Date: Fri, 03 Sep 1999 00:57:14 -0400
Subject: Tenants Online 9/2/99

Tenants Online                                            9/2/99
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In this issue...

1. Exemption Allows Priests to Keep Apartments (Law Journal)
2. HPD Rules on Lead Paint are promulgated
3. Cursing is Not a Reason to Evict a Tenant (Law Journal)
4. Luxury Deregulation Cases (Law Journal)
5. Landlord Can't Evict Without Offering New Apartment  (Law Journal)

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Exemption Allows Priests to Keep Apartments
New York Law Journal, September 2, 1999
BY MICHAEL A. RICCARDI

A COMMUNITY of 16 Jesuit priests may continue to live in their West Side 
apartment house, according to a decision by a Manhattan Housing Court judge 
exempting the group from a ruling that could have subjected them to a 
holdover proceeding under the rent stabilization law.

Judge Maria Milin said that the community was not a corporate entity using 
the property to provide housing for a transient group of employees. 
Therefore, the priests, including the human rights activist the Rev. Daniel 
J. Berrigan, were entitled to renewal leases under rent control principles.

In 1997, the New York Court of Appeals ruled that a corporate entity was 
not entitled to renewal leases because it was using the premises to provide 
housing to employees on a revolving basis.

While the Jesuit order, the New York Province of the Society of Jesus, is 
such a corporate entity, the West Side Jesuit Community, one of several 
communities within the province, is not a corporate body, Judge Milin 
reasoned in 220 West 98 Realty v. New York Province for the Society of 
Jesus, Index No. L&T 102336/98.

And the community, not the order, is the primary tenant, she said.

The landlord, Judge Milin said, "in word and deed has treated the WSJC as 
the primary tenant of the premises and not as a mere occupant or subtenant 
of the Province."

The owners of the West Side apartment building in which the Jesuits live, 
220 West 98 Realty, argued unsuccessfully that renewals of the lease for an 
indefinite period were depriving it of its property interests, citing the 
Court of Appeals decision Manocherian v. Lenox Hill Hospital, 84 NY2d 385 
(1997).

In Manocherian, Lenox Hill Hospital rented apartments for use by its 
doctors and employees. The Court said that a corporation could not take 
advantage of automatic lease renewals under rent stabilization law where it 
was leasing property to distribute as a "valuable perk."

Distinction Made

The facts of the Jesuits' residence were far different, Judge Milin reasoned.

"The contrast here is that the WSJC and its members are not faceless and 
nameless transient employees of a corporation," she wrote.

It is not solely the Jesuit order, the corporate entity, that is leasing 
the premises from the landlord, but the West Side Jesuit Community, which 
is an unincorporated subdivision of the order, she said.

"The [landlord] has directly interacted with the WSJC as the actual tenant 
of the premises," she wrote, observing that the community as well as the 
Province appears on the lease.

Moreover, unlike the situation at Lenox Hill Hospital, where the apartments 
were continually being subleased to hospital employees, the West Side 
Jesuit Community has enjoyed stability, and has dealt directly with the 
landlord, unlike a sublessor.

"[T]he membership of the WSJC has been made known to the [landlord] and has 
remained essentially intact since 1988-89," when earlier litigation over 
the tenancy was settled.

The landlord was represented by Rosenberg & Estis. The priests and the 
Jesuit order were represented by Kellner Chehebar & Deveney.

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LEAD PAINT RULES
from Matthew Chachere, Coalition to End Lead Poisoning

The Proposed HPD Rules for implementing the new NYC Lead Paint Law (Local 
Law 38) were published yesterday in the City Record (August 30, 1999) at 
page 2618.

I have not reviewed them yet, so I cannot give any substantive take on 
them. Please note that a public hearing will be held on the proposed rules 
on October 1 from 10 am to noon, at HPD, 100 Gold Street, Room 1R3. 
Comments can be made in writing on or before Oct 1 to Vito Mustaciuolo, 
Asst. Commissioner, Office of Housing Preservation, 100 Gold Street, Room 
4-P6, New York, NY 10038.

If you don't have ready access to the City Record and want a copy of the 
regs, email  and we'll try to get them faxed to you, or 
better yet, we are looking into scanning the regulations and circulate them 
as an Acrobat PDF file.

By the way, the Comptroller's report on lawsuits against the City (reported 
in today's Newsday) is available online in .pdf format 
at  http://www.comptroller.nyc.ny.us/BUREAUS/LAW/claim98.pdf , and a 
summary is available at Bureau of Law and Adjustment

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CURSING IS NOT A REASON TO EVICT A TENANT
New York Law Journal
Wednesday, September 1, 1999

Cursing is constitutionally protected conduct and cannot be the basis for 
evicting a tenant, a Staten Island Civil Court Judge has ruled. The 
landlord, Kirso Property Co., began the eviction process after the tenant, 
Jodi Brief, allegedly on five occasions yelled offensive statements at 
fellow tenants. Ms.Brief, who has been diagnosed by one doctor as having an 
unspecified psychotic disorder, claimed that her cursing was the result of 
the mental illness. In dismissing the case, Judge Philip S. Straniere ruled 
that a landlord, in order to evict a tenant for allegedly blurting out 
ethnic and racial slurs and obscenities, must have testimony from other 
building residents to back up a common law cause of action for creating a 
nuisance. "There is nothing in the record that indicates the words and 
actions of the [tenant] amounted to 'fighting words' or 'created a clear 
and present danger' or that there was any physical action by the tenant 
that has been perceived as a threat to someone's personal safety," Judge 
Straniere wrote.

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LUXURY DEREGULATION CASES
The Tide Turns Against Landlords When a Tenant Defaults
New York Law Journal, July 7, 1999
By Jeffrey Turkel and Warren Estis

IN THREE recent decisions, the Appellate Division, First Department, has 
ruled that the Division of Housing and Community Renewal (DHCR) is 
statutorily authorized to open tenant defaults in luxury-deregulation cases 
where the tenant proffers a timely and adequate excuse for his or her default.
In a fourth recent case, the court held that a tenant's sworn statement 
that he timely mailed income information to DHCR was sufficient to vacate a 
default order. In all four cases, the First Department indicated that where 
possible, it wants luxury-deregulation cases decided on the merits, rather 
than on agency-declared defaults.

Early Days, Simple Rule

In the early days of luxury deregulation, the Appellate Division laid down 
a simple rule: where a tenant fails to provide DHCR with income information 
during the statutory 60-day period, the agency is "mandated to issue a 
deregulation order." (Nick v. DHCR.)1 Landlords were elated by this 
outcome, tenants were outraged, and the Legislature -- still reeling from 
the epic 1997 rent-regulation fight -- was not about to enter the fray.

Earlier this year, two First Department determinations indicated that the 
court was looking to modify its default rule in luxury-deregulation cases. 
In Pledge v. DHCR,2 the Appellate Division affirmed DHCR's order of 
default, citing the court's previous decisions in Nick and Bazbaz v. DHCR.3 
The court pointedly rejected the tenant's claim that a de minimis default 
should not result in a forfeiture of a rent-regulated apartment, stating 
that a tenant has no vested right in continued regulatory protection. But 
the First Department also observed that the tenant's excuse for defaulting 
was plainly "inadequate," thereby implying that an adequate excuse might be 
sufficient to open a default.

The second case was Sudarsky v. DHCR.4 In Sudarsky, the tenant defaulted 
but asserted in the Article 78 proceeding that during the 60-day period he 
was clinically depressed and his wife was out of town. The First Department 
rejected the tenant's argument, stating that it saw no reason to depart 
from its prior decisions based on a "belated" excuse. The combined message 
of Pledge and Sudarsky was obvious: an adequate excuse, if not belatedly 
raised, would be sufficient to vacate a default. It was only a matter of time.

Excusable Default

The time came on April 13, 1999, in Elkin v. Roldan.5 In Elkin the tenants 
timely responded to the landlord's Income Certification Form, claiming that 
their 1993 and 1994 incomes did not exceed the statutory limit. The 
landlord thereafter asked DHCR to verify the tenants' claims. DHCR did not 
timely receive the tenants' answer to the agency's 60-day notice -- the 
answer was postmarked after the deadline had passed -- and ten months later 
issued an order of default.

On administrative review, the tenants asserted that they had mailed the 
answer before the deadline. DHCR rejected this claim. New York Supreme 
Court Acting Justice William Wetzel thereafter annulled DHCR's order, 
finding that the tenants' default was excusable. Justice Wetzel noted that 
the late filing was inadvertent and that the tenants' income appeared to be 
below the statutory limit. The court also observed that no party had been 
prejudiced by the brief delay.

The First Department affirmed Justice Wetzel's ruling, holding that "[w]e 
do not believe that the deregulation statute proscribes DHCR from 
considering a tenant's excusable default at the initial administrative 
level." The Court distinguished Elkin from Nick and its progeny, stating 
that in those cases:

"... the tenant never submitted the Verification Notice to DHCR during the 
initial level of administrative proceedings. Thus, in the absence of the 
required information from the tenant, DHCR had no choice but to order 
deregulation."

The First Department concluded:

"Because the deregulation order in this case was based on DHCR's erroneous 
conclusion that late filings could not be accepted, we annul that order. 
Furthermore, we agree with the IAS court that DHCR's refusal to accept 
petitioner's late filing was arbitrary and capricious in these 
circumstances. There was only a minimal delay, apparently from office 
failure, a meritorious defense to the petition, and no prejudice to either 
the landlord or DHCR."

The First Department issued a similar determination shortly thereafter in 
Seymour v. DHCR.6 In Seymour, DHCR issued a default order against the 
tenant in a luxury-deregulation case. Justice Eileen Bransten of the New 
York Supreme Court reversed, finding an excusable default. The Appellate 
Division affirmed Justice Bransten, stating:

"Although the tenant failed to provide the income verification information 
DHCR had requested within 60 days of DHCR's request ... she did provide 
such information shortly after the deregulation order was issued when she 
requested the Rent Administrator to reconsider that order. The decision not 
to reconsider the deregulation order at this initial administrative level 
is arbitrary and capricious given the tenant's compelling proof of 
household income well below the then statutory threshold of $250,000."

Finally, on June 3, 1999, the First Department issued its determination in 
Shapiro v. DHCR.7 Affirming Justice Walter Tolub's annulment of DHCR's 
default order -- the tenant's response to DHCR's notice was three days late 
-- the First Department ruled:

"The order annulling DHCR's deregulation order should be affirmed. In light 
of petitioner's timely responses to Income Certification Forms, his 
submission of evidence that his annual income fell below the statutory 
threshold, his de minimis delay in responding to the Income Verification 
Form, the fact that the requested information was received by DHCR long 
before the agency belatedly issued its deregulation order, nearly one year 
subsequent to the expiration of the period within which DHCR is to issue 
such determinations .... and in light of the fact that neither the agency 
nor the landlord suffered any prejudice by reason of petitioner's three-day 
delay, Supreme Court properly determined that DHCR's refusal to accept the 
late filing was arbitrary and capricious."

