Housing Court Decisions April 1996

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Issues/Legal Principles: Tenant's lease terminated for acts of son
Keywords Holdover; Acts of tenant
Caption: Matter of Stroman v. Franco
Court: Supreme Court, New York County
Judge: Alice Schlesinger
Date: April 24, 1996
Citation: NYLJ, page 25, col. 5
Referred Statutes none cited
Summary Tenant lived in public housing for over 17 years. Her son was arrested in 1991 and charges of non-desirability were brought against tenant. By stipulation she (the tenant) agreed to permanently exclude her son from residence and she was placed on a one-year probationary period. In 1994, the son was arrested twice and both times he told the police he resided with his mother, although no identification was provided. His mother confirmed the information orally and he was released on a desk appearance ticket which requires an ID showing. Normally, a defendant is retained in custody if no identification is presented. Based on the second arrest, the landlord brought a second non-desirability charge against the tenant and the hearing officer sustained the charge and terminated the tenant's tenancy. The tenant brought an Article 78 action challenging the termination. The court perused the transcript and ruled that the hearing officer did not conduct himself in an impartial manner (e.g., the tenant's evidence was belittled, her insistence that the son did not live there was brushed aside.) The court also found that the penalty was not commensurate with the charges because the tenant herself had no accusations against her personally in over 17 years. The court reversed the decision and sent the matter back for a re-hearing, directing that the case be heard before another hearing officer or a penalty imposed be one other than non-termination of the lease.
Notes: The tenant had obtained the legal services of an attorney from her union. Often union attorneys are not fully cognizant of landlord-tenant issues. The court noted that this attorney sincerely attempted to defend her client, but she failed to understand some of the key legal issues involved. It is always advisable that tenants locate an attorney who specializes in landlord-tenant law. Someone would not go to a foot doctor if they needed eye surgery. The same concept applies in law. This tenant probably was given free legal counsel by her union (or a reduced fee), yet the tenant no doubt had to later pay a more knowledgeable attorney to handle her Article 78 appeal. It makes sense to get specialized legal help from the beginning, even if it is costly, to avoid jeopardizing one's tenancy.

Issues/Legal Principles: Petition dismissed due to landlord's incorrect rent demand
Keywords: Rent Demand
Caption: Jones Street Apartments, Inc. v. Overture
Court: Civil Housing Court, New York County
Judge: Arlene Hahn
Date: April 24, 1996
Citation: NYLJ, page 28, col. 1
Referred Statutes: none cited
Summary: Pro Se tenant moved to dismiss the non-payment petition because the rent sought, $681.77, was incorrect. A DHCR rent reduction order placed the rent at $640.16. The landlord admitted that was the correct rent (even introducing the DHCR order in evidence), but argued that its three-day rent demand relied "in good faith" on the prior owner's allegation of what the rent was. The court ruled that the landlord's reliance on the prior owner's actions was inadequate and dismissed the petition based on the faulty predicate notice.
Notes: Courts go either way on the whether to dismiss a petition where the rent demanded is incorrect. Depending on the circumstances, judges often allow landlords to amend the petition to reflect the actual legal rent.

