Housing Court Decisions September 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 September 25-29, 2000 (5 cases)


Case Caption:
Wingate Hall Co. LLC v. Betances
Issues/Legal Principles:
Tenant loses apartment for allowing her boarders to deal drugs from the apartment.
Keywords:
illegal usage
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Ruben Martinez
Date:
September 26, 2000
Citation:
NYLJ, page 26, col 1
Referred Statutes:
RPAPL 711(5)
Summary:
Landlord brought a holdover proceeding against the tenant on grounds of using the apartment for illegal purposes. At trial evidence established that pursuant to a search warrant, police officers recovered a metal pail containing in excess of a pound of cocaine, a scale, drug paraphernalia, ledger books, two radio transceivers and $6,710 in cash, mostly in small denominations. These items were taken from the bedroom of tenant's boarder who was arrested during the search. The lower court ruled that based on this evidence the apartment was being used for illegal purposes and thereupon awarded a possessory judgment to the landlord. The Appellate Term upheld and rejected tenant's testimony that she was not aware of and did not acquiesce in the operation of this illegal business. Her testimony was not credible because these items were in plain view and a prior boarder was arrested on similar drug related charges.
Notes:
Tenants should know that possession for self-consumption of drugs is not grounds for eviction. It is the sale of drugs that justifies an eviction. The distinction tends to turn on the amount of drugs found in an apartment.


Case Caption:
56 Mac D, Inc. v. Gravine
Issues/Legal Principles:
Tenant's warranty of habitability claims against pizzeria for odors and excess heat do not warrant an abatement because tenant did not move out of the apartment due to the odors and heat.
Keywords:
warranty of habitability; abatement; attorneys fees
Court:
Appellate Term: First Department
Judge:
lower court: Hon. Faviola Soto
Date:
September 27, 2000
Citation:
NYLJ, page 26, col 2
Referred Statutes:
RPL 235-b, 234; CPLR 4544, 105(t)
Summary:
In a residential nonpayment proceeding the trial judge denied tenant an abatement on grounds that the tenant failed to substantiate her allegation that a recurring noxious odor and excessive heat condition emanating from a retail pizzeria located below tenant's first floor apartment was dangerous, hazardous or detrimental to her life, health or safety. The Appellate Term affirmed, holding that "the fact that code violations were issued because of an improper venting system is itself insufficient to support a habitability award." The Appellate Term noted that the tenant did not abandon any portion of the premises due to the offensive odors or excessive heat. The Court noted that the tenant's denial of access to the landlord to make repairs was unreasonable. The landlord was awarded legal fees based on the lease which contained an attorney's fees clause, although tenant unsuccessfully argued that the small print of the lease rendered it unenforceable.
Notes:
It is unfortunate that the Appellate Term ruled that the tenant's failure to abandon any portion of the apartment was another reason to preclude the tenant from receiving an abatement. The Court cited two cases in support of this position. One is a commercial case whose standards should not be applicable to residential tenants. See Barash v. Pennsylvania Term Real Estate Corp. 26 NY2d 77. The other is a loft case where the tenant lived and worked in the premises. See , 140 AD2d 245, 528 NYS2d 554. In Minjak, various renovations done by the landlord caused a portion of tenant's space to be utterly unusable, and the tenant did not use that portion of the space. For a problem like offensive odors and excessive heat, a tenant cannot retreat to any other area of the apartment the way the Minjak tenant could. By citing these two distinguishable cases, in conjunction with the Court's minimizing the effect of a violation notice (normally a useful piece of evidence), indicates that the Court is not sympathetic to difficult habitability claims, such as where a residential tenant's interests conflict with a commercial tenant's interests and the landlord is caught in the crossfire. Courts have long been unreceptive to making the landlord pay for a tenant versus tenant dispute. Noisy neighbors are another example.