Tenant's Easier Burden

The First Department's March 23, 1999, decision in Doyno v. DHCR 8 concerns 
a variation on the standard default theme. In Doyno, DHCR did not receive 
the tenant's response during the 60-day period. The tenant thereafter swore 
that the document had been mailed within the deadline. On administrative 
review, the agency asked the tenant for objective proof of mailing, which 
the tenant could not produce. Justice Lewis Friedman thereafter annulled 
DHCR's default determination. The First Department affirmed Justice 
Friedman, stating:

"The tenant's affidavit attesting to timely service of his answer, his 
submission of a copy of the answer bearing a date coinciding with the 
claimed date of service, and DHCR's admitted receipt of the answer in 
another proceeding months before the Rent Administrator's determination and 
the filing of the tenant's PAR in this proceeding raised a rebutable 
presumption of mailing ... that should not have been summarily rejected. 
DHCR's imposition of a requirement of additional 'objective' proof of 
mailing, such as a certified mail receipt, not required by statute or its 
instructions to the answer form, was arbitrary and capricious." (687 
N.Y.S.2d at 107)

Doyno, unfortunately, may encourage gamesmanship by unscrupulous tenants. 
Pursuant to Elkin and its progeny, a tenant who fails to respond during the 
60-day period must thereafter proffer a timely and adequate excuse to 
vacate his default. This is risky business, as one can only guess what an 
administrator or a court will deem adequate. But Doyno gives dishonest 
tenants an easier burden: a sworn statement of mailing, a back-dated answer 
form and a timely filed PAR appear to be enough to earn the tenant a second 
chance. Because the landlord and the agency could never prove that the 
tenant did not mail and/or back-date the answer, the tenant would always 
prevail.

Landlords Should Settle

This is not to say that the First Department will open up any default. In 
Londin v. DHCR,9 the tenant defaulted and proffered an excuse for the first 
time in her Article 78 petition. The Appellate Division affirmed DHCR's 
default order, holding that the tenant's "excuse for such failure was not 
raised in the administrative proceeding and therefore may not be considered 
in this judicial proceeding."

Notwithstanding the First Department's apparent change of heart, tenants 
are still advised to submit all of the requested income information during 
the 60-day period. Correspondingly, landlords who initially prevail before 
the agency in default cases should strongly consider settling the matter 
should the tenant commence an Article 78 proceeding.

----------------------
Notes
(1) 244 AD2d 299, 664 NYS2d 777 (1st Dept. 1997).
(2) _ AD2d _, 683 NYS2d 76 (1st Dept. 1999).
(3) 246 AD2d 388, 667 NYS2d 720 (1st Dept. 1998).
(4) _ AD2d _, 685 NYS2d 704 (1st Dept. 1999).
(5) _ AD2d _, 688 NYS2d 61 (1st Dept. 1999).
(6) NYLJ, May 13, 1999, at 27, col. 5 (1st Dept. 1999).
(7) NYLJ, June 7, 1999, at 26, col. 2 (1st Dept. 1999).
(8) _ AD2d _, 687 NYS2d 107 (1st Dept. 1999).
(9) _ AD2d _, 687 NYS2d 111 (1st Dept. 1999).

*********
Warren A. Estis is a founding partner at Rosenberg & Estis PC. Jeffrey 
Turkel is a partner at the firm.

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LANDLORD CAN'T EVICT WITHOUT OFFERING NEW APARTMENT
BY MICHAEL A. RICCARDI
New York Law Journal
Friday, August 27, 1999

A NOT-FOR-PROFIT company that is redeveloping city housing cannot evict 
present tenants without offering an equivalent alternate dwelling, a 
Manhattan Housing Court judge has ruled in a case of first impression 
interpreting a key section of redevelopment law.

Judge Doris Ling-Cohan ruled that 15 tenants residing at 515 W. 174th 
Street in Washington Heights could not be forced to move immediately so 
that Quisqueya Housing Corp. could get on with rehabilitating the property.

Quisqueya, she ruled, made a mistake in attempting to evict the tenants by 
starting a holdover proceeding, rather than by offering them notice of 
"substantially similar housing accommodation ... nearby ... at the same rent."

Quisqueya obtained the property from the city under the Neighborhood 
Redevelopment Program, which turns over buildings to non-profit concerns 
for rehabilitation.

The developer is a not-for-profit company whose directorships are divided 
between the Association of Progressive Dominicans (ACDP under its Spanish 
acronym), a group aligned with City Councilmember Guillermo Linares and by 
the Manhattan Valley Development Corp., according to Kenneth Rosenfeld, the 
tenants' lawyer and director of legal services for the Northern Manhattan 
Improvement Corp.

Representing Quisqueya Housing was Marc H. Hyman of Sontag & Hyman in 
Manhattan. He said his clients are preparing to go through the process of 
giving notice to the tenants per the court's holding.

"We don't agree with the decision, but it is quicker and easier to start 
over than it would be to appeal," Mr. Hyman said.

The redevelopment project was opposed by long-term tenants who feared 
eviction, Mr. Rosenfeld said. The sponsors, he said, refused the tenants' 
offer to participate in future management of the building in exchange for 
temporarily vacating the site during rehabilitation work.

The redeveloper then filed the eviction notices, but without any guarantee 
of alternate housing. The tenants asked the court to dismiss the notices as 
inadequate under the NRP.

That was the impasse confronted by Judge Ling-Cohan in Quisqueya Housing 
Corp. v. Various Tenants and carries 15 L&T index numbers.

Looking at the developers' eviction notices, Judge Ling-Cohan held them 
fatally defective for failing to notify tenants of equivalent alternative 
housing.

The ruling, she said, was one of first impression interpreting the adequacy 
of notice to tenants who must vacate premises to allow rehabilitation work.

"The law required that the tenants be offered an actual apartment in the 
same building or nearby, that they could move to," said Mr. Rosenfeld. The 
tenants would live in the alternate housing temporarily and then be moved 
back into the rehabilitated units.

Mr. Rosenfeld said the case was the first in which tenants had organized to 
oppose a redevelopers' plans under the NRP.

Meaningful notice, Judge Ling-Cohan reasoned, had to include notice of 
suitable alternative housing as required by the Neighborhood Redevelopment 
Program.

She rejected Quisqueya Housing's argument that it could not provide such 
notice immediately because it could not determine whether alternate housing 
would be similar until it met with each tenant.

"[T]he statute does not require consideration of these factors, only that a 
'substantially similar housing accommodation' be offered," Judge Ling-Cohan 
wrote.

Ramon Gutierrez of the Northern Manhattan Improvement Corp. also 
represented the tenants.

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Date: Sat, 11 Sep 1999 15:43:30 -0400
Subject: Tenants Online 9/11/99

Tenants Online                                            9/11/99
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In this issue...

1. Real-Estate Moguls Place Early Bets on Mayoral Race (Post)

2. Excerpts from Recent 'Realty Law Digest' columns (Law Journal)

    -Hotel Unit Subject to Luxury Deregulation Provisions of Rent
     Stabilization Law
    -Attorney Sanctioned for Permitting Employee at Housing Court
     Information Table to Prepare and Sign Legal Papers.
    -Attorneys' Fees - Prevailing Party
    -Attorney Sanctioned for Abuse of Discovery Process

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REAL-ESTATE MOGULS PLACE EARLY BETS ON MAYORAL RACE
By DAVID SEIFMAN, NY POST, August 28, 1999

At least seven prominent real-estate executives have given the maximum to 
three or more contenders.THE scramble to succeed Mayor Giuliani has 
resulted in a mad dash for cash - with a tightly-bunched group of 
candidates pursuing the same wealthy developers.

An analysis of Campaign Finance Board filings turned up at least seven 
prominent real-estate executives who have contributed the maximum allowed 
by law to three or more contenders in the crowded mayoral field.

Bernie Mendik, chairman of the Real Estate Board of New York, led the pack 
by writing $4,500 checks to Bronx Borough President Fernando Ferrer, Public 
Advocate Mark Green, Comptroller Alan Hevesi, former Deputy Mayor Fran 
Reiter and City Council Speaker Peter Vallone.

Mendik's generosity didn't stop there. His wife, Susan, chipped in 
identical sums to the same five mayoral hopefuls.

The couple's total contributions: a hefty $45,000.

Peter Kalikow and his wife, Mary, each "maxed out" for Vallone, Hevesi and 
Ferrer, for a total of $27,000.

Daniel Brodsky dropped a total of $16,500 on Hevesi, Green, Reiter and Ferrer.

Burt Resnick left $15,500 with Hevesi, Green, Reiter and Vallone - while 
Leonard Litwin gave those four $14,500.

Political insiders said the new term-limits law, which will force Giuliani 
to leave office no later than Dec. 31, 2001, is propelling the 
multiple-candidate contributions.

"This is the first time you've had a field with so many candidates and no 
incumbent," said Jerry Skurnik, a veteran political consultant.

Incumbents tend to draw the biggest share of the bucks.

One source in the real-estate community said it's not uncommon to give to 
more than one candidate, especially when there's no incumbent.

"You may know more than one of them on a social basis. You don't want to 
tell them no. And it's impossible to tell who's going to be the winner. 
You're hedging your bets," the source said.

Solicitations intensified "big time" last month, when the candidates rushed 
to swell their war chests before a filing deadline.

Still, none of the developers is complaining.

"These are not poor people," said the source. "Fifteen, twenty-thousand. 
That's what they spend on a vacation."

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Excerpts from Realty Law Digest
New York Law Journal
By Scott E. Mollen

HOTEL UNIT SUBJECT TO LUXURY DEREGULATION PROVISIONS OF RENT STABILIZATION LAW

This case involves the issue of whether a hotel unit becomes "exempt from 
rent regulation under the luxury deregulation provisions of the Rent 
Stabilization Law [RSL] [when] (i) there has been no permanent tenant of 
the [unit] for the four years prior to the present tenant's filing of an 
overcharge complaint, and (ii) the last rent paid for the unit by the prior 
occupant was at the rate of $115 per day," which translates to a monthly 
rent in excess of $2,000.

The owner had commenced a nonpayment proceeding against an occupant of a 
class B hotel. The occupant sought dismissal, arguing that the owner had 
erroneously alleged that the unit is not subject to rent regulation because 
the rent at the transient rate exceeds $2,000 per month and falls under the 
high rent exception.

Hotels are regulated under the RSL unless statutorily exempted. RSL §26-506 
provides that:
... this law shall apply to dwelling units in all hotels except hotels 
erected after [July 1, 1969], whether classified as a Class A or a Class B 
multiple dwelling, containing six or more dwelling units, provided that the 
rent charged for the individual dwelling units on [May 31, 1969] was not 
more than [$350/month] or [$88/week];
The occupant asserted that the transient rate is not determinative of 
whether a unit is subject to stabilization.

