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

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Significant Cases
Cohen v. Strodel
Green Avenue Associates v. Cardwell
Brown v. 99 Sutton LLC
Glenbriar Co. v. Lipsman
Online Case Texts

New York Law Journal,
decisions for the week of June 24-28, 2002 (6 cases)


Case Caption:
Musialowski v. Perez
Issues/Legal Principles:
A superintendent is an "agent" of the landlord for purposes of proving landlord's "knowledge" for when tenant began harboring a pet.
Keywords:
pets; landlord's agent; commencement of proceeding
Court:
Civil Housing Court, Kings County
Judge:
Hon. Finkelstein
Date:
June 26, 2002
Citation:
NYLJ, page 21, col 4
Referred Statutes:
NYC Administrative Code 27-2009.1(b); RPAPL 735; RPAPL 731; CCAct 400
Summary:
The landlord brought a holdover proceeding because the tenant had a dog in violation of her lease and without the permission of the landlord. She kept the dog there openly since February, 2000, walked it twice daily through the building grounds, and in March, 2000 discussed the dog with the "superintendent." Edwin Rodriguez, who tenant denominates as the "superintendent" and agent of the landlord, acknowledges he observed the tenant's dog in May, 2000, not March. The landlord acknowledged in a letter to the tenant dated April 24, 2001, that he had noticed the dog in her apartment on April 20, 2001. The notice to cure was served on June 11, 2001. The petition and notice of petition were served August 8, 2001.

The tenant moved to dismiss the petition. The tenant argued that the landlord waived the pet provision of the lease under NYC Administrative Code 27-2009.1(b), which provides when a tenant openly and notoriously harbors a household pet despite a lease provision prohibiting the keeping of such pets, and the owner fails to "commence" a summary proceeding within three months of the owner "or his or her agent" becoming aware of the violation, such lease provision "shall be deemed waived." The landlord argued that Rodriguez is not the building superintendent, but only a handyman and thus, is not an agent of the landlord and his awareness of the tenant's dog should not be imputed to the landlord. However, the court ruled, under Seward Park Housing Corp. v. Cohen, that Rodriguez's knowledge of the tenant's dog as of March or May, 2000 might be imputed to the landlord. The tenant also argued that, even if Rodriguez's knowledge of her dog could not be imputed to the landlord, this proceeding was not commenced within the three months required by 27-2009.1(b). The court, noting that the proceeding commenced with the service of the petition on August 8, 2001, also agreed with this argument and ruled the proceeding was commenced after the three months required by 27- 2009.1(b). Thus, the court dismissed the petition.


Case Caption:
Cohen v. Strodel
Issues/Legal Principles:
The "intent to return" element set forth in Rent Stabilization Code 2525.6(a) should not be construed so closely that it all but swallows up the right to sublet liberally granted to tenants by the statute.
Keywords:
sublet; unreasonable withholding of authorization to sublet
Court:
Civil Housing Court, Bronx County
Judge:
Hon. Rashford
Date:
June 26, 2002
Citation:
NYLJ, page 20, col 5
Referred Statutes:
Real Property Law 226-b; Rent Stabilization Code 2525.6
Summary:
The tenants requested permission to sublet their apartment on November 6, 2001. By letter dated November 14, 2001, landlords sent tenants a seven page form with 51 questions requesting additional information. Tenants state they did not receive landlords' request until November 29, but returned the completed questionnaire on December 5, 2001. Tenants maintained the subject apartment as their primary residence from the inception of their lease in 1997 until they sublet the apartment. Tenants stated that they had bought a condominium in Brooklyn and wanted to live their while they renovated that condominium. They planned to live their for one to two years, then rent it out and return to live in the subject apartment. Tenants proposed to sublease the subject apartment beginning on or around December 1, 2001, depending on when permission to sublet was received, and to end on or around November 30, 2002, with an option to renew for one additional year, but was not to exceed two years. This option to renew depended upon the completion of renovations to the Brooklyn condominium.

Landlords denied permission to sublet because tenants (1) failed to prove that the apartment was their primary residence and that they intended to return after the sublet; (2) failed to state a definite term for the sublease; and (3) failed to comply with the statutory time frames. Despite the rejection, tenants went ahead and sublet the apartment without authorization because landlords' (1) rejection was unreasonable and (2) request for additional information following tenants' initial request to sublet was unduly burdensome. Once tenants installed the subtenant, the landlords brought this holdover proceeding based upon the unauthorized sublet.

The court ruled that the apartment was the tenants' primary residence and they had an intent to return to the apartment upon the completion of renovations to the Brooklyn condominium. The court also ruled that the indefiniteness of the term of the sublease was not a material defect in the request. The court also ruled that the tenants had expressed an intention to await a response from the landlords before the commencement of the sublet and only sublet the apartment after they received the rejection letter from the landlords. Thus, the court ruled that landlords' withholding of consent was unreasonable and dismissed the petition.


Case Caption:
Ruxton Towers, LLP v. Hughes
Issues/Legal Principles:
Where a litigant tenders a payment by a third party, any default by that litigant in the amount or form was insubstantial, not prejudicial, and excusable by the court pursuant to the court's continuing supervision over the stipulation's enforcement.
Keywords:
unlawful improvements
Court:
Appellate Term, First Department
Judge:
Lower Court: Hon. Cavallo and Hon. Lau
Date:
June 26, 2002
Citation:
NYLJ, page 18, col 5
Referred Statutes:
none cited
Summary:
These holdover proceedings, based upon allegations that tenants had made unlawful improvements and/or alterations in two adjoining apartments, were settled by a so-ordered stipulation in April, 2000. Tenants were required to legalize the work performed on the premises and to make two payments of outstanding arrears on May 10, 2000 and June 10, 2000. The tenant Walsh was in California on business during the period in question and the landlord refused to accept tenders by check or cash from a third party. The transcript of the court proceedings of June 19, 2000 resolved the payment dispute, with any warrant to be stayed provide the sum of $18,152 was tendered or retendered by June 26. It is not disputed that this payment was timely made. Thus, the court ruled that the judgment entered for that amount, having been satisfied, should be vacated.


