Housing Court Decisions August 1996

edited by Colleen F. McGuire, Esq.

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New York Law Journal, decisions for the week of August 26-30, 1996 (1 case)

Case Caption:
233 West 99th Street Inc. v. Painter
Issues/Legal Principles:
Landlord denied injunction; tenants allowed to proceed with alteration agreement.
Keywords:
alterations
Court:
Supreme Court, New York County
Judge:
Hon. Eileen Bransten
Date:
August 28, 1996
Citation:
NYLJ, page 21, col. 4
Referred Statutes:
none cited
Summary:
Defendant tenants notified landlord in the spring of 1996 of their urgent desire to renovate the kitchen before the expected birth of their child on or about September, 1996. In response plaintiff landlord's property manager sent tenants a three page Alteration and Indemnity Agreement and assured tenants that once these documents were signed and returned their request would be expedited with the Board of Directors of this coop building. Tenants agreed to all 13 provisions including obtaining all permits, licensed contractors, procuring liability insurance, providing indemnification assurances and paying a $500 damage deposit. The agreement was returned on June 7, 1996 along with the necessary documents and deposit fee. Plaintiff failed to approve or disapprove the proposed plans. On July 4, 1996, defendants put in writing an oral counteroffer made by plaintiff that plaintiff pay for all the work so that it could then charge an MCI increase to tenants' rent stabilized rent. By letter dated July 25, 1996, plaintiff returned tenants' $500 check and sent a new Alteration Agreement requiring tenants to pay $2,500 damage deposit, $500 architect fee, $200 processing fee and $250 attorney's fees. The new agreement was so onerous as to preclude tenants from making the proposed renovations. Plaintiff moved to enjoin tenants from going forward on the renovations. The court found bad faith on the part of plaintiff with no explanation for the drastic changes in the original agreement. The court noted that plaintiff omitted key facts from its motion, including the existence of the original contract. The court found that the tenants were willing to comply with the requirements of the first alteration agreement and plaintiff showed no facts to demonstrate that any residents would be seriously injured by the proposed renovations. The court denied plaintiff's motion to enjoin tenants from proceeding with the renovations and awarded tenants $100 costs on the motion.

New York Law Journal, decisions for the week of August 19-23, 1996 (6 cases)

Case Caption:
Christian Faith Tabernacle Missionary Baptist Church v. Crooms
Issues/Legal Principles:
Church lawfully terminated pastor's employment resulting in pastor's loss of right to reside in church's dwelling.
Keywords:
employee occupants
Court:
Civil Housing Court, Kings County
Judge:
Hon. Bruce Gould
Date:
August 19, 1996
Citation:
NYLJ, page 32, col. 4
Referred Statutes:
RPAPL 713(11)
Summary:
Respondent was an employee, a pastor, of the petitioner church and as part of his employment he resided in a one-family dwelling owned by the church. The church brought a holdover against the pastor on grounds that his employment was terminated. The pastor argued that he was not legally terminated because there was not a quorum when the Board of Deacons passed a resolution recommending his removal. The church argued that the court did not have jurisdiction to nullify the actions of the bodies constituting the authority of the church and is thus barred from addressing the issue of quorum. The court held that the issue was not whether the church was justified in removing the pastor, but whether the employer-employee relationship was lawfully severed. The court examined the issue of the quorum and concluded it was proper and that the resolution passed was proper. The court granted the church a judgment of possession against the pastor holding that the employer-employee relationship was lawfully severed.
Notes:
A typical RPAPL 713(11) case is where the employer-employee relationship involves a superintendent of the building whose residency in the building is included as part of the employment. Often times superintendents are members of a union and removal of a super is governed by labor laws which must be adhered to. Even though the occupant in this case lost, the case is worthwhile for its principle that the employer-employee relationship must be "legally terminated." It's also worth remembering that if the employee was a tenant in the building prior to the employment, a ten-day notice to quit under RPAPL 713(11) might be defective.

