Housing Court Decisions June 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 June 26- June 30, 2000 (8 cases)


Case Caption:
Jones v. Allen
Issues/Legal Principles:
Appellate Term 2nd and 11th Jud. Dt. finds RPAPL Section 747-a unconstitutional as it applies to temporary stays in orders to show cause seeking relief from a final judgment or warrant
Keywords:
Rent Deposit Law; temporary stay
Court:
Appellate Term, 2nd and 11th Judicial Districts
Judge:
lower court: Hon. Mark Finkelstein
Date:
June 30, 2000
Citation:
NYLJ, page 30, col. 3
Referred Statutes:
RPAPL Section 747-a
Summary:
In this non payment proceeding, the parties had entered into a Stipulation which granted the landlord a final judgment of possession, stayed the execution of the warrant and required the tenant to pay rent arrears by July 31, 2000. In August, the tenant moved by way of order to show cause to stay the execution of the warrant. She demonstrated that she had the money to pay the rent pursuant to the stipulation and explained that she had not tendered the rent in a timely manner because DSS had delayed in preparing the checks. The Court granted the tenant a temporary stay of the execution of the warrant, pending determination of the motion. The Court, on hearing the motion, ordered the landlord to accept payment and vacated the warrant for good cause.
On appeal, the issue was whether the courtís granting the temporary stay pending determination of the motion violated of RPAPL Section 747-a, the so-called Rent Deposit Law. RPAPL 747-a bars the granting of stays in nonpayment proceedings five days after entry of judgment unless the amount of the judgment has either been paid to the landlord or deposited into court. The Court held that RPAPL Section 747-a is unconstitutional insofar as it concerns temporary stays where the ultimate relief sought is the vacatur of a judgment or warrant and affirmed the lower court. In striking down Section 747-a, the court held that the Rent Deposit Law interferes with the Courtís exercising its inherent power to relieve parties from its own judgments and to achieve a just resolution. Although the Legislature has the power to make procedural rules for the courts, where such procedural rules interfere with the discretionary power of the court, the procedural rules have no valid operation. One of the inherent powers of the court is to grant relief from its own judgment and processes. The Court found that the power to grant a temporary stay pending a determination of a motion for relief from a judgment or warrant is a necessary incident of the authority of the court to vacate its judgment or warrant. It is a power which a court must have in order to preserve the status quo until the motion has been determined and one which is necessary if its subsequent disposition is not to be rendered a mere exercise in futility. Because the Rent Deposit Law interferes with the exercise of the Courtís inherent, discretionary power, the Court found that it is unconstitutional and that the Court below acted within its authority in granting the temporary stay.
Notes:
The First Department in Lang v. Pataki, __ A.D.2d __ , 707 N.Y.S.2d 90 (1st Depít 2000) held that RPAPL Section 747-a is not unconstitutional on its face because it does not infringe upon the courtís fundamental decision making authority.


Case Caption:
Parras v. Ricciardi
Issues/Legal Principles:
Failure of landlordís lawyer to advise court that tenant may be disabled, in hospital or nursing home constitutes misconduct
Keywords:
attorney misconduct; service or process; mental incapacity
Court:
Civil Court, New York County
Judge:
Hon. Silber
Date:
June 28, 2000
Citation:
NYLJ, page 33, col. 4
Referred Statutes:
R.P.A.P.L. Section 735; CPLR Sections 1201 and 1203
Summary:
Landlord brought a nonpayment proceeding against a tenant whom it knew to be in a nursing home and to be incompetent. It moved for a default judgment and warrant, without serving the tenant at the nursing home or advising the court that the tenant suffered from a disability. The court, unaware of these surrounding circumstances, nevertheless, denied the request for a warrant, finding that both attempts at service were made during working hours. The attorney for the landlord thereafter made a motion to file a "duplicate affidavit of service" before a different judge. This so-called duplicate affidavit was, in fact, a different affidavit of service, reflecting different hours of service. The Court found that the attorney for the landlord had engaged in three separate acts of misconduct and dismissed the proceeding. The Court found that the motion to file a duplicate affidavit constituted misconduct because it was misleading. The attorney should have moved to file an amended affidavit of service and included an affidavit from the process server, explaining the basis for the amended affidavit. The Court found that the attorneys had engaged in misconduct by failing to serve the tenant at the nursing home. The Court held that the landlord must serve the tenant at the nursing home where the landlord knows that the tenant is in a nursing home because Section 735 requires service at any other known residence of the tenant. In addition, it held that it was improper to move for a default judgment where the landlord knew that the tenant had not been properly served at the nursing home. Finally, the court held that the attorneys had engaged in misconduct by failing to advise the court that the tenant suffered from a disability and seeking a default judgment against a tenant known to suffer from a disability. The Court noted that the court had the inherent duty to protect the rights of people suffering from a mental incapacity. Additionally, the Court held that the landlord and/or its lawyer had the obligation to inform the court of such circumstances so that the Court could determine if it was proper to appoint a guardian ad litem to protect the interests of the tenant.


