Housing Court Decisions September 1996

edited by Colleen F. McGuire, Esq.

Return to current month
Return to main index
Return to 1996 index

New York Law Journal, decisions for the week of September 23-27, 1996 (5 cases)

Case Caption:
Perry v. Granson
Issues/Legal Principles:
Landlord denied rent where tenant properly tendered and landlord unjustifiably refused to accept the rent.
Keywords:
tender of rent
Court:
Civil Housing Court, Kings County
Judge:
Hon. B. Kramer
Date:
September 25, 1996
Citation:
NYLJ, page 23, col 3
Referred Statutes:
RPAPL section 711(2)
Summary:
The tenant, in a summary nonpayment proceeding did not dispute the arrears, however she made repeated attempts to tender the full amount of money to her landlord, five times in person and finally by certified mail, the latter of which were not cashed by the landlord. The court found that the landlord's refusal to accept the rent with no particular legitimate reasons for doing so was unjustified in light of a proper tender by a tenant who was ready, willing and able to pay the rent. The proceeding was dismissed as to the arrears for the four months accrued prior to the service of the petition, and the landlord relegated to pursue that claim in a plenary proceeding (i.e., not in Housing Court). The tenant consented to a judgment equivalent to the amount representing the two months due after the petition was served.

Case Caption:
Davis v. Estate of Meinhard Kaju
Issues/Legal Principles:
Tenant failed to enjoin property sale based on tenant's improvements to the property.
Keywords:
preliminary injunction; constructive trust; improvements
Court:
Supreme Court, Queens County
Judge:
Hon. Milano
Date:
September 25, 1996
Citation:
NYLJ, page 23, col. 4
Referred Statutes:
CPLR 4519 (the Deadman's Statute)
Summary:
Plaintiff/tenant made a motion for a preliminary injunction to prevent the defendant/landlord from selling property to which the tenant claimed to have added $50,000 in improvements. Negotiations between plaintiff and the prior landlord, since deceased, to purchase the property broke down. The court denied the preliminary injunction because the plaintiff could not show "irreparable injury" if the property was sold since any sale would be subject to his tenancy rights, including his claim of fixtures, if proven. The plaintiff also failed in his efforts to impose a constructive trust because the court concluded that no confidential relationship existed between himself and the decedent.
Notes:
As a general rule of law, tenants who install fixtures or improvements of a permanent nature are not entitled to retain them or their value at the end of the lease term; they become the property of the landlord.

Case Caption:
224 8th Avenue Corp. v. Palacios (NYCHA)
Issues/Legal Principles:
Rent Stabilization unit fee not deemed an overcharge where owner never notified by DHCR of a delinquency in payment.
Keywords:
stabilization unit fee; rent overcharge
Court:
Civil Housing Court, New York County
Judge:
Hon. Bruce Gould
Date:
September 25, 1996
Citation:
NYLJ, page 22, col. 3
Referred Statutes:
RSL 26-517.1
Summary:
This case presented a dispute between the landlord and tenant about rent overcharges. One issue in dispute regarded landlord's failure to pay the $10 rent stabilization fee for each unit. The court looked to the policy statement issued by the DHCR which allows the fee to be paid within 60 days upon the DHCR's notification to the landlord of a delinquency. As it was proven that the DHCR never sent the landlord a bill, the court concluded that no rent overcharge occurred on this issue.

