Also, the tenants refused to move into the apartment because there was peeling paint and they had a two-year old child and were concerned about lead paint. For at least one month if not more the landlord refused to claim responsiblity for the repair. While the record indicates that the tenants may have delayed the completion of the repair, the court held that they are entitled to a total abatement for at least the period before the landlord began to undertake the repairs. The appellate court sent the case back to the Housing Court for a hearing on an abatement.

Dealing first with the procedural issues, the court agreed with the tenant that the landlord was required to serve a copy of the termination notice on DHCR, too. With respect to certified mailing of the lease, the landlord alleges that service can also be in person and produced a DHCR case which ruled that the landlord in that matter had a right to hand deliver the renewal forms so long as he gets the tenant to sign for them. The court, however, pointed out that the ETPA rules on lease renewals is specific in requiring certified mail. The court refused to defer to a DHCR ruling over the actual requirements of the statute.

The court agreed with the landlord that a tenant's failure to timely renew the lease is not curable. [Note: Appellate Division decisions contradict this holding]. However, the tenant's position is not that she failed to timely renew the lease, but rather that the parties entered into a new agreement. Landlord does not refute that the tenant is now being billed under a higher rent than had the lease renewal been in effect. Thus, even assuming that the termination and renewal notices were served in accordance with the applicable statutes, the court ruled that the landlord's subsequent decision to execute a new lease agreement with the tenant would no doubt preclude the court from evicting the tenant under this new lease. Finally, the court ruled that the owner's failure to send the DHCR a copy of the termination notice renders the proceeding defective and requires the dismissal of the petition.

As to the non-petitioning tenants, the tenants claim that service on the outer door of the management office was a sufficient method of service. The court held that, since there are seven buildings comprising the Marcus Garvey Village (i.e., the subject premises), this method of service was completely inadequate. The court held that it was "certainly conceivable" that the non-petitioning tenants residing in the six buildings where the management office was not located would not have an occasion to enter the building where the 7-A petition was posted. Accordingly, it is possible that most or all of the non-petitioning tenants did not have notice of the proceeding.

The landlord was the one who made the argument about the improper service on the non- petitioning tenants, but the tenants argued that since the landlord was served, the landlord had notice so it was immaterial to the landlord whether the non-petitioning tenants were properly served. The court ruled that substantial property rights will not be interfered with absent a showing that all interested parties have been given an opportunity to be heard. The court said the non-petitioning tenants did not have to be named parties, but they did need to have notice. Notice and an opportunity to be heard is the basis of due process. The court suggested that posting the petitions in the lobbies of all the buildings is not a burden. The court did not have to reach the other legal issues raised since the petition was dismissed based on the improper service of the non-petitioning tenants.

The landlord commenced a holdover proceeding wherein the owner sought to evict the tenant on grounds that the prime tenant overcharged the subtenant $1,000 above the legal rent. The landlord contends that upon expiration of the sublease, the prime tenant did not return to the apartment and the subtenant did not leave. Instead, an attorney claiming to represent the subtenant called the managing agent and informed her that the prime tenant was profiteering. During the landlord's holdover proceeding, the prime tenant and the subtenant each appeared by their own attorneys. The landlord issued a subpoena commanding the subtenant's attorney to testify at trial and produce documents indicating that the prime tenant had overcharged the subtenant. The subtenant's attorney asked the court to quash the subpoena, primarily on grounds that the information sought is subject to an attorney-client privilege, and is not subject to disclosure because of this privilege.

The landlord argued that the attorney waived the privilege when he unilaterally telephoned and volunteered the information regarding the profiteering to the landlord's secretary. The court ruled that this position is taken cavalierly because the privilege is one that only the client can waive, not the attorney. Further, public policy dictates that a person's choice of counsel is paramount and will be disregarded only under compelling circumstances. The court recited a number of cases where an attorney was subpoenaed to testify. But these cases, the court noted, are criminal in nature. Although the prime tenant is accused of breaking the rent stabilization laws by rent gouging, this is not a criminal offense. Accordingly, the court granted the subtenant's request to quash the subpoena.

The rent is $822.10 per month, but the tenant's portion of the rent is only $215.00. The landlord served a holdover proceeding seeking $3,559 in arrears owed. The court appointed a guardian ad litem for the tenant based on her history and ongoing treatment for cardiac disease, hypertension and a chronic psychological disorder.

The landlord argues that the Housing Court should not stay the holdover proceeding pending the federal case because, for one, there is no identity of parties, claims or issues between the two cases. The tenant sued the landlord in federal court, but really just for convenience because the main defendant is NYCHA. Also, the landlord argued that a stay would be inequitable to the landlord because while the federal action is pending, the landlord would not be able to recover the full $815 in rent, but could only recover $215 per month from the tenant. Hence the landlord argued it would be prejudiced by a stay. The tenant cites case law authorizing a stay when there exists a substantial identity of parties, claims and issues between the Housing Court and the federal court action.

