Housing Court Decisions February 1999

edited by Colleen F. McGuire, Esq. and Linda Rzesniowiecki, Esq.

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New York Law Journal,
decisions for the week of February 22-26, 1999 (7 cases)

Case Caption:
Vega v. New York City Housing Authority
Issues/Legal Principles:
NYCHA tenant's tenancy was wrongfully terminated for son's isolated instance of drug possession in the building complex.
Keywords:
illegal activity; non-desirability
Court:
Supreme Court, New York County
Judge:
Hon. Beatrice Shainswit
Date:
February 23, 1999
Citation:
NYLJ, page 26, col 2
Referred Statutes:
CPLR 7804(g)
Summary:
New York City Housing Authority (NYCHA) terminated tenant's tenancy after her son was arrested for drugs while sitting in a car parked in front of one of the building's in the complex where his mother, the tenant, lives. He gave the police officer a driver's license bearing his mother's address. NYCHA terminated the mother's tenancy on grounds that an unauthorized person occupied her apartment while possessing drugs in the immediate vicinity. The tenant does not speak English and the notice of hearing's charges were printed only in English. At the hearing the tenant maintained that her son did not live with her, but in any event she signed an agreement that for one year she would not allow her son to reside in or visit the apartment and consented to periodic inspections by a NYCHA official. Subsequently, the tenant asserted that she did not understand what she signed and agreed to sign the document only in the belief that it would prevent her eviction from her home. Two months later a NYCHA official went to the apartment and the son answered the door. The official testified that the son answered the apartment in his underwear and stated that he had been living with his mother for about a week because he lost his job. The hearing officer did not believe the mother's story that her son was only visiting that day and that her granddaughter let him in. The Court determined that the punishment against the mother was disproportionate to the offense when it is premised upon an isolated incident and the facts do not indicate that the tenant poses a future risk to other tenants or NYCHA property. The Court noted that the purpose of an administrative sanction is not to punish the tenant for the actions of her family members, but rather to impose conditions that are designed to protect the future health and safety of the residents of NYCHA projects. The Court ruled that the attempt to evict the tenant and the sanction that her son could no live with her were disproportionate penalties to the offense, because the tenant had an exemplary record in her 24-year tenancy and her son had caused no problems since his arrest two years prior. NYCHA argued that it was justified in the penalty but all the case law it supported dealt with a tenant's child who sold drugs in the projects, and those circumstances were not present in this case. The Court also noted that the tenant is the sole caretaker of three minor children and these children (two of whom are foster children) would suffer if the tenant were evicted. The Court remanded the case back to the administrative level for consideration of a more appropriate penalty.

Case Caption:
East River Housing Corp. v. Buljeta
Issues/Legal Principles:
Trial required to determine tenants' intentions and beliefs in harboring a dog in violation of the proprietary lease.
Keywords:
pets
Court:
Supreme Court, New York County
Judge:
Hon. Jane Solomon
Date:
February 24, 1999
Citation:
NYLJ, page 30, col 3
Referred Statutes:
CCA 209 & 213; RPL 232-a
Summary:
The defendant tenants are co-op owners and their proprietary lease contains a clause prohibiting the harboring of pets without the co-op Board's written consent. The tenants also signed a written acknowledgement that if they maintained a pet this would be deemed a substantial violation of the the tenancy, subjecting them to legal fees. East River claims that at the time the tenants purchased the shares and signed the acknowledgement East River knew they had a dog and would not have allowed them to purchase had the tenants not signed the acknowledgement. East River seeks to rescind the proprietary lease and accuses the tenants of fraudulent misrepresentation. The tenants claim that the case belongs in Housing Court and that East River failed to serve proper notices. The tenants also claim that at the time they signed the acknowledgement, they did have a dog, but did not intend to bring the dog into their new home. However, when the tenants noticed that other people had dogs, they assumed that permission was freely given to residents who wished to have pets. The court denied East River's motion for summary judgment and denied tenants' motion to dismiss. The matter requires a trial regarding tenants' intentions and beliefs.

Case Caption:
Torrence v. Barry
Issues/Legal Principles:
Landlord may not withhold month to month tenant's security deposit where tenant failed to give 30 days notice of intent to vacate because a month to month tenant is not required to provide a 30 day notice.
Keywords:
security deposit; surrender notice
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Sara Krauss
Date:
February 24, 1999
Citation:
NYLJ, page 29, col 2
Referred Statutes:
Real Property Law 232-a; CCA 1807
Summary:
Plaintiff-tenant occupied the premises as a month to month tenant and was up to date on his rent at the time he vacated the apartment on or about August 26, 1997. The defendant- landlord withheld the return of tenant's security deposit because tenant failed to provide 30 days notice of his intent to vacate. The lower court ruled in favor of the landlord, the Appellate Term reversed, holding that pursuant to Real Property Law 232-a, only a landlord is required to give the requisite 30 days notice to a tenant. There is no reciprocal obligation under the statute on the part of a month to month tenant to give notice to the landlord.

Case Caption:
171 West Fourth LLC v. Fennell
Issues/Legal Principles:
Roommate's consistent payment of rent does not turn her into a tenant where landlord consistently treated her as the record tenant's mere roommate.
Keywords:
roommates; waiver
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Douglas Hoffman
Date:
February 24, 1999
Citation:
NYLJ, page 29, col 1
Referred Statutes:
none cited
Summary:
The landlord and tenant entered into a lease agreement in 1983 and a handwritten provision permitted tenant to have one roommate named Zvia Ratz. Ratz resided in the premises with the record tenant ever since. However, shortly before the landlord commenced this proceeding, the record tenant vacated the apartment. Ratz claims that the landlord's continuous acceptance of rent payments from her (usually half the rent, sometimes the entire amount) constitutes an acceptance of her independent tenancy. The Appellate Term reversed the lower court which had found in Ratz's favor. The Appellate Term found that while the landlord accepted rent directly from Ratz for several years, all objective factors indicate that the landlord treated her as nothing more than a lawful occupant (i.e., the record tenant's roommate, not a tenant in her own right). Further, for 13 years the landlord consistently refused to put Ratz's name on the lease.