Case Caption:
Belnord Realty Associates v. New York State DHCR
Issues/Legal Principles:
DHCR cannot render decision on owner's luxury decontrol applications until state taxation agency provides verification of tenants' income.
Keywords:
luxury decontrol
Court:
Supreme Court, New York County
Judge:
Hon. Eileen Bransten
Date:
August 21, 1996
Citation:
NYLJ, page 21, col. 2
Referred Statutes:
CPLR 7803
Summary:
Owner had 12 applications for luxury decontrol pending with the DHCR. Owner brought an Article 78 mandamus seeking an order directing the court to compel DHCR to render a decision. Owner claimed that DHCR was failing to process the applications within the time period set forth in the Rent Regulation Reform Act of 1993. To grant a mandamus, the court must find that the DHCR refused to preform a specific duty required of it by law (CPLR 7803). But where the governmental agency is actively working on the matter, there is no grounds for a mandamus. DHCR argues that it has not delayed the process of gathering the necessary information needed to make its determination. If occupants of an apartment whose rent is more than $2,000 a month certify upon landlord's request that the aggregate household income does not exceed $250,000 per year, the owner can then file an application for income verification with the DHCR. If the income exceeds $250,00 for each of the past two years, the DHCR can issue a High Income Deregulation Order which deregulates the apartment. In order to verify income, DHCR turns to New York State Department of Taxation and Finance ("DTF"). DHCR explained to the court that it cannot make a determination on owner's application to decontrol until DTF has verified the incomes of the 12 units. The court noted that DTF was not a party to the Article 78, and so the court could not hold DHCR responsible for DTF's action, or lack of action, on DHCR's requests for income verification.
Notes:
Although this new law targets high income tenants, it is really just another example of the erosion of tenant rights in general.

Case Caption:
Land v. Lopez
Issues/Legal Principles:
Adult care facility properly terminated respondent resident's admission agreement.
Keywords:
adult care facility resident
Court:
District Court, Nassau County
Judge:
Hon. Gewanter
Date:
August 21, 1996
Citation:
NYLJ, page 24, col. 5
Referred Statutes:
RPAPL 713(a); Social Services Law 461(h)
Summary:
Petitioner, an adult care facility, sought to terminate the admission agreement with the respondent resident and involuntary discharge him from the facility. The court noted that this was not a summary holdover proceeding, but a special type of proceeding brought under the social service laws and section 713(a) of the RPAPL. Petitioner terminated the admission agreement based on respondent's conduct and cited in the notice examples of respondent's behavior which was detrimental to himself, the other residents or the operation of the facility. The respondent argued that the notice did not allege sufficient facts, but the court found it sufficient to serve as a predicate notice. The court also ruled against respondent's argument that the petitioner was required to take steps to transfer him to another facility before commencing the proceeding.

Case Caption:
Conciatori v. Raffa
Issues/Legal Principles:
Temporary friend staying in basement does not convert two-family building into a multiple dwelling.
Keywords:
multiple dwelling
Court:
Civil Housing Court, Bronx County
Judge:
Hon. Anthony Fiorella
Date:
August 21, 1996
Citation:
NYLJ, page 22, col. 4
Referred Statutes:
Multiple Dwelling Law 325(2)
Summary:
The premises were classified as a legal two family dwelling with the owners residing on the first floor and the tenant on the second floor as a month to month tenant. When the owners terminated her tenancy and brought a holdover proceeding, the tenant argued that the basement apartment had been occupied by another tenant and that the premises were therefore a three family dwelling requiring registration as a multiple dwelling. The court believed the owner's testimony that he just let a friend stay in the basement for a couple of months, but that no lease was ever made, nor any specific rent paid, although the friend gave him money. The tenant's witness was a Con Edison employee whose records showed that the friend opened up an account with Con Ed but with a different billing address than the premises. The court held that the tenant failed to prove that the premises were a multiple dwelling, i.e., three or more families living independently of each other. The court also held that the "character and design" of the premises must be changed so as to create a multiple dwelling. The court found that the owner did not significantly alter the basement to convert it into separate living quarters. Other than the friend, the tenant failed to demonstrate that anyone else had ever occupied the basement.
Notes:
If the premises were deemed a multiple dwelling by the court (i.e., that the owner's friend was in fact a tenant occupying the basement), then the owner would have been required to obtain a certificate of occupancy. If the building was deemed a multiple dwelling, but the owner lacked a certificate of occupancy, then the tenant would not have been liable to pay any rent. Lately courts have held that even if the certificate of occupancy is absent or inaccurate, the tenant would be relieved of rent payments only if the tenant could show that dangerous or unsafe conditions affected that tenant's occupancy.