Rent Stabilization Code (RSC) §2520.6(f) provides that the legal regulated 
rent is "[t]he rent shown in the annual registration statement filed four 
years prior ... plus ... any subsequent lawful increases and adjustments."

The occupant emphasized that the owner had always registered the unit with 
DHCR at a rent of $161.14 per week, much less than $2,000 per month. The 
occupant also contended that no high rent exemption exists under RSL 
§26-504.2, and therefore, the unit is protected by rent regulation laws. 
The occupant also asserted that she is a "permanent hotel tenant protected 
by the rent regulation laws" and that under RSC §2422.5(a)(2), upon request 
for a lease, an owner must:
grant a lease commencing on the date such request was made at a rent which 
does not exceed the legal regulated rent for a term of at least six months. 
The hotel occupant who requests such a lease becomes a permanent tenant.
The owner argued that the unit became exempt from rent regulation under the 
Luxury Decontrol Provisions of the RSL. The owner contended that the last 
rent paid and the "first rent" agreed upon by the occupant was $115 per day 
or $3,450 per month, which allegedly exempts the unit from rent regulation, 
since the monthly rent exceeds $2,000 per month. The evidence indicated 
that the premises had been occupied exclusively by transients during the 
prior four year period.

The court noted that pursuant to RSC §2520.11(g)(1), when a hotel unit is 
occupied transiently, the unit is exempt from rent regulation and that 
under the 1997 amendments to the RSL, an examination of the rental history 
is limited to a four year period.

The owner had submitted a letter from DHCR that stated that:
With reference to the "renovated" unit, you state that the unit was rented 
through March 31, 1992, at $700 per month. Thereafter, it has been 
registered as exempt due to owner occupancy. Where the period of temporary 
exemption has been four years or more, a "first rent" negotiated between 
the owner and tenant, subject to subsequent guidelines and other lawful 
increases (assuming compliance with registration requirements), would be 
recognized by DHCR. The former rent, statutory vacancy increase and cost of 
new equipment and improvements are not relevant. Based upon a "first rent" 
of $2,000 or more per month, the apartment would be considered deregulated 
under high-rent vacancy decontrol. Because of the length of the period of 
temporary exemption, DHCR would be precluded, in the event of an overcharge 
complaint filed by the new tenant, from examining the rental history prior 
thereto. Rent Stabilization Law Section 26-515a, amended by the Rent 
Regulation Reform Act of 1997, "RRRA-97," precludes examination by the DHCR 
of the rental history of a housing accommodation for the period prior to 
four years preceding the filing of an overcharge complaint.
The court concluded that the unit "is exempt from rent regulation under the 
luxury deregulation provisions of the Rent Stabilization Law because (i) 
there has been no permanent tenant of the accommodation for the four years 
prior to the present tenant's filing of an overcharge complaint, and (ii) 
the last rent paid for the unit by the prior occupant was at the rate of 
$115 per day, which amounts to well over $2,000 per month."

Accordingly, the court granted judgment to the owner. Martha H. Washington 
Hotel v. Prince, New York Law Journal, May 5, 1999, p. 29, col. 6, Civ.Ct., 
N.Y. Co., Malatzky, J.


NEITHER PARTIES NOR ATTORNEYS — ATTORNEY SANCTIONED FOR, INTER ALIA, 
PERMITTING EMPLOYEE AT HOUSING COURT INFORMATION TABLE TO PREPARE AND SIGN 
LEGAL PAPERS.

A nonpayment proceeding was dismissed for a "myriad" of procedural and 
substantive problems. The defects included a petition which was falsely 
signed by someone who was not the petitioner and which was not prepared or 
completed by the petitioner, although the petitioner had alleged that he 
had completed the petition. Further, the notary notarized a blank space on 
the affidavit of service and the affidavit of service on the demand notice 
was unsigned.

The court found that the petitioner's attorney had given an employee at the 
Housing Court information table permission to place the attorney's name on 
all court papers. The attorney had given such permission by telephone and 
had never looked at the court papers before she had provided authorization. 
The attorney contended that she gave the employee "carte blanche authority" 
because she "considered him a Housing Court employee who had expertise in 
the area and knew what was required." The attorney claimed that she thought 
she was dealing with a person who had been "sanctioned by and with official 
status with the Housing Court." The employee had led the attorney to 
believe that it was appropriate for him to prepare the papers since he 
worked in the courts.

The court sanctioned the attorney for permitting the use of her name on 
court papers without reviewing the papers beforehand and opined that she 
must be "responsible and accountable for whatever happened thereafter 
regarding those papers once her name was put upon them." The court believed 
that the "fraudulent behavior, including false testimony and forgery might 
have been averted" if the attorney had simply overseen and investigated the 
situation before she had consented to the use of her name in commencing the 
proceeding.

The court observed that since the employee was neither a party nor an 
attorney, "he is able to walk away without penalty." The court noted that 
this is the latest among a series of cases in which this court has been 
involved with nonparty imposters who are able to engage in a multitude of 
fraudulent practices and go forward unsanctioned by the courts. Such 
glaring examples cry out for a change in the ability of the court to 
sanction nonparties who engage in egregious conduct, which exhibits 
reprehensible behavior and are able to walk away sanction free. Hopefully, 
the Legislature will help the court fight against and stop these practices.

The court further opined that it is "time to recognize that things such as 
fraudulent testimony, forgeries and fake activities, result in damage that 
goes to the core or heart of our judicial system. It is definitely time, 
now to stop the fraud and restore the damage to the judicial system that we 
all hold so very dear to the heart of our democratic way of life."

The court referred the employee's activities to the District Attorney and 
the conduct of the notary public to the Deparment of State. The court then 
imposed a $100 fine against the attorney and explained that the small 
sanction is attributable to the court's awareness that the attorney was 
"relatively inexperienced and was in some respect duped by the housing 
court worker at the information table." The court also awarded counsel fees 
to the respondents. Boyd v. Kellman, New York Law Journal, June 16, 1999, 
p. 32, col. 6, Civ.Ct., Kings Co., Callender, J.


ATTORNEYS' FEES - PREVAILING PARTY

An owner commenced a nonpayment proceeding. The tenants had asserted claims 
for breach of warranty of habitability (warranty) predicated upon numerous 
common area and individual apartment complaints. The tenants advanced a 
"novel legal theory" that they were entitled to "heightened protection 
under the habitability statute by virtue of the 'luxury' status of the 
building premises—a subjective standard which, while adopted by the trial 
court, was resoundingly rejected by three unanimous appellate panels. ..."

Although the tenants had achieved abatements at trial of 10 percent for 
common area conditions and of one to 11 percent for individual apartment 
complaints, the tenants "ultimately came away ... with no more than a 
one-year five percent abatement for faulty elevator service."

The court explained that considering the "true scope of the dispute 
litigated, followed by a comparison of what was achieved within that scope 
..., it is clear that the landlord should be accorded the status of 
'prevailing party' and entitled to attorneys' fees pursuant to the leases. 
..."

A dissenting opinion argued that although Peachy v. Rosenzweig, 215 A.D.2d 
301, supports the majority's opinion that the landlord is the prevailing 
party, in the particular circumstances of "these regretfully contentious 
and unnecessarily protracted 'summary' proceedings, 'neither party can 
claim to have prevailed' ... just as neither can claim to have been merely 
the hapless victim of the other's combative litigation style." The dissent 
believed that the owner had "contributed substantially to preventing an 
expeditious resolution of the proceedings" and that a remand to the Civil 
Court "at this late stage would impose undue hardship on all parties."

Comment: Warren A. Estis, of Rosenberg & Estis P.C., the attorney for the 
owner, had argued that a determination of prevailing party must consider 
the totality of the circumstances and that the tenants had failed to 
prevail on their primary argument. Sheldon H. Solow d/b/a Solovieff Gallery 
Co. v. Otis Bradley, App.Tm., 1st Dept., Index No. 98-250/269 decided July 
28, 1999. Parness, P.J., Freedman, Davis, JJ. Dissenting opinion by 
Freedman, J.


ATTORNEY SANCTIONED FOR ABUSE OF DISCOVERY PROCESS, INCLUDING USE OF 
SUBPOENAE FOR PRIVILEGED INFORMATION ON NON-PARTIES

Tenants moved for sanctions against an owner and the owner's counsel for 
frivolous motion practice and unethical behavior involving subpoenaed 
documents. The owner had claimed that the tenant and the tenants' counsel 
had engaged in a campaign involving intimidation and harassment against the 
owner. The court found that the record demonstrated that it was the owner's 
counsel who had engaged in inappropriate conduct.

The owner's counsel had made seven motions and that the instant motion had 
been made on the eve of trial, after the proceeding had been adjourned for 
three months. The owner's moving affirmation had been dated two months 
before the instant motion. Thus, the motion had been prepared, but had been 
held for two months until the "new eve of trial."

The tenant had claimed that the owner's counsel had attempted to breach the 
attorney/patient privilege protected by CPLR §4504, by service of subpoena 
and directly contacting the tenant's dentist. The owner asserted that it 
had not committed any improprieties since the records were either in court 
and the owner had copied the records from court files or the individuals 
had sent the records to the owner's counsel without instigation by the 
owner's attorney's office. The owner also argued that there was no invasion 
of the tenant's privacy since the tenant's dentist had voluntarily 
submitted the records in response to the judicial subpoena.

The court described the argument that the dentist had "voluntarily 
submitted to breach" as "ludicrous." The court stated that the dentist had 
complied with the subpoenas because he thought he was legally required to 
do. The owner claimed that the annexation by the tenant of dental bills to 
an affirmation in opposition to an earlier motion somehow entitled the 
owner to subpoena further information from the dentist. The court explained 
that "it is an abuse of process to use a subpoena to obtain confidential 
and/or privileged records of a non-party" and "[t]he use of a subpoena to 
breach a privilege is sanctionable." The court further noted that it had 
previously discussed the issue of the tenant's right to privacy and that 
the owner had already received four separate decisions relating to 
permissible discovery. The court emphasized that "no additional motion was 
made before this court for additional specific discovery or requesting 
further clarification regarding discovery from the court." Moreover, an 
affirmation submitted by the owner stated that "other entities unilaterally 
sent the documents to our office even though we did not request that they 
do so." The court found such statement to be "untrue."

The court further found that the owner's counsel had engaged in a 
"deliberate circumvention of the court's rules and procedures by soliciting 
and obtaining documents by abuse of judicial subpoenas" and such action is 
sanctionable.

The court concluded that the Appellate Division, First Department had 
consistently "criticize[d] the impropriety of service of a subpoena duces 
tecum upon a non-party witness as a discovery device, to secure document 
production."

