Housing Court Decisions September 1999

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Case Caption:

Har Holding Co. v. Feinberg

Issues/Legal Principles:

Occupant who was roommate of prime tenants does not become a tenant himself simply because he paid the landlord rent in his own name.

Keywords:

licensee, fair market rent appeal, waiver

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Howard Malatzky

Date:

September 27, 1999

Citation:

NYLJ, page 29, col 2

Referred Statutes:

none cited

Summary:

Occupant Feinberg originally moved into this apartment as a roommate of two rent stabilized tenants whose lease expired in 1983 and was never renewed. The two tenants remained in possession until about 1986. Feinberg paid the owner one-third the rent from 1983 to 1984 in his name and made no further payments while he was a roommate, and made no other payments after the tenants vacated. In 1984 Feinberg made a written request to be placed on the lease, but the landlord rejected this. The lower court and the Appellate Term both rejected an alleged document from the prior owner which was unsigned and undated and purported to acknowledge Feinberg's tenancy. Apparently Feinberg filed a Fair Market Rent Appeal to the DHCR on behalf of the two stabilized tenants, but the DHCR held that he was a mere licensee with no standing to challenge the apartment's fair market rent (i.e., only tenants can challenge the first stabilized rent). The lower court determined that Feinberg was a mere licensee not entitled to continued occupancy in the apartment. A dissent from Justice Helen Freedman opined that had the DHCR not rendered its licensee decision against Feinberg, she would have deemed him a tenant because he paid rent in his name for a period of time and he was the sole occupant for about fifteen years.

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Case Caption:

Christos v. Papastefanou

Issues/Legal Principles:

Landlord cannot collect rent in a nonpayment proceeding if the building contains three residentially occupied units but is not registered as a multiple dwelling.

Keywords:

multiple dwellings

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Richard Tolchin

Date:

September 27, 1999

Citation:

NYLJ, page 29, col 3

Referred Statutes:

Multiple Dwelling Law 4(1)(7), 301, 325; Administrative Code of the City of New York 27-2098, 2107(b), 22 NYCRR 208.42

Summary:

The building is a de facto multiple dwelling because it is approved for occupancy for only two families, but three families live in the building independent from one another. The landlord's nonpayment proceeding must be dismissed because of the owner's failure to register the building as a multiple dwelling. The dismissal is without prejudice until the owner either registers the building or "the conditions requiring such compliance no longer exist." (The owner will have to obtain or amend its certificate of occupancy, too.)

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Case Caption:

Vartarian v. Brady

Issues/Legal Principles:

Nephew attains succession rights because such rights accrued before June 19, 1997 when the law changed to exclude nephews from the roster of family members who may succeed to a tenancy after the prime tenant has permanently vacated or died.

Keywords:

succession rights

Court:

Civil Court, New York County

Judge:

Hon. Lucy Billings

Date:

September 29, 1999

Citation:

NYLJ, page 27, col 5

Referred Statutes:

9 NYCRR 2204.6(d); Public Housing Law 14(4); Administrative Code 26-403(2); RPAPL 741

Summary:

Since 1997, the tenant has lived in Far Rockaway to care for her ailing brother. Left in the apartment was the tenant's nephew who resided with the tenant from 1992 until she vacated in 1997. Before 1997, the law granted nephews succession rights, and the nephew would have become the tenant of record had the law not changed because he lived with his aunt for two years before she permanently vacated. However, on June 19, 1997, the law changed to exclude nephews from obtaining succession rights. The issue before the court was whether the new law should be applied retroactively. The court held that it should not, citing various case law for the principle that "[w]here a new law confers a tenancy right, the law is applied retroactively, but where it takes away a right conferred by the old law, the new law is not applied retroactively." Since the nephew would be evicted if the new law was applied retroactively, the court concluded that the old law (when his rights accrued) applies. In that regard, the nephew was made the tenant of record of the rent stabilized apartment. The court also held that the 1997 new law's rent increases in succession rights cases do not apply to the nephew. This is because the vacancy allowance is available when the tenant has vacated on the effective date of the law (June, 1997). The nephew, however, who was the de facto tenant on this date, was still in possession. Thus, the court ruled that the vacancy increases do not kick in against the nephew. The court also ruled that the petition should be dismissed because the agent who signed the notice of termination had lost his authority since his principle, the owner, died about a month earlier. The authority of an agent terminates at death of the principle. Additionally, there was no authorized person to act on behalf of the owner's estate when the proceeding commenced. Without an effective predicate notice, a holdover proceeding cannot be maintained.