Case Caption:
Fame Company v. Slochowsky
Issues/Legal Principles:
Tenant's default vacated where attorney who failed to appear was her estranged husband.
Keywords:
default judgment
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Saralee Evans
Date:
August 22, 1996
Citation:
NYLJ, page 21, col. 2
Referred Statutes:
none cited
Summary:
The Appellate Term upheld Civil Court's vacating of tenant's default. The tenant had relied upon her attorney-husband to represent her. They became separated. Apparently, the husband did not appear for her on a court date. The Appellate Term held that the lower court did not abuse its discretion in vacating the default judgment against the tenant where she reasonably believed her estranged husband-attorney would continue to represent her as he had in the past during extensive litigation with the landlord.

Case Caption:
Mosesson v. 288/98 West End Tenants Corp.
Issues/Legal Principles:
Standard for civil contempt is reasonable certainty of disobedience of an order, not wilfulness.
Keywords:
civil contempt
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Peter Wendt
Date:
August 23, 1996
Citation:
NYLJ, page 21, col. 1
Referred Statutes:
none cited
Summary:
In an HP proceeding, the lower court granted landlord's motion to dismiss the contempt proceeding. The Appellate Term reversed and remanded the matter for retrial on the issue of landlord's civil contempt. Tenant and her expert witness presented legally sufficient evidence that the repairs made by the landlord did not correct the water leaks at the premises in compliance with the stipulation's terms. The lower court denied tenant's motion to hold the landlord in contempt for failure to comply with the court ordered stipulation on grounds that the tenant failed to set forth a prima facie case and did not prove "contumacious disobedience" of the order. The Appellate Term noted that a finding of wilfulness is not necessary in civil contempt, only in criminal contempt. The standard for civil contempt is that it "need only appear with reasonable certainty that the order has been disobeyed." Landlord's accusation that tenant denied access or that it did comply qualitatively and timely with the terms of the stipulation were defenses to be raised on landlord's own case.

New York Law Journal, decisions for the week of August 12-16, 1996 (3 cases)

Case Caption:
Matter of Germaine Gaines v. New York State DHCR
Issues/Legal Principles:
Exception to landlord's liability for overcharges applies only to an owner who purchased at a judicial sale, not a subsequent owner.
Keywords:
overcharges
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Karla Moskowitz
Date:
August 12, 1996
Citation:
NYLJ, page 27, col. 1
Referred Statutes:
RSC 2526.1(f)
Summary:
Tenant Gaines filed an overcharge complaint with DHCR on December 19, 1991. Thereafter the building was acquired by a savings bank at a judicial sale arising out of a bankruptcy case of the prior owner, Cornelia Associates. In July, 1992, 244 West 10th St. Corp. took possession, and in June 1993 the current owner ACB Realty Corp. purchased the building and was given an assignment of rents from the seller. In August, 1993, the DHCR determined that the tenant was overcharged by Cornelia and the savings bank but no liability was apportioned to the current owner or its manager in reliance on RSC Section 2526.(f)(2) which the DHCR interpreted to mean that the current owner was not liable to the tenant for rent overcharges collected by previous owners due to an intervening judicial sale. The lower court noted a case which held that a current owner is responsible for overcharges, including those collected by prior owners, but there's a limited exception: "in the absence of collusion or any relationship between such owner and any prior owner, where no records sufficient to establish the legal regulated rent were provided at a judicial sale, a current owner who purchases upon such judicial sale shall be liable only for his or her portion of the overcharges and shall not be liable for treble damages upon such portion resulting from overcharges caused by any prior owner." The Appellate Division held that the limited exception cannot be extended to a subsequent purchaser after a judicial sale has already occurred. The limited exception of the statute only applies to a current owner who obtained the property in a judicial sale. Further, the Court noted that annual rent registrations are required to be filed and tenant's overcharge case was pending at the DHCR at the time the current owner purchased the property: a prudent purchaser should have or could have discovered the information about the rental history of the property.

