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

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Significant Cases
Crotona Park West v. Aponte
Thirty Partners Inc. v. Grobman
Nicolosi v. Rodriguez
Steele v. Acedevo
Online Case Texts

New York Law Journal,
decisions for the week of March 25-29, 2002 (3 cases)


Case Caption:
Harbor One Co. LLC v. Springer
Issues/Legal Principles:
Single instance of objectionable conduct with interferes with comfort and safety of other tenants, even if proven, is insufficient to terminate a regulated tenancy.
Keywords:
objectionable conduct
Court:
City Court, Westchester County
Judge:
Hon. Scher
Date:
March 27, 2002
Citation:
NYLJ, page 27, col 6
Referred Statutes:
Emergency Tenant Protection Regulations 2504.2(b)
Summary:
Landlord brought a holdover proceeding on grounds that the rent stabilized tenant's conduct was substantially interfering with the "comfort and safety" of other tenants. The Emergency Tenant Protection Regulations permit a landlord to evict a tenant when the tenant's conduct substantially interferes with other tenants' comfort and safety; more than mere annoyance, disruption, momentary upset or an isolated assault must be shown. Further a single incident of such conduct is insufficient to terminate a tenancy. In this case the landlord alleged only one instance of objectional conduct. Thus, the court dismissed the petition.


Case Caption:
Halpern Realty LLC v. Bloom
Issues/Legal Principles:
Landlord who agreed to pay tenant's storage fees during renovations when tenant was temporarily relocated is obligated to pay additional storage fees which resulted because tenant was not restored to possession until one year after the construction was supposed to have been completed.
Keywords:
stipulation; relocation; reasonable costs
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Jean Schneider
Date:
March 28, 2002
Citation:
NYLJ, page 20, col 6
Referred Statutes:
none cited
Summary:
The landlord brought a nonpayment proceeding and the parties settled wherein the tenant agreed to temporarily vacate her apartment so that landlord could make substantial renovations to the building. In return the landlord agreed to waive $3,600 in rent arrears and reimburse tenant up to $600 for storage costs from August, 2000 when tenant vacated the apartment to December, 2000 when it was anticipated that the work would be done and tenant would be able to return. Because of construction delays, however, tenant could not get back into possession by December, 2000.

Tenant restored the case to the calendar and the court directed the landlord to pay tenant's additional storage costs until the date the tenant was restored to possession and further directed that landlord complete construction so that tenant could be restored by September, 2001. Tenant was finally restored to possession in late November, 2001. The landlord appealed the judge's order but the Appellate Term upheld the requirement that the landlord pay these fees on grounds that from the face of the stipulation the parties anticipated that the necessary renovations would be completed by December 2000. But since tenant was not restored until one year later, under these circumstances the housing court's provision for continued payment of tenants' storage fees constituted an appropriate adjustment for the additional time that tenant remained out of possession.


Case Caption:
Steele v. Acedevo
Issues/Legal Principles:
Given tenant's "evasive answers" at his deposition in nonprimary residence case, landlord is entitled to conduct discovery on the undertenant and tenant's "paramour" who is the mother of his two children but is not a party to this proceeding.
Keywords:
nonprimary residency; discovery; use and occupancy
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Timmie Elsner
Date:
March 28, 2002
Citation:
NYLJ, page 21, col 1
Referred Statutes:
RPAPL 745(2)
Summary:
Landlord brought a nonprimary residence proceeding and sought to conduct a deposition on the alleged undertenant and on tenant's "paramour" who is not a party to the proceeding, but she lives in Manhattan and is the mother of tenant's two children. The lower court denied the landlord's request, but the Appellate Term reversed as an improvident exercise in discretion. The Appellate Term held that the tenant's deposition revealed "evasive answers" to his relationship with all these individuals and his presence in the rent controlled apartment. Also the landlord had sought ongoing payment of rent (use and occupancy) which the lower court also denied, but the Appellate Term reversed.


