Housing Court Decisions April 2001
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 April 23-27, 2001 (7 cases)


Case Caption:
102-116 8th Avenue Associates v. Oyola
Issues/Legal Principles:
Court restored tenant to possession of apartment after eviction since tenant tried to pay rent, although not the full amount, and landlord rejected the tender.
Keywords:
default; partial payment
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Timmie Elsner
Date:
April 23, 2001
Citation:
NYLJ, page 24, col 3
Referred Statutes:
RPAPL 747-a
Summary:
The tenant was evicted for alleged nonpayment of rent, but the lower court restored the tenant to possession upon payment of all arrears, eviction costs and attorney's fees. The Appellate Term upheld the decision finding that good cause for vacating the warrant was shown here where the tenant attempted to pay the rental arrears, although not the full amount, and landlord rejected the payment. Tenant paid only part of the rent because he did not have access to his money orders which had been removed with his possessions upon his eviction the previous day. The Appellate Term ruled that the relief fashioned by the court appropriately balanced the interests of both parties.


Case Caption:
Zenila Realty Corp. v. Marget
Issues/Legal Principles:
Tenants who burn incense daily having a "strong and noxious" odor created an annoyance to other tenants, thereby justifying judgment of possession to landlord.
Keywords:
nuisance
Court:
Appellate Term, First Department
lower court: Hon Nicholas Figueroa
Date:
April 23, 2001
Citation:
NYLJ, page 24, col 3
Referred Statutes:
none cited
Summary:
Tenants admitted burning incense daily in their apartment and two of the other residential tenants in the small building testified as to the strong and noxious smell emanating from the premises. The lower court ruled the tenants should be evicted. The Appellate Term upheld, holding that continually creating this odor could fairly be interpreted as a breach of a substantial obligation of the lease, which by its terms forbid "annoying" smells and interference with the comfort and rights of other tenants.


Case Caption:
Cornell University v. Gordon
Issues/Legal Principles:
Court allows tenant to cure illegal alteration regarding balcony, but tenant is not required to cure illegal alteration of kitchen and bath fixtures because landlord did not mention these latter items in the notice to cure.
Keywords:
illegal alterations; notice to cure; post judgment cure
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Howard Malatzky
Date:
April 25, 2001
Citation:
NYLJ, page 18, col 1
Referred Statutes:
none cited
Summary:
The landlord brought a holdover proceeding against the tenant on grounds of illegal alterations. The lower court found that tenant had in fact materially altered the enclosure of her balcony which enlarged her bedroom. The judge gave her an opportunity to cure, and she did by removing the door to the balcony and an outer window. The judge inspected the apartment after the cure to ensure that she had in fact removed the alteration complained of. The landlord, however, appealed on grounds that the court should have also required her to remove the kitchen and bathroom fixtures she installed, also allegedly illegally. The notice to cure, however, did not mention this alteration, but rather mentioned only the balcony. The Appellate Term thus rejected landlord's appeal. The Appellate Term also ruled that the tenant's cure was sufficient even if not an exact restoration of the premises in every detail. Landlord failed to establish any meaningful deviation from the pre-alteration condition of the apartment or that the work by tenant was of inferior quality.


Case Caption:
Basch v. Schriber
Issues/Legal Principles:
Landlord may maintain current holdover proceeding because 1993 holdover proceeding is deemed abandoned, as it was marked off calendar for over one year.
Keywords:
abandonment; nonprimary residency
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Jerald R. Klein
Date:
April 25, 2001
Citation:
NYLJ, page 18, col 1
Referred Statutes:
CPLR 3211(a)(4), 3404; 22 NYCRR 208.14(c)
Summary:
The landlord brought a holdover proceeding against the loft tenant on grounds of nonprimary residence. A previous holdover on the same grounds occurred in 1993, but it was marked off calendar to engage in discovery. Yet, the discovery never went forward. The lower court dismissed the current proceeding as "barred" due to another action pending, i.e., the 1993 proceeding. Tenant argued that the landlord first had to request the court's permission to discontinue the 1993 proceeding before commencing the recent proceeding. The Appellate Term reversed the lower court on grounds that, since the 1993 case was marked off calendar for over one year, it must be deemed abandoned. Therefore, landlord did not need any permission to discontinue that case in order to commence the new holdover.


Case Caption:
716 Lefferts House v. Goldstock
Issues/Legal Principles:
Stipulation vacated where landlord falsely alleged that the building was not subject to rent regulation when in fact the landlord agreed to stabilize the building in exchange for receiving J-51 tax abatements.
Keywords:
J-51 tax abatement; stipulation; fraud
Court:
Civil Housing Court, Kings County
Judge:
Hon. Dawn Jimenez
Date:
April 25, 2001
Citation:
NYLJ, page 22, col 6
Referred Statutes:
RPTL 421-a; RSC 2520.13
Summary:
Landlord brought a holdover proceeding and claimed in the petition that the building had less than six units and was not subject to rent regulation. The entered into a settlement in reliance on that representation by the landlord. Now the tenants have asked the court to set aside the stipulation on grounds of fraud. The tenants discovered that they are rent stabilized because the landlord accepted J-51 tax abatements since 1992 in exchange for making the building subject to rent regulation for the period the abatements last. The landlord never registered with the DHCR nor advised the tenants about their regulated status. Landlord does not dispute tenant's claim, but asserts that since the tenants were represented by counsel at the time the settlement was signed, they must be bound by its terms (implying that counsel could have easily investigated the status of the premises).

The court observed that stipulations are not readily cast aside, particularly where all sides are represented by counsel. However, where good cause exist, the fact that attorneys were involved is not dispositive. The court found that the tenants have submitted a "compelling argument" undisputed by the landlord for setting aside the stipulation of settlement. The court held that the landlord would be rewarded were the status quo preserved, and that landlord was duty bound to register the building with the DHCR. To enforce this stipulation would work a gross injustice, according to the court, and would encourage other landlords to also evade the rent stabilization laws. The court pointed out that tenants cannot waive their rent stabilization protection, especially so where they never were told of their rights. Vacating the stipulation does no more than return the parties to the status quo, given that the landlord never had a right to evict the tenant on grounds that the tenant had no regulated status. Since the petition was false and since no proper termination notice was served in this holdover proceeding, the court not only set aside the stipulation, but dismissed the proceeding as well.


Case Caption:
In Matter of Linden-Rath
Issues/Legal Principles:
Guardian of elderly tenant succeeds in permanently staying notice of termination in Supreme Court on grounds that no nuisance exists.
Keywords:
guardian; nuisance; termination notice; stay
Court:
Supreme Court, New York County
Judge:
Hon. Diane Lebedeff
Date:
April 25, 2001
Citation:
NYLJ, page 18, col 2
Referred Statutes:
CPLR 1207, 1206, Mental Health Law 81.10(c)(3), 81.29(c)
Summary:
The tenant is a "remarkably vigorous and charming woman" of 103 years old, the widow of a German county. For the past 50 years she has lived in the same rent control apartment. In 1999, the landlord petitioned the Supreme Court to appoint a guardian for the tenant because she had created a nuisance. The court evaluator's report confirmed that the apartment was massively cluttered. A guardian was appointed, and a very costly deep clean was successfully performed on the apartment. About a year or so later, the landlord complained to the court that the tenant was continuing to bring junk into the apartment. The court conducted an inspection and saw that the conditions had greatly improved. Further, the guardian reported that the tenant then began to see that her clean apartment was "normal," and she began to take pride in its appearance. Now, again a year later, the landlord has served a termination notice on the tenant seeking to sue the guardian, and alleging nuisance. This would set in motion a proceeding in Housing Court.

The tenant's guardian did not wait for the proceeding to come to Housing Court. Rather, the guardian went to the Supreme Court judge seeking a stay on terminating the tenancy. The Supreme Court granted the guardian's motion citing ample case law to substantiate the legal standard that a guardian has a duty to attend to the ward's living situation, and keeping the incapacitated person in the home is generally preferable. Hence, it was within the court's power to stay the termination of the tenancy based on the guardian's duty.