Case Caption:
Duda v. Thompson
Issues/Legal Principles:
Landlord not required to "mitigate damages" where tenant broke lease and vacated prior to lease's termination.
Keywords:
mitigation of damages
Court:
Supreme Court, Westchester County
Judge:
Hon. Donovan
Date:
September 25, 1996
Citation:
NYLJ, page 27, col. 1
Referred Statutes:
none cited
Summary:
In a dispute over the breach of a residential lease, one issue before the Court was whether the landlord was obligated to mitigate damages after the tenant vacated the apartment prior to the lease's termination. The court ruled that the landlord did not have a duty to mitigate damages in the instant case, basing its decision upon a review of Holy Properties Ltd. v. Kenneth Cole Products Inc., 87 NY2d 130 (12-7-95, Court of Appeals). In this case involving a commercial tenancy, the Court of Appeals did not make a distinction between commercial and residential leases in holding that the landlord had no duty to mitigate damages. Given the absence of a distinction, the court ruled that Holy Properties stands for the proposition that a residential landlord need not mitigate damages either. The court ruled that the landlord could if she wanted get a judgment against the tenant for the rent accrued after the tenant vacated.
Notes:
This is a very negative ruling for residential tenants and hopefully New York County judges will not follow this Westchester County judge's antiquated decision. For centuries the common law held a tenant to payment of rent for the duration of the lease even if the tenant ceased residing in the premises. This harsh reading of the law was a remnant of the feudal era when the structure a tenant resided on was worth less than the land or the crops on the land. For example, if the structure burned down or was destroyed the tenant could still earn benefits off the land and thus should have to continue to pay rent. Not until about the 1960s did courts come to recognize the outdated function of this ruling, particularly with apartment buildings in urban centers. The common law began to change and judges began to relieve tenants from the obligation of further rent payments after they vacated premises prior to the lease's termination. The tenant is, however, required to notify the landlord of the vacatur date so that the landlord has an opportunity to re-let the premises to another tenant. In general, courts no longer allow landlords to do nothing after the tenant left, let the rent build up and then sue the tenant for the balance of the rent under the lease. Courts impose upon the landlord a duty to mitigate its damages. This means the landlord, upon notice of a surrender date, must immediately make reasonable efforts to locate another tenant so that the old tenant is no longer responsible for the rent. If a landlord makes no efforts to locate a new tenant, courts generally deny landlords a right to collect the rent from the tenant who had long since vacated. These recent line of case are only applicable to residential tenants, not commercial tenants. The Holy Properties case dealt only with commercial tenants. Yet, because the Court of Appeals made no overt distinction between residential and commercial tenancies, this Westchester judge broadly and illogically inferred this omission to mean that the ruling in Holy Properties was applicable to residential tenants, too. Simply because the Court of Appeals did not address residential tenancies in a case involving only a commercial tenancy is an absurd reason for a judge to conclude that the Court of Appeals meant its decision to apply to residential tenancies as well. There are simply too many cases holding that landlords have a duty to mitigate damages in residential tenancies for this judge to ignore them or discount them so unabashedly.

Case Caption:
Evans v. Franco
Issues/Legal Principles:
Section 8 rent subsidy allowed for remaining family member.
Keywords:
Section 8; succession rights
Court:
Supreme Court, New York County
Judge:
Hon. Ira Gammerman
Date:
September 25, 1996
Citation:
NYLJ, page 22, col. 2
Referred Statutes:
CPLR 217
Summary:
Petitioner lived in a "quasi-marital" relationship for 19 years with the tenant of record. Upon his life partner's death, the City Housing Authority terminated the Section 8 subsidy that his partner held during her life. One issue before the court was whether petitioner was barred by the four month statute of limitation from bringing a claim against the agency. The court ruled that there was ambiguity as to when petitioner actually learned of the denial of the Section 8. The court concluded that a certain letter represented the agency's final determination and that the four months commenced from that date, and that petitioner's Article 78 proceeding commenced within that four month period and therefore was valid. Petitioner sought to be declared the remaining family member of his deceased partner which would entitle him to remain in the premises. He also sought reinstatement of the subsidy for his apartment. The Court held that the petitioner qualified as a remaining family member and was entitled to the subsidy even though he had not been listed on the recertification forms filled out by her. The court referred to several prior cases which held that failure of a tenant to name another member of the family on the recertification forms was not alone a dispositive factor.

New York Law Journal, decisions for the week of September 16-20, 1996 (5 cases)

Case Caption:
Parkchester Apartments v. Walker
Issues/Legal Principles:
Lower court improperly dismissed the petition because tenant had waived its jurisdictional defenses at trial.
Keywords:
rent demand
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Sue Ann Hoahng
Date:
September 16, 1996
Citation:
NYLJ, page 28, col 4
Referred Statutes:
RPAPL 711(2)
Summary:
At trial the parties stipulated in writing to waive the jurisdictional defenses in the non-payment proceeding, including tenant's defense that landlord failed to demand the rent in accord with RPAPL 711(2). At trial the parties stipulated to landlord's prima facie case and proceeding to litigate tenant's habitability counterclaim. The lower court dismissed the petition because the rent demand was defective. The Appellate Term reinstated the petition based on the tenant's waivers of this defense in open court.