Issues/Legal Principles: Co-op tenant must supply duplicate key
Keywords: apartment keys
Caption: 111 Tenants Corp. v. Stromberg
Court: Civil Housing Court, New York County
Judge: Eileen Branston
Date: April 24, 1996
Citation: NYLJ, page 26, col. 5
Referred Statutes: CPLR 2201; RSC 53(a); New York City Administrative Code Y51-6.0(a)(1); Multiple Dwelling Law 51-c
Summary: Shareholder tenant's proprietary lease required that a duplicate key to the entrance door of her apartment be given to the co-op board. The tenant refused to do so claiming her privacy and safety would be compromised. She would only give the key if the landlord gave her written assurances it would only be used in emergencies, no duplicates made and that it be a special type of key. The court found that the tenant provided no evidentiary proof to substantiate her allegation that the landlord's agents would negligently safeguard the key or improperly use her key. Tenant, however, claimed she saw the super use duplicate keys to enter other apartments when those tenants were not home and once was startled to find the super in her own apartment. The landlord argued that the super is 62 years old and has serviced the building for 35 years and enjoys a reputation of trust and honesty with the other tenants. The tenant also claimed that once an unknown vagrant gained access to her apartment, although the court surmised this person did so without a key. The tenant argued that failure to provide a key is not a substantial violation of the tenancy warranting her eviction. The court disagreed stating that the contractual lease requires a duplicate key be tendered, as well as Multiple Dwelling Law 51-c. The court gave the tenant ten days to cure the breach of lease.
Notes: Although by law a tenant is obliged to give the landlord a duplicate key, circumstances of each case should determine when it would be unwise for a tenant to do so. In this case, the tenant failed to sustain a burden of proof for why she should not have to comply with the law. The court noted that she did not supply substantial evidence. Clearly, more than speculation and mere suspicions must be offered before a judge will waive the law by not requiring that the tenant tender a duplicate key. Also, if a landlord never demands a duplicate key, a tenant is not required to produce one. Many tenants actually prefer the super or landlord to have keys to all apartments in case of emergencies, such as floods or fires.

Issues/Legal Principles: Day care center in apartment is permissible
Keywords: Business use of home
Caption: Sorkin v. Cross
Court: Civil Court, New York County
Judge: Judge Howard Malatsky
Date: April 22, 1996
Citation: NYLJ, page 27, col. 3
Referred Statutes: 18 NYCRR 417.3(h), 418.2(27)
Summary: A holdover was brought against the rent stabilized tenant on grounds that the tenant violated a substantial obligation of the tenancy by operating a day care center for children in the apartment, and in violation of the certificate of occupancy for the building. The landlord's expert, an architect, testified that a day care center should not be operated on the second floor of a non-fireproof building, but no legal authority for this position was provided nor could any be found by the court with respect to the operation of day care centers in general. The court found that in-home day care services are consistent with public policy and do not alter the residential character of a building or a neighborhood. The court ruled that the tenant's actions did not constitute a substantial violation of the tenancy nor were they inconsistent with the certificate of occupancy for the building.

Issues/Legal Principles: Attorney's fees in 7-A proceedings
Keyword: attorneys fees
Caption: In Re Applictaion of Mary Roark Thenebe v. Ansonia Associates
Court: Appellate Division, First Department
Judge: lower court: Civil Court Walter Tolub
Date: April 18, 1996
Citation: NYLJ, page 26, col. 6
Referred Statutes: RPL 234
Summary: The Appellate Division upheld the lower court's order that awarded attorney's fees to the landlord because the landlord was the prevailing party in this 7-A proceeding. There must be a lease clause with an attorney's fees provision before fees can be awarded to any party. Prior to the commencement of the 7-A the DHCR reclassified the building as subject to Rent Stabilization, but the landlord still refused to tender proper renewal leases. The court did not accept the tenants' argument that the landlord should not be awarded fees because the landlord refused to tender renewal leases to the tenants. The Court held that only tenants whose leases have attorney's fees clauses would be held liable for payment of the landlord's fees.
Notes: A "7-A proceeding" is when tenants take a landlord to court to wrest control of the building away from the landlord for failure to make repairs.

Issues/Legal Principles: Sublet, notice to cure
Keyword: subletting
Caption: Hudson Associates v. Ernst Benoit
Court: Appellate Division, First Department
Judge: lower court: Housing Court Bruce Gould
Date: April 18, 1996
Citation: NYLJ, page 25, col. 5
Referred Statutes: RSC 2524.(3)(a)
Summary: The only evidence of an illegal sublet was testimony about a single incident on October 11, 1987 when a person other than the tenant was found in the apartment, and a second single incident in January, 1990. The court found the evidence insufficient and noted that even if an unlawful sublet was found, the landlord failed to prove that the tenant did not cure the allegation after the date in the notice to cure was served in February, 1990.