Case Caption:
Shimon Realty, Inc. v. Stosko
Issues/Legal Principles:
A payment of rent designated or earmarked for a specific month must be applied toward that month and a landlord is not entitled to apply tenant's earmarked checks as it saw fit but is required to apply them toward the payments which are directed.
Keywords:
rent demand; designated rent payments
Court:
Civil Housing Court, Kings County
Judge:
Hon. Pinckney
Date:
June 24, 2002
Citation:
NYLJ, page 24, col 6
Referred Statutes:
none cited
Summary:
Landlord commenced this non-payment proceeding by service of petition and notice of petition dated January 25, 2002. The petition alleged that tenant's monthly rent was $801.22 and that the tenant owed rent from August, 2001 through January, 2002 at the full amount of $801.22 per month, with an opening balance from July, 2001 of $567.92. Total arrears alleged in the petition was $5,375.24. Prior to the commencement of this proceeding, the landlord served a Five Day Notice demanding payment of full rent of $801.22 from August, 2001 through January, 2002, with the $567.92 balance from July, 2001.

The tenant moved to dismiss the proceeding on the basis of a defective rent demand and that the petition fails to state a cause of action. The tenant argues that the rent demand inaccurately states that the tenant has not paid any rent from August, 2001 forward. The Department of Social Services (DSS) paid tenant's monthly rent in the amount of $286.00 for the period of August, 2001 through and beyond January, 2002 (payment in January, 2002 was $192.00). These payments are not reflected in the rent demand nor petition which allege that the tenant has not paid any rent for this period. The landlord argued that credit had been given for all payments received by DSS for that period. The landlord applied any and all payments received, including the DSS payments, to the older arrears.

The court, noting that a rent payment designated for a specific month must be applied toward that month, ruled that the rent demand was defective. The landlord could have provided a monthly breakdown as to the arrears, but instead chose to present a rent demand inaccurate as to the origin of the arrears and a total dollar amount that may or may not be accurate. The court dismissed the petition, but allowed the landlord to commence a new proceeding with an accurate, detailed explanation of the arrears.


Case Caption:
Carnegie Park Assoc. v. Graff
Issues/Legal Principles:
A ten-day notice to cure is not a jurisdictional prerequisite for the landlord's cause of action for nuisance and the petitioner is not required to serve a notice to cure in this instance for this type of violation of the tenancy and consequently, the petitioner is not obligated to state in the termination notice the manner in which the tenant did not comply with the notice to cure.
Keywords:
nuisance; objectionable conduct; subject matter jurisdiction; condition subsequent; condition precedent; conditional limitation; breach of substantial obligation of the lease
Court:
Civil Housing Court, New York County
Judge:
Hon. Douglas Hoffman
Date:
June 26, 2002
Citation:
NYLJ, page 19, col 3
Referred Statutes:
24 C.F.R. 880.603(c)(1); RPAPL 711; RPAPL 701; RPAPL 735; RPAPL 713
Summary:
The landlord brought a holdover proceeding against the tenant based upon nuisance, alleging that the tenant has engaged in a course of conduct, specifically repeated and prolonged banging on walls and pipes, over a period of years that has substantially interfered with the ability of tenant's neighbors to enjoy the beneficial use of their apartments. The court concluded that the tenant suffers from mental illness, including delusional conduct. From the evidence, testimony from several of the tenant's neighbors and the landlord's employees that was not controverted by the tenant's witnesses, the court concluded that the tenant incorrectly believes that his neighbors are making noises on a regular basis that justify his banging on the walls and pipes of his apartment in an attempt to compel his neighbors to cease their intentional and conspiratorial actions against him. In fact, the noises the tenant hears were merely those of ordinary life, such as someone walking, using the bathroom, or engaging in some other mundane activity.

Prior to trial the tenant had moved to dismiss the petition because the landlord failed to allege any post-notice to cure acts in its notice of termination and the notice of termination lacks specificity. The court ruled that the landlord was not obligated to state in the termination notice the manner in which the tenant did not comply with the notice to cure. The court also ruled that the tenant was placed on notice of the basis for the petition and that the conduct alleges not just a violation of the lease, but a nuisance cause of action as well. The tenant argued that his lease did not permit eviction based on nuisance. The court ruled that Paragraph 23 of the lease permits termination of the tenancy based upon repeated violations of the rental agreement, including violations which interfere with the rights and quiet enjoyment of other tenants. The tenant argued that a lease he received in the context of his annual section 8 recertification during litigation of the instant proceeding created a new tenancy, vitiating the termination of the tenancy. The court rejected this argument, noting that after the landlord terminated the tenancy and was actively engaged in prosecuting an eviction proceeding against the tenant, it cannot be said that the tenant had any reasonable expectation that the parties intended to reinstate the tenancy when the renewal lease was offered without either negotiation or consideration therefor.

Finally, the tenant argued that the court lacked subject matter jurisdiction to decide this proceeding because the proceeding is based upon breach of a condition subsequent rather than pursuant to a conditional limitation in the lease. The court rejected this argument as well, noting that the tenant committed a nuisance, which constituted a material breach of a substantial obligation of the tenancy. The court also examined the lease and ruled that the language of the lease is in the nature of a conditional limitation, not a condition subsequent. The court also ruled that it has subject matter jurisdiction regardless of whether or not the lease clause in question is interpreted as a conditional limitation or a condition subsequent. Thus, the court ruled, it had subject matter jurisdiction to decide the proceeding.

