TenantNet Forum

Where tenants can seek help and help others



Illegal conversions of 1- & 2-family houses

Basic Reference Documents

Moderator: TenantNet

Illegal conversions of 1- & 2-family houses

Postby Anna » Wed Jul 19, 2006 5:55 pm

HOUSING:
Illegal Conversions

The Queens Borough President is committed to the twin goals of creating new affordable housing and to preserving and enhancing the existing housing stock.

Fighting Illegal Conversions:
A Comprehensive Guide for Communities

Published by the
Office of the Queens Borough President, Helen M. Marshall

Dear Concerned Citizen,

The problem of illegal apartment conversions is a persistent and pervasive one that places many of our residents in danger and puts tremendous strains on community resources.

Part of the reason for the proliferation of illegal apartments is that many homeowners and their tenants do not know what constitutes an illegal dwelling or how to seek remedies. This is why my office has published “Fighting Illegal Conversions: A Comprehensive Guide for Communities.” It is my hope that this guide will help everyone comply with the laws so that we can avoid lifethreatening and quality-of-life problems caused by illegal apartments.

My office is also taking a proactive approach to deal with illegal apartment conversions and to protect our homes and our families. We support the clarification and strengthening of the city’s Building Code; call for enhanced enforcement of the law, including giving the Department of Buildings more resources and inspectors and work with the court system to help the members of the judiciary rectify this problem; seek to coordinate enforcement efforts among various city and state agencies, and support legislation that would require buyers and sellers in real estate transactions to certify the residential status of any residence at closing and to affirm that it complies with the zoning laws. We have also asked electrical, gas and cable utilities to report excess services at particular
addresses.

We will continue to seek other solutions to the vexing problem of illegal apartment conversions. Meanwhile, I urge you all to read this guide, and if you have any questions or suggestions, please do not hesitate to contact my office at 1-718-286-3000.

HELEN M. MARSHALL
Queens Borough President

ANSWERS TO COMMONLY ASKED QUESTIONS
An illegal apartment conversion is a serious offense under the New York City Building Code, and can result in fines up to $15,000 and up to one year in jail. This Guide has been prepared by the Office of the Queens Borough President, with the assistance of the NYC Department of Buildings, to help educate homeowners and tenants about the laws regulating illegal conversions.

WHAT IS AN ILLEGAL CONVERSION?
An illegal conversion is the creation of one or more additional dwelling units within a home without first receiving the approval of, and permits from, the NYC Department of Buildings. Such conversions often involve the alteration or modification of an existing one- family or two-family home by adding an apartment in the basement or attic. Sometimes several dwelling units are added to a home to create an illegal rooming house.

WHY DOES THE GOVERNMENT CARE WHAT I DO WITH MY PRIVATE HOME?
Government regulates all aspects of business and industry to preserve the health and safety of its citizens. Illegal conversions are frequently done in violation of existing fire and building codes, and constitute a significant danger to tenants and other individuals living in the buildings. In addition, fires that begin in homes with illegal apartments can easily spread to neighboring homes.

Illegal conversions also reduce the quality of life in our neighborhoods by crowding more people into an area than was originally intended. This unplanned growth causes a severe strain on municipal services, and frequently results in school overcrowding, reduced parking, understaffed police stations and increased sewer and sanitation problems.

IS EVERY APARTMENT ADDED TO A HOME ILLEGAL?
No. Depending upon the circumstances, it is sometimes permissible to
add an apartment to a home.

* First, the building must be in an area which is zoned to allow additional dwelling units.
* Second, the property lot and building size must meet the zoning requirements.
* Third, you must obtain a building permit from the NYC Department of Buildings to add the new dwelling unit.

If you are considering adding an apartment to your home, you should first speak with a licensed architect or engineer, who will tell you if it is legal to do so based upon the applicable zoning in your area.

WHAT IS ZONING?
Zoning is a tool that regulates the use, density and type of structure that can be built on property within New York City. Every block and lot within the city limits is zoned for residential, commercial and/or industrial uses.

Residential zones range from R1 to R10; the “R” stands for “residential” and the number for the density (the higher the number, the higher the density allowed). Only single family detached homes are permitted in R1 and R2 districts. Other housing types are permitted in R3 - R10 zoned districts. Go to www.nyc.gov/buildings to check the zoning of your property.

IF I ALREADY HAVE AN ADDITIONAL DWELLING UNIT IN MY HOME, HOW DO I KNOW IF IT IS LEGAL?
If you added the apartment to your home without first getting a permit from the NYC Buildings Department, it is illegal, and you must either remove the apartment or seek to have it legalized. If the apartment already existed when you bought the home, you should check the Certificate of Occupancy for the building, or speak with a licensed architect or engineer. Downloadable C.O.’s may be obtained from the Building Information System (BIS) on www.nyc.gov/buildings.

I ADDED A FULL BATHROOM TO MY BASEMENT FOR MY OWN USE, BUT DID NOT GET A BUILDING PERMIT FIRST. IS THIS LEGAL?
No. Even if you do not intend to create a separate apartment to be rented to tenants, you can still be fined for adding a full bathroom or kitchen to your basement or attic -- or making other major alterations -- without first obtaining permission from the Department of Buildings.

HOW DO I REPORT AN ILLEGAL APARTMENT?
The NYC Department of Buildings is responsible for investigating complaints of illegal apartments. If you know of an illegal apartment in your area, you can file a complaint by calling 311. You can also call my office, your local community board or one of the elected officials who represents your area.

WHAT HAPPENS AFTER A COMPLAINT IS FILED?
Whenever an illegal apartment complaint is received from a private citizen, community group or elected official, an inspector from the Building Department’s Quality of Life Task Force will inspect the dwelling. If the inspector finds an illegal apartment or other violation of the Building Code, the inspector will issue a violation notice to the owner. Sometimes the inspector cannot gain access to the home, and will leave a notice asking the owner to arrange for an inspection of the home. If the owner does not respond, the inspector will return to the location at another time to try to gain access. If necessary, the Department of Buildings can seek to obtain a warrant from the court to enter your home.

WHAT DO I DO IF I RECEIVE A VIOLATION NOTICE?
If you have received a notice of violation for maintaining an illegal apartment, you may be required to attend a hearing at the Environmental Control Board (ECB). The notice of violation will tell you the time, date and location of the hearing. If you cannot attend the hearing on the specified date, you can request a new date by calling the ECB Queens office at 1-718-298-7300.

ECB will try to accommodate you and will set a new date, unless the hearing has already been rescheduled more than once. If you or your representative do not attend the hearing, a default judgment will be entered automatically.

By defaulting, you will be assessed the maximum penalty allowed under the law. A default can be reopened in 30 days, but after 30 days you will need to provide documented proof to the ECB Queens office justifying your failure to attend the hearing on the scheduled date. If you continue to ignore ECB hearing notices and fail to respond within 90 days, the Department of Finance can impose the maximum penalty.

DO I HAVE TO HIRE AN ATTORNEY?
Representation by an attorney is not mandatory. However, you may wish to seek legal advice prior to going to the ECB hearing. You also may contact the Building Department’s Administrative Enforcement Unit at 1-212-566-2850 beforehand if you have questions about the hearing process.

WHAT ARE THE FINES FOR EACH VIOLATION?
The penalty for an illegal conversion violation ranges from $250 to $2,500. A second offense at the same location within 18 months can result in fines between $1,000 and $10,000. If you are convicted of a third violation within a single 18-month period, you can be fined between $5,000 and $15,000. In addition, ECB can impose a civil penalty of up to $100 per day from the date the notice of violation is issued until the illegal condition is corrected.

HOW IS AN ILLEGAL CONDITION CORRECTED?
An illegal conversion violation may be corrected in one of two ways:

1. Remove the illegal condition: The altered spaces must be restored to its prior legal use or layout. This may require a permit to remove partitions, plumbing, fixtures and entrances. All tenants in the illegal units must leave.
2. If possible, legalize the illegal condition: Under certain limited circumstances, the additional housing unit may be legalized by following the guidelines below and obtaining a Certificate of Occupancy from the Department of Buildings. The Certificate of Occupancy is a document that describes the legal occupancy use of your building (for example, a one-family home, a two-family home or a 10-story apartment building). Go to www.nyc.gov/buildings and check “Resolving Department of Buildings Violations” for further information.

WHEN MUST THE ILLEGAL CONDITION BE CORRECTED?
There are significant fines and penalties for illegal apartment conversions. If you have an illegal apartment in your home, you should take steps to correct the illegal condition before you receive a notice of violation. If you eliminate the illegal condition before the Buildings Department conducts an inspection, you will not receive a violation notice and will not be charged with any penalties. If the Buildings Department conducts an inspection and finds a violation of the Building Code, you should take steps to eliminate the illegal condition immediately, because civil penalties can be imposed from the date of the violation notice until the date that the illegal condition is corrected.

HOW DOES THE VIOLATION GET DISMISSED?
Attending the ECB hearing and paying a fine is not enough to get a violations dismissed. You also must show that the illegal condition has been fixed, by filing a Certificate of Correction with the Building Department’s Administrative Enforcement Unit (AEU). The form is available from the AEU or the borough office.

In order to prove that the condition has been corrected, you must submit either evidence that the illegal condition has been eliminated (such as photographs and bills from contractors) or a new Certificate of Occupancy if you have legalized the unit. This is very important, because penalties can continue to accrue until the violation has been cured.

HOW DO I LEGALIZE AN ADDITIONAL DWELLING UNIT IN
MY HOME?
First you have to determine if your property is zoned for multiple housing units or apartments. Second, the size of your property must be sufficient under the zoning rules.

The building’s structure is also important. For example, due to fire safety concerns, a wood frame house cannot be converted to multiple housing units. For basic zoning questions, you can call the Department of Buildings’ Customer Service Department at 1-718-286-0600.

If the zoning, lot size and building structure are appropriate, then you must hire a New York State-licensed architect (R.A.) or professional engineer (P.E.) to prepare design drawings and submit an alteration application to the Department of Buildings on your behalf.

A filing fee must be paid when you submit the permit application, and the size of the fee depends upon the scope of the work. There is also a penalty for a legalization -- for a one-family or two-family home, it is two times the cost of the filing fee.

After the Buildings Department approves the application, you will receive a work permit to legalize the existing conditions. If plumbing or electrical work is required, you must hire a NYC-licensed plumber or electrician to verify that the work meets the standards of the Building Code.

After the work is completed, you can request that the Buildings Department issue a new Certificate of Occupancy. Buildings Department inspectors will check your building to make certain that it conforms with the plans submitted by your architect or engineer. If it does, the Department will issue a new Certificate of Occupancy, describing the present status and legal use of the building.

If the zoning rules do not allow multiple housing units or apartments, the improper use must be stopped and the home must be restored to its prior legal layout.

