Housing Court Decisions April 1997

edited by Colleen F. McGuire, Esq.

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New York Law Journal,
decisions for the week of April 28 to May 2, 1997 (2 cases)

Case Caption:
622 West 141st LLC v. Garcia
Issues/Legal Principles:
Rent demands defective for failure to credit tenants' prior abatements.
Keywords:
rent demands
Court:
Civil Court, New York County
Judge:
Hon. Martin Shulman
Date:
April 30, 1997
Citation:
NYLJ, page 27, col. 2
Referred Statutes:
RPAPL 711(2)
Summary:
Twelve tenants brought an HP action against their landlord and each was given a rent abatement based on the landlord's failure to provide gas. Thereafter the landlord served each tenant a three-day demand for rent and brought non-payment proceedings against each one. The cases were consolidated by the tenants' motion to dismiss. The basis of the tenants' motion was that the rent demands failed to credit the abatements obtained by the tenants during the HP proceeding. The court held that these factual errors required the dismissal of the petitions even if the omission of the abatements was inadvertent.

Case Caption:
Rochdale Village Inc. v. Harris
Issues/Legal Principles:
District Attorney's office allowed to participate in landlord's holdover based on illegal usage.
Keywords:
illegal usage; traverse
Court:
Civil Housing Court, Queens County
Judge:
Hon. B. Greenbaum
Date:
April 30, 1997
Citation:
NYLJ, page 31, col. 1
Referred Statutes:
RPL 231(1); CPLR 3211(a)(8) & 308; RPAPL 715 & 743 & 735
Summary:
The landlord of a cooperative apartment brought a holdover against the unit owner seeking to render her proprietary lease void on grounds of illegal usage, specifically that the tenant's daughter sold drugs in the premises. The tenant moved to dismiss the petition on grounds of improper service, or alternatively, sought an adjournment for a date when her daughter could be released from prison to testify at trial. The first issue before the court was the validity of the District Attorney's affidavit in opposition. The tenant argued that the DA's office was not a party so it had no right to submit legal papers. The court ruled that this case was one where the DA served notice on the landlord to bring a holdover or face penalties. In that regard, the court ruled that the DA's office was akin to a co-counsel and directed that the DA's office file a statement as to the nature of its appearance and the extent of its participation in the trial. The court ruled further that the tenant's motion for a traverse hearing to contest service was proper despite the fact that her attorney filed a mere notice of appearance without raising personal jurisdiction issues. Since the tenant swears that she never received the papers by mail and only found the papers at her door, the court ruled that a hearing was necessary to determine the propriety of service. The court denied a stay until the daughter is produced, ruling that a deposition before trial could be made by deposing the daughter in prison and using the deposition transcript as testimony.

New York Law Journal,
decisions for the week of April 21-25, 1997 (12 cases)

UNPUBLISHED DECISION
Case Caption:
Unicapital Realty, Inc.
Issues/Legal Principles:
Process server's failure to observe Halloween decoration's on apartment door led court to disbelieve his testimony regarding service of process.
Keywords:
traverse
Court:
Civil Housing Court, New York County
Judge:
Hon. Eardell Rashford
Date:
March 24, 1997
Referred Statutes:
RPAPL 735
Summary:
In an non-payment proceeding, the tenant challenged the propriety of service of the legal papers. At the traverse hearing the process server testified that he had been to the building several times to serve legal papers in other matters. He adequately described the building and approach to the apartment. He stated that there was nothing unusual about the tenant's door when he attempted service on October 30, 1996 at 4:30 p.m. Service was made by allegedly placing the petition on the door or under the door. The tenant's husband testified with great detail that on October 30th the door was covered with Halloween decorations and two very large pumpkins on either side of the door. He also stated that on the day service was allegedly made, he had taken his daughter to music lessons which caused then to leave the apartment shortly after 4:30 p.m. and that he observed no legal papers on the door or under the door. The court accepted the testimony of the tenant's husband over that of the process and the proceeding was dismissed for lack of service of the petition. The process server's failure to testify that he observed such distinctive Halloween decorations on the door clearly led the court to find his testimony less credible than the husband's.

Case Caption:
Menzin v. Leland
Issues/Legal Principles:
Tenant defeats landlord's non-primary residency proceeding based on tenant's substantial documentary evidence and supporting affidavits
Keywords:
non primary residence
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Margaret Taylor
Date:
April 22, 1997
Citation:
NYLJ, page 25, col. 3
Referred Statutes:
none cited
Summary:
Landlord brought a nonprimary residence proceeding against the rent stabilized tenant, a practicing attorney. The trial court granted tenant's motion for summary judgment and landlord appealed. The Appellate Term upheld the trial court's decision based on the overwhelming documentary evidence offered by the tenant in support of her motion. The tenant admitted owning a summer home, however she presented a substantial number of documents listing her address at the subject premises, including: NYC Resident Income Tax returns filed during the relevant time period; various payment receipts; telephone records; credit card statements and a Federal jury service summons. Furthermore, the Court noted that tenant produced several witnesses who affirmed that she spent the "great majority" of her time at the subject premises, which is in proximity with her Manhattan law office. Moreover, the Court stated that the landlord failed to produce affidavits to the contrary. Instead, landlord relied on the conclusory assertions of counsel. The Court also addressed the fact that tenant registered her automobile at her summer residence and found this fact alone to be "insufficient to overcome the tenant's strong showing of an "ongoing, substantial, physical nexus with the [stabilized] premises."

Case Caption:
Leroy Realty Corp. v. Hendricks
Issues/Legal Principles:
Unlawful sublet notice claiming non-primary residency does not require service of non- renewal notice if case is based on alleged violation of the lease.
Keywords:
non-renewal notices; nonprimary residency; unlawful sublet
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Margaret Taylor
Date:
April 22, 1997
Citation:
NYLJ, page 25, col. 4
Referred Statutes:
CPLR 3211; RPL 226-b; RSC 2504.2[a]; 2525.6[a]
Summary:
Landlord brought a holdover proceeding claiming that the tenant allegedly sublet and/or assigned the subject premises to her sister. The notice stated that the apartment was no longer the tenant's primary residence. Landlord alleged that the tenant's conduct was in violation of her lease. The trial court granted tenant's motion to dismiss the petition on grounds that the landlord failed to serve a non-renewal notice prior to the commencement of the proceeding. The Appellate Term reversed the lower court's ruling stating that the petition is "based upon a breach of a substantial obligation of the tenancy, not nonprimary residence." As a result, the Court held that the landlord was not required to serve a non-renewal notice (as the landlord would be required to do if the proceeding had been brought based on the violation of the statute requiring primary residency).