Issues/Legal Principles: sublet
Keyword: subletting
Caption: Moslin v. Concepcion
Court: Appellate Term, First Department
Judge: lower court: Housing Court Arthur Birnbaum
Date: April 16, 1996
Citation: NYLJ, page 25, col. 5
Referred Statutes: RPL 235-f(3)
Summary: Landlord brought an unlawful sublet proceeding, but only the subtenant appeared on the day of trial. A default judgment was taken against the prime tenant. The prime tenant moved to vacate the judgment stating that as a reasonable excuse for nonappearance he was in Puerto Rico attending a family funeral. The Appellate Term reversed and vacated the default. In a dissent, Justice McCooe noted that the burial was on November 4th and the trial November 17th, but no explanation was offered by the tenant for the discrepancy, nor was any documentation submitted that the tenant in fact resided in the apartment. McCooe would not have granted the motion to vacate the default, but he was outnumbered by his colleagues.

Issues/Legal Principles: Incorrect rent alleged; attorney's fees
Keyword: attorneys fees
Caption: 56 Mac D. Inc. V. Miller
Court: Appellate Term, First Department
Judge: lower court: Housing Court Jose Rodriguez
Date: April 16, 1996
Citation: NYLJ, page 25, col. 3
Referred Statutes: CPLR 5501(a)(1)
Summary: Tenant sought to overturn the final judgment by an application to the appellate court under CPLR 5501 on grounds that the nonpayment proceeding was void because the rent demanded in the three day notice and petition was incorrect. A DHCR order established the rent at $178.15 (apparently after the proceeding was commenced). The Court ruled that the lower court properly allowed the landlord to amend the petition to state the correct rent because there was "no showing that the original rent demand of $209.82 was not made in good faith when served." The Court awarded attorney's fees to the landlord where it was proven at trial that the tenant failed to provide access and failed to prove breaches of the warranty of habitability.

Issues/Legal Principles: NYC Pet law
Keyword: Pets
Caption: Park Holding Company v. Eimicke
Court: Appellate Term, First Department
Judge: lower court: Civil Court Joan Madden
Date: April 16, 1996
Citation: NYLJ, page 25, col. 3
Referred Statutes: Administrative Code of the City of New York 27-2009.1
Summary: Tenants' lease had an enforceable no-pet rider. They acquired a dog in 1987 and landlord did not object within three months after it had knowledge of the pet, so any right by the landlord to attempt to evict the tenants was waived under the "Pet Law." In 1994, the dog died and the tenants got another dog. The landlord immediately objected to the second dog and brought a holdover proceeding. The lower court dismissed the petition, ruling that if the no-pet provision of the lease was waived once by the landlord, the landlord could not evict tenants for the duration of their tenancy on grounds of breaking the no-pet lease clause. The Appellate Term reversed, holding that just because a landlord waived a right to challenge one violation of the lease, this does not prevent a landlord from challenging a second violation of the lease. The Court stated that the Pet Law was enacted to protect pet owners from retaliatory eviction where a landlord has known the tenant kept a pet, but uses the alleged violation as a pretext to evict.
Notes: There are two sides to this issue. On the one hand, there are tenants, especially elderly tenants, who are attached to animals and regard them as close companions, signficant others. Tenants are allowed to have an immediate family member reside with them (as well as a non-family roommate), so why not a pet if that is the tenant's primary relationship? Animal rights advocates may well protest this decision. On the other hand, what about this scenario: a tenant's first pet is a toy poodle, and the landlord waived a right to challenge because the three-month period under the Pet Law lapsed. The poodle dies and the tenant procures a menacing Doberman. Is the landlord precluded from challenging this second animal simply because no challenge was made to the toy poodle? Not according to the Appellate Term.
Additional Note: The tenant-defendant in this matter was William B. Eimicke who was, for a time, Commissioner of the New York State Division of Housing and Community Renewal (DHCR) under former Governor Mario Cuomo. Governor Cuomo's appointee proved to be quite inept -- so much so that the Governor's own party in the NYS Assembly conducted an investigation of DHCR (see "Bleak House" on TenantNet). In the lower court of this proceeding concerning pets, apparently Mr. Eimicke claimed the landlord was harassing him for his work as DHCR Commissioner -- for the "development and passage of laws on succession for Rent Stabilized tenants." It appears the lower court may have bought into this argument as its decision makes no mention of the fact that Eimicke had left the Commissioner's job long before the succession laws for rent stabilized tenants were instituted. Indeed, it appears that Mr. Eimicke may have lied to the court as it believed he was the DHCR Commissioner until shortly before the 1994 gubernatorial election. Although it is much more common for landlords to rely on invention and charades, in this case [at least in regards to his former job] it appears that Mr. Eimicke has done just that.