Case Caption:
125 Church Street Development Co. v. Grassfield
Issues/Legal Principles:
Subtenant's cross-claim against tenant denied since it exceeded Civil Court's monetary limit, but subtenant was allowed to conduct discovery of the prime tenant.
Keywords:
cross-claims; overcharges; disclosure
Court:
Civil Court, New York County
Judge:
Hon. Richard Braun
Date:
September 18, 1996
Citation:
NYLJ, page 22, col. 6
Referred Statutes:
RPAPL 711(2); CPLR 3019(b), 105(b), 3123, 408; Civil Court Act 202 & 208(b)(2) & 211
Summary:
Landlord brought a non-primary residency proceeding against the tenant. The subtenant sought the court's permission to cross-claim against the tenant for overcharges in the amount of $37,500 and $112,500 treble damages. The subtenant also asked to participate in landlord's deposition of the tenant. The court denied subtenant's motion to sue the tenant for anything over $25,000 because that is the jurisdictional limit for Civil Court. (Law suits over $25,000 are heard in Supreme Court). Subtenant claimed tenant was an illusory prime tenant and that he illegally profited from while not living in the apartment. The court ruled that the subtenant showed "ample need" to conduct discovery on the tenant in order to obtain documents and information from him.

Case Caption:
Woolfalk v. New York City Housing Authority (NYCHA)
Issues/Legal Principles:
Tenant has burden to prove that landlord had actual or constructive knowledge that infant resided in apartment in order to recover damages for lead poisoning.
Keywords:
lead poisoning
Court:
Supreme Court, New York County
Judge:
Hon. L. Miller
Date:
September 18, 1996
Citation:
NYLJ, page 21, col. 6
Referred Statutes:
New York City Health Code 173.13(c); Public Health Law 1372; New York City Administrative Code 27-2013(h)
Summary:
Plaintiff tenant claimed that her infant son suffered personal injuries due to his exposure to and ingestion of lead-based paint while residing in defendant's building. Plaintiff brought a negligence action against the landlord (NYCHA) for failing to remove or cover the lead-based paint. The building was built in 1973 and the original tenants of the apartment were the infant's father and grandmother. The infant was born in 1985 and still lives in the unit. In 1988, the infant was diagnosed with lead poisoning. A sanitation inspection confirmed violations present in the apartment. The Department of Health issued an order in September, 1988 to the City to get rid of the lead paint. Plaintiff tenant argued that there was sufficient proof for the court to rule against the City. The judge, however, noted that on July 7, 1996, the Court of Appeals ruled that to hold an owner liable for lead-poisoning the tenant has the burden to prove that the owner had actual or constructive notice that a child six years of age or under was living in one of the owner's residential units. In opposition papers to the plaintiff's motion, the City presented evidence refuting the infant's longterm residency in the premises. The court therefore denied plaintiff's motion for summary judgment (meaning no facts were in dispute), ruling that the tenant did not come forward with sufficient evidence to establish that the owner had knowledge of the infant's residency. The court ruled that a trial was necessary to determine the issues of the infant's residency and the City's knowledge.

Case Caption:
Faulk v. DeJesus
Issues/Legal Principles:
Holdover proceeding is dismissed because petitioner and respondent did not have any of the indicia of a landlord-tenant relationship.
Keywords:
landlord-tenant relationship
Court:
Civil Housing Court, Bronx County
Judge:
Hon. Tolchin
Date:
September 18, 1996
Citation:
NYLJ, page 23, col. 1
Referred Statutes:
none cited
Summary:
Landlord brought a holdover against tenant, but tenant claimed that she also had an interest in the property and therefore was not a tenant. The respondent testified in court that she and petitioner had a 25 year intimate personal relationship as common law man and wife. Respondent moved in the premises in 1986 with petitioner who apparently inherited the building from his mother and step-father. She occupied a three room apartment and petitioner occupied a seven room apartment and their relationship remained close and intimate. She cooked for him daily, vacationed together, contributed to repairs in the building, and claimed petitioner maintained a very close relationship with her son from a prior marriage. Petitioner never asked respondent for rent, nor were any legitimate rental agreements made. Petitioner admitted to a long social relationship but claimed he never slept overnight in her bed. The son testified and contradicted petitioner. The court ruled that the parties had a longtime intimate relationship and that no real landlord-tenant relationship was ever established, that there was an absence of a bona fide lease and no written record of rent payment. The court dismissed the holdover proceeding ruling that respondent was simply not a tenant.