Case Caption:
Maida v. Maida
Issues/Legal Principles:
Evidence of a landlord tenant relationship must be clear; mere life estate is insufficient to evict respondent.
Keywords:
landlord-tenant relationship
Court:
Civil Court, Kings County
Judge:
Hon. Gustin Reichbach
Date:
August 14, 1996
Citation:
NYLJ, page 25, col. 1
Referred Statutes:
RPAPL 721
Summary:
The petitioner is the 85 year-old mother of the respondent, her son. She is attempting to evict her son, his wife and her grandchildren who have lived on the second floor of the two-family home since 1957. Petitioner lives on the ground floor. Petitioner is an owner of a life estate in the premises and a tenant to the first floor unit. The son bought the building in 1957 and thereafter conveyed title to his parents. When his father died, the mother conveyed title back to the son and his brother as tenants in common, each receiving an undivided 50% interest. The mother retained a life estate in the property which means she had certain rights, such as the right to lease the premises, collect rents or sell her estate. On the same day that title was conveyed, a lease was entered into between the son and his brother, as owners, and the mother, as tenant, which gave the mother a free life time tenancy on the first floor unit. The family relationship broke down and the mother brought a holdover proceeding as owner of a life estate and as her son's landlord. The son asserted that an owner of a life estate is not authorized by RPAPL 721 to bring a summary proceeding. The court found that generally an owner of a life estate may bring a summary proceeding, but in this instance the mother was claiming that she was the landlord of the respondent. The court held that there was no evidence during four years of co-residency in the building by the parties of any agreement to form a landlord tenant relationship. The court ruled that the mother must go to Supreme Court for relief.

Case Caption:
Roth v. 77 Bleeker Street Corp.
Issues/Legal Principles:
Co-op tenant's Yellowstone injunction to Supreme Court is denied: Civil Housing Court is the more appropriate forum for resolving the issues raised by co-op board's notice to cure.
Keywords:
Yellowstone injunction
Court:
Supreme Court, New York County
Judge:
Hon. Diane Lebedeff
Date:
August 14, 1996
Citation:
NYLJ, page 21, col. 2
Referred Statutes:
RPAPL 753(4)
Summary:
Plaintiff is the proprietary lessee and owner of the co-op unit's shares. Defendant is the owner of the building and the proprietary lessor. Plaintiff, who has never occupied the unit, brought it for her daughter who has resided in the premises for two years, except for a two-year period where the daughter lived in Seattle. At some point the daughter became dependent on drugs which led to numerous run-ins with other residents of the building. This prompted Defendant to serve a notice to cure, alleging that Plaintiff sublet the premises without the written permission of Defendant and that the daughter was not authorized to reside there and her conduct constituted a nuisance. Plaintiff brought a Yellowstone injunction in Supreme Court which served to toll or freeze the running time of the notice to cure. Plaintiff sought a preliminary injunction enjoining Defendant from taking any efforts to terminate the proprietary lease. Plaintiff argued that no defaults occurred under the lease, or alternatively, if a default occurred, Plaintiff had the right to cure within twenty days after notice of entry of the court's order that a default existed. Defendant sought to dismiss the complaint because Civil Court was the more appropriate forum. The Court noted that Yellowstone injunctions are generally granted only for commercial tenancies because residential leases are protected by RPAPL 753(4) (allowing a tenant a ten-day cure period after judgment). The court observed that a Yellowstone injunction may be available where the Civil Court lacks the power to fashion full and appropriate relief such as "where there is a question as to the possibility of correcting a breach within the ten days because of physical or other conditions and where what is needed is declaratory relief, specific performance or reformation of the lease." The court ruled that virtually everything Plaintiff was asking for in Supreme Court could be obtained in Civil Housing Court and that it was the more appropriate forum to litigate the issue. The court did, however, extend the stay for ten days in the event Plaintiff decided to either transfer the co-op shares to her daughter or undertake the appropriate procedures to lawfully sublet the premises to her daughter.