Issues/Legal Principles: Pets
Keyword: Pets
Caption: Paulsen Real Estate Corp. V. Grammick
Court: Appellate Term, 9th & 10th Judicial Districts
Judge: lower court: Nassau County District Court, Driscoll
Date: April 17, 1996
Citation: NYLJ, page 29, col. 2
Referred Statutes: RPL 234
Summary: Landlord brought a holdover against tenant on grounds that he harbored a dog in violation of his lease. Tenant lived in the apartment for 17 years and over the years had various dogs which landlord never complained about before. The dog in question came to the apartment in July, 1991. The notice to cure and notice of termination were served in July, 1994. The appellate court reversed the lower court's decision and found that the landlord waived any right under the lease to challenge the dog specifically because the landlord knew of the latest dog and yet accepted rent from July, 1991 up to the time of the termination notice. "Knowing acceptance of rent without any effort to terminate the lease justifies the inference that the landlord has chosen to uphold the tenant to the lease and therefore waived any violation." The court noted that the landlord failed to establish any other ground for terminating the lease, such as nuisance, and awarded the tenant attorney's fees.
Notes: This case does not conflict with the holding of Park Holding Company v. Eimicke [see above]. In both, a landlord is deemed to waive a right to terminate a lease based on a no-pet provision in the lease if the landlord does not act promptly. Under the Pet Law, a landlord must take action within three months of knowledge of the alleged breach.

Issues/Legal Principles: Prevailing party in attorney's fees award
Keyword: attorneys fees
Caption: 300 West End Avenue Assoc. Corp. v. Cannon
Court: Appellate Term, First Department
Judge: lower court: Housing Court James Grayshaw
Date: April 16, 1996
Citation: NYLJ, page 25, col. 1
Referred Statutes: none cited
Summary: Tenant's co-operative apartment was renovated and he signed an alteration agreement where he agreed to pay the architectural and other professional services incurred by the co-op. When tenant did not pay all the fees, the co-op brought a non-payment proceeding on grounds that the fees were "deemed" to be "additional rent" charged under the proprietary lease. At trial the co-op proved its case. The Appellate Term affirmed the lower court's ruling that it was no defense that some of the services were rendered prior to signing the agreement. The landlord was awarded attorney's fees because the landlord "entirely prevailed" at trial.

Issues/Legal Principles: Senior Citizen Rent Increase Exemption (SCRIE)
Keyword: Senior Citizen
Caption: Matter of Sacchetti v. City of New York Dept. of Aging
Court: Supreme Court, New York County
Judge: Ira Gammerman
Date: April 17, 1996
Citation: NYLJ, page 25, col. 5
Referred Statutes: non cited
Summary: SCRIE stands for "Senior Citizen Rent Increase Exemption" and is a program sponsored by the City which grants a partial rent increase exemption to tenants based on their low income. To compensate the landlord, the City provides a property tax abatement equal to the amount of rent not paid by SCRIE participants. The exemption lasts for two years, then the tenant must reapply. The petitioners were landlords with several SCRIE tenants. The tenants paid the lower rent even though their exemptions had lapsed and were not renewed. The landlords sought tax abatements from the City, but the court denied them this relief. Even if the tenants were qualified, if they did not in fact re-apply for the exemption then the landlord had no basis for obtaining a refund.

