The landlord filed an Article 78 proceeding claiming that the Rent Regulation Reform Act of 1997 ("RRRA") and the RRRA's creation of the four year statute of limitations for rent overcharge complaints set forth in CPLR 213-a barred the tenant's belated 1998 challenge to illegal surcharges in 1985, 1986 and 1987.

The Court disagreed, finding that neither the 1997 RRRA or CPLR 213-a applied to proceedings before the Loft Board. First, the Court noted that the CPLR is generally applicable to civil proceedings, but not proceedings before an administrative body. (Although the DHCR is an administrative body, the agency may determine overcharges and is subject to the CPLR through the Rent Stabilization Code and its amendments). Thus, the RRRA's amendment to CPLR had no effect upon the Loft Board. Second, the Court credited the Loft Board's argument that their legislative goals would be compromised, as it often takes many years to convert commercial premises to residential premises, and a four year statute of limitations would be unrealistic, in view of the unique nature of the Loft Board's responsibilities. Moreover, the Court found that the Loft Law and Rent Stabilization laws, read together, did not require a contrary result, as the Loft Law governs units before they are subject to rent stabilization. Finally, the Court found that the calculations employed by the Loft Board had a rational basis, and therefore, the Court denied and dismissed the landlord's Article 78 Petition.

Landlord brought holdover proceeding against tenant, alleging tenant violated limitation of occupancy provision of lease agreement, which limited occupancy to the tenant and member of the tenant's immediate family. The Housing Court dismissed, as such a provision is prohibited under Real Property Law ("RPL") 235- f(2).

On appeal the Appellate Term, First Department rejected the landlord's attempts to use RPL 235-f to limit the number of roommates in the apartment, as RPL 235-f is remedial in nature and cannot be used to restrict the number of occupants. The Appellate Term modified the Housing Court's decision by granting tenant's application for attorneys fees and remanded for consideration of such award.

Landlord brought illegal sublet holdover proceeding against tenant, after authorized period of sublet had expired. Tenant claimed that he and his family moved back into apartment with his prior subtenants as roommates after the sublet had expired. After trial, Housing Court dismissed the action, finding the tenants' testimony credible. On appeal, Appellate Term, First Department affirmed, finding no basis for the claim of illegal sublet, as the tenant and his family returned to the premises after the sublet period and thereafter lived there full time. The Court emphasized that the landlord failed to prove by a preponderance of the evidence that the subtenants remained as the sole occupants of the apartment following the sublease term. Moreover, the Court recognized that RPL 226-b does not prohibit a roommate relationship with a subtenant after expiration of the subtenancy. The Court noted the tenant sent a pre-litigation letter to the landlord's management, acknowledging the relationship (i.e. this was not a "relationship" invented for purposes of litigation). The Court modified the Housing Court's refusal to grant tenant his attorney's fees, although tenant was represented by a firm in which the roommate/former subtenant was a named partner, and remanded for such award.

District Court, Nassau County rendered final judgment against tenants, finding their residential use of premises, which was intended for commercial use, violated lease agreement. The District Court excluded the tenants' testimony and relied upon the use restriction clause in the lease agreement executed between the parties. The Appellate Term reversed and granted tenants a new trial, recognizing that the issue in this holdover proceeding was whether the landlord or its predecessor in interest knew of and acquiesced in the tenants' residential use of the premises. The Court also noted that while a use restriction is a factor to be considered, it is not determinative, particularly where the tenants offered to prove their landlord induced them to relocate from their rent regulated apartment upstairs so they could expand their day- care service they were operating for the children of the building.

New York City Housing Authority brought illegal use holdover proceeding against tenant, alleging that execution of search warrant recovered illegal drugs from apartment and that tenant, and others who were acting with her knowledge, permission or acquiescence, were using the premises and occupying them illegally for storage, packaging and/or sale of controlled substances. The tenant claimed that she was unfairly forced to choose between preserving her fifth amendment rights against self incrimination in a pending criminal matter and losing the summary proceeding. The Housing Court denied the tenant's motion to vacate the final judgment in favor of the landlord and set the matter down for a new trial.

On appeal, Appellate Term unanimously affirmed, finding that the tenant had already been given an opportunity to testify concerning her lack of knowledge of the drug trade in her home or to call character witnesses, but chose not to. The Court further found that she was not entitled to a stay of the holdover proceeding even though she might have been forced to choose between preserving her fifth amendment rights against self incrimination or losing the holdover proceeding. The Court also rejected the tenant's belated claims of lack of knowledge based upon the facts revealed in the record.

Additionally, the Appellate Term noted that there was "an absence of persuasive evidence that the jurors failed to follow Civil Court's instructions in reaching their verdict." The Appellate Division upheld the Appellate Term's determination that the attorney-juror's statements did not amount to misconduct.