Case Caption:
Surrey Hotel Associates LLC v. Sabin
Issues/Legal Principles:
Court has power to vacate default judgment entered against person judicially declared to be incompetent although more than twenty days elapsed since appointment of guardian.
Keywords:
incompetent; vacate default judgment
Court:
Civil Court, New York County
Judge:
Hon. Laurie Lau
Date:
June 29, 2000
Citation:
NYLJ, page 28, col. 4
Referred Statutes:
CPLR Sections 1203; 3211(a)(5); 309(b)
Summary:
The tenant defaulted in this holdover proceeding and the landlord obtained a judgment of possession against the tenant after inquest. Unbeknownst to the Judge in Housing Court, prior to entry of the default, Supreme Court had found the tenant to be incompetent and appointed a guardian. The guardian then moved to vacate the judgment on default. Pursuant to CPLR Section 1203, a party can only obtain a default judgment against a person judicially declared to be incompetent twenty days after appointment of a guardian. Here, the Court held that, even though more than twenty days had elapsed from date the Court appointed the guardian to the date that the Court had entered the default, the Court has the power to vacate default in light of the Courtís special duty to such litigants. Additionally, the Court found that the landlord who has information tending to show that a tenant suffers from a disability is under an obligation to advise the court of this information. Here, the landlord knew that it was receiving rent checks from PSA on behalf of the tenant and said that the tenant was "strange." Since the landlord had failed to advise the Court that the tenant might be disabled at the time that it sought a default judgment, the Court found that it was appropriate to vacate the default, even though more than twenty days had elapsed since the appointment of a guardian. Moreover, the Court dismissed the petition because the landlord did not serve the guardian, pursuant to CPLR Section 309(b).


Case Caption:
595 Broadway Associates v. Bikman
Issues/Legal Principles:
On landlordís motion for summary judgment, occupant claiming succession rights must present evidence reflecting that she lived with tenant.
Keywords:
summary judgment; succession rights
Court:
Civil Court, Housing Part, New York County
Judge:
Hon. Howard Malatzky
Date:
June 28, 2000
Citation:
NYLJ, page 26 col. 2
Referred Statutes:
Multiple Dwelling Law, Section 286(13)
Summary:
Landlord moved for summary judgment, seeking possession of a dwelling unit subject to the Loft Law. The occupant of the Loft claimed to have succession rights as the sister of the tenant. The Court did not decide if family members have succession rights pursuant to the Loft Law, but assumed that they did, for the sake of the motion. The Court granted the landlord summary judgment against the occupant, finding that the occupant did not present any evidence that she had actually resided with her sister, who was the tenant of record.


Case Caption:
327 Central Park West v. Vincent
Issues/Legal Principles:
Where the issue in a Housing Court proceeding is whether the tenant is exempt from coverage under the Rent Stabilization Laws because the rent is over $2000, the Court should stay the proceeding pending a determination of a Fair Market Rent appeal since the outcome of the FMRA would determine the tenantís status.
Keywords:
stay; Fair Market Rent Appeal
Court:
Civil Court, New York County
Judge:
Judge Rodriguez
Date:
June 28, 2000
Citation:
NYLJ, page 28, col. 6
Referred Statutes:
CPLR 213-a; Rent Stabilization Law Section 26-504.2; RSL Section 26-516; Rent Stabilization Code Sections 2524.1(a)(1) and 2522.3
Summary:
Landlord sought to evict tenant at the end of lease term. Tenant defended on the ground that his tenancy was subject to the Rent Stabilization Laws and he was entitled to renewal lease. The landlord claimed the tenancy was exempt because the rent was over $2000. The landlord had raised the rent to over $2000 in 1994, after the rent controlled tenant had vacated the premises. There was no evidence that the landlord had served an RR1 on the first tenant who took possession after the rent-controlled tenant. The first tenant who took possession after the rent-controlled tenant did not challenge the rent. However, the tenant at issue in this proceeding had commenced a Fair Market Rent Appeal before the landlord had sought to evict him. The Court found that the landlord may not be able to invoke the four-year statute of limitations, although more than four years had elapsed, because the landlord had failed to comply with filing requirements. The Court held that DHCR was the proper forum to determine the rights of the tenant and stayed the proceeding, pending the outcome of the Fair Market Rent Appeal.