Finally, the court ruled that the tenant's conduct in creating an unbearable condition for his neighbors compels issuance of a final judgment of possession in favor of the landlord.


Case Caption:
1245 Realty LLC v. Edwards
Issues/Legal Principles:
A landlord's acceptance of postjudgment rent after the judgment had been paid in full, reinstates the tenancy and vitiates the landlord's right to evict pursuant to the judgment.
Keywords:
landlord-tenant relationship; non-payment; eviction
Court:
Civil Housing Court, Kings County
Judge:
Hon. Pinckney
Date:
June 26, 2002
Citation:
NYLJ, page 21, col 6
Referred Statutes:
RPAPL 749
Summary:
The landlord commenced a non-payment proceeding against the tenant. On March 1, 2002 the parties entered into a stipulation which settled the proceeding. On March 1, the tenant tendered $1,000.00 to the landlord. After this $1,000.00 payment, it was agreed that the tenant would pay the balance of the money owed by paying the landlord $1,000.00 by March 31, 2002 and $797.96 plus April, 2002 rent ($838.24) by April 30, 2002. The tenant tendered the $1,000 payment late, but by April 30, 2002 had paid the $1,000 and an additional payment of $728.00. However, the tenant failed to pay the rent for April by April 30, 2002. As of May 1, 2002, the tenant owed the rent for both April and May in the amount of $1,676.48. The warrant issued on April 12, 2002. On May 13, 2002, the tenant tendered to the landlord two payments. One payment was by personal check in the amount of $840.00 and was designated "May rent" in the memo space. The two payments accepted by the landlord on May 13 totalled $1,740, an amount in excess of April and May's rent. The landlord informed the tenant that she still owed legal fees and late fees in the amount of $500.00. The tenant was evicted on May 28, 2002. The tenant brought a post-eviction order to show cause after the landlord had obtained legal possession.

The landlord argued that acceptance of payment does not automatically revive the landlord tenant relationship. The court noted that the tenant's default was minimal, promptly cured, and was not an example of a tenant defaulting numerous times under various orders or stipulations. Though late in making the payment for April rent, she paid it and May's rent by May 13. The court rejected the landlord's argument and ruled that the landlord's acceptance of rent, which was for a period of time after the issuance of the warrant and after both the judgment and April's rent had been paid in full, vitiated the warrant and restored the landlord-tenant relationship. Finding the landlord-tenant relationship restored, the court ruled that the landlord had no right to execute the warrant on May 28, 2002 and restored the tenant to possession.


New York Law Journal,
decisions for the week of June 17-21, 2002 (3 cases)


Case Caption:
Hsiu v. Trujillo
Issues/Legal Principles:
Tenants fail to establish landlord-tenant relationship, therefore landlord is not required to serve a 30 day notice of termination prior to commencing an eviction action in Supreme Court.
Keywords:
ejectment; termination notice; contract for sale
Court:
Supreme Court, Bronx County
Judge:
Hon. Victor
Date:
June 19, 2002
Citation:
NYLJ, page 19, col 5
Referred Statutes:
CPLR 3211, 3212; Real Property Law 232-a
Summary:
Landlord brought an ejectment action in Supreme Court to evict the tenants from an illegal basement apartment. The tenants argue that no 30 day notice of termination was served which, they maintain, is a prerequisite to any type of eviction action. The tenants made a motion to the court to dismiss the complaint on this ground. The landlord claimed that no termination notice is necessary in an ejectment action. The tenant and the landlord cited to different case law in support of their respective positions. The court agreed with the landlord's cited cases that no termination notice need be served when a tenant holds over after the expiration of a fixed and definite term. The court noted that it was not clear how the tenants came into possession because there was a contract of sale to buy the property and it is not clear if the tenants took possession as vendees as an incident to that contract, or whether an actual tenancy was created. If a tenancy was created, the nature and extent of the tenancy is unclear. Since it is not clear if an existing landlord-tenant relationship was ever established, the court concluded that no termination notice had to be served before commencing the proceeding.


Case Caption:
320 West 11th Street HDFC v. Lang
Issues/Legal Principles:
Holdover termination notice which also demands tenant to pay the rent is contradictory and cannot be used to support an eviction proceeding.
Keywords:
chronic nonpayment; termination notice
Court:
Civil Housing Court, New York County
Judge:
Hon. Peter Wendt
Date:
June 19, 2002
Citation:
NYLJ, page 19, col 3
Referred Statutes:
none cited
Summary:
Landlord brought a holdover proceeding based on the expiration of tenant's lease and chronic nonpayment of rent. The tenant points out that the notice to vacate the apartment also includes a demand to pay the rent, although it doesn't state when the rent must be paid. The court found the notice to be completely equivocal since it first demands that the tenant surrender the apartment, but it next demands that the tenant pay rent and that the tenancy is terminated. This is a contradiction since if the tenancy is terminated, the landlord should not be demanding rent. This leaves the tenant in doubt as to the status of the tenancy. The notice is sending mixed messages. An ambiguous notice cannot sustain a summary proceeding. Hence the court dismissed the petition without prejudice for the landlord to re-serve on a proper notice.


Case Caption:
Green Avenue Associates v. Cardwell
Issues/Legal Principles:
Section 8 grandmother is deemed not have engaged in material noncompliance of her lease, nor did she engage in fraud, for reporting that her minor granddaughter did not live with her when in fact the minor did in the apartment and landlord's agents knew for many years that the minor lived with her grandmother.
Keywords:
Section 8; fraud; material noncompliance; estoppel; waiver; discrimination; roommates
Court:
Civil Court, Kings County
Judge:
Hon. Harberson
Date:
May 10, 2002
Citation:
NYLJ, page 23, col 2
Referred Statutes:
RPL 235-f; 22 NYCRR 130-1.1; 42 USC 1437f; 42 USC 3602(k); Executive Law 292 and 296
Summary:
The tenant is a sickly 64 year old senior citizen who lives in subsidized HUD housing. When both her granddaughter's parents died, the tenant brought her granddaughter, Tiffany, to come live with her and adopted her in 1993 when Tiffany was 6 years old. The landlord terminated the tenancy on grounds that the tenant never designated that Tiffany was living with her in the annual income recertification statements. Rather, the tenant consistently alleged in documents and correspondence that she lived alone. The thirty day notice of termination is based on material noncompliance with the lease; to wit, knowingly giving the landlord false information regarding income composition.