CAN I APPEAL THE DECISION OF THE BUILDINGS DEPARTMENT?
The Board of Standards and Appeals (BSA) hears and decides appeals from property owners whose applications to construct or alter buildings or establish new uses have been denied by the Department of Buildings. Under very specific and limited circumstances, the Board may grant a Variance or Special Permit if specific findings have been made as prescribed by the zoning resolution, building code and case law.

For further information you can contact BSA by calling 1-212-788-8500 or you can download instructions on how to file an application at: www.nyc.gov/html/bsa/html/home/home.shtml.

However, applications require technical supporting data and drawings that should be prepared for filing by licensed professionals (attorneys, architects or engineers) who have experience working with BSA.

LANDLORD / TENANT ISSUES

Rent: Landlords can commence a non-payment proceeding in Housing Court against tenants in legal or illegal units, and although individual cases may be decided differently, tenants might be found liable for the rent.

Eviction: The landlord first serves a 30-day eviction notice. If the tenant does not leave in 30 days, the landlord can then file a summary eviction proceeding in Housing Court. It usually takes 1-3 weeks to take the case in front of a judge, who typically gives the tenant 30-60 days to vacate the dwelling. As a result, the entire process will take from two to four months before the tenant is required to leave. In some cases, the court, in its discretion, may grant an adjournment.

WHEN A ONE-FAMILY OR TWO-FAMILY HOME IS CONVERTED TO A BUILDING WITH THREE OR MORE UNITS:

Rent: A landlord cannot collect rent from any tenants where a one-family dwelling has been illegally converted into a building with three or more dwelling units. In such case, neither the tenants in the illegal units nor the tenants in the legal units must pay rent, and the landlord cannot bring a non-payment proceeding in Housing Court. However, if the landlord has a legal three-family dwelling with a valid registration statement on file and adds an illegal apartment, the landlord may seek action for non-payment, but only against the tenants in the legal dwelling units.

Eviction: If a landlord has a legal three-family dwelling with a valid registration statement on file, the landlord can seek action in Housing Court to evict the tenants. Most illegal conversions are in one-family and two-family dwellings, and owners of these dwellings do not have the right to seek eviction.

Please Note: This document is for informational purposes only.
Tenants should seek legal advice for specific cases.

How can I get more information about...

ZONING RULES AND REGULATIONS:
NYC Department of City Planning / Zoning Information Desk
22 Reade Street
New York, New York 10007
1-212-720-3291

NYC Department of Buildings / Customer Service Department
120-55 Queens Boulevard
Kew Gardens, New York 11424
1-718-286-0600

NOTICES OF VIOLATION:
NYC Department of Buildings / Administrative Enforcement Unit
280 Broadway
New York, New York 10007
1-212-566-2850

ECB PROCEEDINGS:
Environmental Control Board - Queens
144-06 94th Avenue
Jamaica, New York 11435
1-718-298-7300

YOUR RIGHTS AS A TENANT FACING EVICTION FROM AN ILLEGAL DWELLING:
Queens Legal Services Corp.
89-02 Sutphin Boulevard
Jamaica, New York 11435
1-718-657-8611

YOUR RIGHTS AS A LANDLORD SEEKING TO EVICT TENANTS:
Rent Stabilization Association
123 William Street
New York, New York 10038
1-212-214-2400

REPORTING AN ILLEGAL APARTMENT OR OTHER BUILDING CODE VIOLATIONS:
Call: 311

http://queensbp.org/content_web/housing ... apts.shtml
http://queensbp.org/content_web/housing ... 05web2.pdf
Anna
 
Posts: 2538
Joined: Mon Jul 22, 2002 1:01 am
Location: Manhattan

Postby Anna » Wed Jul 19, 2006 6:00 pm

RESOLVING AN ILLEGAL CONVERSION VIOLATION:

An Explanation of the Environment Control Board (ECB) Hearing Process -
With Guidelines for the Resolution of Illegal Conversion Violations

The creation of one or more illegal housing units without authorization from the Department of Buildings is a serious offense of the New York City Building Code. Illegal conversions reduce the quality of life in neighborhoods by enabling more people to live in an area than was originally intended. Unplanned growth causes a severe strain on local public services that results in the overcrowding of schools, public transportation and sewer and sanitation systems. It also creates parking problems.

The most serious aspect of this illegal construction is that often it creates substandard, potentially dangerous housing. This can, and has, led to tragic results.

The Department of Buildings Quality of Life Task Force investigates complaints of illegal housing. This notice describes what to do if you receive a violation(s) for an illegal conversion.

* WHAT IS AN ILLEGAL CONVERSION?
* WHY IS THIS ILLEGAL?
* THE ECB HEARING PROCESS:
* IF YOU CANNOT MAKE IT TO THE HEARING ON THIS DATE
* IF YOU DO NOT ATTEND THE HEARING
* DO YOU NEED AN ATTORNEY?
* WHAT ARE THE CIVIL PENALTIES FOR EACH VIOLATION?
* WHEN MUST THE VIOLATING CONDITION BE CORRECTED?
* HOW DOES THE VIOLATION GET RESOLVED?
* PROFESSIONAL ORGANIZATIONS

WHAT IS AN ILLEGAL CONVERSION?

An illegal conversion is the creation of a housing unit(s) without first receiving the approval of, and permits from, the New York City Department of Buildings. Often, it involves the alteration or modification of an existing one- or two-family home by adding an apartment in the basement or attic. Sometimes, an illegal rooming house has been created in a building that was intended to be a one-family house.

WHY IS THIS ILLEGAL?

Some of this housing is illegal because it violates the zoning regulations for the area. In other circumstances, the house itself was not constructed for the current use, and cannot safely accommodate all the people in residence.

If You Have Received a Violation(s) for Illegally Altering a Premises and Creating an Illegal Occupancy, You Are Required to Attend a Hearing at the Environmental Control Board (ECB).

THE ECB HEARING PROCESS:

THE COURT ADDRESS, THE DATE, AND THE TIME OF THE HEARING
IS SHOWN ON THE VIOLATION.

IF YOU CANNOT MAKE IT TO THE HEARING ON THIS DATE:

Call the appropriate ECB borough office and request a new hearing date. As long as the hearing has not been rescheduled more than once, ECB will try to accommodate you.

Manhattan & Staten Island: (212) 361-1776
Brooklyn: (718) 875-6796
Bronx: (718) 579-6844
Queens: (718) 298-7300

Back to top

IF YOU DO NOT ATTEND THE HEARING:

If you (or your representative) fail to appear at the hearing, the case will automatically go into default. By defaulting, you will be assessed the maximum penalty. A default may be reopened within 30 days. After 30 days, you will need to show documented proof to ECB as to why you failed to attend the hearing on the scheduled date. If you fail to request a stay of default or pay the civil penalty imposed within 90 days, your case will be converted into a civil court judgement. After that, your case will be forwarded to the Department of Finance which will take appropriate collection actions, including forwarding the case to the Sheriff, restraining bank accounts, and possibly wage garnishments among other things.

Back to top

DO YOU NEED AN ATTORNEY?

Representation by an attorney is not required. However, you may want to seek legal advice prior to going to the ECB hearing. To ask questions regarding the hearing process please contact the Department's Administrative Enforcement Unit (AEU) by calling 311.

WHAT ARE THE CIVIL PENALTIES FOR EACH VIOLATION?

The penalty for a first offense violation ranges from $250 - $2,500 (You are also subject to a $100 per day penalty for each illegal unit added). At the hearing, the judge reviews all the evidence, adjudicates the case and may impose civil penalties. Failure to attend the hearing (defaulting) automatically results in the maximum penalty.

WHEN MUST THE VIOLATING CONDITION BE CORRECTED?

Steps to correct the illegal condition must be taken immediately, upon receipt of the violation. Failure to correct the condition will result in continuing per day penalties.

HOW DOES THE VIOLATION GET RESOLVED?

Payment of a fine is not enough to get a violation resolved. You also must show that the violating condition is fixed, by filing a Certificate of Correction with the Department's Administrative Enforcement Unit (AEU). The form is available from AEU or the Department's borough offices. YOU MUST SUBMIT PROOF OF CORRECTION: EITHER EVIDENCE (PHOTOS AND CONTRACTOR'S BILLS) THAT THE CONDITION HAS BEEN REMOVED, OR A CERTIFICATE OF OCCUPANCY (see below).

An Illegal Conversion Violation May Be Corrected in One of Two Ways:

1. Remove the illegal condition. The altered spaces must be restored to their prior use or layout. This may require the removal of partitions, plumbing fixtures and entrances. All tenants in the illegal units must leave.
2. If possible, legalize the additional housing unit(s) by following the guidelines below and obtaining a new Certificate of Occupancy (C of O) from the Department of Buildings. The C of O is a document that describes what the City law says your building is, for example, a one-family home, a two-family home or a 10-story apartment building.

Legalizing Additional Housing Units:

First, it must be determined if your property is zoned for multiple housing units or apartments. Some areas are not. In that case, the extra housing unit(s) cannot be made legal under any circumstances. The building's structure is also important. Because of fire safety concerns, a wood frame house cannot be converted to multiple housing units. IF YOU CANNOT LEGALIZE THE OFFENDING CONDITION, YOU MUST STOP THE IMPROPER USE AND RESTORE THE PREMISES TO ITS PRIOR LEGAL LAYOUT.

The Department of Buildings has Customer Service Representatives in each borough office who can assist you with basic questions. Please call the appropriate office, Monday through Friday. Office hours may vary.

Manhattan (212) 566-0242
Brooklyn (718) 802-3693
Bronx (718) 579-6942
Queens (718) 286-0790
Staten Island (718) 816-2315

If the zoning is okay, then you must hire a New York State-licensed registered architect (R.A.) or professional engineer (P.E.) to prepare design drawings and submit an alteration application to the Department of Buildings on your behalf. There is a filing fee, based on the scope of the work. There is also a penalty for a legalization -- on a one or two family home, it is two times the cost of the filing fee. After the Department approves the application, you obtain a permit to legalize the existing conditions. If plumbing or electrical work was done, you must hire a NYC-licensed plumber and/or electrician to verify that the work meets the standards of the Building Code. You then can request that the Department issue a new Certificate of Occupancy (C of O). Department inspectors will check your building to make certain that it conforms with the plans submitted by your architect or engineer. If it does, the Department will issue a new Certificate of Occupancy describing the present status and legal use of the building.

PLEASE NOTE: If you would like to do alterations in addition to the work being legalized, your architect or engineer should submit those plans separately so that you do not pay a penalty for work that has not been undertaken.