The court recognized the landlord's position, but ultimately held for the tenant, on grounds that should she be rendered homeless if a stay were denied, that this is more compelling than landlord's loss of $600 in rent each month (collecting only $215.00 from the tenant, and not the Section 8 balance from NYCHA). The court ruled that the central issue in the Supreme Court case is inexplicably intertwined with the issues in federal litigation. Even if this is not the case, at the very least, the issues and claims overlap and the outcome of the federal litigation perforce will shape the outcome of the Housing Court case. A second reason the court granted a stay is because the court has no jurisdiction over NYCHA, and it is the federal court that has expertise in adjudicating cases invoking the Americans with Disabilities Act of 1973. The court stayed the holdover proceeding until the federal litigation is resolved, or for six months, whichever is sooner.

The court noted that in summary proceedings strict compliance of the statutes is necessary, so normally the case would get dismissed where the petition lists the wrong address. Yet, this is an HP proceeding and the Civil Court act does not provide for a set of procedures in commencing HP actions. Therefore, the court needs to defer to the CPLR rather than the RPAPL which is otherwise used in housing cases. The court noted that HPD attorneys pointed out that the address listed has been used interchangeably with the actual address. The original 1994 order to abate the lead poisoning violation referred to the address as 2830 Grand Concourse and the attorney for HPD never corrected the inconsistency. The landlord, however, argues that 2820 Grand Concourse is an address that does not even exist. The court ruled that the proper address is 2830 Grand Concourse.

In a nonpayment proceeding or a holdover proceeding, the petition would get dismissed for a wrong address. But the CPLR controls and the court held that HPD's attorney could make a motion to amend all papers within twenty days, rather than dismiss the case as the landlord requests. The court commented that the lapse of six years in seeking an access order is disconcerting, but it is not a fatal defect. The violations remain outstanding until they are properly abated and certified as such. The court recommended that the parties work together to abate the nuisance, and urged landlord to cooperate.

The Appellate Term reversed the lower court's finding, holding that the HPD report is not evidence which would only permit but not require the trier of fact to find that the building contained six units in 1987. "This is not a case where the inference arising from the inspector's statement is so compelling as so to be inescapable." The Appellate Term reversed the summary judgment award granted to tenant and ruled that a trial was necessary.

The Appellate Term reversed, granting the landlord's motion for attorney's fees. The Court held that despite the ten day cure period afforded the tenant, the landlord was the prevailing party to the litigation to the extent that it obtained the central relief sought, i.e. a judgment of possession. The Court also rejected the tenant's argument that the attorney's fees provision in the lease was ambiguous.

The Appellate Term held that there was no evidence in the record that the tenant had obtained a stay in Bankruptcy Court so as to stay the hearing on landlord's entitlement to use and occupancy and legal fees (a hearing at which the tenant did not show up). The landlord was entitled to use and occupancy for the months tenant remained in possession after expiration of the interim lease. While she argued in the Supreme Court case that the sums she purportedly paid landlord were "down payments" toward the purchase of the condo, the tenant was now estopped from claiming that she prepaid rent.

Petitioner commenced an Article 78 proceeding, wherein the Housing Authority's decision was vacated and annulled and they were ordered to recognize petitioner as a remaining family member entitled to succession rights. The Supreme Court held that the Authority applied an incorrect standard of review, thereby denying petitioner a fair hearing. The Court determined a remaining family member is already a tenant and thus the Housing Authority's standards for determining new tenant eligibility did not apply. The Court also found that the Housing Authority denied petitioner a fair hearing in that the Authority's decision that petitioner's multiple convictions for theft of services, petty larceny, criminal trespass and injuring a dog rendered petitioner ineligible for the tenancy, was not rationally related to physical violence or endangering the public housing community.

The Appellate Division disagreed with the Supreme Court and reversed, reinstating the Housing Authority's rejection of petitioner's claims to eligibility. First, the Appellate Division found that the remaining family members are not "tenants" and therefore they are subject to the Housing Authority's standards for eligibility as new tenants. The Court noted that only the head of the household was the tenant and not the entire family. Second, the Court found that the crimes committed by the petitioner and his failure to present witnesses or other competent evidence to demonstrate his rehabilitation were sufficient grounds to deny eligibility. Finally, the Court found that the Authority's multiple adjournments of petitioner's grievance over the course of two years for petitioner to retain counsel satisfied due process requirements.

DHCR arrived at its rent by acknowledging landlord's improvements, plus allowing maximum base rent ("MBR") increases as allegedly permitted by Special Guidelines Order #26. However, the problem, and the reason the tenants appealed the decision, is because landlord never applied for MBRs to begin with. Normally, in order for a rent controlled apartment to receive MBR rent increases, the landlord must file a written certification proving that six months prior to the application for an MBR, all rent impairing violations have been removed and 80% of all other violations. Then the landlord would be entitled to an Order of Eligibility which triggers the awarding of an MBR rent increase. The rent control laws do not allow a landlord to receive an MBR increase retroactively. Therefore, DHCR calculations in establishing the first rent are incorrect because the landlord never applied for and received the MBRs in the past.

