Housing Court Decisions January 2002
Editor: Colleen F. McGuire, Esq.

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Significant Cases
Higbie v. Ripka
McCarthy v. DHCR
Matter of Grimm v. DHCR
698-700 Amsterdam Corp. v. Morfesis Realty Corp.
Herald Towers LLC v. Perry
Online Case Texts
Matter of Gilman v. NYS Div. Housing & Community Renewal

New York Law Journal,
decisions for the week of January 28 to February 1, 2002 (3 cases)


Case Caption:
Metropolitan Life Insurance Company v. Datta
Issues/Legal Principles:
Landlord is imputed with knowledge of tenant's dog where tenant harbored the dog "openly and notoriously" every day and the building's porter saw the dog on a daily basis.
Keywords:
pets
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Ruben Martino
Date:
January 29, 2002
Citation:
NYLJ, page 18, col 1
Referred Statutes:
Administrative Code 27-2009.1(b)
Summary:
The tenant obtained a dog in February 1998 and regularly walked it past a specified security booth and the pathways of landlord's housing complex. The trial court found that the identified porter assigned to tenant's building "was aware of the dog and saw the dog on a daily basis." The actual knowledge of maintenance staff and security guards that a tenant is "openly and notoriously" (the statute's criteria) harboring a pet is to be imputed to the owner. And as such, the owner cannot claim lack of knowledge which would justify enforcing the lease provision against harboring dogs. The Appellate Term upheld the lower court's decision denying the landlord's attempt to evict the tenant, holding that landlord's duty to take prompt legal action is triggered by the knowledge of its on-site employees and servants who are best situated to oversee and report the harboring of pets. Actually, landlord must commence legal action within three months of such knowledge.


Case Caption:
Aames Capital Corp. v. Ford
Issues/Legal Principles:
Court declines to grant tenants a stay of the warrant pending an appeal to the Appellate Division in the foreclosure matter because they had unclean hands in that, for one, they were behind in rental payments.
Keywords:
stays; foreclosure
Court:
Civil Housing Court, Bronx County
Judge:
Hon. Halprin
Date:
January 30, 2002
Citation:
NYLJ, page 19, col 5
Referred Statutes:
RPAPL 713, 753; CPLR 2201, 5519
Summary:
The landlord received a judgment of foreclosure in 1997 in Supreme Court and later brought a holdover proceeding in 2001 in Housing Court against the tenants in occupancy. Tenants informed the court that they had applied for an order in the Supreme Court to set aside the foreclosure judgment. The Supreme Court denied their request and the tenants sought to stay the eviction proceeding pending an appeal to the Appellate Division. The tenants, however, then agreed to leave the apartment and the landlord was granted a judgment of possession with the warrant of eviction stayed to October, 2001. It was agreed, however, that tenants could seek a stay of the warrant if needed pending the determination of the Appellate Division case. Tenants did make that request for a stay on October 23, 2001.

The issue before the court was whether it was appropriate for the Housing Court to stay a post-foreclosure holdover proceeding pending an Appellate Division appeal wherein the granting of the foreclosure on jurisdictional grounds is challenged.

The judge looked at CPLR 5519(c) and determined that the tenant should ask for a stay from either the Supreme Court which issued the foreclosure order or from the Appellate Division. On the other hand CPLR 2201 permits a court where an action is pending to grant a stay for just cause "except where otherwise prescribed by law." The court, however, disagreed that this provision imbues the court with such broad authority to stay orders of another court but did agree that it has jurisdiction to stay the holdover upon just grounds. The court also acknowledged that a stay of up to six months is permitted under RPAPL 753 (which might not be enough stay time before the appeal is decided). Nonetheless, the court declined to exercise its authority to grant a stay because the tenants delayed in perfecting the appeal (according to the judge) and were behind in rental payments. The court characterized the tenants' position as having "unclean hands."


Case Caption:
Higbie v. Ripka
Issues/Legal Principles:
Petition which fails to attach a copy of the notice of termination, and fails to state whether or how the notice was served, must be dismissed
Keywords:
notice of termination; service of process
Court:
District Court, Nassau County
Judge:
Hon. Fairgrieve
Date:
January 30, 2002
Citation:
NYLJ, page 23, col 3
Referred Statutes:
Real Property Law 232-b; CPLR 3211(a)
Summary:
The landlord had his attorney serve a notice of termination on the non-regulated tenant. Even though the court did not have a copy of the termination notice nor an affidavit of service, the court found that the notice was properly served on the tenant. The lease provides that all notices must be in writing and can be delivered or mailed. The lawyer attached a copy of the termination notice to the front door of the premises. The court ruled that this manner of delivery is sufficient to satisfy the statute for terminating a month to month tenancy and that no copy need also be mailed.

The petition however was dismissed by the court for a number of reasons, including the fact that the petition fails to state that the termination notice was served on the tenant, or how it was served. Also, the lease terminated in April, but the tenant remained thereafter as a month to month tenant. The petition states, incorrectly, that the tenancy terminated in April when in fact it did not terminate until October.


New York Law Journal,
decisions for the week of January 21-25, 2002 (8 cases)


Case Caption:
McCarthy v. DHCR
Issues/Legal Principles:
Tenants cannot rely on rent registered within the four-year period prior to the filing of their overcharge complaint as being the legal regulated rent because the apartment was allegedly vacant in that period and no one allegedly paid such registered rent.
Keywords:
overcharges,
Court:
Appellate Division, First Department
Judge:
lower court: Robert Lippman
Date:
January 22, 2002
Citation:
NYLJ, page 18, col 2
Referred Statutes:
RSL 26-516
Summary:
Tenants filed their complaint for overcharges on October 30, 1989 which made October 30, 1985 the base date period for reviewing the past rental history of the apartment. This four year limitation period arose as a result of the 1997 Rent Regulation Reform Act which applied retroactively to all pending overcharge cases. Tenants moved in their apartment on October 15, 1986 at a monthly rent of $3,818 per month. On that same day, the landlord registered with the DHCR the legal rent as $1,849 per month and alleged that the apartment was vacant in April, 1986. The rent ledgers for the four year period show that the apartment had been vacant from January 1985 through September 1986. The tenants claim that the rent listed on the last registration statement ($1,849) is the legal registered rent. DHCR however, inasmuch as the apartment was vacant, found that there was no rental history prior to the base date, October 1985 and the initial legal regulated rent must instead be the rent listed in the initial lease. The tenants appealed to the Supreme Court who reversed the DHCR's determination as arbitrary and irrational holding that the rent registered within the four year period must be the legal rent.

