20-Year Rule and N.Y.C. Rent Stabilized Tenants

[consigliere]

The case of Brusco v. Armstrong, New York Law Journal, Februray 6, 2002, page 18, column 1, Appellate Term., First Department., by Parness, P.J.; Davis and Gangel-Jacob, JJ., has previously been reported in TenantNet's Housing Court Decisions and in the TenantNet Forum.
 
This summary and commentary by Scott Mollen, Esq. appears in Real Estate Update in the April 17th online edition of the New York Law Journal:
 
 
Owner Use Proceeding - 20-Year Rule Inapplicable to New York City Tenants Stabilized as a Result of ETPA- "Brusco" Reversed
 
This case involved an owner use holdover proceeding for possession of a rent-stabilized apartment. The trial court determined that the owner had sought in good faith to recover the premises for occupancy of his daughter. However, the trial court subsequently set aside its decision and dismissed the petition on the grounds that since the tenants occupied two contiguous apartments as a single primary residence, and one of the two was an "ETPA protected apartment," eviction was foreclosed under the so-called "20-year rule," precluding owner use proceedings against long-term tenants. The Appellate Term reversed and reinstated the trial court's original order of possession.
 
The court explained that the Emergency Tenant Protection Act of 1974 (ETPA) "is an enabling act which empowered New York City and certain local governments to impose, or, as in New York City, where it already existed, to extend Rent Stabilization . . . ." Thus, the New York City Council extended rent-stabilization coverage for housing accommodations within the City of New York to tenants in qualifying buildings who had entered into possession during the period of vacancy decontrol.
 
The court explained that the Rent Stabilization Code, as originally promulgated and subsequently amended, embodied no provision limiting the owner use remedy where the tenant has been in occupancy for 20 years or more. Such limitation derived solely from Chapter 234 of the Laws of 1984 which, afforded such protection only to Rent Controlled tenants and to tenants protected by the ETPA in cities having a population of less than 1.0 million. Chapter 234 did not "engraft the 20-year rule upon that part of the ETPA addressed to housing accommodations in cities having a population of 1.0 million or more. The relevant language of the ETPA which was not amended states:
 
For cities having a population of one million or more this act may be implemented by regulations adopted pursuant to the New York City rent stabilization law of 1969, as amended, or as otherwise provided by law. (see McKinney's Unconsolidated Laws §8630[b]).
 
The court noted that no regulation implementing the 20-year rule has been adopted under New York City Rent Stabilization. Therefore, the court said that the tenants' reliance upon §2504.4(a)(2) of the ETPA is inapplicable since "these regulations . . . apply to housing accommodations located in the counties of Nassau, Rockland and Westchester, which are subject to the Emergency Tenant Protection Act of 1974 . . . ."
 
The court further explained that since the Legislature specified the cases to which its enactment will apply and failed to specify other particular cases, "it is fair to conclude that the exclusion was intended . . . ." Thus, the court held that the absence from Chapter 234 of any provision for rent-stabilized or ETPA tenants within New York City "provides a strong indication that this was not a matter of mere Legislature oversight . . . ." Finally, the court explained that it could not "rectify any perceived omission of such provision by providing one by implication."
 
Comment: Susan Baumel-Cornicello of Cornicello & Tendler LLP notes that a case cited in the April 10 Realty Law Digest, Maris v. Summer, NYLJ, Feb. 6, 2002, p. 19, col. 3 (Civ. Ct., N.Y. Co.), which held that the "20-year rule" was applicable to rent-stabilized tenants in New York City, has been overruled by the above subject decision, i.e., the Appellate Term in Brusco specifically held that the ETPA's "20-year rule" precluding eviction of long-term tenants on owner occupancy grounds is not applicable to rent stabilized tenants in New York City.
 
Ms. Baumel-Cornicello further observed that, of the two cases cited by Maris "one was reversed (Brusco) and the other (involving a case her office is handling) was withdrawn sua sponte so as to comport with Brusco (Rosenfeld v. Hall, n.o.r. Civ. Ct., N.Y. Co., Index No.: L&T 69213/00 dated Feb. 21, 2002 (Wendt. J.))." Ms. Baumel-Cornicello noted that both Brusco and Maris were published on the very same date in The New York Law Journal."