SOURCE: NYC DOB: no longer availble online...replaced by: http://www.nyc.gov/html/dob/downloads/p ... llegal.pdf
Anna
 
Posts: 2538
Joined: Mon Jul 22, 2002 1:01 am
Location: Manhattan

Postby Anna » Wed Jul 19, 2006 6:05 pm

Illegal Basement and Cellar Conversions

Basements and cellars are very different. A basementis a story partly below curb level but having at least one-half of its height above the curb level. A cellaris an enclosed space having more than one-half of its height below curb level.

Basements and cellars of multiple dwellings may not be occupied unless the conditions meet the minimum requirements for light, air, sanitation and egress, and have received approval by the New York City Department of Buildings.

Cellars in private dwellings can NEVER be lawfully rented or occupied. (A secondary kitchen for accessory cooking may be located in the cellar so long as approval from the Department of Buildings is obtained prior to the installation of such kitchen.) Basements in private dwellings can NEVER be lawfully rented or occupied unless the conditions meet the minimum requirements for light, air, sanitation and egress, and have received approval by the Department of Buildings. (Since the rental of a basement in a two-family dwelling would result in a conversion from a private dwelling to a multiple dwelling, basements of two-family dwellings may not be rented unless the entire building is in compliance with the New York State Multiple Dwelling Law.)

Owners with illegally converted basements and cellars may face civil and criminal penalties. Occupants of illegal basement and cellar apartments face potential dangers such as carbon monoxide poisoning, inadequate light and ventilation and inadequate egress in the event of a fire. Occupants of illegal basement and cellar apartments may be ordered by the City to vacate or leave any illegal basement or cellar apartment.

For more information and/or complaints concerning illegal basement or cellar apartments call the City's Citizen Service Center at 311. Complaints will be directed to the New York City Department of Buildings.

source: http://www.nyc.gov/html/hpd/html/owners ... ions.shtml

For Tenants

What are the rules about living in basements and cellars?
Basements and cellars are very different. A basement is a story partly below curb level but having at least one-half of its height above the curb level. A cellar is an enclosed space having more than one-half of its height below curb level.

Basements and cellars of multiple dwellings may not be occupied unless the conditions meet the minimum requirements for light, air, sanitation and egress, and have received approval by the New York City Department of Buildings.

Cellars in private dwellings can NEVER be lawfully rented or occupied. (A secondary kitchen for accessory cooking may be located in the cellar so long as approval from the Department of Buildings is obtained prior to the installation of such kitchen.) Basements in private dwellings can NEVER be lawfully rented or occupied unless the conditions meet the minimum requirements for light, air, sanitation and egress, and have received approval by the Department of Buildings. (Since the rental of a basement in a two-family dwelling would result in a conversion from a private dwelling to a multiple dwelling, basements of two-family dwellings may not be rented unless the entire building is in compliance with the New York State Multiple Dwelling Law.)

Owners with illegally converted basements and cellars may face civil and criminal penalties. Occupants of illegal basement and cellar apartments face potential dangers such as carbon monoxide poisoning, inadequate light and ventilation and inadequate egress in the event of a fire. Occupants of illegal basement and cellar apartments may be ordered by the City to vacate or leave any illegal basement or cellar apartment.

For more information and/or complaints concerning illegal basement or cellar apartments call the City's Citizen Service Center at 311. Complaints will be directed to the New York City Department of Buildings.

source: http://www.nyc.gov/html/hpd/html/tenant ... ants.shtml
Anna
 
Posts: 2538
Joined: Mon Jul 22, 2002 1:01 am
Location: Manhattan

Postby Anna » Wed Jul 19, 2006 6:08 pm

The Illegal Multiple Dwelling in New York City
by Gerald Lebovits and Daniel J. Curtin, Jr.

The issue of additional occupancy of legal one- and two-family buildings is a constant happening . . . evidence of the City’s reluctance to crack down on this practice which for decades has provided additional, albeit illegal, housing in a tight housing market, as well as a silent recognition of the likely need by many owners for additional rental income to maintain these structures.[1]

There are a number of reported decisions in this area. After extensive research, the Court has found that many of the decisions are conflicting . . . .[2]

Introduction

Common are the proceedings involving the use and occupation of illegal multiple dwellings, including efforts to collect rental arrears from or to remove occupants of illegal units. Uncommon is the disparity with which the courts resolve the issues surrounding illegal dwellings, commonly called “illegal threes” or de facto multiple dwellings. This article explores the uncertainty that the courts’ splits have engendered in summary nonpayment and holdover proceedings involving de facto multiple dwellings.

The Basics

This much is certain: A multiple dwelling, according to the Multiple Dwelling Law (MDL), is a “dwelling which is rented, leased, let or hired out, to be occupied, or is occupied, as the residence or home of three or more families living independently of each other.”[3] The MDL requires landlords and owners to register all multiple dwellings located in New York City.[4] Failure to register these dwellings results in barring the landlord from collecting rent.[5] A multiple dwelling may not be occupied absent a duly issued certificate of occupancy (c/o) attesting to MDL compliance.[6] Landlords that rent an illegal apartment—premises not covered by an existing c/o, either with no c/o or with a c/o but nonconforming use—violate the MDL and are subject to penalties.[7] Penalties include that “[n]o rent shall be recovered by the owner of such premises for said period, and no action or special proceeding shall be maintained therefor, or for possession of said premises for nonpayment of such rent.”[8] Tenants may not, however, recoup money voluntarily paid as rent for the illegal premises or to obtain a stay.[9]

The certainty ends here. Everything else is uncertain.

Illegal dwellings are illegal threes when a c/o allows two units but the building contains three. The illegal unit is the third apartment. Other illegal apartments come up: illegal twos, nicknamed “mother-daughters.” When a premises has a c/o that permits one-family use, creating or adding a separate unit in the premises not covered by the c/o results in an illegal two. When seeking rent arrears from or the removal of an occupant of an illegal two, questions about the MDL do not come into play. A one-unit building converted to a two-unit building is not a multiple dwelling.[10] Thus, for mother-daughters, summary proceedings in the Civil Court’s Housing Part are permitted—holdovers[11] and nonpayment proceedings.[12] Significant questions arise, however, when the dwelling is a two-family home and someone adds an illegal unit. The addition of the problematic unit—the “illegal three”—brings the building within the MDL’s purview. The same holds true when the building is a multiple dwelling and an additional, illegal unit is added, creating an illegal four. Once three or more units exist in a building, the MDL and attendant inquiries and issues surface.

A New York City Civil Court rule requires a landlord to plead compliance with the MDL and the New York City Housing Maintenance Code (HMC) in a summary proceeding seeking rent arrears in New York City.[13] The court rule provides that

[i]n every summary proceeding brought to recover possession of real property pursuant to section 711 of the Real Property Actions and Proceedings Law, the petitioner shall allege either: (1) that the premises are not a multiple dwelling; or (2) that the premises are a multiple dwelling and, pursuant to the Administrative Code, sections 27-2097 et seq., there is a currently effective registration statement on file with the office of code enforcement in which the owner has designated a managing agent, a natural person over 21 years of age, to be in control of and responsible for the maintenance and operation of the dwelling. The petitioner shall also allege the following information: the multiple dwelling registration number, the registered managing agent's name, and either the residence or business address of said managing agent. The petitioner may (optionally) list a telephone number which may be used to call for repair and service.[14]



Pleading MDL compliance is unnecessary in a holdover proceeding when no use and occupancy is sought[15] or when no landlord-tenant relationship exists.[16]

When MDL compliance must be pleaded, a landlord must also prove MDL compliance.[17] Recital errors in the petition regarding multiple-dwelling registration (MDR) are amendable if the landlord can demonstrate that a valid MDR existed when the proceeding began and if the tenant was not prejudiced.[18] For example, inadvertently omitting the name and telephone number of the building’s manager may be corrected by amendment.[19] The complete failure to register as the MDL requires will, however, allow a tenant to stay all proceedings or to assert the failure as a defense to a proceeding for rent.[20]

Failure, therefore, to comply with the MDL results in a landlord’s being unable to collect rent.[21] Slightly different, but just as damaging to landlord’s demand to collect rent, is a c/o violation. That failure might result in the landlord’s being unable to win a summary nonpayment proceeding to collect arrears.[22] In practical terms, there might be no real difference between not being able to collect rent and not being able to sue for rent. As one court stated, if “pleading and proving” the existence of a valid multiple dwelling registration insulated landlords from other illegalities in a premises—like occupancy in violation of a c/o—“then the larger public policy issue . . . would be subverted.”[23] Landlords might then find themselves “in a legal conundrum where they are unable to evict a tenant in a summary proceeding or collect use and occupancy in a Civil Court action.”[24]

Although some courts view an MDR lapse as correctable,[25] the proceeding might be dismissed if the landlord commits a significant error in pleading MDL compliance.[26] Many courts hold that when commencing a nonpayment proceeding, “a landlord . . . must allege either that the building is not a multiple dwelling or that it is a multiple dwelling and that there is a currently effective registration statement conforming to [MDL] § 325 on file with the New York City Department of Housing Preservation and Development. To omit these allegations from the petition is to state facts insufficient to constitute a cause of action.”[27] Although the HMC requires that a copy of the MDR receipt be annexed to all petitions, omitting to do so is de minimis.[28]

Landlords must plead MDL compliance, but the failure to do so does not implicate the court’s subject-matter jurisdiction. In Chan v. Adossa,[29] an owner sought to recover possession of a premises predicated on owner’s use. After interposing an answer, the tenant moved to dismiss on the ground that the landlord had an invalid MDR; the managing agent’s address on file was as a post-office box. Civil Court had held that MDRs are jurisdictional in nature and that the failure to have a valid registration on file at the proceeding’s commencement deprived the court of jurisdiction. The Appellate Term, First Department, disagreed. The Appellate Term held that the court rule requiring pleading MDL compliance “neither creates nor extirpates, neither increases nor diminishes the jurisdiction accorded to this court as prescribed by the Constitution of the State of New York and as is particularly outlined in the New York City Civil Court Act and other legislative enactments. Court rules are promulgated to regulate and facilitate practice and have nothing whatever to do with a court’s jurisdiction.”[30]

One problem is that in illegal-three cases, landlords often lie in Housing Part petitions. Because landlords can secure a judgment only if they plead MDL compliance, they or their attorneys must verify that the unit is or is not located in a multiple dwelling and then state that a valid MDR is on file, concede that no MDR is on file, or invent an MDR number and hope that the fraud will go uncovered. Alternatively, if a landlord verifies that the building is not a multiple dwelling because only two legal units are in a three-unit building, the pleading is improper because three units turn a building into a multiple dwelling. Either way, MDL compliance has not been, or will not be, pleaded as required. The question is whether it is a lie to verify that a three-unit building is not a multiple dwelling, given that an illegal conversion prevents valid registration. And assuming falsity, should not the case be dismissed solely on the ground that it is wrong to lie in a Housing Part proceeding to mask an illegal conversion in order to seek rent or use and occupancy that might not be collectable in a proceeding that might not be sustainable?