Issues/Legal Principles: Co-op tenant with washing machine
Keyword: Appliances
Caption: 3530 Owners Corp. V. Wilamowski
Court: Housing Court, Bronx County
Judge: Heymann
Date: April 17, 1996
Citation: NYLJ, page 26, col. 4
Referred Statutes: none cited
Summary: Co-op owning tenant installed a washing machine because a skin disorder prevented her from using public machines. The landlord brought a holdover proceeding on grounds that a co-op rule precluded usage of a washing machine in apartments. The tenant had the washing machine for ten years and argued that the board knew it about it, which constituted a waiver by the board to now challenge her on this ground. The court held that the co-op rule against washing machines was never incorporated into the proprietary lease when the tenant was assigned the shares years ago. The court ruled that it cannot revise the terms of the original agreement after the fact.

Issues/Legal Principles: Calculation of rent overcharges
Caption: Hart-Zafra v. Pilkes
Court: Appellate Term, 1st Department
Judge: lower court: Howard Malatzky
Date: April 12, 1996
Citation: NYLJ, page 25, col. 3
Referred Statutes: RSC 2526.1(a)(2), 2523.7(c); RSL 26-516(g); CPLR 213-a
Summary: A rent overcharge claim is limited to a four-year period preceding the interposition of a complaint. The law provides that the court look to the legal registered rent in effect four years prior to the most recent registration statement. In this case, the legal registered rent four years prior to the most recent registration statement would not have resulted in an overcharge claim by this tenant. This is because the initial overcharge occurred more than fours years prior thereto. The lower court ruled that a tenant can go beyond the four-year period to calculate the rent, but could only recover overcharges for the past four years. The landlord argued that tenants cannot calculate beyond four years because RSL 26-516(g) does not require landlords to produce records dating back more than four years prior to the most recent registration statement. The Appellate Term upheld the lower court and ruled that RSL 26-516(g) "does not operate as a statute of limitations on challenges to prior unlawful rent increases."
Notes: Tenants and tenant lawyers have been following this case for several months, anxious for its outcome. (Oral argument on appeal took place in October, 1995). This case is a tremendous victory for tenants. If this case had been decided in the landlord's favor, then landlords could put a collaborating tenant into the apartment, raise the rent to an excessive and unlawful amount, wait a mere four years, then no successive tenant could do anything about such flagrant violations of the law. Fortunately, with this Appellate Term decision, tenants can challenge any excessive increase at any time in the rent history of an apartment although they would still be limited to a collection of overcharges for only the past four years.

Issues/Legal Principles: Rent Stabilized succession rights
Caption: 736 Riverside Darive Corp. v. Doe
Court: Appellate Term, 1st Department
Judge: lower court: Arlene Hahn
Date: April 12, 1996
Citation: NYLJ, page 25, col. 5
Referred Statutes: RSC 2523.5(e); CPLR 4405, 4404(b), 5015(a)
Summary: Pro Se tenant failed at trial to establish that he was entitled to succeed to the lease after his life partner, the leaseholder, died. He obtained a lawyer from a legal services organization who moved to set aside the judgment and supplied "persuasive" documentary evidence corroborating his succession claim. The evidence included affidavits from the decedent's family attesting to the close, family-type relationship, the tenant's tax returns and W-s forms for ten years showing his residence at the apartment, his 1985 application for union benefits designating the decedent as his "girlfriend (getting married)," and a funeral program describing him as her "loving devoted friend." The lower court denied the tenant's motion on grounds that the evidence was not newly discovered, but could have been produced prior to trial and that even had it been produced a different result would not have ensued. The Appellate Term reversed stating that it found the evidence "of such a quality that a different conclusion would probably be reached if a new trial were granted." While the Court acknowledged that most of the evidence was available and discoverable by diligent effort, a trial court retains discretionary authority to order a new trial in the interest of justice. A dissenting memorandum by one appellate justice argued for upholding the judgment against the tenant because the evidence was not newly discoverable and no different result would have ensued. The burden is on the tenant to prove an "emotional and financial commitment and interdependence" between the decedent and the person seeking succession rights, evidence by such factors as sharing of household or family expenses, intermingling of finances, formalizing of legal obligations, holding themselves out as family members and regularly performing family functions. In this justice's view, this tenant failed to meet that burden. He noted that their was no joint sharing of bank accounts or any checks written in the tenant's name and that the relatives described the tenant as merely a "loving devoted friend."