New York Law Journal, decisions for the week of August 5-9, 1996 (6 cases)

Case Caption:
Amalgamated Union Local 5 v. Ferris
Issues/Legal Principles:
Landlord cannot prevent tenant from using and occupying entire lease space when co-tenant surrendered rights.
Keywords:
Lofts; unlawful eviction
Court:
Civil Court, New York County
Judge:
Hon. Martin Shulman
Date:
August 7, 1996
Citation:
NYLJ, page 23, col. 3
Referred Statutes:
none cited
Summary:
Landlord brought a holdover proceeding against two tenants, Ferris and Wada. The petition described the premises as all rooms, entire 7th floor. Landlord sought a judgment of possession and tenants sought dismissal. The case does not state the basis of the holdover, but most likely landlord claimed that tenants were only month-to-month occupants, while tenants claimed protection under the Loft Law. Both parties moved for summary judgment and Judge Kibbie Payne denied the motions stating that the status of the tenants required a trial. Then the tenants moved to stay the trial pending a decision by the Loft Board as to whether or not they were covered by its laws. The stay was granted. Thereafter, Ferris surrendered his tenancy rights to the premises described as the "rear loft" portion of the floor. The landlord padlocked the entrance door to the rear space and physically changed the space by removing certain walls and fixtures. The rear space contained the kitchen and shower facilities. Wada made a motion for restoration to the premises. Judge Shulman granted the motion on grounds that the landlord had no legal right to prevent Wada from using and occupying the rear portion because the lease granted each tenant the right to possess and occupy the undivided whole of the loft. The court ruled that the landlord violated Judge Payne's order of a stay and directed the landlord to immediately restore the walls and fixtures and provide Wada with keys to the rear portion of the loft.

Case Caption:
390 West End Associates LP v. Pearl
Issues/Legal Principles:
Wife restored to possession since her temporary absence from the apartment was based on marital problems with the tenant, her husband
Keywords:
post-eviction; succession rights
Court:
Civil Housing Court, New York County
Judge:
Hon. Howard Malatzky
Date:
August 7, 1996
Citation:
NYLJ, page 23, col. 2
Referred Statutes:
RSC 2523.5(b)(2)(i-vi)
Summary:
A non-payment proceeding was brought against the Rent Stabilized tenant. Upon default, the tenant obtained an order to show cause and the parties entered into a stipulation wherein execution of the warrant was stayed through April 24 on condition that $5,000 in rent was paid on April 24th (which was paid) and the warrant further stayed if an additional $5,622.86 was paid on May 3rd. Tenant tendered $4,200 on this date which landlord initially accepted, then on advice of counsel, the partial payment was returned. The tenant sought another order to show cause but defaulted and landlord obtained possession. Tenant surrendered his rights to the apartment. Thereafter, tenant's wife obtained a post-eviction order to show cause stating that she was not residing in the apartment at the time and was temporarily residing elsewhere due to marital problems (she had an order of protection against her husband). The landlord argued that the husband was the sole lessee and since she was not a signatory to the lease, she was not a necessary party. The landlord also argued that her voluntary vacatur from the apartment meant that she forfeited any succession rights to the apartment. The court referred to Section 2523.5(b)(2)(i-vi) of the Code which provides that certain types of temporary relocations do not interrupt a period of continuous occupancy for purposes of succession, such as time spent in the military, or schooling, or hospitalization, or by court order or "such other reasonable grounds that shall be determined by the DHCR upon application." The court ruled that in the interests of justice the wife should be restored to the apartment, on condition that all arrears were paid within 7 days, because "the facts of this case compel such an outcome." The court noted that fully 87% of the rent was tendered by the husband and that the wife attempted to tender the full rent shortly after landlord obtained possession.