The court emphasized that the owner's attorney had knowingly submitted a 
false statement to the court and ordered sanctions against the owner's 
counsel in the amount of $1,000. The court explained that "this amount is 
intended not only to deter counsel from any further attempts to interfere 
with the path of a judicial subpoena to a non-party witness but also to 
admonish counsel for asserting a material factual statement that is false." 
The court further opined that the "unnecessary delay and utilization of 
this court's time, resources and personnel to determine the facts, as well 
as the legal issues of this motion indicate that the conduct exhibited by 
petitioner's counsel was frivolous and the petitioner's motion to quash was 
frivolous as well."  Marshall Estates v. Ahrens, New York Law Journal, Aug. 
11, 1999, p. 23, col. 5, Civ.Ct., Housing Pt., N.Y. Co., Spears, J.

-------------------------
Scott E. Mollen is a partner at Graubard Mollen & Miller, a member of the 
Mayor's Advisory Committee on the Judiciary and an adjunct professor at St. 
John's University School of Law.

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Date: Thu, 16 Sep 1999 13:27:22 -0400
Subject: Tenants Online 9/16/99

Tenants Online                                            9/16/99
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In this issue...

1. Informant being shown the door (Voice)
2. A Likable Landlord? Yes! (News)

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The User Who Got Used
Village Voice, September 1, 1999
by j.a. lobbia

A bird on the hand: Tony Merritt, who also goes by code name Tony Baretta, 
says his work as a confidential informant requires him to keep a low 
profile. (photo: Michael Schmelling)

For years, Tony Merritt Did the Dirty Work for Cops and Landlords, Helping 
Them Bust and Evict Drug Dealers. So Why Is the Times Square Hotel, His 
Latest Home, Showing Him the Door?

When the Kenmore Hotel on 23rd Street reopened on May 4, politicians 
flocked to the ceremony, anxious to be associated with a project that had 
reincarnated the building from a murderous drug den into 326 units of 
affordable housing. In a famous 1994 raid, U.S. Marshals had seized the 
roiling crack house and turned it over to a nonprofit agency. Now, five 
years and more than $40 million later, the decrepit old Kenmore Hotel was 
making its debut as the spiffy new Kenmore Hall. But amid the speeches and 
gushes of awe at the Kenmore's reinvention, no one seemed to notice that a 
certain middle-aged man who had played a role in the hotel's transformation 
wasn't there. That's because Tony Merritt, once an insider at the Kenmore, 
was unwelcome.

 From 1991 to 1998, the 57-year-old Merritt not only lived at the Kenmore 
as a tenant; he was a confidential informant (CI) for the New York Police 
Department, fingering drug dealers who plied their trade in the Kenmore's 
shoddy hallways and cubbyhole rooms. Merritt, who had learned the ins and 
outs of the drug trade from his own seven-year crack addiction, says he 
helped cops make hundreds of arrests, many of which led to evictions of 
drug dealers at the single-room occupancy (SRO) hotel.

But by August 1998, Merritt himself was embroiled in controversy at the 
Kenmore. Merritt's landlord was suing him for back rent totaling $2150. And 
fellow tenants had sued him, alleging Merritt had subverted their efforts 
to start a tenant group, though a judge would later rule that Merritt had 
"violated no rights of the plaintiffs."

Then Merritt caught a lucky break. Just as the Kenmore was being 
rehabilitated, drug problems emerged at another SRO, the Times Square on 
West 43rd Street, and Merritt's CI status landed him a room there. The 
Times Square, a former welfare hotel that had also been "rescued" by a 
nonprofit agency called Common Ground Community, turned to the NYPD for 
help. Pleased with Merritt's work at the Kenmore, cops recruited him to be 
the in-house snitch at the Times Square. Under Merritt's tenure, 49 drug 
arrests were made and several evictions followed.

Now, a year later, Merritt is being evicted from the Times Square. On 
August 10, housing court judge Bruce Kramer ordered him out by September 
10. Common Ground executive director Rosanne Haggerty says Merritt must 
leave because he was never a tenant, only a "licensee" in a police 
investigation that has reached its conclusion. Merritt argues that Common 
Ground is dumping him because he did his job too well, finding the much 
heralded Times Square far more infested with drugs than Haggerty cares to 
admit. And he charges that the nonprofit, known in housing circles for its 
political steam, reached out to the NYPD to cut the investigation short, 
fearing that too many drug arrests would jeopardize Common Ground's cachet. 
The investigation ended in late March.

Haggerty is out of the country and was unavailable for comment, but she did 
testify in detail about Merritt's allegations during his housing court 
trial. There, she admitted that she told the police captain in charge of 
the investigation that she wanted it ended. But she denied any 
inappropriate intervention, saying police stopped the operation because the 
drug problem had been dealt with.

Police sources close to the investigation refused to discuss it on the 
record. But tenants say drugs remain a problem at the Times Square, and 
since May— two months after the investigation ended— five drug arrests have 
been made there, says Deputy Inspector Denis McCarthy, borough commander of 
Manhattan South Narcotics. "We're monitoring the location, and it's not 
like we're going to stop an investigation because somebody feels there's 
too many people being arrested," says McCarthy, who was not involved in the 
effort. "That's not the way we work."

Merritt's case, with his accusations of criminal behavior and coverup, 
rivals the most acrimonious landlord-tenant dispute. Drawn years ago from 
the hills of his boyhood home in the South to New York City, Tony Merritt 
is at once an insider wise to the ways of crack dealers and cops, and an 
outsider whose very speech— marked by a genteel drawl than has not worn 
away after 17 years in the city— gives him away. Merritt is on the way out, 
and he knows it.

"I've opened up many doors, usually by having them kicked in, your honor," 
Merritt quipped during his housing court case before Kramer. "In this case, 
I may get the door. I know I'm washed up." But hours later, pondering 
Kramer's decision to let him stay at the Times Square until September, 
Merritt credited his role as an insider. "I think the judge gave me some 
professional courtesy," mused Merritt. "He realized we're both kind of in 
the same line of work— law enforcement. I'm just on the low end of the 
totem pole."

Merritt may indeed live on a rung that most people would consider lowly— 
out of work and short on money, he rarely eats but is reluctant to accept 
handouts. He walks everywhere because he can't pay subway fare. He 
represents himself in court, and submits handwritten legal papers. But he's 
smart enough to quote from Abraham Lincoln and to win an extra month's 
tenancy from a landlord who wants him gone yesterday. A user who was used 
first by law enforcement authorities and then by a well-regarded social 
service agency, Merritt is now trying to bring his own sense of justice to 
the fore— a justice he admits is partly rooted in vengeance.

"I don't consider myself a snitch or something; I do it because I was 
betrayed," says Merritt, reflecting broadly on his career as a confidential 
informant. He says he first became a CI at the Kenmore to avenge dealers 
who had hooked him. He was happy to continue the work at the Times Square, 
but feels cheated out of an offer he claims Common Ground made to him to 
become a paying tenant when the investigation ended; Haggerty says no such 
deal was made. Now, Merritt says, he's whistle-blowing on Common Ground.

Is Merritt telling the truth? Of the half dozen law enforcement types who 
have worked with him, from high-ranking federal agents and prosecutors to 
NYPD cops and detectives, one calls him "a habitual liar" who is "very 
manipulative." But others describe Merritt as "decent and trustworthy," 
call his work "helpful," and say his information is "super reliable. On a 
scale of one to 10, I'd give Tony a 12."

When Merritt arrived in New York City on a bus in 1982, he wasn't looking 
for a gig as a police informant. With a high school degree, two years of 
business school, and no wife or children, Merritt says he ditched his job 
as a real estate manager in his home state, which he asked not be disclosed 
to protect family members. "Being raised in the mountains, it was always my 
dream to come to the big city with the bright lights," says Merritt. "Even 
the stuff you saw on TV: the millions of people, the gang lifestyle. . . . "

Merritt quickly became entrenched in the city's underbelly. He says he quit 
a job as a Harlem property manager when a landlord asked him to torch 
squatter-occupied buildings. Merritt moved on to real estate management in 
the South Bronx. As he tells it, his life changed on one spring night on 
Friday the 13th— he doesn't remember which year— when he went out for 
cigarettes. "Fifteen kids jumped me at the front door of Bronx-Lebanon 
hospital and stabbed me in the back of the head and through my heart," says 
Merritt. "They broke my jaw with a brick. I almost died."

After a long surgery and a hospital stay, Merritt says he feared returning 
to his South Bronx apartment. He took the subway to Manhattan, and ended up 
living in Madison Square Park for a year. In excruciating pain from the 
stabbing, Merritt says he found relief in the local analgesic of choice, 
crack.

"The doctors wanted to give me Demerol, but I remembered it was supposed to 
be highly addictive," Merritt says, recalling a lesson he says he learned 
in his job as a "postmortem technician" who assisted in autopsies as part 
of government research on aortas; Merritt says his task was to remove 
hearts from dead children. "I didn't want to be addicted, but the pain was 
so bad and a friend said, 'Tony, if you smoke this you won't feel pain. 
Take a hit.' Well, I just kept on hitting."

Merritt eventually got a room at the Kenmore in 1987 by offering to be a 
security guard for then owner Tran Dinh Truong, from whom the feds 
eventually seized the property. "The Kenmore was a crack haven then, and at 
first, I enjoyed that," says Merritt, who says he sobered up in fits and 
starts. "But when I got off it, I got extremely angry with the dealers and 
all their cars and gold that I'd probably paid for with my habit."

By 1991, the crack-wracked Kenmore was the focus of city and federal 
narcotics agents, and Merritt offered them his services as an insider. He 
eventually became an official confidential informer for the NYPD, although 
he was using drugs for some of that time. Public documents show Merritt's 
last drug case was in February 1997, when he was arrested for possession of 
crack that cops say Merritt spit out of his mouth as they approached him 
one afternoon on a downtown avenue. The charges were reduced to disorderly 
conduct, perhaps because of his cooperation with the police. Says one 
source familiar with the Kenmore at the time, "It seemed to me like Tony 
never got locked up when he should have."

Merritt calls himself a confidential police operative and takes the job 
seriously. He has two code names: Tony Baretta, based on his love of birds, 
and Tony Rico, based on the law cited by a Kenmore tenant who sued Merritt 
and a host of government officials. He says he painstakingly follows police 
protocol, which requires him to observe drugs in a person's possession at 
least twice within five days, and to report that to police within three 
days of the last sighting. He even made his own forms to make it easier for 
detectives to get warrants. He is paid for his work— the rate is determined 
by the amount of drugs recovered in a bust— but says he doesn't do it for 
the money. In his seven-month stint at the Times Square, Merritt says he 
made about $850.

"I could collect cans and bottles and make more money, your honor," he told 
Kramer. "But my life has been dedicated to trying to get rid of drug 
dealers because of what happened to me. . . . I've had more than 700 people 
arrested. I'm very good at what I do."