Case Caption:

Olshan v. Mandas

Issues/Legal Principles:

Any ambiguous terms in a stipulation of settlement must be construed against the drafter (landlord's attorney) rather than the unrepresented tenant.

Keywords:

stipulations; nuisance holdover

Court:

Civil Court, New York County

Judge:

Hon. Judge Billings

Date:

September 22, 1999

Citation:

NYLJ, page 30, col 1

Referred Statutes:

CPLR Section 2221; RPAPL Section 741(4) and 753(4); First Amendment to the US Constitution and article 1, section 8 of the NYS Constitution

Summary:

Landlord brought a summary holdover proceeding against tenant alleging nuisance. The case was temporarily resolved when landlord and unrepresented tenant entered into a stipulation of settlement on August 13, 1998 providing that tenant was not to engage in certain prohibited conduct for a "probation period" of two years. The stipulation provided that "(i)n the event of any claimed breach for a period of two years, the probation period, landlord shall have the right to restore this case on motion for a hearing on this issue, seeking respondent's eviction and all other related, appropriate relief." (Emphasis added). Five weeks after the stipulation was signed, landlord brought a motion claiming that tenant had breached the stipulation. Landlord asked the court to restore the proceeding for a hearing on the breach and for the ultimate relief: respondent's eviction. Respondent was represented by an attorney at the ensuing trial. The court found that landlord proved that tenant breached the stipulation on at least three separate occasions but refused to evict tenant because of certain ambiguous and unclear language in the stipulation. The stipulation said that a breach of the stipulation would result in a hearing "seeking respondent's eviction and all other related, appropriate relief." The court said that this phrase "does mean, at least, that petitioner is not foreclosed from ultimately securing the relief originally sought in the petition. The question is whether the stipulation means that proof of a breach (a) results directly in a judgment of possession, as petitioner strenuously urges, or (b) restores the original proceeding seeking possession, for a trial on the original allegations of nuisance." Since the stipulation (most probably drafted by landlord's attorney and certainly not drafted by tenant), then the ambiguity must be construed against the drafter (landlord). Therefore, the court restored the original proceeding to the calendar for a trial on the original allegations of nuisance, rather than evict tenant on the basis of landlord's proof that tenant breached the stipulation.

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Case Caption:

In re Pamela Futterman v. DHCR

Issues/Legal Principles:

A hearing must be held to determine whether tenant ever received the DHCR's request for verification of income; under the circumstances of this case, it cannot be presumed that the mail sent by the DHCR was actually received by tenant.

Keywords:

luxury decontrol

Court:

Appellate Division, First Department

Judge:

lower court judge: Hon. Phyllis Gangel-Jacob

Date:

September 20, 1999

Citation:

NYLJ, page 27, col 2

Referred Statutes:

RSL Sections 26-504.1 through 26-504.3

Summary:

In 1994, landlord of 135 Central Park West, New York, New York served tenant with an income certification form. Tenant promptly responded to landlord, asserting that her income was less than the deregulation threshold in effect at that time ($250,000.00 for each of the two preceding calendar years). Landlord disputed tenant's assertion by filing a deregulation Petition with the DHCR. The DHCR served tenant with a copy of the deregulation petition and tenant timely filed an answer with the DHCR. In the following year (1995), landlord served tenant with an income certification form. Tenant promptly responded to landlord, asserting that her income was less than the deregulation threshold in effect at that time ($250,000.00 for each of the two preceding calendar years). Landlord disputed tenant's assertion by filing a deregulation Petition with the DHCR. The DHCR claims that it served tenant with a copy of the deregulation petition. Tenant did not answer the deregulation petition and the DHCR issued an order of deregulation upon tenant's default. Tenant timely filed a Petition of Administrative Review ("PAR") with the DHCR, claiming that she never received the petition and demonstrating that her income was well below the deregulation threshold. DHCR's Deputy Commissioner denied the PAR, relying on DHCR records that the petition was properly mailed and the legal presumption that mail is received. Tenant then filed an Article 78 proceeding with the Supreme Court, New York County. The Supreme Court reversed the PAR order and remanded the matter to the DHCR for a hearing on the merits. The DHCR and the landlord appealed this decision. The appellate court modified the DHCR's order, finding that a hearing should be held to determine whether tenant ever received the DHCR's 1995 request for verification of income. (In other words, a full hearing on the merits would not be necessary). The appellate court found that the legal presumption that mail that is properly sent is generally received has been overcome in this case. The tenant timely responded to all other income verification forms and petitions that had been served upon her. It was obvious that the tenant understood the drastic consequences that may flow from failure to respond to income verification forms and petitions. Under these circumstances, the court found it incomprehensible that the tenant's failed to respond in this one instance. In other words, the tenant's failure to respond may be explained by the fact that she did not receive the petition from the DHCR. For this reason, the appellate court modified the DHCR's order, finding that a hearing should be held to determine whether tenant ever received the DHCR's 1995 request for verification of income. In closing the court noted that "this proceeding seems to emanate from a wholesale repetitive attempt by landlord to deregulate apartments at the subject building. It would appear in this situation that the effort is being made regardless of whether there is any reason to believe tenant meets the regulatory threshold. Landlord [of 135 Central Park West, New York, New York] in making such an effort, is acting in a manner inconsistent with statutory aims."

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Case Caption:

Stanford Leasing Corp. v. Stewart

Issues/Legal Principles:

Court dismissed holdover proceeding against tenant because the predicate notice (the notice the cure) did not refer to the specific paragraph of the lease which was allegedly violated.

Keywords:

predicate notice; notice to cure; motion to dismiss

Court:

Housing Part of the Civil Court, Kings County

Judge:

Hon. Peter Wendt

Date:

September 22, 1999

Citation:

NYLJ, page 32, col 2

Referred Statutes:

CPLR Section 3212; RPL Sections 226-b and 235-f

Summary:

Landlord served tenant with a notice to cure stating that tenant has assigned or sublet the apartment without the prior written consent of the landlord in violation of tenant's lease and the requirements of RPL Section 226-b. Significantly, the notice to cure did not refer to the specific paragraph of the lease which prohibits sublet or assignment without the landlord's prior written consent. Paragraph 16(a) of the lease set forth this prohibition, but the landlord did not specifically refer to it. The landlord then served tenant with a notice of termination followed by a notice of petition and petition. The tenant made a motion for summary judgment on the grounds that the notice to cure did not advise tenant of the lease paragraphs tenant allegedly violated. Citing to the 1980 Court of Appeals case of Chinatown Apts. v. Chu Cho Lam and to other cases, the court explained that "the right to terminate a tenancy is dependent upon the service of an adequate notice." A notice to cure - which did not cite to the specific lease prohibition that tenant allegedly violated - is inadequate. The Court therefore granted the tenant's motion and dismissed the proceeding against tenant.

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Case Caption:

Fulton Park Associates v. Walker

Issues/Legal Principles:

Court granted Section 8 tenant's motion to vacate judgment and warrant, because the judgment required payment of the full market rent rather than just the tenant's share, a much lower amount.

