further, even though the DHCR appealed the Supreme Court's decision, "those provisions of a judgment or order which are self- executing are not stayed when a government entity serves a notice of appeal." The Appellate Term also agreed with the lower court that the dismissal of the petition was not due to a mere technicality because as the proceeding ensued landlord demanded the stabilization rent, not the deregulated rent. The Court noted that the DHCR subsequently denied the landlord's application of luxury deregulation. Since the petition was dismissed on the merits, the tenant was entitled to attorney's fees as the prevailing party.

Case Caption:
Park Towers South Company v. Brick
Issues/Legal Principles:
Tenant entitled to attorneys fees since tenant tendered all the rent but the landlord commenced a nonpayment proceeding anyway.
Keywords:
luxury deregulation; attorneys fees
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Oymin Chin
Date:
January 13, 2000
Citation:
NYLJ, page 28, col 5
Referred Statutes:
none cited
Summary:
This appears to be a companion case to the one above. Apparently Judge Strauss dismissed the petition on tenant's motion for summary judgment. Landlord defaulted, claiming a scheduling confusion. Nonetheless, the record demonstrates that the very arrears which were the subject of this nonpayment proceeding had been previously tendered by the tenant (probably the rent stabilized rental amount, and not the deregulated rental amount), but rejected by the landlord without just cause. The nonpayment petition was therefore improperly commenced. Hence, the tenant was the prevailing party and entitled to attorneys fees.

Case Caption:
M&E 234 LLC v. Chang
Issues/Legal Principles:
No finding of nonprimary residence despite tenant's daily presence at her elderly, ailing parents' nearby apartment.
Keywords:
nonprimary residency
Court:
Appellate Term, First Department
Judge:
lower court: Saralee Evans
Date:
January 12, 2000
Citation:
NYLJ, page 26, col 3
Referred Statutes:
none cited
Summary:
The appellate court upheld the lower court's finding that the rent controlled tenant maintained her apartment as her primary residence. Important documents bore the tenant's Mott Street address, including driver's license, credit card statements, bank statements and tax returns, coupled with her credible testimony that she was present daily at the apartment and active in the tenant's association. The alleged alternate address on Spring Street is where tenant's elderly and ailing parents reside and she spent a "considerable amount of time each day" at their apartment to care for them. The appellate court deferred to the trial court's findings of fact and credibility in determining that the tenant did not abandon her apartment.

Case Caption:
Sessler v. DHCR
Issues/Legal Principles:
In overcharge complaint, four year statute of limitation begins to run when the rental overcharge is collected, not when the registration statements are filed.
Keywords:
overcharges, statute of limitations
Court:
Supreme Court, New York County
Judge:
Hon. Figueroa
Date:
January 12, 2000
Citation:
NYLJ, page 26, col 6
Referred Statutes:
RSL 26-516(a), Rent Regulation Reform Act, 33
Summary:
Tenant brought an Article 78 to challenge DHCR's denial of the overcharge complaint on grounds that it was barred by the four-year statute of limitations. In 1991, tenant moved into the apartment at a rental of $1650 per month. Tenant claimed that it was not until 1997 that he became aware that the apartment was Rent Stabilized. Landlord hadn't filed DHCR rent registrations since 1989 and in that year the registered rent was $580.09. Tenant argued that DHCR's dismissal of his overcharge complaint was wrong because DHCR determined that the limitation period begins to run when the rental overcharge is collected, as opposed to tenant's position that the limitation period begins to run when the landlord files the registration statement. The tenant also alleged that the landlord engaged in fraud.

The tenant referred the court to Rent Stabilization Law Section 26-516(a) which provides that the legal registered rent is the rent of the annual registration statement filed four years before the most recent registration statement, plus any additional lawful increases. The court, however, refused to accede to tenant's interpretation of the statute. The court noted that the legislature made clear its purpose in enacting the Rent Regulation Reform Act of 1997: "to preclude examination of rental history going back more than four years from the filing of a complaint." The court also held that fraud cannot be a defense to go around the four-year statute of limitations.

Notes:
In this case, the complaint was filed in 1997. Four years prior to that was 1993. There was no annual rent registration filed that year. Since the most recent registration statement was 1989, one should look four years prior thereto to determine the legal registered rent. If the registration statements were determinative as to when the four-year limitation period begins, as RSL 26-516(a) can reasonably be interpreted to mean, then indeed the tenant's complaint of overcharges is not time barred. Yet, the judge refused to import any interpretation to the statute other than what Albany has pronounced from above, that the rent paid four years from the filing of the complaint is all that can be examined. The statute certainly can be read differently, but no judge is going out on a limb to rock Pataki's boat.