The tenant stated at trial that she told the building's agent when she applied for the apartment that Tiffany would be living with her, and was told that it didn't matter if Tiffany was listed as an occupant or not. She testified that she told the agent that since Tiffany would not be remaining in the apartment if anything happened to the grandmother, then she (the tenant) would not list her. The agent disputes that she was told by the tenant in the beginning that Tiffany would be living in the household, but the agent acknowledges that she knew Tiffany was living there, and notes in the file corroborate the granddaughter's presence. Although the building is maintained for senior citizens only, the landlord's witnesses testified that some tenants have their children living with them. Exceptions are made on a case by case basis.

The court noted that the HUD occupancy restrictions for this type of building apply to tenants over 62 years old "and to families where the head of household" is over 62 years old. Thus, on its face the HUD rules allow Tiffany's presence. Additionally, the court noted that HUD policy prohibits discrimination. Additionally, the Real Property Law allows tenants, including Section 8 tenants, to have roommates. Further, the record indicates that the landlord had sufficient knowledge of Tiffany's presence to constitute a waiver or estoppel; in other words, the landlord waited too long after knowing of her presence to do anything about it. The court concluded that Tiffany's occupancy alone cannot in itself be the basis for the termination of the tenancy. The court also concluded that the landlord did not suffer any consequences of the alleged "fraud," except if Tiffany provided any income to the household that went unreported. Since the landlord knew that Tiffany was living in the apartment, and that tenant never concealed her presence, simply because the tenant supplied false information that she was not living there cannot support a fraud case. Accordingly, the landlord's claim of fraud and material noncompliance with the lease was dismissed.

Notes:
Disclosure: Robert E. Sokolski, Esq. represented tenant Jessie Cardwell in this proceeding.


New York Law Journal,
decisions for the week of June 10-14, 2002 (7 cases)


Case Caption:
Brown v. 99 Sutton LLC
Issues/Legal Principles:
Tenant was restored to possession of the apartment after an unlawful eviction; pending landlord's appeal, court orders landlord to pay an undertaking to protect tenant's damage claim in the amount of $500,000.
Keywords:
illegal eviction; undertaking; stay; appeal
Court:
Civil Housing Court, Kings County
Judge:
Hon. Thomas
Date:
June 12, 2002
Citation:
NYLJ, page 23, col 6
Referred Statutes:
CPLR 5519, 5523, 2222
Summary:
The petitioner-tenant alleged that she was illegally locked out of her apartment. After a hearing the tenant was restored to the apartment. She filed the court's decision with notice of entry and the landlord filed a notice of appeal. Landlord seeks an undertaking so that he can get an automatic stay pursuant to CPLR 5519. This provision is designed to prevent the winner of the judgment from enforcing it while the loser prosecutes an appeal. If there were no provision for such a stay, a judgment, such as one for money only, could be collected by a victorious party via legal enforcement devices, notwithstanding that an appellate court might then overturn the judgment and dismiss the action. But then there would be no guarantee that the party having collected the judgment will not have squandered the proceeds. A stay of enforcement of the order avoids that prospect.

Usually it is the owner who asks that the tenant put up an undertaking (typically, arrears or ongoing payment of the rent) while the case is pending on appeal. In this case it is the tenant who claims damages of $1 million and wants the landlord to put up an undertaking of this amount, so that in the event she wins the funds will not have been squandered by the landlord in the interim while the appeal is pending. The court ruled that the purpose of the statute is to protect the possessory interest of an appellant where a judgment or order directs property to be conveyed or delivered to another. Therefore, the landlord is entitled to seek relief under the statute. The court held that the undertaking must be sufficient so that if the tenant prevails on appeal, she will be made whole. The undertaking must also protect against a sale of the property or any other transfer by landlord that would frustrate the judgment rendered in favor of the tenant. In that regard, the judge ordered the landlord to put up an undertaking of $500,000.


Case Caption:
Hutchinson v. Greski
Issues/Legal Principles:
Landlord is not allowed to collect rent for a multiple dwelling if there is no certificate of occupancy.
Keywords:
certificate of occupancy; rent abatement
Court:
Appellate Term, Second & Eleventh Judicial Districts
Judge:
lower court: Hon. G. Wright
Date:
June 13, 2002
Citation:
NYLJ, page 24, col 4
Referred Statutes:
Multiple Dwelling Law 4(1)(7) & 302(b); 22 NYCRR 130.1-2
Summary:
Landlord brought an action to recover unpaid rent. In the action the tenants established that the building was converted into a multiple dwelling designed to house three or more families living independently of each other. As such, the landlord was required to register the building as a multiple dwelling and obtain a certificate of occupancy. The building did not have a proper certificate of occupancy permitting its use as a multiple dwelling. Therefore, the rent accrued during the period of noncompliance was abated. The Multiple Dwelling Law precludes the landlord from collecting rent in a multiple dwelling if the landlord has failed to obtain a certificate of occupancy from the Department of Buildings. The Appellate Term noted parenthetically that lack of registration, however, by itself, does notbar recovery of rent accruing during the period of noncompliance once there has been compliance (i.e., obtaining a certificate of occupancy) . The Appellate Term rejected the argument that the landlord's conduct is subject to sanctions.