Case Caption:
Tursi v. Anderson
Issues/Legal Principles:
Landlord■s appeal of DHCR order directing landlord to tender wife a lease in her name collaterally estops landlord from commencing a holdover proceeding on similar grounds.
Keywords:
nonprimary residence; res judicata; collateral estoppal; waiver
Court:
Civil Housing Court, New York County
Judge:
Hon. Peter Wendt
Date:
September 27, 2000
Citation:
NYLJ, page 27, col 4
Referred Statutes:
CPLR 3211(a)(5)
Summary:
Landlord■s notice of nonrenewal of lease on grounds of nonprimary residence purported to terminate the tenancy as of April 30, 2000. Tenant claimed that a pending proceeding at the DHCR initiated by tenant on March 5, 1999 involved the issue of wther the tenant maintained the apartment as his primary residence and whether his wife was entitled to remain at the apartment as a tenant of record and have a lease issued in her name. In October, 1999, the DHCR directed the landlord to offer the wife a lease in her name, whereupon the landlord filed a PAR (an appeal) in December, 1999, which has not yet been determined. When the landlord commenced the eviction proceeding in Housing Court based on nonprimary residence, the tenant argued that the case should be dismissed because the same issue is pending in another forum, i.e., the DHCR via landlord■s appeal. The doctrine of res judicata provides that a judgment by one court between two parties is conclusive of the facts and law on which the judgment is based and bars a later action between the parties based on the same facts and law. A closely similar legal principle, the doctrine of collateral estoppal, does not permit a party to relitigate the same issues raised and decided in a previous case against him or her. The court held that the DHCR order was a final order and by filing the PAR the landlord obtained a stay of the order to issue a lease in the wife■s name. In other words, landlord was not obliged to send the April, 2000 nonrenewal notice as a result of the DHCR PAR. In commencing the proceeding, the landlord is improperly attacking the DHCR order and cannot do so in Housing Court. Thus, the court concluded the petition must be dismissed.

Tenant also sought to dismiss the petition on grounds that the landlord accepted rent from the tenant after service of the notice of termination and prior to the commencement of the holdover proceeding. The acceptance of rent has the effect of reinstating the tenancy, thus rendering the termination notice a nullity. Without a valid termination notice, a holdover eviction proceeding cannot be maintained. In this case, the tenancy purportedly terminated on April 30, 2000 and the case was commenced on May 9, 2000. The landlord does not dispute that the tenant■s rent for May and June was received on May 2, 2000 and not returned until after the court proceeding began. The lanldord argues, however, that since the rent checks were never cashed, they cannot be deemed to have been accepted. The court rejected this argument, holding that the retention of the checks was tantamount to an acceptance. The tenant did not have use of the funds while the landlord retained the checks and the tenant reasonably believed that the landlord accepted the rent since the checks were not readily returned. The court dismissed the petition on this ground as well.


Case Caption:
190 Riverside Drive LLC v. DHCR
Issues/Legal Principles:
In a luxury deregulation proceeding, where tenant delays in filing tax return, DHCR is directed to not limit its verification inquiry of tenant■s income to the State Tax Department, but also to make further inquiry directly to the tenant.
Keywords:
luxury deregulation; statutory interpretation
Court:
Supreme Court, New York County
Judge:
Hon. Figueroa
Date:
September 27, 2000
Citation:
NYLJ, page 27, col 1
Referred Statutes:
Rent Regulation Reform Act of 1993; Administrative Code of the City of New York 26-504.3
Summary:
In an Article 78 proceeding, the landlord sought to annul a DHCR■s decision which denied the landlord■s application to deregulate the apartment under the luxury deregulation law. This law allows a rent stabilization apartment to be deregulated where the household income exceeds $175,000 in the past two years and the rent is over $2000. In 1998, the landlord started the deregulation process correctly by first sending the tenant a questionairre asking whether the tenant■s income exceeded $175,000 in the past two years and whether she had filed New York State tax returns. The tenant filed 1996 returns, but not 1997 ecause she had applied for an extension to file. The landlord forwarded the form to the DHCR with its deregulation petition because the landlord claimed it did not believe the tenant■s responses. The DHCR is then obligated to verify the tenant■s responses which it did by sending the tenant another income certification form, and the tenant duly sent it back. Since the landlord still challenged tenant■s responses (which were the same), DHCR then (as required by statute) asked the State Department of Taxation and Finance (DTF) whether the tenant■s income in the last two years exceeded $175,000. DTF could not match the tenant■s name and address with the one supplied to DHCR so DTF stated it found ■no match.■ Tenant represented that she needed another extension becuase she fell and injured her head two days before the extension deadline. The landlord claimed that tenant was intentionally not filing her 1997 taxes because of excess income.