Case Caption:
President Arms Apartments v. Wilson
Issues/Legal Principles:
Son succeeds to mother's Section 8 apartment even though his name was not on the annual recertification form.
Keywords:
succession rights; Section 8
Court:
Civil Housing Court, Kings County
Judge:
Hon. Callender
Date:
April 23, 1997
Citation:
NYLJ, page 29, col. 2
Referred Statutes:
42 USC 1437f, 1437(a)(b)(C); RSC 2520.6(n)(o), 2523.5
Summary:
The landlord brought a licensee holdover against the prime tenant's son after the son's mother died, claiming that the son did not live in the apartment with his mother for two years prior to his mother's death in 1995. The tenant had a HUD Section 8 subsidy and the son's name was not on the last recertification submitted by his mother. The landlord also claimed that he had a statement from the son that he was only a live-in aide to his mother. The son sought succession rights to the apartment as a remaining family member. At trial, the son claimed he began living with his mother in 1993 to take care of her during her illness. He acknowledged signing the live-in caretaker statement after his mother's death so that HUD would approve his request to retain the apartment. He conceded that he wasn't really competent to take care of his mother, that he was never compensated to take care of her, and that she really didn't require special care until after her 1994 operation. The court studied the federal Section 8 laws and noted that family means the entire family is recognized as a tenant and has a right to occupancy and to the benefits of the Section 8 program after the tenant's death. Section 8 was designed to stimulate family cohesion and care for the elderly in the home. The court held that the failure to place his name on the recertification papers is not dispositive of the son's succession rights and that the son fully met the requirements for Section 8 succession rights as a remaining family member.

Case Caption:
Waterford Association Inc. v. Hoody
Issues/Legal Principles:
Lower court required to follow First Department's holding that Pet Law does not apply to condominiums, despite Second Department's holding that the law is applicable.
Keywords:
Pet Law; condominiums
Court:
Supreme Court, New York County
Judge:
Hon. Harold Tompkins
Date:
April 23, 1997
Citation:
NYLJ, page 25, col. 5
Referred Statutes:
none cited
Summary:
The owner of a condominium unit (the defendant) harbored a dog in his unit since March 1996. He had owned the unit since July 1989. The Condo Board (plaintiff) advised defendant that the condo's by-laws and rules prohibited dogs without the written permission of the board. Defendant sought permission by letter dated March 18, 1996 which was denied by the manager's letter dated March 19, 1996 and the board's attorney's letters of April 23, 1996 and October 17, 1996. The court noted that there are two Appellate Divisions cases on whether the Pet Law applies to condominiums. The Second Department holds that the Pet Law is applicable to condos (which means that a condo board must bring an action against the owner within 90 days or waive the right to sue the owner based on harboring an animal). The First Department, however, holds that the Pet Law is not applicable to condo units (which would allow the board to bring an action at any time). The court desired to follow the Second Department's ruling, but was constrained to follow the First Department since the New York Supreme Court falls within the First Department jurisdiction. The court felt that the conflicting Appellate Division decisions should be resolved by the Court of Appeals, the state's highest court. Presumably, the owner will appeal to the Court of Appeals for a conclusive ruling.

Case Caption:
327 Central Park West v. Harwood
Issues/Legal Principles:
Notice to cure illegal sublet and notice to terminate on non-primary residency grounds (a non-curable situation) are contradictory notices, rendering the petition defective.
Keywords:
non-primary residence; illegal sublet
Court:
Civil Court, New York County
Judge:
Hon. Debra James
Date:
April 23, 1997
Citation:
NYLJ, page 27, col 1
Referred Statutes:
CPLR 5019(a); NYC Rent and Eviction Regulations 2204.6, 2204.2(1), 2204.3(b)
Summary:
Rent controlled tenant argued that the landlord's notice to cure and notice of termination are, taken together, defective as a matter of law. The notice to cure alleged that the tenant had violated substantial obligations of the tenancy by having sublet or assigned the apartment. The 30 day notice of termination was based on non-primary residency, and its language was similar to that contained in the notice to cure. The holdover petition claimed illegal sublet and attached both notices to it. The court held that the two notices taken together are unclear, ambiguous and equivocal which would render the proceeding defective. The notice to cure invited the tenant to cure the alleged violation and thereby remain in the apartment, while the termination notice alleging non-primary residence is a non-curable allegation. The court noted that predicate notices must be clear and unambiguous in order to apprise the tenant of the claims against him or her to thereby allow the tenant the opportunity to respond accordingly. If two notices are in contradiction, the tenant would not know how to properly respond. The court dismissed the petition on grounds that the notices were contradictory.

Case Caption:
Palais Partners v. Vollenweider
Issues/Legal Principles:
Tenant's claim that Landlord failed to control nude neighbor's behavior is not grounds for an abatement or defense of constructive eviction; envelope of summons and complaint by follow-up mailing cannot come from attorney's office.
Keywords:
constructive eviction; warranty of habitability; service of process
Court:
Civil Court, New York County
Judge:
Hon. Michael Stallman
Date:
April 23, 1997
Citation:
NYLJ, page 26, col 6
Referred Statutes:
CPLR 308(2) & 3215(g)(3)
Summary:
Plaintiff, owner of a condominium unit, sought back rent from defendant tenant for March and April 1995 at $3,870 per month. Defendant claimed that since April 1994, plaintiff refused to prevent a neighboring tenant from appearing nude or masturbating in his apartment, even though defendant claimed to have informed plaintiff of the problem orally and in writing. Apparently, plaintiff also owned the neighboring apartment. Plaintiff brought a non-payment proceeding against the neighbor in June 1994, and the neighbor vacated the following October. Defendant claimed that he was constructively evicted because plaintiff did nothing about the neighbor. The court, however, found that defendant vacated five months after the neighbor had left, so there was insufficient proof that the defendant was forced to vacate due to the neighbor's behavior. Nor did the court accept defendant's argument that the neighbor's behavior rendered the premises unfit for human habitation or that there existed conditions dangerous to life, health or safety. The court held that warranty of habitability does not extend to aesthetics or inconveniences which do not render premises dangerous or unsafe. An additional matter the court dealt with concerned service of the complaint. The complaint was delivered at defendant's place of business by substituted service, i.e., handed to a co-worker. A copy was mailed at the business and marked "personal and confidential." CPLR 308 requires that the mailing envelope not indicate that the communication is from an attorney or concerns litigation. Any indication on the envelope that it came from an attorney's office would render service of the complaint defective. Plaintiff's attorney served another copy of the complaint pursuant to CPLR 3215(g)(3). This statute would permit a plaintiff to obtain a default judgment if the defendant did not answer the complaint. It presumes that the complaint had already been served, and it also requires that the envelope not indicate that it comes from an attorney's office. However, a defective CPLR 3215(g)(3) communication would not cause dismissal of the complaint; it would merely prevent the plaintiff from obtaining a default judgment. Defendant admitted receiving a letter on March 18, 1996 which bore plaintiff's counsel's address. The issue that the court set down for a traverse hearing was whether this March 18, 1996 letter contained a copy of the summons and complaint alone, which would render it dismissible (since it came from an attorney's office), or whether it contained the summons and complaint with an affidavit of proof of service, which would not be cause to throw out the complaint (because this mailing would not have been the CPLR 308 mailing).