Case Caption:
Schippers v. Mass
Issues/Legal Principles:
Tenant's motion for attorney's fees granted where lease clause permits such a recovery had landlord won the case.
Keywords:
legal fees
Court:
Civil Housing Court, Kings County
Judge:
Hon. Jose Rodriguez
Date:
February 24, 1999
Citation:
NYLJ, page 35, col 5
Referred Statutes:
RPL 234
Summary:
The tenant was deemed the prevailing party in an owner occupancy case which landlord lost. The tenant now moves for attorney's fees and the court must determine (a) which lease controls and (b) whether the language of the lease permits the tenant to recover attorney's fees in accord with Real Property Law, Section 234. The first lease from 1980 is signed by the tenant and the prior landlord. The second lease is dated 1988 and signed only by the prior landlord. Since 1988, appropriate lease renewals have been tendered and signed (but these would not carry any attorney's fees clauses, since such clauses are generally found only in an initial lease). The court took the 1988 lease as controlling, but noted that the relevant clauses are nearly identical, so it didn't really matter which lease was used.
The relevant lease clause provides: "If this lease is cancelled or Landlord takes back the apartment, the following takes place: (3) any rent received by landlord for the rerenting shall be used first to pay landlord's expenses and second to pay any amounts tenant owes under the lease, landlord's expenses include the cost of getting possession and re-renting the apartment, including, but not only reasonable legal fees, brokers fees, cleaning and repairing costs, decorating costs and advertising costs." When a lease provides only for the recover of attorney fees by the landlord, RPL 234 acts to make the provision reciprocal so that a tenant may recover such fees in the event they successfully defend and prevail in litigation. The owner argues that the lease clause covers only re-letting of the premises and not the costs of a case such as the one litigated. The trial judge disagreed and cited numerous cases where the tenant was awarded legal fees where similar clauses existed, or similar circumstances.

Case Caption:
The Hildes Partnership v. Kapit
Issues/Legal Principles:
Landlord denied discovery in alleged illegal sublet proceeding.
Keywords:
discovery; sublet
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Laurie Lau
Date:
February 25, 1999
Citation:
NYLJ, page 29, col 2
Referred Statutes:
none cited
Summary:
The lower court denied the landlord's "broad demand" for discovery in a holdover based on alleged illegal subletting. The landlord failed to set forth any information that any unauthorized occupants have resided in the premises for at least 10 months prior to the notice of cure, and failed to controvert the tenants' records showing that only immediate family members have occupied the apartment since the expiration of the cure period. The Appellate Term affirmed, holding that in such circumstances the landlord has failed to show ample need for disclosure

Case Caption:
412 West 49th Acquisition v. Londono
Issues/Legal Principles:
In nonprimary residency case, petition was not defective for failing to name husband of rent controlled tenant of record as a party to the proceeding.
Keywords:
nonprimary residence; necessary party
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Douglas Hoffman
Date:
February 25, 1999
Citation:
NYLJ, page 29, col 2
Referred Statutes:
none cited
Summary:
The lower court held that the husband of the rent controlled tenant of record was not a necessary party to the underlying nonprimary residence holdover proceeding. The lower court denied the husband's request to dismiss the petition based on the fact that he was not joined as a party. The Appellate Term affirmed, holding that the husband failed to show that he had any independent possessory rights in this Manhattan apartment. The court noted that the husband primarily resided in a rent stabilized apartment in Queens during the relevant period.

New York Law Journal,
decisions for the week of February 15 - 19, 1999 (10 cases)

Case Caption:
In the Matter of Louise Evans v. Ruben Franco, as Chairman of NYCHA
Issues/Legal Principles:
Occupant of deceased tenant's apartment is precluded from claiming succession rights to deceased's Section 8 rent subsidy because all annual recertification forms submitted to NYCHA indicated that the deceased tenant lived alone.
Keywords:
succession rights; rent subsidy; Section 8
Court:
Court of Appeals
Judge:
(the name of the lower court judge is not mentioned)
Date:
February 16, 1999
Citation:
NYLJ, page 28, col 5
Referred Statutes:
Section 8 of the US Housing Act of 1937; 42 USC Section 1437f; 24 CFR Sections 982.151, 982.302, 982.201(c) and 982.551(h)(2)
Summary:
From 1978 through March 1995, Esther Silver received a low income rent subsidy pursuant to the Section 8 Certificate program. Each year, the form she submitted to NYCHA said she was the sole occupant of the apartment. Therefore, NYCHA only considered her income when they decided, each year, to continue the rent subsidy. After Silver's death in March 1995, Evans claimed that she was a family member and sought to continue the subsidy. NYCHA denied her application, because she was not mentioned as an occupant on the annual forms which Silver submitted to NYCHA from 1978 to 1995. The Court of Appeals agreed with NYCHA, stating: "To permit petitioner to claim status as a surviving family member would be to open the door to possible fraudulent claims and to a wholesale disregard of the intent of the subsidy program."
Notes:
This is a significant case for tenants who receive federal subsidies to their rent and an annual certification of household income statements are required to be filed. Prior Appellate Term case law held that simply because the name of a family member claiming succession rights was not listed on the annual income certification, that this omission should not be determinative. This Court of Appeals cases indirectly upholds this position. In other words if the family member's name was not listed on the certification, that this should not automatically bar him or her from attaining succeeding to the lease. The Court of Appeals indicated that this case is limited to the issue that a family member who succeeds in obtaining the lease cannot also have rights to the record tenant's Section 8 benefits.

Case Caption:
Clearwater Properties LLC v. Grant
Issues/Legal Principles:
A decision by a housing court judge cannot be overturned by a conflicting decision made by a different housing court judge.
Keywords:
law of the case; coordinate jurisdiction
Court:
Appellate Term, 1st Dept.
Judge:
lower court judge: Hon. Doris Ling-Cohan
Date:
February 16, 1999
Citation:
NYLJ, page 29, col 2
Referred Statutes:
CPLR Section 2221
Summary:
Landlord brought a plenary action for rent against tenant. Tenant defaulted and a default judgment issued. Tenant moved to vacate the default, but Judge Stallman denied tenant's motion, because the tenant did not state a meritorious defense. The tenant brought another motion to vacate the default which was granted by a different judge - Judge Ling-Cohan. The appellate court said that Judge Stallman's decision on the first motion was the "law of the case" and that his decision should not have been disturbed by one of his colleagues (a judge of coordinate jurisdiction). The second motion should also have been referred to Judge Stallman. The appellate court reversed Judge Ling-Cohan's decision granting the motion to vacate the default judgment.

Case Caption:
130 West 57th Co., LLC v. Farley
Issues/Legal Principles:
Landlord may not seek attorneys' fees against tenant after entering into a stipulation of settlement unless the stipulation expressly reserves that party's right to seek attorney's fees.
Keywords:
attorneys' fees; stipulations of settlement
Court:
Appellate Term, 1st Dept.
Judge:
lower court judge: Hon. Martin Shulman
Date:
February 16, 1999
Citation:
NYLJ, page 29, col 3
Referred Statutes:
(none cited)
Summary:
Landlord and tenant entered into a stipulation of settlement. After the stipulation was signed, the landlord made a motion requesting attorney's fees and the trial court denied the motion, because the landlord did not preserve its claim for attorneys fees in the stipulation and therefore the claim was waived. The appellate court affirmed the trial court's decision.