Issues/Legal Principles: Owner occupancy and attorney's fees
Caption: Monacelli v. Farrington
Court: Appellate Term, 1st Department
Judge: lower court: New York Housing Court, Arthur Birnbaum
Date: April 10, 1996
Citation: NYLJ, page 25, col. 1
Referred Statutes: RSC 2524.4(4)
Summary: Tenant's sole defense to the landlord's owner occupancy proceeding was a 1979 stipulation which discontinued that 1979 case with prejudice and the tenant was given a three-year lease in exchange for her agreement to use another entrance to the building. Tenant argued that the current landlord was estopped from bringing an owner occupancy proceeding against her based on the 1979 agreement. The court held the landlord did not permanently forfeit its statutory remedy to pursue an owner occupancy case at the end of later lease renewals, even where a landlord had made previous efforts before. In a companion appeal, the landlord challenged the court's decision to deny the landlord attorney's fees. The lower court held that the case was "so close... it would be an abuse of discretion to grant attorney's fees." The appellate court reversed holding that landlord was the prevailing party by its successful prosecution of the owner occupancy proceeding. The Appellate Term held that a court should invoke its discretion to deny counsel fees "only where unfairness is manifest."

Issues/Legal Principles: Non-primary residence & sublet
Caption: Corliss Estates, Inc. v. Yulin
Court: Civil Court, New York County
Judge: Judge Eileen Bransten
Date: April 10, 1996
Citation: NYLJ, page 26, col. 5
Referred Statutes: RSC 2525.6(a)
Summary: The rent stabilized tenant received authorization from the landlord to sublet the apartment for two years. One month after the sublet expired the owner served tenant a notice of non-renewal of lease on non-primary residency grounds. The tenant argued that the authorized sublet necessarily precluded the tenant from residing in the apartment, because the subtenant was the actual and lawful resident for two years. The court held that the consent to sublet does not judicially or contractually prevent the landlord from challenging the tenant's primary residency status. The court observed that a sublet request entails the tenant's affirming that the premises are the tenant's primary residence and the Rent Stabilization Code requires a tenant to return to the premises at the end of the sublease. The court noted that although one aspect of a non-primary residency case is an inquiry into whether the tenant resided in the premises for 183 days out of the year (which this tenant obviously did not due to the sublet), other facts are also relevant. The court noted that the tenant failed to refute the landlord's allegations that the tenant has an address, driver's license and phone in California where he is employed, that he failed to list his New York apartment on his tax returns or vehicle registration, and tenant failed to state in his affidavit whether he did in fact return to the apartment at the end of the sublet. The court denied the tenant's motion to dismiss the petition and granted the landlord's motion to take the tenant's deposition.
Notes: In a non-primary residency action it is important to remember that there are a multitude of factors courts consider when assessing the tenant's residency. One factor alone, such as in this case the 183-day time period, cannot decisively determine a case. Although tax returns are a "biggie," they alone are not determinative of the issue. The cumulative evidence is what a court looks at to determine the tenant's nexus to the premises.

