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HELP!

NYC Housing Court Practice/Procedures

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HELP!

Postby henrygrins » Thu Jun 08, 2006 12:15 am

Hello all-

I'm a 22-yr-old recent college grad. I've been working steadily for the past 9 months, but I've gotten in over my head in a real estate deal in Spain. Long story short, I owe 2 months rent and my landlord is threatening to evict. It will literally be 2 weeks before I sell my interest in the Spanish property and am nearly $100k richer (and thusly am able to pay my rent), but I don't know what to do (as this is my first apartment, and I don't have experience in these matters.) I should mention that: A) this is a commercial lease (although I don't know exactly what that means in terms of legal occupancy under NYC zoning codes) and B) I have been in touch with my landlord and have explained the situation. How long does the eviction process take (realistically -- court appearances, etc included)? Is a typed note from the management company considered formal legal notice? Last but not least, should I be concerned? Thanks in advance...

Henry
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Re: HELP!

Postby Aubergine » Thu Jun 08, 2006 8:29 am

If you have signed a "commercial" lease for a place in Brooklyn where you are living, and your landlord knew that you were going to be living in the place, you are probably dealing with a landlord who consciously and deliberately breaks the law every day of the year in disregard of other people's safety, just because it pays. Why do you think that some random stranger on an internet forum, who has no idea laws your landlord chooses to ignore, is going to be able to advise you what your landlord will do next? For all we know, it would be safer for you to go borrow money from the local loan shark than to stiff this LL for another month's rent.
Aubergine
 

Re: HELP!

Postby henrygrins » Thu Jun 08, 2006 9:10 am

Well put. I see your point, but I was only wondering about the legal implications (for my landlord) if he were to try to take me to court (is there a case here?) I'm not a lawyer but my gut tells me that the LL might be in a worse position than I am (70 commercially-zoned loft apartments, 13 DOB complaints/23 violations).

Henry
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Re: HELP!

Postby Downtown » Thu Jun 08, 2006 9:52 am

You signed a commercial lease...was it live/work or no living allowed.
Tread carefully, as if living is absolutely not allowed, LL will claim knew nothing...but that's a whole new scenario.
LL to evict would have to proceed with commercial eviction (this is not housing court). Papers would have to be served. Court date set. (you probably have the 2 weeks). LL might be open to waiting as it is a can of worms (your living situation) and enters the court with dirty hands.
Commercial eviction works quickly...so would recommend you try to convince LL going to pay...at least try to borrow 1 month's rent or both.
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Re: HELP!

Postby henrygrins » Thu Jun 08, 2006 3:11 pm

Thanks again, downtown-

I just spoke to him. Will send him $1k tomorrow, then wait for the rest of the money. How do I tell if the lease is live/work? It says "Tenant understands that this is a commercial lease" in the rider, but makes no mention of live/work...

Henry
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Re: HELP!

Postby Aubergine » Thu Jun 08, 2006 3:58 pm

A Real Good Plumber, Inc. v Kelleher, 191 Misc 2d 94 (App Term 2d & 11th Jud Dists 2002):
A Real Good Plumber, Inc., Respondent,
v.
Elizabeth Kelleher, Appellant.

Supreme Court, Appellate Term, Second Department,

January 18, 2002

SUMMARY
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Sidney Goodheartz, J.H.O.), entered June 8, 2000, which awarded petitioner landlord possession of the demised premises and arrears of $22,625.

HEADNOTE

Landlord and Tenant--Loft Law--Unregistered De Facto Multiple Dwelling

In a "commercial" nonpayment summary proceeding based upon respondent tenant's residential use of allegedly commercial loft space, the Civil Court, in awarding final judgment in favor of petitioner landlord, erred in finding that respondent was bound by the restriction in the prime lease limiting the use of the demised premises only for commercial loft space without making any finding as to whether petitioner knew of and acquiesced in the residential use of the premises by respondent and other tenants. If petitioner knew of and acquiesced in the residential use of the otherwise commercial premises, the building would have to be registered as a multiple dwelling (see Multiple Dwelling Law § 325 [1]; Administrative Code of City of NY § 27-2097). Furthermore, if the building is deemed to be an unregistered de facto multiple dwelling, petitioner could not maintain the summary proceeding (Multiple Dwelling Law § 325 [2]; Administrative Code § 27-2107). Accordingly, the matter must be remanded for a new trial.

APPEARANCES OF COUNSEL

White & Case LLP, New York City (Leslie Morioka of counsel), for appellant. Burton Gelfand, Brooklyn, for respondent.[*95]

OPINION OF THE COURT

Memorandum.

Final judgment unanimously reversed with $30 costs and matter remanded for a new trial before a judge of the Civil Court.