It is unsurprising that courts have rendered conflicting decisions on the topic of the illegal three. In few areas of the law will a court grapple all at once with issues of pleadings, forums for adjudication, the public’s need for affordable housing, and a landlord’s right to receive rent versus a tenant’s right to live in safe home.

Proceedings for Arrears

In light of the MDL’s language, tenants inhabiting illegal units and sued for not paying rent defend against these proceedings by arguing that the landlord has failed to comply with the MDL’s c/o requirement.[31] Whether the argument will be viable depends on where the proceeding is maintained and against whom it is maintained.

The First Department

Illegal-three cases in the First Department are less common than in the Second Department.[32] But First Department jurisprudence offers insight into whether rent arrears may be recovered when a landlord fails to comply with the MDL. When a landlord seeks to collect arrears from a tenant residing in an illegal unit, First Department courts do not always apply MDL § 302’s bar to collections.[33] Applying the MDL’s rent-forfeiture provision is usually based on the existence of certain circumstances. In applying the penalty, courts generally find that the subject illegal unit—often located in a basement, where health and safety issues are heightened—endangers the occupants and that because of those conditions, the landlord is forbidden to collect the rent sought in the petition.[34] As the Appellate Term, First Department, has noted, “assuming that the rent forfeiture provisions of the [MDL] apply in [a] case . . . it must be shown that [conditions] in the building adversely affected the structure’s integrity and threatened tenant’s health and safety before a complete abatement of the rent is imposed.”[35]

The groundwork for the First Department caselaw is that MDL § 302’s rent-forfeiture provisions derogate the common law and are penal in nature. In the First Department, MDL § 302 must be construed strictly, not liberally to effect their remedial and beneficial goals.[36]

In other words, First Department courts will not enforce the rent penalty when the noncompliance has no negative impact on the subject unit.[37] The key aspect is that in the First Department, the irregularity over the c/o must directly impact or relate to the unit for which rent arrears are sought.[38] Otherwise, the landlord might be permitted to recover arrears.

Sometimes a landlord will not be subject to rent forfeiture despite a c/o or MDR violation. Assume that the c/o permits residential occupation of a unit and that the landlord commences a nonpayment proceeding against that unit’s tenant, although illegal apartments are elsewhere in the building. When the landlord is pursuing the “legal” tenant, the courts of the First Department do not always impose the MDL’s rent-forfeiture provision, and arrears may be sought despite the c/o defect.[39] For example, the Appellate Term, First Department, has held that if an illegal basement apartment does not affect a tenant’s sixth-floor occupancy, the landlord’s petition for arrears against the legal apartment need not suffer dismissal based on the illegal unit.[40]

The basis of this rule is that some question whether the legal tenants are within the class of persons the MDL is meant to protect. As one author has observed, “tenants who assert an MDL 302 defense to non-payment proceedings are in essence raising contradictory claims. One the one hand they claim their occupancy is dangerous or illegal; on the other, they claim that they should be permitted to remain in occupancy, rent free . . . . when there is nothing wrong with their own premises.”[41]

But the reasoning behind allowing landlords to seek arrears from tenants not in an illegal apartment, or legal tenants, has been questioned, particularly in the Second Department, where one court has observed that the “heightened risks and fire, health and safety issues are not limited only to the so-called illegal apartment.”[42] Additionally, permitting tenants in legal apartments successfully to defend nonpayment proceedings on the basis of MDL defects might work a windfall for them. Thus, “the tenants of these [legal] apartments are unjustly enriched by not being within the court’s jurisdiction in a nonpayment suit.”[43] Whether nonpayment proceedings may be maintained against legal tenants is more hotly contested in the Second Department.[44] In the First Department, they are often allowed.

There are other instances when the courts of the First Department allow a landlord to recover rent from a tenant who occupies premises in violation of the building’s c/o. First, a landlord can maintain a cause of action for arrears when a tenant is complicit in converting a portion of a building into an illegal unit or when the tenant enters into occupancy of premises the tenant knows is illegal.[45] If so, it will not matter whether the premises has conditions that threaten the occupants’ health, welfare, and safety or whether the unit at issue is legal or illegal in light of the c/o.

Second, the tenant might be required to pay the rent sought if the landlord can quickly obtain a proper c/o. Pay to the court, that is. In one case, the Appellate Division, First Department, conditioned the tenant’s payment of rent into court “while stimulating plaintiff's expeditious completion of the actions necessary to legalize the premises.”[46] The court noted that the tenant did “not claim the premises pose[d] a threat to his health and safety” or that the premises’ condition adversely affected the tenant’s occupation.[47]

Third, according to the First Department’s Appellate Term, “[t]he rent withholding sanction is not available to tenants who are themselves impeding the compliance with the [c/o] requirements,”[48] and that is the law statewide, for the Court of Appeals held in Chatsworth 72nd St. Assocs. v. Ragai, ultimately affirming the order of Civil Court, New York County, that rent may not be forfeited when the tenants’ refusal to vacate thwarts the landlord’s attempt to secure a permanent c/o.[49]

In the First Department, therefore, a landlord not in compliance with the MDL and against whose building a c/o or MDR violation exists will be barred from collecting rent. But for the forfeiture to apply, the conditions must warrant punishing the landlord for allowing the conditions to exist, arrears must be sought only for the illegal unit, and the tenant must not be complicit in the existence and maintenance of the illegal apartment.

The Second Department

In the Second Department, courts hold fairly consistently that no rent may be recovered when the MDL is violated and when the nonconforming use relates to the c/o. One court has gone so far as to note that “a review of the Second Department caselaw shows that the literal meaning of MDL [section] 325 is still the proper standard to be applied.”[50] In so noting, that court rejected the landlord’s contention that “there is a trend to ‘liberalize’ the requirements of the [MDL],”[51] despite the landlord’s arguing that cases like B.S.L. One Corp. v. Rubenstein[52] support that view.

In B.S.L., a cooperative tenant entered into possession of an illegal apartment knowing about the improper c/o. The landlord was awarded arrears because the tenant prevented the landlord from obtaining a proper c/o. Although this decision seems to bring the Second Department in line with the First, B.S.L.’s extenuating circumstances take the case outside not only the MDL’s rent-forfeiture provision but also outside the First Department’s occasional deviations from the “no rent” rule. Specifically, the B.S.L. court was worried that “[r]espondent’s attempt to recover eight years back rent paid from the time she purchased the shares [would place] an unnecessary burden upon petitioner, [and] may cripple the co-operative or threaten its viability to the detriment of all shareholders including respondent herself.”[53] The B.S.L court was primarily interested in preserving the cooperative. As noted in Shahid v. Doe,[54] the B.S.L. court stated that “[i]n the absence of certain circumstances described earlier, which may excuse a landlord from a strict mechanical reading of MDL § 302 to avoid a tenant’s unjust enrichment, equitable construction of the statute’s rent forfeiture penalties generally requires a literal application of the statute.”[55] Without these extenuating circumstances and considerations¾such as proof “that the failure of the landlord to have a Certificate of Occupancy was the result of an error by the Department of Buildings”[56]¾the rule in the Second Department is strict compliance with MDL § 325 with respect to illegal apartments. Absent strict compliance, all rents are forfeited under MDL § 302 in the Second Department.

Courts in the Second Department are at odds, not only with the courts in the First Department, but also with themselves over whether rent arrears may be sought from tenants in legal apartments when illegal units are elsewhere in the building. Some Second Department courts hold that rent arrears may be sought in those situations while others hold that all rents—from legal or illegal units—are forfeited when a c/o or MDR violation exists.

In Mannino v. Fielder, the court determined that literally applying the MDL was called for in all nonpayment proceedings, not only those in which rents were sought from tenants in illegal units.[57] The court rejected the landlord’s contention that other cases from courts in the Second Department suggest that rent might be sought from tenants occupying legal apartments. The landlord had relied upon the Chan v. Kormendi, a Queens County case that holds that the MDL’s purposes of protecting tenants from unsafe conditions and identifying the owner are met with respect to legal units and thus that the MDL’s rent-forfeiture provision was inapplicable.[58] The Mannino court instead adopted the reasoning of Manabhal v. Talavera, in which a holdover proceeding was dismissed against a tenant who resided in a legal apartment in premises also containing an illegal unit.[59] In Manabhal, the court discounted the landlord’s arguments, analogous to those the landlord made in Mannino, and in dismissing the holdover found that any changes to the MDL and its requirements should come not from the courts but from the legislature.[60] The Mannino court determined that the same result is warranted in nonpayment proceedings.

Although Totaram v. Cordero[61] and Marrocco v. Lugero[62] cited Mannino with approval, another court split the difference. In Skala v. Edlich, the court held that because the tenant lived in the legal unit, the tenant was responsible for the arrears—after the landlord corrected the MDL violation.[63] But illegality is often incapable of cure, or is curable only at significant expense.

Finally, stipulations of settlement with monetary judgments are unenforceable—at least in the Second Department, where there is authority on the subject. In two cases, tenants residing in illegal apartments consented to monetary judgments for rental arrears that accrued while the premises in which they were residing were did not conform to the c/o. When the Appellate Term, Second Department, addressed these cases, it vacated the monetary aspects of the stipulations. The Appellate Term reasoned that the “proscription provided for in [MDL] § 302, deemed penal in nature and strictly applied, constitutes a regulatory restraint on landlord[s] that may not be ‘waived’ by stipulation.”[64] In a third Second Department case, the Appellate Term refused to vacate the possessory aspect of a stipulation that converted a nonpayment proceeding into a holdover proceeding even though the petition did not allege a proper MDR.[65] The First Department has yet to speak on this issue.

What all this means is that courts in the Second Department have yet to determine with finality whether rent may be collected from a tenant in a legal unit when illegal units exist elsewhere in the subject multiple dwelling. This, although “the Second Department caselaw shows that the literal meaning of MDL [section] 325 is still the proper standard to be applied.”[66]

Actions and Proceedings for Possession

As if uncertainty with respect to nonpayment proceedings were not enough, the existence of an illegal unit in a multiple dwelling also impacts possessory proceedings. A question exists whether a possessory proceeding may be brought by a summary holdover proceeding or whether an ejectment action is the appropriate mechanism to remove a tenant who resides in an illegal apartment. If ejectment is elected or appropriate, there are two forums for these cases: Supreme Court and Civil Court. A landlord should bring an ejectment action in Civil Court when the amount of the dispute—the tax-assessed value of the premises at issue—is $25,000.00 or less, [67] the Civil Court’s jurisdictional limit. In all other instances, landlords should bring their cases in Supreme Court, which has original, general jurisdiction and thus no jurisdictional limit on the action’s monetary value.[68] The MDL itself makes no mention of possessory proceedings, aside from providing that “no action or special proceeding shall be maintained . . . for possession of said premises for nonpayment of such rent.”[69] It therefore seems from the governing statutory language that a defect in MDL compliance would not impact actions or proceedings seeking possession alone. But exceptions and distinctions abound.