Issues/Legal Principles: Vacatur prior to lease termination
Caption: Whitehouse Estates Inc. v. Post
Court: Civil Court, New York County
Judge: Jose Padilla, Jr.
Date: April 10, 1996
Citation: NYLJ, page 26, col. 4
Referred Statutes:none cited
Summary: The tenant-defendant vacated the apartment in September, but the lease didn't expire until the end of December. The landlord sued for all rent owed from September through December. The tenant argued that the case should be dismissed because the landlord didn't mitigate its damages. This means that once the landlord is notified that the tenant is vacating prematurely the landlord must make reasonable efforts to locate a new tenant, rather than let the apartment sit empty and then sue the tenant for the rent. The landlord admitted that it never advertised the apartment's availability. The landlord argued that it had no duty to mitigate damages and cited a recent Court of Appeals case. The court, however, observed that the case pertained to a commercial tenancy, whereas the mitigation rule applies in a residential context. The landlord's response was that it put up several signs in the building, but the court found this a futile exercise and dismissed the complaint for rent.
Notes: If a tenant is planning to break the lease and vacate, the best precaution, if possible, is to inform the landlord in writing that the tenant will vacate in 30 days and the landlord can show the apartment to prospective tenants so long as the tenant (still in occupancy) is informed of the dates and times. A landlord who is making reasonable efforts to re-let the apartment (at a reasonable rent) will presumably find another tenant within 30 days and will not lose out on any rent money.

Issues/Legal Principles: Criminal contempt for failure to make repairs
Caption: DHPD v. Half Moon Real Estate Co.
Court: Civil Court, New York County
Judge: Peter Wendt
Date: April 10, 1996
Citation: NYLJ, page 26, col. 6
Referred Statutes: CPLR 5104; Judiciary Law 750; Administrative Code of the City of New York 27-2124
Summary: The landlord, Andonis Morfesis, agreed by consent order to correct all the violations in the premises. Upon failure to comply, the Department of Housing Preservation and Development (DHPD) brought a contempt proceeding seeking civil and criminal contempt against the owner. The claim was withdrawn when Morfesis was no longer in control of the premises. Apparently, DHPD renewed the motion, and the landlord opposed on grounds that criminal contempt was not proven beyond a reasonable doubt. The court held that there was more than sufficient evidence, including 17 "C" violations in the inspectors report, videotape shown at trial and the tenants' testimony. By the time of trial many of the violations remained outstanding. In addition to his failure to comply, the court noted that the landlord absented himself continuously from the proceedings, supposedly because he sought to avoid an outstanding arrest warrant. The court found the landlord had "willfully and contumaciously" violated the consent order and sentenced Morfesis to thirty days imprisonment and $1,000.00 fine.

Issues/Legal Principles:
Caption: In Re Mountbatten Equities v. DHCR
Court: Appellate Division, First Department
Judge: lower court: Supreme Court Judge Beverly Cohen
Date: April 8, 1996
Citation: NYLJ, page 26, col. 1
Referred Statutes: RSC 2527.7, 2522.7, 2526.2(a), 2526.1(d); RSL 26-516(b), 516(a)(4)
Summary: The lower court denied landlord's Article 78 action seeking to annul the DHCR's order which (a) revoked rent increases previously granted to the owner for the institution of new doorman services, (b) awarded certain tenants rent reductions and (c) directed the forfeiture of any unclaimed refunds to the DHCR. The DHCR further denied the owner's request to offset rent arrears of tenants whose whereabouts were unknown against the refunds and denied tenants' application for treble damages and attorney's fees. The owner did not obtain approval from 75% of the tenants, as required by the Code, for a building-wide rent increase. The Appellate Division ruled that the silence of tenants who abstained in a building poll regarding the service cannot be deemed consent, since the tenants never received written notice that their silence would be so interpreted. DHCR denied rent refunds to two classes of tenants: those who voted in favor of the new service and did not participate in a PAR, and those who moved in after the new service was instituted. The DHCR granted a refund to two other classes of tenants: those who voted against the new service and those who resided in the building at the time the service was instituted but neither consented to nor approved the service. The Appellate Division ruled that DHCR erred in awarding a refund to the class of tenants who voted in favor of the doorman service and fee but later participated in the PAR contesting the collection of that fee. The Court held, "Such opportunistic actions and inconsistent positions should not be rewarded." Another issue in this case was whether the pre-1983 Code or the post-1983 Code was effective, since the owner filed the application before 1983, but the DHCR did not rule until afterwards. The Court held that the current Code applies.