The DHCR denied landlord■s luxury deregulation petition on grounds that DHCR could not verify the tenant■s annual income. Landlord filed a PAR of this order. Meanwhile, the DHCR followed up to see if the tenant had filed on the next extension date, but the tenant stated that a ■multiplicity of health problems■ hindered her efforts to file and her 1997 taxes remain unfiled. Landlord lost the PAR and thereupon appealed to the Supreme Court in an Article 78. DHCR took the position that the agency is only obligated to verify a tenant■s income with DTF and if the DTF, for whatever reason, cannot match the tenant■s name with a filed tax return for the relevant year, DHCR is not required to inquire further. The landlord, however, argued that it was incumbent on DHCR to undertake an independent income verification. The landlord had requested, unsuccessfully, to engage in discovery (i.e., ask the tenant questions). The owner also argued that if DTF cannot verify the income, the burden shifts to the tenant to prove their income is less than the statutory threshold.

The court found that the agency should be required to ■await the fall of the other fiscal shoe, the 1997 filing■ for the matter to be dispositive. DHCR produced a stalemate by letting the tenant■s procrastination in filing resolve the matter, albeit to the prejudice of the landlord. The court held that to comply with the statute in a situation where the tenant■s delay results in a DTF ■no match,■ the DHCR should send the tenant a new income verification form, or another inquiry to DTF, since the court assumed it was ■probable■ the tenant had filed or is on the cusp of filing the 1997 return. The court ruled: ■Such a statutory interpretation favoring further inquiry provides a practical and workable construction of the statute and at the smae time obviates needless repetition of the owner■s petition.■ The court found that the DHCR■s interpretation of the statute absolving the agency from making further inquiry justified the court■s departure from the usual role of according great weight to the agency■s interpretation of a statute. The court concluded that DHCR■s denial of the petition was arbitrary and capricious. The inadequate and inconclusive data before it did not allow for a rational decision by the agency. The judge remanded the case back to the DHCR with the directive for the agency to make further inquiry of the tenant and DTF.


Case Caption:
Casazza v. Matrangolo
Issues/Legal Principles:
Tenant who denies landlord access as permitted in a court ordered stipulation of settlement is found to be in civil contempt and must pay slandlord■s legal fees and a $250 fine.
Keywords:
access; sanctions; legal fees
Court:
Civil Court, Richmond County
Judge:
Hon. Bedford
Date:
September 27, 2000
Citation:
NYLJ, page 31, col 1
Referred Statutes:
Judiciary Law 770, 751(1)
Summary:
This holdover was settled and the tenant agreed to leave by a certain date. The written agreement included a provision that the tenant would provide access to the landlord on 48 hours notice. The landlord sought access on May 3rd for a her contractor to inspect the premises on May 5th. When they showed up at the apartment, the babysitter did not grant access. Tenant claimed that on May 4th a different access date was set up with the landlord■s attorney by phone. The landlord claims that the tenant, in fact, said, ■No way in hell am I letting you in before I move.■ The court found the landlord■s testimony credible. The landlord asked the court for sanctions against the tenant, but did not state whether those sanctions were for criminal or civil contempt of a court order (the so-ordered agreement to vacate). The decision engages in an analysis of the two types of contempt.

Civil contempt involves a violation of a courtr order which also impedes or defeats or prejudices the rights of a party. The complaining party must show how their rights are compromised. However, if that does not happen, civil contempt can still lie if the offending conduct was intended to or calculated to prejudice the rights of a party. The evidentiary standard is reasonable certainty. Since civil contempt has its aim the vindication of the rights of a litigant, the fines imposed are intended to actually compensate the injured party for the actual damages, loss or interference. If no actual loss is shown, the complainant's costs and expenses, including attorney■s fees, can be imposed. The aim of criminal contempt is the vindication of an offense against public justice and is used to protect the integrity of the judicial process and compel respect for it. The element which elevates a contempt to criminal status is the level of willfulness associated with the conduct. Penalties are punitive in nature designed to punish the contemnor, rather than compensatory. Willfullness, not misunderstanding or a mistake, is necessary for criminal contempt to lie. The penalty is a fine not exceeding $1000 or 30 days imprisonment.