Case Caption:
Museum of Modern Art v. Duncan
Issues/Legal Principles:
Rent controlled tenant's jury demand stricken in non-primary residency proceeding.
Keywords:
jury demand; non-primary residency; counterclaims
Court:
Civil Court, New York County
Judge:
Hon. Martin Shulman
Date:
April 23, 1997
Citation:
NYLJ, page 27, col 2
Referred Statutes:
Administrative Code 26-403(e)(2)(i), Rent and Eviction Regulations 2204.3(c); former RSC 54(e); RPAPL 745(2)(a)
Summary:
Landlord brought a holdover proceeding against the rent controlled tenant alleging non- primary residency. The tenant's 1970 lease had a jury waiver clause which landlord asserted projected into the tenant's statutory tenancy. Tenant argued that the clause could not apply to the holdover proceeding because the non-primary residency laws were not enacted at that time. The tenant relied on a prior case (Nostra Realty Corp. v. Ferstenberg, , NYLJ 11- 27-96, 29:3 Civ. Ct. NY Co, Judge Saralee Evans) where that court held the jury waiver clause was inapplicable to the non-primary residency action in a rent controlled case because "one could not knowingly give up the constitutional right to a jury trial unless the cause of action to be decided was in existence at the time the lease was executed." In addressing whether to strike the tenant's jury demand, Judge Shulman stated that the court must balance the expectation of the Museum that the tenant be bound by the terms of the lease agreement as against the tenant's expectation to a constitutional right to a jury trial. Judge Shulman observed that Judge Evans did not take into account prior Appellate Division decisions which struck jury demands for rent controlled tenants. He also noted that there had always existed a non-primary residency cause of action under rent control, but landlords had to first go before a long, circuitous administrative hearing to obtain a decontrol order before going into Housing Court. This was changed in 1983 to allow landlords to pursue non-primary residency claims against rent controlled tenants directly in Housing Court. Judge Shulman therefore reasoned that the jury waiver clause continued to be applicable between the parties. The court also dismissed the tenant's traverse defense on grounds that the tenant invoked the jurisdiction of the court by asserting a counterclaim.

Case Caption:
Carpio v. Crowley
Issues/Legal Principles:
Landlord could not rely on laches to defeat tenant's action to be restored to possession following illegal eviction despite tenant's failure to bring the action until 11 months later.
Keywords:
illegal eviction; laches
Court:
Appellate Term, 2nd & 11th Judicial Districts
Judge:
lower court: Hon. Badillo
Date:
April 24, 1997
Citation:
NYLJ, page 32, col 2
Referred Statutes:
RPAPL 713(10)
Summary:
Tenant sought restoration to the apartment following an eviction, and the landlord moved to dismiss tenant's petition on grounds that over 11 months had passed from the time the tenants were allegedly unlawfully locked out. The court below dismissed the tenant's petition on grounds of laches (i.e., excessive delay). The Appellate Term reversed holding that laches is not a defense to the landlord because tenant's claim is one as a matter of right, not subject to the court's discretion. Moreover, the Appellate Term held that the landlord could not rely on the equitable defense of laches because of the landlord's unclean hands. (The court did not state the facts of the case, but presumably the court viewed the eviction as unlawful). The Appellate Term held that the new tenants must be joined as parties before the court below could make an award of possession to the petitioning tenant. Finally, the court ruled that the tenant could not recover damages for the unlawful eviction in Housing Court, only a determination on the issue of possession.

Case Caption:
Dartmouth Street Corp. v. Syllman
Issues/Legal Principles:
Landlord's collection of rent with knowledge of a sublet constituted a waiver of any later unlawful sublet allegation by landlord.
Keywords:
sublet; waiver
Court:
Appellate Term, 2nd & 11th Judicial Districts
Judge:
lower court: Hon. Harriet George
Date:
April 24, 1997
Citation:
NYLJ, page 32, col 3
Referred Statutes:
none cited
Summary:
In a prior nonpayment proceeding, landlord demanded and recovered the rent and sublet fees for the period through January 1995. Having collected the rent with knowledge of the sublet that began in January 1995, landlord's claim of unlawful sublet against tenant was deemed waived. Tenant was awarded attorney's fees.

Case Caption:
Ram 1 v. Stuart
Issues/Legal Principles:
Tenants' replacement of stove without landlord's prior written consent is not deemed a substantial breach of the lease.
Keywords:
alterations
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Arthur Birnbaum
Date:
April 25, 1997
Citation:
NYLJ, page 25, col. 1
Referred Statutes:
RSC 2524.3(a); RPAPL 747
Summary:
Landlord brought an illegal alterations holdover against the tenants because they obtained a new stove and threw out the landlord's defective 27-year stove without obtaining landlord's prior written consent as required by the lease. The lower court ruled that this act on the part of the tenants constituted a material breach of the lease, granted the landlord a possessory judgment, directed the tenants to restore the old stove, and granted the landlord attorney's fees. The Appellate Term reversed holding that the tenants did breach the lease but the breach was a de minimis violation which did not cause permanent or lasting injury to the reality. The court denied the tenants' attorney's fees because of their breach. A vigorous dissent by Justice McCooe held that the landlord had a right to not only object to the new appliance, but also to be in control of who, how and when the stove would be replaced. Justice McCooe considered the tenants' replacement of the stove a substantial breach of their lease warranting an eviction.