The court conducted a hearing regarding the condition of the apartment. The evidence established that the tenant's apartment is even more improved than when the court visited it almost a year earlier. And a home attendant comes to the apartment to monitor and clean on a regular basis. The landlord's photographs differed from the guardian's photographs. For example, the rooms were painted in the guardian's pictures, and in need of paint in the landlord's photos. The collecting activity continues, but it is reduced. The original excess of possessions, however, has been eliminated. Hence, the court concluded that the landlord failed to establish evidence of a current unreasonable accumulation of objects in the apartment on a daily or continuous basis, vermin infestation or any condition endangering life, health or safety of the ward or other tenants. The conditions simply do not establish a nuisance sufficient for eviction upon the basis set forth in the termination notice. The court therefore permanently stayed the notice of termination, and permission to sue the guardian based upon the termination's notice was denied by the court.


Case Caption:
Caulfield v. Leung
Issues/Legal Principles:
An overcharge of the rent is not a necessary element in finding an illusory prime tenancy scheme.
Keywords:
illusory prime tenant; overcharge; mixed usage
Court:
Civil Housing Court, New York County
Judge:
Hon. Jerald Klein
Date:
April 25, 2001
Citation:
NYLJ, page 19, col 2
Referred Statutes:
RPAPL 741(2)
Summary:
The landlord brought a holdover proceeding against the alleged tenant and the alleged subtenant on grounds that the subtenant was creating a nuisance by working out of the apartment and using it as a fitness center in violation of the lease and the law. The subtenant, firstly, vehemently refuted the accusations, arguing that she has some clients, but does not use the apartment in the manner characterized by the landlord. Additionally, the subtenant asserts that ten neighbors will testify that her usage of the premises does not constitute a nuisance. The court denied the landlord's request for summary judgment because there are clearly issues of fact as to how the premises are used. More significantly, the court denied the motion because the subtenant made a cross-motion for summary judgment on grounds that this holdover proceeding cannot go forward because there is an illusory prime tenancy scheme, and this subtenant is the veritable tenant of record.

The subtenant informed the court that she never met or spoke with the alleged prime tenant, and that in fact, according to a letter received from a principal of the prior owner, the alleged prime tenant was a partner of the former corporate owner. The subtenant argued that since the alleged prime tenant is a "phantom," the notices and the petition (continuing to name the alleged prime tenant as a prime tenant) are all in violation of RPAPL 741 which requires a landlord to set forth the interests of the parties. In this case, the subtenant is actually the tenant, and the petition errs for not recognizing this. The landlord did not dispute the prior owner's illusory prime tenancy scheme, but rather claimed that since the subtenant was not overcharged there can be no illusory prime tenancy.

The narrow issue before the court was whether, to prove an illusory prime tenancy, there must exist an overcharge. The court noted that an illusory prime tenancy occurs when a party assumes the guise of a prime tenant, enters into a sublease and these acts have the effect of directly or indirectly evading the requirements of the rent stabilization laws. The court noted that the subtenant never met the prime tenant and that it seemed clear that the prime tenant did not occupy the apartment as his primary residency, or intend to return at the end of the sublease. The court noted that this landlord knew the occupant of the apartment was not the prime tenant, and therefore should have inquired into the alleged prime tenant's prolonged absence when this proceeding was commenced. The court held that profiteering was only one factor and not a requirement in a finding of illusory prime tenancy, and that profiteering can occur by means other than rent gouging. A rent stabilized tenancy involves more than just stabilizing the rent, it also stabilizes the tenancy itself by guaranteeing continued occupancy, which is immeasurable in value.

The court concluded that even though profiteering did not occur, there is not a good faith tenancy here. The court declared the prime tenant an illusory prime tenant and therefore the subtenant is entitled to the rent stabilized lease in her name with the identical terms and conditions as the new lease with the exception of rent which must be the legal regulated rent pursuant to rent stabilization guidelines and law. While the tenant is afforded the protection she was wrongfully denied, she should not be entitled to an impermissible windfall. The court preserved the tenant's claim for legal fees.


New York Law Journal,
decisions for the week of April 16-20, 2001 (13 cases)


Case Caption:
Fullan v. 142 East 27th Street Assoc.
Issues/Legal Principles:
Tenant is entitled to recovery of Fair Market Rent Appeal award and attorneys fees as against current landlord, and court refused to delay case pending outcome of landlord's cross- claim for indemnification against former landlord.
Keywords:
Fair Market Rent Appeal; attorneys fees
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Sherry Heitler
Date:
April 16, 2001
Citation:
NYLJ, page 22, col 5
Referred Statutes:
none cited
Summary:
Tenants won a Fair Market Rent Appeal (FMRA) against their landlord via a DHCR order in their favor. They commenced an action against the current landlord to recover roughly $37,480 in excessive rent paid by them between 1985 and 1993 to their former landlord. The lower court ruled that a current landlord is generally liable for overcharges collected by a predecessor after April 1, 1984. The Appellate Division saw no reason to depart from this general rule, and affirmed the lower court's award granting the tenants attorneys fees. The Appellate Division held that had the current landlord engaged in due diligence, the FMRA could have readily been ascertained prior to purchasing the property. Then the current landlord could have avoided this enforcement action by the tenants had proper steps been taken, or at the very least, avoided the financial consequences of successor liability (including attorneys fees). The Appellate Division affirmed the lower court's ruling and likewise rejected the landlord's request to delay the matter pending its cross claims against the former owner for indemnification.


Case Caption:
Alphonse Hotel Corp. v. Sayegrih
Issues/Legal Principles:
Tenant who attempted to vacate a default judgment had a meritorious defense to the nonpayment proceeding on grounds that he didn't owe rent because the landlord owed him back pay as a former employee.
Keywords:
default judgment; meritorious defense; reasonable excuse
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Walter Strauss
Date:
April 16, 2001
Citation:
NYLJ, page 24, col 1
Referred Statutes:
CPLR 5015
Summary:
Landlord brought a nonpayment proceeding against the tenant who did not appear on a motion return date. The lower court denied the tenant's motion to vacate the default judgment for unpaid rent on grounds that no rent is owed because he was an employee who occupied the hotel room as an incident of his employment. The record reflected that New York State Industrial Board of Appeals directed the landlord to pay tenant unpaid wages and penalties. The Appellate Term held that this ruling evidences the tenant's potential meritorious defense. To vacate a default judgment, generally, a party must show that had they appeared in court, rather than defaulting, they would have had a meritorious defense. A second criteria to vacate a default is a reasonable excuse why the party did not show up in court. In this case, the tenant claimed he was unaware of landlord's motion to restore the case to the calendar. The Appellate Term found this excuse credible in light of tenant's history of a prompt and vigorous defense of the proceeding and his attorney's admission of possible "inadvertent law office failure." The Appellate Term noted that no notice of entry was served, and the landlord failed to rebut tenant's claim that he only first learned of the judgment at the time of the income execution three years later. Hence, the court found the delay was excusable, but not willful. Guided by a strong public policy for resolving cases on the merits and considering the apparent lack of willfulness on the part of the tenant, coupled with a meritorious defense, the Appellate Term reversed the lower court's denial of tenant's motion to vacate the default judgment.


