Housing Court Decisions May 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 May 22-26, 2000 (4 cases)


Case Caption:
316 E. 77th St. Inc. v. Deptula
Issues/Legal Principles:
Petition based on nonprimary residency must be dismissed where tenant is served only four days before the initial court date, and not five days, the minimum required by law.
Keywords:
nonprimary residency; personal jurisdiction
Court:
Civil Housing Court, New York County
Judge:
Hon. Michelle Schreiber
Date:
May 24, 2000
Citation:
NYLJ, page 27, col. 4
Referred Statutes:
New York City Civil Court Act 411; CPLR 2221; RPAPL 733, 735; General Construction Law, 20
Summary:
Landlord commenced an action against the tenant on grounds of nonprimary residency. Tenant's prior motion to dismiss was denied, but tenant now seeks to reargue that portion of the decision which denied tenant's prior motion to dismiss based on lack of personal jurisdiction. Tenant had argued that landlord's process server failed to make sufficient attempts at personal service before resorting to "nail and mail" (i.e., posting the legal papers on the apartment door). The court rejected the tenant's argument based on the factual sufficiency of the process server's affidavit of service. But the tenant had also argued that the process server had served the petition too late. The papers were posted on the apartment door and the required mailing made on November 20, 1998. However, the petition's initial return date of the case (i.e., the date the tenant was to appear in court) was November 24, 1998. RPAPL 733 requires a minimum of 5 days service before the first return date, and in this case there was only 4 days. The landlord argued that the court may issue an order permitting a late filing. The court, however, pointed out the error in landlord's argument. RPAPL 735 requires the papers to be filed with the court within 3 days of service, and this type of late filing may be amended by court order. In this case, however, the landlord has a problem, not with late filing to the court, but rather with late service of the papers on the tenant. This is not an amendable defect and therefore the court dismissed the petition.
Notes:
Much was at stake in getting this petition dismissed. This is because the landlord cannot recommence the nonprimary residency proceeding for another two years because first the landlord must tender a renewal lease based on the dismissal of this proceeding. Once a renewal lease is tendered for two years the tenant can resume occupancy (if the nonprimary residence allegation is true) and recommence primary residence in the apartment, so that in two years the landlord would not have grounds to refuse a renewal lease.


Case Caption:
2500 Broadway, LLC v. Kaufman
Issues/Legal Principles:
Family member seeking succession rights who lived one mile from apartment for two years before her grandmother's death may claim academic exception from primary residency requirement if her temporary relocation had some element of necessity, geographic or otherwise.
Keywords:
succession rights; nonprimary residence
Court:
Civil Housing Court, New York County
Judge:
Hon. Douglas Hoffman
Date:
May 24, 2000
Citation:
NYLJ, page 27, col. 5
Referred Statutes:
9 NYCRR 2204.6(d)(1)(b); RSC 2523.5(b)(2)(vi); 24 CFR 246ff
Summary:
Landlord moved to evict the prior tenant's granddaughter, Lisa Kaufman, but she claimed succession rights to her grandmother's apartment. She moved into her grandmother's apartment in the fall of 1991 after graduating from college and getting a job in New York City. >From 1994 to May, 1999, Kaufman was enrolled at Columbia University and lived in student housing. She then resumed occupancy with her grandmother, Mildred Mitchell Ross. The tenant died on July 15, 1997. On August 29, 1997, the landlord served Kaufman with a notice to quit and vacate the apartment. The court noted three factual issues in dispute: (1) whether Kaufman is actually the granddaughter of Ross; (2) whether Kaufman occupied the apartment as her primary residence for at least 2 years before the tenant's death, and (3) whether Kaufman was enrolled as a full-time student during the five-year period she was enrolled at Columbia.

Kaufman presented birth certificates indicating her lineage to Ross but the court felt this issue should be left for trial. Kaufman concedes that she was not present in the apartment for the immediate two years prior to her grandmother's death, but argues that her academic absence is acceptable under the statute. This is, however, only if her academic absence is based upon full-time enrollment. Kaufman presented leases with the University and her transcripts, but the landlord suggests that five years of study toward a masters degree is excessive and represents pursuit of the degree at a leisurely pace rather than full time. The court ruled that the evidence is inconclusive and requires a trial with testimony on this issue.

An additional legal question presented the court with an issue of first impression. Even if Kaufman was a primary resident of her grandmother's apartment and a full-time student, the apartment is about one mile from Columbia. The landlord argues that the full-time student exception applies only to full-time students who are forced to live away from the apartment as a result of geographic necessity, in other words, the succession rights nonprimary residency exception is applicable to students enrolled in out-of-town or out-of-state institutions. The tenant argues that her course work (filmmaking) entailed long and odd hours and that this would exact stress on her grandmother who would worry about the coming and going of irregular hours of her granddaughter. The court determined that, as a matter of law, a relocation for the purpose of attending school on a full-time basis may be within the temporary relocation exception created by the statute provided that some element of necessity, either geographic or otherwise exists. In reaching its decision, the court referred to another case involving a woman who was out of the apartment because she had marital problems with her husband, and that court noted that the statute allows for an exemption to the primary residency of the remaining family member's succession rights claim for "other reasonable grounds."