Case Caption:
Herald Towers LLC v. Sun Lord International Inc.
Issues/Legal Principles:
Corporate lease which does not specify the name of a residential tenant may be terminated on nonprimary residency grounds by landlord.
Keywords:
corporate tenant; nonprimary residency
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Laurie Lau
Date:
June 14, 2002
Citation:
NYLJ, page 22, col 1
Referred Statutes:
none cited
Summary:
Landlord brought a nonprimary residence proceeding against the corporate tenant and then sought summary judgment. The lower court denied on the grounds that there is a question of fact as to whether Mr. Moid, the corporate tenant's sole officer, is entitled to tenancy rights on his own independent of the corporate tenant. Rent payments were tendered exclusively by Moid on personal checks for over 20 years. In December 2000, landlord commenced a nonpayment proceeding against Moid "d/b/a Sun Lord International, Inc." Mr. Moid's status was expressly left open in that proceeding. In 1991, the prior landlord agreed to lease a contingent apartment to Moid in his own name for his "additional living space' to house his growing family. Moid further argues that the corporate tenant is a fictitious entity formed solely due to the prior landlord's bad faith insistence that a lease could only be given in the corporate name. Justice McCooe dissented and felt that the landlord should have won because the current state of the law is quite clear: a corporate lease must specifically identify an individual if that person wishes to continue to reside in the apartment. Absent a specific name of the resident, the landlord can refuse to renew the corporate lease. The dissent pointed out that Moid requested several times to have the lease in his name and the landlord always refused. Further the adjoining apartment, the dissent argued, has no bearing on this apartment.


Case Caption:
Corbin v. Briley
Issues/Legal Principles:
The Multiple Dwelling Law is not applicable in Yonkers and therefore the landlord was not obliged to obtain a certificate of occupancy before commencing a nonpayment proceeding.
Keywords:
certificate of occupancy
Court:
Appellate Term, 2nd & 11th Judicial Districts
Judge:
Lower Court: Hon. Cerrato
Date:
June 14, 2002
Citation:
NYLJ, page 23, col 5
Referred Statutes:
Multiple Dwelling Law 4(4), 3(1), 302(1), 325(2); RPAPL 711(2)
Summary:
Landlord conceded that he did not have a certificate of occupancy for this multiple dwelling. Based on the Multiple Dwelling Law, the lower court denied the landlord a money judgment for rent, but did grant him a possessory judgment. But the Appellate Term pointed out that the Multiple Dwelling Law does not apply to Yonkers. Therefore the absence of a certificate of occupancy is not grounds for denying landlord a money judgment in this nonpayment proceeding. The Appellate Term noted that absent a money judgment, a landlord cannot be awarded a possessory judgment in a nonpayment proceeding. If the court improperly converted the nonpayment proceeding into a holdover proceeding, this is not permissible since no termination notice was ever served.


Case Caption:
Jandson Realty Corp. v. Rogers
Issues/Legal Principles:
Landlord who accepts Department of Social Service (DSS) rent payments for the Rent Stabilized tenant from the inception of the tenancy cannot unilaterally alter or refuse to continue to accept such payments.
Keywords:
rent subsidy
Court:
Appellate Term, 9th & 10th Judicial Districts
Judge:
lower court: Hon. Martinelli
Date:
June 14, 2002
Citation:
NYLJ, page 23, col 5
Referred Statutes:
Rent Stabilization Code 2503.5(a)
Summary:
The prior owner had a longstanding practice of accepting rent payments from Department of Social Service (DSS) on behalf of the tenant since the inception of the tenancy six years before this nonpayment proceeding began. For a rent stabilized tenancy, the prior owner's agreement from the beginning of the tenancy to accept DSS payments formed a condition of the tenancy which could not be unilaterally altered or withdrawn by either the prior or the current owner. This nonpayment proceeding arose solely by the current landlord's improper refusal to comply with the DSS requirements for the payment of rent. Thus, the lower court properly dismissed the petition and the Appellate Term affirmed.


Case Caption:
155 East 34th Street LLC v. Ackerman
Issues/Legal Principles:
Daughter of deceased tenant fails to show she's entitled to succession rights because she actually lives in Valley Stream.
Keywords:
succession rights
Court:
Appellate Term, First Department
Judge:
Lower Court: Hon. Jean Schneider
Date:
June 14, 2002
Citation:
NYLJ, page 22, col 1
Referred Statutes:
RSC 2523.5(b)
Summary:
At trial the record indicates that the daughter of the deceased tenant of record primarily resided in Valley Stream in a house which she occupied with her long-time male companion. Her Valley Stream address appeared on a number of important documents, including her car registration and insurance policy, credit card statements and her mother's death certificate.


Case Caption:
Washington v. Palanzo
Issues/Legal Principles:
Ex-wife who was not a party to the lease with landlord is a mere licensee with no rights to non-stabilized premises after divorce when ex-husband surrenders his interest even though she paid rent for a number of months directly in her name to landlord.
Keywords:
licensee; necessary party; month to month tenant; waiver
Court:
Appellate Term, 9th & 10th Judicial Districts
Judge:
Lower Court: Hon. Timone
Date:
June 14, 2002
Citation:
NYLJ, page 23, col 6
Referred Statutes:
RPAPL 713(7) & 745; UJCA 1303; CPLR 3211(a), 1001 and 1003
Summary:
The lease was made in 1997 between the landlord and appellant's former spouse and his brother. It was orally extended for a year but not renewed. Landlord later accepted rent from appellant which created a month to month tenancy, but only as to the brothers since she was never the tenant of record. There was nothing in the record to indicate that by accepting her rent, landlord intended to extinguish the brother's tenancy and substitute the spouse as the tenant of record. The landlord then brought a licensee holdover against the spouse when the brothers surrendered the apartment after a divorce. The lower court properly denied her jury trial request since she made it on the day of trial after several adjournments already. When the court accepted her late answer, it did not have to also accept the jury demand attached to it. The court also rejected her position that her adult son and cohabitant was a necessary party to the proceeding, thereby compelling the dismissal of the petition since he was not named as a party. The court held that as a general rule, a tenant's child need not be made a party to a summary proceeding against a parent. Even if he was a necessary party, the court noted that he too was a mere licensee with no rights, and further a summary proceeding need not be brought against all licensees to be effective against one.


