Housing Court Decisions August 97

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Case Caption:

Capital Holding Co. v. Rena Stavrolakes

Issues/Legal Principles:

Roommate law which permits a tenant to have one unrelated roommate, cannot be used against tenant as a basis for eviction if tenant has more than one unrelated roommate.

Keywords:

roommates

Court:

Appellate Division, First Department

Judge:

lower court: Hon. Shirley Kornreich

Date:

August 25, 1997

Citation:

NYLJ, page 22, col 1

Referred Statutes:

RPL 235-f

Summary:

Rent-controlled tenant occupied an apartment for 13 years. There is no written lease. The tenant has two roommates who are not related to her. Landlord served tenant with a ten-day notice to cure (followed by a notice of termination, notice of petition and petition), alleging a breach of a substantial obligation of a statutory tenancy, that is, "having more than one occupant of her apartment who was not a family member or co-tenant in violation of RPL Section 235-f(3)." The tenant moved for summary judgment dismissing the petition on the ground that her roommates were not subject to rent control, as landlord alleged in the petition. Landlord cross-moved for summary judgment, on the grounds that the tenant did not dispute the fact that she had two roommates living with her in violation of the roommate law. The trial court dismissed the petition, holding that the roommate law is a tenant protection statute and was not intended to be used by landlords to evict tenants. The Appellate Term reversed, 2-1, and granted landlord's motion for summary judgment. The Appellate Division reversed essentially for the same reasons stated by the trial court. The Appellate Division noted that there is nothing in the roommate law that would prevent a landlord from including occupancy limitation provisions in leases and enforcing such provisions "as long as they do not violate the minimum protections afforded tenants and occupants under RPL Section 235-f." However, if there's no lease provision, or if the lease permits more than one roommate, the purpose of the roommate law would be "perverted" if landlords were permitted to use the law against tenants. The language of the roommate law is "permissive" rather than "restrictive." It says that the lease shall be construed to permit occupancy of one additional occupant. Subdivision 9 of the roommate law lists remedies, and does not include a cause of action for landlords. The remedies pertain only to statutory violations by landlords. The Roommate Law further provides that nothing in the law should be "construed to reduce or impair any right or remedy otherwise available to any person residing in any housing accommodation on the effective date of this section which accrued prior to such date." Based on a reading of the roommate law as a whole, the Appellate Division concluded that it was intended to protect tenants, not landlords. Holdover proceedings based upon violations of the roommate law are not permitted.

Case Caption:

Ruiz v. Chwatt Associates

Issues/Legal Principles:

Tenant fails to prove residency in commercial unit which was mistakenly registered as rent stabilized

Keywords:

leases; stabilization

Court:

Supreme Court, New York County

Judge:

Hon. Carol Arber

Date:

August 20, 1997

Citation:

NYLJ, page 21, col 4

Referred Statutes:

RSC 2520.11

Summary:

Tenant commenced an action seeking treble damages based upon rent overcharge, attorney's fees and compensatory damages. Tenant claimed the unit was subject to rent stabilization; owner claimed that the unit was leased to tenant solely as an office for the practice of medicine. The tenant claimed that the apartment was his only residence and that he moved in three months after signing the lease. The unit does not have a kitchen and the tenant claimed that he eats all of his meals out. On his tax returns, the tenant deducted 80% of the rent as a business expense. The lease was a form residential apartment lease, however, it included a typewritten phrase which provided that the tenant's use would be solely for the practice of medicine. The court held that when there is a conflict between two clauses in a contract, "the handwritten or typewritten clauses prevail over the preprinted language of a form document." The court dismissed the tenant's claim for relief. The court reached this conclusion notwithstanding the fact that the unit had been mistakenly registered as rent stabilized for a number of years.