Case Caption:
RVR Realty LLC v. Arbouin
Issues/Legal Principles:
Tenant's minimal electric usage and absence of gas and telephone service, with other factors, led the court to conclude that the tenant utilized this apartment solely as a storage site and to harbor her dog.
Keywords:
nonprimary residence
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Laurie Lau
Date:
April 16, 2001
Citation:
NYLJ, page 24, col 1
Referred Statutes:
none cited
Summary:
Landlord brought a holdover proceeding against the rent controlled tenant on owner occupancy grounds. The lower court ruled that the tenant did not maintain the apartment as a primary residence because the unit was used for storage and to harbor her dog. The electric usage was minimal and tenant had no gas service for approximately 5 years, and no telephone service for longer than that. An accumulation of boxes, newspapers and old clothing was piled approximately five feet high, with little empty floor space. These factors led the court to conclude that the tenant was actually living with her mother in an adjoining building. The Appellate Court affirmed, but did not elaborate the type of documentary evidence which connected the tenant to the apartment.
Notes:
It seems the landlord probably got permission from the court (i.e., discovery) to get access to the tenant's apartment to see the alleged accumulation of material. It doesn't seem that the tenant's own testimony would have produced this information.


Case Caption:
Kuhn v. Siemens
Issues/Legal Principles:
Attorney who interacted with respondents for months on behalf of the landlord was known to the respondents, and therefore the petition was not defective simply because the lawyer failed to attach the power of attorney to the petition when he signed the petition on his client's behalf.
Keywords:
power of attorney; defective petition
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Laurie Lau
Date:
April 12, 2001
Citation:
NYLJ, page 24, col 1
Referred Statutes:
RPAPL 721, 735(1)
Summary:
The petition was signed by the landlord's lawyer as attorney-in-fact, but the power of attorney document was not attached to the petition. The lower court ruled that this did not make the petition defective, and the Appellate Term agreed. The landlord, a proprietary lessee of the cooperative apartment sublet the unit to the respondents. The attorney was well known to the respondents as the landlord's attorney and representative. The attorney signed the sublease on his client's behalf and the respondents mailed him the monthly rent and corresponded with him. Thus, the respondents cannot claim that the attorney was an unknown entity to them, and that the petition's failure to attach the power-of-attorney was defective. The Appellate Term upheld the lower court's ruling, and further held that simply because the respondents vacated the premises during the course of the litigation does not deprive the lower court of jurisdiction to determine the amount of rent (use and occupancy) owed.


Case Caption:
Tenth Realty LLC v. Olle
Issues/Legal Principles:
Appellate Term sets guidelines (i.e., identifies specific common features) for establishing a horizontal multiple dwelling.
Keywords:
horizontal multiple dwelling
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Timmie Elsner
Date:
April 17, 2001
Citation:
NYLJ, page 18, col 1
Referred Statutes:
Administrative Code of the City of New York 26-504, 26-505
Summary:
The Appellate Term upheld the lower court's finding that the two contiguous buildings in question constitute a horizontal multiple dwelling subject to rent stabilization. (This means that two buildings each do not have six or more units to warrant stabilization coverage, but if they share enough key features and combined have six or more units, then the buildings will be subject to rent stabilization). The record showed, among other things, a long history of common ownership and management, common heating and plumbing systems, a common internal passageway, a common facade and common front and rear fire escapes. The Appellate Term held: "Although the landlord points to other factors which might support a different conclusion, the presence of the common building features highlighted above is more than sufficient to support a finding of horizontal multiple dwelling status."
Notes:
This is a useful case because tenants who want to prove a horizontal multiple dwelling tend to try to gather a massive accumulation of evidence. This case provides a sort of threshold. In other words, if the building has all the features mentioned above, then, according to the Appellate Term, it should qualify as a horizontal multiple dwelling without more.


Case Caption:
Goldman v. Topping
Issues/Legal Principles:
Tenant is entitled to enforce Fair Market Rent Appeal award in Housing Court via a counterclaim 6 months after DHCR's decision is rendered.
Keywords:
Fair Market Rent Appeal; counterclaim; legal fees
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Timmie Elsner
Date:
April 6, 2001
Citation:
NYLJ, page 18, col 1
Referred Statutes:
22 NYCRR 208.14(c); RPAPL 743; RPL 234
Summary:
In a nonpayment proceeding the tenant interposed a counterclaim for a refund of excess rent paid pursuant to a DHCR order regarding his Fair Market Rent Appeal. The parties agreed to mark the case off calendar pending landlord's appeal of the DHCR order. Landlord appealed all the way to the Court of Appeals, unsuccessful each step of the way. 17 months after the case was marked off calendar, the tenant made a motion to restore the case to the calendar for a hearing on his attorney's fees. Landlord opposed. Usually a proceeding marked off calendar for longer than a year is deemed abandoned, but in this case the court held that the landlord's pursuit of an appeal is the only reason the case was marked off calendar for so long. The Appellate Term affirmed, also adding that the counterclaim had merit, the tenant had no intent to abandon the counterclaim and there was no prejudice to the landlord.

Landlord appealed on grounds that the lower court did not have jurisdiction to hear the Fair Market Rent Appeal. The Appellate Term rejected this argument, holding that since a tenant is entitled to bring a plenary action to enforce a Fair Market Rent Appeal adjustment order where excess rent has not been fully refunded within six months, the lower court had jurisdiction to entertain tenant's counterclaim and render judgment for the amount due. Since the amount due was not in dispute, the lower court properly rendered summary judgment in favor of the tenant. The lower court also ruled that the tenant is not entitled to attorneys fees in defense of landlord's appeal of the DHCR order in an Article 78 proceeding (and up to the Court of Appeals). The Appellate Term, however, ruled that the tenant is entitled to fees in connection with his action to enforce the order and a hearing on fees was appropriately held to that extent by the lower court.


Case Caption:
Miller v. Vosooghi
Issues/Legal Principles:
Tenant is granted discovery to determine landlord's good faith intentions in owner occupancy proceeding.
Keywords:
owner occupancy; discovery; nonrenewal notice
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Jean Schneider
Date:
April 18, 2001
Citation:
NYLJ, page 18, col 1
Referred Statutes:
none cited
Summary:
In an owner occupancy proceeding, the lower court allowed the tenant to conduct discovery on the owner to determine the owner's good faith in seeking to recover the tenant's apartment for the owner's son's use. Discovery is allowed because the "operative facts" as to the owner's intentions are within the owner's "exclusive knowledge." The lower court denied tenant's motion to dismiss the petition on grounds that the nonrenewal notice contained a fatal defect. The notice was signed by the owner who is the record owner. The fact that the owner's trade name was listed on the lease does not make the notice defective. Tenant's argument that he will be prevented from "fairly assessing his prospect at trial" is specious because the record shows that the tenant has dealt with the landlord as owner for many years. The Appellate Term upheld the denial of the dismissal of the petition on grounds that the notice was "reasonable in view of all attendant circumstances" which is the standard for assessing the adequacy of a nonrenewal notice.


Case Caption:
Kulick and Rheingold, LLC v. Stewart
Issues/Legal Principles:
Tenant's retaliatory eviction claim does not constitute a waiver of tenant's jury demand, since a retaliatory eviction claim is not deemed "equitable relief."
Keywords:
retaliatory eviction; jury demand
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Thomas Fitzpatrick
Date:
April 18, 2001
Citation:
NYLJ, page 18, col 1
Referred Statutes:
RPL 223-b; RPAPL 745
Summary:
Tenant raised the defense of retaliatory eviction, and by doing so tenant did not waive the right to a jury trial since no affirmative equitable relief was sought and the substance of the proceeding involves landlord-tenant issues triable by jury. Further, no contractual waiver of the right to jury trial is claimed (i.e., such as a lease clause prohibiting a jury).