At a bench trial it was determined that on July 13, 2000 several members of the New York City Bronx Narcotics Unit executed a search warrant for the subject premises. Two hundred glassine envelopes of heroin were recovered from the pocket of a pair of jeans hanging in the hall closet. At the time of the search, tenant was asleep in the rear bedroom. Tenant was arrested and charged with criminal possession of a controlled substance in the 3rd degree. Several hours later, tenant's grandson was also arrested and charged.

Approximately one week later, tenant's son came forward and admitted that the drugs were his. The charges against tenant and her grandson were subsequently dismissed.

Tenant testified that she had no knowledge that her son had stored drugs in her apartment or that he had been involved in drug trafficking. She stated that her son routinely visited her, sometimes on weekends, but not for extended periods of time. Her son did not reside in her apartment but rather, elsewhere with his father.

Tenant's testimony was corroborated by that of her son who stated that he resided with his father and that he did not have a key to his mother's apartment. Additionally, tenant's son testified that he stored drugs in his mother's apartment without her consent or knowledge and that he did so when no one was looking. Tenant's son also testified that no drugs were ever sold from within the apartment or building.

RPAPL711[5] provides that a tenant may be removed from an apartment based upon conducting illegal activities therein.

RSC2524.3[d] allows landlord to sever the landlord tenant relationship if tenant permits the premises to be used for illegal or immoral purposes. Landlord has the burden of establishing its allegations by a preponderance of the evidence. However, landlord does not need to establish that tenant was directly involved with the activity, only that tenant knew and/or acquiesced to the activity.

In this case it is undisputed that the apartment was used for illegal activity. It is also undisputed that tenant was not involved directly or indirectly in storing the drugs in her apartment. The issue is whether tenant knew or should have known of the illegal activity.

The Court relies on various factors in determining this issue: knowledge of prior drug arrests/activity or addiction, a tenant pleading/admitting guilt to attempted possession of narcotics (evidencing direct involvement), and overwhelming proof of unlawful narcotic activity conducted in the premises.

The Court determined that none of the above-mentioned factors existed in this case, and thus that landlord failed to meet its burden of establishing that tenant knew or acquiesced to the illegal activity.

At trial, tenant denied an employer/employee relationship but was unable to produce any bank statements, utility bills, etc. evidencing that she resided in the apartment. Tenant Corbett and Mr. Perez were never married. Tenant's attorney argues that tenant should be deemed a "non-traditional family member" pursuant to the test articulated in Braschi v. Stahl. Landlord claims that Braschi does not apply because the apartment is not subject to rent control or rent stabilization.

The Court of Appeals held in Evans v. Franco that Federal law controls and the issue is whether or not the tenant is entitled to continuation of the subsidy under federal law.

The apartment at issue is operated by landlord pursuant to agreement with HUD. The federal regulations are contained in 24CFR 982.551 which provides, "the family must request HA approval to add any other family member as an occupant of the unit. No other person... may reside in the unit (except for a foster child or live in aide as provided in paragraph (h)(4) of this section)."

With regard to live in aides, the HUD public housing occupancy handbook states, "A care attendant would not be listed on the lease and could not become a family member for continued occupancy purposes. The income of a care attendant would not be counted in determining the family's income."

The Court states that the clear language of the regulation indicates that home aides are a "separate class of occupants from 'family members'." However, in this case tenant states that there exists a question of fact as to the true nature of tenant's relationship with the decedent. Tenant makes a three-part argument: (1) she meets the Braschi criteria for succession rights as a "non-traditional family member" (2) Federal law does not preempt applying Braschi (3) The holding in Evans v. Franco is not to the contrary.

The Court agreed that tenant Corbett meets the criteria of Braschi and can be considered a "non-traditional family member." However the Court notes that the holding of Braschi was never codified in the federal statute and therefore does not apply to federally subsidized Section 8 housing. Further, the Court finds there is a conflict between tenant's arguments and the language of the HUD Public Housing Occupancy Handbook which establishes that live in aides cannot succeed to tenancy rights. Accordingly, the Court held that the "Section 8 regulations supercede any contrary state law."

Plaintiffs seek to invalidate that portion of Order 34 which provides for a 1% reduction from the regular county rent guidelines in the rent increase for all tenants and not just eligible senior citizens in the Villages of Great Neck Plaza and Hempstead. They argue that there is no rational basis to explain how the adoption in a municipality of a SCRIE program for eligible seniors only should result in a rent reduction of 1% for all tenants in that municipality, even for those tenants who are not even eligible for the SCRIE program. Although landlords are reimbursed for rent reductions by the municipalities taken by SCRIE seniors, they are not reimbursed for the reductions taken by all tenants, even non-SCRIE tenants. The minutes of the Board indicate that Order 34 was passed to give municipalities a strong incentive to pass the SCRIE programs and was based on the village's concern for senior citizens.