Tenant's primary defense in this "commercial" nonpayment proceeding is that this proceeding does not lie because her loft is located in an unregistered de facto multiple dwelling (Multiple Dwelling Law § 325 [2]; Administrative Code of City of NY § 27-2107; Matter of Blackgold Realty Corp. v Milne, 119 Misc 2d 920, affd 126 Misc 2d 721, affd 119 AD2d 512, affd 69 NY2d 719; Jalinos v Ramkalup, 255 AD2d 293; Harris v Corbin, 79 Misc 2d 971).

Landlord leases two floors of the building located at 475 Kent Avenue, Brooklyn, pursuant to a prime lease for a 10-year term commencing October 1, 1998. The prime lease provides that the demised premises is to be used only as commercial loft space. A rider to the prime lease states that landlord is leasing the two floors for the purpose of dividing them into artist studios. Landlord installed 11 units on each of the two floors that it leases. Tenant moved into the subject unit in April 1999.

At trial, landlord's principal Paul Shay denied that he knew that tenant and the other occupants of the units on his two floors were living in their units. Although he admitted that 19 of his 22 units have full bathrooms, that he had installed gas lines into some of the units, and that he knew that some of the 22 units had stoves, he claimed that sinks, toilets, and gas lines are all legal in commercial spaces.

Tenant testified that before she moved in, she advised Mr. Shay that she was looking for a loft that could be used as both a working and living space; that Shay suggested that she look at the other units on her floor that were already occupied; that she did this and saw bathrooms, sinks and stoves being installed; that, at Shay's suggestion, she drew a diagram of where she wanted him to locate her bathroom and kitchen; that Shay was inside her unit in October 1999 and saw how it was set up; and that most of landlord's 22 units were used as living or living and working spaces. Tenant named some of the other tenants who were living in their units with their families.

After trial, the Civil Court awarded a final judgment in favor of landlord. The court reasoned that tenant was bound by the restriction in the prime lease, which provided that the space [*96] was to be used as commercial loft space. The court made no finding as to whether landlord knew of and acquiesced in the tenants' residential use of the premises.

In our view, the matter must be remanded for a new trial.

The Multiple Dwelling Law defines a "dwelling" as "any building or structure or portion thereof which is occupied in whole or in part as the home, residence or living place of one or more human beings" (Multiple Dwelling Law § 4 [4]; emphasis added) and defines a "multiple dwelling," as here relevant, as "a dwelling which is ... occupied as the residence or home of three or more families living independently of each other." (Multiple Dwelling Law § 4 [7].) Both the Multiple Dwelling Law and the Administrative Code require that the "owner" of a multiple dwelling register with the Department of Housing Preservation and Development (Multiple Dwelling Law § 325 [1]; Administrative Code § 27-2097).

The purpose of the registration requirement is to enable tenants and government authorities to readily contact owners and other persons responsible for the operation of multiple dwellings (390 W. End Assoc. v Raiff, 166 Misc 2d 730, 733). In keeping with this purpose, the Multiple Dwelling Law broadly defines "owner" to include a "lessee, agent, or any other person, firm or corporation directly or indirectly in control of a dwelling" (Multiple Dwelling Law § 4 [44]). In light of the language and purpose of the statute, we conclude that both its spirit and letter would require that the instant premises be registered if landlord knew of and acquiesced in the residential use (Mandel v Pitkowsky, 102 Misc 2d 478, affd 76 AD2d 807; see, Metzendorf v 130 W. 57 Co., 132 AD2d 262 [a landlord who knows that commercial premises will be used residentially is subject to the Rent Stabilization Law]; cf., 2009-2011 Third Ave. Corp. v Fifth Ave. Community Ctr. of Harlem, 169 Misc 2d 67 [where net lessee creates the conditions requiring registration, net lessor not bound to register]). Because the Civil Court made no finding of fact as to whether landlord knew of and acquiesced in the residential use, and this finding must be predicated on a determination of credibility, the matter is remanded for a new trial.

Aronin, J.P., Patterson and Golia, JJ., concur.
Aubergine
 

Re: HELP!

Postby henrygrins » Fri Jun 09, 2006 1:43 am

Good post Aubergine-

So ultimately the court decided a retrial was necessary? I can't help but think that the same would apply to my case. There are 66 units in my apartment building -- all commercial leases. No live/work whatsoever (well possibly, but very minimal "work"). I'm trying to reason with my landlord now, but it's tricky. Thanks for the advice, Downtown and Aubergine!

Henry
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Re: HELP!

Postby Aubergine » Fri Jun 09, 2006 11:04 pm

Actually, I was not giving you advice. As I said, you may be dealing with someone with utter contempt for the law and who knows if someone like that cares whether his contracts are enforceable. Do people who lend out money at 25% a month care if they can't go to court to collect from their "customers"? With that in mind, however, you should also know about the complications facing a LL who rents out factory space for people to live in.

If you really want to shake things up for the LL, call the FDNY and report the dangerous and illegal conversion of the building to residential occupancy.
Aubergine
 


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