Judges¾though not all, and not in all cases, as explained below¾often find that summary holdover proceedings may not be maintained absent compliance with the MDL’s registration requirements.[70] As one court put it, “in the world of summary proceedings in New York City, the housing court refuses to entertain ‘holdover’ proceedings in regard to tenants in illegal apartments.”[71] It is not the MDL noncompliance that prohibits a holdover proceeding. Rather, when creating the illegal apartment results in

a “de facto” multiple dwelling (one which in fact contains three or more dwelling units, but has a certificate of occupancy only as a one- or two-family dwelling) . . . the remedy of a holdover under Real Property Actions and Proceedings Law [RPAPL] § 711 becomes unavailable. This is not because the [MDL] bars a proceeding in this situation, but because the petition fails to allege multiple dwelling registration as required pursuant to 22 NYCRR 208.42 (g) and, thus, fails to state a cause of action.[72]

Accordingly, adding an illegal apartment to a building that otherwise constitutes a duly registered multiple dwelling will not defeat the landlord’s prior, proper registration or any future holdover proceeding.[73]

A policy argument supports disallowing holdovers when an MDL violation exists. If an expeditious summary proceeding were available and the landlord successfully removes the tenant, the landlord could re-let the illegal premises before anyone reports the unlawful space, “and the cycle of illegality [would] continue.”[74]

Yet some courts have found that landlords may maintain holdover proceedings to recover premises occupied in violation of a c/o.[75] This might be a logical conclusion. Because the MDL’s purpose is to ensure safe housing,[76] permitting a tenant to remain in an illegal apartment would defeat not only that goal but might also work an unjust enrichment to the tenant because the landlord might be precluded from collecting rent or use and occupancy.[77] One court that held that holdover proceedings may be maintained despite an MDL violation reasoned that when there is an otherwise valid c/o and the requisite pleadings appear in the petition, the court is powerless to strike the c/o or deem the MDR invalid.[78] Thus, with the requisite pleadings made, and without specific statutory authority prohibiting a holdover proceeding, the proceeding might be maintained.

For example, in Meaders v. Jones, a co-author of this article, sitting in Richmond County, denied a tenant’s motion to vacate a stipulation in which the tenant consented to a judgment of possession and some future payment of use and occupancy.[79] On appeal, the Appellate Term, Second Department, modified in part. While vacating that portion of the stipulation relating to use and occupancy, the Appellate Term upheld the possessory judgment.[80] The litigants had fought over the possessory judgment; if the Civil Court’s Housing Part had no jurisdiction to hear the dispute, the stipulation might have been vacated, and if so the landlord would have been forced to bring a slower ejectment action, thus affording the tenant more time to reside in his apartment, or well past six months.

The Appellate Term, finding that the Housing Part had jurisdiction all along, wrote that “it is well settled that a landlord may maintain a holdover proceeding to recover premises occupied in violation of the certificate of occupancy requirements.”[81]

The Appellate Division, Second Department, granted leave to appeal in Meaders on December 23, 2003. The tenant-appellant filed his brief with the Second Department on June 14, 2004. As of the writing of this article, the landlord-respondent’s brief was not filed and arguments were scheduled for sometime in September 2004.

Nii v. Quinn[82] presents a scenario similar to the one in Meaders. The landlord in Nii registered the premises and had a c/o. The tenant, however, occupied the premises in violation of the c/o. After the landlord began a holdover proceeding for arrears, use and occupancy, and possession, the parties entered into a stipulation in which the tenant consented to monetary and possessory judgments. On appeal, the Appellate Term, Second Department, found that the landlord had made no effort to obtain a conforming c/o and that as a result, the landlord could not collect any arrears sought in the petition.[83] But the court also found that “inasmuch as landlord is entitled to maintain a holdover proceeding to recover possession of premises occupied in violation of a certificate of occupancy and the remaining terms of the settlement stipulation are severable from the unenforceable terms and constitute a proper disposition of the parties' rights and interests, we find no basis to strike the portion of the stipulation which awards landlord possession.”[84] With that, the court found, at least implicitly, that holdover proceedings may be maintained to recover illegal units.

The Appellate Term’s decision in Meaders, despite affirming the Housing Part’s central ruling, has been the subject of debate. One authority has written that “[i]t is difficult to reconcile the holding in Meaders v. Jones with the holdings in Santos v. Aquasvivas and in Blackgold Realty Corp. v. Milne.”[85] The Appellate Term had held in Santos held that “[a]s a condition precedent to maintaining a holdover proceeding, the landlord must allege the registration requirements pursuant to Multiple Dwelling Law § 325 . . . .”[86]



Moreover, without in any way suggesting that the Appellate Term decided Meaders incorrectly (or even correctly, because a discussion of Meaders’s merits is not the authors’ goal[87]), a tenant’s attorney might argue that three cases the Appellate Term cited in Meaders do not support the proposition that landlords may maintain summary holdover proceedings in the Housing Part to remove tenants from illegal apartments. Hornfeld v. Gaare, for example, did not uphold a landlord’s right to bring a holdover proceeding against a tenant. Rather, the Hornfeld court awarded the landlord a declaration that the tenant had to vacate illegally occupied premises.[88] That was akin to an order for ejectment, a plenary mechanism to remove tenants from illegal premises.[89] Additionally, 99 Commercial St. v. Ulewellen confirms a landlord’s right to bring an ejectment action, not a holdover proceeding against tenants occupying illegal units.[90] And Nii v. Quinn, which allows a landlord to maintain a holdover, itself cites Hornfeld,[91] which, as noted above, does not say that the Housing Part may hear holdover proceedings to evict tenants who live in illegal dwellings.

Meaders has already begun to have offspring. Recently, the Appellate Term, Second Department, decided two cases, Esposito v. Ango[92] and Furman v. DeGeorge[93] — both resolved below by a co-author sitting in Richmond County — that raise questions about illegal dwellings.

In reviewing Esposito, the Appellate Term, citing Meaders with approval, declined to vacate the possessory aspect of a stipulation concerning what it termed an illegal multiple dwelling — but only because the tenant had already vacated the premises. The court did, however, vacate the monetary provisions of the settlement, consistent with Meaders. The same day Esposito was published, Furman was published. Furman followed Meaders in allowing for a possessory judgment in stipulations involving illegal multiple dwellings. But unlike Esposito, Furman upheld the judgment, not because the tenant had vacated, but because, under Meaders, a landlord may maintain a holdover for an illegal dwelling.

Furman raises a second issue. The Appellate Term declined to order money returned because the court found that the tenant paid the monies voluntarily under the terms of a stipulation by which the tenant obtained a stay. Given Furman, one can ask why a court would vacate the monetary aspect of a stipulation in which a tenant agrees to remit rent or use and occupancy in the first place.[94]

If the Housing Part has no jurisdiction over these proceedings, landlords still have remedies, and tenants still have protections. For example, a landlord may request that the Department of Buildings (DOB) inspect the premises. The New York City Administrative Code provides that the DOB may “order and immediately cause any building, structure, place or premises (i) to be vacated; and, also, if the commissioner determines such action is necessary to the preservation of life and safety, (ii) to be sealed, secured and closed.”[95] A DOB determination is difficult to overrule or change. Absent “a clear showing . . . that the administrative determination . . . to issue [a] Vacate Orders is arbitrary and capricious or in any way irrational, such determination should not be disturbed.”[96] Once made, the order is self-executing, and the tenant will be required to vacate forthwith.



If the DOB does not enforce its order, the court may order the agency to allow the landlord the opportunity to cure the illegality or keep the premises vacant.[97] This is good for landlords, if the illegality can be cured without great cost, because it might be faster than a summary proceeding and cheaper than an ejectment action, even with any fines assessed for the illegal premises. But purposely seeking a vacate order places the landlord in the position of contacting a regulatory agency to report wrongdoing—its own wrongdoing. Some may find this result undesirable. Tenants, however, are in a weak position to defend that action.



Ejectment actions present a seeming middle ground between Housing Part summary proceedings for possession and vacate orders. Landlords may still obtain speedy resolutions by way of summary-judgment motions filed shortly after issue is joined, although additional costs are associated these actions, including various filing fees, particularly in Supreme Court. Tenants, whether or not they receive a stay of the ultimate judgment for ejectment in the landlord’s favor,[98] may still seek to renew, reargue, or appeal any adverse determination and thereby obtain a stay, and in the meantime no rent is collectable from them, at least in the Second Department.



But what matters, according to the Appellate Term, Second Department, in Nii v. Quinn and Meaders v. Jones, is that landlords may maintain holdover proceedings in the Civil Court’s Housing Part to recover possession of illegal apartments,[99] given that MDL registration and pleading requirements do not implicate the court’s jurisdiction. Landlords, although in one sense not punished for having an illegal apartment, benefit from an expeditious adjudication with fewer costs. Together, these two cases recognize that tenants, although forced to vacate their homes without awaiting a lengthy ejectment action, will leave dangerous premises, and the Housing Part might have the power to award the tenant a stay of up to six months to effect a peaceful vacatur from the illegal unit even if the tenant pays no use and occupancy.[100] And under Nii and Meaders, the Housing Part, charged with enforcing laws affecting the housing stock to protect that inventory, will comply with that mandate.

Conclusion

A hodgepodge of decisions has wreaked havoc on landlord-tenant proceedings involving illegal threes. Until the Appellate Division in each department in which the MDL is at issue releases a series of definitive rulings, or until the legislature redrafts and clarifies the MDL, practitioners, landlords, and tenants alike will continue to muddle through the refractory and conflicting issues surrounding the illegal multiple dwelling in New York City.

This article was originally published in the N.Y. Real Property Law Journal, Summer/Fall 2004, Vol. 32, No. 3, Pg. 83, published by the New York State Bar Association, Real Property Law Section, One Elk Street, Albany, New York 12207.

[1] Hall v. Burroughs, 159 Misc. 2d 481, 485, 604 N.Y.S.2d 684, 687 (Hous. Part Civ. Ct. Kings County 1993).

[2] Mannino v. Fielder, 165 Misc. 2d 605, 608, 629 N.Y.S.2d 651, 653 (Hous Part. Civ. Ct. Kings County 1995).

[3] N.Y. Mult. Dwelling L. § 4 (7); see also Jalinos v. Ramkalup, 255 A.D.2d 293, 294, 679 N.Y.S.2d 419, 419 (2d Dep’t 1998) (mem.) (“[P]laintiff is the owner of a two-family home which contains three separate apartments, one of which was occupied by the defendants. The premises therefore constitute a multiple dwelling as defined by Multiple Dwelling Law § 4 (1) and (7).”). A “family” includes a single-person household. N.Y. Mult. Dwelling L. § 4 (7).