Case Caption:
Mohr v. Gomez
Issues/Legal Principles:
Super's prior tenancy in another apartment does not entitle him to remain in current apartment after his employment terminated.
Keywords:
superintendents
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Jerald Klein
Date:
April 25, 1997
Citation:
NYLJ, page 25, col. 3
Referred Statutes:
RPAPL 713(11)
Summary:
Landlord brought a holdover proceeding against the superintendent. The respondent took possession of the apartment, without paying rent, as an incident to his employment. When his employment terminated, so did his occupancy rights. However, before becoming the super, the respondent resided in another apartment in the building for 18 months as a rent paying tenant. The lower court granted possession to the landlord and the Appellate Term upheld. A vigorous dissent, however, by Justice McCooe argued that the super's status should have reverted back to that of a tenant regardless of changing apartments. The majority, however, ruled that the super had never been a tenant of the apartment at issue. Justice McCooe argued that this should not be dispositive of his prior status as tenant, particularly because the respondent relocated to another apartment as a condition to becoming the super. Hopefully this case will be appealed so that supers who were tenants at any time in a building would not lose their tenancy rights simply because they took another apartment upon employment.

New York Law Journal,
decisions for the week of April 14-18, 1997 (4 cases)

Case Caption:
Greenfield v. Schultz
Issues/Legal Principles:
Landlord sanctioned for bringing frivolous action against tenant.
Keywords:
sanctions
Court:
Supreme Court, New York County
Judge:
Hon. Greenfield
Date:
April 14, 1997
Citation:
NYLJ, page 27, col 3
Referred Statutes:
CPLR 3120(b)
Summary:
Landlord, an editor at the New York Times, and his wife own property in which the tenant filed a claim for overcharges. Thereafter tenant received a notice from the ASPCA claiming that a complaint was filed that she was abusing her cats. Tenant believed the call came from the landlord and that it was an harassment tactic. Tenant's attorney served a subpoena on NYNEX seeking Landlord's business and residential phone records, specifically the numbers called during a certain time period to see if the ASPCA call came from Landlord. The tenant's attorneys failed to obtain court permission to serve a subpoena on a non-party. In response the Landlord brought a huge action against the tenant and her attorneys for sanctions and a multitude of other claims including invasion or privacy, violations of the Federal Wiretapping Law, violation of the Reporter's Shield Law, intentional infliction of emotional distress, tortious interference with contract, loss of consortium, abuse of process and violation of penal laws. The Landlord alleged that he was a very important person at the New York Times who engages in important telephone calls with important people. The court gave no credence to the Landlord's sense of self-importance and granted tenant's motion to dismiss the complaint. Further, the court sanctioned the landlord ($4000) and his attorney ($6,000) for bringing such a frivolous complaint that sought $70,000,000 and sanctions against the tenant's attorney. The court noted that the tenant's attorney admitted that the subpoena was not properly sought, but affirmed that he would not do so again. Thus, the court found no reason to sanction the attorney with respect to a deterrence factor. The court was clearly put off by the landlord's high falutin' sense of self- grandeur and the huge response (the lawsuit) for what was simply a hostile landlord-tenant dispute.

Case Caption:
Wessel v. Sichel
Issues/Legal Principles:
Tenant's case for constructive eviction dismissed for lack of evidence that landlord failed to do the repairs.
Keywords:
repairs; constructive eviction; warranty of habitability
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Alice Schlesinger
Date:
April 14, 1997
Citation:
NYLJ, page 25, col. 5
Referred Statutes:
none cited
Summary:
Plaintiff/tenant commenced a Supreme Court action against his landlord seeking compensatory and punitive damages. The landlord conducted repairs of tenant's bathroom and kitchen for over seven months. During this time, several items belonging to the tenant were allegedly stolen. Tenant alleged that he was constructively evicted and that the landlord's delays in effectuating the repairs were unreasonable, rendering his apartment uninhabitable for over seven months. Tenant further alleged that the landlord's actions were in retaliation for a rent reduction order issued by the DHCR in an earlier proceeding. Landlord moved for summary judgment asserting that tenant initially requested the repairs to his bathroom tiles which led to the discovery of extensive pipe rust throughout the apartment, which required more extensive repairs. In addition, tenant demanded new kitchen and bathroom fixtures and all the while, maintained control over the premises. Moreover, landlord asserted that tenant changed the locks on the apartment and denied access to the workers, permitting work only in tenant's presence on the weekends. The trial court denied landlord's summary judgment motion and the Appellate Division unanimously reversed. In reaching this decision, the appellate court looked to the fact that the tenant never gave up possession of his apartment, failed to show purposeful delay by the landlord, and in fact, conceded to the necessary repairs.

Case Caption:
East End Residences v. Dolen
Issues/Legal Principles:
Landlord's notice alleging chronic non-payment deemed legally sufficient
Keywords:
chronic nonpayment; termination notices
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Debra A. James
Date:
April 14, 1997
Citation:
NYLJ, page 27, col. 3
Referred Statutes:
CPLR 3212; 9 NYCRR 2524.2(b), 2524.3(b)
Summary:
Landlord brought a holdover proceeding based upon tenant's alleged chronic late payment and nonpayment of rent. The trial court denied landlord's motion for summary judgment and after searching the record, determined that the underlying notice of termination was defective since it did not properly apprise the tenant of the grounds for eviction. The lower court, on its own motion, granted summary judgment in favor of the tenant and dismissed the petition. Landlord appealed. The Appellate Term looked to the landlord's detailed termination notice which comprised three pages of single-spaced typewritten text outlining the continuing nature of tenant's default. As a result, the Court remanded the case, holding that a trial on the merits was necessary to determine the circumstances and reasons for the tenant's rent defaults.