Case Caption:
City of New York v. Utey
Issues/Legal Principles:
In order to obtain a stay pending appeal, an occupant need not post an undertaking pursuant to Section CPLR Section 5519(a)(6) where the City intended to demolish the premises since the purpose of an undertaking is to protect property from damage or waste.
Keywords:
stay pending appeal br>
Court:
Civil Court, Kings County
Judge:
Judge Eva Alterman
Date:
June 28, 2000
Citation:
NYLJ, page 33, col. 3
Referred Statutes:
CPLR Section 5519(a)(6)
Summary:
In a squatter proceeding, the Court had granted the City of New York a judgment of possession against occupants of a house. The occupants had sought a stay of the execution of the warrant pending appeal. The Court had denied the stay pursuant to CPLR Section 5519(c) without prejudice to a stay pursuant to CPLR Section 5519(a)(6), which provides for a stay pending appeal in actions regarding real property upon the setting of an undertaking against waste and use and occupancy. Respondents then moved for the setting of an undertaking and use and occupancy. The Court held that there was no need to set an undertaking in this case since the City of New York intended to demolish the property and the sole purpose of the undertaking was to protect against possible damages from physical alteration or destruction of real property. The Court, however, did set use and occupancy at the rate requested by the City of New York. The Court held that use and occupancy should reflect the current rental value of the premises. It rejected the occupantsí argument that the use and occupancy should not reflect the improvements that the occupants made to the property. It also rejected the occupantsí argument that the use and occupancy should reflect the loss that the owner stands to suffer as a result of the occupantís continued presence in the premises, as opposed to the benefit that the occupant derives from its use.


Case Caption:
626 East 9 Street HDFC v. Collins
Issues/Legal Principles:
Tenant of HDFC can cure non-primary residence where lease provision allows for a cure.
Keywords:
Cure; non ≠primary residence; adverse possession
Court:
Civil Court, County of New York
Judge:
Judge Hagler
Date:
June 28, 2000
Citation:
NYLJ, page 28, col. 1
Referred Statutes:
CPLR Sections 3211 3025(b), 408
Summary:
In a non-primary residence proceeding, the Landlord, an HDFC, moved to dismiss the tenantís defenses and for summary judgment against the tenant. The tenant in his answer alleged that he had cured the alleged default of non-primary residence within the applicable time period and also alleged that the actual tenant of the premises was someone other than himself, based upon the doctrine of adverse possession. In this case, the court found that the tenantís proprietary lease allowed for a cure of non-primary residence. Thus, the Court held that the tenant in this case could cure such an alleged default and denied the motion to dismiss this defense. The Court, however, did dismiss the defense of adverse possession since it found that the occupant had had the tenantís permission to live in the apartment: one of the elements of adverse possession is that the possession must be "hostile" and without permission. The Court noted that the tenant, in the guise of a defense premised upon adverse possession, actually wanted the Court to declare the occupantís ownership rights. However, the Court held that it did not have the power to decide such a declaratory judgment action. The Court also granted the landlordís motion for discovery and denied without prejudice the tenantís motion to amend his answer because the tenant failed to include an affidavit in support of that motion.


Case Caption:
Solow Management Corp. v. Lovelac
Issues/Legal Principles:
Where landlord agrees to seek to re-let apartment, it must act in good faith in seeking a new tenant.
Keywords:
mitigation of damages
Court:
Civil Court, County of New York
Judge:
Hon. Debra Samuels
Date:
June 28, 2000
Citation:
NYLJ, page 27, col. 6
Referred Statutes:
None cited
Summary:
Landlord sued tenant in Civil Court for rent arrears. The tenant, who had moved from the residential premises, had entered into an agreement with the landlord prior to moving in which the landlord agreed to attempt to re-let the apartment on the condition that the tenant remove all of his possessions from the apartment and pay any costs in connection with the re-letting of the apartment. The landlord claimed that it could not re-let the apartment and sued the tenant for the remainder of the term under the lease. The landlord then moved for summary judgment. The Court denied the motion. It found that there was a question of fact as to whether the landlord had made a good faith effort to re-let the premises where it sought a rent increase of 22% to 44% for the apartment upon re-letting. Court also found that there was a question of fact regarding tenantís defense of laches since the landlord waited seven months to sue under the lease.


New York Law Journal,
decisions for the week of June 19-June 23, 2000 (6 cases)


Case Caption:
Stribula v. Quinn
Issues/Legal Principles:
Jury waiver clause in lease that predates the passage of nonprimary residency laws is deemed valid.
Keywords:
jury waiver clause; nonprimary residency
Court:
Civil Housing Court, New York County
Judge:
Hon. Larry Schachner
Date:
June 21, 2000
Citation:
NYLJ, page 30, col 4
Referred Statutes:
none cited
Summary:
The Court granted the landlord's motion to strike tenant's jury demand as the 1978 lease contained a jury waiver clause. Tenant argued that since the lease predated the passage of the nonprimary residency laws, he could not have waived his right to a trial by jury in this instance. The Court upheld the validity of the jury waiver clause in that the nonprimary residency proceeding directly related to the occupancy of the tenant as well as the landlord's right to recover possession of the subject apartment. Moreover, the Court held that the lease clause contemplates passage of future laws potentially affecting the tenancy.