Issues/Legal Principles: Vacate default judgment
Caption: Newton Avenue Assoc. v. Hailazopoulos
Court: Appellate Term, 2nd & 11th Judicial Districts
Judge: lower court: Queens Housing Court, Harriet George
Date: April 2, 1996
Citation: NYLJ, page 29, col. 6
Referred Statutes: CPLR 5015
Summary: A non-payment petition was served on the tenant who failed to answer and a warrant of eviction was issued against the tenant. The tenant moved to vacate the default claiming improper service. On the return date for the traverse hearing (i.e., the improper service hearing), the tenant didn't show up. Thereafter the tenant again moved to vacate the default and the warrant and claimed that rent was paid in full on the date of the traverse hearing. The landlord returned the rent money and stated that it did not desire to reinstate the landlord-tenant relationship. (The landlord-tenant relationship is severed once the warrant issues.) To vacate a default judgment, the tenant must show a reasonable excuse for the non-appearance, and a meritorious defense. The lower court found that the tenant had no reasonable excuse and no meritorious defense, but nonetheless stayed the warrant for five days for tenant to pay all arrears. The tenant did pay the arrears and the landlord appealed. The Appellate Court reversed and held for the landlord, stating that "mere payment of rent arrears, in and of itself, does not constitute good cause to vacate the warrant of eviction after issuance of same."
Notes: Many tenants do not understand that once the warrant issues, the landlord-tenant relationship is severed and the landlord does not have to accept the tenant thereafter even if the tenant pays all the rent. Many judges lean on landlords to accept the rent and reinstate the tenancy, and many landlords do so simply to get their money. But this case demonstrates that technically a landlord is not legally obligated to continue the landlord-tenant relationship after the warrant issues.

Issues/Legal Principles: late fees, legal fees to prevailing party
Caption: Dartmouth St. Corp. v. Silberman
Court: Appellate Term, 2nd & 11th Judicial Districts
Judge: lower court: Housing Court, Harriet George
Date: April 2, 1996
Citation: NYLJ, page 30, col. 1
Referred Statutes: none cited
Summary: The co-op board brought a non-payment proceeding against the tenant shareholder for unpaid late fees. It appears that the main reason the case was brought was because of the late fees. The judge awarded landlord attorney's fees on top of the late fees. The Appellate Court reversed, stating that "the resolution of the board providing for late fees of 5% per month is unenforceable." Moreover, even if it were enforceable, the Court held that the late fees could not be recovered in a non-payment proceeding because "there as no agreement between the parties deeming the fees additional rent." The Court ruled that the tenant was the party entitled to attorney's fees because "the litigation was precipitated by landlord's wrongful insistence that tenant pay the late fees" although tenant stood ready to pay the basic rent (maintenance). The Court rejected tenant's argument that the petition be dismissed because the rent demand did not correspond to the actual monies owed (since legal and late fees were added on). The Court held that there was no showing that the landlord sought these other amounts for reasons other than good faith.

Issues/Legal Principles: DSS emergency rent payments
Caption: Matter of Pinkard v. Glass
Court: Supreme Court, Queens County
Judge: Lonschein
Date: April 3, 1996
Citation: NYLJ, page 32, col. 6
Referred Statutes: Social Services Law, 303 & 397.5
Summary:The petitioner, a disabled person, received supplemental security income benefits (SSI) but was denied emergency rent payments by Department of Social Services (DSS) at a hearing. Petitioner appealed and the Supreme Court reversed the agency's decision because it was undisputed that his SSI payments alone would not pay the rent and he faced eviction. The Court also noted that the agency failed to consider whether other housing accommodations suitable for petitioner were available in the area as required by the Social Services Law.