Keywords:

motion to vacate judgment; motion to vacate warrant

Court:

Housing Part of the Civil Court, Kings County

Judge:

Hon. Callender

Date:

September 22, 1999

Citation:

NYLJ, page 32, col 4

Referred Statutes:

none cited

Summary:

Every year, Section 8 tenants must go through a recertification process to determine whether they are still eligible to receive government assistance with their rent payments. Landlord brought a nonpayment proceeding against a Section 8 tenant at a time when the tenant's recertification for years 1997 and 1998 was still pending. The tenant entered into several stipulations agreeing to pay rent arrears calculated at the rate of $1,437.00 per month, that is, the monthly rent at market rate and without Section 8 benefits. Tenant also stipulated to a money judgment and a judgment of possession (that is, eviction) if she did not pay these rent arrears on a date certain. Tenant was finally recertified. Landlord and tenant then entered into a new Section 8 lease on May 26, 1999 and a lease amendment on June 2, 1999. The lease amendment set tenant's share of the monthly rent, from February 1999 forward, at $124 per month. (The Section 8 program is obligated to pay the remainder of the monthly rent). On July 29, 1999, a money judgment and warrant of eviction were issued against tenant for failure to pay the arrears as promised. Tenant brought a motion to vacate the warrant and set aside the judgment. The tenant informed the court about her recertification and about the change in her share of the monthly rent. The court vacated the stipulations because they were based upon the higher monthly rent, which was now obviously incorrect. The court did some arithmetic and found that the judgment had been satisfied. The court also vacated the warrant of eviction and closed the proceeding.

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Case Caption:

Bowen v. East 13th Street Realty Co.

Issues/Legal Principles:

Tenant's overcharge claim is barred by four-year statute of limitations.

Keywords:

rent overcharge; statute of limitations

Court:

Appellate Term, First Department

Judge:

lower court judge: Hon. Karen Smith

Date:

September 23, 1999

Citation:

NYLJ, page 26, col 3

Referred Statutes:

CPLR Sections 213-a, 213[2], 214[2] and 203[d]; RSL Section 26-516[a][5]; RSC Section 2526.1(f)(2)

Summary:

Plaintiff-tenant brought a court action against landlord for rent overcharge. Tenant moved for summary judgment and landlord moved to dismiss tenant's complaint. The lower court granted the tenant's motion and denied the landlord's motion. In other words, the tenant won before the lower court. The appellate court modified the lower court's decision by denying the tenant's motion for summary judgment and granting the landlord's motion to dismiss. In other words, the landlord won before the appellate court. Although the court's decision is not entirely clear, apparently tenant brought a previous overcharge complaint against the former managing agent, which resulted in a DHCR overcharge determination in January 1997. There are two ways to collect a DHCR overcharge penalty. One way is to offset the overcharge against the monthly rent. The other way is to file the order in the same manner as a judgment. The tenant apparently did not utilize either of these two methods, but tried to enforce the DHCR overcharge penalty by bringing a new rent overcharge action. The appellate court said that this was not a valid method of collecting the DHCR overcharge penalty. Furthermore, the DHCR's January 1997 overcharge determination apparently involved overcharges that first occurred in August 1987. There is a four-year statute of limitations on rent overcharge complaints. Since the tenant's court action was not commenced until February 1998, it is time barred by the four-year statute of limitations. In other words, tenant brought the overcharge claim too late and, for this reason, the appellate court dismissed the tenant's claim.

Case Caption:

Rainbow Construction Co. v. Leibowitz

Issues/Legal Principles:

Tenants who agreed to give up apartment for $30,000 but failed to timely leave cannot set aside agreement absent fraud, duress, mistake or collusion.