The DHCR appealed and the Appellate Division reversed. The Court opined that the DHCR did consider the rent ledgers and rent registration, but this was not a part of the relevant rental history because that was the rent paid by the previous tenants who had vacated the apartment in January 1985 more than four years prior to the filing of the complaint. At the time of the base date and for about a year thereafter, no rent was allegedly charged as the apartment was vacant. The Court held: "Rental history that falls outside the four-year period does not become reviewable simply because it is listed in a registration statement filed within the four- year period." Based on this holding, the Appellate Division further held that it was rational for the DHCR to exclude the rent registration statement of 1986 listing the registered rent as $1,849 rent.

As an alternative argument the tenants argued that the DHCR waited over ten years to decide this case and in the interim the law changed against the tenants. Given DHCR's delay, the DHCR should be estopped from applying the 1997 law with its four year rule. The Appellate Division agreed that DHCR was wrong to create such a hardship for parties by its excessive delay, but refused to penalize the agency or estop them from the hardship created on this particular tenant.

Notes:
For those tenants still cherishing the notion that the law is neutral, this case should surely put that canard to rest. Tenants' overcharge complaints have gotten knocked out left and right since the four-year rule came into effect on June 19, 1997. The four-year rule precludes any examination of what rents existed in the rent registration history prior to four years from the date the complaint was filed. In extinguishing scores of overcharge claims, the courts have consistently held that only rents registered in that four-year period are subject to review and are treated as the legal rents. And now, guess what? Even rents registered within that very four- year period are no longer valid if a landlord claims no one was living in the apartment or paying this registered rent. This new judge-made twist in the law is such an insult to tenants who have been forced to rely on rents registered in that time period as the legal rent. Just because the landlord registered the premises as vacant, who is to say that is even true. This decision seems to create an additional hurdle for tenants to prove in overcharge cases. Not only must they prove what the legal registered rent was in the four year period, but also whether or not a tenant actually lived in the apartment and paid the registered rent. This decision is just rotten law, unabashedly pro-landlord and derisive of tenants.


Case Caption:
Mite v. Pipedreams Realty
Issues/Legal Principles:
Housing Court has authority to order emergency rodent extermination prior to the availability of the inspector's report since violations may be proven by evidence other a report, including testimony and photographs.
Keywords:
rat infestation; inspection report; HP action
Court:
Civil Housing Court, Bronx County
Judge:
Hon. Gonzalez
Date:
January 23, 2002
Citation:
NYLJ, page 19, col 3
Referred Statutes:
Administrative Code of the City of New York 27-2215(h), 27-2002, 27-2121, 27-2018; NYCCA 110(c)
Summary:
The tenant-petitioner brought an HP action against her landlord on grounds that rats run on her children's bunk bed and through her living room. She sought emergency relief, but the landlord challenges the court's ability to authorize emergency rodent extermination prior to the filing of the inspector's report. The court disagreed citing the New York City Civil Court Act as vesting the Housing Court with broad authority to protect and promote the public interest. Further, a violation may be proved in an number of ways, such as, computerized records, photographs, or testimony, for example. The court rejected the landlord's implicit argument that an inspection report is a requirement to prove a violation. At a hearing held prior to the availability of the inspection report, the judge heard the tenant's testimony of rats and reviewed photographs of rats in various poses. The tenant testified that she notified the managing agent a number of times but the agent admitted lack of personal knowledge of the condition. The court found that the condition constituted a C' violation and ordered emergency extermination within 24 hours.


Case Caption:
ATM LLC v. Allicino
Issues/Legal Principles:
Nassau tenant argues that a landlord cannot recover legal fees if, once rent stabilization took effect, the first lease to the apartment did not contain such a clause, but the court held that this argument is not applicable to tenant's vacancy lease (since tenant was not the first tenant when rent stabilization came into effect).
Keywords:
attorney's fees; leases; rent regulation
Court:
Civil Court, Nassau County
Judge:
Hon. Kluewer
Date:
January 23, 2002
Citation:
NYLJ, page 25, col 4
Referred Statutes:
9 NYCRR 2522.5(g), 2502.5, 2503; McKinney's Statutes 3, 95, 97, 301(a); McKinney's Unconsolidated Laws 8622
Summary:
Landlord brought a holdover proceeding based on tenant's alleged unlawful harboring of a dog. Tenant moved out and the remaining issue was whether or not landlord could collect legal fees and late fees. Tenant made a novel argument: for rent stabilized leases outside New York City, the landlord must prove that an attorney's fees provision in the parties' lease had existed for a lease to this apartment at the time rent stabilization took effect in Nassau County. The landlord, however, interpreted the statute on which tenant relied [9 New York Code Rules and Regulations Section 2502.5(c)(7)] was meant to protect tenants during a narrow period: the period from when the rent regulatory scheme began and the date that the legal regulated rent was actually established. In those circumstances, tenant's argument fails and the requirement that the first lease contain a fees provision is inapplicable to a vacancy lease. This tenant was not the first tenant living in the premises when rent stabilization became effective. Rather she had a vacancy lease. The court agreed with the landlord and awarded the landlord legal fees.


Case Caption:
Florencia Properties NV, Inc. v. Wertheim
Issues/Legal Principles:
Tenant fails to show that he occupied entire loft space with occupant who resided on third floor as a roommate and not as an illegal subtenant.
Keywords:
nonprimary residency; loft; roommates; sublets
Court:
Appellate Term, First Department
Judge:
lower Court: Hon. Laurie Lau
Date:
January 23, 2002
Citation:
NYLJ, page 18, col 1
Referred Statutes:
none cited
Summary:
The lower court determined in this nonprimary residency case that the tenant was not utilizing the third floor of the loft premises as his primary residence. The tenant unlawfully sublet that space to a friend/business associates for several years without obtaining the landlord's written consent. Tenant claimed that the occupant was actually a roommate and not a subtenant, and that he and the occupant resided in the entire loft together. Tenant resided below in a second floor loft space from which the tenant and the occupant conducted a real estate business. The two loft units were divided by an interior circular stairway and hatch door installed by tenant. Each unit had a separate entrance, kitchen, bathroom, electric metering, mail box and separate lease. The Appellate Term affirmed the decision, holding that the tenant did not share the entire two loft units with the occupant as a roommate and that the tenant's use of the third floor was of an incidental nature. Notably, the tenant's tax returns did not identify either loft space and the occupant's own drivers license listed his apartment as only the third floor.