The tenants appealed the DHCR's order in an Article 78 proceeding, and the Supreme Court judge reversed the DHCR's decision as arbitrary and capricious. The court ruled that the DHCR's method of allowing MBR increases retroactively when same were never applied for or granted contravened the rent control laws. However, the court then went on to hold that the case should be sent back to the DHCR for further consideration in order to allow the landlord to submit proof that if MBR applications had been filed and accepted, then the landlord should be entitled to have those MBR increases included in the calculations in determining the first rent stabilized rent. Thus, the court allowed the landlord a chance to collect MBR increases retroactively.

The tenant testified that she had no idea her apartment was being used for drug activity and denied stating anything about finding crack in her bedroom. She testified that she lives with her two children and her brother, the latter who initially intended to stay for two weeks, but his stay grew into four months. The tenant is a licensed home health aid and has worked in that capacity since 1999. She did not, however, claim this income in her income affidavit which must be filed by all public housing tenants. She stated that her sole source of income was public assistance. She also neglected to include her brother's income or his occupancy on this form. She also admitted to knowing that marijuana was present in the premises.

The court held that the fact that the tenant would so openly and deliberately deceive the landlord as to her income and her brother's presence and his income in order to keep her rent low indicates, to the court, that the tenant has no qualms about lying to serve her purposes, and casts a shadow of doubt over all her court testimony. The court disbelieved the tenant's claim that she had no knowledge about all the drugs found in her apartment. The court held that even if she didn't know about the drugs, she should have known. There was too much evidence of drug paraphernalia for the tenant to claim lack of knowledge. Therefore, the court ruled that the tenant must be evicted.

The parties' lease stated that tenant would be given a preferential rent unless legal proceedings, including nonpayment petitions, were commenced, in which case the rent would be at the legal rent and not the preferential rent. Tenant was offered a renewal lease at the legal rent, not the preferential rent. The court was inclined to find that the landlord was required to provide the tenant the preferential rent due to the law that states a renewal lease must be on the same terms and conditions as the prior lease. Additionally, the new Code amendments, effective December 20, 2000, do not categorically state that preferential rents are limited only for specific terms and need not be renewed. Yet, the Appellate Division recently came out with a ruling regarding preferential rents in Missionary Sisters of the Sacred Heart v. DHCR & Croseri (See Housing Court Decisions Archives for May 22, 2001). In that case, the lease specifically informed the tenant of the reason for the rent concession (economics of the market place) and that the preferential rent was limited to the particular lease term for this very reason. Thus, the Appellate Division ruled that the Croseri tenant was not entitled to a preferential rent for the duration of that tenant's tenancy.

By contrast, the court noted in this case the tenant was not informed of a reason for the rent concession and no specific condition was set forth which would clearly trigger the preferential rent's termination, other than the fact that it would expire at the end of the term of the renewal lease itself. Nonetheless, the court felt constrained to follow the Appellate Division and therefore ruled that the tenant was obligated to pay the legal rent and was not entitled to a lease renewal at the preferential rent rate. Therefore, the stipulation was not vacated, nor was the tenant's request to dismiss the petition granted, except to the extent that the tenant receives Jiggett's subsidies, which were paid, so the landlord is entitled to a judgment representing the difference between the legal rent and the amount paid under Jiggetts.

The court ruled that the respondent never explained or excused his premature bankruptcy filed in derogation of a judge's order and further found that the respondent deliberately misled the Housing Court about whether a stay was in effect by the Bankruptcy Court. As such, the owner lost much time and money in litigation, and the court too was prejudiced. Rather than directly sanction the respondent, the court directed that the respondent pay $1200 per month in use and occupancy from November, 2000 for a monetary judgment of $8400. Up to this point the respondent had lived rent-free.

In response to the owner's motion for sanctions, the respondent argued that the petition should be dismissed because the premises is a multiple dwelling and lacks registration. A multiple dwelling consists of three or more residential units. When the respondent was the owner of the building, he had argued at an environmental control board hearing regarding a recycling violation that the premises was only two dwellings. But the ECB ruled that the premises was in fact a three family building. The court found it ironic that the respondent testified under oath that the premises is a two-family dwelling and now argues differently. He claims, however, that the ECB determination prevails, but the court held that the ECB relied on TRW reports, not municipal records. Thus, the court did not accept the ECB determination as to the status of the building.

The court noted that a holdover proceeding brought pursuant to RPAPL 713 does not require that an owner produce a multiple dwelling registration statement. The court cited prior cases to show that in situations where there is no landlord-tenant relationship there is no reason to require a registration statement. The court therefore did not dismiss the petition on this ground because the argument is inapplicable to this proceeding. The court also did not dismiss the petition on the respondent's second argument that the petition is defective for failing to properly identify the premises as a three family dwelling. But the landlord produced a certificate of occupancy showing the premises is a two family dwelling, which is how it is described in the petition. The court rejected respondent's argument and held that the respondent waived his objection to the description of the premises in light of his prior sworn testimony that the premises is a two family house.