Case Caption:
200 West 15th Street LLC v. Nunez
Issues/Legal Principles:
A tenant who raises a DHCR fair market rent appeal award as a counterclaim in a nonpayment summary proceeding is entitled to prejudgment interest and attorney's fees.
Keywords:
prejudgment interest; fair market rent appeal; attorney's fees
Court:
Civil Housing Court, New York County
Judge:
Hon. Shlomo Hagler
Date:
June 21, 2000
Citation:
NYLJ, page 30, col 5
Referred Statutes:
CPLR 5001(a); RPL 234; RSC 2522.3(a) and (d); RSC 2526.1
Summary:
This nonpayment summary proceeding involved the question of whether a tenant who raised a counterclaim for an award of overcharge resulting from a fair market rent appeal was entitled to prejudgment interest. The Court found that prejudgment interest was available pursuant to CPLR 5001(a), even though the Rent Stabilization Code 2522.3 (pertaining to fair market rent appeals) made no provision for a tenant to recover such interest. The Court cited two recent decisions from the Appellate Division, First Department, which squarely held that a tenant compelled to bring an action to enforce a fair market rent appeal order is entitled to prejudgment interest, computed from the date of the Rent Administrator's order, as well as attorney's fees under Real Property Law 234.

In this case, the Court held that once the tenant was forced to assert a counterclaim to enforce the DHCR's fair market rent appeal order, it automatically triggered the tenant's right to prejudgment interest pursuant to CPLR 5001(a) and attorney's fees pursuant to RPL 234. The tenant was granted a judgment in the sum of $8,161.72, plus interest at the legal rate of nine percent (9%) over eleven (11) years, computed from the Rent Administrator's Order dated June 7, 1989.


Case Caption:
Matter of 500 West End Avenue Owners LP v. New York State Div. of Housing and Community Renewal
Issues/Legal Principles:
Tenant may recover overcharge and treble damages from new owner where overcharges were collected by the prior owner.
Keywords:
overcharge; treble damages; predecessor-in-interest
Court:
Supreme Court, New York County
Judge:
Justice Atlas
Date:
June 21, 2000
Citation:
NYLJ, page 29, col 5
Referred Statutes:
9 NYCRR 2526; 2526.1(a)(1); 2526(f)
Summary:
Landlord brought an Article 78 proceeding in which it sought to challenge the determination of the DHCR that the landlord was responsible for treble damages awarded on an overcharge collected by the prior owner. The landlord claimed that since it did not participate in the collection of any overcharge, that it could not be considered to have acted willfully, a predicate to the assessment of treble damages. The Court disagreed. Parting ways with a decision rendered by the Supreme Court, Appellate Term, Second Department, the Court held that the new owner was fully responsible for the overcharge award and treble damages despite its non-participation in the collection of excess rent. The Court reasoned that the purchasing owner had the opportunity to review the rent records of its predecessor to determine whether overcharges were collected. Moreover, the new owner could and did protect itself against liability for such damages by inserting an indemnification clause in the sales contract, allowing the new owner to look to the prior owner for reimbursement. Finally, the Court found this result completely in harmony with the Rent Stabilization Law, inasmuch as this result prohibits the offender from avoiding liability for rent overcharges by transferring title and absconding and also provides tenants with a simplified procedure for recovering overcharges.


Case Caption:
Anosike v. Ceesar
Issues/Legal Principles:
Landlord cannot collect rent in a de facto multiple dwelling in that the certificate of occupancy does not conform with the usage of the premises.
Keywords:
certificate of occupancy; de facto multiple dwelling; use and occupancy
Court:
Civil Court, Kings County
Judge:
Hon. Baily-Schiffman
Date:
June 21, 2000
Citation:
NYLJ, page 32, col 4
Referred Statutes:
MDL 301, 302
Summary:
Defendant-Tenant failed to appear in an ejectment action. At the inquest, Plaintiff- Landlord sought both a judgment of possession as well as a monetary judgment for use and occupancy. The landlord's testimony indicated that the premises is a "de facto" multiple dwelling in that the tenants lived on the second floor of a two-family house, which currently housed three families. The certificate of occupancy only permits occupancy of two families. As a result, the Court denied the landlord's request for a money judgment holding that the law prohibits the landlord from collecting rent nor maintaining a proceeding where the multiple dwelling in question is occupied in violation of the legal requirement that there exist a proper certificate of occupancy.


Case Caption:
Village Development Associates LLC v. Walker
Issues/Legal Principles:
Tenant's failure to file New York State tax returns is not dispositive of primary residency when an ongoing, substantial, physical nexus for actual living purposes is established with the subject apartment.
Keywords:
nonprimary residence; taxes; substantial physical nexus
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Ruben Andres Martino
Date:
June 22, 2000
Citation:
NYLJ, page 28, col 6
Referred Statutes:
none cited
Summary:
The Appellate Court upheld the trial court's factual finding that the tenant established her primary residence at the subject apartment as opposed to her New Jersey condominium. At trial, tenant established her primary residence by testifying-proving the following: full-time employment is within walking distance of the subject apartment; telephone, utility and banking records were consistent with a presence at subject apartment; and credible witnesses place tenant at the subject premises on a daily basis. The lower court held that the tenants established "an ongoing, substantial, physical nexus with the controlled premises for actual living purposes." The Appellate Court held that "there is no cause to disturb the court's factual finding." The concurring opinion points out that although the tenants listed their New Jersey apartment as their primary residency in their mortgage application and on their federal income taxes for the purposes of avoiding New York State and City taxes, such failure is not determinative of the issue of primary residence where other factors which establish a physical nexus with the premises are present. The record further reflected that the driver's license lists a New Jersey address and that their automobile was registered in New Jersey.