Case Caption:
233 Chelsea Associates LLC v. Dobler
Issues/Legal Principles:
Apartments previously subject to HUD mortgage re-enter the rent stabilization system upon termination of federal leases.
Keywords:
stabilization status;
Court:
Civil Housing Court, New York County
Judge:
Hon. Maria Milin
Date:
May 24, 2000
Citation:
NYLJ, page 28, col. 1
Referred Statutes:
New York City Civil Court Act 110(a)(9)(b); RPAPL 741(4); CPLR 3211(7); 22 NYCRR 1301.1; Emergency Tenant Protection Act of 1974 5(a); RSC 2520.11(c); New York City Administrative Code 26-507; National Housing Act 221(d)(3)
Summary:
Landlord brought 8 holdover petitions against 8 different tenants and the court consolidated all the cases. The landlord claimed that the apartments were exempt from any and all New York State and/or City rent regulation because the units were subject to federal HUD leases and the Hud Leases thereafter terminated, and that the federal status preempted any state or city rent regulation. The 15-unit building was substantially renovated by a prior owner along with the building next door in 1967 pursuant to funding obtained by a federal mortgage loan from HUD. In May, 1998, the HUD mortgage was satisfied. In June, 1999, the DHCR ruled in a matter involving the neighboring building that upon payment of the HUD mortgage, the New York City Rent and Rehabilitation Administration, as well as HUD no longer played a role in the supervision of the building, and that the building thereupon became subject to the Rent Stabilization Code and Law upon the termination of regulation by the federal housing agency and the Rent Law.

The tenants point to the Emergency Tenant Protection Act of 1974 and Section 2520(11)(c) whose language provides that buildings completed or substantially rehabilitated after January 1, 1974, where they were previously regulated by other federal laws, shall become subject to the EPTA or the Code upon the termination of such regulations. The tenants argue that these units should reenter coverage under Rent Stabilization, and cite an array of laws and examples, including DHCR advisory opinions. The landlord argued that a motivation to enter into the HUD program was the right to terminate the tenants' leases once the HUD program ended. The court rejected the landlord's position that units under federal regulations do not enter the state or city rent regulation system when the federal status terminates. The court dismissed all the petitions and set the matter down for a hearing on attorney's fees awarded to the tenants.


Case Caption:
Walker v. Hopkins
Issues/Legal Principles:
Tenant's delay in payment of arrears based on late arrival of Jiggetts checks resulted in stay and eventual vacatur of warrant of eviction.
Keywords:
warrant; stays; Jiggetts; stipulations
Court:
Civil Housing Court, Kings County
Judge:
Hon. Marc Finkelstein
Date:
May 24, 2000
Citation:
NYLJ, page 30, column 4
Referred Statutes:
RPAPL 749(3)
Summary:
Rent stabilized tenant had rent arrears due to increases in lease renewals rather than unpaid monthly rent. Tenant was initially approved for Jiggetts relief (government rent assistance) at a monthly rent of $460.69, increased at various intervals until it reached $535.07 two years later. During the nonpayment proceeding, $2,000 of the arrears was attributable to the various lease increases. Her attorney had entered into a stipulation agreeing to pay the $2,000 by a certain date, and her attorney applied to Jiggetts to cover these increases. The checks were approved and the attorney immediately notified the landlord's attorney that there would be a slight delay in these checks, and further that no default notice had been received (that the $2,000 payment was not timely paid by October 12th, the due date). Only upon receipt of a default notice could the landlord then apply for a warrant. The checks arrived on December 9th, but the tenant already got a marshal's notice by then, so her attorney did an order to show cause to stay an eviction. The landlord refused to accept the $2,000 checks.

The tenant's attorney offered four reasons for why the court should stay the execution of the warrant and not allow the marshal to evict. (1) the delay in payment was de minimus; (2) the delay was not the fault of the tenant, (3) the landlord failed to make the 22 repairs, and (4) the marshal's eviction notice came before the 8 day notice of default from the landlord's attorney was received. The landlord's position is that it cannot be forced to accept late payments after the warrant issues, no matter how minimal the delay and no matter the facts and circumstances. The court, however, cited to RPAPL 749(3) which addresses the issuance of a warrant which terminates the landlord tenant relationship and when the warrant may be vacated or stayed. The court cited to case law for the principle that a determination is made on a case- by-case basis and the tenant must show that any default was inadvertent, minimal and promptly cured. In this case, the court held that the tenant showed good cause to have the warrant stayed because she attempted to promptly pay as soon the Jiggetts money came. The court also noted that the landlord had unclean hands in failing to make the 22 repairs and its default was within its control, unlike the tenant's default. The court also noted that the household includes a newborn baby and a disabled person, all of whom would be rendered homeless if the warrant were not vacated. Further, there is a lack of prejudice for the landlord since the rent is getting paid. The court stayed the execution of the warrant to evict to May so that the tenant could timely tender the $2,000 and upon her tender the warrant would then be deemed vacated.