New York Law Journal,
decisions for the week of March 18-22, 2002 (4 cases)


Case Caption:
Crutchley v. Costa
Issues/Legal Principles:
Section 8 tenant's boyfriend pays landlord additional rent in excess of the legal rent and court concludes that even though tenant proposed and encouraged the payment of the additional rent, tenant is later still entitled to file and pursue an overcharge claim.
Keywords:
Section 8; overcharges; estoppel
Court:
Civil District Court, Nassau County
Judge:
Hon. Gartner
Date:
March 20, 2002
Citation:
NYLJ, page 24, col 2
Referred Statutes:
24 CFR 880.101(b)(c), 982.302(c); 42 USC 1437f
Summary:
Tenant allegedly suggested and encouraged landlord to allow her boyfriend to pay rent in excess of the Section 8 rent which is federally set. The landlord went along with the scheme and then later the tenant sued for overcharges. The court rejected landlord's argument that essentially posited that the tenant has unclean hands and should be estopped from profiting off a deal that she proposed and, in landlord's opinion, induced him to take.

The court disagreed and cited cases which laid out the rationale and purpose of Section 8 tenancies. The court held that if it accepted the landlord's theory then such a ruling would encourage all sorts of conspiracies between landlords and tenants, and thereby subvert the federal law for Section 8 tenancies. The landlord's position must be rejected because it would encourage fraud on the federal agency. It would also place low income tenants at the mercy of less scrupulous landlords who would be the ones demanding and coercing extra rent money in exchange for the right to lease the premises. Such landlords would later be able to say that the payments were "voluntarily" made by the tenant, and then judges would be in the position of determining whether it was consensual or not. To avoid such scenarios, a single bright-line policy of no payments in excess of the Section 8 rent is necessary.

Notes:
This holding should apply equally to rent regulated tenancies. Since there is a dearth of affordable regulated housing, even where a tenant offers to pay more and "conspires" in the overcharge, the landlord should still be liable since landlords possess the inequitable power of creating the affordable housing shortage problem that exists. Further, if landlords were per se liable, it would chill them from engaging in overcharging in any instance.


Case Caption:
Eke v. Ayanru
Issues/Legal Principles:
Tenant is not entitled to be informed who landlord's agent is, and further, tenant was unable to demonstrate how absence of knowledge prejudiced him.
Keywords:
agent/principle; abatement
Court:
Appellate Term, 2nd & 11th Judicial Districts
Judge:
lower court: Hon. Bedford
Date:
March 20, 2002
Citation:
NYLJ, page 22, col 4
Referred Statutes:
Administrative Code of the City of New York 27-2029 & 2008
Summary:
Owner's agent signed the lease and after owner brought an eviction proceeding tenant argued that the petition should be dismissed because he doesn't know the agent. The Housing Court rejected tenant's argument and the Appellate Term affirmed, holding that tenant is not entitled to this disclosure, and moreover, the tenant failed to indicate how he was prejudiced by the nondisclosure. Tenant also failed to show a lack of heat in the premises sufficient to justify an abatement. Further, tenant failed to show that the heating system was inherently defective, and under tenant's lease he is responsible for routine maintenance of the heating system. These failures of proof, coupled with the tenant's continued denial of access of the apartment to the owner, justified the Housing Court's refusal to award the tenant any abatement.


Case Caption:
Crotona Park West v. Aponte
Issues/Legal Principles:
Disabled tenant who needs dog to help her cope with her disability cannot obtain a stay of eviction proceeding based on nuisance arising out of dog's allegedly continuous daily barking.
Keywords:
pet; nuisance; stay
Court:
Civil Housing Court, Bronx County
Judge:
Hon. Heymann
Date:
March 20, 2002
Citation:
NYLJ, page 22, col 2
Referred Statutes:
none cited
Summary:
Landlord brought a holdover proceeding against tenant on grounds that tenant's dog constitutes a nuisance because the dog continuously barks on a daily basis and this interferes with the other tenants' peace and quiet enjoyment.

Tenant had filed a disability compliant with the federal government stating that she needs her dog for comfort and companionship to help her cope with her disability and that the landlord is discriminating against her. She has had the dog for four years and claims that it alleviates some of the fear and pain and depression arising from acute hypothyroid and severe advanced rheumatoid arthritis. She produced five affidavits from neighbors who say the dog is not a disturbance.