When Common Ground took over the Times Square in 1990, the hotel was 
crime-ridden. The nonprofit ultimately won millions of government dollars 
(and mountains of glowing press reviews) for turning the hotel into a much 
lauded "social experiment" in housing tenants troubled by substance abuse, 
mental illness, and homelessness. The effort had made Haggerty and her 
652-room hotel media darlings and powerful figures in the world of 
nonprofit social-service agencies, a cosmos that has burgeoned as welfare 
has become a private rather than government endeavor.

But in about 1996, Haggerty sensed trouble, according to testimony she gave 
in Merritt's housing court case where Merritt, working as his own attorney, 
questioned her on the stand. About two years before Merritt was brought in, 
Haggerty said, drug trafficking began to percolate; she said two tenants 
were key. Haggerty enlisted the NYPD, and in 1997, undercover cops came in 
"to see if they could be successful," Haggerty said. "But they kind of 
looked like undercover cops, so they weren't." That's when police suggested 
a scheme to bring Merritt to the Times Square as a "tenant" working as 
their informer.

On August 8, 1998, Merritt was set up in room 440 of the Times Square. On 
September 10, cops raided the SRO and arrested seven people. On September 
24, another raid yielded six crack arrests. A story in The New York Times, 
which is the hotel's neighbor a few doors east and a loyal fan of Common 
Ground, reported the arrests as part of an ongoing effort to rid the 
building of drugs. Haggerty told the Times the raid was sending a message 
of "zero-tolerance" for drug dealing.

The raids continued, and in all, police say 49 arrests were made when the 
investigation ended in late March— well before the job was complete, 
Merritt says. "The problem is, I did my job too well, and they were worried 
because I have names of 53 other people who should be arrested for drugs," 
he says.

Haggerty testified that she did call Captain Kenneth Kelleher of the 
Manhattan South Narcotics unit to tell him that she wanted the 
investigation stopped. (Kelleher declined to comment for this story.) 
Merritt asked if she also called a contact in the D.A.'s office. "No," 
testified Haggerty. "It was not his investigation. It was the police, so 
the police were the ones we had to deal with on the termination of the 
investigation."

Merritt took Haggerty's response as an admission of interference, sending 
him offtrack. He lost his line of questioning, and when he resumed, 
Haggerty refined her answers, saying she had only sought Kelleher's 
"advice" about the investigation's progress and about "when we thought we 
could safely terminate the investigation. . . . It had everyone there [at 
the hotel] on pins and needles," she said, adding that the investigation, 
while necessary, "had a traumatic downside." But she repeatedly denied that 
she feared uncovering a widespread drug problem that could jeopardize 
Common Ground. Kramer dismissed Merritt's allegation regarding interference 
with the investigation as irrelevant to his housing case.

Haggerty told Kramer that Merritt's complaints began only when he was asked 
to move out after the investigation ended. "This is someone who has spent 
the last three months tormenting me and our staff," she told Kramer. "It is 
a very sad and troubling situation."

For his part, Kramer said he was disturbed by three flyers distributed at 
the Times Square, two of which called Haggerty a drug lord. "This is pretty 
wild stuff," Kramer admonished Merritt, who agreed, but said he was not the 
author of the flyers. Shortly thereafter, in what was fast becoming a 
bizzare housing court proceeding, Merritt raised his shirt to show Kramer 
the road map of scars on his chest caused by the Bronx beating. He had been 
arguing that he needed more time at the Times Square because he requires 
surgery for a bone infection in his jaw. Haggerty said she's already given 
Merritt extensions and that he had failed to prove he needs medical attention.

Merritt did not take the stand in the case. Kramer ruled that Common Ground 
was in fact right: Merritt was never a tenant and had no right to stay. 
"For whatever reason, this investigation was called off in March of 1999," 
Kramer said. "They asked you to vacate and you did not do that. Quite 
frankly, I understand why you did not do that because I suspect in reality 
... you had no where else to go."

Kramer postponed Merritt's eviction until September 10. And he called the 
Times Square's forbidding Merritt to have visitors "heinous." (Merritt says 
a relative who came to visit was not allowed in his room.)

"Desperate people do desperate things," Kramer summed up. "Here's a person 
who now says he has nowhere to go and could potentially be homeless. He did 
serve a very useful purpose. He put himself in harm's way. I'm not 
defending what he did afterward. . . . I'm just suggesting that you treat 
Mr. Merritt with respect."

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A Likable Landlord? Yes!
Harlem owner praised
By RALPH R. ORTEGA
Daily News, September 14, 1999

Kenneth Friedman is developing a reputation as New York's tenant-friendly 
landlord. A tenant-friendly landlord?

Sylvia Alston of Harlem knows they are often hard to find, but she didn't 
have to look far.

Take the green awning, engraved entrance mat and lobby mirrors at her 
apartment building, the impeccably clean Belvedere Apartments on 150th St. 
in Sugar Hill.

There are flowers, framed pictures and wallpaper in the hallways, with 
plants growing outside. The Belvedere also has a furnished community room 
in the basement and a garden in the backyard.

Such amenities are rare in the Belvedere's working-class neighborhood. 
Alston credits Friedman, the building's owner, for putting up the money 
that made most of the improvements possible.

He also has paid for community Halloween, Christmas and Labor Day parties 
seven years in a row.

Alston has a handful of proclamations signed by local officials and area 
legislators honoring Friedman for his contributions to the building and the 
neighborhood. She said she hopes to present them to him at City Hall in the 
near future.

"He's just a kind person in his own right," said Alston, a 65-plus retired 
nurse.

She noted that there are other buildings with good landlords, "but I don't 
think they go to the same lengths Friedman does."

He is in good standing with the city's Department of Housing Preservation 
and Development, officials said, and is highly regarded throughout the 
neighborhood as a landlord with a lot of heart.

"Friedman ... has made contributions," said Vicky Gholson, founder of 
Designed Environment for Experimental Learning, a nonprofit organization 
addressing local community problems.

Gholson was so impressed by Friedman that she included him among the 
honorees at her organization's annual "Heroes and Sheroes" celebration Sept. 5.

The event, at the Senior's Sculpture Garden Park on W. 153rd St., singles 
out people for upholding the neighborhood's quality of life.

Friedman believes providing for tenants' needs comes naturally in the 
business started by his father, Alfred, in 1947.

"It's just the way I was brought up," said Kenneth Friedman, who owns about 
40 buildings in Manhattan and 25 in the Bronx.

However, he believes that Alston, the Belvedere's self-proclaimed building 
manager, deserves more praise than he does.

"The truth of the matter is she turned that building into something 
special," Friedman said.

Alston began adding her own special touches to the Belvedere after moving 
in about 15 years ago.

She raided local thrift shops to decorate the hallways, painted the 
elevator and was quick to pick up trash whenever it crossed her path.

Alston's enthusiasm caught on with other tenants,which motivated Friedman 
to step up his support for the Belvedere.

"When you see tenants appreciate something, you just want to do more for 
them," he said.

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Date: Sun, 26 Sep 1999 00:40:21 -0400
Subject: Tenants Online 9/25/99

Tenants Online                                            9/25/99
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In this issue...

1. A Tenant's Home Is His Landlord's Castle (Voice)
2. Odds Worsen in Hunt for Low-Income Rentals (Times)
3. Tenant Can Challenge Apt. Deregulation (Law Journal)
4. Recent LL/T Decisions of Interest (Law Journal)

THIS WEEK in NYC Housing Court Decisions:
Daughter is entitled to succession rights despite the fact that 
tenant-mother legally sublet premises for the two-year period immediately 
prior to mother's permanent vacatur of apartment. Brusco v. Rivera.
http://tenant.net/Court/Hcourt/current.html

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A TENANT'S HOME IS HIS LANDLORD'S CASTLE
Village Voice, September 28, 1999
by j.a. lobbia

New Book Reviews The Origins of New York City's Famous Landlord-Tenant 
Trouble

"It is not a business to attract men of good feelings..." So wrote 
journalist David Blaustein in 1904, when he set out to describe New York 
City landlords of his day. Blaustein's attention was drawn to what he 
called 'cockroach landlords,' small businessmen who leased entire buildings 
from owners in return for the right to collect rents— a pyramid scheme of 
sorts. Blaustein concluded that 'the tenant at the bottom of the heap pays 
for it all.' The 'cockroach' 'scheme is long gone, and while Blaustein's 
severe indictment is 95 years old, his conclusion arguably holds true 
today. Blaustein's is one of many views presented in a just-published book 
on the history of New York City landlords, Urban Castles: Tenement Housing 
and Landlord Activism in New York City, 1890­1943, written by Jared N. Day 
and published by Columbia University Press. Although Day's research ends in 
a period five decades past, he explores underpinnings that still shape the 
deeply ingrained and famously cantankerous landlord-tenant relationships of 
today. Day chronicles the origins of major events like the passage of rent 
regulations, as well as minor but lasting changes like the initiation of 
once scandalous but now commonplace security deposits.

The most outstanding persistent trait of New York City housing— its 
scarcity— was already a problem well over a century ago. In 1850, a 
bursting immigrant population forced tenants into subdivided homes, 
flood-prone cellars, and cheaply constructed houses "so tightly built," in 
the words of Mayor Philip Hone, "that they could not stand alone, and, like 
drunken men, require the support of each other to keep from falling." 
Landlord-tenant laws were skimpy at best, essentially obliging landlords 
only to provide a unit, while tenants were required to pay rent regardless 
of conditions.

Buildings were largely unregulated, and landlords had many ways to cheap 
out and cheat safety. Fire escapes were brought to legally required 
thicknesses with a coating of "black wash," loam dug up from cellars was 
used in place of mortar, and buildings were erected with retaining walls 
one brick thick, coated with plaster. Collapses were common.

Even after the turn of the century, owners used "three-months paint," a 
chintzy wall coating that turned dangerously flammable within months. In 
1911 McClure's Magazine warned, "Let a lamp or a candle near enough to it 
while it is still damp, and fire would go around the room or down the 
tenement hall as fast as a man could run."

Housing reforms, usually undertaken by crusading middle-class New Yorkers 
who aimed to "rescue" tenement dwellers, were endlessly proffered. But 
landlords could rely on government ineptitude or corruption to ensure that 
the strictest plans never made it into law, or if they did, that they were 
not enforced. Landlords kept the upper hand until 1901, when the Tenement 
House Act set fire, light, and health standards that threatened owners 
seriously enough to spur them into political coalitions. The main citywide 
group was the Greater New York Taxpayers Association (GNYTA).

As the 1901 provision became law, tenants began to organize, relying on 
their own numbers rather than the "goodwill" of outsiders to prompt change. 
Rent strikes erupted randomly. But tenants often ended up evicted— the law 
favored landlords— and the strikes fizzled. By the teens, however, tenants 
had won more legal rights and landlords had been given more responsibility. 
Rent strikes, often organized by Socialists, became more regular and 
far-reaching.