Case Caption:
Mitchell Gardens No. 1 Cooperative Corp. v. Cataldo
Issues/Legal Principles:
Stepdaughter is immediate family member and tenant's primary residency is not required under the roommate law for immediate family members; co-op board's definition of immediate family member is violative of public policy
Keywords:
roommate; immediate family member
Court:
Civil Court, Queens County
Judge:
Hon. B. Greenbaum
Date:
August 7, 1996
Citation:
NYLJ, page 25, col. 3
Referred Statutes:
RPL 235-f
Summary:
The co-op tenants divorced, vacated the apartment and left the wife's stepdaughter (Eileen Sheridan) in the premises. The co-op brought a holdover against Sheridan and she argued that the roommate law (RPL 235-f) permits her occupancy. The court noted that the roommate law is applicable to co-op apartments. A rider to the co-op's Occupancy Agreement defined immediate family as "those members of a stockholder's family who lived with the stockholder on the date he first took possession of his apartment and lived with the stockholder continuously from that date." The co-op argued that the stepdaughter is not a member of the tenant's immediate family and that RPL 235-f requires the tenant's primary residency in the apartment where there is a roommate. The court referred to the Rent Stabilization Code that defines immediate family member as including a stepdaughter and ruled that the co-op's Occupancy Agreement violated public policy in attempting to limit the definition of immediate family. The court also ruled that since the stepdaughter was an immediate family member, the subdivision relating to primary residency of the tenant was not applicable to her, but only to situations where an occupant (i.e., non-immediate family member) is the roommate. Therefore, the court dismissed the holdover petition.

Case Caption:
PJ Properties v. Correa
Issues/Legal Principles:
Section 8 tenant is only liable for her rent, not the subsidy paid to the landlord by the Section 8 agency.
Keywords:
Section 8
Court:
Civil Court, Westchester County
Judge:
Hon. Martinelli
Date:
August 7, 1996
Citation:
NYLJ, page 26, col. 3
Referred Statutes:
none cited
Summary:
Landlord brought a non-payment petition against tenant and she moved to dismiss arguing that a portion of the rent landlord sought was Section 8 subsidy which she was not liable for. She argued that landlord should seek the subsidized portion of the rent from the Westchester County Public Housing Authority (PHA) administering the Section 8 program. PHA withheld payment of the tenant's subsidy in order to recoup an alleged overpayment previously made to landlord on behalf of another tenant. PHA's contract with the landlord allowed it to deduct overpayments from any sums due the landlord, including amounts due from any other housing assistance payments contract with other tenants. The court ruled that tenant is not liable under the PHA contract for monies paid to landlord by PHA. The court ruled that it did not have jurisdiction over PHA, and that an Article 78 proceeding was necessary to determine the dispute between PHA and the owner. The court dismissed the non-payment petition against the tenant with prejudice as she paid her portion of the rent.