Case Caption:
Battery Park Management Corp. v. Tabachnick
Issues/Legal Principles:
Tenant waived jurisdictional objection to usage of "John Doe" after full trial on the merits.
Keywords:
"John Doe"; jurisdiction; nonprimary residence
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Arlene Hahn
Date:
June 23, 2000
Citation:
NYLJ, page 26, col 3
Referred Statutes:
CPLR 320(b)
Summary:
In the underlying non-primary residency proceeding, the prime tenant acknowledged that the subject apartment was not his primary residence and consented to the entry of a final judgment of possession. At trial, undertenant Michael Bandler unsuccessfully asserted a succession rights claim. The trial court further held that Mr. Bandler also unlawfully sublet the apartment to his son for a two-year period and later engaged in profiteering by subletting to a third party. After trial, Mr. Bandler made a motion to dismiss the proceeding as the notice of petition and petition named him as "John" Bandler rather than by his correct name of Michael Bandler. The usage of "John" or "John Doe" is commonly employed when the full name of an occupant is unknown at the time the proceeding is commenced. The Appellate Court upheld the lower court's ruling that under the circumstances, the usage of "John" Bandler gave the undertenant sufficient notice of the underlying nonprimary residence proceeding. The Court further held that Mr. Bandler waived any jurisdictional objections by testifying at trial and presenting a full defense, while represented by counsel.


New York Law Journal,
decisions for the week of June 12-16, 2000 (3 cases)


Case Caption:
Avenue A at St. Marks Partners v. Strachnyi
Issues/Legal Principles:
Stipulation where grandson agreed to leave apartment is set aside since he did not know that he had succession rights.
Keywords:
stipulations; succession rights
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Michelle D. Schreiber
Date:
June 13, 2000
Citation:
NYLJ, page 26, col. 1
Referred Statutes:
9 NYCRR 2204.6(d)
Summary:
A Russian emigre not fluent in English or conversant with landlord-tenant law appeared pro se in Housing Court and signed a stipulation agreeing to leave the apartment within three months. He then got an attorney and promptly went back to court to get the stipulation vacated. His meritorious claim was that he had lived with the rent controlled tenant, his grandfather, for more than two years prior to his death. The lower court vacated the stipulation and allowed him to succeed to his grandfather's tenancy. The Appellate Term affirmed, holding that the emigre "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 works to his prejudice."
Notes:
The grandson here must have presented very formidable evidence in support of his claim, because stipulations are not lightly set aside. The written decision does not indicate what evidence the tenant submitted. It was, however, a unanimous decision which indicates that the grandson's evidence was probably very strong. Tenants should not, absent strong evidence, get the idea that it is easy to vacate a stipulation: in fact it is usually quite difficult.


Case Caption:
Brussels Leasing LP v. Young
Issues/Legal Principles:
Wheelbound tenant who vacated apartment for lack of ingress/egress ramp in building is entitled to have her warranty of ability and constructive eviction claims on this issue heard in Housing Court and not exclusively at the Human Rights Commission.
Keywords:
SCRIE, laches, warranty of habitability, constructive eviction, punitive damages, abatements
Court:
Civil Housing Court, Queens County
Judge:
Hon. Bruce Kramer
Date:
June 14, 2000
Citation:
NYLJ, page 34, col. 1
Referred Statutes:
NYC Administrative Code 8-107(5)(a)(2) & 8-109, 26-509; RPAPL 743; RPL 235-b; 9 NYCRR 2202.20
Summary:
Tenant is an 80 year old rent stabilized tenant receiving SCRIE benefits (senior citizen rent exemptions for rent increases which are paid by the city). She has been confined to a wheelchair for the past three years. In April, 1999, she vacated the apartment and relocated to an assisted living facility because she claimed she could not get in and out of the building due to the absence of a ramp or other viable means of ingress and egress for her wheelchair. While away from her apartment, the tenant's SCRIE benefits lapsed. (SCRIE benefits must be renewed (recertified) every two years with the city. The tenant returned home in October, 1999 around the time that the landlord built a temporary ramp. The landlord is in the process of building a permanent ramp.

The landlord brought a nonpayment proceeding against the tenant and the tenant defended her nonpayment of the rent on grounds that she was constructively evicted by not having wheelchair access to the apartment which led to her forced relocation. The landlord moved to dismiss the tenant's defense that she was constructively evicted for the lack of access, arguing that the Human Rights Commission is the proper forum for hearing this issue and that it was created to, among other things, ensure compliance with New York City laws as they pertain to housing for disabled persons. The Court rejected this argument, finding that Housing Court has jurisdiction to entertain any legal or equitable defense or counterclaim interposed pursuant to RPAPL 743. The tenant's claim arises out of the Administrative Code of the City of New York which specifically created a private cause of action, and hence is one that can be heard in a court of law such as Housing Court. Thus, the Court allowed the tenant's constructive eviction claim to stand. The court found that warranty of habitability claims are valid and inextricable with the landlord's right to collect rent, and hence both must be heard in the same forum.

