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Re: Changing roommates

Posted by Lilly N. Thal on October 02, 1997 at 08:38:40:

In Reply to: Changing roommates posted by Beth on September 30, 1997 at 23:04:51:

Here's a clipping from the NY Law Journal

Eviction Barred Tied to 'Roommate Law'
Reversal Rejects Occupancy-Limit Standard

The New York Law Journal
August 22, 1997

BY CERISSE ANDERSON

A LANDLORD may not use New York's ''Roommate Law'' as the basis for eviction proceedings by asserting the tenant is
exceeding the statute's occupancy limits, the Appellate Division, First Department, ruled yesterday, reversing a ruling by the Appellate
Term in that department.

The five-judge panel in Capital Holding Co. v. Stavrolakes unanimously dismissed the holdover proceeding brought in
January 1996 by the owner of a residential apartment building at 220 West 93rd Street in Manhattan against Rena Stavrolakes, a
13-year resident of a rent-controlled apartment who had been living with two adult roommates who were not tenants and not related
to her.

Judge Shirley Kornreich in Civil Court, citing her colleague Judge Robert D. Lippmann's ruling in a 1985 case, had granted
Ms. Stavrolakes' motion for summary judgment holding that the Roommate Law -- New York's Real Property Law 235-f(3) --
was passed to benefit and protect tenants and thus could not be used in a summary proceeding as grounds for eviction.

The First Department, Appellate Term, however, reversed Judge Kornreich's order by a 2-1 vote, citing its own 1990 ruling in
425 Realty Co. v. Herrera, 146 Misc2d 790.

Until yesterday's rulings, none of the Appellate Divisions nor New York's Court of Appeals had addressed the issue.

The Appellate Term noted that the Legislature enacted the Roommate Law in 1983 in response to judicial decisions upholding
lease provisions that restricted occupancy to the tenant and the tenant's immediate family. The terms of 235-f provide that any lease
for a residential premises shall permit occupancy by ''the tenant, immediate family of the tenant, one additional occupant and
dependent children of the occupant ....''

The Appellate Term majority had stated that ''while the statute prohibits landlords from restricting occupancy solely to family
members, it does not afford eviction protection to tenants where the total number of occupants exceeds the statutory criteria,''
Capital Holding Co. v. Stavrolakes, NYLJ, Nov. 13, 1996, p. 25, col. 5. Justice Helen Freedman dissented for the reasons stated
by Judge Kornreich.

Aimed at Landlords

The First Department read the Roommate Law as having permissive language rather than restrictive. ''[T]here is no express
statement that a tenant may have only one unrelated roommate,'' the unsigned memorandum decision said.

Futhermore, the remedies provided in the statute for its violation pertained only to violations by landlords, the Appellate
Division panel said. ''This is persuasive evidence that landlords were not intended to be 'aggrieved' persons under 235-f,'' it added.

The court said the landlord had incorrectly asserted that before enactment of 235-f only family members could be legal
occupants with a statutory tenant. ''This is simply not the case, as in the absence of a contrary lease provision, there was no statutory
limit on the number of occupants permitted. Section 235-f did not expand tenants' occupancy rights; it merely limited a landlord's
ability to restrict them.''

''Contrary to petitioner's argument, our holding will not restrict landlords from setting reasonable occupancy limitations in
leases, or prevent them from enforcing such lease provisions so long as they do not violate the minimum protections afforded tenants
and occupants under 235-f,'' the court concluded.

The Appellate Division panel included Justices Betty Weinberg Ellerin, Richard W. Wallach, Eugene L. Nardelli, Israel Rubin
and Angela M. Mazzarelli.

Steven A. Neil represented Ms. Stavrolakes on the appeal. Magda L. Cruz of Belkin Burden Wenig & Goldman was counsel
for Capital Holding Co.

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