New York Law Journal,
decisions for the week of May 15-May 19, 2000 (6 cases)


Case Caption:
Michelle Hagan v. Ruben Franco
Issues/Legal Principles:
NYCHAís termination of tenancy was arbitrary and capricious where NYCHA failed to establish that tenant had violated probationary stipulation.
Keywords:
NYCHA; permanent exclusion
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Leland DeGrasse
Date:
May 15, 2000
Citation:
NYLJ, page 23, col. 4
Referred Statutes:
none
Timothy Best v. Samjo Realty Corp.
Issues/Legal Principles:
Landlord can evict an occupant of an apartment without notice or any legal process where occupant occupies the apartment as an incident of at-will employment and landlord terminates employment
Summary:
Tenant had entered into a probationary stipulation , in which she had agreed to exclude her son, Harry. NYCHA sought to terminate her tenancy on the ground that she had violated the stipulation. At the hearing, NYCHA investigator testified that he had gone to the tenantís apartment and that a man, who identified himself as "Harry," had answered the door. The tenant testified that she had two other sons living with her and that Harry did not live with her. Based upon this evidence, NYCHA terminated the tenancy. The lower court annulled the determination and the Appellate Division affirmed the lower court. The Appellate Division found that determination was arbitrary and capricious since NYCHA did not introduce any evidence that Harry actually resided in the apartment. In light of tenantís eighteen-year tenancy, Court found that determination of hearing officer was arbitrary and capricious, contrary to law and that the penalty imposed constitutes an abuse of discretion.


Case Caption:
Timothy Best v. Samjo Realty Corp.
Issues/Legal Principles:
Landlord can evict an occupant of an apartment without notice or any legal process where occupant occupies the apartment as an incident of at-will employment and landlord terminates employment
Keywords:
superintendent; employee
Court:
Appellate Division, First Department
Judge:
Lower Court, Hon. Louise Gruner-Gans
Date:
May 18, 2000
Citation:
NYLJ, page 28, col 5
Referred Statutes:
R.P.A.P.L. Section 713(11)
Summary:
Lower Court dismissed action for wrongful eviction for failure to state cause of action. Court affirmed lower court on review. Occupant was an employee of landlord and occupied apartment as an incident of his employment. Landlord evicted him without notice or commencing legal process for possession of the premises. Court held that, pursuant to RPAPL Section 713(11), landlord could evict occupant without notice and can even evict without any legal process whatsoever so long as the landlord evicted the occupant without violence.
Notes:
This is an alarming decision, the concept that a landlord can evict someone, even a superintendent, without legal process where that person has been in occupancy of the apartment for over thirty (30) days. The caveat that so long as the eviction is performed without violence does not make this decision any more palatable because for most occupants, to return to your home and find you are locked out is a terrifying experience which most people would perceive in terms of equivalent to a violent act. >


Case Caption:
Measom v. Greenwich and Perry Street Housing Corp.
Issues/Legal Principles:
Cellar apartment cannot be occupied legally without written permission from Department of Buildings, despite Certificate of Occupancy.
Keywords:
cellar; certificate of occupancy
Court:
Appellate Division, First Department
Judge:
Lower Court: Hon. Ira Gammerman
Date:
May 19, 2000
Citation:
NYLJ, page 25, col. 2
Referred Statutes:
M.D.L. Sections 300(6), 34(6), 216(5); New York City Administrative Code Section 27-2086(a)
Summary:
Owner of shares allocated to cellar apartment in cooperatively owned building sued cooperative corporation on the ground of breach of the proprietary lease, based on the illegal status of the cellar apartment. Relying on the testimony of an expert, the lower court held that the cellar could be legally used for residential purposes. The Appellate Division reversed. The Court held that no cellar could be legally occupied without written permission from the Department of Building, pursuant to M.D.L. Section 300(6). In order to obtain such permission, the apartment must comply with the conditions set forth in M.D.L. Sections 34(5) and 216(5), most of which conditions concern light and air. Court found that there was nothing in the record to reflect that the apartment met the conditions or that it had received such written permission. The Court rejected the cooperative corporationís argument that the Multiple Dwelling Law grandfathered in preexisting cellar apartments. Rather, it held that, as of July 1, 1967, no cellar could be occupied without written permission. In addition, the Court rejected the cooperative corporationís argument that the apartment could be legally occupied because the certificate of occupancy allowed residential usage in the cellar. The Court held that the revocation of a temporary certificate of occupancy, which allowed such residential usage prior to 1958, was effective to prohibit occupancy, even if such occupancy were permitted under the original certificate of occupancy.