Case Caption:
Notre Dame Leasing LLC v. Rosario
Issues/Legal Principles:
Tenant who withholds rent due to violations based on the Spiegel Law defense must show that Social Service officials likewise withheld their portion of the rent, too, (i.e., the public subsidy portion of the rent).
Keywords:
Spiegel Defense; violations
Court:
Appellate Term, 2nd & 11th Judicial Districts
Judge:
lower court: Hon. U. Leverett
Date:
April 18, 2001
Citation:
NYLJ, page 22, col 1
Referred Statutes:
Social Services Law 143-b
Summary:
Tenants sought to dismiss landlord's nonpayment petition under the Spiegel Law and the lower court granted to the extent of staying the proceeding until such time as landlord "submits satisfactory proof to this court that conditions constituting pending "B" violations that are dangerous, hazardous and detrimental to life and health have been corrected." The Appellate Term reversed, holding that the Spiegel Law defense is available to a tenant only after the appropriate Social Services official has withhold rent payments based on the existence of hazardous violations in the building. In other words, it is not enough just for the tenant to withhold the rent, the Social Services department must also withhold their portion of the rent payment to the landlord. This is because the Spiegel Law authorizes "public welfare officials to withhold rents in cases of recipients of public assistance who are tenants in buildings in which dangerous violations exist . . ." The appellate court ruled that since the tenants failed to show that Social Services also withheld the rent, the motion to stay the proceeding should not have been granted.


Case Caption:
Palacci v. Tuccio
Issues/Legal Principles:
Trial needed to determine if tenant's occupancy of apartment in 1965 satisfies rent control laws, such as whether the unit became vacant on or after April 1, 1953 and whether the unit was "not occupied for other than single family occupancy."
Keywords:
rent control
Court:
Appellate Term, 2nd & 11th Judicial Districts
Judge:
lower court: Hon. Thomas
Date:
April 19, 2001
Citation:
NYLJ, page 22, col 6
Referred Statutes:
Administrative Code of the City of New York 26-403(e) (New York City Rent and Rehabilitation Law)
Summary:
Landlord commenced a holdover proceeding to recover possession of the apartment. The petition alleged that the apartment was not subject to rent control because it is located in a two-family house which became vacant subsequent to April 1, 1953, that the tenant was a month to month tenant and that the tenancy expired by a thirty day notice. Tenant made a motion for summary judgment stating that she moved into the apartment owned by her husband's family in 1965 and that the building contained two other apartments occupied by other family members at that time, and thus is was subject to rent control. The lower court dismissed the petition, but the Appellate Term reversed. The Court held that the tenant has not established as a matter of law that the unit is rent controlled. Questions of fact exist as to whether the apartment became vacant on or after April 1, 1953 and whether the unit was "not occupied for other than single family occupancy." Since tenant has exclusive knowledge of the facts concerning the apartment when she moved in, the Court ruled that she must establish her status as a rent control tenant by testimony subject to cross-examination (rather than in an affidavit on a motion which is not susceptible to cross-examination).


Case Caption:
East 82 LLC v. Friedman
Issues/Legal Principles:
Tenant occupying illegal space which does not conform to residential certificate of occupancy may be evicted since it is impossible to correct the illegal condition, but landlord is not entitled to collect the rent.
Keywords:
certificate of occupancy; illegal usage; ejectment action; infeasability
Court:
Supreme Court, New York County
Judge:
Hon. Martin Shoenfeld
Date:
April 19, 2001
Citation:
NYLJ, page 18, col 5
Referred Statutes:
RPL 234; RSC 2524.2(a), 2524.3(c); Multiple Dwelling Law 302(1), 34(6)
Summary:
The prior landlord leased Apartment A to the tenant pursuant to a lease running from February 1998 to February 1999 "for living purposes only." Shortly before the current landlord purchased the building in April, 1999, the tenant stopped paying rent after finding out that the certificate of occupancy did not list her apartment for residential purposes. Instead Apartment A was listed as a cellar with boiler room, meter rooms, laundry room and doctor's office. During heavy storms water would flood into tenant's apartment. In May 1999, the landlord began a nonpayment proceeding in Housing Court, but tenant argued that she was not required to pay rent where there was no certificate of occupancy for her apartment and her suffered rent impairing violations (the flooding). In January, 2000 the boiler caught fire due a gas leak.

Landlord's architect submits that it is not feasible for the landlord to obtain an amended certificate of occupancy. This is because in order for this unit to be given legal residential status, its ceiling must be a certain height but it is not possible to raise the ceiling of this cellar apartment. Hence, the landlord is required to bring an ejectment proceeding in Supreme Court based on illegal occupancy, but landlord is precluded from accepting the rent as the occupancy usage violates the Multiple Dwelling Law. The landlord did bring an ejectment action in Supreme Court. Tenant's first argument is that landlord did not serve tenant a proper termination notice as required by the rent stabilization law. But the court analyzed the common law and prior case law and ruled that a termination notice is not a prerequisite to an ejectment action in Supreme Court (although it is a requirement for a summary proceeding in Housing Court). Tenant further argues that where a tenancy is illegal, the remedy is for the landlord to cure the problem rather than evict the tenant. But landlord's architect submits that it is impossible to satisfy numerous legal requirements to convert the unit to proper residential standards, citing Zoning Regulations and the Multiple Dwelling Law. The tenant submitted a counter affidavit from her architect who stated that he did not have sufficient time to determine whether the apartment can be legalized. The court, however, found that since the time of submission until the decision was written, there was ample time to submit additional papers, but in any event, parts of the landlord's architect's position appear "incontrovertible."

The court concluded that the tenant's occupancy is illegal and dangerous, even if the tenant did not know that when she moved in. The court held that in addition to the law, legal decisions should follow common sense. Here a greedy, or very uninformed, landlord rented out as residential space a basement area designed as office space. A new landlord bought the building around the time the tenant stopped paying the rent because the space was illegally inhabited. The landlord's nonpayment proceeding was foiled because the tenant was not required to pay rent to an illegal apartment. The illegality was not a mere technical defect, but inherent in the design and nature of the building which would subject the new landlord to fines and penalties and subjected the tenant to risk of injury and death. Common sense dictates that the landlord be given the space back but not be allowed to collect the rent normally due if the space had been legally occupied. For these reasons the court granted landlord's motion for summary judgment.


Case Caption:
Del Gigante v. Danilova
Issues/Legal Principles:
Landlord's rental for 20 years of an illegal cellar apartment does not result in dismissal of holdover petition, but landlord will possibly have to prove why legalization for residential usage is not feasible.
Keywords:
certificate of occupancy; illegal tenancy; unclean hands; ejectment
Court:
Civil Housing Court, Bronx County
Judge:
Hon. Gonzalez
Date:
April 18, 2001
Citation:
NYLJ, page 21, col 2
Referred Statutes:
Multiple Dwelling Law 2, 34, 301(1)(b), 302; 27 NYCRR 217; RPAPL 741(3), 711; Civil Court Act 110(a); NY Constitution Article 6, Section 7; 26 NYCRR 126.1; 9 NYCRR 2524.3(c), 2524.2
Summary:
The building consists of 6 legal apartments. This tenant lives in Apartment A, a cellar apartment, which was never legalized, it lacks a certificate of residential occupancy, and its permitted usage is for storage or boiler room, laundry or doctor's office. The DHCR records Apartment A as a rent stabilized tenant. The Department of Buildings issued a violation to the landlord for renting Apartment A to residential tenants. Landlord has rented out Apartment A to residents for twenty years. The landlord was told by an architect that legalizing the apartment is not feasible. The landlord has now commenced an eviction proceeding against the tenant. The petition characterizes Apartment A as an illegal apartment. The court looked to the Rent Stabilization Code which provides that an owner may evict a tenant where occupancy of the housing accommodation by the tenant is illegal and the owner is subject to civil or criminal penalties. This, the court found, is exactly the situation in the case at bar. Indeed, the Department of Buildings held a hearing and imposed an $800 fine on landlord for the illegal tenancy.

Apparently, tenant argued that the landlord has acted with unclean hands by collecting rent for all these years knowing that the apartment's certificate of occupancy did not permit residential tenants. To that, the court held that the landlord could be made to go to Supreme Court in an ejectment action. But weighing the equities it is clear that public policy compels that in this instance the Housing Court prioritize the well-being of the tenant, firefighters or the public if "calamity" struck, so the expeditious nature of Housing Court is preferable to the slow- moving Supreme Court. The court declined to dismiss the petition, but set the matter down for a hearing, presumably to determine whether "legalization of the premises is a remedy available to the tenant."