[4] N.Y. Mult. Dwelling L. § 325(2).

[5] Id.

[6] Id. § 301(1).

[7] See generally id. § 302 (providing penalties for violating registration requirements).

[8] Id. § 302(1)(b).

[9] Id. § 325(2); e.g., Furman v. DeGeorge, N.Y.L.J., June 10, 2004, at 29, col. 1 (App. Term. 2d Dep’t 2d & 11th Jud. Disits, mem.); Baer v. Gotham Craftsman Ltd., 154 Misc. 2d 490, 493, 595 N.Y.S.2d 604, 606 (App Term 1st Dep’t 1992) (per curiam) (dismissing counterclaim to return back rent voluntarily paid); but cf. Carcione v. Rizzo, 154 Misc. 2d 13, 593 N.Y.S.2d 152 (App. Term 2d Dep’t 2d & 11th Jud. Dists.1992) (mem.) (holding summary judgment improper when issues of fact arise whether payments were voluntary or tenant alleges fraud and misrepresentation).

[10] See supra at note 3 (defining multiple dwellings).

[11] E.g., Wokal v. Sequin, 167 Misc. 463, 465, 4 N.Y.S.2d 86, 88 (Mun. Ct. Queens County 1938).

[12] E.g., Corsini v. Gottschalk, N.Y.L.J., Dec. 20, 1999, at 32, col. 2 (App. Term 2d Dep’t 9th & 10th Jud. Dists.) (“The fact that landlord had a certificate of occupancy for a one-family dwelling rather than a two-family did not bar recovery of rent in the instant case.”) (internal citations omitted); Rose v. Leverich, N.YL.J., June 9, 1997, at 32, col. 1 (App. Term 2d Dep’t 9th & 10th Jud. Dists.) (mem.) (“The absence of a certificate of occupancy is not a bar to seeking the recovery of rent.”) (mem.); Tuzel v. Reilert, N.Y.L.J., Dec. 3, 1996, at 26, col. 3 (App. Term 2d Dep’t 10th & 11th Jud. Dists.) (mem.) (“The statutory bar to recovery of rent . . . . is no bar where a one-family home is used as a two-family.”) (internal citations omitted) (awarding judgment of possession and money); Herzog v. Thompson, 50 Misc. 2d 488, 490, 270 N.Y.S 2d 469, 471 (Civ. Ct. N.Y. County 1966); but see Fantuzzi v Todras, N.Y.L.J., Feb. 27, 2002, at 24, col. 5 (Civ. Ct. Richmond County) (barring rent collection for illegal twos, but citing no authority for its holding).

[13] See 22 N.Y.C.R.R. 208.42(g).

[14] Id.

[15] See, e.g., Chan v. Adossa, 195 Misc. 2d 590, 592, 760 N.Y.S.2d 609, 611 (App. Term 1st Dep’t 2003) (mem.) (“[I]t is clear that the requirement that a petition . . . include the MDR allegation was not intended to and cannot affect the jurisdiction of the Civil Court, particularly with respect to holdover proceedings.”); Citibank, N.A. v. Garcia, N.Y.L.J., Nov. 6, 1998, at 23, col. 2 (App. Term 2d Dep’t 2d & 11th Jud. Dists.) (mem.) (“The instant proceeding was brought pursuant to RPAPL § 713. Thus, the requirement that petitioner allege that the premises were not a multiple dwelling or the multiple dwelling registration number is not applicable”); Freedman v. Hahn, N.Y.L.J., Mar. 31, 1989, at 21, col. 3 (App. Term 1st Dep’t) (per curiam) (“The absence from landlord’s proof of a rent registration statement . . . was not fatal to this holdover proceeding seeking possession on the basis of tenant’s alleged nonprimary residence.”); see generally Andrew Scherer, Residential Landlord-Tenant Law in New York § 7:138, at 7-56 (2004 ed.); Daniel Finkelstein & Lucas Ferrara, Landlord and Tenant Practice in New York § 15:467, at 15-216 (2003 ed.).

[16] Scherer, supra note 15, at § 12:40, at 12-16, 12-17.

[17] Id. at § 7:139, at 7-57.

[18] Lin v. Rivas, N.Y.L.J., May 26, 1998, at 30, col. 5 (App. Term 2d Dep’t 2d &11th Jud. Dists.) (mem.) (finding “pleading infirmities” relating to MDRs amendable absent “prejudice to the respondent”); Whitehall Apts. Co. v. Zeigler, N.Y.L.J., Jan. 26, 1993, at 22, col. 1 (App. Term 1st Dep’t) (per curiam) (finding variance due to transcription error in petitioner’s name between MDR and petition not fatal to proceeding).

[19] 390 W. End Assocs. v. Raiff, 166 Misc. 2d 730, 733, 636 N.Y.S.2d 965, 966 (App. Term 1st Dep’t 1995) (per curium).

[20] N.Y.C. Admin. Code § 27-2107(b).

[21] N.Y. Mult. Dwelling L. § 325(2).

[22] Id. § 302(1)(b).

[23] Frank Pizza Irrevocable Trust v. Burns, N.Y.L.J., Oct. 7, 1998, at 29, col. 1 (Civ. Ct., Kings County).

[24] Aponte v. Santiago, N.Y.L.J., June 7, 1995, at 26, col. 6 (Civ. Ct. Bronx County).

[25] Beacway Operating Corp. v. Hult, N.Y.L.J., Mar. 13, 1992, at 21, col. 1 (App. Term 1st Dep’t) (mem.); Borglum v. Rich, N.Y.L.J., Jan. 18, 1990, at 23, col. 3 (App. Term 1st Dep’t) (per curiam); 128 E. 83rd St. v. Kagan, N.Y.L.J., Oct. 6, 1987, at 14, col. 1 (App. Term 1st Dep’t) (per curiam).

[26] Little v. Steginsky, N.Y.L.J., Oct. 22, 1998, at 28, col. 5 (App. Term 1st Dep’t) (per curiam) (“In a summary proceeding brought under RPAPL § 711, the petitioner must plead and prove . . . that a currently effective registration statement is on file . . . .”).

[27] Jocar Realty Co. v. Rukavina, 130 Misc. 2d 1009, 1010, 498 N.Y.S.2d 244, 245 (Hous. Part Civ. Ct. N.Y. County 1985), aff’d per curiam, 137 Misc. 2d 1045, 526 N.Y.S.2d 49 (App. Term 1st Dep’t 1987).

[28] N.Y.C Admin. Code § 27-2107(b); Oceana Apts. v. Spielman, 164 Misc. 2d 98, 100, 623 N.Y.S.2d 724, 726 (Hous. Part Civ. Ct. N.Y. County 1995) (“This court found no cases that hold that the failure to annex the registration receipt as is required under the law constitutes a substantial defect that is sufficiently prejudicial to merit or mandate a dismissal of the petition. Rather, this court believes it represents the kind of error that the appellate courts would find to be minor, nonprejudicial and therefore correctable.”) (citations omitted).

[29] 195 Misc. 2d at 592, 760 N.Y.S.2d at 611.

[30] Id. 195 Misc. 2d at 595, 760 N.Y.S.2d at 612.

[31] See, e.g., Hornfeld v. Gaare, 130 A.D.2d 398, 400, 515 N.Y.S.2d 258, 260 (1st Dep’t 1987) (mem.) (noting tenant’s argument that landlord was “not entitled to collect rent or use and occupancy because the [c/o] prohibits the residential use”); Missry v. Ehlich, 1 Misc. 3d 723, 723, 765 N.Y.S.2d 176, 177 (Civ. Ct. N.Y. County 2003) (“Respondent . . . moved for summary judgment dismissing this commercial nonpayment proceeding . . . . Respondent alleges that the premises are an interim multiple dwelling (IMD) lacking a [c/o] for residential use . . . .”).

[32] These cases arise regularly in The Bronx but only occasionally in Manhattan.

[33] E.g., Hakim v. Von Walstrom, 198 A.D.2d 139, 604 N.Y.S.2d 733 (1st Dep’t 1993) (mem.), which affirmed the order of the Housing Part, which had held that MDL rent forfeiture “will not be enforced under all circumstances” regarding a building occupied without a c/o.

[34] See, e.g., Mathurin v. Jackson, N.Y.L.J., Dec. 12, 1990, at 23, col. 2 (Hous. Part Civ. Ct. N.Y. County) (holding MDL § 302 sanctions warranted when c/o was absent and building conditions were grossly substandard.); 40 Clinton St. Assocs. v. Dolgin, 126 Misc. 2d 373, 375, 481 N.Y.S.2d 960, 962 (Civ. Ct. N.Y. County 1984) (holding MDL § 302 sanctions applicable when no c/o existed but dangerous conditions did).

[35] Gottlieb v. Marco, N.Y.L.J., Apr. 28, 1995, at 28, col. 3 (App. Term 1st Dep’t) (per curiam) (citations omitted).

[36] See, e.g., Goho Equities v. Weiss, 149 Misc. 2d 628, 572 N.Y.S.2d 836 (App. Term 1st Dep’t 1991) (per curiam) (disagreeing with McCooe, J., dissenting, who argued for a liberal, not strict, interpretation of MDL § 302, id. at 632, 572 N.Y.S.2d at 838).

[37] 50 E. 78th Corp. v. Jire, N.Y.L.J., Dec. 2, 1991, at. 25, col. 1 (App. Term 1st Dep’t) (per curiam) (“Such a violation does not . . . provide these tenants with a complete defense against landlord’s rent claim, since it neither adversely affected the structural integrity of the building nor rendered tenant’s residential occupancy unlawful.”).

[38] Bruce M. Solomon, Multiple Dwelling Law: The Matter of the Misplaced Decision, 1 Landlord-Tenant Prac. Rep. 4, 14 (2000).

[39] Little v. Joseph, N.Y.L.J., May 4, 1992, at 27, col. 4 (App. Term 1st Dep’t) (per curiam) (“Any alleged nonconforming use on the second and third floors does not warrant a complete rent forfeiture, and dismissal of the nonpayment proceeding under Sections 301 and 302 of the [MDL] was in error.”).

[40] Shoretown Realty Corp. v. Kahill, N.Y.L.J., Oct. 28, 1993, at 27, col. 3 (App. Term 1st Dep’t) (per curiam).

[41] Warren A. Estis, Real Estate Update: Landlord/Tenant Law, The Rent Forfeiture Statute¾Courts Take Conservative Approach to Applying MDL 302, N.Y.L.J., Dec. 8, 1993, at 5, col. 2.

[42] Mannino, 165 Misc. 2d at 610, 629 N.Y.S.2d at 654.

[43] Id. at 611, 629 N.Y.S.2d at 654.

[44] See discussion of that issue, infra.