New York Law Journal,
decisions for the week of June 3 to June 7, 2002 (6 cases)


Case Caption:
Proctor v. Barns
Issues/Legal Principles:
Although landlords seeking a possessory judgment candidly acknowledge that they ultimately may use a tenant's apartment as a bedroom for a child as yet unborn, that circumstance alone is not fatal to a landlord, who otherwise has a persuasive owner use claim.
Keywords:
owner occupancy; possessory judgment
Court:
Appellate Term, First Department
Judge:
Lower Court: Hon. Shlomo S. Hagler
Date:
June 3, 2002
Citation:
NYLJ, page 23, col 3
Referred Statutes:
Rent Stabilization Code (9 NYCRR) 2524.4(a)
Summary:
Landlords were awarded a possessory judgment by the Civil Court. The Civil Court found the landlord's argument, that they genuinely intended to occupy the tenant's apartment as part of an overall, documented plan to utilize the brownstone building as a one-family residence, to be credible. On appeal, the court noted that the Civil Court had found the landlords "overwhelmingly" demonstrated that they genuinely seek recovery of tenant's unit so as to "better accommodate the housing needs off their family" as presently constituted, and regardless of whether they are "blessed with additional children" in the future. The court affirmed the Civil Court's award of possessory judgment to the landlords.


Case Caption:
Crabtree v. New York State Division of Housing and Community Renewal
Issues/Legal Principles:
The Rent Stabilization Law 26-516 precludes review of rental history prior to the four- year period preceding the filing of an overcharge complaint even if: (a) the history is listed in documents filed within the four-year period; (b) the history involves a dispute that was resolved within the four-year period; or (c) the tenant was an intervenor in the prior tenant's dispute.
Keywords:
overcharge; rental history; statute of limitations; legal fees
Court:
Appellate Division, First Department
Judge:
Lower Court: Hon. Robert Lippmann
Date:
June 3, 2002
Citation:
NYLJ, page 18, col 1
Referred Statutes:
CPLR 601; Article 78; The New York State Equal Access to Justice Act (The New York State EAJA); The Rent Stabilization Law 26-516 (Administrative Code of City of N.Y.) as amended by the Rent Regulation Reform Act of 1997 (ch.116, 33, Laws of 1997)
Summary:
Tenant filed an overcharge complaint on November 29, 1996. On July 9, 1997, a Rent Administrator issued an order finding that the tenant had been overcharged. The landlord moved for a Petition for Administrative Review ("PAR"). On May 14, 1998, DHCR, relying on the 1992 rent registration statement showing that the rent charged on November 29, 1992 was $1,050 granted the landlord its PAR. The tenant relied on two DHCR orders, issued in September, 1995, relating to two prior tenants of the same apartment in arguing that he had been overcharged. The first order (the "Katz Order"), issued September 8, 1995, pertained to an overcharge complaint filed by the tenant Katz in 1983 and established the allowable monthly rent of the apartment in 1983 at $391.00. The second order (the "Reid Order"), issued September 29, 1995, pertained to an overcharge complaint filed by the tenant Reid, Katz's successor, established the monthly rent of the apartment from December 1, 1987 through November 30, 1989 at $508.40. The Reid Order also directed the landlord to file the rent registration statements for the years in which Reid was a tenant in 1993 and so the tenant in the present case relied on these registration statements to establish that he, too, was overcharged. Finally, the tenant argued that the Katz Order was reviewable in his 1996 overcharge proceeding because he was an intervenor in the owner's Article 78 appeal to this Court involving the Katz overcharge proceeding.

The DHCR rejected the tenant's arguments, ruling that the Katz and Reid Orders and the registration statements filed in 1993 were not reviewable. The DHCR determined that the Orders and the registration statements involved matters outside the four-year period. The DHCR also determined that the tenant's status as an intervenor did not provide a basis for a review of these documents either, because that proceeding involved matters that arose prior to the reviewable four-year period. The tenant then brought an Article 78 proceeding challenging the DHCR's determination. The Supreme Court ruled in tenant's favor and directed the DHCR to reinstate the Rent Administrator's July 9, 1997 order finding that the tenant had been overcharged. DHCR never perfected an appeal of the finding of overcharges in favor of tenant.

The instant case is actually a case involving legal fees. This is because after receiving a decision in his favor, the tenant then commenced this action seeking an award of legal fees of $22,327.25 with interest plus an additional $3,500 for the cost of the fee application pursuant to the New York State Equal Access to Justice Act (the State EAJA) or CPLR 8601(a). This statute provides that "a court shall award to a prevailing party, other than the state, fees and other expenses incurred by such party in any civil action brought against the state, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust." "Substantially justified" means "justified to a degree that could satisfy a reasonable person," or having "a reasonable basis both in law and fact." The Supreme Court ruled that the DHCR's refusal to consider the Katz and Reid Orders and its position that the tenant acquired no rights as an intervenor were unjustified and thus, awarded the tenant attorney's fees.