Case Caption:
NYCHA v. Williams
Issues/Legal Principles:
The ten-day cure period set forth in RPAPL Section 753(4) is not available in holdover proceedings brought by NYCHA following an administrative adjudication that the tenant is ineligible for continued occupancy.
Keywords:
NYCHA; ten-day cure period
Court:
Appellate Term, 2nd Dept.
Judge:
lower court judge: Hon. S. Hoahng
Date:
February 16, 1999
Citation:
NYLJ, page 30, col 3
Referred Statutes:
RPAPL Section 753(4)
Summary:
NYCHA served tenant with a thirty-day notice of termination of tenancy. An administrative hearing at NYCHA determined that the tenancy was properly terminated because of the undesirable behavior of the tenant's adult children. NYCHA then sought to obtain an eviction order from housing court but tenant moved to permanently stay the eviction, pursuant to RPAPL Section 753(4). RPAPL Section 753(4) provides that the court's issuance of an eviction warrant should provide for a ten-day period in which the tenant has the opportunity to cure the lease default. The trial judge apparently found that the tenant had cured the default (the adult children were no longer living with her) and issued a permanent stay of the issuance of the warrant. A panel of three justices on the appellate term decided the case and the majority (two justices) determined that "the ten-day cure period of RPAPL 753(4) is not available in holdover proceedings brought by the New York City Housing Authority following an administrative adjudication that the tenant is ineligible for continued occupancy." The majority also based its decision on the fact that the holdover was not based upon a claim that tenant breached a provision of her lease, but upon a thirty-day notice terminating the tenant's month-to-month tenancy. The dissenting justice noted that the tenancy was terminated because the tenant breached a provision of the lease, due to the undesirable behavior of her adult children, and that she should have a ten-day opportunity to cure, even if NYCHA's case was predicated upon a thirty-day notice of termination rather than a different type of notice. The dissenting justice also argued that NYCHA tenants should be given the same right to cure as any other tenant in this City.

Case Caption:
452 Wyckoff Corp. v. Duran
Issues/Legal Principles:
Attorney's neglect is imputed to attorney's client.
Keywords:
attorney negligence; motion to vacate default
Court:
App. Term, 2nd Dept.
Judge:
lower court judge: Hon. R. Mason
Date:
February 16, 1999
Citation:
NYLJ, page 30, col 3
Referred Statutes:
(none cited)
Summary:
Landlord brought a nonpayment proceeding against tenant and tenant asserted various defenses and counterclaims. Landlord moved to dismiss the affirmative defenses, tenant's attorney did not appear on the return date of the motion and the motion was granted. Tenant's attorney also did not appear at the trial and therefore a default judgment was entered against tenant. Tenant's attorney made various motions which were denied, but finally obtained a court order vacating the defaults on condition that the tenant deposit $25,000.00 into court by a date certain. The tenant never deposited the money. Tenant's attorney continued to bring various motions and was finally sanctioned in the amount of $2,500.00 because the motions were frivolous in light of tenant's continued failure to deposit money into court. On appeal, tenant's new attorney argued that the motion to vacate the defaults should be granted because the failure of the attorney to appear was excusable and that tenant should not suffer because of her attorney's conduct. The appellate court disagreed and refused to vacate the defaults. Tenant had the opportunity to deposit the $25,000.00 into court, in order to vacate the defaults, but failed to do so. Furthermore, the law is clear that an attorney's neglect can be imputed to the party she or he represents.

Case Caption:
Bellstell 140 East 56th Street, LLC v. Layton
Issues/Legal Principles:
Predicate notices to illegal sublet holdover proceeding are adequate, since they allege that the prime tenant is primarily residing elsewhere, even though they did not indicate the specific address of the prime tenant's primary residence.
Keywords:
illegal sublet; predicate notice; motion to dismiss
Court:
Housing Part of Civil Court, New York County
Judge:
Hon. Acosta
Date:
February 17, 1999
Citation:
NYLJ, page 32, col 5
Referred Statutes:
RPAPL Section 741; CPLR Section 3211(a); RPL Section 226-b and 235-f; RSC Sections 2524.2(b), 2524.3, 2525.6.
Summary:
Landlord brought illegal sublet holdover proceeding against tenant. Tenant made a motion to dismiss the landlord's case on various grounds, including that the predicate notices fail to state sufficient facts to establish grounds for eviction. The Court denied tenant's motion to dismiss. The predicate notices (the notice to cure and the notice of termination) state the name of the alleged subtenant but fail to specify the address of the prime tenant's new primary residence. The Court found that the landlord's predicate notices were adequate because "the predicate notices allege that respondent no longer resides at the subject premises and has sublet or assigned the subject premises to a named individual (viz. Rosemary Everet), without the landlord's permission. . . ." The Court further explained that, in order to prove its case, the landlord need only prove that the tenant is no longer residing at the apartment and that the tenant sublet the apartment without the landlord's consent. The landlord need not prove the particular address of the tenant's primary residence. The Court also refused to dismiss the case on the basis that the landlord served the predicate notices by certified mail and regular mail (rather than by registered mail as required by the lease).

Case Caption:
Parkchester Alliance v. Parkchester Apartments Co.
Issues/Legal Principles:
The Housing Court is only authorized to order the correction of Housing Maintenance Code violations as they arise; the court does not have the power to order the replacement of the building's entire plumbing system.
Keywords:
housing maintenance code; water leaks
Court:
Housing Part of Civil Court, Bronx County
Judge:
Hon. Heymann
Date:
February 17, 1999
Citation:
NYLJ, page 33, col 3
Referred Statutes:
NYC Admin. Code Sections 27-200 et. seq. ("the Housing Maintenance Code"); NYC Admin. Code Sections 27-2002, 27-2115 and 27-2121; Civil Court Act Section 110
Summary:
A tenants' group (about thirty tenants) brought a Housing Part ("HP") proceeding against landlord. An HP proceeding is a proceeding in which tenants (or the City of New York) ask the Court to issue an order requiring the landlord to correct conditions within the premises which are violations of the Housing Maintenance Code of the City of New York. Tenants established that they have been suffering from water leaks, deterioration of walls and ceilings, interruption of water service and defective electrical services relating to wet walls. Landlord established that it made diligent and immediate efforts to repair each and every condition (broken pipes, leaks, etc.) as it occurred. Tenants established, by expert testimony, that these problems would continue to occur unless the entire plumbing system in the building is replaced. The Court refused to issue an order requiring the owner to replace the entire plumbing system. The Court explained that it only has the power to order the correction of violations as they arise and cited to other cases where courts found that they did not have the power to order replacement of entire building systems. In a footnote to its decision, the Court noted that the parties agreed that it could cost $200 million to replace the plumbing system in the entire complex, which consists of 171 separate apartment buildings. The Court dismissed the HP proceeding against landlord, since there were no outstanding violations. The Court also helped the parties settle the nonpayment proceedings which landlord brought against tenants; landlord agreed to a 33% rent abatement.