Case Caption:
Horstman v. Simkow
Issues/Legal Principles:
Termination notice failed to set forth actual grounds for eviction.
Keywords:
termination notice
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Joan Madden
Date:
September 20, 1996
Citation:
NYLJ, page 25, col. 5
Referred Statutes:
RSC 2524.2(b); 2524.3(f)
Summary:
Landlord's termination notice failed to state the ground upon which landlord sought relief for eviction, namely tenant's failure to renew an expiring rent stabilized lease. Based on this defect, the notice could not serve as a predicate to the maintenance of the holdover proceeding and the petition was dismissed. (The lower court dismissed the petition for other grounds, unstated in the appellate court's decision.)

New York Law Journal, decisions for the week of September 9-13, 1996 (5 cases)

Case Caption:
Club Management Company v. Schlieffer
Issues/Legal Principles:
Nuisance holdover against rent controlled tenant does not require DHCR certificate of eviction.
Keywords:
rent control; nuisance; certificate of eviction
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Sue Ann Hoahng
Date:
September 9, 1996
Citation:
NYLJ, page 26, col 6
Referred Statutes:
New York City Rent and Eviction Regulation 9 NYCRR Sections 2204.3(c) and 2204.2(a)(2)
Summary:
The Appellate Term reversed the lower court's dismissal of landlord's holdover petition, ruling that no certificate of eviction is required from the DHCR in a nuisance proceeding against a rent controlled tenant. The Appellate Term also found that the predicate notice alleged sufficient facts and that copies of the papers were timely served on the DHCR.
Notes:
There are certain types of rent controlled cases which must be heard before the DHCR, such as owner occupancy, unlawful sublets, substantial alteration, or demolition (see New York City Rent Controlled Laws, Section 26-408). In these cases, the DHCR issues a certificate of eviction which then allows the landlord to obtain a judgment of possession in Housing Court to evict the tenant. All other types of rent controlled cases (e.g., non-primary residency, nuisance, illegal alterations, etc.) commence directly in Housing Court, although notice of the proceeding must be served upon the DHCR.

Case Caption:
JD Realty Associates v. Witt
Issues/Legal Principles:
Landlord not entitled to additional disclosure where evidence proves that respondent is the lawful tenant
Keywords:
stipulations; disclosure
Court:
Appellate Term, First Department
Judge:
lower court judge: Hon. Sara Lee Evans
Date:
September 9, 1996
Citation:
NYLJ, page 27, col. 1
Referred Statutes:
none cited
Summary:
In a 1993 stipulation, landlord's predecessor recognized the respondent as the lawful tenant in a so ordered stipulation of settlement involving the previous prime tenant. Thereafter respondent paid three months rent and was named as the tenant on the annual apartment registration filed with the DHCR. The Appellate Term upheld the lower court's dismissal of landlord's request for additional discovery, finding that the unrefuted evidence defeated the landlord's allegation that respondent was an illegal subtenant. If landlord refused to recognize respondent's tenancy, the court ruled that landlord must move to vacate the 1993 stipulation.

Case Caption:
Salmansohn v. Fourth Avenue Owners Corp.
Issues/Legal Principles:
Trial needed to determine whether co-op was justified in placing bars over tenant shareholder's windows for security purposes when the bars obstructed tenant's view.
Keywords:
co-op business judgment rule
Court:
Supreme Court, New York County
Judge:
Hon. Carol Arber
Date:
September 11, 1996
Citation:
NYLJ, page 21, col. 4
Referred Statutes:
none cited
Summary:
Plaintiff became a tenant shareholder of the co-op unit in 1987. Plaintiff was a writer who worked at home and purchased the unit because of its beautiful view of Manhattan's skyline. In 1993, the defendant co-op corporation installed bars on plaintiff's windows without her consent or knowledge on grounds that they were necessary for security purposes. Plaintiff argued that the bars diminish the value of her apartment (she obtained an affidavit from a broker) and that there were other means to ensure security issues without depriving the tenant of her view. The corporation argued that the "business judgment rule" precluded plaintiff from challenging a "sound" decision made in the interests of all the other tenants. The corporation sought summary judgment (which means there are no legal issues or factual issues in dispute). The court ruled that summary judgment could not be granted to the corporation because the evidence indicated that maybe other security measures could be taken which were less intrusive on plaintiff and that a trial was necessary to determine those issues.