On appeal, the Appellate Division reversed and ruled that the Supreme Court improperly awarded the tenant legal fees. Bragston Realty Corp. v. Dixon, an Appellate Term, 2nd Dept. case, counters the Supreme Court holdings, and the lower court acknowledged as much. As to the September, 1995 orders, the case cited by the lower court, Klipper v. DHCR, Index No. 115867/98 (Sup. Ct. NY Co. March 1999), rejected the argument (made in that case by the DHCR) that rulings pertaining to rent disputes arising more than four years prior to the filing of a rent-overcharge complaint are reviewable if decided within the four-year period. The court also ruled that the DHCR's position that the tenant's intervention in the Katz proceeding did not help him because that proceeding involved matters that arose prior to the reviewable four-year period. Thus, the Appellate Division ruled that the DHCR's position that the tenant was not overcharged, although ultimately rejected by the Supreme Court, was substantially justified so as to defeat the tenant's application for legal fees under New York's Equal Access to Justice Act.


Case Caption:
111 on 11 Realty Corp. v. Norton
Issues/Legal Principles:
Real Property Law 234, providing for a tenant's recovery of attorney's fees where a lease provides for a landlord's recovery of attorney's fees, applies only to the lease of residential premises and to leases where the intention of the parties was to enter into a lease for residential premises.
Keywords:
recovery of attorney's fees; lease of residential premises; prevailing party
Court:
Civil Court, Kings County
Judge:
Hon. Baily-Schiffman
Date:
June 5, 2002
Citation:
NYLJ, page 23, col 4
Referred Statutes:
RPL 234; The Civil Rights Attorney's Fees Act of 1976, 42 USC 1988; Title VII of the Civil Rights Act of 1964, 42 USC 2000e-5(k); The Condominium and Cooperative Conversion Protection and Abuse Relief Act, 15 USC 3601-361(6)
Summary:
On September 20, 2001 the court ruled in favor of respondent/tenant in a holdover proceeding involving a loft unit. Thereafter, the parties made written submissions and a hearing was held on the issue of the recovery of attorney's fees. First, the landlord argued that the provisions of RPL 234, for a tenant's recovery of attorney fees, does not apply to this proceeding. The court looked to the lease to determine that the lease provides for the landlord's recovery of attorney's fees and rejected the landlord's argument by ruling that RPL 234 does apply to this proceeding. Second, the landlord argued that the commercial form of the lease prevented the tenant from recovering attorney's fees. The court noted that the intention of the parties was to enter into a lease for residential premises and rejected the landlord's argument by ruling that where, as here, the intention of the parties was to enter into a lease for residential premises, RPL 234 applies to this lease. Third, the landlord argued that because his case was dismissed on procedural grounds and not on the merits, the tenant is not entitled to fees. The court noted that the landlord lost his case after a full trial and rejected the landlord's argument by ruling that the trial court is not required to await a decision on appeal before considering an attorney's fees application. Thus, the court awarded the tenant attorney's fees.

The court then determined what amount of attorney's fees was reasonable under the circumstances of the case. The court ruled that time spent on the case by the partner of the tenant's lawyer and the time spent on the companion Supreme Court case would not be added to the calculation of attorney's fees. The court also ruled that the tenant's attorney's fees request, for approximately $65,000, was not excessive as a matter of law. Finally, the court ruled that the attorney's fees award shall not be reduced by the time expended on the attorney's fees application and the hearing on that application. With this in mind, and by multiplying the number of hours by the hourly rate of $240, the court awarded the tenant $32,700 in attorney's fees, $382.21 in expenses.


Case Caption:
IG Second Generation Partners L.P. v. New York State Division of Housing and Community Renewal
Issues/Legal Principles:
The DHCR was justified in refusing to consider landlord's late admissions regarding improvements to justify a rent increase where DHCR sought the information on 6 occasions over 2 years and not once did the landlord respond.
Keywords:
fair market rent; rent stabilized apartment
Court:
Appellate Division, First Department
Judge:
Lower Court: Hon. Walter Tolub
Date:
June 3, 2002
Citation:
NYLJ, page 19, col 2
Referred Statutes:
CPLR Article 78; 9 NYCRR 2527.5(d)
Summary:
In November of 1990, the landlord entered into a residential lease with the tenant, the first rent-stabilized tenant of the apartment, for $1,200 per month. After discovering the apartment had previously been rent controlled and rented for $354.32 per month, the tenant commenced a Fair Market Rent Appeal with the New York State Division of Housing & Community Renewal (the DHCR) on January 20, 1991. More than a year later, on May 8, 1992, the DHCR gave notice to the landlord of tenant's complaint and a statement that the landlord was required to provide "substantiating proof" for all rent increases and that the landlord's response was required in 20 days or it would be considered in default. The landlord did not respond to this notice. On June 23, 1994, the DHCR sent the landlord a Fair Market Rent Appeal Package, which contained instructions on the type of documentation that would be required to justify any rent increases for equipment or improvements and a 20 day deadline for the submission of this documentation. Two days before the 20 day deadline imposed by the DHCR, the landlord's counsel wrote a letter requesting an additional 30 days to respond. The DHCR granted this request and indicated in a letter that a response would be appreciated by August 18, 1994.

On November 4, 1994, the DHCR sent landlord's counsel an Amended Summary Notice detailing how the fair market rent would be calculated in light of landlord's default in submitting proof of improvements. This notice requested that any comments be made within 21 days or November 25, 1994, but on November 29, 1994, landlord's counsel informed the DHCR by letter that the landlord had been in a car accident and therefore needed a further extension. On December 23, 1994, the DHCR issued a Rent Administrator's Order setting the tenant's fair market rent at $489.10, noting that the landlord had failed to provide documentation to substantiate the cost of alleged improvements to the apartment. The landlord, in a mailing postmarked December 23, 1994, submitted invoices and cancelled checks purporting to establish $18,000 in expenses renovating the apartment.

The landlord filed a Petition for Administrative Review claiming he had misdiaried the "due date" and that the DHCR should have considered his documentation mailed only a few days late. More than five years later on April 16,1999, the DHCR denied landlord's Petition on the ground that the landlord had been provided adequate time to submit documentation, but had failed to do so. The landlord then commenced this Article 78 proceeding in Supreme Court. The Supreme Court ruled in favor of the landlord and remanded to the DHCR to determine whether landlord's untimely submission of documentation was an infraction too trivial to take notice of. The court noted that the DHCR itself had delayed resolution of the matter by not forwarding tenant's complaint or a Fair Market Rent Appeal Package in a timely fashion.