Tenant also opposes landlord's demand for alleged rent resulting from when her SCRIE benefits lapsed, arguing that these monies must be recovered in a plenary action. Landlord, however, claimed that the tenant allowed her SCRIE benefits to lapse after she relocated to an assisted living facility without notifying the landlord who was then back billed by the City for benefits issued during the termination period. In other words, landlord would not have continued to accept the SCRIE abatements had it known that the tenant was no longer getting SCRIE benefits. Since the landlord had to re-pay the City, the landlord is demanding the refund from the tenant via this nonpayment proceeding. The Court noted that in this case, unlike other cases cited to by the tenant, the landlord is seeking to recover current rent from the actual SCRIE recipient due to her own failure to recertify. As such the landlord should not be barred from seeking these monies (as "rent") in this nonpayment proceeding.

The landlord asked the court to dismiss tenant's laches defense, i.e., that the landlord waited too long to collect the rent and therefore the rent now due is "stale." The court could not determine this issue on a motion and reserved it for trial. The court struck the tenant's demand for $17,000 in compensatory damages, $10,000 in damages for emotion distress and punitive damages as not applicable in a Housing Court proceeding.


Case Caption:
Parkchester Preservation Co. v. Molina
Issues/Legal Principles:
Since Housing Court lacks authority to compel landlord to replace entire plumbing system, tenants cannot obtain a contempt order for breach of warranty of habitability (ongoing leaks) on this issue.
Keywords:
breach of warranty of habitability; leaks; abatements; contempt
Court:
Civil Housing Court, Bronx County
Judge:
Hon. Heymann
Date:
June 14, 2000
Citation:
NYLJ, page 31, col. 3
Referred Statutes:
none cited
Summary:
During a four month period the court conducted 10 trials out of 27 nonpayment proceeding with an HP proceeding. The issue in the HP portion of the trials was whether the court had the statutory authority to order the landlord to replace the entire plumbing system in each of the buildings where the tenants lived. In a prior decision, the court ruled that it was constrained by statute to limit its relief to the correction of violations as they arise, as opposed to ordering the wholesale replacement of the entire plumbing system for each of the buildings where the tenants reside. There were no outstanding violations regarding the plumbing at the time the HP action was dismissed. Thereupon the landlord agreed to provide each litigating tenant a 33% abatement for breach of the warranty of habitability for roughly one year. The parties also agreed that landlord would make other necessary repairs. Thereafter the tenants sought to restore the cases to the calendar because the landlord was not making the repairs, and they sought additional abatements because of same. In that vein, another judge directed the parties to proceed to trial on the issue of the additional abatements. The other judge also held that if the plumbing system continued to break down, the tenants (in his opinion) were entitled to additional abatements. In that regard, yet another judge conducted a consolidated trial involving 26 nonpayment proceedings, and thereupon found that there were no common conditions throughout any of the apartments to warrant an overall award of damages for a particular condition. The second judge determined that the landlord had indeed breached the warranty of habitability.

The tenants now return to court (to the original trial judge) to revisit the judge's resolution of their cases by seeking an order of contempt against the landlord for its failure to make repairs under the initial February, 1999 settlement stipulation, and damages for the breach of that stipulation. The court ruled that since it could not order the replumbing systemwide, it was anticipated that future plumbing problems would arise and the tenants would continually seek periodic abatements as those problems occur . . . which was the basis of the second trial wherein abatements were awarded. Thus, the court refused to hold the landlord in contempt for issues involving the plumbing. The court, however, refused to also award the landlord attorneys fees because in the court's opinion the landlord came to the court with unclean hands and noted that the second trial judge ruled that the landlord did not "effectuate proper repairs."


New York Law Journal,
decisions for the week June 5-9, 2000 (5 cases)


Case Caption:
In re Kay Hakim v. DHCR
Issues/Legal Principles:
Reduction in services does not exist where landlord eliminates storage in basement if such space is "de minimus" in nature, unless the tenantís lease has a provision guaranteeing storage or tenant had used formal storage space in boxes or bins.
Keywords:
reduction in services, DHCR
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Richard Braun
Date:
June 5, 2000
Citation:
NYLJ, page 22, col 2
Referred Statutes:
none cited
Summary:
DHCR had found reduction in services due to ownerís elimination of basement storage space which the tenants had used. Supreme Court agreed. The Appellate Division reversed finding that DHCRís "inter-office" memorandum that stated that "de-minimus" (small) reduction in services should not result in a reduction of services finding. This type of elimination is listed in the DHCR memorandum as "deminimus". Accordingly, the Appellate Division reversed the lower Court and remanded the case to the DHCR for a new decision based upon the memorandum.