Case Caption:
Ansonia Associates Limited Partnership v. Ansonia Tenants' Coalition, Inc.
Issues/Legal Principles:
Injunction granted against Tenant Association for "sabotaging" Landlord's efforts to rent and sell units in the building.
Keywords:
Tenants Association
Court:
Supreme Court, New York County
Judge:
Hon. David Saxe
Date:
August 7, 1996
Citation:
NYLJ, page 21, col. 4
Referred Statutes:
CPLR 6301; New York Civil Rights Law 70
Summary:
Landlord sought an injunction against the tenants association enjoining it from taking actions designed to discourage prospective purchasers and tenants from seeking apartments in the Ansonia and tenants cross-moved for (among other relief) a determination that landlord's injunction constitutes a SLAPP action. Landlord claimed that tenants tried through various forms of litigation to thwart landlord's alleged improvement program for the building and that all tenants' legal actions were unsuccessful. Landlord now alleged that tenants were attempting to achieve their goals by "interfering with [landlord's] sales and rental business," by "sabotaging" landlord's highly publicized special events at the Interior Designers' 1996 Showcase where landlord invited interior designers to display their skills by decorating sample rooms in the building. This was supposedly a unique marketing opportunity for the landlord to sell or rent their units in the building. The alleged "sabotage" consisted of the defendants arriving uninvited and interfering with the guests and foisting leaflets on them which were alleged to be derogatory toward landlord. Tenants' leaflets sought to inform recipients of the hazardous and unsafe conditions that permeated the building. Defendants claimed that the real purpose of landlord's lawsuit was to punish the association members for exercising their First Amendment rights, to intimidate tenants from publicizing the unsafe conditions currently in existence in the Ansonia and to thwart the association's ability to organize new tenants in the building. The tenants argued that their leaflets contained truths, while landlord argued that they were misleading and incorrect and contradicted documentary evidence presented during. The court ruled: "Although it is difficult to demarcate where protected speech begins and ends, in this case, defendants have crossed the line by engaging in conduct evidenced by a desire to inflict damage and exert economic coercion upon plaintiff. Such conduct goes beyond the real of protected speech." The court rejected defendants' SLAPP argument. SLAPP stands for Strategic Lawsuit Against Public Participation and is defined as "actions brought against opponents of development proposals or other requested governmental action to silence their criticism or to retaliate for past opposition." The court ruled that this was not a SLAPP case because landlord's action was for an injunction against behavior and not for monetary damages and the action was not materially related to defendants' efforts to challenge or oppose a governmental application or permit. Defendants, however, argued that their information pertained to matters of public concern, namely, pending city violations, outstanding court orders and the issuance of permits by governmental agencies. The court held that mere mention of permits and orders of government agencies in their leaflets or conversations with potential purchasers of units in Ansonia did not bring defendants conduct into the purview of a SLAPP suit. The court also ruled that the tenants' actions were not protected by RPL 230 which allows tenants the right to organize and form tenants associations. The court ruled that the landlord was not preventing the tenants from organizing; "it is trying to prevent them from sabotaging [landlord's] sale and rental efforts at the Ansonia." The Court held for the landlord.

Case Caption:
Sedgwick Avenue Associates v. Kehaya
Issues/Legal Principles:
Holdover judgment against tenant is nullified when subsequent non-payment stipulation provides that tenant is the tenant of the premises and rent is accepted.
Keywords:
stipulations
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Martin Shulman
Date:
August 9, 1996
Citation:
NYLJ, page 21, col. 3
Referred Statutes:
none cited
Summary:
Landlord brought a holdover proceeding against tenant on a nuisance theory. At trial the super and three neighbors testified that tenant had 15-20 other occupants living in the apartment, hit one of them over the head with a baseball bat and was put in jail for it, exposed himself on two occasions, urinates and defecates in the common areas and uses drugs in the apartment. On appeal the Appellate Term affirmed the lower court's judgment of possession against the tenant. Thereafter the landlord retained a new managing agent who retained a different law firm than the one that litigated the holdover. The new firm was unaware of the holdover judgment and began a non-payment proceeding against the tenant, but named the tenant's deceased father as the respondent. In a stipulation of settlement rent was accepted from the tenant and the stipulation provided that he [the tenant] "is the tenant of the apartment." By its terms, the stipulation nullified the holdover's judgment of possession and reinstated the tenancy. Thereafter, landlord moved to vacate the stipulation on grounds of mistake. The lower court refused to set aside the stipulation and the Appellate Term upheld holding that "landlord's assertion of its own purported unilateral `mistake' in commencing the nonpayment proceeding is legally insufficient." Intentional, affirmative acts by the landlord were binding, "or at the very least, the intent of the petitioner must be imputed by these affirmative acts." A vigorous dissent revealed most of the facts of the case, including tenant's argument that he would have appealed to the Appellate Division, but did not do so since the stipulation was signed, and that now the time to appeal had expired. The dissent argued that the tenant could reasonably have anticipated that at some point the landlord would realize its error and move to vacate the stipulation, and that nothing prevented the tenant from filing an application to appeal with the Appellate Division anyway. The dissent would have vacated the stipulation.