By the winter of 1917­1918, wartime coal rationing combined with unusually 
cold conditions brought tenants— including middle-class, politically 
mainstream rent-payers— out on strike. Landlords moved for evictions, 
arguing that leases did not require them to provide heat. But in many 
cases, judges sided with tenants. To this day, lack of heat remains a key 
tenant organizing tool since, as a building-wide problem, it draws 
neighbors into a collective effort. Heatless apartments have given rise to 
a current tenant motto, a twist on a radical labor saying: Don't freeze, 
organize.

One of the most strident tenant communities evolved in Brooklyn's 
Brownsville, where tenants organized entire blocks into strikes, protesting 
not only lack of heat but multiple rent hikes. GNYTA hired thugs to break 
up picket lines, and violence was not uncommon. GNYTA also retained private 
detectives to harass strikers. Although GNYTA would later disavow violence 
because of the bad name it gave landlords, other owners' groups spun their 
battle as a patriotic effort, calling tenant unrest "a direct result of 
Bolshevist agitation."

The Red Scare of the 1920s did indeed deflate some of the tenant movement, 
but middle-class renters sustained it, though in a less radical manner. 
Landlords and tenants alike suffered during the Depression, which spelled 
the end of the immigrant amateur landlord (including the "cockroach" 
variety) and ushered in a more professional class of real estate operators. 
During World War II, rent controls were established nationally. They never 
expired in New York City, where a preposterously tight market has made for 
a housing emergency (defined as a vacancy rate below 5 percent), a 
designation that has not been lifted.

For all the transformations of landlord-tenant relations outlined in Urban 
Castles, fundamentals remain that keep the balance skewed against tenants. 
The demand for housing outweighs the supply. Landlords choose real estate 
because they believe it offers a better return than other investments. As 
long as this essential commodity remains in short supply and in private 
hands, it is not likely to generate good feelings among either renters or 
their landlords.

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ODDS WORSEN IN HUNT FOR LOW-INCOME RENTALS
New York Times, September 24, 1999
by DAVID STOUT

WASHINGTON -- In a sad side-effect of the robust economy, more people with 
low incomes are struggling to find rental housing that they can afford, the 
Department of Housing and Urban Development said on Thursday.

 From 1995 to 1997, the number of "struggling renter households" increased 
by 3 percent, to almost 8.9 million from about 8.6 million, the department 
said. A struggling household was defined as one whose income was at or 
below 30 percent of the median income for its region.

Meanwhile, the supply of affordable rental units for such households has 
declined. Using the latest figures available, the department said 
affordable rental units decreased by about 5 percent, for a drop of 372,000 
units, from 1991 to 1997.

"The sad truth is that more and more people working at low-wage jobs, as 
well as older Americans living on fixed incomes, are being priced out of 
the housing market as rents rise," Housing Secretary Andrew M. Cuomo said. 
"We felt that the rental situation was getting worse. These numbers 
document that in a painful way."

The secretary said rents had been rising for several years as landlords 
charged what they thought the market would bear in times of prosperity. In 
1997 and 1998, rents rose twice as face as general inflation, Cuomo said. 
The rent-rate increase was 3.1 percent nationwide in 1997, compared with a 
1.6 percent rise in the Consumer Price Index; in 1998, the respective 
figures were 3.4 percent and 1.7 percent.

Cuomo said the report was based primarily on data from the Census Bureau's 
latest survey of American housing trends. He said the release was not timed 
for political reasons, though he seized upon the report as supporting the 
need for the 100,000 new rental-assistance vouchers called for in President 
Clinton's budget for the fiscal year that begins next week.

The government estimates the nationwide median family income at $47,900: 
that is, half of American families have incomes over that figure, and half 
under. In or near big cities with high housing costs, incomes tend to be 
higher, and therefore the gap between "struggling households" and people 
with enough money to live comfortably is wider.

In New York City, the "struggling household" ceiling for a family of four 
is $16,000, the report said, meaning that $16,000 is about 30 percent of 
the median income for a New York family of four.

The department said about 116,000 people are on waiting lists to live in 
public housing in New York City, and about 203,000 are on lists to get 
rental-assistance vouchers. The wait for each category is about eight 
years, the department said.

The department said that it could not immediately determine how much the 
New York waiting lists had increased in the last two years, but that a 
nationwide survey of 40 big-city housing authorities showed waiting-list 
increases of 10 percent to 25 percent over that time.

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TENANT CAN CHALLENGE APT. DEREGULATION
New York Law Journal, September 17, 1999
BY CERISSE ANDERSON

A TENANT whose apartment was deregulated after she allegedly failed to 
provide proof that her income was below a legal threshold for rent 
stabilization should get another chance to show that the deregulation was 
in error, a state appellate court ruled yesterday.

The Appellate Division, First Department, said that the tenant's diligence 
in responding to past requests for income information should be considered 
as support for her argument that she did not respond to DHCR because she 
never received a request to verify her income.

The First Department, in In re Futterman v. NYS Division of Housing and 
Community Renewal (DHCR), ordered Pamela Futterman's challenge to the 
deregulation of her apartment at 135 Central Park West be returned to the 
Supreme Court for a hearing to determine whether she ever received a 
request for verification of income from the DHCR.

The four-judge panel noted with disapproval that the 1995 legislation 
providing for decontrol of luxury apartments was "to deregulate apartments 
of tenants earning in excess of $250,000, rather than to deregulate 
apartments because of a failure to respond to requests for information by 
the DHCR under circumstances such as those present in this case."

Under the provisions of New York City's Administrative Code §26-504, a 
landlord may apply to deregulate an apartment renting for $2,000 or more a 
month and whose tenants have a total annual income greater than $250,000 
for each of the two preceding calendar years.

Ms. Futterman's landlord in 1994 served her with an Income Certification 
Form which she promptly returned. It disputed her claim that she earned 
less than $250,000 and petitioned the DHCR to verify her income. The agency 
requested that Ms. Futterman verify her income, which she did, and the DHCR 
denied the petition, finding her income was below the $250,000 threshold.

The landlord served Ms. Futterman with another income form the following 
year which she completed, and again it petitioned the DHCR to verify her 
income. The DHCR said it mailed her a request for verification of income 
which she did not return, and therefore the agency deregulated the apartment.

The agency said the tenant's petition for review was denied because she had 
failed to rebut the presumption that the request for income verification 
had been received, since it had been properly mailed.

"[I]t is true that the mere denial of receipt of a letter that is shown to 
have been properly mailed does not overcome the presumption of delivery," 
the appellate panel said in its unsigned memorandum. "Tenant's denial of 
receipt in this case is, however, buttressed by convincing supporting 
circumstances."

Prior Cooperation

Given the fact that the tenant had timely responded to the landlord's 
requests for income information in 1994, 1995 and again in 1996, during the 
pendancy of this proceeding, the judges said it was apparent that Ms. 
Futterman recognized the importance of responding to the various notices.

"Juxtaposing (a) tenant's denial of receipt of the DHCR's request for 
income verification information, (b) tenant's course of diligent conduct, 
and (c) the incomprehensibility of knowingly failing to respond to DHCR's 
request with the drastic consequences that flow from such a failure, it is 
apparent that tenant has overcome the presumption of delivery and has 
created an issue of fact necessitating a hearing," the First Department said.

The court further noted that "this proceeding seems to emanate from a 
wholesale repetitive attempt by landlord to deregulate apartments at the 
subject building. It would appear in this situation that the effort is 
being made regardless of whether there is any reason to believe tenant 
meets the regulatory threshold. Landlord, in making such an effort, is 
acting in a manner inconsistent with statutory aims."

In her petition for review of the deregulation of her apartment, Ms. 
Futterman had attached copies of her income tax return showing that she 
earned less than one-third of the regulatory threshold, the decision said.

Presiding Justice Betty Weinberg Ellerin and Justices Peter Tom, Richard W. 
Wallach and David Friedman formed the appellate panel.

Ms. Futterman was represented by Mitchell P. Heaney. Roderick J. Walters 
appeared for the DHCR, and Jeffrey R. Metz, of Borah, Goldstein, Altschuler 
& Schwartz, was counsel for the landlord.

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RECENT DECISIONS OF INTEREST
New York Law Journal

LANDLORD/TENANT
Dismissal Is Not Warranted by Failure To Plead Out-of-City Status, Registration

IN A NONPAYMENT proceeding, one issue was whether a landlord of a 
non-multiple dwelling located within New York City, who resides outside the 
city, must plead that fact in the petition. Landlords who live out of the 
city must designate, in a registration statement, a city resident to serve 
as "managing agent" for the premises. Here, as landlord did not plead the 
registration statement, tenants moved to dismiss. The court ruled that to 
add a procedural requirementû not currently part of a statute or rule, to 
be pleaded in the petition as a prerequisite to having the matter heard, 
would violate Due Process. However, this did not mean that landlord, as 
part of his prima facie case, was excused from proving compliance with the 
Administrative Code. Although dismissal was not required and there was no 
other "penalty," landlord must prove its filing. Brocato v. Guisto, 
Richmond Civil Court, Judge Straniere.

LANDLORD/TENANT
Amended Answer Is Allowed for Tenant To Assert Spiegel Law, Rent Overcharge

IN A NONPAYMENT proceeding, tenant who received public assistance and a 
shelter allowance was at first pro se. She complained of intolerable 
conditions in her apartment; the Department of Housing Preservation and 
Development had found violations. After tenant obtained counsel, counsel 
sought to submit a late amended answer and counterclaims to assert a 
Spiegel Law defense for the poor conditions and a rent overcharge claim. 
The court allowed tenant to file an amended answer. It said that a rent 
overcharge claim was not untimely, noting that an overcharge is to be 
calculated from the rent that was registered four years before the most 
recent registration, not from the date the lease was signed. It denied 
tenant's motion for summary judgment because there were unresolved issues 
of fact, one being whether landlord repaired all the violations, as 
claimed. First Time Realty Co. v. Payton, Kings, Civil Court, Housing Part 
18A, Judge Sikowitz.

LANDLORD/TENANT
Tenants' Agreement to Give Up Possession Is Not Vacated for Lack of Counsel

RESPONDENT LONGTIME residents of a rent-stabilized apartment sought to 
vacate a settlement agreement, negotiated in December 1998, which gave 
possession of the apartment back to petitioner landlord. The underlying 
proceeding had alleged nonpayment of rent, with arrears of $15,407. In the 
agreement, tenants would surrender the apartment and landlord would waive 
arrears and pay the tenants $10,000 and moving expenses. Tenants now argued 
that they improvidently entered the agreement while unrepresented by 
counsel and that the husband-tenant did not have the authority to bind the 
wife-tenant. The court refused to vacate the agreement, saying that the 
mere fact of acting without benefit of counsel was insufficient grounds to 
establish good cause for vacatur. Also, there had been a valid power of 
attorney for the husband to act for the wife. Rainbow Construction Co. v. 
Leibowitz, Bronx, Civil Court, Housing Part 18K, Judge Roman.