On appeal, the Appellate Division reversed the Supreme Court's decision and ruled that the DHCR properly exercised its discretion in holding that landlord's multiple defaults were inexcusable. The court noted that the untimely submission of documentation was not an infraction too trivial to take notice of because the DHCR had made six separate requests for documentation, over a period of two years and six months, and the landlord had failed to comply with a single one. The court noted that despite the DHCR's delays, the landlord had engaged in clearly dilatory conduct and this, combined with the importance of setting the correct rent, was sufficient to support the DHCR's decision. Thus, the court ruled that, in viewing the record in its entirety, the DHCR's determination that the landlord's repeated defaults were inexcusable had a rational basis and the court refused to disturb that determination.


Case Caption:
Glenbriar Co. v. Lipsman
Issues/Legal Principles:
An elderly couple who spend equal time between New York and Florida do not lose primary residence status of their rent control apartment even though their federal taxes declare them as Florida residents and they do not file New York State income taxes.
Keywords:
primary residence; rent stabilized apartment
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Brenda S. Spears
Date:
June 5, 2002
Citation:
NYLJ, page 21, col 4
Referred Statutes:
Domestic Relations Law 61 and 231
Summary:
Landlord moved for a judgment of possession claiming tenants did not maintain the apartment as a primary residence. The trial court granted landlord possession. On appeal the Appellate Term reversed the trial court and ruled that the tenants did maintain the apartment as their primary residence. The elderly tenants have resided in the rent stabilized apartment since 1959. In 1995, they purchased a small condominium in West Palm Beach, Florida for health concerns. The weight of the testimonial evidence at trial showed that tenants, or at least Lillian Lipsman, divide their time equally between New York and Florida. The landlord's evidence did not sufficiently refute tenants' direct testimony as to their physical presence in New York. Mrs. Lipsman continues to vote in New York, receives medical care in New York, and maintains bank accounts reflecting the Riverdale address. The tenants' application for a Florida homestead exemption and their failure to file a New York tax return is not sufficient under these circumstances to find tenants do not maintain a primary residence in the Riverdale apartment. In sum, the court noted that this was a common situation where New York residents purchase a Florida property as a winter and/or vacation residence and do not forfeit their principal New York residence of long standing.

The concurring opinion noted that the landlord's evidence only proved that the tenants maintained a second home and that in the realm of housing law, a husband and wife may establish two separate primary residences without penalty. The dissenting opinion focused on the facts that the tenants jointly owned the Florida condominium, claimed the Florida Homestead exemption, filed joint federal income tax returns listing Florida as their residence, and did not file New York State income tax returns. The dissent also noted that the trial court's findings of fact should not be disturbed on appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence. In other words, even under these facts, the tenants ties to Florida compel a finding of nonprimary residence in New York, especially since they declared themselves Florida residents on their tax returns and failed to pay New York income tax, and these facts were never explained or undisputed by the tenants at trial.


Case Caption:
Surf 21 Associates v. Ramos
Issues/Legal Principles:
Granddaughter of Mitchell-Lama tenant is allowed to succeed to her deceased grandmother's apartment because she moved in with her from the inception of the tenancy, which is one of the statutory criteria for allowing succession rights to remaining family members in a Mitchell-Lama apartment.
Keywords:
succession rights; remaining family member; Mitchell-Lama rental apartment
Court:
Civil Housing Court, Kings County
Judge:
Hon. Sikowitz
Date:
June 5, 2002
Citation:
NYLJ, page 24, col 3
Referred Statutes:
9 NYCRR 1727
Summary:
The tenant of record for the apartment at 2920 West 21st Street, Apt. 10-A, Filomena Caraballo, was transferred by the landlord, petitioner, to the subject Mitchell-Lama two bedroom apartment at 2940 West 21st Street, Apt. 1-U, Brooklyn, New York on March 1, 1999. The landlord was aware that respondent Rosa Ramos, the granddaughter of Filomena Caraballo, resided with Caraballo at the first apartment. Rosa Ramos did not appear on any income certifications for Caraballo's first apartment. Caraballo orally requested the transfer from her first apartment to the subject apartment for both herself and Ramos. Caraballo waited until her application was reached and obtained permission to move into the subject apartment together with Ramos after DHCR approval. The only annual income and family composition certification form for the subject apartment lists Caraballo as "Head of Household" and Ramos as "Adult Co Tent" and indicates "No. Of Family Members 2". Both Ramos and her grandmother moved into the subject apartment on March 1, 1999 and resided together until Caraballo's death on April 14, 1999. Landlord instituted this licensee holdover in May, 2000 seeking a final judgment of possession to recover the subject apartment.

The landlord argued that Ramos failed to meet the three criteria required to succeed to the subject Mitchell-Lama apartment as a remaining family member, including residing with the tenant for two years before they die. The landlord argued that the granddaughter was a mere caretaker not entitled to succession rights. The granddaughter argued that she resided with her grandmother since the inception of Caraballo's tenancy in the subject apartment and as such, is a remaining family member whose rights of occupancy survive her grandmother's death. This is one of the statutory grounds that permit succession rights. The court agreed and ruled in the granddaughter's favor and found that she moved into the subject apartment at the inception of Caraballo's tenancy of the subject apartment and that she qualifies to succeed to Caraballo's tenancy as a remaining family member. The court also noted that the granddaughter's income was listed for the new apartment and that her income accounted for why the tenant's rent increased when she transferred to the new apartment. The court also noted that a caretaker's income is not considered in household rent determinations.