The court noted that the Board's authority derives from the ETPA which grants it the right to set rent increases pursuant to the procedures expressly set forth in the ETPA. Senior citizen rent affordability is a legitimate concern for the Board and there is no question that rent adjustments may be varied and different within the jurisdiction of the Board. However, the SCRIE program is a creature of state legislation. The eligibility requirements are clear: 62 years and older and income less than $20,000 per year. The Court ruled that the Board has no statutory or inherent authority to extend the state statutory benefits of SCRIE for eligible seniors to noneligible seniors generally. Even if well intentioned, such action goes beyond the authority of the Board. The effect of the Board's rollback is that for SCRIE-eligible seniors the rent increase will be returned to landlords and for all other tenants the landlords lose a 1% increase. The court held: "The Board simply does not have the power to make the landlords pay for the adoption of SCRIE and its attempt to do so must be vacated as arbitrary and capricious."

The Housing Authority held four unscheduled visits and Jimmy was not found. However, on November 17, 1997, the Authority went and found a young man in bed who identified himself as Eladio (another son). When asked his birthday, he said July 14, 1967 which is Jimmy's birthday. This prompted the Authority to bring new charges against the tenant for violation of the permanent exclusion and the Authority sought to terminate her tenancy. At the hearing the Housing investigator was shown Jimmy's photograph and testified that it was Jimmy who answered the door on November 17, 1997. The tenant said Jimmy lived elsewhere, and produced a notarized statement from Eladio that it was he who was present on November 17th. The daughter testified that Jimmy lived next door to her in Long Island and was there on November 17th. The hearing officer recommended termination of tenancy, although his decision acknowledged that photographs of the two boys revealed that they looked closely similar and that one could be mistaken for the other. However, he made a negative inference because the tenant did not produce either son to testify. The Authority adopted the hearing office's decision to terminate and did so prompting the tenant to bring an Article 78 challenging the termination of her tenancy. She lost and is now appealing the termination of her tenancy to the Appellate Division.

The court ruled that the Housing Authority satisfied its burden of proof. The tenant could then come forward with her version to refute the landlord's case, but this did not mean that the burden of proof switched to the tenant. Rather, it simply reflected her consequent duty to come forward with evidence to the contrary. The Appellate Division agreed with the lower court that the tenant's evidence was insufficient to rebut the landlord's evidence. The only evidence directly contradicting the finding that Jimmy was found in the apartment was the notarized statement of Eladio, but a piece of paper cannot be cross-examined so his testimony was less compelling.

More significantly, the tenant now takes the position that the stipulation is unenforceable to the extent that it purports to prohibit Jimmy from visiting the apartment, so that the proof that Jimmy was visiting her was insufficient to demonstrate a violation of the stipulation. Tenant was trying to establish that the stipulation should be interpreted to mean that she would be deemed in violation of its terms only if Jimmy took up residence live with her. The Appellate Division disagreed. The Court reviewed other cases which involved "no visitation" clauses and whose courts determined that such clauses were unreasonable and an impermissible burden. The Court held that although this might be true if the tenant were expected to monitor the family member's presence throughout a housing complex, common lobby or other tenant's apartments. However, in this case the tenant is only responsible for the permanent exclusion of her son from her own apartment and this is certainly within her capability and she would in all likelihood know whether her son was present or not in her apartment. Hence, the Court refused to set aside the stipulation of permanent exclusion of Jimmy from the apartment and upheld the termination of the tenant's tenancy.

The court found that landlord's claim of abandonment had no basis in fact other than landlord's mere allegation of same based on tenant's removal of possessions. The court believed tenant's version that her removal of possessions was not to give up the apartment but rather to facilitate the renovation process. Tenant's letters and phone calls to landlord all demanded restoration, including her attorney's demand for restoration, and belie abandonment. Landlord also claims that he terminated the tenancy by notice dated July 21, 2000 on grounds that the lease permits termination in cases of destruction of premises by fire. However, a mere termination notice sent to the tenant has no effect of depriving the tenant of possession unless and until the landlord then takes the tenant to court to effectuate the termination, i.e., legalize it through a judge's order of possession. Absent legal process, an unlawful eviction occurs.

Even though the landlord did not provide tenant due process by commencing a holdover proceeding, the court declined to restore the tenant to the apartment. New tenants were put into possession by the landlord and the court balanced the equities in their favor since they had no knowledge of what had transpired and are innocent parties. Besides, since the premises is not rent regulated, if tenant were restored now, her lease had already expired and she would be subject to an immediate holdover anyway. To dislocate the tenants in occupancy and restore the tenant "does not serve the interest of justice." The court relegated the tenant to an action for damages in civil court.