Case Caption:
Lafayette-Morrison v. Mabry
Issues/Legal Principles:
Summary judgment against daughter of tenant, claiming succession rights, is not appropriate where there is a question of fact as to whether tenant and her daughter lived together for two year period of time and where there was an issue as to whether the Court should apply one-year time period because daughter has disabled child.
Keywords:
Mitchell-Lama; succession rights
Court:
Civil Court, Housing Part, Bronx County
Judge:
Judge Heymann
Date:
May 17, 2000
Citation:
NYLJ, page 31, col. 6
Referred Statutes:
CPLR Section 3212; 9 NYCRR 1727-8.2(4); 1727-8.3(a)
Summary:
Landlord commenced illegal sublet proceeding against tenant of Mitchell-Lama apartment. The daughter of the tenant interposed an answer, claiming succession rights. After discovery, the landlord moved for summary judgment, alleging that the daughterís deposition testimony and an airplane ticket, reflecting the tenantís travels, established that the tenant and the daughter did not live together for two years. The Court denied the motion for summary judgment, finding that there was a question of fact as to whether the daughter and tenant had lived together for two years. In addition, the Court found that the one-year period of co-occupancy might be applicable since the daughter has a disabled child. Although the daughter had not raised that defense in her answer, the Court held that she could still raise this issue. The Court did dismiss the daughterís defense of lack of personal jurisdiction since she engaged in discovery and sought consent adjournments. In addition, it dismissed her defense of waiver because the lease contained a no-waiver clause.


Case Caption:
Bank of America, FSB v. Cook
Issues/Legal Principles:
Court has power to grant occupants a stay of the warrant of eviction for four-month period where landlordís conduct allowed con artist, who had no actual interest in the property, to induce occupants to take possession of premises under the guise of giving them a lease for the premises.
Keywords:
stay of warrant
Court:
District Court, Nassau County
Judge:
Judge Gartner
Date:
May 17, 2000
Citation:
NYLJ, page 34, col 6
Referred Statutes:
CPLR 2201; RPAPL Section 751(4)
Summary:
Bank obtained a judgment of foreclosure and sale of property. After bank had become owner of property, an entity that had absolutely no interest in the property or relationship to the bank entered into fraudulent leases with two different people, holding itself out as the owner of the property to the people. These people took possession of two units and had their Section 8 vouchers approved for these units. When the bank learned that the two people were in possession of the premises, it commenced an eviction proceeding. The court held that the two occupants had no legal right to possession since the entity that had allegedly entered into a lease agreement with them was without the right to do so. However, it stayed the warrant for their eviction for a four-month period, finding that the bankís conduct allowed this entity to enter into the fraudulent leases since the bank took no steps to secure its property.


Case Caption:
Sorensen v. Ramon
Issues/Legal Principles:
Where Environmental Control Board issued order finding that tenantís occupancy of basement violates the Housing Maintenance Code, landlord can bring action in Civil Court to evict tenant pursuant to the provision of the Civil Court Act that gives the court jurisdiction of actions for the removal of housing violations.
Keywords:
Civil Court; jurisdiction; basement br>
Court:
Civil Court, Richmond County
Judge:
Judge Staniere
Date:
May 17, 2000
Citation:
NYLJ, page 34, col 1
Referred Statutes:
Civil Court Act, Section 203(n); Civil Court Action Section 110(c)
Summary:
Landlord leased basement to a tenant, although such occupancy violated the Certificate of Occupancy. Department of Buildings issued a violation, and, pursuant to a stipulation, the Environmental Control Board issued an order finding that the tenantís occupancy violated the Multiple Dwelling Laws and imposed a fine on the landlord. ECB ordered that the use be discontinued or that the Certificate of Occupancy be amended. The landlord then commenced an action (not a summary proceeding) in Civil Court to evict the tenant on the ground that the tenantís occupancy constituted a housing violation. The court held that landlord had stated a cause of action and found that it had jurisdiction over the case pursuant to those provisions of the Civil Court Act that gives the Court the power to adjudicate actions for the removal of housing violations, Sections 203(n) and 110 (c). The Court, in dictum, found that it could summarily evict the tenant unless the tenant could establish that the Certificate of Occupancy could be amended to allow residential usage of the basement, but noted that the landlord could not collect rent or use and occupancy where it chose to commence such an action. The Court gave the tenant time to answer and to conduct discovery. It also stayed the imposition of all fines on the landlord.


Notes:
Although the Court in this case asserts that its intent is to protect tenants and other people from the dangers of illegal dwelling units, the absurd logic of the Court would have the opposite impact. The Court effectively eliminates any sanction that might deter the landlord from leasing illegal housing units. The Court stretches the bounds of the statutory language to grant the landlord an easy and inexpensive method of evicting the tenant if the City learns of the illegal usage but also stops the City from imposing any penalty for such illegal usage. The net result is that the tenant, who engaged in no wrongdoing, suffers, and the landlord, who apparently intentionally broke the law, escapes any punishment.