Case Caption:
A Real Good Plumber Inc. v. Kelleher
Issues/Legal Principles:
Court must inquire if landlord knew of tenant's residential usage of commercial loft space and acquiesced in such usage.
Keywords:
multiple dwelling; lofts; rent stabilization; registration
Court:
Appellate Term, 2nd & 11th Judicial Districts
Judge:
lower Court: Hon. S. Goodheartz
Date:
January 25, 2002
Citation:
NYLJ, page 20, col 6
Referred Statutes:
Multiple Dwelling Law 325(1), 4(44); Administrative Code of the City of New York 27-2097
Summary:
The landlord brought a nonpayment proceeding against the tenant in the commercial part of the court. The lease states that the premises are to be used solely for commercial purposes. The tenant, however claimed that the landlord knew that the tenant resided in the premises, a claim the landlord denies. The landlord admitted that 19 of the 22 units have bathrooms and that he installed gas lines in some units. Tenant claims that she told landlord before she moved in that she was looking for loft space that could be used for living and work purposes. She looked at some of the units and saw that most of them were being used for living purposes as well. Tenant drew a diagram for landlord of where she wanted him to install her bathroom and kitchen. The lower court held for the landlord on grounds that the tenant was bound by the terms of the lease which provided that the space was to be used solely for commercial purposes. The court made no finding of whether landlord knew of and acquiesced in the tenants' residential use of the premises.

The Appellate Term reversed and remanded for a new trial. The Court looked at the Multiple Dwelling Law's definition of a dwelling as being three or more families living apart from each other. In such instances the owner must register the building as a multiple dwelling, as opposed to a commercial space. The purpose of the registration requirements enable tenants and government authorities to readily contact owners and other responsible persons. The spirit and letter of the law would require that this building be registered if landlord knew of and acquiesced in the residential use. The lower court erred in failing to examine the extent of landlord's knowledge.


Case Caption:
Herald Towers LLC v. Jeet International Ltd
Issues/Legal Principles:
Corporate lease for corporate tenant must specifically name an individual who resides in the apartment if the corporate tenant and the occupant want a renewal lease.
Keywords:
nonprimary residency; corporate lease
Court:
Appellate Term, First Department
Judge:
lower Court: Hon. Laurie Lau
Date:
January 24, 2002
Citation:
NYLJ, page 19, col 4
Referred Statutes:
none cited
Summary:
The rent stabilized apartment was rented to a corporate tenant in November, 1991. Neither the initial stabilized lease nor subsequent renewals specified any individual or officer of the corporation as occupant of the apartment. The law provides that a corporation is entitled to a renewal lease only where a particular individual is specified as the intended occupant. If no such individual is named, no primary tenancy actually exists, thereby creating the possibility of a prohibited perpetual tenancy. The Appellate Term also held that the landlord is not required to issue a renewal lease to the actual or de facto occupant of the apartment if this person is not listed in the lease. This is so even through the occupant who signed the lease is the president and sole shareholder of the corporation. She signed the lease but in her corporate capacity, not as an individual, even though her corporate capacity was not cited beneath her signature. The Appellate Term upheld the summary judgment award to the landlord.


Case Caption:
Zuk v. Budka
Issues/Legal Principles:
Landlord who purchased property at a foreclosure action in Supreme Court cannot maintain holdover proceeding against tenant if landlord cannot show that the tenant was served the legal papers in the foreclosure action or that the deed was properly exhibited to the tenant prior to the commencement of the holdover proceeding.
Keywords:
foreclosure; exhibit lease; necessary party
Court:
Appellate Term, First Department
Judge:
lower Court: Hon. Brenda Spears and Hon. Arlene Hahn
Date:
January 24, 2002
Citation:
NYLJ, page 19, col 5
Referred Statutes:
RPAPL 713(5)
Summary:
The landlord purchased the building at a foreclosure and sought to evict the tenant from an unregulated apartment. This tenant had a lease ending in March, 2006. Thus, the law requires that the tenant be made a party to the foreclosure action in Supreme Court. The tenant was made a party, but there was no proof that she was served notice of that action. She denied that she ever was served notice of the foreclosure action. In Housing Court, the motion judge (Hon. Arlene Hahn) dismissed the tenant's affirmative defense regarding the fact that she was never served notice of the foreclosure action. The Appellate Term reversed on grounds that she was required by law to be served, she submitted a sworn statement of not being served and the landlord failed to submit any affidavit of service in Housing Court that she in fact was served in the foreclosure proceeding. As a necessary party to the foreclosure action, the Housing Court case should have been dismissed for failure to show proof of service on the tenant of the foreclosure action papers. Further, the law requires that in a foreclosure the referee's deed or a properly certified copy is required to be exhibited to the tenant before the holdover and this also was not done, according to the tenant, yet the lower court, also improperly dismissed her defense on this ground.


Case Caption:
Wilshire Plaza LLC v. Kaye
Issues/Legal Principles:
Landlord who discontinues nonprimary residency case cannot use the Golub Notice in that case as the basis for a subsequent nonprimary residency proceeding.
Keywords:
nonprimary residence; Golub Notice
Court:
Civil Housing Court, New York County
Judge:
Hon. Timmie Elsner
Date:
January 23, 2002
Citation:
NYLJ, page 18, col 5
Referred Statutes:
CPLR 3211; RSC 22523.5
Summary:
The landlord brought a nonprimary residence proceeding for a second time because the first case was discontinued by agreement between the parties' attorneys without prejudice. The landlord's second proceeding seeks to utilize the same non-renewal notice (a/k/a Golub Notice) as relied upon in the first proceeding.

The court reviewed the past case law on this issue and cited well settled law that a landlord cannot utilize a Golub Notice that previously formed the basis of a prior proceeding which was dismissed. The exception to this rule occurs when the second proceeding is commenced before the first proceeding is dismissed or terminated, in other words, while the first proceeding is still pending. In these circumstances the Golub Notice can be used in the second proceeding.

In this case the stipulation of discontinuance on the first proceeding was dated August 9, 2001 but not filed with the court until September 6, 2001. The discontinuance was effective as of the date that the parties executed it. The second proceeding was commenced October 16, 2001, long after the first proceeding was over. Thus, the court dismissed the petition and set the matter down for a hearing on attorney's fees to be awarded the tenant as the prevailing party.


New York Law Journal,
decisions for the week of January 14-18, 2002 (5 cases)


Case Caption:
Beneson v. Dimonda
Issues/Legal Principles:
Where landlord knew that tenant was hospitalized, service on tenant of nonpayment petition at the apartment was not reasonable and subsequent eviction was therefore illegal.
Keywords:
illegal eviction; service of process; damages; guardians
Court:
Civil Court, Kings County
Judge:
Hon. Battaglia
Date:
January 16, 2002
Citation:
NYLJ, page 22, col 1
Referred Statutes:
CPLR 308(2) and 1201 and 1203; RPAPL 735(1) and 853; Civil Court Act 1609(1)
Summary:
The tenant was evicted from his apartment as a result of a nonpayment proceeding in Housing Court. On the date of the eviction, March 9, 2001, the tenant was a resident of a psychiatric center in Staten Island where he had been since December 19, 2000 and where he remained until June, 2001. The tenant claims that the landlord took $9,000 worth of property from him during the eviction, but landlord denied taking anything. Evidence suggests that tenant had broken up the wood floors and used the wood for fires. The tenant's parents claim that a social worker assured them that the rent was being paid by government assistance and that the landlord was advised of such, a claim the landlord denied.