The court ruled that the tenant was aware of the order to provide access and the refusal to do was was intended to defeat and prejudice the landlord■s rights. The court characaterized tenant■s refusal as a ■final parting shot■ although it did not rise to the level of willfulness to support a finding of criminal contempt. The landlord showed no injuries, but the statute allowed the judge to impose a $250 fine, plus legal fees. The court rejected a fine of $3,000 since the statute does not permit it. The matter was set down for a hearing on the amount of landlord■s costs and legal fees.


New York Law Journal,
decisions for the week of September 18-September 22, 2000 (4 cases)


Case Caption:
River York Stratford, LLC v. Ostrow
Issues/Legal Principles:
Landlord's failure to object to dog, which subsequently died, does not estop landlord from objecting to new dog.
Keywords:
Pet Law
Court:
Appellate Term, 1st Dep't
Judge:
Lower Court, Hon. Howard Malatzky
Date:
September 20, 2000
Citation:
NYLJ, page 26, col. 1
Referred Statutes:
Ad. Code of City of New York, Section 27-2009.1; 42 U.S.C. Section 3604[f]
Summary:
Although the tenant's lease prohibited pets without the landlord's consent, the tenant had had a dog in his home. The landlord had never objected to the presence of the dog. The dog died, and the tenant brought a new dog of the same breed into his home, again without obtaining permission from the landlord. The landlord then brought a holdover against the tenant, claiming that the presence of the dog violated the tenant's lease. The trial Court granted the landlord's motion for summary judgment against the tenant.

On appeal, the Appellate Term affirmed the lower court, finding that the landlord was not estopped from refusing to allow the tenant to have this new dog because it had failed to object to his other dog. The Court also noted that HUD had dismissed the tenant's complaint against the landlord under the Fair Housing Act, finding no reasonable cause to believe that the tenant required a dog as an emotional support for his alleged severe depression.


Case Caption:
R& R Marion LLC v. Santos
Issues/Legal Principles:
New landlord can prospectively collect fee for air conditioner despite prior landlord's failure to do so.
Keywords:
air conditioners; charges and fees
Court:
Civ. Ct., Bronx Co.
Judge:
Judge Gonzalez
Date:
September 20, 2000
Citation:
NYLJ, page 28, col. 2
Referred Statutes:
None
Summary:
At issue in this non-payment proceeding was whether the tenant must pay a fee for air conditioners. The rent-stabilized tenant had two air conditioners in her apartment. She said that she had installed them in 1984. Although earlier leases provided for an additional charge for air conditioners, those provisions had been crossed out. The 1999 lease, however, contained a provision for fees for air conditioners. Although the prior landlord had never sought to collect a fee for the air conditioners, the new landlord sought fees for the years past.

After a hearing, the Court held that the landlord could not seek fees that had accrued when the prior landlord had owned the building because the prior landlord waived any such claim and such claim was barred by the doctrine of laches. However, the Court found that the landlord could collect fees that had accrued after the commencement of the term of the 1999 lease. The court relied upon a DHCR Operational Bulletin to find that the landlord could collect fees for the air conditioners. Pursuant to the DHCR Operational Bulletin, if a tenant installed an air conditioner prior to 10/1/85, the permissible charge is to be determined by the lawful practice then in effect. However, if the tenant installed the air conditioner after that date, a $5.00 fee is applicable. The Operational Bulletin, however, also provides that a landlord cannot charge the $5 fee if it "did not begin charging for the air conditioner at the time it was installed or within a reasonable period of time thereafter." Although there was no evidence to dispute the tenant's testimony that she had bought the air conditioners in 1984, the court found that the tenant had purchased them in 1995. The Court nevertheless found that the new owner was entitled to collect the fees, although more than three years had elapsed from the time that the tenant had installed the air conditioners. The Court relied upon the fact that the new owner had acted quickly after it had purchased the property to seek the fees. Thus, the Court held that the new owner had acted within a reasonable time