New York Law Journal,
decisions for the week of May 8-12, 2000 (5 cases)


Case Caption:
Parkchester Preservation Co. v Rowe
Issues/Legal Principles:
Tenant in apartment for twenty years would not lose tenancy where warrant issued, but tenant came up with all the rent and the landlord's legal fees.
Keywords:
warrants; good cause
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Jean Schneider
Date:
May 11, 2000
Citation:
NYLJ, page 30, col. 3
Referred Statutes:
RPAPL 747-a
Summary:
The lower court vacated the warrant and allowed the tenant to pay the rent, plus landlord's legal fees. The Appellate Term upheld the decision, finding that good cause existed to vacate the warrant because there were no prior delinquencies and the tenant had lived in the apartment for 20 years, and tenant had resumed employment.


Case Caption:
ACB Realty Corp. v. Gaines
Issues/Legal Principles:
Tenant who walks out of court at inception of trial is not permitted to vacate the nonpayment judgment.
Keywords:
judgment; adjournment; violations
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Laurie Lau
Date:
May 9, 2000
Citation:
NYLJ, page 26, col. 3
Referred Statutes:
CPLR 3215(a); Social Services Law 143-b(5)
Summary:
The lower court refused to allow tenant a continuance to obtain counsel, and the Appellate Term upheld, noting that substantial arrears had accumulated and the tenant had previously sought a postponement to obtain counsel. Apparently, the tenant walked out of the court room ("deliberately absenting herself from the trial," is how the Appellate Term phrased it) and such willful default affords no basis to vacate the nonpayment judgment. The court advised the tenant that if she could prove violations, the Social Services Law would preclude entry of a final judgment. But the Court noted that the mere assertion of the claim did not entitle the tenant to a stay of the nonpayment proceeding, nor a postponement. The Appellate Term noted that even pro se litigants must be prepared to comply with calendar requirements and procedures of the court.


Case Caption:
224 Highland Blvd. Owners v. Maldonado
Issues/Legal Principles:
Subtenant has no right to be named or served in a nonpayment proceeding, and therefore the court did not halt the eviction as requested by the subtenant.
Keywords:
warrant; subtenant
Court:
Civil Housing Court, Kings County
Judge:
Hon. Wright
Date:
May 10, 2000
Citation:
NYLJ, page 33, col. 5
Referred Statutes:
CPLR 5015; New York City Administrative Code 26-511(c)(2); RPAPL 735(1), 711(2); RPL 226-b
Summary:
In this nonpayment proceeding, the court was faced with the issue of whether alleged subtenants must be named and served in the proceeding. The tenant failed to appear and a judgment and warrant issued. Thereafter the subtenant appeared and made known that he has regularly paid the rent to the prime tenant, although double the amount of the legal rent. The court determined that a subtenant is not a necessary party to a nonpayment proceeding involving the prime tenant, unlike a holdover proceeding where someone other than the named tenant might have genuine rights, such as succession rights or illusory prime tenancy claims. But in a nonpayment proceeding, the court noted, there is no privity between the landlord and the subtenant. Hence, no predicate notices are required to be served upon the subtenant. The court thus refused to vacate the warrant because the landlord is not obligated to accept the subtenant's rent and thus is not required to name or serve the subtenant.


Case Caption:
Hart Future Co. v. Rose
Issues/Legal Principles:
Tenant proves that property in Pennsylvania is investment property and that her frequent travels there are to maintain the property for her own tenants, thereby rebutting landlord's nonprimary residence allegation.
Keywords:
nonprimary residence
Court:
Civil Housing Court, New York County
Judge:
Hon. Wendt
Date:
May 10, 2000
Citation:
NYLJ, page 31, column 2
Referred Statutes:
none cited
Summary:
Landlord commenced a holdover proceeding against the 71 year old rent controlled tenant on nonprimary residency grounds, claiming that she actually resides in Pennsylvania. The landlord submitted the tenant's Pennsylvania long distance phone bills, but the tenant asserted that the bills support her claim that she spends several times a month at the investment property she purchased there. The tenant claimed that the property consists of two units and she rents these out. The court noted that the local PA phone bills would be more illuminating, but the landlord did not enter those into evidence. The landlord also introduced the cable TV bills in PA as alleged proof that the tenant utilizes the TV. The tenant, however, admitted that the cable TV was used by her tenant and was discontinued after her tenant vacated the apartment. The landlord pointed to a dentist the tenant used in PA as further proof of her PA residency, but the tenant said she just went to him for an emergency. The landlord had other evidence all of which the court discounted, and which the court stated that the tenant's documentary evidence was stronger than the landlord's. She filed her taxes in New York and listed the PA property as investment property. Her automobile documentation is linked to New York. She votes from the New York apartment. The landlord's witnesses were also not as credible as the tenant's witnesses. They were not in the building regularly, whereas the tenant's witnesses were very clear about the tenant's presence in New York. For example, one of her friends stated that they have lunch once a week in New York. The tenant herself testified that she had difficulty renting out her PA apartments, and used a local phone number for fear that no local person would want to call New York. She said the landlord suggested that her apartment was too cluttered, which induced her to remove various items of furniture to the apartments in PA. The court concluded that New York is the tenant's primary residence and that the only reason she goes to PA is to maintain the property. The fact that she travels there roughly 8 times a month substantiates her position that she goes there to maintain the property, otherwise, the court noted, she would not need to travel there so regularly. The court dismissed the petition.