Case Caption:
Pamela Equities Corp. v. McSween
Issues/Legal Principles:
Holdover proceeding against tenant stayed pending DHCR's decision on whether the unit is stabilized or exempt by J-51 tax laws.
Keywords:
J-51 tax abatement; Rent Stabilization; stays
Court:
Civil Housing Court, New York County
Judge:
Hon. Douglas Hoffman
Date:
April 16, 1997
Citation:
NYLJ, page 27, col 2
Referred Statutes:
none cited
Summary:
Tenant asked the court to stay the holdover against her pending the outcome of her DHCR complaint which was filed before the holdover began. Tenant's DHCR complaint challenged the landlord's failure to permit her to sign a two-year renewal lease and asserted that the building did not undergo substantial rehabilitation sufficient to make it exempt from the rent stabilization laws following expiration of J-51 tax benefits in 1995. If the DHCR grants the tenant's complaint, the holdover against her must fall. The tenant moved into the apartment in 1990 and signed several renewal leases. She filed the DHCR complaint in 1995 when the landlord told her it would only offer a one-year lease, not a two-year lease. In 1995, the landlord brought a holdover against the tenant after her lease expired. The DHCR dismissed the tenant's complaint on June 16, 1995 because it assumed the civil court was deciding the same issues. On June 28, 1995, the civil court denied the tenant a stay of the holdover based on the DHCR's dismissal. The tenant appealed with a PAR and the landlord agreed to stay the holdover pending the outcome. On February 28, 1996, the DHCR dismissed the PAR on grounds that tenant's first lease properly warned her the consequences of the expiration of the J-51 benefits. The tenant filed an Article 78 appeal and moved for a third time in civil court for a stay of the holdover. The tenant and DHCR settled the Article 78 by having the matter returned to the DHCR for a determination. The DHCR directed its administrator to determine whether (1) there was a vacancy of the apartment, (2) each one-year renewal lease between 1990-94 contained the required notice concerning J-51 tax abatement benefits, and (3) the apartment was rent stabilized prior to the inception of the J-51 tax benefits which, if so, would mean the apartment remained rent stabilized after the expiration of the benefits. Meanwhile the trial judge denied the stay and scheduled the matter for trial, even though DHCR had not completed its work. That judge left the bench shortly after denying the stay. Judge Hoffman took her place and allowed the proceeding to be stayed provided that the tenant paid the ongoing rent and provided that the DHCR issue its decision within 6 months. The court sought to avoid the potential waste of judicial resources: why hold a trial when the DHCR's decision on tenant's status could possibly change the outcome of the trial?

New York Law Journal,
decisions for the week of April 7-11, 1997 (8 cases)

Case Caption:
Matter of Mennella v. Lopez-Torres
Issues/Legal Principles:
Appellate Court rules that judges cannot make landlords notify defaulting tenants of a judgment obtained at inquest as a condition to receiving a warrant of eviction.
Keywords:
warrant of eviction
Court:
Appellate Division, First Department
Judge:
lower court: Hon. William J. Garry
Date:
April 7, 1997
Citation:
NYLJ, page 25, col 3
Referred Statutes:
RPAPL 732(3); 22 NYCRR 208.42(d)
Summary:
This matter consists of an Article 78 mandamus proceeding in Supreme Court by the petitioner, a receiver, to compel the respondent, the Civil Court judge, to issue a warrant against a commercial tenant in a non-payment proceeding. The tenant allegedly owed $525 per month in rent from May through November, 1994. The tenant failed to answer the petition, "although duly served," and the judge entered a judgment of possession in favor of the petitioner, but held "Final judgment of possession only. Warrant may issue 5 days after service of copy of the judgment upon the tenant by regular mail with a post office certificate of mailing to be filed with the Clerk of Court." The petitioner sought a mandamus compelling the judge to issue the warrant of eviction without the condition of submitting proof of mailing of a copy of the judgment to the tenant. The petitioner argued that RPAPL 732 does not require proof of mailing of a judgment to a defaulting tenant. The respondent judge argued that the statute does not prohibit the court from issuing notice requirements, and petitioner's remedy was to appeal to the Appellate Term, not bring a mandamus action. The Supreme Court granted the judge's cross-motion and dismissed the receiver's petition without explanation. The Appellate Division reversed. The Appellate Division noted that traditionally a mandamus lies to compel the performance of a purely ministerial act where there is a clear legal right to the relief sought, but a mandamus does not lie to compel an act which involves the exercise of judgment or discretion. The Appellate Division held that RPAPL 732 provides a judge no discretion to require a landlord to mail a copy of the judgment on a defaulting tenant. Once the statutory requirements have been met (e.g., proper service), judgment must be rendered in favor of the petitioner and Civil Court "has no further discretion." The Court also held that an appeal to the Appellate Term was inappropriate because the landlord had won its case by securing a judgment in its favor.
Notes:
Even though TenantNet does not report on commercial cases, this case has significance for all tenants. The Appellate Division noted that "tenants are protected by multiple notice provisions as well as by post-default remedies" thereby implying that the lower court judge's additional notice requirement was unnecessary -- even a notice so simple as a certification of mailing a copy of the judgment to the tenant. The Court relied on Matter of Brusco v. Braun, 84 NY2d 674 where the Court of Appeals held that a Civil Court judge improperly directed an inquest on the landlord's rent claim despite the fact that all the landlord's documentary evidence established a judgment in its favor. These two cases together greatly limit attempts by Civil Court judges to ensure that the tenants are thoroughly notified of the legal process, and the results thereof, that occur against them. The Appellate Division opined that the "expeditious procedure for the recovery of real property" was the intent of the legislature in drafting RPAPL Article 7, and Civil Courts cannot add additional "burdens" on landlords that are not explicit within the statutory scheme.