LANDLORD/TENANT
Lease Provision Citing Real Property Law §235 Is Interpreted to Permit 
Multiple Roommates

LANDLORD COMMENCED this holdover proceeding following respondent's 
admission, in a prior nonpayment proceeding, that he shared the premises 
with three roommates. Landlord alleged that this violated a provision of 
the lease. The lease stated that the apartment could be occupied by the 
tenant, his immediate family and "occupants" as defined "in accordance 
with" Real Property Law §235-f. The court said that, while §235-f allows a 
lease to limit roommates to one, the statute did not contain any 
prohibition or presumption against more than one. The court ruled that 
therefore the standard lease provision at issue permitted more than one 
roommate. It said that, particularly as the lease provided for "occupants," 
rather than "an occupant" or "one occupant," the provision must be 
interpreted to permit more than one occupant. Roxborough Apts. Corp. v. 
Becker, New York, Civil Court, Part Y, Judge Billings.

LANDLORD/TENANT
Lease Amendment Reducing Tenant's Rent Is Found to Upset Prior Stipulations 
on Arrears

A NONPAYMENT proceeding was commenced by landlord in 1998. Several 
stipulations followed in which tenant agreed that she owed rent of $1,437 
monthly, the market rent. Landlord was now trying to evict tenant, who had 
not paid all alleged arrears. Tenant moved to vacate an eviction warrant 
and set aside a judgment of July 29 because she had been paying her rent. 
She presented a lease amendment that had been signed by herself and 
landlord's manager in June, after tenant had provided all recertification 
documents needed to adjust the rent. The amendment identified tenant's rent 
as $124 monthly, effective back to Feb. 1. The court found that the arrears 
stated as the basis for evicting the tenant were completely erroneous. It 
rejected a proposed stipulation of Aug. 9, vacated the warrant and deemed 
the judgment satisfied. Fulton Park Associates v. Walker, Kings, Civil 
Court, Housing Part H, Judge Callender.

LANDLORD/TENANT
Breach of Stipulation by Elderly Pro Se Tenant Does Not Result in Judgment 
of Possession

IN A HOLDOVER proceeding based on nuisance, the parties had entered a 
stipulation in 1998 in which the 73-year-old then-pro se tenant agreed not 
to curse, annoy, harass or strike other tenants. About a month later, 
landlord exercised his right to restore the proceeding for a hearing on a 
claimed breach and to seek eviction. Although there were issues on whether 
the stipulation should be enforced, the court said it was binding and 
enforceable unless the judge who ordered it vacated it. To prove a breach, 
the court allowed landlord to rely on evidence of conduct more recent than 
the conduct alleged in the motion. Petitioner proved a breach of the 
stipulation since its effective date, but the court held that, rather than 
this resulting directly in a judgment of possession, a trial was to be held 
on the original allegations of nuisance. Olshan v. Mandas, New York, Civil 
Court, Part 15, Judge Billings.

LANDLORD/TENANT
Illegal Sublet Proceeding Is Dismissed; Notice to Cure Did Not Cite Lease 
Provision

IN THIS HOLDOVER proceeding based on an alleged illegal sublet, petitioner 
landlord sought to recover possession of the premises. Respondents moved 
for summary judgment dismissing the proceeding, arguing that the notice to 
cure and notice of termination did not set forth the particular paragraphs 
of the lease that were allegedly violated and that formed the basis of the 
proceeding. Although the lease had a provision specifically prohibiting 
assignment or sublet without the landlord's prior written consent, the 
notice to cure did not refer to the particular lease provision. The court 
granted summary judgment to respondents, ruling that the notice was 
insufficient to give the landlord grounds to terminate the tenancy. It also 
noted that Real Property Law §226-b, cited in the notice to cure, does not 
create a separate cause of action for the landlord. Stanford Leasing Corp. 
v. Stewart, Kings, Civil Court, Part G, Judge Wendt.

-----------------------------------------------------------------
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Date: Tue, 28 Sep 1999 01:42:39 -0400
Subject: Tenants Online 9/28/99

Tenants Online                                            9/28/99
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To unsubscribe, see the bottom of this newsletter
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In this issue...

1. HPD Wants to Know -- if you've been harassed
    (unlike DHCR, HPD still pretends it likes tenants)
2. Greens, WFP Challenge Lead-Sellout Councilmember
3. Special Election Needs your Support
4. Landlord's Right to Evict (Law Journal)

HOUSING NOTEBOOK ON THE WEB
Met Council's "Housing Notebook" (broadcast on WBAI-FM on Mondays at 7 
p.m.) is now available over the Internet. Go to www.wbaifree.org and follow 
the link to the live Webcast of WBAI-FM. You will need RealPlayer (free 
from www.real.com/products/player/downloadrealplayer.html

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REMEMBER WHEN THE SUPER PUSHED YOU DOWN THE STAIRS?

The Department of Housing Preservation and Development (HPD) is seeking 
comments from anyone on whether harassment has occurred at the following 
addresses:

318-322 West 51st Street
324-328 West 51st Street
344 West 46th Street

In order to legally convert a SRO residential hotel (citywide) or to 
perform alterations or demolitions in the Clinton Special District, an 
owner/developer must obtain a "Certificate of No Harassment" from HPD. 
Harassment can take many forms: threats, use of physical force, deprivation 
of essential services such at heat, water, gas or electric, unlawful 
eviction and relocation practices or other conduct intended to cause 
persons to vacate the premises or waive rights related to their occupancy.

Written or oral comments as to whether harassment occurred at the premises 
should be submitted to the Anti-Harassment Unit, 100 Gold Street, New York, 
NY 10038 Attention: Flora Simmons by October 22. To schedule an appointment 
for an in-person statement call (212) 863-8266.

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GREENS, WFP CHALLENGE LEAD-SELLOUT COUNCILMEMBER
Met Council Tenant/Inquilino, September, 1999
by Kenny Schaeffer

In 1998 voters in New York State guaranteed ballot status to two new 
political parties, the Green Party and the Working Families Party, by 
giving each of them more than 50,000 votes in the gubernatorial election 
against George Pataki. Tenants in New York City are beginning to realize 
that by only considering candidates from the Democratic Party, we lose the 
ability to hold our representatives accountable when they succumb to the 
corrupting influence of campaign contributions from the real-estate industry.

The 48th City Council district in Brooklyn (stretching from Flatbush to 
Manhattan Beach) is a case in point. In 1997, the district’s former 
Councilmember, Democrat Anthony Weiner, solicited real-estate contributions 
by promoting a landlord “self-certification” bill, which would have 
required the city to erase housing-code violations whenever an owner 
claimed to have corrected one. Fierce pressure from Weiner’s constituents 
and tenants around the city forced the withdrawal of this bill.

In 1999, Councilmember Mike Nelson, who won Weiner’s Council seat in a 
special election after he was elected to Congress, supported the 
real-estate industry and Mayor Rudolph Giuliani in gutting the laws that 
protect babies and toddlers from lead-paint poisoning. In New York City, 
30,000 children already suffer from lead poisoning, caused by exposure to 
lead dust and lead paint in homes and schools. It can cause permanent brain 
damage, learning disabilities, violent behavior, seizures, or death.

Mike Nelson gave lip service to these concerns, yet he voted against the 
interests of children and for the real-estate industry when he supported 
this law.

Now he has the gall to hand out campaign literature taking credit for 
making it a wonderful bill [see Nelson campaign flyer on page 8]. But don’t 
kid yourself. It is not a wonderful bill. The new law (Local Law 38) was 
unanimously condemned by doctors and public-health experts, because it does 
not protect children against lead dust, by excluding friction areas like 
windows and doors from coverage; it allows owners to self-certify 
lead-removal work; and it makes it almost impossible for the families of 
children who suffer from lead poisoning to win lawsuits against negligent 
landlords.

Next March, the Council will vote on the laws that protect the homes of 
1,000,000 rent-stabilized households in New York City. These rent 
regulations must be renewed by March 31. The real-estate industry, which 
inflicted grievous damage on the rent-regulatory system between 1993 and 
1997, will be out for blood.

That makes this year’s election—in which Mike Nelson is running to finish 
Rep. Weiner’s unexpired Council term—especially significant. Nelson is the 
only incumbent facing the voters this year, so this race will be a key 
indicator of voters’ reaction to the Lead Poisoning Act of 1999 and what it 
suggests about the renewal of the rent laws next spring.

Can Mike Nelson be trusted to stand up to the real-estate industry, and say 
“no” to its slick arguments and thick checkbook? Mike Nelson voted “no” on 
children and tenants on June 30 when he voted for the Lead Poisoning Act. 
Now tenants in the 48th District will have an opportunity to vote “no” on 
Mike Nelson, thanks to the ballot access gained in 1998. The Green Party 
has nominated Sonya Ostrom, a 71-year-old peace and anti-nuclear activist, 
who will face Nelson in the general election on Nov. 2.

The Working Families Party has also endorsed Ostrom. According to director 
Dan Cantor, the WFP is trying to “build a competent, lively, multiracial 
and class oriented electoral vehicle,” based on community organizations and 
unions. “We need to build a political organization that can articulate our 
values in public life.”

1999 is a “warm up” for the elections in 2000, when WFP intends to contest 
a “great number” of state legislative races in New York City and upstate, 
according to Cantor. In the Ostrom-Nelson race, as well as in the Manhattan 
race to fill the council seat vacated by Andrew Eristoff, “we want to get 
people used to voting on our line,” he adds, because WFP intends to be 
“part of a coalition that produces the new City Council when term limits 
open up the majority of Council seats in 2001.

Cantor was not defensive about WFP’s nomination of Peter Vallone as its 
standard bearer in 1998. “We did what was necessary to get the ballot 
status. “We did what was necessary to get the ballot status we need to 
change the political landscape in New York. People make history, but not 
under circumstances of their own choosing. The task now is to establish our 
presence on issue, including affordable housing and rent regulation.” At 
its September board meeting, Met Council will finalize plans for this 
November’s elections. With the Council deciding the fate of the entire 
rent-regulatory system in March, tenants around the city will be watching 
the race in the 48th District very closely.

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SPECIAL ELECTION NEEDS YOUR SUPPORT
Date: Sun, 26 Sep 1999 13:36:00 +0100
From: Leslie Cagan 

As you probably know, term limits mean that in the 2001 City Council 
election we will have the opportunity to dramatically change the make-up of 
the City Council of NYC. In fact, only about a dozen of the present 51 
members of the council will be able to run again for that office. 
Progressive activists and organizations are already discussing possible 
ways to have the greatest impact on re-shaping the City Council.

We have all been given a tremendous opportunity to get a jump start on this 
process with a special election that is scheduled for this November 2nd in 
the 48th District in Brooklyn. Most of you getting this email don’t live in 
that district...but don’t delete just yet.