Case Caption:
Livbros LLC v. Vandenburgh
Issues/Legal Principles:
Landlord need not serve a fifteen-day termination notice upon rent-stabilized tenant who received renewal lease and informed landlord that he wished to vacate at end of term.
Keywords:
nonrenewal of lease
Court:
Housing Part of the Civil Court, Kings County
Judge:
Hon. Birnbaum
Date:
February 17, 1999
Citation:
NYLJ, page 37, col 1
Referred Statutes:
RSC Sections 2523.5, 2524.2, 2524.3(f), 2520.13
Summary:
Landlord offered rent-stabilized tenant of Apt. 4B a renewal lease. Tenant's lease was set to expire on May 31, 1998. On April 8, 1998, tenant returned the lease renewal form and checked the box which stated that he would not renew his lease. In a letter to landlord dated May 1, 1998, tenant reiterated his intention not to renew his lease. Three days later, tenant sent a letter to landlord saying that he changed his mind and wanted to stay. On April 28, 1998, landlord rented tenant's apartment (Apt. 4B) to the tenants of Apt. 3D. The landlord also rented Apt. 3D to another family. Landlord brought a holdover proceeding against tenant, without serving a predicate notice. The tenant moved to dismiss the landlord's case, because a predicate notice was not served. The RSC [Sections 2524.2 and 2524.3(f)] provides that if a tenant does not respond to an offer of a renewal lease, the landlord must serve a fifteen day termination notice prior to initiating a holdover proceeding. The Court held that it was not necessary for landlord to serve a predicate notice in this case, because the tenant specifically informed the landlord of his intention to vacate.

Case Caption:
Matter of Santo v. DHCR
Issues/Legal Principles:
A DHCR order which determines that a premises is subject to rent control must also fix the maximum rent as of May 1, 1950, or the date of first renting, whichever is later.
Keywords:
rent overcharge; rent control
Court:
Supreme Court, Queens County
Judge:
Hon. Justice Schmidt
Date:
February 17, 1999
Citation:
NYLJ, page 37, col 3
Referred Statutes:
(insert statutes here)
Summary:
Tenant filed an overcharge complaint in October 1985 alleging that her apartment, located in a two-family house, is subject to rent control. DHCR's records revealed that the premises was indeed rent-controlled: a prior landlord registered the premises in 1943 with the former Federal Office of Price Administration ("OPA"). DHCR ultimately set the rent at $375 as of November 1, 1983. The DHCR reasoned that it was appropriate to calculate the rent as of this date (which is two years prior to the tenant's filing date), because an rent control overcharge award could only include rent paid during the two years prior to the filing date of the overcharge complaint. The tenant then challenged the DHCR's decision by filing an Article 78 proceeding with the Supreme Court. The Supreme Court overturned the DHCR's decision, finding that the DHCR should have established the rent as of May 1, 1950 or the date of first renting, whichever is later, as required by 9 NYCRR Section 2202.22(a). Since the date of first renting was prior to May 1, 1950, the DHCR should have established the rent as of May 1, 1950. The maximum rent as of May 1, 1950 was $60.00 per month. The Court remanded the case to the DHCR to calculate all permissible increases and compute the current maximum rent based upon a base maximum rent of $60.00 as of May 1, 1950.

Case Caption:
The Jewish Theological Seminary of America v. Fitzer
Issues/Legal Principles:
Notice of nonrenewal served by nonprofit must include allegation that tenant's right to occupancy commenced after July 1, 1978.
Keywords:
notice of nonrenewal; nonprofit institutions
Court:
Appellate Division, First Department
Judge:
lower court judge: Hon. Joan Madden
Date:
February 17, 1999
Citation:
NYLJ, page 31, col 5
Referred Statutes:
RSC Section 2524.4(b)
Summary:
Landlord served a notice of non-renewal (followed by a holdover petition) to various rent-stabilized tenants on grounds permitted by RSC Section 2524.4(b) - that it is a nonprofit institution and requires the use of the apartments to further its charitable or educational purposes. RSC Section 2524.4(b)(i) further provides that the owner may not refuse to renew the lease of a tenant whose right to occupancy commenced prior to July 1, 1978. A group of tenants moved to dismiss the petition on the grounds that the notice of non-renewal was defective. The housing court judge granted the motions, the Appellate Term, First Department reversed and denied the motions and the Appellate Division, First Department decided that some of the petitions were properly dismissed and some of them were not. The petitions which should not have been dismissed were based upon nonrenewal notices which alleged, by reference to a rider, that the tenants took possession after July 1, 1978. These nonrenewal notices "provided the necessary additional information to enable the tenant-respondent to frame a defense and the notice, as a whole, was therefore adequate to meet the tests of reasonableness and due process." The notices of nonrenewal that made no reference to July 1, 1978 were properly dismissed, because they did not "afford the affected tenants notice sufficient to enable them effectively to defend their tenancies."

New York Law Journal,
decisions for the week of February 8-12, 1999 (9 cases)

Case Caption:
319 West LLC v. Gold
Issues/Legal Principles:
Rent registrations filed in 1998 for the years 1994, 1995 and 1996 can be challenged by tenant since the overcharges occurred within four years from the time of the filings.
Keywords:
overcharges; rent registrations
Court:
Civil Housing Court, New York County
Judge:
Hon. Douglas Hoffman
Date:
February 10, 1999
Citation:
NYLJ, page 27, col 6
Referred Statutes:
RSL 26-517(a)(i) & (e)
Summary:
The tenant moved in on November 6, 1997. The owner filed rent registrations with the DHCR for 1994, 1995 and 1996. These registrations were filed in March, 1998. Tenant's rent has always been $110 per week. Prior to these registrations, the rent was last registered on November 18, 1992 at $199.98 per month. The registrations filed in March, 1998 indicate the rent as $500 per month for the years 1994, 1995 and 1996. Apparently no registrations were filed for 1993 or 1997. On July 17, 1998, the landlord registered the rent at $500 per month with the rent actually paid registered at $110 per week. In a nonpayment proceeding brought by the landlord, the tenant interposed counterclaims for overcharges, and argued that as a matter of law the legal regulated rent is $199.98 per month until March 1998. Upon completion of the March, 1998 registration filings, the landlord became entitled to add subsequent yearly rent guideline increases based on the building's status as an "Old Law SRO." With these increases, tenant claims the rent should be $208.06 per month, with no increase in 1993 because the landlord failed to register that year.
The Rent Stabilization Law provides that the filing of a late registration shall result in the prospective elimination of sanctions, provided that increases in the legal regulated rent were lawful except for the failure to file a timely registration and upon the owner's service of a later registration, there will be no finding of an overcharge at any time prior to the filing of the late registration. The tenant argues that the rent increases listed in the 1994, 1995 and 1996 registrations are unlawful and subject to challenges because none of these registrations is more than four years old. The most recent registration is July, 1998 at a rent of $500 per month with an actual rent paid of $110 per week. Four years prior to this, the registration in effect was $199.98 per month registered in 1992, and thus no longer subject to challenge. The owner filed the subsequent registrations within the last four years, so they are subject to challenge. Thus, the court concluded that the base date rental amount for purposes of calculating a rent overcharge is $199.98 per month. The court noted that the owner made no explanation as to why the rent more than doubled between 1992 and 1998. The court set the matter down for a hearing on the amount of the overcharge and whether treble damages should also be awarded.