Notes:
Presumably, landlord's architect will have to testify why it is not "feasible" to legalize the cellar unit into a residential apartment. Tenant would be advised to hire her own expert architect to show, if possible, why landlord must be made to legalize the apartment to suit a residential tenancy, rather than evict the tenant.


Case Caption:
Aspenly Co LLC v. Prastien
Issues/Legal Principles:
In claiming succession rights to the apartment, respondent is unable to satisfy the requisite time period for contemporaneous co-occupancy with the deceased tenants of record, and does not satisfy the legal definition of a "disabled person."
Keywords:
succession rights; disability; primary residence
Court:
Civil Housing Court, New York County
Judge:
Hon. Shlomo Hagler
Date:
April 18, 2001
Citation:
NYLJ, page 20, col 3
Referred Statutes:
9 NYCRR 2523.5(b)(1), 2524.4(a)(1), 2520.6(q); 42 USCA 12102(2)(A); 29 CFR 1630.2
Summary:
Upon the death of respondent's mother in January of 2000, one of the rent stabilized tenants of record, respondent claimed succession rights when landlord brought a licensee holdover proceeding against him. (The other tenant of record was respondent's step-father who also died). Respondent, as well as a nurse who cared for his mother and stepfather, testified that he moved into the apartment in mid-July 1998, after his stepfather had died. He initially stayed several days a week, then gradually increased his visits from five days to seven days a week in or about December, 1998. All the documentary evidence, however, places respondent in New Jersey where he had a marital home at least until June, 2000. Accordingly, the court concluded that respondent was unable to establish two-year contemporaneous co-occupancy. If respondent were deemed disabled, he only has to establish one-year contemporaneous co-occupancy.

The court analyzed the history of the term "disabled" as applied to owner occupancy proceedings and succession rights cases. The definition focused on an impairment which was expected to be permanent and prevented a person ". . . from engaging in any substantial employment." Later, the law changed and broadened with respect to succession rights so that one could be employed and still come within the ambit of the definition of a "disabled person." Now the term has four elements: (1) an impairment resulting from anatomical, physiological or psychological conditions, (2) demonstrable by medically acceptable clinical and laboratory diagnostic techniques, (3) which are expected to be permanent, and (4) substantially limit one or more of such person's major life activities.

The court noted that there are no decisions interpreting "disabled person" in succession rights cases. The court turned to a federal statute, the Americans for Disabilities Act, which has a wealth of reported cases, and whose definition is quite similar to that in the succession rights statute. The court analyzed many of those cases and their holdings as to what constitutes a disability. An impairment cannot be trivial, such as obesity which limits walking, lifting, bending and other physical activity, but not necessarily impair a major life activity. The impairment, rather, must be substantial and affect a major life activity, such as employment. In the case at bar, the respondent testified that he suffers from depression, diabetes, chronic fatigue syndrome, ankylosing spondylitis and arthritis. Respondent's doctor testified that he began treating his patient more than a year ago after respondent had already been diagnosed with these afflictions by other physicians.

In essence, respondent's testimony addressed how his major life activity of working was affected by his disabilities. He claimed that his impairment limits his ability to adequately perform work as a plumber and/or steam fitter. But he has been gainfully employed with a corporation which he formed in 1997 to provide certain plumbing and/or steam fitting services. He is the sole shareholder and president of the corporation which contracts with the Department of Corrections to inspect its extensive sprinkler systems. Respondent received a salary and filed New Jersey tax returns, yet he received no private or government disability benefits. The court thus concluded that respondent cannot be regarded as substantially limited in the major life activity of working because as a plumber and/or steam fitting. His employment actually involves a broader class of work that requires and utilizes his knowledge of plumbing and/or steam fitting (i.e. without necessarily involving physical labor on his part). The court determined that his alleged disqualification from performing certain specific plumbing work and/or steam fitting as well as his inability to perform any single particular job is not substantially limiting to qualify him as a "disabled person" under the Rent Stabilization Code's definition. Whatever other limitations the respondent suffers, such as difficulty to lift or run and jog, cannot be classified as a substantial limitation of a major life activity. The court concluded that even if the respondent were legally disabled, he still cannot satisfy the one-year contemporaneous co- occupancy because all his documentation places him in New Jersey.

New York Law Journal,
decisions for the week of April 9-13, 2001 (4 cases)


Case Caption:
Emel Realty Corp. v. Carey
Issues/Legal Principles:
Tenant's unexplained, inexcusable absence from premises results in nonprimary residency, even though landlord did not identify an alternate address.
Keywords:
nonprimary residence
Court:
Appellate Term, First Department
Judge:
lower court Hon. Andres Martino
Date:
April 11, 2001
Citation:
NYLJ, page 18, col 1
Referred Statutes:
none cited
Summary:
Landlord commenced a nonprimary residence holdover proceeding against tenant and the court held for the tenant despite finding that the tenant is "underutilizing" the apartment, having only stayed all night there seven times in a one-year period. The court also found that the tenant's friend spent months in the apartment during this period. During most of the period, the tenant was in Florida staying with either parents or friends, and when in New York she stayed with an intimate male friend, rather than the apartment, allegedly because the apartment had asbestos■although the court did not find this reason credible. Despite these findings of fact, the court ruled in her favor on grounds that "underutilization alone is not sufficient to show non primary residence" and landlord failed to "identify another place other than the subject premises where the respondent [tenant] primarily resides."

The Appellate Term reversed, holding that the tenant's minimal occupancy did not constitute the type of ongoing, substantial physical nexus with the apartment that is necessary to maintain rent regulated status. The Court acknowledged that simply because a tenant spends relatively little time in their apartment does not automatically result in a nonprimary residency finding because there are absences which are excusable (e.g., military service, full-time academic study, hospitalization). In this case, the Court agreed with the trial court that the tenant's grounds for absence■constructive eviction due to asbestos■was not credible. Her testimony that her singing career, itinerant and unsubstantiated, was not addressed by the lower court, but had it been, the Appellate Term opined that it was not an excusable reason for her absence. Finally, the Court noted that a landlord is not obliged to identify or pinpoint with certainty the precise location of a tenant's primary residence in a situation where, as here, the tenant is shown to spend considerable amounts of time at several different alternate addresses. It was sufficient for the landlord to show that the tenant did not actively use the apartment for dwelling purposes, but rather regularly lived elsewhere.


Case Caption:
Sessler v. DHCR
Issues/Legal Principles:
DHCR properly refused to consider tenant's overcharge complaint filed in 1997 beyond a four year period (i.e., back to 1993) even though no rent registration statement had been filed since 1989.
Keywords:
overcharges; statute of limitations
Court:
Appellate Division, First Department
lower court: Hon Nicholas Figueroa
Date:
April 12, 2001
Citation:
NYLJ, page 20, col 4
Referred Statutes:
26-516(a)(2); CPLR 213-a
Summary:
Tenant's overcharge complaint was denied by the DHCR and he appealed in an Article 78, lost, and appealed further to the Appellate Division which upheld the denial. The Court ruled that DHCR properly refused to consider the rent history of the apartment beyond the four- year period measured from tenant's commencement of the rent overcharge proceeding on March 31, 1997 (i.e., beyond March 31, 1993). The Court ruled that it did not matter that the last rent registration statement filed by the landlord before the complaint was filed was in 1989, two years before the tenant took occupancy in July 1991.