Case Caption:
4730 Realty Corp. v. Jagrup
Issues/Legal Principles:
Husband's transfer of his deed to corporate entity to avoid equitable distribution of marital two-family home is not permissible and further he cannot evict his wife from the property in Housing Court because the couple do not have a landlord-tenant relationship.
Keywords:
landlord-tenant relationship; marital property; corporate transfer
Court:
Civil Housing Court, Bronx County
Judge:
Hon. Fiorella
Date:
May 10, 2000
Citation:
NYLJ, page 32, column 2
Referred Statutes:
CPLR 3211(a); RPAPL 713(7), 741(4)
Summary:
The owner of the property is the former husband of the occupant-wife. He purchased the property, a two family house and moved in with his wife and 2 children into the first floor apartment as their marital residence. The second floor apartment was rented to other tenants. In July, 1999, the parties separated and her husband threatened to evict her. As a result she obtained a temporary order of protection against her husband which directed him to stay away from is wife. The order was extended several times. Neither spouse has sought a divorce. In September, 1999, the husband transferred the property to a corporation and is now trying to evict her under the corporate entity as a means to avoid equitable distribution of the property in any divorce action. The court determined that there is no form of tenancy relationship between the parties. The court concluded that the absence of an affidavit from the husband regarding the deed transfer confirms that the transfer was done solely to evict his wife. The court ruled that it did not have jurisdiction to determine the parties' legal right to the marital residence and that the Supreme Court is the forum to issue a determination on the marital property. In the interim, the court would not allow the husband to evict his wife because no landlord tenant relationship can be established.


New York Law Journal,
decisions for the week of May 1-5, 2000 (8 cases)


Case Caption:
Estate of Sol Goldman v. Quintavalle
Issues/Legal Principles:
Where tenant vacates at the end of the lease term, landlord is not entitled to any use and occupancy (i.e., rent) for a period after the lease ends.
Keywords:
surrender; use and occupancy
Court:
Appellate Term, First Department
Judge:
lower court: Hon. George Postel
Date:
May 1, 2000
Citation:
NYLJ, page 24, col. 5
Referred Statutes:
none cited
Summary:
Landlord commenced an action against the tenant to recover use and occupancy (i.e., rent) due after the lease expired on December 31, 1997. The keys were returned to the building personnel prior to the expiration of the lease term and when the landlord inspected the apartment in January, 1998 it was empty and vacant. Landlord couched their appeal in terms of whether tenant timely "surrendered" possession at the end of the lease term, but the Appellate Term noted that the case does not involve the issue of surrender. This is because at the end of the lease term the tenant leaves because his/her rights to possession have expired. Hence there is no surrender of the term because there is no further term to the lease. A surrender occurs either in the midst of a lease or if the tenant has held over for a period after the lease expires and then leaves. The court thus dismissed the landlord's action for use and occupancy because no rent was due.
Notes:
Rent is what tenants pay. After a tenancy is over, if the tenant still occupies the apartment, rent payments thereafter are then called use and occupancy.


Case Caption:
Ariel Associates v. Brown
Issues/Legal Principles:
Prime tenants who quickly refunded overcharges to the summer sublets do not lose their 20-year tenancy for profiteering.
Keywords:
unlawful subletting; cure; profiteering
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Marcy Friedman
Date:
May 1, 2000
Citation:
NYLJ, page 22, col. 5
Referred Statutes:
none cited
Summary:
The lower court dismissed the landlord's attempt to evict the tenant on grounds of profiteering during a sublet which lasted only a summer. The landlord argued on appeal that profiteering is not curable. The Appellate Term affirmed the lower court's dismissal, and now the Appellate Division likewise affirms, holding that the tenant's subletting for the summer did not rise to a level of profiteering warranting the termination of the 20-year tenancy. Further, when landlord served a notice to cure the tenants refunded all excess rent to the subtenants and notified the landlord of the cure before the landlord brought the holdover proceeding.


