Posted by Anna on September 22, 1999 at 09:47:40:
In Reply to: Roommates: the real deal posted by Anna on September 22, 1999 at 09:42:12:
CAPITAL HOLDING COMPANY v. STAVROLAKES, 242 A.D.2d 240 [1st Dept 1997]
662 N.Y.S.2d 14
CAPITAL HOLDING COMPANY, Respondent, v. RENA STAVROLAKES, Appellant, et al.,
Respondents.
Appellate Division of the Supreme Court of the State of New York
First Department
August 21, 1997
Appeal from the Appellate Term of the Supreme Court, First Department.
Petitioner Capital Holding Company ("petitioner") is the owner of a residential apartment
building at 220 West 93rd Street, in Manhattan. Respondent Stavrolakes ("Stavrolakes" or
"tenant") is the tenant of apartment 15-A, having lived there for 13 years. It is undisputed that the
apartment is subject to the rent control laws, that there is no written lease between the parties
and that Stavrolakes has two roommates who are not tenants, and are not related to her. On
October 26, 1995, petitioner served a 10-day Notice to Cure on Stavrolakes alleging a breach of
a substantial obligation of her statutory tenancy, to wit, having more than one occupant of her
apartment who is not a family member or co-tenant in violation of Real Property Law § 235-f (3)
(also known as the "Roommate Law"). The Notice demanded that the tenant cure the violation
by November 11, 1995, or her tenancy would be terminated. The tenant failed to cure and
petitioner served a Notice of Termination.
Petitioner commenced a holdover proceeding on January 2, 1996, and the tenant answered.
Simultaneously, the tenant moved for summary judgment dismissing the petition on the ground
that her two roommates were not subject to rent control under New York City Rent and Eviction
Regulations (9 NYCRR) § 2200.2 (f) (5). Petitioner cross-moved for summary judgment on the
grounds that the tenant did not dispute that two unrelated persons were living with her in the
apartment in violation of Real Property Law § 235-f (3), and that the Rent and Eviction
Regulation cited by respondent was inapplicable. The Civil Court, relying on Schneller v. Moed
(128 Misc.2d 885 [Civ Ct, N.Y. County 1985]), held that because "the intent of the statute was to
benefit and protect tenants... the statute should not be utilized in a summary proceeding as
grounds for eviction."
The Appellate Term reversed, by a 2 to 1 vote, and granted petitioner's cross motion for
summary judgment. Relying on its previous decision in 425 Realty Co. v. Herrera (146 Misc.2d
790 [App Term, 1st Dept 1990]), the court stated that while Real Property Law § 235-f Real
Prop. "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 [limit]."
The Appellate Term specifically upheld a landlord's right to bring a summary proceeding where
a tenant violates the "enforceable occupancy limitations" in Real Property Law § 235-f Real
Prop.. However, the dissent argued that the remedial purpose of the statute would not be
served by permitting a summary proceeding to evict a tenant merely for having more than one
unrelated occupant in the apartment.
We reverse. The legislative history of Real Property Law § 235-f reveals that its enactment
was a response to "recent judicial decisions refusing to extend the protection of the human
rights law to unrelated persons sharing a dwelling" (L 1983, ch 403, § 1; see, Hudson View
Props. v. Weiss, 59 N.Y.2d 733). The Legislature also found that"unless corrective action is
taken... thousands of households throughout this state composed of unrelated persons who live
together for reasons of economy, safety and companionship may be placed in jeopardy" (L
1983, ch 403, § 1). The statute's general prohibition, in subdivision (2), makes it "unlawful for a
landlord to restrict occupancy of residential premises, by express lease terms or otherwise, to a
tenant or tenants or to such tenants and immediate family." Based on the above-mentioned
legislative findings, the thrust of the general prohibition, and the title of the section: "Unlawful
restrictions on occupancy," it is undeniable that this section was passed to protect tenants and
occupants, not landlords.
Petitioner's holdover proceeding is premised on subdivision (3) of Real Property Law § 235-f :
"Any lease or rental agreement for residential premises entered into by one tenant shall be
construed to permit occupancy by the tenant, immediate family of the tenant, one additional
occupant, and dependent children of the occupant provided that the tenant or the tenant's
spouse occupies the premises as his primary residence."
Prior interpretations of the statute have varied. Some courts have held that subdivisions (3)
and (4)[fn*] set occupancy limitations for residential premises, which, if violated, are enforceable
by a landlord in a proceeding brought under this section (see, 425 Realty Co. v. Herrera, supra).
Others, however, have focused on the legislative purpose to protect tenants and unrelated
occupants, and concluded that landlords may not affirmatively use the statute's occupancy limits
as a basis for summary eviction proceedings (see, Mitchell Gardens No. 1 Coop. Corp. v.
Cataldo, 169 Misc.2d 983 [Civ Ct, Queens County 1996]; Schneller v. Moed, supra). Neither the
Court of Appeals nor any of the Appellate Divisions have directly addressed this issue.
We do not read subdivision (3) as creating an affirmative right of action for landlords to enforce
occupancy limitations. In our view, such an interpretation would be totally at odds with the
balance of the statute. Indeed, the language of subdivision (3) is itself permissive (the lease
"shall be construed to permit occupancy... [of] one additional occupant"), rather than restrictive,
and there is no express statement that a tenant may have only one unrelated roommate.
Additionally, subdivision (9) of the statute, listing remedies available for violations of the
section, shows that no right of action was intended to vest in landlords (see, Podsiadlo v
Pacheco, NYLJ, Mar. 26, 1997, at 31, col 1 [Civ Ct, Kings County]). Subdivision (9) permits
"[a]ny person aggrieved by a violation of this section" to maintain an action for "an injunction to
enjoin and restrain such unlawful practice"; for "actual damages sustained as a result of such
unlawful practice"; and for court costs. It is undisputed that the only "unlawful practice" referred
to in the entire statute is the one prohibiting landlords from restricting occupancy of residential
premises to tenants and their immediate families (Real Property Law § 235-f [2]). The remedies
provided pertain only to statutory violations by landlords. This is persuasive evidence that
landlords were not intended to be "aggrieved" persons under section 235-f (9).
Moreover, when subdivision (3) is viewed in the context of the section's other provisions, it is
clear that the section was not intended to restrict tenants' rights. The second clause of
subdivision (6) states that "nothing in this section shall be construed to reduce or impair any
right or remedy otherwise available to any person residing in any housing accommodation on
the effective date of this section which accrued prior to such date." This language confirms the
absence of any legislative intent to restrict the existing rights of tenants and occupants.
Petitioner distorts the legislative purpose of section 235-f, and the judicial decision that
precipitated it (Hudson View Props. v Weiss, supra), by arguing that the statute expanded
occupancy rights that previously did not exist. It incorrectly asserts that prior to the enactment of
section 235-f, only family members could be legal occupants of a statutory tenant. This is simply
not the case, as in the absence of a contrary lease provision, their 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 section 235-f.
As stated in Schneller v. Moed (supra, at 887), "where a lease allows more than one additional
roommate, the purpose of section 235-f would be undermined, indeed perverted were courts to
permit landlords to use the statute as a sword against the very group it was designed to shield."
Concur: Ellerin, J.P., Wallach, Nardelli, Rubin and Mazzarelli, JJ.
[fn*] Subdivision (4) provides that leases entered into by two or more tenants shall be construed
to permit occupancy by tenants, the immediate family of tenants, occupants and dependent
children of occupants, provided that the total number of tenants and occupants, excluding the
occupants' dependent children, does not exceed the total number of tenants on the lease.
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