Tenant had a serious nervous breakdown in the fall of 2000 and testified that he could not remember the condition of the apartment the last time he was there. The landlord served the nonpayment petition at a time when the landlord had also obtained an ex parte order of protection against the tenant in criminal court with a charge of reckless endangerment. The order directing the tenant to stay away from the apartment is dated November 13, 2000 and in the box indicating service was written "defendant in hospital." The nonpayment petition was served by conspicuous place service on November 25, but defects in the papers prevented the landlord from getting a warrant of eviction at an inquest until months later, and the eviction not occurring until March 9, 2001. There is no evidence that tenant ever knew about the eviction proceeding.

The marshal's inventory indicated vacant apartment and no inventory was taken. The landlord claimed that nothing was in the apartment when the eviction occurred. The court credited the landlord's testimony since it is corroborated by the marshal's inventory statement. Additionally, the tenant had no recollection of what his apartment looked like when photographs were presented. The court did not doubt that tenant at one time possessed the items, and expressed being uncomfortable that there is no explanation for their whereabouts. However, the court held that "speculation, rather than inference, would be required for a conclusion that the property was taken by the landlord." The court ruled that tenant did not prove that it was more likely than not that the landlord took his property.

The court went on, however, to discuss the eviction process and the requirement that a guardian be appointed when necessary. Here the landlord was on notice that tenant was mentally unstable even before the nonpayment proceeding commenced. The court held that the Housing Court should have been advised of the tenant's condition. There were other irregularities that rendered the eviction illegal, according to the court. The landlord knew from the criminal proceedings that the tenant was not in the premises and thus service on the apartment where the tenant would not be found was unreasonable since there was no reasonable application of success. The order of protection stated that the tenant was in the hospital which placed upon the landlord a duty of inquiry as to where the tenant was at the time the nonpayment petition was served. The court also noted that a number of the affidavits of non-military service appeared to be forged.

Upon concluding that the eviction was illegal, the court queried whether damages are available. Even without proving actual damages a tenant wrongfully evicted is entitled to nominal damages. The measure of compensatory damages is the value of the unexpired term of the lease over and above the rent the tenant must pay under its terms. Further, punitive damages are available, as well as treble damages. The court held the landlord should be given an opportunity to explain his role (apart from his attorneys) in the eviction proceeding, and explain the irregularities in the proceeding, particularly since the landlord does face some sort of damages arising from the illegal eviction.


Case Caption:
ATM Two LLC v. Ramos
Issues/Legal Principles:
Nassau tenant is entitled to lease renewal where excusable conditions were shown to sufficiently explain the failure to timely sign the lease.
Keywords:
lease renewals; default; cure; succession rights
Court:
District Court, Nassau County
Judge:
Hon. Gartner
Date:
January 16, 2002
Citation:
NYLJ, page 23, col 3
Referred Statutes:
RSC 2523.5(b); Emergency Tenant Protection Regulations 2503.5(b)(2)
Summary:
The tenant of record vacated the apartment 10 years ago. His son had lived with him since the inception of the tenancy. After his father went to Florida, the son would send all the lease renewals to Florida, the father would sign the renewals and return them to the son who sent them on the landlord. This year, however, the renewal lease never came through the mail to the apartment.

About a month after mailing the renewal lease the landlord sent a notice of termination stating the apartment would be recovered on grounds of overcrowding if the problem was not cured. The son called the landlord and expressed his desire to remain in the apartment, even agreeing to pay an 18% vacancy increase. During this period the time to sign the renewal lease expired, unbeknownst to the son.

The court examined other cases as to when a tenant is allowed to cure the failure to sign a renewal lease. The court also examined amendments to the relevant statute. A recent case interpreted the new statutes to mean that "a default occasioned by tenant's failure to timely renew a lease can be effectively cured where the tenant remains in occupancy and continues to pay the applicable rent." The new amendments (effective 12-20-00) allow the landlord to either deem the lease as having been renewed at the new increased rent and to bill and collect that rent, or to treat the lease as having been terminated and to seek to evict the tenant in a holdover proceeding and wait for a delayed period until collecting rent in the court proceeding at the lower old rate.

In the case here, the tenant put forth sufficient evidence to rebut the presumption of receipt of mailing, and he spoke with the landlord who remained silent about the unsigned lease. In such circumstances the tenant met all the conditions for his default to be excused and for the tenant to be entitled to a permanent "stay" of any judgment and warrant for purpose of executing a renewal lease. Furthermore, the court looked at the son's circumstances and concluded that he was entitled to a renewal lease in his own name as a successor tenant. The court directed that a lease be tendered to the son with all rent increases to be paid retroactively to the lease's commencement date.


Case Caption:
Tri-Block Associates v. Turner
Issues/Legal Principles:
Section 8 tenant who did not get prior permission for his mother to occupy the apartment cannot be evicted since such a breach of the lease is "de minimus," particularly where tenant cured by requesting permission several months later.
Keywords:
Section 8; succession rights
Court:
Civil Housing Court, Kings County
Judge:
Hon. Alterman
Date:
January 16, 2002
Citation:
NYLJ, page 21, col 6
Referred Statutes:
42 USC 1437; 24 CFR 880
Summary:
The original tenant was served a holdover proceeding on grounds that she had allowed her daughter to reside in the apartment without the landlord's permission and in violation of HUD regulations. (This is a Section 8 tenancy). During the pendency of the proceeding, the tenant died. Tenant's grandson had been listed on the annual recertifications since 1995. In 1999, his mother (Tenant's daughter) moved in to care of the tenant. In January, 2000 around the time of the recertification process, the grandson asked that his mother be permitted as part of the household. This request was refused and the eviction proceeding commenced. The tenant died in January, 2001.

The court analyzed the instances in which a Section 8 tenancy may be terminated. The notice of termination alleges material noncompliance. None of the examples of material noncompliance applied to the circumstances here except Paragraph 13 of the lease which requires the owner's prior written approval before someone else may take occupancy. The mother occupied the apartment for only a couple of months before the son sought permission from the owner. The court analyzed the HUD regulations and observed that numerous opportunities are available for tenants to cure alleged breaches or defaults. Further, the public policy underlining the Section 8 scheme encourages such cures.

The court ruled that the son's failure to seek permission for just a couple of months before his mother took occupancy is only a de minimus breach of the lease. Further permission was sought before the landlord even commenced litigation. The court ruled that no material noncompliance occurred and that the minor breach has been cured (by the subsequent request for permission). The sole grievance by the landlord is that the mother moved in a couple of months before permission was formally requested. The court noted that the landlord did not otherwise find the mother ineligible for occupancy or that her presence would render the other members of the household ineligible for continued occupancy. Therefore, the court dismissed the petition.