Case Caption:
101 West 70th Street Associates v. Desoiza
Issues/Legal Principles:
Landlord must file initial rent registration with DCHR even when rent controlled apartment is decontrolled to a market rent over $2,000
Keywords:
initial legal rent; decontrol; fair market rent appeal; deregulation
Court:
Civil Housing Court, New York County
Judge:
Hon. Marilyn Shafer
Date:
April 9, 1997
Citation:
NYLJ, page 28, col. 3
Referred Statutes:
Unconsolidated Laws 8626(c); 8629(e), 9 NYCRR 2521, 2522, 2523.1, 2522.3; Administrative Code of NYC 26-403(e)(2)(j), 26-504.2
Summary:
Landlord brought a non-payment proceeding against tenant who failed to pay rent at $2,200 per month from May to August, 1996. Landlord made a motion to dismiss tenant's counterclaims and tenant cross-moved for summary judgment. Before tenants moved into the apartment, it was rent controlled with a rent of $112.58 per month. In 1994, the prior tenant vacated and the apartment became decontrolled. The landlord then allegedly renovated the apartment and set the rent at $2200 per month. Tenants filed an overcharge complaint with the DHCR which was still pending during the housing court proceedings. Tenants claimed that landlord never filed an RR-1 form for the initial registration of the apartment upon its being decontrolled. Therefore, the tenants argued, the rent must go back to the rent controlled rate. Landlord argued in response that since the initial rent was $2200 per month, the premises were no longer subject to any rent regulation, and therefore landlord was not required to file any RR- 1 forms. Typically when a rent controlled apartment is vacated, the landlord can set a fair market rent, but the rent must be registered with the DHCR as the "initial legal registered rent," and it is subject to a tenant's right to challenge the sum by filing a Fair Market Rent Appeal ("FMRA") within 90 days of the landlord's mailing of the initial rent registration form, the RR- 1 form. On April 1, 1994, Local Law #4 allowed that any apartment becoming vacant on or after that date with a monthly rent of $2,000 or more may be deregulated. The question for the court was whether a landlord is required to file a RR-1 form with the DHCR for a decontrolled apartment which became vacant after April 1, 1994, but where the rent was set by the landlord above $2,000 a month. The court held that the landlord is required to file an RR-1 form with the DHCR, and notify the tenants, even if the rent exceeds $2,000 per month. The court found that it is only after the initial rent set by the landlord survives a first decontrolled tenant's challenge to same (or remains unchallenged for 90 days) that the unit then officially becomes deregulated. The court noted that DHCR's willingness to hear the tenant's overcharge claim suggests that the DHCR also considers the tenant's challenge to the initial rent to be a valid challenge. Were the court to take the landlord's position, then a landlord could simply set any rent in excess of $2,000 upon decontrol and no one could determine or challenge whether that rent is valid. The court referred to an opinion letter dated July 18, 1994 from the DHCR's Deputy Counsel which confirmed the court's interpretation. The court held that an opinion letter does not represent official determination, but it provides a clear indication of the DHCR's interpretation of the application of Local Law 4 to a decontrolled apartment. Holding that the landlord was required to file an initial rent registration upon decontrol of the apartment, and having failed to do so, tenant was only obliged to pay the last rent in effect (i.e., the rent control rent) until such time as an initial rent registration is filed.
Notes:
This is an excellent case for tenants, but will no doubt be appealed by the landlord. If the landlord refuses to file an initial rent registration because it strongly disagrees with the court's ruling, the tenants will only be responsible for the rent controlled rental amount. Perhaps the landlord will file to mitigate its damages, but somehow do so without prejudice. This ruling is very important even for Stabilized tenants. A landlord could take a vacant apartment and perform massive repairs and then raise the rent above $2,000 based on the alleged repairs (landlord is entitled to increase rents by 1/40th of the cost of the new improvements). The landlord would then say the apartment is no longer regulated. However, if no agency or authority is allowed to approve the landlord's alleged increases following a tenant's challenge of the amount, then landlords everywhere could arbitrarily and unilaterally take apartments out of the Rent Stabilization system. Judge Marilyn Shafer did not countenance such a position in this decontrolled case, and hopefully this case can be analogized to cases where landlord seeks to accomplish a similar scheme with stabilized apartments.

Case Caption:
Oberlander v. Taylor
Issues/Legal Principles:
Tenant not entitled to abatement on future rent.
Keywords:
abatements; warranty of habitability
Court:
Appellate Term, 9th & 10th Judicial Districts
Judge:
lower court: Hon. Madden
Date:
April 8, 1997
Citation:
NYLJ, page 35, col. 3
Referred Statutes:
none cited
Summary:
Tenant's contract rent was $650 per month, but due to City subsidies the tenant's portion was only $266 per month. Landlord brought a non-payment proceeding and tenant counterclaimed for breach of the warranty of habitability. The lower court granted tenant a 100% abatement of past rent and future rent until such time as landlord made the repairs. The court also awarded the tenant damages of $7,800 per month. Apparently the damages represented rent at $650 per month for 12 months. The Appellate Term reversed finding that the conditions did not warrant a 100% abatement, that the tenant did not prove that she was entitled to more of an abatement than her portion of the rent (i.e., an abatement based on $650 instead of $266), and that the trial court lacked authority to grant a prospective abatement of rent.

Case Caption:
Ackert v. Figueroa
Issues/Legal Principles:
Suppression hearing must be held in illegal usage holdover to determine whether drugs found in apartment were unlawfully seized by police officers, and if so, the drugs cannot be admitted into evidence during trial.
Keywords:
illegal usage of premises
Court:
Civil Court, New York County
Judge:
Hon. Judith Gische
Date:
April 8, 1997
Citation:
NYLJ, page 27, col. 3
Referred Statutes:
RPAPL 711(5) & 715(1)
Summary:
Landlord brought a holdover proceeding alleging unlawful use of narcotics upon receiving notice from the District Attorney's Narcotic Eviction Program. Pursuant to the 4th and 14th amendments of the US Constitution, the tenant sought to suppress all evidence seized by the New York police. The issue before the court was whether and under what circumstances the exclusionary rule (4th amendment) applies to exclude illegally seized evidence from an illegal usage holdover proceeding commenced as part of the Narcotic Eviction Program. The Program permits a law enforcement official to commence an illegal use holdover and seek sanctions against a landlord who, after notice, fails to commence eviction proceeding in the landlord's own name against the tenant. The specter of sanctions compelled this landlord to commence the proceeding in its own name. The landlord was informed that 40 glassines of heroin and over $1000 was discovered inside the tenant's apartment. The property was recovered by the police without having first obtained a warrant. The police officer claimed that the tenant voluntarily led him to the narcotics, but the tenant denies he gave any consent to the search. The court held that it must balance the deterrent effect (that police officers' conduct will conform to the law) with the cost of otherwise excluding inherently trustworthy tangible evidence (i.e., the drugs). The court noted that if the landlord had brought the holdover completely on its own, and not due to notice from the District Attorney's office, a strong argument could be made that no deterrent effect would be served by excluding the evidence. But since this holdover was brought at the behest of the District Attorney's office (and under threat of sanctions against the landlord), the deterrence test is highly relevant. The court rejected the District Attorney's argument that deterrence is not applicable as a matter of law because the police are not agents of its office. However, the court noted that they are the primary source of investigatory information necessary for the DA's office to pursue a case and notify a landlord of such cases. Therefore, the balancing test was applicable. The court held that a suppression hearing was needed to determine whether or not the drugs should be excluded from evidence during trial. The issue at trial will focus on whose testimony is credible: the police officer's who claimed consent was given by the tenant to search the apartment, or the tenant's who denied such consent was given. If the court gives more credibility to the tenant, the drugs will be excluded from evidence, and presumably, the landlord will lose its case without the incriminating evidence.