[45] Zafra v. Sawhuck, N.Y.L.J., Jan 9, 1995, at 27, col. 2 (App. Term 1st Dep’t) (per curiam); Lipkis v. Pikus, 96 Misc. 2d 581, 409 N.Y.S.2d 598 (Civ. Ct. N.Y. County 1978), modified per curiam, 99 Misc. 2d 518, 520, 416 N.Y.S.2d 694, 696 (App. Term 1st Dep’t), aff’d mem., 72 A.D.2d 697, 421 N.Y.S.2d 825 (1st Dep’t 1979), lv. dismissed, 51 N.Y.2d 874, 414 N.E.2d 399, 433 N.Y.S.2d 1019 (1980).

[46] Zane v. Kellner, 240 A.D.2d 208, 209, 658 N.Y.S.2d 289, 290 (1st Dep’t 1997) (mem.).

[47] Id. at 209, 658 N.Y.S.2d at 290.

[48] Amdar Co. v. Armenti, N.Y.L.J., June 23, 1994, at 28, col. 4 (App. Term 1st Dep’t) (per curiam).

[49] 35 N.Y.2d 984, 324 N.E.2d 888, 336 N.Y.S.2d 531 (1975), aff’g, 71 Misc. 2d, 336 N.Y.S.2d 604 (Civ. Ct. N.Y. County 1972).

[50] Shahid v. Doe, N.Y.L.J., Dec. 24, 1997, at 24, col. 6 (Hous. Part Civ. Ct. Kings County).

[51] Id.

[52] B.S.L. One Corp. v. Rubenstein, 159 Misc. 2d 903, 606 N.Y.S.2d 979 (Civ. Ct. Richmond County 1994).

[53] Id. at 910, 606 N.Y.S.2d 984-85.

[54] Shahid, N.Y.L.J., Dec. 24, 1997, at 24, col. 6.

[55] B.S.L. One Corp., 159 Misc. 2d at 910, 606 N.Y.S.2d at 985.

[56] St. George Hotel Assocs. v. Jaye, NYLJ, Aug. 11, 1993, at 24, col. 2 (Hous. Part Civ. Ct. Kings County).

[57] Mannino, 165 Misc. 2d at 609, 629 N.Y.S.2d at 654.

[58] 118 Misc. 2d 1026, 1032-33, 462 N.Y.S.2d 943, 947-48 (Civ. Ct. Queens County 1983).

[59] N.Y.L.J., Aug. 18, 1993, at 24, col. 3 (Civ. Ct. Kings County).

[60] Maninno, 165 Misc. 2d at 609, 629 N.Y.S.2d at 654-55 (discussing Manabhal).

[61] 2003 N.Y. Slip Op. 50663(U), 2003 N.Y. Misc. LEXIS 315 (Civ. Ct. Kings County 2003).

[62] N.Y.L.J., Oct. 6, 1999, at 31, col. 2 (Civ. Ct. Richmond County).

[63] 2002 N.Y. Slip Op. 50129(U), 2002 N.Y. Misc. LEXIS 577 (Civ. Ct. Richmond County 2002); see also Christos v. Papastefanou, N.Y.L.J., Apr. 4, 2000, at 31, col. 4 (Hous. Part Civ. Ct. Bronx County).

[64] Nii v. Quinn, 195 Misc. 2d 821, 759 N.Y.S.2d 841 (App. Term 2d Dep’t 2d & 11th Jud. Dists. 2003) (mem.) (citations omitted) (disapproving of Holder v. Williams, 188 Misc. 2d 73, 725 N.Y.S.2d 793 (Hous. Part Civ. Ct. Kings County 2001) (using balancing test to decide whether to vacate stipulation concerning de facto multiple dwelling); accord Meaders v. Jones, 2003 N.Y. Slip Op. 51123(U), 2003 N.Y. Misc. LEXIS 933 (App. Term 2d Dep’t 2d & 11th Jud. Dists.) (mem.) (“While not implicating the court’s jurisdiction, such violations bar the recovery of rent or use and occupancy, and these proscriptions may not be ‘waived’ by stipulation. Thus, the stipulation’s terms awarding landlord rent and use and occupancy, as well as the money judgment entered thereon, are stricken, and the cause of action seeking a money judgment is dismissed.”) (citations omitted); see also Finkelstein & Ferrara, supra note 15, at §§ 14:275, 15:259, at 15-130.

[65] Willoughby v. Dance-Lonesome, 2003 N.Y. Slip Op. 51058(U), at 2, 2003 N.Y. Misc LEXIS 822, at 2 (App. Term 2d Dep’t 2d & 11th Jud. Dists.) (mem.).

[66] Shahid, N.Y.L.J., Dec. 24, 1997, at 24, col. 6.

[67] Fazio v. Kelly, N.Y.L.J., Sept. 24, 2003, at 20, col. 5; Cippollone v. Torres, N.Y.L.J., June 16, 199, at 33, col. 6 (Civ. Ct. Queens County); Frank Pizza, N.Y.L.J., Oct. 7, 1998, at 29, col. 1; Aponte, N.Y.L.J., June 7, 1995, at 26, col. 6.

[68] David D. Siegel, New York Practice § 12, at 15 (3d ed. 1999).

[69] N.Y. Mult. Dwelling L. § 302(1)(b) (emphasis added).

[70] E.g., Tan Holding Corp. v. Weber, N.Y.L.J., May, 15, 2002, at 19, col. 2 (Civ. Ct. N.Y. County).

[71] Fazio, N.Y.L.J., Sept. 24, 2003, at 20, col. 5.

[72] Khelawan v. Corneil, 190 Misc. 2d 621, 623, 739 N.Y.S.2d 557, 559 (Hous. Part Civ. Ct. Queens County 2002).

[73] Id. at 622, 739 N.Y.S.2d at 557.

[74] Fazio, N.Y.L.J., Sept. 24, 2003, at 20, col. 5.

[75] Nii, 195 Misc. 2d at 822, 759 N.Y.S.2d at 842 (citing Hornfeld, 130 A.D.2d 398, 515 N.Y.S.2d 258).

[76] Wash. Square Prof’l Bldg, Inc. v. Leader, 68 Misc. 2d 72, 74, 326 N.Y.S.2d 716, 719 (Civ. Ct. N.Y. County 1971).

[77] See nonpayment discussion, supra.

[78] Khelawan, 190 Misc. 2d at 624, 739 N.Y.S.2d at 559-60.

[79] For a discussion of Meaders, see Clinton Hill Lofts 1, LLC v Reid, N.Y.L.J., Aug. 6, 2003, at 23, col. 1 (Hous. Part Civ. Ct. Kings County).

[80] Meaders, 2003 N.Y. Slip Op. 51123(U), * 3, 2003 N.Y. Misc. LEXIS 933, at * 3.

[81] Id. (citing 99 Commercial St. v. Ulewellen, 240 A.D.2d 481, 483, 658 N.Y.S.2d 130, 132 (2d Dep’t) (mem.), lv. denied, 90 N.Y.2d 686 N.E.2d 1366, 664 N.Y.S.2d 271 (1977); Hornfeld, 130 A.D.2d at 400, 515 N.Y.S.2d at 260; Nii, 195 Misc. 2d at 822, 759 N.Y.S.2d at 842).

[82] Nii, 195 Misc. 2d 821, 759 N.Y.S.2d 841.

[83] Id. at 822, 759 N.Y.S.2d at 842.

[84] Id., 759 N.Y.S.2d at 842.

[85] Scherer, supra note 15, at § 7:138, at 7-57 (View from the Bench, by Hon. Fern Fisher) (citing Santos v. Aquasvivas, N.Y.L.J., July 10, 1997, at 32, col. 5 (App. Term 2d Dep’t 2d & 11th Jud. Dists, mem.); In re Blackgold Realty Corp. v. Milne, 69 N.Y.2d 719, 504 N.E.2d 392, 512 N.Y.S.2d 25 (1987)).

[86] Santos, N.Y.L.J., July 10, 1997, at 32, col. 5.

[87] Mr. Curtin wrote the preceding five paragraphs, this paragraph, the following three paragraphs, and the last paragraph in this section. Judge Lebovits, who decided Meaders in first instance, does not wish to express any views on the case.

[88] Hornfeld, 130 A.D.2d at 400, 515 N.Y.S.2d at 260.

[89] Totaram, 2003 N.Y. Slip Op. 50663(U), * 4-5, 2003 N.Y. Misc. LEXIS 315, at *4-5.

[90] 99 Commercial St., 240 A.D.2d at 483, 658 N.Y.S.2d at 132.

[91] Nii, 195 Misc. 2d at 822, 759 N.Y.S.2d at 842.

[92] N.Y.L.J., June 10, 2004, at 29, col. 1 (App. Term 2d Dep’t 2d & 11th Jud. Disits, mem.).

[93] N.Y.L.J., June 10, 2004, at 29, col. 1.

[94] Mr. Curtin wrote this paragraph, the next two paragraphs, and the last paragraph in this section. Judge Lebovits, who decided Esposito and Furman in first instance, does not wish to express any views on these cases.

[95] N.Y.C. Admin. Code § 26-127(b).

[96] E. 13th St. Homesteaders’ Coalition v. Wright, 217 A.D.2d 31, 39, 635 N.Y.S.2d 958, 963 (1st Dep’t 1995).

[97] Koroma v. Kempster, 2001 N.Y. Slip Op. 50012(U), 2001 N.Y. Misc. LEXIS 1325 (Civ. Ct. Richmond County 2001).

[98] See, e.g., Totaram, 2003 N.Y. Slip Op. 50663(U), 2003 N.Y. Misc. LEXIS 315. In Totaram, the Civil Court, Kings County, stayed the execution of a warrant of eviction in an ejectment action even though, under RPAPL 753 (1) & (2), a stay must be conditioned on the tenant’s paying use and occupancy, and in the Second Department a tenant may not be ordered to pay use and occupancy for an illegal unit.

[99] See Fazio, N.Y.L.J., Sept., 24, 2003, at 20, col. 5 (“[T]here is nothing in the statute to support the Housing Court rejection of jurisdiction and requiring institution of an [RPAPL] Article 6 [ejectment] proceeding.”) (citing Meaders).

[100] Cf. Totaram, 2003 N.Y. Slip Op. 50663(U), 2003 N.Y. Misc. LEXIS 315. If the Civil Court’s plenary part may grant a stay, by analogy so may the Civil Court’s Housing Part.