Case Caption:
Herald Towers LLC v. Perry
Issues/Legal Principles:
Tenant is allowed a ten-day cure period in a chronic nonpayment proceeding against tenant brought on theory of breach of substantial obligation of tenancy because tenant's lease contains a special provision allowing not just for a ten-day cure period to correct the default, but also for a period where tenant is beginning to cure defaults which may not necessarily be curable in a ten-day period.
Keywords:
chronic nonpayment; nuisance; breach of substantial obligation of tenancy
Court:
Civil Housing Court, New York County
Judge:
Hon. Laurie Lau
Date:
January 16, 2002
Citation:
NYLJ, page 19, col 1
Referred Statutes:
RSC 2524.2, 2524.3; RPAPL 753(4)
Summary:
Landlord brought a holdover proceeding against tenant based on tenant's alleged breach of a substantial obligation of his tenancy, to wit; a chronic non-payment of rent. Tenant asked the court to dismiss the petition on grounds that the landlord never served a notice to cure. The issue before the court is whether the landlord was required to serve a notice to cure where the landlord alleges a breach of a substantial obligation of the tenancy.

The landlord relied on an Appellate Term case, Adam's Tower Limited Partnership v. Richter 186 Misc.2d 620 (2000) which held that even if a lease or statute provides time for a cure period "does not necessarily imply that a means or method to cure must exist in every case" and the tenant's conduct was "incapable of cure" especially within a ten day period (the standard cure time period).

The court noted that the law handles chronic nonpayments differently if they are brought under a nuisance theory as opposed to a theory based on breach of a substantial obligation of the lease. Under a nuisance theory, the landlord must show that the tenant's chronic nonpayment was ""willful, unjustified, without explanation, or accompanied by an intent to harass the landlord." Whereas a substantial breach theory has a less stringent hurdle: the landlord must show that it has been "repeatedly forced to institute nonpayment proceeding and to serve rent demands on respondent to collect chronically late rental payments." If a case is brought under a nuisance theory, the tenant has no right to cure the conduct. However, a breach of a substantial obligation proceeding generally allows for a cure. The landlord, however, argued that the Appellate Term's decision in Adams vitiates the right of a cure even in a substantial breach proceeding.

The judge looked at the provisions of the tenant's lease and found that they not only provide a cure period for defaults capable of cure within ten days, but also for defaults that by their nature cannot be cured within a ten day period, that is for a cure period where the tenant is beginning to make the cure. The court held: "The fact that a tenant whose lease does not contain such provisions may not have a similar right to cure does not vitiate the provisions of respondent's lease." The court was presumably distinguishing this tenant's lease with the Adam's tenant's lease which seemingly did not allow the tenant a period to begin to cure breaches.


Case Caption:
Gilman v. DHCR
Issues/Legal Principles:
DHCR properly considered
Keywords:
Fair Market Rent Appeal; due process; new evidence
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Michael Stallman
Date:
January 17, 2002
Citation:
NYLJ, page 17, col 4
Referred Statutes:
RSL 26-516-a; 9 NYCRR 2529.6 & 2522.3; Rent Regulation Reform Act of 1997
Summary:
Tenant moved into a decontrolled apartment in May, 1990 as the first rent stabilized tenant. The first stabilized rent was set by the landlord at $2075 per month. One month later she timely filed a Fair Market Rent Appeal (FMRA) challenging the first rent. The DHCR failed to notify the landlord of her FMRA until 1992. In 1991 the landlord had adjusted the rent downward to $1900 per month. The landlord requested an "answering package" and sought additional time to respond to the FMRA in order to explain its justification for the initial rent based on rent charged for comparable apartments nearby. After a 21 month delay, the tenant brought an Article 78 mandamus proceeding to compel the DHCR to issue a decision. This resulted in DHCR agreeing to issue a decision by July, 1994. Only then did the DHCR send the landlord an "answering package" with comparability forms. The landlord then sought a six- month extension to respond, which was granted, plus an additional 3 months. However before the landlord responded the Rent Administrator issued an order on July 22, 1994 establishing the fair market rent at $1,011.12 per month and ruled that the landlord owed the tenant $50,115.40 in overcharges since May, 1990.

The landlord filed a petition for administrative review (PAR) arguing that the Rent Administrator failed to give sufficient time to submit the comparability date and failed to take into account various expenditures for maintenance and improvements. In June, 1997 the law changed so that an examination of rent history on overcharges was limited to four years from the filing of the complaint. In June, 1999 the DHCR finally offered the landlord an opportunity to submit its comparability data which the landlord did within three weeks. The tenant argued that the time to do so had passed; that the landlord should have submitted such data at the initial stage of the proceeding, not at the PAR stage which is an administrative appeal. The PAR Commissioner partially granted the landlord's appeal based on some of the comparables and some of the documented improvement expenditures. As a result PAR decision dated May 16, 1999 established the initial stabilized rent at $1754.64 as of May, 1990.

Tenant brought an Article 78 appeal challenging the PAR on grounds that the Commissioner's acceptance of the landlord's comparability data was late. The Supreme Court agreed with the tenant on grounds that the "extreme nature of the delay" resulted in "gross and unfair prejudice" to the tenant. The court further concluded that the DHCR was negligent in handling this matter in such a protracted matter. The Appellate Division reversed, finding that the DHCR was not negligent. The Court found that DHCR's delay was due to a heavy case load and the landlord was diligent in moving the proceeding along at every stage. The result of the Appellate Division's decision is that the tenant is now liable for almost $50,000 in rent.

Two of the five Appellate Division judges dissented from this opinion (making it likely to go up to the highest court in New York State, The Court of Appeals). Justice Rubin wrote the dissenting opinion. He phrased the issue on appeal as "whether a landlord should be permitted to cure its default in submitting evidence to an administrative agency by offering the material for the first time on administrative appeal." No statute or regulatory provision allows receipt of new evidence nearly five years after the decision appealed from issued. Justice Rubin held that the DHCR improperly made a de novo determination upon the merits of the tenant's original petition based on newly submitted evidence, and there is no justification for such belatedly considered evidence. Justice Rubin found that such consideration "offends both well- settled principles of procedural due process" as well as DHCR's procedural rules.

The DHCR initially erred in treating the FMRA as an overcharge complaint, but that doesn't excuse the landlord from not responding until the DHCR (via tenant's mandamus) finally addressed the complaint as an FMRA. Justice Rubin found that the landlord failed to submit comparability data to the Rent Administrator after the mandamus. The landlord's PAR failed to state any reason why the necessary data was not supplied to the DHCR in a timely manner, nor did the landlord submit such data at the time it filed the PAR. This was not a case of a new owner seeking the old owner's records. This landlord possessed the building for some time before the complaint was filed. Where information submitted on a PAR is not shown to have been previously unobtainable, it cannot be the basis for vacating the initial DHCR decision.