Case Caption:
Gloveman Realty Corp. v. Jefferys
Issues/Legal Principles:
Where the tenants convert a former commercial or manufacturing building into a residential building with six or more units, the units are subject to rent stabilization.
Keywords:
rent stabilization; lofts
Court:
Supreme Court, Kings Cty
Judge:
Hon. Judge Clemente
Date:
June 7, 2000
Citation:
NYLJ, page 29, col 5
Referred Statutes:
MDL Article 7C, (The Loft Law); MDL Section 286; Emergency Tenant Protection Act Section, Section 5
Summary:
The landlord rented out a former manufacturing building to three tenants with long term leases. The tenants then subdivided the building and converted the building, at their cost, into apartments and sub-let them out to "sub-tenants". There were twelve units in the building. The landlord then sued, saying that the units were being used residentially in violation of the lease and that it had received violations from Environmental Control Board and Department of Buildings. The Court held that if the landlord knew and acquiesced to the conversion (which was done by the tenants) and that since more than six units were created, that the building would be subject to the Emergency Tenant Protection Act and Rent Stabilization. In this case there was a factual matter as to whether the landlord knew and acquiesced, so the court set the case down for trial.


Case Caption:
NYCHA v. McLinton
Issues/Legal Principles:
Housing Authority tenancy, terminated for failure to submit financial data, is not curable. RPAPL Section 753(4) which allows a tenant to cure for lease violations does not apply to a Housing Authority tenant who has exhausted his/her administrative appeals.
Keywords:
post-judgment ten-day cure
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Howard Sherman
Date:
June 7, 2000
Citation:
NYLJ, page 26, col 1
Referred Statutes:
RPAPL Section 753(4)
Summary:
A NYCHA tenant failed to submit the required financial information and lost a hearing at the administrative level. Then NYCHA commenced an eviction action against the tenant in Housing Court. The Housing Court judge found that since she had provided all the required financial information after losing the administrative hearing, that she had "cured" and that RPAPL 753(4) allows a post-judgment cure. The Appellate Term reversed and found that the RPAPL cure provision does not apply where a tenancy is terminated by the Housing Authority.
Notes:
There is a strong dissent which argues that the RPAPL 753 (4) should be liberally applied and include housing authority tenants.


Case Caption:
Pomeroy Co. v. Thompson
Issues/Legal Principles:
Waiver is established when landlord accepts rent directly from the tenant for eight years
Keywords:
waiver
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Maria Milin
Date:
February 7, 2000
Citation:
NYLJ, page 28, col 3
Referred Statutes:
none cited
Summary:
Respondent moved into apartment with tenant of record in 1955. In 1964 tenant moved out and respondent paid rent in tenants name until 1991, at which time she paid rent in her own name. In 1996 the landlord actually settled an HP action with the respondent. In 1998, owner commenced holdover proceeding and the Court found that the landlord had waived its right to object to her tenancy because at least since 1991 the landlord had been on notice of her occupancy of the apartment and payment of rent in her name. One of the justices dissents on grounds that the landlord had asked the respondent to produce proof of her claimed marriage to the tenant which was never produced. In the interim the landlord accepted her rent "without prejudice." To the dissent, the landlordís were justified and never created a landlord tenant relationship, but the majority held otherwise.


Case Caption:
Holiday v. Franco
Issues/Legal Principles:
In a NYCHA building the misdeeds of an adult emancipated son, who lives at a different address, should not be imputed to the parent.
Keywords:
NYCHA
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Kapnick
Date:
February 8, 2000
Citation:
NYLJ, page 25, col 3
Referred Statutes:
none cited
Summary:
The son of a tenant of record broke down the door to his motherís apartment and demanded money to buy drugs. The tenant, called the police who came to the apartment and arrested the son. Shortly afterward, NYCHA brought a termination proceeding against the mother who signed an agreement barring the son from her home. Two years later, while the tenant was at work, one of her other children allowed the son to come in to the apartment. NYCHA inspected and found the son in the apartment without the knowledge or permission of the tenant. Since the tenant had signed an agreement permanently barring her son from her apartment, the hearing officer found against the tenant and ordered her eviction. The tenant appealed and the Court reversed finding that charges brought against the tenant for actions of her emancipated children who do not live with her are "manifestly unfair". Since petitioner was guilty of no misconduct, probation was not justified. Accordingly, the tenant should not be evicted.