Case Caption:
Laviolette v. Weston
Issues/Legal Principles:
Tenant must pay back rent even though the building consisted of three or more residents making it a multiple dwelling.
Keywords:
negligence; waste; certificate of occupancy
Court:
Civil Court, Queens County
Judge:
Hon. B. Greenbaum
Date:
January 12, 2000
Citation:
NYLJ, page 28, col 5
Referred Statutes:
none cited
Summary:
Plaintiff-Landlord brought an action for unpaid rent after the tenant-defendant vacated the apartment. The landlord also claimed that the tenant deliberately committed waste when he left by clogging the bath drain and leaving the water running, causing flooding and water damage to the entire building. The tenant claimed he did not get his security back, for his payment for gas which a prior settlement provided for. The court rejected landlord's argument that the tenant caused the waste, finding that the building was old and needed repairs and that the overflow did not result from tenant's actions. Tenant also argued that he is not liable for rent because the building was occupied illegally in that there was no certificate of occupancy for the basement and first floor. In other words, at that time three units were occupied which made the building a multiple dwelling, and the law provides that if there is no certificate of occupancy for a multiple dwelling, the landlord is precluded from accepting rent. Tenant also alleged that because the landlord was unable to collect rent from those tenants, this action against him was merely an effort to recoup lost rent. The court rejected this argument because at the time the current action commenced, tenant was the only occupant in the building, and therefore no multiple dwelling existed. Yet, the rent sought was for a perod when the premises apparently were a multiple dwelling! After applying tenant's credits, the court determined that landlord was owed a mere $782 in rent, rather than the $3,400 requested.

New York Law Journal,
decisions for the week of January 3-7, 2000 (3 cases)

Case Caption:
Evans v. Schneider
Issues/Legal Principles:
Predicate 120-150 day notice of intent not to renew lease for owner occupancy proceeding remains unaffected by automatic stay provision of Bankruptcy Code
Keywords:
automatic stay; bankruptcy; owner occupancy
Court:
Civil Housing Court, New York County
Judge:
Hon. Hoffman
Date:
January 3, 2000
Citation:
NYLJ, page 27, col 2
Referred Statutes:
11 U.S.C. sec. 362(a); Rent Stabilization Code sec. 2524.4(4); 11 U.S.C. sec. 362(b)(4); 11 U.S.C.S. sec. 108
Summary:
Tenant filed a bankruptcy proceeding the day before the 120-150 day window period began for the landlord to serve tenant with a notice of intention not to renew the tenant's rent- stabilized lease. The tenant moved to dismiss the subsequently commenced Housing Court proceeding, arguing that the automatic stay provision of section 362(a) of the federal Bankruptcy Code, 11 U.S.C. 362(a), voided the landlord's predicate notice, since any action affecting the tenant's property rights was automatically stayed at the time of the tenant's Chapter 7 bankruptcy filing.

Noting that the Housing Court would, in the first instance, decide whether the automatic stay applied, an issue of apparent first impression, the Court disagreed with the tenant, holding that the landlord's predicate notice remained unaffected by the tenant's bankruptcy filing.

First, the Court found that the tenant had no legally cognizable equity in the contingent interest created by a rent-stabilized lease. The Court noted that such an interest could not be sold on the market nor could a monetary value be placed on the regulated tenancy. Moreover, the tenancy did not create income, nor did it form part of the economic value of the tenant's bankruptcy estate. Thus, the administration of the tenant's bankruptcy estate would remain unaffected by the service of the predicate notice.

Second, the Court found that the issue of renewal of the lease referenced future conduct on the part of the landlord and tenant, and that the service of the predicate notice was more akin to conduct preserving, as opposed to enforcing, a security interest in property, noting that the predicate notice did not terminate the tenant's contingent future interest in the apartment. The Court analogized this case with those in which creditors took acts to extend, continue or renew liens under New York State law, which the United States Court of Appeals for the Second Circuit has permitted during an automatic stay.

Third, the Court noted that the rent stabilization laws, including the rights landlords have to retake apartments for their own residential use, emanates from New York State's regulatory police powers, to which the bankruptcy laws pledge deference.

Finally, the Court considered that since the tenant owed no past due rent (and thus, the landlord was not a creditor), the landlord was not served with notice of the tenant's bankruptcy. Both sides agreed that service of the bankruptcy notice upon the landlord was unnecessary. However, since the landlord did not learn of the bankruptcy in time to move to vacate the automatic stay, the landlord's due process rights would have been violated by enforcing the stay, particularly where, as here, the 120-150 window to serve the notice of intent not to renew had long expired. If the stay applied, the landlord would be forced to issue a renewal lease, thus eviscerating the landlord's cause of action without any opportunity for the landlord to be heard.