In order for the comparability material to have been submitted, because it is new evidence at the PAR stage, the landlord had to submit it with the PAR petition plus "affirmatively establish that the evidence was unavailable at the time the original determination was made." DHCR attempted to excuse its departure from the rules governing administrative appeal by invoking the Rent Regulation Reform Act of 1997, arguing disingenuously that the statute limits consideration of comparability data to four years before the complaint is filed, and thus the Commissioner was allowed to provide the owner an opportunity on administrative review to do so. But Justice Rubin pointed out that this statute was never an issue in this matter, nor does the statute address the real issue here: belated submissions at the appellate stage. In this case, the landlord defaulted and the tenant sought timely resolution of the proceedings by her resort to the extraordinary remedy of mandamus. Justice Rubin labels DHCR's act a "mysterious solicitation" which allowed the landlord to benefit from its default without any explanation for why such documents were not submitted earlier. Justice Rubin and Justice Mazzarelli who joined him in the dissent would not have reversed the Article 78 decision in tenant's favor.

Notes:
Since two of the five justices on the appellate panel dissented, this case will surely be taken up on appeal to the Court of Appeals, and it should. This case is stinky law and should not be allowed to stand. Landlords (and even tenants!) should never be allowed to submit new evidence on appeal without a reasonable explanation for why the evidence was not submitted earlier. If the explanation is not reasonable, the evidence should not be submitted. Fundamental principles of fairness require such a stringent rule. It is disgraceful that the Appellate Division so cavalierly disregarded this sacred principle of due process in order to salvage a landlord's financial liability.


New York Law Journal,
decisions for the week of January 7-11, 2002 (6 cases)


Case Caption:
446 Ocean LLC v. Marcel
Issues/Legal Principles:
Once tenant shows basic elements of laches (stale rent), burden shifts to landlord to provide reasonable excuse for a delay in commencing a nonpayment proceeding against the tenant.
Keywords:
laches; stipulation
Court:
Civil Housing Court, Kings County
Judge:
Hon. Michael Pinckney
Date:
January 9, 2002
Citation:
NYLJ, page 22, col 1
Referred Statutes:
none cited
Summary:
In this nonpayment proceeding the tenant entered into a stipulation and agreed to pay the arrears. She defaulted and the landlord now moves for a judgment. The tenant obtained counsel who made a cross-motion seeking to vacate the stipulation on grounds of laches. Although it is usually quite difficult to set aside a stipulation, the court granted the application on grounds that the stipulation severely prejudiced the tenant's rights when she in fact has a defense which could defeat the nonpayment proceeding. The tenant's defense is laches, also known as stale rent. The landlord argued that, among the various elements the tenant must prove to show laches, this tenant failed to show that the landlord was manipulating the tenant for a set up goal of evicting the tenant. The court disagreed and held that once the tenant satisfies the burden of establishing the basic elements of laches then the burden shifts to the landlord to show a reasonable excuse for the delay in bringing the case. The court set the matter down for a trial for the tenant to prove her laches defense.
Notes:
The basic elements of a laches defense are 1) conduct on the part of the tenant for which the landlord seeks a remedy (i.e., nonpayment of rent), 2) delay by landlord in asserting its rights (i.e., waiting for months and months before bringing a nonpayment proceeding, 3) tenant's lack of knowledge or notice that the landlord would commence a proceeding, and 4) injury or prejudice to the tenant in the event that the landlord succeeds in its claim.


Case Caption:
Trustees of Columbia University v. Vargas
Issues/Legal Principles:
Rent demand served by conspicuous place service with mailing made two days later, according to the postmark, requires the dismissal of the petition since the mailing must be made within one day after service of the papers on the apartment.
Keywords:
service of process; mailings
Court:
Civil Court, New York County
Judge:
Hon. Lucy Billings
Date:
January 9, 2002
Citation:
NYLJ, page 19, col 2
Referred Statutes:
RPAPL 711(2), 735(1); CPLR 308, 2103(b)(2), 2004, 8301, 1908; New York City Civil Court Act 411; Federal Rules of Civil Procedure 5(b)
Summary:
The sole issues before the court were 1) whether the landlord mailed its rent demands to the tenants within one day after posting the petition on the door, as required by RPAPL 735(1), and 2) whether the landlord mailed copies of the petition to tenants after affixing the pleadings to the tenants' residence.

At trial the landlord's process server testified that he placed the petitions on the door on April 30 and then delivered the envelopes containing the rent demands to the post office at Camden Plaza in Brooklyn. There were four envelopes mailed to the four named tenants and two mailed to a John Doe and Jane Doe by regular mail postmarked May 2. At issue is whether the mailing requirement is satisifed when the envelope is delivered to the post office or when postmarked. If the latter, then the postmarks are dispositive, whether or not the process server delivered the mail to the post office the day before as he claims.

The court examined other statutes dealing with this issue and found that the service requirement is satisfied when the documents are deposited in the post office or mailbox. It would be too hard for the process server to determine if they were properly postmarked if the documents were dropped off in the mailbox. Thus, it makes sense that the mail requirement is satisfied when the documents are delivered to the post office or mailbox.

In the case at bar, since the papers were served at the premises on April 30, they should have been mailed on May 1. Yet, the postmarks are all dated May 2 and marked P.M. not A.M. which negates against a finding that the process server could have mailed them even on the evening of May 1st. The court then queried whether the statute could be extended by one day, and concluded that the defect in the mailing of the rent demands is material and substantial and may not be cured retroactively by extending the one day deadline that is a component of the strict statutory prescription. Since, the statutory requirements for proper service of legal papers was not complied with due to the late mailing date, the court dismissed the petition without prejudice (meaning the landlord can recommence the proceeding upon proper service of the papers).


Case Caption:
Matter of Grimm v. DHCR
Issues/Legal Principles:
Purchaser at judicial sale must show non-receipt of prior owner's records in order to be exempt from treble damages arising out of a DHCR overcharge which accrued during prior owner's ownership.
Keywords:
rent overcharges; treble damages; foreclosure; illusory prime tenancy
Court:
Supreme Court, New York County
Judge:
Hon. Friedman
Date:
January 9, 2002
Citation:
NYLJ, page 18, col 3
Referred Statutes:
RSC 2526.1
Summary:
The tenant filed an overcharge complaint and the DHCR ruled in the tenant's favor and determined that the prior owner was responsible for the refund of the entire overcharge. This is because the current owner purchased the building at a foreclosure sale and thus has no liability for the overcharges due to Rent Stabilization Code Section 2526.1. This statute establishes a presumption that a rent overcharge is willful and provides for treble damages unless the owner shows it was not willful. The Code exempts a current owner from payment of treble damages incurred by its predecessor only where there is no collusion or relationship between the current and prior owners and where the current owner purchases the premises at a judicial sale but sufficient records are not provided to establish the legal rent. The prior owner appeals this DHCR decision in an Article 78 proceeding to Supreme Court.

