Posted by richard on June 01, 2000 at 19:14:27:
In Reply to: Waiver of Rent Control/Stabilization Rights: Merwest posted by Marty on June 01, 2000 at 09:50:11:
I guess you should take you time and read this especially the last 2 paragraphs
As usual, people will hate me for saying this but he was not very bright
was he? He knew the landlord was trying to get him out so why didn't
he have $2 or 3000 to give to a lawyer and save his apartment.
You might be able to prove harassment, and maybe he wasn't
represented by a lawyer........but is he Retarded, disabled, mentally
Ill, ex-convict,recoving drug addict/ alcoholic... then YES he can get
his apartment back......The landlord was taking advantage of him..
But if he is a normal person with a job, an education then he's got an
uphill fight...
And there is nothing a landlord can do about having a home business,
if its quiet, hey he's got to pay the rent somehow too! Lots of
people work at home, I am also a Wedding/Party DJ so i have my equipment to
move on friday or saturday nights in and out of the apartment..... I
see prospective clients here..... what maybe 2 or 3 times a month.......
-----------------------------------------
(Cite as: 264 A.D.2d 313)
694 N.Y.S.2d 38, 1999 N.Y. Slip Op. 06985
View National Reporter System version
Merwest Realty Corp., Appellant,
v.
Fran Prager, Respondent.
Supreme Court, Appellate Division, First Department, New York
(August 5, 1999)
Order of the Appellate Term of the Supreme Court, First Department,
entered August 6, 1998, which affirmed an order of the Civil Court, New
York County (Marcy Friedman, J.), entered August 15, 1997, dismissing a
summary holdover petition, unanimously reversed, on the law, without
costs, respondent's motion to dismiss the proceeding denied, the
petition reinstated, and the matter remanded to Civil Court for further
proceedings.
We agree with the dissent at the Appellate Term that the parties'
January 14, 1997 agreement terminating respondent's rent-controlled
tenancy is not barred by Rent and Rehabilitation Law (Administrative
Code of City of NY) § 26-408 (a). Respondent-tenant admittedly contacted
petitioner-landlord on December 17, 1996, at a time when she was in
arrears on her rent since June 1996, explained that she was considering
relocating, and asked what arrangement the landlord would make
concerning her apartment if she did. In subsequent telephone
(Cite as: 264 A.D.2d 313)
conversations with the landlord's representative, respondent asked for
$20,000 in return for surrendering the apartment, but settled for
$10,000. The resulting agreement, drafted by the landlord and rewritten
by the tenant's attorney, acknowledged that respondent-tenant was
presently in arrears for rent due from June 1996 through January 1997,
and stated that she was thereby terminating her tenancy. As pertinent to
this appeal, it further provided for the payment of $10,000 to the
tenant if she vacated the premises on or before March 31, 1997 with
options for extensions to June 30, 1997; for a mutual release and
settlement of all outstanding claims and any prospective legal
proceedings between the parties; and, that in the event respondent did
not vacate the apartment by June 30, 1997, at the latest, she would be a
holdover tenant occupying a decontrolled apartment illegally.
It is well settled that, unless public policy is affronted, the courts
favor and encourage parties to civil disputes to fashion stipulations
resolving such disputes, and that they may stipulate away statutory or
even constitutional rights (Mitchell v *314(Cite as: 264 A.D.2d 313,
*314)
New York Hosp., 61 NY2d 208, 214). The aforementioned provision of the
Rent and Rehabilitation Law, while intended to protect the rights of a
rent-controlled tenant, does not prohibit a tenant from agreeing, as
here, where there is no evidence of bad faith or overreaching by the
landlord, to surrender possession of the apartment and resolve
incidental differences (see, Matter of Matinzi v Joy, 60 NY2d 835, 836,
n). Nor do we
(Cite as: 264 A.D.2d 313, *314) perceive any distinction between
in-court or out-of-court agreements (but, cf., Draper v Georgia Props.,
230 AD2d 455, 459, appeal dismissed 91 NY2d 849) or any public policy or
other reason for disregarding the parties' agreement, made with the
advice of counsel (cf., Kent v Bedford Apts. Co., 237 AD2d 140).
Concur--Sullivan, J. P., Nardelli, Wallach, Andrias and Saxe, JJ. [See,
173 Misc 2d 868; 177 Misc 2d 956.]
Copr. (c) 1999, Alexander Treadwell, Secretary of State, State of New
York.
N.Y.A.D.,1999.
Merwest Realty Corp. v Prager
END OF DOCUMENT
: A friend who does not have internet access asked me to ask this, so please bear with me if some important detail is missing.
: His landlord sent a termination notice for violation of lease which was bogus, e.g. working out of his home. He consulted a couple of attorneys who made it sound very expensive to fight because it was true but the nature the work produced no noise and little traffic, certainly a lot less of a nuisance than a piano teacher! Instead of hiring a lawyer, he agreed to a buyout directly with the landlord's attorneys before they even filed the Petition. He now realizes how stupid that was and wants out of the agreement. The rent stabilization code says he cannot waive his rights without DHCR or Court approval and or supervision. And it seems from our research here and offline that the courts have agreed until recently.
: As posted in Tenant Net Housing Court Decisions, Merwest Realty originally confirmed this . However, two years later, the Appellate Division did a 180 and said a tenant can waive everything even without a lawyer (like my friend did), Decisions August 1999. One difference is that my friend did not start this discussion of buyout and was harassed for several years before the bogus termination notice, including being threatened by the so-called super with a knife, police report on file. Not exactly "voluntary".
: The question is: does anyone know if Merwest Realty has been appealed to the next level (Court of Appeals, right?) Or do you know how to find out online? If not, what would he look for in the court's file to determine this? And exactly where is the Appellate Division.?
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