The tenant's lawyer now seeks to stay (i.e., freeze) the Housing Court eviction proceeding pending the outcome of the federal disability case. The lawyer cited to two cases where stays were granted but each of those cases involved allegations that the tenant harbored a dog in violation of the lease clause prohibiting such ownership of a pet. Neither of those cases involved a nuisance. As a result the court felt compelled to deny the stay and set the matter down for trial. The court concluded that if a nuisance is found the tenant will either have to get rid of her dog or vacate the apartment■and this is the result even if federal court later determines that the landlord acted in a discriminatory manner with respect to her disability.


Case Caption:
Derr v. Cloud
Issues/Legal Principles:
Landlord-husband not allowed to discontinue licensee proceeding he commenced against ex-wife wherein he regards her as a licensee who fraudulently added her name to the lease and she claims to be a co-tenant under an unexpired lease.
Keywords:
license; divorce; unlawful eviction; sanctions; jury trial
Court:
Civil Court, New York County
Judge:
Hon. Lucy Billings
Date:
March 20, 2002
Citation:
NYLJ, page 20, col 6
Referred Statutes:
CPLR 3217(b), 3-25(b), 3212(b); 22 NYCRR 130-1.1; RPAPL 735(1), 713, 733(1), 853; Civil Court Act 203, 204
Summary:
This is a messy holdover proceeding brought by a husband against his former wife, both of whom apparently shared the apartment when he brought a licensee proceeding. She claims she is a tenant on the lease. He claims, contradictorily to his licensee proceeding, she lost that right when she went to Maine for some time to file a divorce and/or that she fraudulently changed the lease to add her name to it. At some point the husband sought to discontinue the lawsuit, but the court denied that request on grounds that the issues raised by the wife in her counterclaims would not get addressed if the matter were discontinued. The wife seeks sanctions against him for commencing this baseless action and for having her served with the legal papers at one in the morning. She also seeks to amend her answer to include a counterclaim for unlawful eviction, since in the interim, the husband apparently evicted her from the apartment. The court granted the husband's request to have a jury trial. After that trial, the court held that it would re-visit the issue of sanctions as to whether this case was frivolously brought or brought to harass with no legal basis to it. The husband is also seeking sanctions.


New York Law Journal,
decisions for the week of March 11-15, 2002 (4 cases)


Case Caption:
Thirty Partners Inc. v. Grobman
Issues/Legal Principles:
Tenant who resides in a co-op unit and owner is sponsor of unsold shares is not entitled to notice to cure if tenant fails to sign a market rent lease offered by landlord.
Keywords:
Martin Act; cooperative apartment; non-purchasing tenant; notice to cure
Court:
Civil Housing Court, Kings County
Judge:
Hon. Michael Pinckney
Date:
March 13, 2002
Citation:
NYLJ, page 19, col 5
Referred Statutes:
RPL 234; General Business Law 352-eeee; RSC 2523.5 & 2524.3
Summary:
In a holdover proceeding commenced by the owner, tenant claimed that she is protected by the Martin Act since the petitioner is the sponsor of the co-operative plan. The tenant claims that the landlord cannot simply refuse to renew her lease without offering one at a market rent. The tenant also alleges that the landlord failed to specify its status in the petition as a co-op unit. The landlord alleged that the tenant was indeed offered a lease at a market value rent but the tenant refused to sign it. Tenant claims that in such instance where she failed to sign a lease offered, the landlord should have served a notice to cure to allow her the chance to sign the lease.

The court denied tenant's request to dismiss the petition on grounds that the petition failed to properly characterize the apartment as a co-op rented to a tenant since Paikoff v. Harris, the leading case likewise did not dismiss that landlord's petition for such an omission in the petition. Further the court noted that a notice to cure must be served if required by statute or written agreement and that neither applied in this case. Absent statutory authority, the court declined to impose such a requirement on the landlord. The court denied the tenant's request to dismiss the petition.

Notes:
The Paikoff v. Harris defense is, at this time, available in Kings County (Brooklyn), but not in New York County (Manhattan). This is because the Appellate Term in the Second Department (Brooklyn) upheld Paikoff which allows a tenant to remain in a co-op apartment if the owner is the holder of unsold shares and the tenant accepts a market rent lease, but this decision was not followed by the Appellate Term in the First Department (Manhattan).