The prior owner argues that the DHCR erred in not assessing the current owner with the overcharges. This is because, although the current owner submitted proof that it purchased the property at a foreclosure, it failed to show evidence that proper records were not provided at the foreclosure. Therefore, the current owner failed to show that it was exempt from the overcharge liability. The DHCR argues that the prior owner's arguments are without meaning since the DHCR order based its overcharge finding on falsified rent records. Therefore, even if the current owner produced any records from the prior owner, they would be the same falsified documents.

The court held that the DHCR's argument is misplaced and wrong. This matter involved an illusory prime tenancy claim by the so-called subtenant. DHCR determined the subtenant to be the lawful tenant, but the overcharge claims arose on rent increases charged subsequent to the base date, i.e., four years prior to the date the overcharge complaint was filed. Therefore the production of the prior owner's rent records at the foreclosure sale would have assisted the current owner in determining whether the prior owner had charged any illegal rents. Further, DHCR's argument was not invoked below and cannot be raised for the first time on appeal.

The DHCR based its ruling of exemption of the current owner solely on the basis that the property was purchased at a foreclosure. The DHCR did not purport to excuse the new owner's failure to show that it had not been provided with documents to establish the legal rent. Thus, the court concluded that the DHCR erred in failing to apply both prongs of a two-prong test in exempting a current owner from overcharge orders. Further, there was no indication in the record that the new owner did not receive any records. Since the DHCR did not follow the statutory requirements for exempting new owners from treble damages for overcharges that occurred prior to their purchase of a building at a foreclosure, the DHCR order was deemed arbitrary and irrational by the court. The court remanded the matter to the DHCR for a decision consistent with the court's legal conclusions.

Notes:
Kenneth B. Hawco, Esq. represented the tenant at the Article 78 stage of this case. Kenny advises TenantNet that this is a good decision for tenants because it can be cited for the proposition that DHCR can no longer automatically exempt an owner from rent overcharges liability solely because an owner purchases a building at a judicial sale. New owners must show sufficient proof that rent records were not turned over to them at a judicial sale before being exempt from liability.


Case Caption:
Jurzykowski v. Estate of Ruth Hilton
Issues/Legal Principles:
Yonkers tenant retains rent stabilization rights via the Emergency Tenant Protection Act even if 1984 lease did not provide for renewal leases for successor tenant.
Keywords:
succession rights
Court:
Appellate Term, 9 & 10 Judicial Districts
Judge:
lower court: Hon. Doran
Date:
January 10, 2002
Citation:
NYLJ, page 29, col 1
Referred Statutes:
none cited
Summary:
Under the old 1984 lease the deceased tenant's daughter was entitled to succeed to the tenant's lease. The Emergency Tenant Protection Act came into effect in Yonkers long before the signing of the 1984 lease so landlord cannot be heard to claim that the lease's conferral of tenancy rights upon the successor in interest of the tenant of record was not intended to carry with it the right to renewal leases. Had there been a succession provision in the lease, the deceased tenant's estate's right to assign would be governed by Real Property Law 236, not 226- b as contended by landlord. Neither Real Property Law 236 nor the ETPA preclude an owner from granting a tenant greater succession rights than those that are provided in the ETPA.


Case Caption:
111 East 88th Partners v. Reich
Issues/Legal Principles:
Nonpurchasing Rent controlled tenant residing in condominium unit may keep her dog since she walked the animal openly and notoriously for more than three months before landlord commenced any proceeding.
Keywords:
pets
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Maria Milin
Date:
January 11, 2002
Citation:
NYLJ, page 18, col 1
Referred Statutes:
New York City Administrative Code 27-2009.1
Summary:
Landlord brought a holdover proceeding against a rent controlled tenant who resides in a condominium building but did not purchase the unit during the conversion. The grounds of the holdover were unlawful harboring of a dog. The tenant obtained the dog in September, 1997 and began walking the 65 pound animal three times a day in open view of the building's 24 hour door personnel and other employees. The law provides that the landlord cannot evict a tenant for a pet if the owner or its agents has knowledge of the tenant's open and notorious harboring of a pet and fails to commence legal proceedings within three months of such knowledge. The court concluded that the landlord is imputed with knowledge of the tenant's harboring of the dog. Although the pet law might not apply to condominium units, the Appellate Term held that this does not apply because this is not a controversy between a condominium board and a fee owner of a unit.


Case Caption:
Sneddon v. Greene
Issues/Legal Principles:
Stipulation which requires landlord to tender tenant a lease (nonregulated unit) is not breached by tenant if tenant decides not to sign the lease.
Keywords:
nonpurchasing tenant; stipulation
Court:
Appellate Term, 9 & 10 Judicial Districts
Judge:
lower court: Hon. Pasquantonio
Date:
January 10, 2002
Citation:
NYLJ, page 29, col 1
Referred Statutes:
none cited
Summary:
Tenant rented an apartment before it converted to a condominium. The landlord sought to evict him and the parties settled by the tenant agreeing to pay a certain amount of rent. The settlement also provided that the landlord would offer tenant a new one-year lease starting in 2000 with a fair market rent increase retroactive to 1998. Subsequently tenant chose not to sign the lease and the landlord brought a motion to enforce the stipulation, i.e., to compel the tenant to sign the renewal lease. The lower court granted the landlord's request but the Appellate Term reversed, holding that there was no basis to grant the landlord a final judgment of possession simply because tenant failed to enter into the proffered lease. Although the settlement provided that the landlord must offer tenant a new one-year lease, the tenant did not have to sign it. The eviction could stand alone simply on grounds that the nonpurchasing tenant failed to sign a valid renewal lease. Tenant was not obligated to sign the lease which required retroactive market rent payments.


New York Law Journal,
decisions for the week of December 31, 2001 through January 4, 2002 (5 cases)


Case Caption:
Negron v. Goldman
Issues/Legal Principles:
Landlord cannot challenge rent amount after three other courts have already ruled on the issue.
Keywords:
overcharges, treble damages, interest
Court:
Civil Court, New York County
Judge:
Hon. Debra James
Date:
January 2, 2002
Citation:
NYLJ, page 18, col 6
Referred Statutes:
CPLR 5001(b), 5002, 5004
Summary:
A prior judge and the appellate court determined that plaintiff-tenant's overcharge claim was limited to the four-year period prior to December, 1995. Another judge ruled that the initial rent registration contained incorrect information and determined the legal rent to the premises to be $403.60. Now the defendant-landlord is attempting to challenge before another court the amount of the legal registered rent. The judge ruled that she is bound by the holdings of the prior courts having coordinate jurisdiction. The court denied the landlord's attempt to dismiss the action. At an inquest the tenant proved by a preponderance of evidence that they were overcharged in the amount of $33,513.84. The court further determined that the interest accrued from March 31, 1996 through the date of the inquest, at 9%, amounted to $22,062.43. The court set the matter down for a hearing to determine whether the overcharges were wilfull which would entitle tenants to recover treble damages, and to determine the tenant's legal fees.