Case Caption:
Mark Greenberg Real Estate v. DHCR
Issues/Legal Principles:
Fair market rent appeal filed prior to April 1, 1984 is not subject to the four-year statute of limitations period covering overcharge claims in general.
Keywords:
overcharges; fair market rent appeal
Court:
Appellate Division, First Department
Judge:
lower court: Hon. Bruce Allen
Date:
February 11, 1999
Citation:
NYLJ, page 28, col 3
Referred Statutes:
RSL 26-516(a); Rent Regulation Reform Act of 1997, Section 33
Summary:
The Court upheld the DHCR's decision that the a fair market rent appeal filed prior to April 1, 1984 is not subject to the four year statute of limitations period covering overcharge claims. (A fair market rent appeal occurs when the first rent stabilized tenant challenges the amount of rent the owner sets as the first rent stabilized rent.) The Court also upheld the DHCR's ruling that the current landlord refund the tenant's overcharges collected by the prior owner during a one-year period on grounds that it would be inequitable to require the prevailing tenant to go after the old owner for the overcharges.

Case Caption:
Lalita LLC v. Milon
Issues/Legal Principles:
Court dismisses nonpayment petitions against all DSS tenants because one apartment in the building still had dangerous violations.
Keywords:
violations;
Court:
Civil District Court, Suffolk County
Judge:
Hon. B. Kahn
Date:
February 10, 1999
Citation:
NYLJ, page 30, col 3
Referred Statutes:
Social Services Law 143-b; RPL 235-b
Summary:
Landlord brought nonpayment proceedings against 14 tenants and the cases were all consolidated. The tenants receive rent subsidies from the Department of Social Services. The Town of Islip notified DSS and the tenants to withhold rent due to violations in all the apartments. The Town Fire Marshal made inspections and found a host of violations including exposed wiring, failure to maintain ceilings, and circuit breaker problems. Pursuant to the Social Services Law, rent payments would not resume until the violations were corrected. In December, 1998, the owner pled guilty to two violations regarding failure to maintain fire alarms and sprinklers, and was fined and given a conditional discharge provided all the existing violations be corrected. There was also a damaged beam from a fire. Eventually all the repairs were made except for one apartment and the Fire Marshall determined that those unrepaired conditions (failure to maintain walls and ceilings) were dangerous and the apartment uninhabitable. The tenant of the apartment vacated in December. The court observed that the Social Services Law provides that the agency withhold rent on behalf of a tenant when there are violations existing in the "building." The court determined that the four separate buildings of the complex constitute one building inasmuch as there is one certificate of occupancy and they have common walls, single owner, and a single management. Since all the violations are not completed in the building, the court dismissed all the nonpayment petitions.

Case Caption:
Junko v. Antunes
Issues/Legal Principles:
Majority owner in landlord company is not a third party debt collector within the meaning of the Fair Debt Collections Practices Act, and thus the three day rent demand is not defective by the majority owner's signing it.
Keywords:
nonpayment; rent demand
Court:
Appellate Term First Department
Judge:
lower court: Hon. Bruce Gould
Date:
February 9, 1999
Citation:
NYLJ, page 26, col 1
Referred Statutes:
none cited
Summary:
The Appellate Term upheld the lower court's denial of the tenant's post-trial motion to set aside the final judgment. Apparently the tenant sought to challenge the infirmity of the three- day rent demand, but the Court held that this infirmity was waived by tenant's failure to raise the issue until more than one year after trial. The Court stated, "In any event, the notice was properly signed on behalf of landlord by its majority owner," citing Romea v. Heiberger & Associates, 988 F. Supp. 712.
Notes:
This is the first time the Appellate Term has faced the issues raised in Romea v. Heiberger & Associates which held that rent is a debt under the federal Fair Debt Collections Practices Act, that a landlord's attorney who signs a three-day rent demand is a debt collector under the statute, and a thirty-day period to dispute the debt must be given to the tenant rather than a three-day demand. The Appellate Term seems to have rightly ruled against this tenant's use of a Romea defense in that the FDCPA is not triggered where owners themselves sign the notice; it is only applicable against a third party debt collector. Disclosure: Colleen McGuire's law firm represented the plaintiff Romea.

Case Caption:
Tsafatinos v. Jimenez
Issues/Legal Principles:
Housing Judge cannot order tenant restored to apartment in a nonpayment proceeding where landlord was never granted a possessory judgment.
Keywords:
unlawful eviction; judgment
Court:
Appellate Term, 2nd & 11th Judicial Districts
Judge:
lower court: Hon. C. Callender
Date:
February 9, 1999
Citation:
NYLJ, page 32, col 2
Referred Statutes:
RPAPL 713(10); CPLR 5015(d)
Summary:
In a nonpayment proceeding the tenant made a motion to the judge seeking to be restored to possession. Apparently, the petition had previously been either marked off calendar or dismissed. In any event, the landlord received no possessory judgment during the nonpayment proceeding. The tenant claimed to have been unlawfully evicted by the landlord but the Appellate Term seemed to harbor doubts about the veracity of this. In any event, the Court held that it was not possible in a nonpayment proceeding for the housing judge to restore a tenant to possession in a nonpayment proceeding, but that the tenant would have to commence a proceeding under RPAPL 713(10). The Court held that the lower court had no authority to order the tenant restored to possession where the tenant was not removed pursuant to a judgment in that proceeding.