Case Caption:
Matter of Carlton Associates v. Bayne
Issues/Legal Principles:
Housing Court judges have discretion to grant adjournments beyond the 10 days allowed by statute.
Keywords:
adjournments; discretion of court; inherent power
Court:
Supreme Court, Kings County
Judge:
Hon. Mason
Date:
March 13, 2002
Citation:
NYLJ, page 19, col 2
Referred Statutes:
RPAPL 745(1) Judiciary Law 2-A, 2-b(3)
Summary:
In the underlying nonpayment proceeding, the tenant (a 70 year old woman) appeared on the first court date of July 25, 2001 and requested an adjournment until after July 30, 2001 so that she could consult with Legal Aid to the Aging. The tenant advised the Court that she wanted to be represented by counsel and that she contacted Legal Aid and was advised that she would not be able to meet with an attorney prior to July 30, 2001. Accordingly, the Court granted her application for an adjournment and contrary to the landlord's objections, put the case on for August 22, 2001. The adjournment was in excess of the 10 day limit imposed by RPAPL 745(1).

In response, the landlord challenged the Court's adjournment by commencing an Article 78 proceeding, naming the Housing Court Judge as a Respondent. The landlord did not argue that the Court's action was arbitrary and capricious. Instead, the landlord argued that absent consent of all parties, the law requires that an adjournment be no more than 10 days. The landlord requested the Supreme Court to direct the Civil Court judge to cease and desist from granting more than 10 day adjournments.

As an initial step, the Court held that the proper mechanism for the relief sought by the landlord would be a mandamus action (which compels an officer to perform a legal duty, but does not direct how to perform it) as opposed to a declaratory judgment action (which adjudicates the parties' rights prior to litigation in an attempt to stop an alleged wrong from being committed). The Court then turned to the question of whether the Civil Court judge's action was permissible under the applicable law, holding that the Judiciary Law vests in the Court the inherent power and discretion to control its own calendar. The Court further held that legislature could not limit this discretionary power. The Court noted that in this case, the Court made a "particularized judicial inquiry" prior to granting an adjournment beyond the 10 days mandated by statute.


Case Caption:
Sydney Leasing LP v. Alshayeva
Issues/Legal Principles:
Two isolated instances of alleged misconduct are not continuous and recurring and therefore are insufficient to support nuisance proceeding.
Keywords:
nuisance; isolated incidents; single act
Court:
Civil Housing Court, Queens County
Judge:
Hon. Anne Katz
Date:
March 13, 2002
Citation:
NYLJ, page 20, col 3
Referred Statutes:
RSC 2524.2(b)
Summary:
Landlord commenced this nuisance proceeding in reliance on two isolated incidents of misconduct by the tenant or persons within the tenant's control. The first incident allegedly occurred in 1996 to the extent that the tenant's son refused to cease riding his bicycle in the building's lobby after being requested to do so and in 2001 several males were observed throwing wrenches and other metal objects from the terrace of the subject apartment, causing damage to a vehicle below. The Court held that these allegations were insufficient to support an allegation of nuisance as the conduct must be continuous and recurring. The Court reasoned that if true, both allegations were unrelated in substance (therefore the conduct was not repetitive) and occurred several years apart (therefore the conduct was not continuous).


Case Caption:
In Re Application of the Martha Washington Tenants Association v. Richard Roberts
Issues/Legal Principles:
DHPD is required to investigate, but is not obligated to hold a hearing on tenant's allegations of harassment, prior to issuance of a Certificate of no Harassment to hotel owner.
Keywords:
hotel tenants; certificate of no harassment
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Charles Tejeda
Date:
March 14, 2002
Citation:
NYLJ, page 19, col 5
Referred Statutes:
NYC Administrative Code 27-2093[d][1], 27-198
Summary:
Tenant's association commenced the underlying Article 78 proceeding in Supreme Court seeking to annul the Department of Housing Preservation and Development's decision granting the landlord-hotel owner's a Certificate of No Harassment, which is required to bring the building out of stabilization following a substantial renovation project. The Supreme Court affirmed DHPD's finding, dismissing the Article 78 proceeding. Further, the Supreme Court denied the tenant's motion for a preliminary injunction as academic or moot.