Case Caption:
Miller v. Margab Realty LLC
Issues/Legal Principles:
Residential units in a commercial district not subject to Loft Board coverage may still receive rent stabilization status through the Emergency Tenant Protection Act.
Keywords:
rent stabilization coverage; illusory prime tenancy; certificate of occupancy; Loft Law; substantial rehabilitation
Court:
Supreme Court, New York County
Judge:
Hon. Alice Schlesinger
Date:
April 11, 2001
Citation:
NYLJ, page 19, col 2
Referred Statutes:
Zoning Resolution 4100(b), Section 72-20; Multiple Dwelling Law 281(4); McKinney's Unconsolidated Laws 8625(a)(5)
Summary:
The plaintiffs-tenants brought a lawsuit against their landlord on grounds that their apartments are subject to the Rent Stabilization Law, the Emergency Tenant Protection Act of 1974 or alternatively the Loft Law. Landlord argues that the apartments are commercial lofts not subject to rent regulation. The building is a commercial loft structure located in a light manufacturing district (M1-5) and lacks a residential certificate of occupancy. The tenants claim that they have continuously occupied their respective apartments as their primary residences for years, as far back as 1989, and as recently as 1998. The tenants' complaint alleges that Tony Marra has leases to the 12th, 14th and 15th floor lofts executed with the prior owner, and that since he is not occupying all three units, he is engaging in an illusory prime tenancy scheme. They allege the 9th floor prime tenant is also illusory because that tenant has never occupied the floor as a primary residence.

The new owner maintains that once he took over operation of the building he began to legalize the 15th floor which had previously been designated an "interim multiple dwelling" (i.e., a loft) by the Loft Board in 1993. He contends that he didn't initially know the 9th, 12th and 14th floors were sublet and used residentially when there was no residential certificate of occupancy, and this was done without his consent.

The court was faced with several issues. First, does the location of the building in a M1- 5 zoning district foreclose coverage under the rent laws? Landlord argues that the building is located in a location which strictly prohibits residential use. The tenants, however, argue that the Zoning Resolution's residential restrictions do not necessarily mean that the units are not protected from rent regulation. The court cited to Tan Holding v. Wallace (NYLJ, January 16, 2001), an Appellate Term case which held that rent stabilization protection cannot be absolutely excluded simply based on the zoning classification. The court chose to follow the Appellate Term's holding, and noted that if variances for other residences have been granted in this neighborhood, as tenants maintain, then a variance granted to this building would not necessarily "alter the essential character of the neighborhood," the legal reason why a variance would otherwise be denied.

The next question the court asked is: Are residential units that are not covered by the Loft Law subject to the Emergency Tenant Protection Act ("ETPA")? Landlord argues that because the building was declared to be an interim multiple dwelling (IMD) (i.e., a loft), then it is governed exclusively by the Loft Laws. The landlord also argues that once a certificate of occupancy is obtained and a final rent order declared by the Loft Board, then only the 15th floor will receive the protections of the Rent Stabilization Law. The landlord further argues that in enacting the Loft Law, the Legislature narrowed the reach of the EPTA to protect only tenants who are covered under the Loft Law. (Coverage under the Loft Law entails, among other elements, a window period in the early 1980s, or continuous occupancy through 1987). Since only the 15th floor is deemed an IMD, then the other tenants cannot claim Loft Law protection, and thereupon cannot claim rent regulated status. Finally, the owner argues that because there were less than six residential units in the building on January 1, 1974, the tenants cannot receive the protections of the Rent Stabilization Law.

The tenants argue that the owner has subsequently added residential units, so that now there are more than 6 units, and this makes their tenancies protected by the ETPA. The statute applies to any housing accommodation except those specifically excluded. It does not contain an exemption for non-IMD units. The court rejected the landlord's argument that the Legislature narrowed the applicability of the EPTA to residential tenants covered by the Loft Law because at the time the Loft Law was passed, it was settled law that the EPTA applied to all residentially occupied commercial lofts as well. Thus, had the Legislature intended to exclude non-IMD units, the EPTA would have been explicitly amended creating a further exemption. The court noted a line of cases that recognize that the EPTA extends rent stabilization protection to loft units that were not covered by the Loft Law. The court ruled that coverage applies to these tenants, and the factual issue is merely whether the current landlord acquiesced in the residential usage of the units. The final issue is whether the building is exempt from the ETPA because it was substantially rehabilitated after 1974. The tenants argue that the purpose of exemption on this ground is to increase the number of habitable family units, the best evidence of which is a residential certificate of occupancy. Since the building still lacks a certificate of occupancy, it is not entitled to the exemption. The tenants also argue that they contributed to the substantial rehabilitation, but the owner disputes this. The court ruled that this is a question of fact necessitating a trial.


Case Caption:
Duane Thomas LLC v. Emma Dear Productions, Inc.
Issues/Legal Principles:
Loft tenant claiming rent stabilization status is not entitled to regain physical possession of the unit pending litigation.
Keywords:
Lofts; rent stabilization; preliminary injunction; primary residency; high rent deregulation; profiteering; substantial rehabilitation; certificate of occupancy
Court:
Supreme Court, New York County
Judge:
Hon. Walter Tolub
Date:
April 11, 2001
Citation:
NYLJ, page 18, col 5
Referred Statutes:
CPLR 6301: RSC 2520.11(e), 2524.3(h), 2525.6 ; RSL 26-504.2; Multiple Dwelling Law 286; McKinney's Unconsolidated Laws 8625(a)(5)
Summary:
The plaintiff-landlord made a motion to the court for a preliminary injunction to restrain Emma Dear Productions, Inc. and Mel Gorham from regaining physical possession of Unit 206 on the second floor of a five-story building located on Duane Street. The tenants cross-move to dismiss the complaint. In 1995, the Loft Board determined that the building consisted of nine interim multiple dwellings (IMD) (i.e., lofts). Unit 206 was not accorded loft status. In February, 2000, the landlord obtained a certificate of occupancy solely for those units designated by the Loft Board as entitled to IMD status. Landlord's predecessor entered into a lease with Emma Dear Productions, Inc. for a two year period from June, 1996 to May 1998. In June, 2000 the current landlord served a 30 day notice of termination on the tenant and commenced a commercial holdover proceeding in Civil Court to terminate the tenant's month to month tenancy. The Civil Court dismissed the proceeding on grounds that the petition falsely stated that the premises were used exclusively for commercial purposes, and noted that the landlord did not dispute tenant's allegations that the premises were rented and used openly for residential purposes. The Civil Court did not make a determination whether Unit 206 was rent stabilized.

While the Civil Court action was pending, the landlord discovered that the tenant vacated to California and unlawfully sublet the premises. Apparently the tenant and subtenant had a dispute which went to court and it was resolved between them that the subtenant agreed to vacate the premises on April 1, 2001 at which time the prime tenant would re-take possession. The landlord began this action seeking, inter alia, a declaration to preclude the tenant from re-taking possession, and for a declaration that the Unit 206 is not subject to the Rent Stabilization Law. The landlord argued that Unit 206 was never subject to Loft Board coverage, and even if it were, the unit is now deregulated and cannot be stabilized because (a) it was substantially rehabilitated, (b) the rent is over $2,000 per month, (c) the tenant profiteered by overcharging the subtenants, and (d) the tenant did not occupy the unit as a primary residence.

The court cited to Tan Holding v. Wallace (NYLJ, January 16, 2001), an Appellate Term case, for the principal that commercial lofts converted to residential use after the Loft Law "window period could be subject to rent stabilization if (1) the lofts were capable of legalization and (2) the tenant "substantially bore" the cost of conversion. The court noted that the landlord failed to offer evidence why the Loft Board excluded Unit 206 and that the Civil Court's decision gives rise to an inference that Unit 206 is capable of being legalized by the Loft Board. The court also found problematic landlord's claim of substantial rehabilitation. Thus, on those first two preliminary questions, the court held that landlord's likelihood of success on the merits of its complaint was far from clear. (A likelihood of success on the merits is one of the criteria a party must prove when seeking a preliminary injunction).