Case Caption:
Merrick Realty LLC v. Davis
Issues/Legal Principles:
Four-year statute of limitations for rent overcharge is not applicable to overcharge that results from landlord's failure to comply with DHCR Rent Reduction Order.
Keywords:
Rent Overcharge, rent reduction order; four-year statute of limitations
Court:
Civil Court, Qns. Co., New York
Judge:
Judge Jackman-Brown
Date:
September 20, 2000
Citation:
NYLJ, page 33, col. 4
Referred Statutes:
RSL Section 26-516(a)(2)(i)
Summary:
The landlord brought a non-payment proceeding against a rent-stabilized tenant. The tenant had taken possession of the apartment in April of 1994, at an initial rent of $880. Unbeknownst to the tenant, there was a rent reduction order in effect at the time that the tenant rented the apartment. The Order rolled back the rent to $802.59. The landlord thereafter applied to restore the rent. However, it never gave the current tenant notice of either the Order of its application. The landlord did not obtain a rent restoration order until the year 2000. During that time, the landlord continued to increase the tenant's rent, collecting more than $802.59.

When the tenant defaulted in payment of the rent, the landlord sued for non-payment. In the course of the non-payment proceeding, the tenant raised the defense and counterclaim of rent overcharge, because the landlord had collected more than the rent it was allowed to collect pursuant to the Rent Reduction Order. Initially the landlord conceded such an overcharge, but then argued that the four-year statute of limitations barred the tenant from raising this claim. After a hearing, the Court held that the statute of limitations did not bar the claim of a rent overcharge. Relying upon an Appellate Term case, the Court found that the claim was not based upon an event that had occurred more than four years ago because the landlord is always under an existing obligation to comply with the Rent Reduction Order: "The Rent Reduction Order was an ongoing rental event that must be complied with until such time as it was rescinded by the issuing agency." The Court, in addition, found that the overcharge was willful since the landlord had sought to restore the rent without giving notice to the current tenant. Accordingly, it awarded the tenant treble damages for the two years preceding the filing of the claim.


Case Caption:
Chris Mac Co. v. Johnson-Ono
Issues/Legal Principles:
Court improperly awarded attorney's fees where the award modified the Order of a different judge.
Keywords:
Attorney's fees
Court:
Appellate Term, 1st Dep't
Judge:
Lower Court, Hon. Brenda S. Spears
Date:
September 22, 2000
Citation:
NYLJ, page 26, col. 1
Referred Statutes:
CPLR Section 3217(b)
Summary:
On the day of trial, fourteen months after the landlord commenced the proceeding, the landlord made an oral application pursuant to CPLR 3217 to discontinue a proceeding because of lack of evidence. CPLR 3217(b) allows a party to discontinue a proceeding on terms and conditions as the Court deems proper. The Court granted the application "without prejudice to either side, including respondent's right to move for attorney's fees." The tenant thereafter made a motion pursuant to CPLR 3217 for attorney's fees. A different judge heard this motion. This judge granted the tenant's motion for fees.

On appeal, the Appellate Term reversed the Order granting fees, finding that there was no basis for the second judge to hear another motion pursuant to CPLR Section 3217. It found that, under the circumstances, the tenant should have made a motion to renew to the original judge.

Judge Davis dissented. He noted that, pursuant to CPLR 3217(b), a party is entitled to fees upon discontinuance of a case, even if there is no lease granting a right to fees. Judge Davis found that the original judge did not reject the claim for fees, but only deferred this decision until a proper motion, in writing, was made. Moreover, since the subsequent order did not modify the original order and the original judge's order specifically granted the tenant the right to renew the application for attorney's fees, the subsequent judge had the power to entertain the application for fees pursuant to CPLR Section 3217.