The incumbent Council Member is Democrat Mike Nelson. He is being 
challenged by a long time community activist, SONYA OSTROM. One of the most 
exciting things about Sonya’s race is that she is running on the Green 
Party line, as well as on the Working Families Party line - the two 
independent parties which won ballot status in last year’s election.

I don’t know a lot about Nelson (except that he voted with Vallone in 
support of the landlords on the vitally important lead poisoning struggle 
earlier this year), but I do know about Sonya Ostrom. I first met Sonya in 
the anti-war/peace movement. She is the president of Metro Peace Action and 
has been a long time activist in efforts for peace in every corner of the 
world. She is also a community activist with strong ties in her own 
neighborhood. For almost 20 years Sonya taught in the NYC public schools 
and was active in the UFT.

Sonya is exactly the type of person that we all need on the New York City 
Council: she is a fighter, unafraid to speak up when it’s most needed, 
committed to her own community while she sees the big picture.

I am also encouraging you to support Sonya because her election will send a 
powerful message throughout this city. If Sonya wins we hope it will 
encourage other progressive activists to run in districts around town...and 
to run as an independent. Sonya’s victory will send a message to the 
Democratic Party that it is no longer business as usual and they can no 
longer take us all for granted.

How can you help?

a) The single most important thing is to get folks to vote for Sonya Ostrom 
on November 2nd. She is running in Brooklyn’s 48th District which includes 
Midwood, Sheepshead Bay, Manhattan Beach and Brighton Beach. If you don’t 
live in that district you might know someone who does...give them a call.

b) Sonya is participating in the campaign finance program. This means she 
can turn every dollar into 4 more dollars through matching funds....but she 
needs to file for her matching funds by this Friday, October 1st. Please 
take a moment right now to make the most generous contribution you can. Be 
sure to include all of the following information so your donation can be 
used for the matching funds:

Name
Address
City, State, Zip
Phone
Occupation
Employer
Employer’s Address

Make your check for $10 (or as much as you can) out to CITIZENS FOR SONYA 
and mail it to:

Citizens for Sonya
c/o Mike Dowd
267 Park Place
Brooklyn, NY 11238.

c) If you are active with an organization that supports candidates for 
office, ask them to also endorse Sonya Ostrom - and to contact their 
members, make a donation, support the campaign in whatever ways they can.

d) Finally, help spread the word. Feel free to send this email out to 
others, or print it out and distribute it to anyone you think might be 
interested.

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LANDLORD'S RIGHT TO EVICT:
May it Be Waived When Tenant is a Nonprimary Resident?
By Warren A. Estis and Jeffrey Turkel
New York Law Journal
Wednesday, September 1, 1999

IN two recent cases, Rima 106 LP v. Alvarez and Clark1 and Park Towers So. 
Co. LLC v. Universal Attraction,2 the First Departments of the Appellate 
Division and the Appellate Term have wrestled with the following question: 
Can a landlord, in exchange for valuable consideration received from a 
tenant, waive its right to evict that tenant based on nonprimary residence?

In Rima 106 a unanimous Appellate Division pointedly rejected the concept 
that tenants could purchase — or that landlords could sell — nonprimary 
residence immunity. In Park Towers, Justices Helen Freedman and William J. 
Davis reached the same conclusion, albeit in somewhat more equivocal 
language. Justice William McCooe, in dissent, held that landlords can waive 
any rights they possess under the Rent Stabilization Law.

Public Policy

The very basis for rent regulation is a legislative finding of an 
"intractable housing emergency" in the city and state of New York.3 By 
1971, the New York State Legislature had determined that certain tenants 
were exacerbating the housing shortage by using their apartments as 
pied-a-terres. The result was the enactment of L. 1971, ch. 373, which 
removed from the jurisdiction of rent control and rent stabilization "any 
housing accommodation which is not occupied by the tenant in possession as 
his primary residence.''4 As Governor Nelson A. Rockefeller stated in his 
Memorandum in Support of Chapter 373:

"Thousands of controlled apartments in New York City and elsewhere are 
rented by people who do not live in them. They use the apartments as a 
convenience, staying in them occasionally when they come to the City. Some 
even use them for storage. Continued controls on these apartments, 
indirectly subsidizing them through reduced real estate taxes, and keeping 
them off the market, is one of the worst iniquities of rent control.''5

Nonprimary residence litigation thereafter quickly emerged as a cottage 
industry in New York City. Courts, when evicting nonprimary resident 
tenants, frequently took the opportunity to cite a public policy 
justification for doing so. As the First Department stated in Cier 
Industries Co. v. Hessen:
"A tenant of a rent stabilized apartment who maintains a primary residence 
elsewhere, and also seeks to retain the stabilized apartment for 
convenience or for considerations of personal gain, is not one who is a 
victim of the housing crisis, but may rather to be said to be a 
contributing and exacerbating factor in the continuation of the critical 
shortage of affordable apartments.''6

Abuses of the rent regulatory laws, however, are not the exclusive province 
of tenants. The legislature and the governing administrative agencies 
recognized that landlords, given their superior bargaining position when 
initially renting an apartment to a tenant, could condition the rental upon 
the tenant's waiver of his or her rights under the Rent Stabilization Law. 
To address this issue, Section 2520.13 of the Rent Stabilization Code 
generally provides that "[a]n agreement by the tenant to waive the benefit 
of any provision of the RSL or this Code is void." The drafters of the 
code, by extending this protection to tenants alone, clearly implied that 
landlords were free to waive their rights. The inevitable question, given 
the public policy against nonprimary residency, was whether a landlord was 
free to waive its right to evict a tenant on such grounds.

Rima Case

The answer was provided in Rima 106. Rima concerned two apartment buildings 
on the Upper West Side. In the mid-1980's, the former owner -- Filroben 
Associates -- was trying to co-op the building, which was in dire financial 
straights. In an attempt to salvage its financial position, Filroben 
offered Elliot Clark, a plumber, a rent-stabilized apartment in lieu of 
paying a $40,000 debt owed to Mr. Clark's company. To make the deal 
attractive to Mr. Clark, the lease contained a clause which stated:
Notwithstanding anything to the contrary provided herein and 
notwithstanding any provision of applicable law or administrative 
regulations which otherwise might be interpreted to limit in any way the 
use by Tenant of these premises on the basis of the concept of "primary 
residence," Owner hereby waives any right to claim a default under this 
Lease or otherwise make any claim against the Tenant by reason of the fact 
that Tenant is not using the Apartment as its primary residence.

Roxanna Alvarez, who was apparently related to one of Filroben's partners, 
also received a lease with an identical clause. Shortly thereafter, the 
buildings went into foreclosure, and the ground leases for the buildings 
were ultimately assigned to Rima 106 LP after a foreclosure auction.

After learning that Ms. Clark and Ms. Alvarez might not actually live in 
their apartments, the new owner commenced actions against both tenants 
based on nonprimary residence. Specifically, the owner sought a declaration 
that the nonprimary residence immunity clauses were "null and void under 
applicable law and unenforceable as against public policy." The tenants 
claimed that the sweetheart clauses barred the landlord from evicting them 
based on nonprimary residence.

The New York State Supreme Court found in the tenants' favor, holding that 
the owner could not "avoid an obligation it assumed when it acquired an 
interest in the building." The owner thereafter appealed to the Appellate 
Division, First Department. Justice Richard W. Wallach, writing for the 
full bench, refused to enforce the sweetheart clauses and remanded the 
proceeding for a trial on the merits of the owner's primary-residence 
claims. Justice Wallach cited various cases condemning nonprimary residence 
as an injury to the general public during an acute housing shortage, and 
concluded:

Facing foreclosure, plaintiff's predecessor landlord may have been 
interested solely in conducting a "fire sale" of its only assets, possibly 
in fraud of its mortgagee and other creditors, ignoring the fact that such 
a transaction injures the public by removing affordable housing from the 
market. ...Under the circumstances, any such waiver was contrary to public 
policy, and must be declared a nullity" (emphasis supplied).

Park Towers Case

The same issue -- occasioned by a similar sweetheart clause -- arose in 
Park Towers South Co. The Civil Court, under Justice Donna Mills, refused 
to enforce the nonprimary residence immunity provision, finding that the 
clause -- which had been negotiated into a stipulation relating to an 
earlier nonprimary residence challenge -- was "against the sound public 
policy declared in the Rent Stabilization Law to alleviate the housing 
crisis."7 The tenant then appealed to the Appellate Term, First Department. 
Justices Helen Freedman and William J. Davis affirmed on public policy 
grounds, but did not cite the Rima 106 decision, which had been issued over 
two months before. In contrast to Justice Wallach's blanket condemnation of 
such clauses, the Appellate Term majority did allow that "there may be 
circumstances where a landlord could permissibly waive the right to evict 
upon the ground of non-primary residence." The Court did not specify, 
however, the circumstances under which it would enforce such a waiver. 
Notwithstanding the Appellate Term's ruling, the question arises as to 
whether such waivers are ever enforceable, given Justice Wallach's language 
in Rima 106. Justice McCooe, however, dissented, stating:

The public policy against the tenant waiving benefits under the Rent 
Stabilization Law does not apply to a landlord. RSC §2520.13; McKinney's 
Con Laws of NY, Book 1, Statutes §74. The law should not favor a party who 
seeks to invalidate a lease simply to re-rent it for a higher price. The 
status quo should be maintained.

What the Appellate Term majority hints at, and what Justice McCooe states 
outright, is that there may be circumstances when it would be inequitable 
to allow a landlord to obtain the benefits of such a sweetheart clause 
without the corresponding obligation; i.e., the obligation to refrain from 
evicting the tenant. The Appellate Division seemed to take a larger view, 
holding that the protection of the general public would always supercede 
the rights of the individual litigants.

NOTES:

(1) __ AD2d __, 690 NYS2d 40 (1st Dept. 1999). The authors' law firm, 
Rosenberg & Estis PC, represented the prevailing owner in Rima 106.

(2) New York Law Journal, Aug. 3, 1999, at 23, col. 1 (A.T. 1st Dept.).

(3) Manocherian v. Lenox Hill Hosp., 84 NY2d 385, 389 (1994); see, also, 
New York City Admin. Code §§26-401 and 26-501.

(4) New York City Admin. Code §§26-403(e)(2)(i)(10) and 26-504(a)(1)(f). 
See, also, §5(a)(11) of the Emergency Tenant Protection Act (L. 1974, ch. 
576, §4).

(5) NY Leg. Ann. 1971, at p. 562.

(6) 136 AD2d 145, 526 NYS2d 77, 81 (1st Dept. 1981).

(7) NYLJ, March 11, 1998, at 28, col. 4 (Civ. Ct., NY Co., Mills, J.).

Warren A. Estis is a founding partner at Rosenberg & Estis PC. Jeffrey 
Turkel is a partner at the firm.

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