Case Caption:
698-700 Amsterdam Corp. v. Morfesis Realty Corp.
Issues/Legal Principles:
Where landlord fails to serve and file initial apartment registration (RR-1) tenant can have the rent set by a court of law and rent will be based on the average of similarly sized rent stabilized apartments in the building.
Keywords:
superintendent; rent stabilized lease; rent determination
Court:
698-700 Amsterdam Corp. v. Morfesis Realty Corp.
Judge:
Hon. Carol Huff
Date:
January 2, 2002
Citation:
NYLJ, page 18, col 4
Referred Statutes:
9 NYCRR 2528.1, 2523.1, 2538.2; New York City Administrative Code 517(a); Emergency Tenant Protection Act
Summary:
The defendant-occupant of the apartment seeks an order establishing his rent for Apartment 4N. He entered into a lease on April 1, 1998 which provided that he would be given the use of the apartment in exchange for his services as superintendent and that when such services ended, the apartment was "to revert to RSA status [and] rent to be that of (RSA) registered rent." RSA apparently refers to the former Rent Stabilization Association. The court had already determined that the lease was valid and that the Rent Stabilization Law and Code apply. Since the super's services ended on April 3, 1998, the rent must be established as of that date. [This must have been the shortest super's tenure in New York City history.]

Apartment 4N had previously been rent controlled and the last rent was $88 per month. Typically when a rent control apartment is decontrolled, the landlord may establish a market rent and then register the new rent stabilization rent with the DHCR and must also serve a copy of the initial apartment registration and notice of the initial legal registered rent to the tenant. Further landlords must serve annual apartment registrations. None of these actions were taken by this landlord when the premises became subject to the rent stabilization laws on April 3, 1998.

The court determined that it had the jurisdiction and authority to establish the appropriate rent since the landlord did not make any of the above mentioned filings. The former superintendent argues that the rent should remain at $88 per month. The landlord argued that he and the super could not come to an agreement on the rental amount although the rent was originally intended to equal the value of the super's labor. The landlord wants the rent to be set in accordance with the current market rates on similarly sized apartments in the building which range between $2100 and $2300 per month.

The court, however, noted that the apartments cited by the landlord were fully renovated prior to being leased while the super's apartment was only made habitable by his own work. A more appropriate standard would be the rents of similar rent stabilized units in the building. The former super submitted the rent stabilized rents of six units and their average rent amounts to $334.09. The judge then set the rent at $334.09 per month as of April 3, 1998. This means that the tenant must now come up with roughly $16,000 in arrears to keep the apartment.

Notes:
Normally when a rent controlled apartment is decontrolled and the first rent stabilized rent is challenged after the tenant is served the notice of first rent (known as an RR-1), the sole forum with exclusive jurisdiction to challenge the first stabilized rent is the Division of Housing and Community Renewal (DHCR). In this case, the court did not defer the case to the DHCR on grounds that the RR-1 and other notices were not served or filed by the landlord. It is always preferable to have the courts make determinations rather than DHCR because a party has the opportunity to speak face to face with the judge (the person making the decision), and this is not the case, frustratingly, with the DHCR.


Case Caption:
728 Properties Assoc. Inc. v. Maria
Issues/Legal Principles:
Landlord is not obligated to accept occupant's full rent payment after warrant of eviction issues.
Keywords:
default; stipulation; warrant of eviction
Court:
Appellate Term, First Department
Judge:
lower Court: Hon. Peter Wendt
Date:
January 4, 2002
Citation:
NYLJ, page 18, col 1
Referred Statutes:
none cited
Summary:
The respondent sought to vacate her default of the stipulation's rent pay-out schedule which led to a judgment of possession against her and the lower court denied her request. The respondent appealed but the Appellate Term upheld the denial on grounds that there was no legal basis to set aside the stipulation. The landlord was willing to give the respondent a lease and make her tenant of record, but only if she paid the rent as per an agreed pay-out schedule. She defaulted by tendering less than the amount due. Not until three weeks later did she offer the full sum, but it was too late by then. Since the warrant of eviction had already issued, landlord was not obligated to accept her belated full payment.


Case Caption:
Chelsea 23rd St. Corp. v. Moss
Issues/Legal Principles:
Hotel tenant cannot re-litigate tenancy status since this was already the subject of a prior proceeding and she lost on this issue.
Keywords:
hotel; rent stabilization status
Court:
Appellate Term, First Department
Judge:
lower Court: Hon. Paul Alpert
Date:
January 4, 2002
Citation:
NYLJ, page 18, col 1
Referred Statutes:
RSC 2520.11
Summary:
In a prior nonpayment proceeding, the landlord proved that the rent charged for the tenant's hotel was more than $350 per month on May 1, 1968 which meant the unit was not subject to rent stabilization. The evidence was given by the hotel manager and a prior tenant who occupied the premises in 1968. The tenant never appealed this decision. The tenants cannot now in this subsequent holdover proceeding attempt to litigate the status of their tenancy. Even though newly discovered evidence was offered by the tenants, it was not of sufficient probative value to raise an issue at trial. The landlord was denied legal fees since the lease provision does not provide for legal fees, but rather only for "expenses."


Case Caption:
SLG 17 Battery 17 LLC. v. Broderick
Issues/Legal Principles:
Tenant's unilateral surrender of unit without landlord's written consent as required by the lease is unacceptable.
Keywords:
surrender
Court:
Appellate Term, First Department
Judge:
lower Court: Hon. Milton Tingling
Date:
January 4, 2002
Citation:
NYLJ, page 18, col 1
Referred Statutes:
none cited
Summary:
The lease provided that only a written acceptance by landlord of tenant's surrender of the unit would suffice. Since landlord did not consent in writing to tenant's surrender of the unit, any alleged oral agreement is not enforceable. The trial court rejected tenant's claim that there was a surrender by operation of law. This occurs only when both parties to the lease "do some act so inconsistent with the landlord-tenant relationship that it indicates their intent to deem the lease terminated." Landlord did not respond to tenant's faxed letter setting forth proposed terms of vacating the premises. The Appellate Term held that silence may not be deemed a consent to the purported agreement, and if anything, could be equally construed as a rejection.
Notes:
This case involved a commercial tenancy, which TenantNet normally does not report. However, the case law on a unilateral surrender would also apply to residential cases.