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Case Caption:

Djuko Realty, Inc. v. Roman

Issues/Legal Principles:

Keywords:

Court:

New York City Civil Court, Housing Part 18-G, Kings County

Judge:

Hon. Finkelstein

Date:

August 20, 1997

Citation:

NYLJ, page 23, col 5

Referred Statutes:

RRRA of 1997; RSC section 26-517

Summary:

The tenant herein moved for partial summary judgment based upon the landlord's failure to pay an annual $10.00 fee required by Rent Stabilization Law ("RSL") section 26-517.1(a). The landlord asserts that it was never billed for that particular fee in 1984, and that it has paid all applicable fees which it has been billed for. The landlord also alleges that it is not required to maintain records for more than four years pursuant to the New York City Administrative Code. The landlord argued in the alternative that factual issues exist, precluding a finding of summary judgement, the tenant failed to make an evidentiary showing that the tenant is entitled to the relief sought and precedential case law precludes the granting of the tenant's motion. After making the opposition argument, the landlord sent a letter to the Court stating that the enactment of the Rent Regulation Reform Act of 1997 (RRRA) mandates the denial of the tenant's motion. The Court noted that landlord is correct in stating the RRRA precludes a sanction against a landlord for failing to pay the $10.00 fee. The Court noted however, that it is not clear whether the law is applicable retroactively (i.e., back to a landlord's failure to pay the fee before the law was enacted). The Judge scheduled oral argument on the issue of retroactivity alone, and stated that if the parties cannot settle the case on the return date, it is likely that the tenant's motion will be denied and a trial held.

submitted by: Cary Kletter, Esq.

Case Caption:

Virginia City LLC v. Dickinson

Issues/Legal Principles:

Defective predicate notices cannot be amended, and mandate dismissal.

Keywords:

Termination Notice; Nonprimary Residence; Net Lessee

Court:

New York City Civil Court, Part 18, New York County

Judge:

Hon. Ling-Cohen

Date:

August 13, 1997

Citation:

NYLJ, page 22, col 4

Referred Statutes:

none

Summary:

In this "nonprimary residence" holdover, the tenant moved for dismissal based upon an allegedly defective termination notice along with attorneys fees and the landlord cross-moved for discovery and use and occupancy. The tenant argued that the termination notice was facially defective because it is from an entity (Virginia City LLC) which is neither the owner nor the landlord. The deed and the lease were in another party's name. The petitioner argued that the termination notice came from a "new" landlord and that the tenant was aware of the change in landlord via a previously sent notice. The court noted that precedent dictates that the tenant be able to act "with safety" upon notices received. The court went on to say that predicate notices must, therefore, provide the recipient with reasonable notice of the authority of the signor. This is because the tenant must act on the notice at the time it is given. The court dismissed the petition because of the fact that the notice alleged it was from the owner and landlord, yet the petitioner was not listed on the deed, and was not the landlord in the lease. The court noted that a net lessee (petitioner is a net lessee) may sue as a "landlord" if there is a valid assignment of lease and a valid assignment of rents. Petitioner did not submit documentation showing that the "old" landlord had executed an assigment of rents or an assignment of leases. The court also noted that the termination notice was not written in plain language. The court further noted that a member of a LLC may not be imbued with sufficient authority to termintate a tenancy on behalf of the LLC, and thus detail regarding an LLC member's authority must be set-forth in a termination notice signed by a "member." A defective predicate notice is not an amendable defect, thus dismissal was mandated. Respondent's motion for attorneys fees was denied because the petitioner was not a party to the lease, thus attorneys fees could not be awarded to respondent.

submitted by: Cary Kletter, Esq.

Case Caption:

1050 Tenants Corp v. Lapidus

Issues/Legal Principles:

Issue Preclusion

Keywords:

Nonpayment; Cooperative

Court:

New York City Civil Court, New York County

Judge:

Hon. Stallman

Date:

August 13, 1997

Citation:

NYLJ, p. 23, col. 1

Referred Statutes:

none

Summary:

A cooperative corporation moved for partial summary judgement on its prima facie case. After trial of a prior nonpayment proceeding between the parties, the petitioner had been given a $43,834.24 judgment as well as a possessory judgement. Although this is a new proceeding, petitioner argued that issue preclusion barred respondent from raising issues that had been resolved at trial in the previous litigation between the parties. The Court stated that although claim preclusion did not apply, issue preclusion did, and certain portions of petitioner's prima facie case were accepted on the summary judgment motion based upon the documentary evidence. The Court noted that the granting of this partial summary judgment motion would result in the conservation of judicial resources, the avoidance of delay and keeping legal fees in check. The Court also noted that this type of application was typically addressed in an application in limine before the trial judge.

submitted by: Cary Kletter, Esq.