If it was determined that the unit was subject to regulation, the court went on to examine whether the unit would then be deregulated. The court ruled that in order for the deregulation to occur based on the rent being over $2,000 a month, the tenant had to have vacated the apartment. [The tenant's initial rent, however, was above $2,000 when the tenant took possession, so the judge's ruling here that a vacatur first has to occur seems contrary to the law]. In this case, the tenant did not vacate because he intended to come back as evidenced by his suit against the subtenant to recover possession. With respect to overcharging the subtenant, the court ruled that the rent stabilization laws require a forfeiture of the apartment based on profiteering, but there is nothing in the Loft Law rules that require a similar result. Also, it is not clear yet if the unit is even subject to the rent stabilization law. The court ruled that tenant's absence from the premises for a period greater than two years does not necessarily add up to a nonprimary residence, since the tenant alleges that the absence is for work related reasons.

In granting a party's motion for preliminary injunction, the court must weigh the equities. The landlord has not demonstrated irreparable harm if the tenant is able to re-gain possession pending the outcome of the landlord's lawsuit that the premises are not subject to rent regulation. On the other hand, the tenant has not been in the apartment for two years so a delay while the litigation is pending should not prejudice the tenant. Since the balance of equities is equal the court ruled that the sensible resolution would be to maintain the status quo until the issues of the case are resolved. The tenant was not allowed to re-possess the apartment, but was allowed to use the court order to evict the subtenants. The landlord and tenant both had to post a $20,000 bond to cover the other in the event of loss.


New York Law Journal,
decisions for the week of April 2-6, 2001 (7 cases)


Case Caption:
34 Hillside Avenue LLC v. Zuniga
Issues/Legal Principles:
Landlord is denied additional discovery from elderly tenant since court finds that extra discovery is just a fishing expedition.
Keywords:
discovery; nonprimary residence
Court:
Civil Housing Court, New York county
Judge:
Hon. Timmie Elsner
Date:
April 4, 2001
Citation:
NYLJ, page 21, col 4
Referred Statutes:
none cited
Summary:
Landlord commenced a nonprimary residence proceeding against the 72 year old rent controlled tenant in November 1999. In February, 2000 the tenant agreed in a stipulation to undergo a deposition (i.e., attorney asks tenant questions under oath). The landlord now asks the court for additional depositions of the tenant, even though she already appeared twice for depositions. She did not, however, initially produce all the documents demanded by the landlord because many were still in Costa Rica. Once she produced the documents, the landlord now argues that their production raises more questions that necessitate another deposition of the tenant.

The court denied the landlord additional discovery. The court held that the landlord failed to satisfy the six criteria necessary for "ample need" for discovery: (1) whether there are sufficient facts to establish a cause of action, (2) whether there is a need to determine information directly related to the case, (3) whether the discovery request is carefully tailored to clarify disputed facts, (4) whether prejudice will result if discovery is granted, (5) whether the prejudice can be diminished by an order fashioned by the court, and (6) whether the discovery can be structured by the court so that pro se tenants can be protected and not adversely affected by a landlord's discovery request. In this case, the landlord seeks discovery for the period January 1989 to December 1996 (which is eight years prior to what the tenant agreed to testify to). The court found that the request is just a fishing expedition to pinpoint the period of tenant's absence from the apartment. The court, however, ordered the tenant to produce certain documents, including her 1997 tax returns. The court denied the landlord a right to collect the past rent that has accrued since the delay in this matter (and accumulation of rent) has been caused by the landlord's discovery demands.


Case Caption:
1111 Realty Assoc. v. Doe
Issues/Legal Principles:
Landlord's attorney may face sanctions for having the legal papers served only at the apartment when the attorney knew that the tenant had died and the executor of the tenant's estate resided elsewhere.
Keywords:
estates; personal jurisdiction; sanctions
Court:
Civil Housing Court, Kings County
Judge:
Hon. Marton
Date:
April 4, 2001
Citation:
NYLJ, page 23, col 4
Referred Statutes:
RPAPL 731; 22 NYCRR Part 130-1.1
Summary:
The licensee holdover petition was served in January and no one appeared on behalf of the tenant. An inquest was conducted, a warrant issued and the landlord obtained possession and removed all contents from the apartment. Apparently the apartment was re-let to a new tenant. The old tenant did not appear in court because he was dead. Thereafter the executor of the estate of the tenant brought an order to show cause to vacate the judgment and warrant on grounds that the estate was not properly served (i.e., service on the executor). A lease is personal property that falls to the estate for the remainder of the lease's term after the tenant dies. (This does not apply to rent controlled tenants because they do not have a lease). The executor alleged that he had been in numerous conversations with the landlord's attorney and that the landlord's attorney knew where he lived and that no one occupied the apartment, so it was a futile gesture to serve the legal papers at the apartment.

The landlord's attorney did not substantially dispute the executor's claim, but argued that the executor's motion should be denied for failure to name the current occupant as a party. The court disagreed, holding that had the executor sought to recover possession of the apartment, then in that instance, it would be necessary to add the occupant as a party to protect that occupant's due process rights. Landlord also argued that the executor abandoned its claim because he waited nine months to make this motion. The court also disagreed with this position because the executor had previously brought an action for conversion with respect to the property removed from the apartment, but that action was dismissed without prejudice. The court looked to prior case law that held that where a landlord knows the tenant has died, the landlord must obtain personal jurisdiction over the estate, and if it is known that no one is at the property to receive legal papers on behalf of the estate, the petition must be dismissed if papers are served only at the property. The court set the matter down for a hearing on whether sanctions and costs may be imposed against the landlord's counsel.


Case Caption:
Verni v. Owens-Kennedy
Issues/Legal Principles:
ETPA tenant who has lived in the apartment for over 20 years cannot be evicted in landlord's owner occupancy proceeding.
Keywords:
owner occupancy
Court:
Civil Housing Court, New York County
Judge:
Hon. Jerald Klein
Date:
April 4, 2001
Citation:
NYLJ, page 21, col 5
Referred Statutes:
Emergency Tenant Protection Regulation 2504.4(a)(2)
Summary:
Landlord brought a holdover on owner occupancy grounds against a tenant who moved into the apartment in January, 1974. Due to the date the tenant took occupancy, the tenant became a rent stabilized tenant by virtue not of the rent stabilization law (which, by and large, did not take effect until after July, 1974), but rather by virtue of the Emergency Tenant Protection Act (ETPA) of 1974. The rules governing ETPA are the Emergency Tenant Protection Regulations (ETPR) which has a provision that if a tenant has resided in the premises for over twenty years, or is a senior citizen, or disabled, then the landlord cannot evict the tenant at all on owner occupancy grounds. The Rent Stabilization Code, on the other hand, provides that a landlord must relocate a senior citizen or disabled tenant to a comparable apartment where recovery of the unit is sought on owner occupancy grounds. The Code makes no mention of the twenty-year rule. The court followed the precedent of four other lower court cases, starting with Brusco v. Armstrong that upheld the applicability of the ETPA to New York City tenants. Landlords argue that the ETPR are only applicable in cities having less than one million people.
Notes:
Disclosure: Editor Colleen McGuire's law firm, McGuire & Zekaria, litigated the case of Brusco v. Armstrong. The landlord-appellant has filed its brief and the case is now going up on appeal to the Appellate Term.


Case Caption:
Mayourian v. Tanaka
Issues/Legal Principles:
Tenant receives a 100% abatement, and is released from the lease, for odors emanating from a dumpster landlord placed in front of tenant's apartment.
Keywords:
warranty of habitability; odors
Court:
Appellate Term, 9th & 10th Judicial Districts
Judge:
lower court: Hon. Dwyer
Date:
April 4, 2001
Citation:
NYLJ, page 23, col 1
Referred Statutes:
RPL 227, 235-b
Summary:
Tenant-defendant rented the plaintiff-landlord's townhouse in Glen Cove for $2,300 a month pursuant to a two-year lease. However, after ten months the tenant left the apartment on grounds that the landlord had installed a garbage dumpster directly in front of the premises, which was used by the other residents in the complex, and that the odors emanating from the dumpster were horrendous. The odors required tenant to keep the windows closed, caused tenant's family to become ill and substantially interfered with the usage of the terrace or having visitors. The landlord did not obtain a new tenant for three months. The landlord sued the tenant for three months rent. The court held that the tenant was not liable for those months and was entitled to a 100% abatement due to the condition based on the warranty of habitability. (Apparently, the tenant paid all the rent up to the point of vacatur).