Case Caption:
Parkash v. Charles
Issues/Legal Principles:
Tenant could not set aside stipulation where she agreed to give up her apartment since no good cause exists to vacate stipulation, such as fraud, collusion, mistake or accident.
Keywords:
stipulations; overcharges; vacate stipulation; stays
Court:
Civil Housing Court, Bronx County
Judge:
Hon. Roman
Date:
May 3, 2000
Citation:
NYLJ, page 30, col. 3
Referred Statutes:
CPLR 2201
Summary:
Landlord brought a nonpayment proceeding against the tenant who eventually (with counsel) entered into a stipulation of settlement wherein she agreed to give up the apartment in four months in exchange for a waiver of some rent and agreed to make certain payments in the interim. The tenant now asks the court to stay the execution of the warrant so that she will not have to move on the date she previously agreed. The basis of the tenant's motion to the court is that one week after signing the agreement a Supreme Court judge remanded her overcharge complaint back to the DHCR for a recalculation because the DHCR initially found for the landlord. The tenant submits that the recalculation will result in a finding of overcharge and a substantial monetary award in her favor. Apparently, the tenant claims that she would not have agreed to surrender the apartment if she did not owe the landlord any money due to the overcharges. The court declined to stay the warrant of eviction because prior case law does not permit a stay of eviction proceedings simply because the DHCR is processing a rental claim. Nor did the court opt to allow the tenant to vacate the stipulation because the tenant failed to show good cause, such as, fraud, collusion, mistake or accident. The court held that the tenant knew a DHCR case was pending in Supreme Court which sought to reinstate her overcharge claim and yet she went forward anyway in settling the nonpayment proceeding. The court noted that the tenant's "strategic lapse" in failing to include or negotiate a provision in the settlement which would have allowed her to reinstate the landlord-tenant relationship should she prevail on her claim for rent overcharge does not constitute good cause to vacate the stipulation.
Notes:
The words "strategic lapse" seem to be a euphemism for "legal malpractice" since the case indicates that the tenant had a lawyer when she entered into the agreement. If the tenant did not advise her counsel of the pending overcharge complaint, then the attorney would not be subject to a malpractice action. Otherwise, it was indeed remiss for the attorney not to deal with the overcharge issue, as it seems that the lack of sufficient funds was the only reason the tenant agreed to give up the tenancy.


Case Caption:
McCardle Patrick & Florence v Heyman
Issues/Legal Principles:
Petition is not subject to dismissal for technical defect in naming corporation as the managing agent instead of natural individual, so long as an effective multiple dwelling registration statement exists at time of trial.
Keywords:
multiple dwelling registration statement; amendment of pleadings
Court:
Civil Court, Kings County
Judge:
Hon. Kurtz
Date:
May 3, 2000
Citation:
NYLJ, page 31, column 2
Referred Statutes:
CPLR 3211(a)(7), 3025(b)
Summary:
none cited
Notes:
Landlord brought a nonpayment proceeding and the tenant moved to dismiss it because the managing agent is listed as a corporation instead of a natural person which is required by the Multiple Dwelling Law. The landlord cross-moved to amend the petition on grounds that the corporate listing was a mistake. The court held that while a currently effective MDR must exist at trial, an erroneous allegation in the petition regarding the identity of the managing agent is a pleading defect capable of amendment. Permission to amend such a technical defect should be freely granted, and this court did so.


Case Caption:
Tri-Block Associates v. Reid
Issues/Legal Principles:
Grandchildren adopted by Section 8 tenant are "remaining family members" entitled to succeed to the lease upon her death.
Keywords:
Section 8; succession rights; guardian
Court:
Civil Housing Court, Kings County
Judge:
Hon. Marton
Date:
May 3, 2000
Citation:
NYLJ, page 30, column 6
Referred Statutes:
42 USC 1437; New York City Rent and Eviction Regulations 56(d)
Summary:
The Section 8 tenant began living in the apartment in 1984, but neither of her children lived with her. Instead in 1989 she became the foster parent of her daughter's two children (born 1984 and 1986) and they lived with her for an undetermined period of time. In 1998, she adopted her grandchildren. On June 9, 1999, the tenant died and that same day her son moved into the apartment. Two months later, the son was named the guardian of his nephews. The children were always listed on the annual Section 8 income certification by the tenant. The landlord brought a holdover proceeding seeking to evict the son who in turn claimed succession rights on behalf of the children, as well as himself. The landlord argues that the children's succession rights defense should be denied because the tenant listed them as foster children on the last recertification form in 1999 instead of as her adoptive children. The court, however, noted that the childrens' succession rights accrue independent of the tenant's misdeed. The court found that beyond question the children lived with the tenant as members of a family unit.

The landlord cited to another Section 8 case involving succession rights. The court, however, pointed out that the case involved the pass-on of the Section 8 subsidy as opposed to the tenancy to the apartment. The court observed that the Section 8 program recognizes the entire family as the tenant, thereby encouraging family cohesion and the care of the elderly and disabled in the home. The statute construes "family" broadly so that it includes "remaining member of a tenant family." The court found that the children, as residents of the household for more than 10 years, and as the tenant's grandchildren, are remaining family members entitled to succeed to the tenancy.