Gerald Lebovits is a judge of New York City Civil Court, Housing Part, in New York County and an adjunct professor at New York Law School. Judge Lebovits decided in first instance three cases mentioned in this article: Meaders v. Jones, Esposito v. Ango, and Furman v. DeGeorge. He expresses no view about these cases and did not write the passages about these cases. Daniel J. Curtin, Jr., is an associate at Finkelstein Newman LLP in Manhattan, the principal research and writing assistant for Finkelstein and Ferrara’s Landlord and Tenant Practice in New York (West), and an adjunct professor at New York Law School.

http://www.finkelsteinnewman.com/News28.html

note: there have been new developments since June 2004...
Anna
 
Posts: 2538
Joined: Mon Jul 22, 2002 1:01 am
Location: Manhattan

Postby Anna » Fri Nov 17, 2006 12:58 pm

See post-2004 Appellate Term decisions in both 1st and 2nd depts allowing LLs to maintain holdover proceedings despite lack of MDR:

http://www.tenant.net/phpBB2/viewtopic.php?p=25144

note: Bouwerie Lane Corp. v Black, 2006 NYSlipOp 51167(U) , was published as: 12 Misc.3d 132, 820 N.Y.S.2d 841
Anna
 
Posts: 2538
Joined: Mon Jul 22, 2002 1:01 am
Location: Manhattan

Postby TenantNet » Tue Nov 10, 2009 6:29 am

November 10, 2009
After Fatal Fire, Many in Queens Denounce Illegal Apartment Conversions
By ANNE BARNARD
New York Times

After a fire in an illegal basement residence killed three men in Woodside, Queens, on Saturday came the refrain from borough residents: Not again.

From the block of modest wood-frame houses on 65th Street where the fire broke out to the leafy eastern edge of the borough, residents lament that tenants crammed into illegal apartments are a persistent problem that grinds down the quality of life every day, but gets attention only when it becomes fatal.

“It’s not just about taxing sewer lines and overcrowding in schools and parking,” Corey Bearak, the president of the Queens Civic Congress, an umbrella group of local associations, said on Monday. “Ultimately, what happens with these fires, it manifests itself in people dying, and it’s absolutely outrageous.”

Lax building-code enforcement, a dearth of affordable housing and a lack of tax incentives to promote owner occupancy create a temptation for landlords and tenants alike to conceal illegal housing situations, Mr. Bearak said.

Worst of all, residents say, illegal conversions are so common that people feel powerless to curb them — and some tenants who lived in illegal units said they had not even realized they were living in dangerous quarters.

In Woodside, homeowners and tenants said it was well known that many houses on the block where the fire broke out had “extra rooms” in their basements.

There had been complaints twice before about the house that burned, at 42-40 65th Street. The Department of Buildings received complaints in 1990 and 2004; inspectors went to the scene both times but found no violations, said Tony Sclafani, a department spokesman.

There was “no evidence of misconduct” by the inspectors, he said, but the agency was investigating the inspection history.

On Saturday, firefighters were delayed in reaching the victims by an obstructed basement door, and they had to cut through bars on the basement windows, a fire official said.

The Buildings Department evacuated 1,086 illegally converted apartments in 2008, up from 823 in 2007 and 738 in 2006, Mr. Sclafani said.

After Saturday’s fire, the buildings officials discovered eight illegal single-occupancy rooms next door at 42-38 65th Street, across a driveway from the fire scene, and evacuated all of them, Mr. Sclafani said. He called on anyone who knew of other violations to come forward.

Diane Ross, 51, and her fiancé, Jeffrey Folk, 50, were among the tenants of those illegal rooms. “I assumed everything was legitimate,” Mr. Folk said. “I had no idea that it was illegal.”

“We didn’t know,” Ms. Ross said. “Where are we going to go? It makes me angry.”

A man who answered the door at the house, and identified himself as the landlord but refused to give his name for fear of a run-in with the authorities, said he charged $107 rent for the rooms, which he said were already subdivided when his family bought the house.

Ronne Barua, whose father, Subir, owns the house that burned, said his family had also bought the house with existing subdivisions. He declined to say if he knew they were illegal.

Subir Barua was hospitalized in critical condition after the fire.

Fire officials are investigating how much time elapsed between the discovery of the fire and the call to 911, said Jim Long, a department spokesman. Landlords with illegal units sometimes try to put out fires themselves, officials say, rather than immediately calling 911.

Housing advocates estimate that there are more than 100,000 units of illegally converted housing in the city. Queens has by far the most of any borough, with 48,000, according to a report by the Pratt Center for Community Development and Chhaya Community Development Corporation, a housing advocacy group.

In 2005, a fire in an illegally converted home in Elmhurst, Queens, killed three children and an 80-year-old man; a similar Queens fire killed a mother and two children in 2003.

Buildings Department officials say it is not always easy to catch violators. Many landlords have learned to avoid telltale signs like multiple mailboxes and doorbells. And the department needs a warrant to enter a house against a landlord’s will.

Rebecca White contributed reporting.
TenantNet
 
Posts: 10306
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Postby TenantNet » Sun Nov 22, 2009 4:20 pm

Queens deathtrap: It's six people packed into a one-bedroom apartment
by Tina Moore
New York Daily News
Sunday, November 15th 2009, 2:22 PM

Last month, a resident of Queens Jade apartments at 140-11 Ash Ave. in Flushing, Queens, noticed workmen carrying in wood to build more walls.

"You'd have to be an idiot not to know what's going on," said the resident, who phoned 311 to report the landlord for creating more rooms in four apartments around her.

Her call wasn't the first, records show.

Since 2008, 23 complaints have been filed claiming illegal apartments - potential firetraps - in the apartment complex. An unauthorized day care center in 1H has been on the city's radar for nearly a decade.

In 2002, the city cited the building's former owner for blocked exits at apartment 1H "which is now an illegal school." The owner was cited again last year and fined $2,500.

Inside 1H on Thursday, Jerry Shen insisted the day care center had closed. "This is a home office," he said, a notebook titled "Student Roster" open on a table in front of him. Crayon drawings hung on a wall nearby.

Next door, Jenny Sanchez, 27, said parents still knock on her door asking, "Is this the day care center?" Inspectors visited in April and May but closed the case with the note "unable to gain access."

What's happened at Queens Jade is happening all over the borough, where 12,911 complaints have been filed January through October - 62% of the city total. A staggering 3,419 of them were in Community Board 7, which includes Flushing.

"This is a safety issue and it's getting worse," said Community Board 7 District Manager Marilyn Bitterman. "The system is really broken."

Queens Jade resident Kai Niu, 40, said he shared his converted one-bedroom with five other people. Standing in a bedroom just large enough for the queen-sized bed he and his wife share, Niu said his mother sleeps next to the unit's entrance, while his brother, sister-in-law and nephew share a bedroom. "It's too small," the Chinese immigrant said.
TenantNet
 
Posts: 10306
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Postby TenantNet » Sun Nov 22, 2009 4:25 pm

Hidden deathtraps: After Flushing fire and 200K complaints, divided apartments still run rampant
NY Daily News
by Benjamin Lesser and Brian Kates
Saturday, November 14th 2009, 10:31 PM

Each year, for the past three years, the city has received more than 20,000 complaints about illegal apartments.

Half of those investigations were closed without the Buildings Department ever being able to set foot inside, records show.

A fire that ripped through a maze-like warren in Woodside, Queens, on Nov. 7 and killed three Bangladeshi immigrants shed a light on the city's failure to curb the decades-long growth of illegal apartments.

It's a failure that hinges on a little-known fact: owners can avoid penalties simply by not answering an inspector's door knock.

Increasingly, they don't.

In fiscal year 2006, inspectors gained access 60% of the time, a city report shows. In each of the last three fiscal years, the figure has hovered at 50%.

Subdivisions can turn an ordinary apartment into a deathtrap. Illegal renovations blocked the escape of the victims in the Woodside apartment blaze.

That apartment had two prior inspections and was cited for violations - but nothing changed.

Often, the Daily News found, complaints had little effect. More than 200 properties across the city have 10 or more illegal-conversion complaints since 2005.

If inspectors fail to gain access on the first try, they must go back on a different day. If they fail twice, the case is closed.

In scores of cases, inspectors visited the same building for years without determining if illegal apartments are hidden inside.

Just a sampling:

o Inspectors responding to complaints about a brothel and illegal apartments on 18th Ave. in Brooklyn have visited 22 times without getting in.

o For nine years, inspectors responded to complaints about an illegal day care center with no fire exits in a complex on Ash Ave. in Flushing, Queens. Building officials could never get in.

o Inspectors failed 10 times to get into a basement apartment on Fteley Ave. in the Bronx when a caller warned in January that exits were blocked. "There was a fire there recently and there are small children," the caller said. Inspectors tried twice more and failed. Case closed.

Thwarted inspectors leave a form telling the owner to make an inspection appointment. But in the Alice-in-Wonderland world of code enforcement, there's no penalty for ignoring it.

All over the city, homeowners are partitioning rooms and adding plumbing and kitchens to create off-the-books apartments.

"It's wrong, but a lot of people think it's the only way they can make it in this economy," said one Bronx landlord. "You have people subdividing all over the block."

The result is a firefighter's nightmare.

"When you go into a building, you expect a window or a fire escape or to be able to get through a door," said FDNY Department Chief Sal Cassano. "When you cut off that secondary egress, there is real danger."

In 2009 through last month, the FDNY has notified the Buildings Department of 566 illegal apartment conversions - up from 205 in all of last year.

Most housing experts blame the city's 3% vacancy rate, the cost of affordable housing and the influx of immigrants putting pressure on housing stock.

Take the two-story house at 1159 Manor Ave. in a largely Caribbean neighborhood in the Bronx. At least 18 complaints have been lodged about illegal apartments there since 2005. Not once has an inspector gotten inside, records show.

The News was unable to contact the owner, but neighbors' suspicions continue.

"Illegal apartments are all along here," said one neighbor. "They rent them for $1,000 a month and don't pay taxes. You worry about fires. I see inspectors come. Nothing changes."

Buildings Department spokesman Tony Sclafani said the department has enhanced enforcement. Last year, the department issued 1,086 vacate orders related to illegal apartments, up from 738 in 2006 and 823 in 2007.

He said inspectors need a warrant to enter a building without permission, and judges require evidence such as multiple mailboxes and doorbells that's difficult to obtain without getting in.

Since 2002, the city has obtained only 107 such warrants, he said. That's about 13 a year.

When inspectors manage to catch property owners, compliance followup is spotty. Take the house at 42-38 65th St., next to the Nov. 7 death house.

The night of the fire, authorities found illegal apartments at 42-38 65th St.

In 1998, the owner paid an $800 fine for having more tenants than allowed. Records cite "overdue compliance," meaning that the owner never submitted proof that the situation had been corrected.
The Tenant Network(tm) for Residential Tenants
Information from TenantNet is from experienced non-attorney tenant
activists and is not considered legal advice.

Subscribe to our Twitter Feed @TenantNet
TenantNet
 
Posts: 10306
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City


Return to Tenant Reference materials

Who is online

Users browsing this forum: No registered users and 21 guests