New York Law Journal,
decisions for the week of May 29-June 2, 2000 (3 cases)


Case Caption:
Matter of G. Polise Realty Corp. v. Roldan
Issues/Legal Principles:
Waiver of pending overcharge claim is deemed null and void absent DHCR or Court approval.
Keywords:
treble damages; rent overcharge; waiver; withdrawal of claim
Court:
Supreme Court, New York County
Judge:
Justice LaTorella
Date:
May 31, 2000
Citation:
NYLJ, page 30, col 1
Referred Statutes:
RSC 2529.6, 2520.13; NYC Admin. Code 26516(a)
Summary:
In this Article 78 proceeding, the landlord sought an appeal of DHCR's finding of rent overcharge and imposition of treble damages. The landlord claimed that the tenant withdrew its overcharge complaint. The Supreme Court determined that both the finding of rent overcharge and imposition of treble damages by the DHCR was proper. The Court held that although the landlord alleged that the tenant withdrew its objection to the rent in the proceeding below, there was no evidence introduced to support this allegation. The Court further held that " . . . any such withdrawal of a pending overcharge complaint by the tenant would be void absent approval of respondent DHCR or a court of competent jurisdiction." Finally, the Court held that upon a finding of rent overcharge, DHCR properly imposed treble damages since the landlord failed to establish by a preponderance of the evidence that such overcharges were not willful.


Case Caption:
Rivergate LP v. Nonaka
Issues/Legal Principles:
Landlord's request for a waiver of nonmilitary investigation in nonpayment case is denied.
Keywords:
nonmilitary service affidavit; nonmilitary investigation; waiver of requirement
Court:
Civil Housing Court, New York County
Judge:
Hon. Howard Malatzky
Date:
May 31, 2000
Citation:
NYLJ, page 27, col 3
Referred Statutes:
Soldiers' and Sailors' Civil Relief Act of 1940, as amended, 50 U.S.C. App. 520: Mi.L. 300-328 as enacted by L.1951 ch. 728
Summary:
After the tenant's failure to answer in a residential nonpayment proceeding, the landlord sought to obtain a default judgment. However, prior to obtaining this relief, the landlord must demonstrate that an investigation was conducted to determine whether the tenant is either in the military or a dependant of a person in the service. Generally this is accomplished by an attorney affidavit that such an investigation was conducted. In this case, the landlord failed to conduct this investigation and sought the court's permission to dispense with the requirement to conduct a nonmilitary investigation and/or file the nonmilitary affidavit. The landlord claimed that "it cannot investigate the issue of respondent's military status because the building is large and none of its employees remember the respondent." Moreover, the landlord alleges that since its files reflect that respondent is not a United States Citizen (in a "Certificate of Foreign Status), he cannot possibly be in the military. In support of this application, the landlord argued that the law no longer requires a formal filing of the affidavit. The Court held that while the filing of a nonmilitary affidavit may not be required, the requirement to submit proof of an investigation may not be waived. The Court noted that the Certificate of Foreign Status was inadmissible as such proof since it predated the petition and the default by respondent. Accordingly, the circumstances could have changed. The Court further noted that the landlord could have easily investigated the tenant's military status by writing a letter of inquiry to each branch of the service for a fee of approximately $3.50.


Case Caption:
HKAL 34th Street Limited Partnership v. Fran Taylor Inc.
Issues/Legal Principles:
Trial needed to determine if landlord acquiesced in tenant's installation of a door to connect two apartments and make it one residential unit.
Keywords:
nonprimary residency; renewal lease; corporate tenant
Court:
Civil Housing Court, New York County
Judge:
Hon. Douglas Hoffman
Date:
May 31, 2000
Citation:
NYLJ, page 27, col 1
Referred Statutes:
CPLR 3211(a)(1), (a)(2), (a)(7); CPLR 3211(c)
Summary:
Landlord brought a holdover proceeding seeking to recover possession of apartment 33-C upon the grounds that the only tenant of record was a corporation named Fran Taylor, Inc.. The tenant, Fran Taylor defended, claiming that her tenancy in the adjoining apartment 33-D and the combination of the two apartments (which was accomplished by placing a door within the common wall separating the two premises), rendered both apartments a single unit as a matter of law. The adjoining apartment, 33-D also listed Fran Taylor, Inc. as the corporate tenant but designated Fran Taylor and/or Stanley Rapp as the sole occupants. The subject apartment (33-C) was leased to Fran Taylor, Inc. in October, 1978 and the adjoining apartment (33-D) was leased to Fran Taylor, Inc. in April, 1981.

The landlord claimed that since the corporate lease for apartment 33-C did not designate an individual as an occupant, the landlord was not required to issue a renewal lease as a matter of law. The landlord pointed out that it never gave permission for the tenant to erect a door, joining the two apartments. Moreover, the landlord registered both apartments as separate units with DHCR and renewed leases to each apartment separately. Moreover, the tenants paid rent for each apartment separately and each apartment had a separate electric meter. The tenant claimed that the landlord's acquiescence to the doorway between the apartments operated as a waiver and estoppel to the landlord's claims that both units were separate. Both parties moved for judgment as a matter of law.

The Court denied both parties' motions, finding that a trial would be necessary to determine whether the landlord acquiesced in or waived any objection to the combination of the two apartments and whether the two apartments should be considered a single residential unit based upon the intentions of the tenants and the use the tenants made of the two apartments. The Court did grant the landlord's motion for a money judgment, representing use and occupancy which the tenant's agreed to pay without prejudice but failed to do so. However, the Court denied the landlord's motion for a judgment of possession due to the nonpayment of use and occupancy, and instead ordered an immediate trial.