There was also an application to have the son be granted succession rights, but the court rejected this because the son never resided with his mother, the deceased tenant, and hence did not qualify in his own right. The court did, however, recognize that the son has the right to reside in the apartment as the children's guardian in order to carry out his responsibilities.


Case Caption:
South Park Associates v. Renzulli
Issues/Legal Principles:
Landlord must renew lease on same terms and conditions, and if not, and if tenant alters the lease, landlord cannot start an eviction proceeding on grounds that tenant allegedly failed to sign a renewal lease.
Keywords:
renewal lease; waiver; termination notice
Court:
United States District Court for the Southern District of New York
Judge:
Hon. Stein
Date:
May 3, 2000
Citation:
NYLJ, page 34, column 5
Referred Statutes:
28 USC 1332 et seq; 9 NYCRR 2524.2(b), 2524.3, 2524.5(a)
Summary:
The tenant is 84 years old and has resided in the premises for more than 30 years. The building went co-op but the tenant did not purchase and remained in occupancy as a rent stabilized tenant. The landlord had been trying to get her out for years, and as a result the tender of her renewal leases was sporadic. In May of 1999 the landlord sent a renewal lease but changed the rent due dates from the first of the month to the 15th of the month. The tenant signed the lease, but made two changes: (a) she changed the due dates to the first of the month, and (b) she eliminated 3 of the 4 charges relating to the air conditioner use, claiming that she was being charged for 4 air conditioners when she only has one. The previous lease contained the same four charges but the tenant stated that she didn't know they covered air conditioners. The landlord refused to sign the altered leases and instead served the tenant a termination notice on grounds stated as "You have elected not to renew your lease, as offered by your landlord, which will expire on September 30, 1999.

In a federal suit, the court must have jurisdiction by there being a controversy exceeding $75,000 in damages and there exists complete diversity of citizenship between the parties. The landlord is a Florida corporation, satisfying that prong of the jurisdictional elements, and the court accepted the landlord's position that should the landlord recover the apartment, it has a fair market value in excess of $1,000.000. Hence, on these grounds landlord was able to sue tenant in federal court.

The court noted that under New York law a notice terminating a rent stabilized tenancy must state the facts upon which the proceeding is based, and said statement cannot be conclusory. The court found that the termination notice failed to state any necessary facts and thereby held that the termination notice was defective and hence the eviction action could not be maintained. The court went on to note that although failure to sign a lease renewal is a proper ground to terminate a tenancy, a renewal lease must contain the same terms and conditions as the expiring lease. If this condition is not satisfied, the tenant's refusal to sign the renewal lease does not provide cause for the landlord to evict. The landlord failed to comply with the Rent Stabilization Code because it altered the commencement and rent due dates of the initial lease which justified tenant's alteration of the renewal lease. The landlord stated that it changed the date because it was required to send a lease whose term commenced 120 days from the date the lease is tendered. The court, however, saw this as no excuse. And even if it were, the case should still be dismissed because the landlord accepted two months of rent checks from the tenant after the service of the termination notice. By accepting the rent, the landlord reinstated the tenancy thereby rendering moot the eviction proceeding.


Case Caption:
Matter of Clarendon Management v. DHCR
Issues/Legal Principles:
Failure to file a DHCR PAR within 35 days precludes landlord from appealing the underlying decision.
Keywords:
statute of limitations; PAR; rent reduction order
Court:
Appellate Division, Second Department
Judge:
lower court: Hon. Cusick
Date:
May 1, 2000
Citation:
NYLJ, page 32, column
Referred Statutes:
9 NYCRR 2529.2
Summary:
On March 19, 1997, the DHCR issued an order reducing the rent for a building on grounds of decrease in services. The landlord then had 35 days to file a petition for administrative review (PAR) which is an administrative appeal. The landlord filed the PAR with the DHCR on April 30, 1997. The court ruled that the landlord missed the deadline date and therefore could not proceed with its appeal.


Case Caption:
Matter of Clarendon Management v. DHCR
Issues/Legal Principles:
Two gaps in brick wall around building are not deemed "de minimus" by DHCR and reduction of rent to building was therefor justified when landlord did not repair the conditions.
Keywords:
rent reduction order
Court:
Appellate Division, Second Department
Judge:
lower court: Hon. Cusick
Date:
May 1, 2000
Citation:
NYLJ, page 32, column
Referred Statutes:
none cited
Summary:
The landlord appealed a DHCR decision to the Supreme Court in an Article 78 proceeding, arguing that two gaps in the brick wall around the entrance to the subject building, which are six square feet and five square feet, respectively, were de minimis conditions and therefore provided no rational basis for the DHCR to issue a rent reduction order to the building. The court held that the landlord was required to repair and maintain the public areas of the building and failed to do so. It is for the DHCR to determine what constitutes a required service and whether that service has been maintained. In this case, DHCR's decision was supported by substantial evidence, and further the rent reduction was not excessive.