The Appellate Division held that the tenant's association did have standing to challenge the issuance of the Certificate of No Harassment and that the doctrine of mootness did not foreclose the appeal since the issues presented were substantial and likely to recur while typically evading review. Nonetheless, the Court found that the challenges to the issuance of the certificate to be unpersuasive, holding that DHPD was not required to hold a hearing on the allegations of harassment insofar as it was in the agency's discretion to hold a hearing if the Commissioner has reasonable cause to believe that harassment has occurred. The Court further held that the record reflected that DHPD fulfilled its obligation to investigate the claims of harassment and that the ultimate determination to issue a certificate of no harassment was not arbitrary or capricious.


New York Law Journal,
decisions for the week of March 4-8, 2002 (6 cases)


Case Caption:
Sacchetti v. Rosen
Issues/Legal Principles:
Landlord's claim for legal fees incurred in hearing to establish tenant's breach of probationary stipulation is denied as the breach could have been contemplated by the parties and the agreement was silent as to future fees, however landlord was awarded fees incurred in defending against tenant's unsuccessful appeal of the lower court's decision to the extent that the Court held that this action by the tenant was unforeseeable.
Keywords:
attorney's fees; stipulation; breach; reservation of rights; nuisance; probationary stipulations
Court:
Civil Housing Court, New York County
Judge:
Hon. Timmie Elsner
Date:
March 6, 2002
Citation:
NYLJ, page 19, col 2
Referred Statutes:
RPL 234
Summary:
The parties to the instant nuisance proceeding entered into a probationary stipulation of settlement, wherein the landlord was awarded a final judgment of possession with a stay through a date certain. The stay was conditioned on Respondent not engaging in conduct which would adversely affect other tenants in the building. To the extent the tenant complied with the terms of the stipulation, the warrant would be deemed vacated. In the event of a breach, the agreement provided that no further cure would be afforded to the tenant and that the landlord would be entitled to execute on the warrant of eviction. The stipulation settled all claims of legal fees through its date but was silent as to fees incurred in connection with a successful or unsuccessful claim of breach. Thereafter the landlord claimed a breach. After a hearing, the tenant was found to have violated the probationary agreement and the landlord was allowed to evict the tenant.

The Court denied landlord's claim for legal fees holding that where a stipulation of settlement is silent as to fees and settles a proceeding in its entirety, a party may not later seek fees absent a reservation of rights. The Court noted that breach of the probationary stipulation was a foreseeable circumstance and could have most certainly been contemplated by the parties. As a result, the Court denied the landlord's request for fees incurred at the hearing resulting from the tenant's breach.

However, the Court held that the landlord would be entitled to fees incurred as a result of tenant's appeal of the Court's decision and order. The Court held that the tenant's appeal was an unforeseeable circumstance, that could not have been contemplated by the landlord when entering into the stipulation of settlement.


Case Caption:
Gulivindala v. Central Hudson
Issues/Legal Principles:
Subtenant is awarded overcharges, treble damages and attorney's fees since prime tenant knowingly charged subtenant in excess of the legal regulated rent.
Keywords:
rent overcharge; willful; treble damages; attorney's fees
Court:
Supreme Court, New York County
Judge:
Hon. Marilyn Shafer
Date:
March 6, 2002
Citation:
NYLJ, page 18, col 6
Referred Statutes:
Omnibus Housing Act, sections 9 and 51; RPL 226-b; 9 NYCRR 2525.6[b]; Administrative Code YY51-6.0[c][14]
Summary:
In this overcharge case, the subtenants were initially charged $3,000.00/month rent and later $3,120.00/month for an apartment with a legal rent stabilized rent of $1,172.65. The subtenants sued for a recovery of the overcharges collected by the prime tenant, plus treble damages and attorney's fees. The prime tenant claimed that they did not want to sublet their apartment and that they were coerced by the subtenants into this arrangement and "as a favor," the prime tenants agreed to accept $3,000.00/month in rent.