New York Law Journal,
decisions for the week of September 11-15, 2000 (4 cases)


Case Caption:
Bennett v. Mentis
Issues/Legal Principles:
Where tenant raised habitability issues in at least 2 of 5 nonpayment proceedings, landlord is not justified in terminating the tenancy based on chronic nonpayment of rent.
Keywords:
chronic nonpayment; repairs
Court:
Appellate Term, First Department
Judge:
lower court: Hon.Margaret Cammer; Hon. Cheryl E. Chambers
Date:
September 13, 2000
Citation:
NYLJ, page 22, col 1
Referred Statutes:
RSC 2524.3(a)
Summary:
Landlord brought a holdover proceeding based on chronic nonpayment of rent. Landlord failed to prove that the tenants' rent defaults were so unjustified as to warrant a finding that tenant had violated a substantial obligation of their tenancy. The record reveals rent defaults by tenants leading to the commencement of five nonpayment proceedings over a period of roughly two years. Yet, at least two of those proceedings were settled by so-ordered stipulations requiring the landlord to make repairs or cure violations. The lower court ruled to evict the tenant, but the Appellate Term reversed. The Appellate Term held that where there are bona fide claims that an apartment is in need of repairs, precipitating withholding of rent, a holdover petition based on chronic nonpayment of rent should not be permitted. The record reflects that the parties have a history of anomisity and ongoing disputes as to habitability and access issues.


Case Caption:
Whittlesey v. Knight
Issues/Legal Principles:
Landlord failed to overcome presumption that he was unlawfully commingling tenants' security deposit with his personal funds, and thus tenants were justified in using their security deposit as a set-off for rent owed.
Keywords:
security deposit; set-off of rent
Court:
Justice Court, Town of Ossining, Westchester County
Judge:
Town Justice Shapiro
Date:
September 13, 2000
Citation:
NYLJ, page 28, col 3
Referred Statutes:
General Business Law 7-103
Summary:
Landlord is the owner of a two family house and the tenant lives on the first floor. Landlord brought a nonpayment proceeding for three months rent. The issue before the court was whether the tenant was entitled to deduct or take a set-off for the security depsoit. The court found for the tenant on these facts. On May 23, 2000, the tenants were served a summons an dcomplaint in a mortgage foreclosure proceeding. A list of outstanding judgments against the landlord, including unreturned security deposits by prior tenants, was appended to the compalint. Tenants then expressed their profound concern over the safety fo their security deposit by letter dated June 4, 2000. Landlord did not respond to tenant's concerns nor confirm compliance with the law's requirements regarding landlord's retention of security deposits. The court held that his failure to do so created a presumption that tenants' security was not being held in a segregated account in violation of General Business Law 7-103. Consequently, there was a prima facie showing, which landlord failed to rebut at trial, that he had commingled tenants' security deposit with his general fund.

The lease had a provision that the security deposit could never be used as rent. The court, however, held that such a provision is overridden or nullified by General Business Law 7-103 as a matter of law and public policy. Alternatively, if the statute means that the lease provision does not permit tenants to withhold rent on their own, then the court construed the tenants' claimed offset as a valid defense or counterclaim and awarded the tenants the full relief requested.


Case Caption:
811 Sterling Associates v. Ray
Issues/Legal Principles:
Housing judge did not abuse discretion in refusing to extend stay of eviction to tenant in proceeding based on chronic nonpaymetn of rent where the tenant failed to timely pay the rent arrears provided for in a stipuation of settlement.
Keywords:
chronic nonpayment; stay
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Howard Malatzky
Date:
September 15, 2000
Citation:
NYLJ, page 22, col 1
Referred Statutes:
none cited
Summary:
Tenant failed to timely tender rent arrears as required by the terms of a stipulation executed in a holdover proceeding based on chronic nonpayment of rent. The lower court ruled for the eviction of tenant. The Appellate Term affirmed, holding that in light of tenant's history of defaults, which included failure to timely tender checks as wellas tendering checks drawn against insufficient funds, the Civil Court did not abuse its discretion in declingin to grant a further stay of the warrant of eviction. The Court also noted that tenant's stay from the Appellate Term was vacated for failure to comply with the Court's order to pay accruing use and occupancy (i.e., rent).


Case Caption:
Resol Company v. Sunderland
Issues/Legal Principles:

Keywords:

Court:
Appellate Term, First Department
Judge:
lower court: Hon. Howard Malatzky
Date:
September 15, 2000
Citation:
NYLJ, page 26, col 2
Referred Statutes:
RSC 2524.3(b)
Summary:
Landlord brought a holdover proceeding against the tenant due to the accumulation of an excessive amount of debris piled high in her small rent stabilized apartment. No correction of the condition had taken place for several months after she had agreed to clean the problem. The record, including an on-site inspection by the judge and photographs, led the Appellate Term to conclude that a documented nuisance was proven. The Court noted that the trial judge properly balanced the rights of other tenants, whose comfort and safety were at risk, when the judge evicted the tenant.