Notes:
Ordinarily, where the tenant owes past due rent and subsequently files bankruptcy, the landlord, a "creditor" of the tenant, is served with notice of the filing, and the automatic stay would apply. The landlord would have to make a motion in bankruptcy court to vacate the automatic stay, before taking any further action to evict the tenant due to nonpayment.

Case Caption:
Farchester Gardens Inc. v. Licini
Issues/Legal Principles:
Subsequent Notice of Termination, based upon "no-pet" provision in lease, does not waive a Prior Notice of Termination, based upon failure to sign renewal lease.
Keywords:
notice of termination; second notice; subsequent notice; waiver
Court:
City Court of Yonkers
Judge:
Hon. Martinelli
Date:
January 5, 2000
Citation:
NYLJ, page 32, col 4
Referred Statutes:
Westchester County Local Law sec. 694.11; Tenant Protection Regulation sec. 2503.5; Tenant Protection Regulation sec. 2503.5(a)
Summary:
The landlord sought to evict a tenant for failure to sign her renewal lease. A Notice of Termination was served upon the tenant on February 11, 1999. The landlord subsequently served, in April, 1999, a second Notice of Termination, based upon tenant's violation of the "no-pet" provision in the lease. After trial, in May, 1999, the Court invited the parties to submit briefs addressing the issue of whether the landlord waived its rights in the first proceeding by serving the tenant with a second notice stating alternate grounds for termination of her tenancy. The Court held that the landlord did not waive its rights in the first proceeding, particularly where the Westchester County Local Law section 694.11 required the landlord to serve notice of a breach of the "no-pet" clause within 90 days of discovering the tenant's pet.

However, the Court found that the landlord served the notice of termination upon the tenant 17 days before the tenant was required to return the lease. Moreover, when the tenant received the notice of termination and immediately contacted the landlord, who received the renewal lease back from the post office as undelivered, the landlord withheld the lease and refused to let her sign. Thus, the Court would not condone or reward the "gamesmanship" conducted by the landlord, and dismissed the petition.

Case Caption:
88-09 Realty LLC v. Hill
Issues/Legal Principles:
Tenant of twenty two years cannot be evicted for drug arrests of her son and others in her apartment, where she did not know or participate in their illegal drug activity and was working at the time of the arrests.
Keywords:
illegal use; drug related criminal activity; search; arrest
Court:
Civil Housing Court, Queens County
Judge:
Hon. Jackman Brown
Date:
January 5, 2000
Citation:
NYLJ, page 31, col 2
Referred Statutes:
RPAPL sec. 711(5); RPL sec. 231
Summary:
A holdover proceeding was brought against a 53 years old tenant, for illegal use of her apartment, after her son and a woman unknown to the tenant were arrested for possession and use of narcotics after her apartment was searched and a second search yielded more narcotics and the arrests of the father of tenant's grandson and another person unknown to the tenant.

The facts of this case are important. The tenant worked twenty four (24) hour shifts from Wednesday through Sunday, at which time she was not in her apartment. She had previously obtained an Order of Protection to keep her son out of the subject premises, but could not serve the Order because her son had disappeared. She did not change the locks in her apartment, but did not know or believe that anyone was using her apartment when she was away.

After trial, the Court found for the tenant, noting her absence from the apartment at the time of the searches and arrests, her attempts to keep her son away by obtaining an Order of Protection and the fact that the landlord presented no evidence that any drugs or any drug related activity were apparent in the tenant's apartment when she was home. The Court also noted that the searches and arrests indicated personal use of narcotics, and not the trade, manufacture or sale of narcotics, which RPAPL 711(5) is designed to combat by allowing evictions "if the premises, or any part thereof, are used or occupied . . . for any illegal trade or manufacture or other illegal business." Moreover, the Court also refused to impute the illegal acts of others, who did not live with the tenant, to her, where the landlord failed to prove that she knew, condoned, ignored or participated in the illegal activity.

Notes:
The tenant in this case had strong facts. Others do not always fare as well. Tenants should know that they are responsible to prevent known illegal activities of family members and other occupants of the tenant's household. This is particularly true in public housing, where most leases forbid drug related criminal activity of any member of the tenant's household. If it is obvious, or even likely, that the tenant would have seen the illegal activity (for example if the tenant was present when drugs are in plain view, or if drugs are found in areas occupied by the tenant, such as a bedroom or kitchen), the tenant may face eviction for participating or acquiescing in the occurrence of the illegal activity in the apartment.