Case Caption:
Leopold v. SMJ Management
Issues/Legal Principles:
Landlord held in contempt for failing to comply with court order to make repairs necessary to restore tenants to fire damaged building
Keywords:
contempt; vacate order
Court:
Civil Court, Kings County
Judge:
Hon. Gustin Reichbach
Date:
April 9, 1997
Citation:
NYLJ, page 32, col. 5
Referred Statutes:
Judiciary Law 773; Multiple Dwelling Law 277.3 and 277.16
Summary:
In 1993 the Fire Department issued a Vacate Order that dispossessed 8 residential tenants of a loft building. After what appeared to be an HP trial brought by the tenants, the court issued an order in 1995 requiring the Respondent Landlord to file plans and perform all work necessary to remove the violations in order to have the Fire Department order rescinded to enable the Petitioner Tenants to be restored to possession. The judge's order also provided that if landlord had difficulty complying that landlord could seek a modification of the order. No such relief was sought by the landlord until the tenants made a motion for contempt on grounds the landlord failed to comply with the order to put the premises in a condition which would allow the tenants to re-gain possession of their homes. At the trial the landlord's defense that it was economically infeasible to restore the property was not accepted by the judge. The contempt motion exposed the landlord to either a fine or imprisonment or both for failure to comply with the initial order. In January, 1997 the landlord sold the property to an unaffiliated entity, thereby making it impossible for the landlord to file plans or do any work pertaining to the property. In other words, this landlord was no longer capable of complying with the judge's order. The court held that the sale did not immunize the landlord retroactively from any non- compliance during the period it still owned and controlled the property. The court interpreted the contempt statute, Judiciary Law 773, to include not just out-of-pocket loss or damages, but also non-pecuniary damages suffered by the tenants, such as, pain and suffering. The landlord argued that making the repairs was an impossibility primarily on grounds that neither the applicable statutes nor the Buildings Department policy permit residential occupancy in a building with a high hazard occupancy, that various meetings were set up with appropriate authorities but without success. The tenants' architect, however, obtained Building Department approval plans that would permit the co-existence of residential occupancy with the high hazard use. The landlord claimed that the tenants' plans were inaccurate and should never have been approved by the Buildings Department, or that even if approved, the Multiple Dwelling Law prohibits residential use with co-existing high hazardous conditions. The court noted that the Multiple Dwelling Law seemingly allows such co-existence on a discretionary basis. The landlord also argued that in order to comply with the court's order, a full-blown legalization of the building (i.e., bringing it up to Building Code standards) was necessary, but that the judge's court order was simply an "interim" solution. The court held that the landlord should have presented at trial evidence that a full-blown legalization was necessary, and that failing to do so, it was bound by the court order to do whatever it took to rescind the Fire Department Order. The court rejected landlord's argument that it was impossible to comply with the court order and set the matter down for a hearing on the amount of fines to be paid for non-compliance.

Case Caption:
Matter of 91 Fifth Ave. Corp. v. New York City Loft Board
Issues/Legal Principles:
Landlord required to give two Loft tenants Rent Stabilized leases even though the building contains less than 6 residential units.
Keywords:
Loft tenants
Court:
Supreme Court, New York County
Judge:
Hon. Herman Cahn
Date:
April 9, 1997
Citation:
NYLJ, page 26, col. 5
Referred Statutes:
Multiple Dwelling Law 286, 280, 284
Summary:
The landlord in this case is the owner of a residential building which originally contained four residential units covered by the "Loft Law," which provides for the upgrading of units which have previously been unlawfully used as residences, to full compliance with the requirements of a residential certificate of occupancy. During this transitional period, the owner may collect rents from the tenants, provided statutory conditions are met. The costs of getting the building up to code may be passed on to the tenants. Once the building is up to code, the Loft Law provides that the owner is to tender the tenants a Rent Stabilized lease. In this case, the owner obtained a residential certificate of occupancy in accordance with the law and the Loft Board set regulated rents for the apartments in the building. The landlord did not challenge the rents set by the Board, however it did challenge the portion of the order that directed the landlord to offer the residential occupants rent stabilized leases. The landlord did not dispute the fact the building was subject to the Loft Law. However, since there were only four (as opposed to six) residential units in the building, the landlord argued that the building was not subject to Rent Stabilization (which covers buildings of six or more units) and therefore does not have to be registered with the DHCR, nor stabilized leases tendered. The Court held that the landlord was required to tender a rent stabilized lease to the tenants, that had the legislature intended to exclude loft tenants in buildings less than 6 units, the legislature would have explicitly stated so. Thus, even though there are only two tenants in this building, they are still protected by the Rent Stabilized Laws since that was the intent of the legislature.

Case Caption:
750 Kappock Apartments v. Daly
Issues/Legal Principles:
Court went back six years in awarding abatement to tenants.
Keywords:
warranty of habitability
Court:
Civil Housing Court, Bronx County
Judge:
Hon. Heymann
Date:
April 9, 1997
Citation:
NYLJ, page 29, col. 1
Referred Statutes:
RPL 235-b; CPLR 213
Summary:
Landlord brought a nonpayment proceeding and the tenants raised warranty of habitability as a defense. The tenants claimed that in 1986 they started experiencing backups in which their toilet would start gurgling and eventually overflow onto the bathroom floor and often, the overflow (which included excrement and toilet paper) spread out into the hallway and bedroom. In addition, whenever the toilet would overflow, the kitchen sink would almost always simultaneously back up as well. This would occur on the average of 2 to 3 times a week. On each occasion, the tenants were forced to clean up the mess that resulted. The tenants testified that these incidents would come unannounced and that on many occasions they would have to remove themselves from using the toilet and warn guests of this potential problem. The Court held that the breach of warranty of habitability did not rise to the level of constructive eviction, stating that the tenants did not call any witnesses or offer any photographs into evidence which would depict the severity of the conditions that they were forced to live with for approximately ten years. Nonetheless, the Court noted that it could consider the tenants' claims going back for a six-year period. The court awarded tenants $50 per month from January 1990 to April 1996, plus $150 for the month of January, 1995. The award amounted to a little less than one- half of the rent due.