New York Law Journal,
decisions for the week of September 4-8, 2000 (4 cases)


Case Caption:
TS Hotel Limited Partnership v. Rissman
Issues/Legal Principles:
Landlord's cure of rodent problem within two weeks after violation issued does not entitle tenant to an abatement of rent.
Keywords:
abatement; warranty of habitability
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Walter Strauss
Date:
September 5, 2000
Citation:
NYLJ, page 24, col 5
Referred Statutes:
none cited
Summary:
The trial judge awarded tenant an abatement of the rent based on the tenant's warranty of habitability counterclaim. The Appellate Term noted that the tenant was unable to specify the dates or temperatures involved in connection with his claims of insufficient heat and that the record indicates that the landlord's employees promptly dealt with heat complaints. The court noted that with respect to rodent infestation, the exterminator was unable to gain access on a number of "routine visits to the building premises." Further, after a violation was issued for the rodent problem the landlord successfully abated the condition within two weeks. In such circumstances where an abatement was given solely due to the violation, the Appellate Court ruled that the abatement should not stand.
Notes:
Usually the duration of a condition is a significant factor in awarding an abatement. In this case, the rodent problem lasted a while and the landlord was aware of it. The court, however, faulted the tenant for not being available when the exterminator came the building on a number of "routine visits." Obviously, these visits were not made by appointment with the tenant. Thus, it seems unfair to fault the tenant for the continuation of the problem. The lesson to be learned in this case is for tenants to file violation claims as soon as problems arise. Simply notifying the landlord is not enough to ensure that the problem will be rectified or that the tenant will be compensated by an abatement for the duration the problem endured.


Case Caption:
430 Realty Co. v. Heftler
Issues/Legal Principles:
Landlord cannot collect rent in excess of the last rent controlled rent until such time as a properly filed initial apartment registration is served on the tenant.
Keywords:
initial registration; overcharges; high rent deregulation
Court:
Civil Housing Court, New York County
Judge:
Hon. Douglas Hoffman
Date:
September 6, 2000
Citation:
NYLJ, page 23, col. 4
Referred Statutes:
NYC Administrative Code 26-504.2 & 26-517(e) ; 9 NYCRR 2522.3(a) & 2521.1(a)(1)
Summary:
The last tenant, a rent controlled tenant, paid $1889.96 per month. The current tenant's rent was initially set at $4,500 per month, then after two years increased to $6,000 per month. The rider to the lease specified that the apartment was not rent stabilized because it became vacant after April 1, 1994 and the rent exceeded $2,000.00 per month. The landlord brought a nonpayment proceeding against the tenant who owed six months rent arrears. The tenant withheld rent on grounds that the landlord sought rent in excess of the legal registered rent and counterclaimed for overcharges. Because the tenant's rent exceeded $2,000 per month, the landlord took the position that the apartment was deregulated, i.e., not rent stabilized and therefore not subject to overcharges.

When a rent controlled apartment is vacated, a landlord is required to notify the first incoming tenant in order for that tenant to challenge the initial rent. The notification form is called an RR-1. The landlord is also required to file the notice of initial rent with the DHCR. The landlord in this case claimed that it filed the initial registration with DHCR in July, 1997. Landlord also claimed that its computer mistakenly printed out a registration which indicated that the apartment was both "permanently exempt" due to "high rent vacancy" and "temporarily exempt" due to "owner occupied/employee." In October, 1999, landlord filed a second amended registration because of the July, 1997 error. A third registration was filed in April, 2000 when the landlord became aware that due to the July, 1997 error the DHCR listed the apartment as rent stabilized.

Tenant had commenced a Supreme Court action to recover rent overcharges. In that action tenant alleged that landlord failed to file the RR-1 form within 90 days of the commencement of their tenancy. Landlord did not serve an RR-1 until October, 1999 and served an amended one in April, 2000. In Housing Court, the tenant's overcharge counterclaim was dismissed without prejudice in deference to the pending Supreme Court claim, but the tenant's overcharge defense was preserved. In other words, although tenant cannot recover overcharges in the Housing Court case, tenant's defense of overcharges means the landlord must still prove the rent is legal.