Case Caption:
IG Second Generation Partners
Issues/Legal Principles:
Trial must be had as to whether executrix who remains in apartment after tenant's death for four years not paying rent or signing lease was accepted by owner as a tenant in her own right.
Keywords:
estates; waiver
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Saralee Evans
Date:
February 9, 1999
Citation:
NYLJ, page 26, col 1
Referred Statutes:
none cited
Summary:
The lower court dismissed the holdover petition on a summary judgment motion, but was reversed by the Appellate Term. The respondent in this action is the executrix of the deceased stabilized tenant and occupies the apartment. The respondent argues that the landlord accepted her as a tenant in her own right, or that the landlord waived any objections to her tenancy. The owner claimed that it did not prosecute the holdover because there was a substantial rent overcharge award owed to the decedent's estate which the landlord elected to offset against the monthly rent for the ensuing four years. Respondent, who occupied the apartment during this four-year period, didn't pay rent or execute a lease. The Appellate Term ruled that there exists a triable issue whether the owner ever recognized respondent in any capacity other than as a representative of the estate (since waiver must be a "voluntary" abandonment of a known right).

Case Caption:
Garmus v. Borah Goldstein Altschuler & Schwartz
Issues/Legal Principles:
Landlord's attorneys who signed and sent tenant a three day rent demand violates the federal Fair Debt Collections Practices Act ("FDCPA") for, inter alia, failure to provide tenant thirty days to dispute the debt (rent arrears).
Keywords:
debt collection; three day rent notices
Court:
U.S. Federal Court, Southern District of New York
Judge:
Hon. Charles S. Haight, Jr.
Date:
February 10, 1999
Citation:
NYLJ, page 31, col 2
Referred Statutes:
15 USC 1692 et seq; RPAPL 711
Summary:
The defendant in this federal action is the landlord's attorney who signed the three-day rent demand. The plaintiff-tenant sued under the Fair Debt Collections Practices Act ("FDCPA"). The defendant moved to dismiss for failure to state a cause of action. For purposes of the motion, the court accepts certain of the plaintiff's facts as true: that the law firm regularly engages in nonpayment proceedings against alleged defaulting tenants in New York City. On January 5, 1998, defendant on behalf of the landlord served plaintiff a three day rent demand seeking two months rent and $50 legal fees. Thereafter plaintiff was served a nonpayment petition and the legal fees demand rose to $175.00. Plaintiff filed a class action law suit on February 6, 1998 seeking damages under the FDCPA. On February 24, 1998, plaintiff paid the full sum of the past rent due.
Plaintiff contends that the rent demand violates the FDCPA because it contains none of the information required under the federal statute, such as for example, providing the tenant with a thirty day period to dispute the debt (the rent arrears), or advising the tenant that the attorney was attempting to collect a debt and any information obtained would be used for that purpose. The defendant law firm made a motion seeking the dismissal of the complaint for failure to state a cause of action. The Court denied the defendant's motion, holding that the FDCPA applies when a third party (the landlord's attorney) attempts to collect a debt (the rent arrears) on behalf of another (the landlord). The Court held that rent is a debt as defined under the FDCPA, that the three day notice constituted an "initial communication" by the debt collector, and a landlord's attorney who signs such notices is not exempt under the statute's definition of a debt collector. The Court rejected the defendant's argument that rent is not a debt but an extension of credit since leases typically require a tenant to prepay rent monies. The Court followed the precedent set in Romea v. Heiberger & Associates, stating "the duty to pay back rent does not derive from an extension of credit but rather because the payor breached its payment obligations in the contract between the parties." Further, the Court followed the precedent set in Hairston v. Whitehorn & Delman, stating "it is clear that the least sophisticated consumer would read these letters [three day rent demands] as a demand for rent and thus as being `in the collection of any debt.'" Finally, the Court held that federal law preempts state law and therefore the 30-day validation period must be complied with over New York State's 3-day period. Upon denying the defendant's motion to dismiss the complaint, the Court set the matter down for a status conference.
Notes:
Disclosure: Colleen McGuire's law firm represents the Romea and Hairston plaintiffs, the cases which set the precedents for applying the FDCPA to landlord-tenant relations where the landlords' attorneys act as debt collectors on behalf of their clients. Robert E. Sokolski, Esq. appears as co-counsel in both cases; he is also the plaintiff's attorney in Garmus v. Borah, Goldstein, Altschuler & Schwartz, one of the largest landlord firms in the city. Since this is a plaintiff class action, the defendant law firm may be liable to all tenants to whom the firm sent three day notices for the one-year period preceding the filing of the Garmus complaint.

Case Caption:
RRW Realty Corp. v. Flores
Issues/Legal Principles:
Landlord cannot evict two tenants for drug activity when the "buy and bust" occurred in another tenant's apartment.
Keywords:
illegal use
Court:
Supreme Court, Bronx County
Judge:
Hon. Heymann
Date:
February 10, 1999
Citation:
NYLJ, page 28, col 3
Referred Statutes:
RPAPL 711(5), 715; RPL 231
Summary:
Landlord of two neighboring buildings sought to evict three tenants (each lived in a separate unit) on grounds that illegal drug activity occurred on the subject premises. This case was brought as a result of a drug "buy and bust" incident which involved all three tenants but occurred at the apartment of one of the tenants. It is well settled law that in order to evict a tenant for illegal drug activity, it must be shown that the subject premises are being used for illegal trade or manufacture (as opposed to personal use). However, the law further provides that the "illegal activity must take place in or about the premises where the accused tenant resides." The Court dismissed the petition as against two of the tenants that were involved in this particular illegal transaction finding "no connection between their apartment and the sale of the illegal drugs." Moreover, the Court also considered whether these two tenants resided in the "vicinity" of the illegal transaction and noted that not only did these two tenants not reside at the unit where the illegal activity occurred, but in fact lived in the neighboring building. The Court awarded the landlord possession of apartment which was the scene of the crime, holding that this particular incident, coupled with trial testimony regarding the use of the subject apartment, warranted such a result.

Case Caption:
Henriquez v. Cook
Issues/Legal Principles:
SRO tenants obtain preliminary injunctive relief against defendant-landlord.
Keywords:
SRO; hotel; guardian ad litem
Court:
Civil Housing Court, New York County
Judge:
Hon. L. Miller
Date:
February 10, 1999
Citation:
NYLJ, page 26, col 6
Referred Statutes:
CPLR 3211(a)(1),(7), 308(2), 311(1), 1202, 4317, 2221; RPAPL 711, 211; RSC 2525.5, 2524.5, 2520.6(r), 2522.4(d), 2523.2, 2523.3, 2523.4; Illegal Eviction Law, Administrative Code of the City of New York 25-521, et seq; Administrative Code 27-2115(c)
Summary:
Plaintiffs are rent stabilized tenants of a single room occupancy hotel (SRO). The landlord desired to convert the premises to a hotel. The plaintiffs brought this action on several grounds. The plaintiffs sought preliminary relief which included 1) that the defendant-landlord recognize the unlawfully dispossessed tenant as the lawful stabilized tenant of record (and restore him to possession); 2) that the defendant-landlord correct dangerous conditions/class B violations of the housing maintenance code and maintain essential services; 3) that the defendant-landlord be restrained from actually or constructively removing plaintiffs from their rooms at the premises by offering buy-outs, harassment or intimidation; 4) that a guardian ad litem be appointed for the psychiatric patients who were placed at the SRO as part of their "exit" program. The Court granted plaintiffs the preliminary relief sought and specifically held that the plaintiffs made a sufficient showing that the psychiatric patients were incapable of adequately prosecuting their rights in this lawsuit and appointed a guardian ad litem to advocate their interests.