While the Court found that an overcharge existed by operation of law, the actual amount of the overcharge would have to be determined at a hearing, as there was a dispute over whether the apartment was rented furnished. In such a case, the prime tenant would have been entitled to a ten percent surcharge over and above the legal regulated rent. If the apartment was not furnished, then the prime tenant was not entitled to collect in excess from the legal regulated rent. Although the sublease agreement and the prime tenant's affidavit state that the apartment would be rented furnished, the subtenants allege that the apartment was not furnished when they took possession.

The prime tenants further argued that to the extent they were not aware of the legal rent, the overcharge was not wilful and therefore treble damages could not be awarded. The Court looked to the renewal lease signed by the prime tenants with their landlord and held that the overcharge was in fact wilful. The Court further held that when an overcharge is found to be wilful, the award of treble damages is mandatory, not discretionary as is the award of reasonable attorney's fees.

Notes:
The law firm of Roberts & Roberts represented the subtenant. Attorney Michael Roberts informed Tenant.Net that the landlord was also sued because its representative was present when the prime tenant and subtenant agreed on the rent. The subtenant, however, was unable to prove liability against the landlord.


Case Caption:
Nicolosi v. Rodriguez
Issues/Legal Principles:
Court dismisses owner's use proceeding for landlord's failure to specify true identity of the person for whom the subject apartment is sought.
Keywords:
Golub Notice; identity; owner occupancy
Court:
Civil Housing Court, Queens County
Judge:
Hon. Franke
Date:
March 6, 2002
Citation:
NYLJ, page 21, col 3
Referred Statutes:
RSC 2524.2(b)
Summary:
In this owner occupancy proceeding, the golub notice as well as the petition stated that the apartment was being sought for the landlord's personal use as his primary residence. At trial, the landlord revealed that the apartment was actually being sought for his son's use. While this use would have otherwise been a permissible basis for an owner's use proceeding, the Court dismissed the proceeding as the predicate notice (golub notice) and petition were defective to the extent they failed to properly identify the person for whom the apartment was sought to be recovered. The true identity of the party seeking to utilize an apartment via an owner's use proceeding must be set forth or as in this case the proceeding is subject to dismissal. Such defects in the predicate notice and pleading are unamendable and as a result, the landlord was directed to tender a renewal lease.


Case Caption:
Skala v. Edlich
Issues/Legal Principles:
Court vacates default based upon owner's illegal three family house, but notes that tenants, as occupants of the legal unit, will be responsible for all of the rent once building is brought into conformity with the certificate of occupancy.
Keywords:
certificate of occupancy; legalization; collection of rent
Court:
Civil Court, Richmond County
Judge:
Hon. Straniere
Date:
March 6, 2002
Citation:
NYLJ, page 21, col 4
Referred Statutes:
RPAPL 745, 745(2)(a), 745(c)(v), 747-a, 749(3); MDL (4)(37)&(38), 302, 302(1)(b), 325, 325(2); CPLR 3025; 22 NYCRR 208.42(g)
Summary:
Landlord brought a nonpayment summary proceeding against tenant. Upon the first Court appearance, the Court granted tenant's application to adjourn to retain counsel, but ordered tenant to pay three months of undisputed rent to the landlord's attorney to be held in escrow. The tenant failed to appear at the next court appearance and the Court entered a default. The tenant moved to vacate the default, as he was in the hospital for a week prior to the return date, but failed to pay the three months ordered by the Court. The Court refused to vacate the default.

The Legal Aid Society appeared on behalf of tenant, and moved for reargument and renewal of the Court's refusal to vacate the default, claiming that RPAPL 745 did not permit the Court to order a rent deposit on the first Court appearance, and that the building was an unregistered de facto multiple dwelling and not in compliance with the certificate of occupancy, which only permitted a one family residence.

The Court granted renewal and vacated the default based upon the landlord's lack of compliance with the certificate of occupancy and lack of a multiple dwelling registration. The Court noted, however, that once the landlord became compliant with the certificate of occupancy (i.e. once the landlord removed the illegal apartments or legalized them), that the tenant would be responsible for all accrued rent. The Court rejected the tenant's argument that it had no power to order the rent deposit, noting that RPAPL 745 merely makes rent deposits mandatory, but does not preclude the court from making other orders to deposit undisputed rent, even on the first court appearance, in the interests of justice.