The judge analyzed numerous past cases with a similar fact pattern: an apartment that goes from rent control to fair market rent and rent stabilization. (The review of past case law by the judge is very useful for one wanting to know this area of law). This case had the additional twist of high rent decontrol and its interplay with registration requirements following the vacatur of a rent controlled tenant, as well as the right to a fair market rent appeal notwithstanding the first rental amount after rent control increasing to an amount over $2,000 purportedly pursuant to a rent guidelines order. The judge then turned to a well-known case, Goldman v. Porges, NYLJ, March 28, 1995, 24:3 (Appellate Term, First Department) which held that a landlord cannot collect any rent above the last legal registered rent controlled rent until such time as the landlord registers the apartment. In other words, if the tenant has withheld rent for 10 months and the landlord doesn't register the initial rent of the new lease until the 11th month, the tenant is only obligated to pay the last rent controlled rent for those ten months, but on the 11th month the tenant must start paying the lease amount. Tenant may challenge the initial registered rent in a fair market rent appeal, but pending that proceeding the tenant must pay the higher rent.

In this case, the tenant owed 6 months of rent from August, 1999. The court rejected landlord's claim that the premises were registered in July, 1997. Rather, the court held that the October, 1999 registration prevailed. Hence, the landlord registered the initial rent during the second month that tenant withheld rent. Therefore, relying on Goldman v. Porges the judge ruled that the tenant owed the rent controlled rent of $1,889.96 for two months, but must pay the higher rent of $6,000 per month for the remaining outstanding 4 months. While tenant's fair market rent appeal is pending, tenant must pay the $6,000 a month rent. The court ruled that its holding is without prejudice to tenant's fair market rent appeal, meaning that if the DHCR determines that the $4,500 initial rent is excessive, then tenant would be entitled to a set- off of the excess rent paid.


Case Caption:
Bankers Trust v. Tucker
Issues/Legal Principles:
Court rejects tenant's argument that only one eviction petition should be served against the property when in fact four separate tenants resided in the house.
Keywords:
foreclosure
Court:
Civil Housing Court, Kings County
Judge:
Hon. Kurtz
Date:
September 6, 2000
Citation:
NYLJ, page 25, col. 4
Referred Statutes:
RPAPL 713(5); CPLR 2104, 5015(a)
Summary:
The landlord purchased a two-family house at a foreclosure sale in 1990 and then commenced four holdover proceedings because the property was divided into four individual dwelling units or apartments designated as 1A, 1B, 2A and 2B. The landlord obtained two judgments on consent with two tenants, and two judgements by default. One of the default tenants, Mr. Dodds, now claims that the property is not divided into four separate dwelling units, but rather is one individual space which he occupies with another person. The court, however, rejected Mr. Dodd's position, noting that the landlord brought four separate proceedings in order to obtain jurisdiction over four people living in the building, and ensure that each person receive due process. The court also ruled that Mr. Dodd had to pay use and occupancy.


Case Caption:
Partnership 92 West LP v. Woods
Issues/Legal Principles:
Tenant cannot be awarded legal fees where no lease is produced containing an attorney's fees provision.
Keywords:
attorneys fees
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Carol Arber
Date:
September 8, 2000
Citation:
NYLJ, page 26, col. 2
Referred Statutes:
RPL 234
Summary:
The lower court granted tenant's application for attorney's fees, but the Appellate Term reversed on grounds that the tenant did not sustain her burden of proof that a lease was executed containing a provision for the recovery of attorney's fees. No original lease, going back over 30 years, was ever produced by either party. The lower court concluded that the lease contained an attorney's fees clause because the holdover petition contained a demand for legal fees. The Appellate Term, however, held that the mere request for legal fees in a petition is not a judicial admission of entitlement to fees, and that fees cannot be awarded on mere speculation of whether the lease contains a clause granting legal fees. The actual lease must be produced to ascertain if it contains an attorney's fees clause.