New York Law Journal,
decisions for the week of February 1-5, 1999 (9 cases)

Case Caption:
In re Application of Cenpark Realty Co. v. DHCR
Issues/Legal Principles:
Landlord cannot obtain MCI rent increase where work did not inure to the benefit of all tenants and was not done on a building-wide basis.
Keywords:
MCI rent increase
Court:
Supreme Court, Appellate Division, New York County
Judge:
lower court judge: Hon. William McCooe
Date:
February 1, 1999
Citation:
NYLJ, page 28, col 2
Referred Statutes:
RSC Section 2522.4(a)(2)(i)(c)
Summary:
Landlord filed an application with the DHCR requesting an MCI (major capitol improvement) rent increase for pointing, waterproofing and roof replacement work. The DHCR denied the application because the work did not qualify for an MCI because it did not inure to the benefit of all tenants and was not done on a building-wide basis. Both the Supreme Court and the Appellate Division upheld the DHCR's determination. The appellate court noted that the record before the DHCR included "tenant complaints of continuing leaks and water damage, the contractor's statement that it worked on only a portion of the building, and the fact that additional pointing work was subsequently performed."

Case Caption:
New York City Housing Authority v. Smith
Issues/Legal Principles:
A notice of default (or a rent demand) is insufficient if it does not inform the tenant/debtor of the precise amount that must be paid in order to avoid drastic consequences.
Keywords:
notice of default, rent demand
Court:
Supreme Court, New York County
Judge:
Hon. Ling-Cohan
Date:
February 1, 1999
Citation:
NYLJ, page 29, col 5
Referred Statutes:
none cited
Summary:
The New York City Housing Authority ("NYCHA") brought a plenary action against tenant for unpaid rent in the amount of $1,063. (A plenary action seeks only a money judgment, unlike a nonpayment proceeding, which seeks eviction if the money judgment is not paid). NYCHA and the tenant entered into a stipulation of settlement whereby the NYCHA agreed to accept a lesser amount ($608) and tenant agreed to make monthly payments until the lesser amount was paid in full. The stipulation also provided that if tenant missed a monthly payment, the NYCHA would give a written notice of default and, if tenant did not cure the default within ten days, then the NYCHA would be permitted to enter judgement for the full amount ($1,063) together with costs, interest and disbursements, less the amounts actually paid by tenant. Tenant made monthly payments in the total amount of $588 ($20 less than the amount required by the stipulation).

The NYCHA gave tenant a "default notice" in July 1997 which warned her that she was in default and that if she did not make "all outstanding payments" within ten days, NYCHA would enter a judgment against her in the full amount. The July 1997 notice did not indicate the amount of the outstanding payment (which was $20.00). The tenant did not make the required payment and in April 1998 (nine months after the July 1997 notice), NYCHA entered a judgment against her for the full amount. After entering judgment against her, the NYCHA sought to collect by income execution. The tenant then made a motion to vacate the judgment and the income execution.

The Court granted the tenant's motion on the condition that tenant pay the sum of $20.00 within sixty days of entry of the court's decision. The Court compared the notice of default to a rent demand (the predicate notice to a nonpayment proceeding). The Court found the NYCHA's July 1997 notice of default insufficient and ineffective because it was too vague and ambiguous. The notice did not inform the tenant precisely how much she should pay in order to avoid the entry of a judgment at the higher sum. Therefore the notice did not fairly give the tenant an opportunity to cure the default.

Case Caption:
Cooke v. DHCR
Issues/Legal Principles:
New owner is responsible for old owner's rent overcharge even though new owner purchased at a judicial sale.
Keywords:
rent overcharge; judicial sale exemption
Court:
Supreme Court, New York County
Judge:
Hon. Justice Lehner
Date:
February 3, 1999
Citation:
NYLJ, page 26, col 3
Referred Statutes:
RSC Section 2526.1(f)(2)
Summary:
Tenant filed a rent overcharge complaint with the DHCR. In 1990, the rent administrator made a determination of rent overcharge and treble damages in the total amount of about $101,000.00. The landlord then filed a Petition for Administrative Review ("PAR") which the DHCR's deputy commissioner ultimately decided in 1998. The DHCR decided that the new owner (Ogrin), who acquired the premises at a judicial sale in 1992, is not responsible for the overcharges collected by the prior owner. Ordinarily, the new owner is responsible for overcharges collected by the old owner, but there is an exemption in the event of a judicial sale, because the new owner usually does not obtain rent records from the prior owner. (A judicial sale takes place when the old owner defaults on mortgage payments; this sort of owner does not usually pass rent records on to the new owner). The DHCR reached this determination without considering evidence that the tenant informed the new owner about the rent administrator's 1990 overcharge order. The DHCR reasoned that the new owner's knowledge of a DHCR order is not equal to knowledge of rent history and that the old owner had filed a PAR to challenge the rent administrator's order.

The tenant challenged the DHCR's determination and the Court agreed, finding that the DHCR's order was arbitrary and capricious. The DHCR should have considered evidence that the new owner had actual knowledge of the rent administrator's order. The 1990 order was based upon leases that the DHCR had received from the prior owner. The 1990 order was certainly a "record sufficient to establish the legal regulated rent" and should have put the new owner on notice of the overcharge, rendering the "judicial sale" exemption inapplicable. The court remanded the case to the DHCR and required the DHCR to make a factual determination regarding the issue of whether the new owner had actual knowledge of the rent administrator's 1990 order prior to the judicial sale.