Case Caption:
Matter of Lumberger v. Rodan
Issues/Legal Principles:
Landlord not obliged to provide electric service since tenant did not have this service on the base date (i.e., the date she became subject to rent stabilization protection).
Keywords:
rent reduction order
Court:
Supreme Court, Queens County
Judge:
Hon. Milano
Date:
April 4, 2001
Citation:
NYLJ, page 23, col 6
Referred Statutes:
RSC 2520.6(r)
Summary:
The landlord filed an application with the DHCR to modify the tenant's services so that the tenant would pay for electricity and cooking gas. The application was made at the behest of the Civil Court so that the court could assess tenant's rent adjustments, if any, and tenant's actual rent based on the exclusion of those services from the base rent. The owners gave tenant her own gas and electric meters. The building consists of a two-family house with the tenant occupying the first floor. The premises were previously a garden apartment complex which underwent a conversion to individual ownership. In 1989, with DHCR overseeing the situation, the remaining tenants, including the tenant in this proceeding, were deemed to be rent stabilized via a stipulation signed by the prior owner and the tenants and approved by DHCR.

In the stipulation the owner agreed to install and pay for electric stoves and electric accounts and waived any right to a rent increase or terminate the electric account for the electric stoves. In 1988, the tenant was provided with a gas fuel cooking stove that has an electric ignition. In 1993 the tenant began paying for her own cooking gas when the owner unilaterally eliminated the service and installed a separate gas meter for the first floor apartment. The tenant had also paid electricity for a shared meter that included common areas and boiler. Finally, in 1992 the owner installed a separate electric meter and the tenant only paid electric charges for her own apartment. In Civil Court the parties agreed to refer to the DHCR for determination what amount of the rent reduction, if any, was appropriate for the gas exclusion and the owner's assumption of electric charges previously paid by the tenant.

The DHCR issued an order permitting the owner to exclude electric current service from the rent, granted the tenant a rent adjustment and permitted the owner to eliminate cooking gas and provided the tenant with a 10% reduction of the rent for the cooking gas. The tenant appealed the DHCR's decision, but she filed too late so the appeal was dismissed. The owner, however, did appeal on grounds that there should be no rent adjustment for the exclusion of electricity as the tenant had always paid for her own electricity and it was not a service included in her rent, and the 10% decrease in rent was excessive. The Commissioner issued a decision in which he found that the provision of electricity was not a service provided by the owner on the base date of January 1, 1989 (i.e., when the tenant obtained stabilized status), and therefore, the Rent Administrator should not have granted a rent reduction for electrical inclusion. He did find, however, that cooking gas was a service provided by the owner on the base day of January 1, 1989 and that the tenant had not filed a PAR objecting to the elimination of cooking gas. In reviewing her account records, the Commissioner determined that her median monthly gas payment was $23.58, and therefore the 10% reduction was excessive. The adjustment was modified to $24 a month beginning August 12, 1997.

Tenant appealed this decision in an Article 78 proceeding to the Supreme Court. She states that the owner was required to pay for the electricity that ignites her cooking stove under the stipulation and that the amount of the reduction in rent for the elimination of the cooking gas service was too little, and as a senior citizen her current rent is barely affordable. DHCR responded that the issue of the tenant's permission to modify or eliminate the gas and electric service had already been settled in Civil Court and that the only issue for the agency to determine was the proper rent. She responded that she should have received an electric stove in 1989, paid for by the landlord and that the dollar amount of the rent reduction set by the landlord is arbitrary.

The Supreme Court disagreed holding that the Code requires services as including a service that was maintained on the base date or that was provided by the owner thereafter. The tenant and owner agreed to make January 1, 1989 the base date and the Commissioner properly determined that the electricity usage of the apartment was not included in the rent on January 1, 1989, and therefore it was proper fro him to correct the Rent Administrator's order which granted a rent reduction based on the elimination of electrical usage. The court also ruled that the Commissioner properly determined that the cooking gas was a service provided by the owner on January 1, 1989 and that the parties agreed to eliminate this service and that the rent reduction of 10% for the gas meter modification was excessive, as it would, in effect, reduce the rent by nearly double the average monthly amount the tenant paid for cooking gas. In examining the tenant's bills, the Commissioner arrived at $24 as a medium amount, and the court found this accurate and reasonable. The court noted that the tenant admitted in her papers that her gas bills would be higher sometimes because she turned on the stove to keep warm in winter. This act does not entitle her to any greater reduction in rent based on the elimination of cooking gas. The court held that if the tenant has heat complaints she should file them with the appropriate agency. If the tenant claims that the owner failed to provide her with an electric stove pursuant to the stipulation, she may commence an action to enforce the stipulation, or for breach of contact. The court denied tenant's request to vacate the DHCR's order.


Case Caption:
Parkchester Apartments v. Barr
Issues/Legal Principles:
Attorneys fees are waived if not preserved in a settlement stipulation.
Keywords:
stipulation; legal fees
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Jean Schneider
Date:
April 6, 2001
Citation:
NYLJ, page 18, col 1
Referred Statutes:
none cited
Summary:
In a nonpayment proceeding, the landlord and pro se tenant signed a stipulation of settlement awarding landlord a possessory judgment and setting forth a payment and repair schedule which ultimately provided for the vacatur of the judgment upon full payment of the rent. Neither party reserved any rights to attorney's fees. Therefore, the Appelate Term held that the lower court properly denied landlord's motion for attorney's fees, notwithstanding landlord's partial success on an appeal which took place before the stipulation was signed. A the time of the argument of landlord's prior appeal, at which tenant did not appear, the Appellate Term noted that it advised the settlement of the proceeding.


Case Caption:
Goldman v. Topping
Issues/Legal Principles:
Tenant is entitled to enforce Fair Market Rent Appeal award in Housing Court via a counterclaim 6 months after DHCR's decision is rendered.
Keywords:
Fair Market Rent Appeal; counterclaim; legal fees
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Timmie Elsner
Date:
April 6, 2001
Citation:
NYLJ, page 18, col 1
Referred Statutes:
22 NYCRR 208.14(c); RPAPL 743; RPL 234
Summary:
In a nonpayment proceeding the tenant interposed a counterclaim for a refund of excess rent paid pursuant to a DHCR order regarding his Fair Market Rent Appeal. The parties agreed to mark the case off calendar pending landlord's appeal of the DHCR order. Landlord appealed all the way to the Court of Appeals, unsuccessful each step of the way. 17 months after the case was marked off calendar, the tenant made a motion to restore the case to the calendar for a hearing on his attorney's fees. Landlord opposed. Usually a proceeding marked off calendar for longer than a year is deemed abandoned, but in this case the court held that the landlord's pursuit of an appeal is the only reason the case was marked off calendar for so long. The Appellate Term affirmed, also adding that the counterclaim had merit, the tenant had no intent to abandon the counterclaim and there was no prejudice to the landlord.

Landlord appealed on grounds that the lower court did not have jurisdiction to hear the Fair Market Rent Appeal. The Appellate Term rejected this argument, holding that since a tenant is entitled to bring a plenary action to enforce a Fair Market Rent Appeal adjustment order where excess rent has not been fully refunded within six months, the lower court had jurisdiction to entertain tenant's counterclaim and render judgment for the amount due. Since the amount due was not in dispute, the lower court properly rendered summary judgment in favor of the tenant. The lower court also ruled that the tenant is not entitled to attorneys fees in defense of landlord's appeal of the DHCR order in an Article 78 proceeding (and up to the Court of Appeals). The Appellate Term, however, ruled that the tenant is entitled to fees in connection with his action to enforce the order and a hearing on fees was appropriately held to that extent by the lower court.