Notes:
This is seemingly a wrong decision. The Multiple Dwelling Law precludes the collection of rent if there is no certificate of occupancy. The Appellate Division has carved out an exception to the prohibition of rent collection in the absence of a certificate of occupancy in circumstances where the tenant cannot claim a breach of the warranty of habitability. But this case does not address such an exception.


Case Caption:
Lex 33 Associates LP v. Grasso
Issues/Legal Principles:
Claims of rent stabilized status due to existence of horizontal multiple dwelling are difficult to determine on motion for summary judgment and must be determined on a case by case basis.
Keywords:
horizontal multiple dwelling; common systems
Court:
Supreme Court, New York County
Judge:
Hon. Diane Lebedeff
Date:
March 6, 2002
Citation:
NYLJ, page 18, col 1
Referred Statutes:
CPLR 3211(b), 3212(c); RPL 235-c, 223-b; RSL 26-505; ETPA 8625[a][4][b]
Summary:
Landlord brought an action for, amongst other things, that an apartment was no longer rent stabilized. The tenant counterclaimed for a finding that the apartment was part of a horizontal multiple dwelling involving some five buildings. The tenant claimed that the rent billing statements recited the landlord as being located in two of the buildings, two buildings shared a multiple dwelling registration number, all five buildings were commonly owned and served by a common gas line, boiler, and Con Edison steam when the tenant moved in, that two buildings still shared common utility service and some common mailboxes. The landlord claimed ownership of only two of the buildings, denied common services other than the boiler, and demonstrated separate lot numbers and separate water, sewer and real estate tax bills.

The Court found that such claims of a horizontal multiple dwelling could not be resolved on summary judgment, as disputes of material facts required trial. The Court noted that horizontal multiple dwelling status cases are decided on a case by case basis.

As to other requests for relief made by the parties, the Court dismissed the tenant's cause of action seeking sanctions for frivolous conduct as improper, noting that such a request for relief must be made by motion, not pled as a cause of action. The Court also dismissed tenant's counterclaim for retaliatory eviction without prejudice, noting that the tenant failed to properly plead the claim within the statutory framework of Real Property Law 223-b. The Court denied the tenant's request for attorney's fees as premature. The Court granted the landlord's motion to strike tenant's affirmative defenses of estoppel or waiver based upon the landlord's registration of the subject unit as rent stabilized with DHCR and the landlord's prior pleadings in Housing Court actions where the landlord pled that the unit was rent stabilized, recognizing that rent stabilization cannot be created by waiver or estoppel. The Court, noting that the motions were prepared two years before the date of decision, declined to award use and occupancy at market rates prior to a conference on the issue of rent status. Finally, the Court dismissed the landlord's request that the tenant's nine year "sweetheart lease" and subsequent lease modification was void for unconscionability, noting that the element of lack of meaningful choice of the prior lessor could not be satisfied, since the prior owner/landlord was the tenant's father. The Court recognized that prior case law specifically rejected a subsequent owner's attack of its predecessor's preferential lease made with a relative.


Case Caption:
Stephen Dibbs v. John Mulholland
Issues/Legal Principles:
Court upholds DHCR's decision to close tenant's harassment complaint.
Keywords:
harassment complaint; article 78 proceeding; reduction in services; rent reduction
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Carol Huff
Date:
March 7, 2002
Citation:
NYLJ, page 18, col 6
Referred Statutes:
CPLR 7803(3)
Summary:
Tenant commenced an Article 78 proceeding, challenging DHCR's decision to close tenant's harassment complaint against the landlord. The decision to close the harassment complaint was without prejudice to tenant's right to challenge DHCR's decision granting the landlord's application to eliminate a required service, a security gate, which was deemed unlawful. DHCR granted this request. The Court noted that there was ample justification for the tenant's refusal to cooperate with the plan recommended by DHCR to remedy the safety and habitability problems that surfaced as a result of the legally required removal of the unlawful security gate. However, the landlord's application did not amount to harassment. The Court declined to further address the request for a rent and service reduction since this issue was not technically before the Court except to the extent it shed light on the harassment complaint.