Case Caption:
Jewish Theological Seminary of America v. Roy
Issues/Legal Principles:
Not-for-profit institution may recover rent-stabilized apartments for its own charitable or educational use only if it owned the buildings prior to the date the rent-stabilized tenancies commenced.
Keywords:
not-for-profit holdover
Court:
Civil Court, Housing Part, New York County
Judge:
Hon. Lau
Date:
February 3, 1999
Citation:
NYLJ, page 27, col 4
Referred Statutes:
RSC Section 2524.4(b)(1)
Summary:
The Jewish Theological Seminary of America ("JTSA"), a not-for-profit institution, refused to renew the rent-stabilized leases of various tenants and commenced eviction proceedings because it wanted to recover the apartments for its own use in connection with its charitable or educational purposes. RSC Section 2524.4(b)(1) permits such recovery but only if the rent-stabilized tenancy commenced after the not-for-profit acquired title to the "property." JTSA acquired the buildings in question on May 29, 1968, transferred title of the buildings to a for-profit corporation called Emmess Associates, Inc. on January 1, 1969 (while retaining title to the land), and Emmess transferred title to the buildings back to JTSA on April 15, 1983. A group of tenants moved for summary judgment on the grounds that their tenancies commenced while Emmess held title to the buildings and before JTSA took title on April 15, 1983. The Court granted summary judgment and dismissed the eviction proceedings against these tenants, because of the provisions of the RSC. The Court rejected JTSA's arguments that Emmess was its alter-ego or that JTSA retained title to the land when the tenancies commenced.

Case Caption:
Atlantic Realty Holdings LP v. Lee
Issues/Legal Principles:
Summary nonpayment proceeding is defective because it is not clear whether the petitioner (a limited partnership) is the proper party and because the petition demands additional rent (late fees, etc.) without also demanding rent arrears.
Keywords:
limited partnership; additional rent
Court:
Civil Court, Richmond County
Judge:
Hon. Straniere
Date:
February 3, 1999
Citation:
NYLJ, page 29, col 6
Referred Statutes:
Partnership Law Articles 8 and 8A; Partnership Law Sections 91 and 121; CPLR Section 3015(b); Business Corporation Law Section 1312
Summary:
Landlord brought a nonpayment proceeding against tenant and the Court dismissed landlord's case for many reasons. The court explained that it is not clear whether the petitioner (a limited partnership) is the proper party to commence the proceeding and this requires dismissal. The lease was entered into between Barry Mark (as individual) and Lee as tenant. At the time the proceeding was commenced, the title Deed was in the name of Atlantic Realty Holdings LP. However, the rent demand was signed by Barry Mark as an individual, without any reference to a limited partnership. The Petition was brought by a limited partnership called Atlantic Realty Holdings LP. The conflict between the rent demand and the petition causes confusion about who is entitled to commence the proceeding and requires dismissal of the proceeding. In addition, when a limited partnership brings a summary proceeding, the limited partnership should indicate the date and place it filed its certificate and indicate whether it was formed pursuant to New York State Law. The Petition failed to include these allegations. The Court found that the nonpayment proceeding was defective for yet another reason. Landlord's petition demanded an amount which included reimbursement for repairs caused by tenant's negligence and a late fee. A landlord may seek additional rent (reimbursement for repairs, a late fee) in a summary proceeding only if landlord is also seeking rent arrears. Since the petition seeks only additional rent but not rent arrears, it must be dismissed.

Case Caption:
Oster v. Feiger
Issues/Legal Principles:
Landlord is not entitled to an award of attorney's fees where the sole issue at trial was tenants' entitlement to a rent abatement and where the trial court awarded the tenants a 10% rent abatement.
Keywords:
attorney's fees
Court:
Appellate Term, First Department
Judge:
lower court judge: Hon. Arlene H. Hahn
Date:
February 4, 1999
Citation:
NYLJ, page 28, col 6
Referred Statutes:
none cited
Summary:
Landlord brought a nonpayment proceeding against tenants. The sole issue addressed at trial was tenant's warranty of habitability claims. After trial, the court granted tenants a 10% rent abatement. The landlord then made a motion seeking an award of attorney's fees which was denied by the court. The appellate court upheld the denial of attorney's fees to landlord, explaining that landlord "did not achieve the status of a prevailing party in the underlying nonpayment proceeding and thus is not entitled to an award of attorney's fees."

Case Caption:
Royal York Associates v. Fabrikant
Issues/Legal Principles:
The trial court's finding that respondent-appellant is not entitled to succession rights is upheld.
Keywords:
succession rights
Court:
Appellate Term, First Department
Judge:
lower court judge: Hon. Howard Malatzky
Date:
February 4, 1999
Citation:
NYLJ, page 28, col 6
Referred Statutes:
none cited
Summary:
The trial court determined that Fabrikant failed to establish succession rights to the apartment, apparently because she did not establish that the apartment was her primary residence during the relevant time period. The appellate court upheld the trial court's finding, quoting Fabrikant's testimony: "[I was] constant[ly] coming and going" and "perhaps was not [in the apartment] in the way that people would be there in a more full way, where they do their daily living."

Case Caption:
390 West End Associates, LP v. Lazzarino
Issues/Legal Principles:
Tenant's failure to appear at a hearing is excused due to law office failure and the convoluted motion practice of landlord's attorneys.
Keywords:
motion to vacate default; attorney's fees
Court:
Appellate Term, First Department
Judge:
lower court judge: Hon. Timmie Erin Elsner
Date:
February 4, 1999
Citation:
NYLJ, page 28, col 6
Referred Statutes:
none cited
Summary:
Landlord brought a summary nonpayment proceeding against tenant and won the case. The landlord then asked the court to award attorney's fees and the court scheduled an attorney's fees hearing in order to determine the appropriate award. The tenant did not appear at the attorney's fees hearing, the court held the hearing and awarded the landlord all of the fees landlord requested. The trial court denied the tenant's motion to vacate the default, but the appellate court reversed. The appellate court found that tenant's failure to appear was excusable and that tenant had a meritorious defense, and therefore vacated the tenant's default. The tenant's failure to appear was because of law office failure "stemming from [landlord] counsel's inartfully worded papers and convoluted motion practice." Regarding the merits, the appellate court noted that the record "raises questions concerning the amount and reasonableness of the substantial ($49,627) attorney's fees claimed by the landlord and awarded in full by the court."

Case Caption:
Shared Equities Co. v. Prado
Issues/Legal Principles:
Rent-controlled tenant of 25 years, who rented an apartment in Connecticut for one year for employment reasons, defeats nonprimary holdover proceeding.
Keywords:
nonprimary holdover
Court:
Appellate Term, First Department
Judge:
lower court judge: Hon. Anne Katz
Date:
February 4, 1999
Citation:
NYLJ, page 28, col 6
Referred Statutes:
RPL Section 234
Summary:
Landlord brought a holdover proceeding against tenant alleging that her rent-controlled apartment of 25 years was not her primary residence. Landlord's case was apparently based upon the fact that tenant rented an apartment in Byram, Connecticut for a period of one year while she was temporarily employed there. However, the address of the subject apartment was indicated on all of her New York State and City resident income tax returns, voter registration records, and various banking and other records. The trial court dismissed the holdover proceeding and the appellate term affirmed. The appellate term added that since tenant was successful in defending the case, tenant is entitled to an award of attorney's fees, pursuant to RPL Section 234.