Case Caption:
Jewish Theological Seminary of America v. Fitzer
Issues/Legal Principles:
Not-for-Profit landlord must state date it acquired property in its eviction notice.
Keywords:
not-for-profit landlord
Court:
Civil Housing Court, New York County
Judge:
Hon. Joan Madden
Date:
April 9, 1997
Citation:
NYLJ, page 28, col. 2
Referred Statutes:
CPLR 3211(a)(2),(7); OHA 50; RSC 2524.2(b), 2524.4(b); RPAPL 741
Summary:
The landlord commenced fifteen holdover proceedings against various tenants in two buildings it acquired. The landlord, a not-for-profit institution, issued notices of non-renewal on the basis that the housing was needed for its faculty and students. In each proceeding, the tenant moved to dismiss, claiming that the landlord's right to maintain the proceedings turned on its date of ownership of the buildings and the failure to include this date on the non-renewal notices and petitions rendered the proceedings fatally defective. The Court held that under the Omnibus Housing Act, a not-for-profit owner may not refuse to renew a tenant's lease if either of two situations exist: 1) if the tenant had lived in the building prior to the institution's ownership; or 2) if the tenant moved in subsequent to ownership, lived in the building before July 1, 1978 and had not been explicitly informed upon initial occupancy of the institution's right to evict. Since the landlord's notice failed to state the date the landlord acquired the property, the Court determined that an essential fact was absent from the notice. Failing to state sufficient facts, the court dismissed the holdover petitions.

New York Law Journal,
decisions for the week of March 31 to April 4, 1997 (3 cases)

Case Caption:
Vukovic v. Wilson
Issues/Legal Principles:
Landlord entitled to bring nuisance eviction action against tenant despite prior court agreement where landlord consented to tenant's restoration to fire-damaged apartment; court finds one incident is sufficient to allege a cause of action for nuisance.
Keywords:
nuisance; waiver
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Judith Gische
Date:
April 2, 1997
Citation:
NYLJ, page 27, col 4
Referred Statutes:
RSC 2524.3(b)
Summary:
Tenant's restoration to fire-damaged apartment pursuant to the terms of a so-ordered stipulation in an HP proceeding did not, the Appellate Term held, vitiate or waive landlord's right to subsequently commence a nuisance holdover. The lower court had granted tenant's summary judgment motion dismissing the holdover. The Appellate Term held that the HP stipulation merely required the landlord to restore the premises to habitable condition so that the tenant could resume occupancy, but that the stipulation did not prevent landlord from terminating the tenancy. A vigorous dissent from Justice Helen Freedman argued that the stipulation constituted a waiver, and that the termination notice's allegation of a single fire allegedly caused by the tenant was insufficient to make out a claim of nuisance which requires ongoing and continuous behavior. The majority, however, held that it was not possible to determine whether "only one fire" reached the level of a nuisance or gross negligence, that testimony was needed. Justice Freedman found that the stipulation preserved landlord's claims only as to property damage or personal injury and that by restoring the tenant to possession the landlord waived a right to terminate the tenancy under the doctrines of res judicata and collateral estoppel (can't bring a second claim where the parties already litigated the issues).

Case Caption:
Moskowitz v. Rassbach
Issues/Legal Principles:
Non-primary residency and automatic stay
Keywords:
automatic stay
Court:
Civil Housing Court, New York County
Judge:
Hon. Howard Malatzky
Date:
April 2, 1997
Citation:
NYLJ, page 29, col. 2
Referred Statutes:
CPLR 5519(a)(6)
Summary:
Landlord brought a holdover proceeding on the basis of nonprimary residence. Although the landlord won a judgment of possession (and stayed the execution of the warrant for several months), for reasons unexplained in the decision, the landlord filed a notice of appeal. Based on the appeal, the tenant asked the Court to set an undertaking which would allow for an automatic stay under the law. The Court held in favor of the tenant and set the undertaking at amount equal to the last rent for the premises. Furthermore, the Court held that in the event the tenant defaults in the payment of use and occupancy, the landlord may request a vacatur of the stay. The Court denied the landlord's cross-motion for legal fees without prejudice.
Notes:
Tenant's motion for an automatic stay under CPLR 5519(a)(6) in response to the landlord's notice of appeal appears to be a strategy to obtain a stay greater than the couple of months granted by the court. If that was the purpose of tenant's motion, it is a creative argument to extend a tenant's time to vacate where a landlord appeals a possessory judgment. However, landlords usually don't appeal when they win so perhaps this strategy has limited usage.

Case Caption:
36 East 69 Corp. v. Morin
Issues/Legal Principles:
Tenant failed to establish a laches defense due to prior proceedings.
Keywords:
Laches; stale rent
Court:
Civil Housing Court, New York County
Judge:
Hon. Jose Padilla
Date:
April 2, 1997
Citation:
NYLJ, page 29, col. 1
Referred Statutes:
none cited
Summary:
Landlord brought a nonpayment proceeding alleging approximately six years of unpaid rent. Tenant made a motion to dismiss, alleging the landlord waited too long to assert this claim and as a result, the rent demand is now stale. The tenant's defense is known as the doctrine of "laches." The tenant asserts that the landlord purposely delayed in commencing the nonpayment proceeding so that the arrears would build up in the hope that the tenant would later be unable to satisfy a money judgment. In order to assert the defense of laches, a tenant must prove: 1) the landlord has a valid claim for back rent; 2) the landlord delayed in asserting the claim for back rent, to the detriment of the tenant; 3) lack of notice that the landlord would pursue the claim; and 4) the tenant was prejudiced by the delay. The Court held that the tenant failed to meet her burden of proof and ruled in favor of the landlord. The Court based its decision on the fact that the tenant conceded that the landlord previously commenced two prior proceedings seeking the same back rent payments. Both of those proceedings were dismissed without prejudice, on procedural grounds. In both instances, the tenant unsuccessfully raised the defense of laches. In addition, the Court rejected the tenant's claim that her legal expenses gave rise to a claim of prejudice.