Case Caption:
200-218 Soundview Realty Corp. v. Sherlock
Issues/Legal Principles:
Unique dwelling units in Bronx are stabilized although the premises are not within a multiple dwelling.
Keywords:
multiple dwellings; stabilization
Court:
Civil Housing Court, Bronx County
Judge:
Hon. Heymann
Date:
September 11, 1996
Citation:
NYLJ, page 23, col. 1
Referred Statutes:
Multiple Dwelling Law Sections 4(7) & (8), 301, 302(1)(b); RSC Sections 2520.11(d) & 2524.4(c)
Summary:
Landlord brought a holdover on grounds of non-primary residency. Tenant asserted that the case must be dismissed because the premises were a multiple dwelling and landlord failed to allege so in the petition. The court found that the premises, 29 Glenz Estate, are a unique class of housing in New York City where the dwelling unit is owned by one party and the structure occupying the land owned by another. There are eight dwellings at Glenz The respondent attached a certified copy of the DHCR apartment detail registration which verified that respondent had no right to possession of the units. The court noted that to have subject matter jurisdiction in a summary proceeding it is essential that the proceeding be commenced against a party in possession of the property sought to be recovered. The petitioner sought to terminate the proprietary lease of the shareholder (respondent) on grounds of failure to pay the rent. The court held that this declaratory type relief is something Supreme Court does and that Housing Court determines who is entitled to possession. The court ruled that in this instance the co-op corporation needed to bring a plenary proceeding in civil court against the respondent shareholder because the petitioner did not have the right to terminate the lease or bring a summary proceeding where the right of possession vested by law in the rent controlled tenants, not the actual shareholder.
Notes:
This case is a perfect example of why there has been talk of creating a new part in Housing Court solely for co-ops and condos because the relationships in those buildings do not conform to the standard landlord-tenant laws. This case will probably be appealed because co-op corporations will face problems if they are only permitted to sue non-paying sponsor-shareholders of rent controlled or rent stabilized apartments in the glacial forum of a plenary proceeding.

New York Law Journal, decisions for the week of September 2-6, 1996 (2 cases)

Case Caption:
Lemle v. Gewirtz
Issues/Legal Principles:
Notice to cure not required for nuisance holdover.
Keywords:
nuisance; notice to cure
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Sherry Klein Heitler
Date:
September 4, 1996
Citation:
NYLJ, page 26, col 3
Referred Statutes:
Rent Stabilization Code [9 NYCRR], sec. 2524.3(b)
Summary:
Landlord brought a holdover proceeding based on nuisance. The termination notice set forth in detail tenant's conduct including, consistently banging on and loitering in front of the entrance doors of other apartments, continuously running water in the tenants apartment at all hours of the day and night and menacing other tenants in the common stairway. The Appellate Term affirmed the lower court ruling that the no notice to cure was required.

Case Caption:
390 West Associates, L.P v. Fried
Issues/Legal Principles:
Landlord entitled to disclosure in a non-primary residence proceeding.
Keywords:
non-primary residence; disclosure
Court:
Appellate Term, First Department
Judge:
lower court judge: Hon. Donna Mills
Date:
September 4, 1996
Citation:
NYLJ, page 26, col. 2
Referred Statutes:
none cited
Summary:
Landlord's application for application for disclosure in a non-primary residency proceeding was denied by the lower court. The Appellate Term reversed finding that the evidence necessary to prosecute the case was solely in the tenant's possession and therefore disclosure should have been granted. Furthermore, the Court emphasized that there was no prejudice to the tenant by allowing disclosure because it was the landlord who would suffer from delays.