Keywords:

stipulations

Court:

Civil Housing Court, Bronx County

Judge:

Hon. Roman

Date:

September 15, 1999

Citation:

NYLJ, page 27, col 6

Referred Statutes:

none cited

Summary:

Landlord began a nonpayment proceeding against a husband and wife. The husband appeared in court with a power of attorney from his wife authorizing him to act on her behalf. The husband settled the case wherein the nonpayment proceeding was converted into a holdover proceeding. In exchange for a package settlement worth $30,000 (including rent waiver), the husband agreed to give up the apartment. When the time came to leave the apartment, the husband filed an order to show cause to stay the execution of the warrant of eviction due to alleged difficulties in finding a new apartment and recent medical problems (partial amputation of his left foot). The court did not disturb the settlement agreement (i.e., allowed the tenants to still get the $30,000) but extended the tenant's time to move by two more months provided $1000 use and occupancy (i.e., rent) was paid for each month. (The rent was $810 per month). Thereafter the tenants brought a second order to show cause seeking to undo the entire agreement on grounds that they improvidently entered into it, and truly did not want to give up their valuable Rent Stabilized apartment, and also on grounds that the husband did not have authority to act on behalf of his wife. They also alleged lack of consideration.

The court noted well settled law that stipulations of settlement are not lightly case aside, unless there exists fraud, collusion, duress or mistake. The court found that the tenants had no legal grounds to set aside the stipulation. The court also found that the wife's power of attorney explicitly authorized her husband to act on her behalf, naming this case and its index number in the text of the power of attorney document. The court concluded, "A plain reading of the document leaves little room for confusion." The court stayed the execution of the warrant for ten days. (The decision doesn't state whether the tenants lost the $30,000. One would think they did lose it because presumably payment was contingent on timely leaving the apartment.)

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Case Caption:

First Time Realty Co. v. Payton

Issues/Legal Principles:

Tenant's overcharge claims allowed because landlord filed late registrations two years ago for rents for the years 1993-1996, and therefore the four-year statute of limitations rule is not triggered.

Keywords:

warranty of habitability; Spiegel Law; overcharges

Court:

Civil Housing Court, Kings County

Judge:

Hon. Sikowitz

Date:

September 15, 1999

Citation:

NYLJ, page 31, col 2

Referred Statutes:

CPLR 3025(b), 203(d); New York City Administrative Code 26-516(a); Multiple Dwelling Law 328(3); Social Services Law 143-b

Summary:

Tenant withheld rent due to intolerable conditions in her apartment involving B and C violations. The landlord brought a nonpayment proceeding and during the course of it the repairs were completed, although some conditions returned and new ones arose. Subsequently, Legal Service began representing the tenant and sought to amend the answer to dismiss the petition on two grounds: rent overcharge and violation of the Social Services Law (a/k/a the Spiegel Law) that bars a landlord from collecting rent while hazardous housing code violations exist. The court found that the landlord should have anticipated these defenses, and therefore landlord would suffer no prejudice by the filing of a late answer; hence, the court allowed the tenant to file the answer.

The landlord argued that the tenant cannot file an overcharge claim due to the four year statute of limitations. The lease was signed in 1984, but the court ruled that this date is not decisive; rather, the overcharge is calculated from the date the claim is raised, going backwards to four years prior to the most recent registration statement. The most recent registration on file is January 4, 1999. Four years prior is 1995. The court concluded that the tenant may challenge the 1993, 1994, 1995 and 1996 because registrations for these years were all filed late. These registrations were filed on April 4, 1997 "which is within the four years prior to the most recent filing of a rent registration." The court held that if no rent is registered four years prior to the imposition of an overcharge claim, the four-year statute of limitations is not applicable. The court rejected the applicability of the holding in a recent Appellate Term case, Bragston Realty Corp. v. Dixon (see Archives for the week of July 5-9, 1999) by distinguishing the facts therein since in Dixon the registrations were timely filed. Therefore the court allowed the tenant to interpose a counterclaim on the overcharges.

In order to raise a Spiegel law defense the tenant must be receiving public assistance, violations must exist in the building during the period the arrears are dangerous, hazardous ro detrimental to life or health, and the Department of Social Services ("DSS") must have notice of the violations from HPD. Tenant sought to satisfy the third criteria by arguing that DSS had notice of the violations because it had access to the electronic database of violations. The court stayed the prosecution of the nonpayment proceeding. The court ruled, however, that a trial was necessary to determine if all repairs had been made.

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Case Caption:

Roxborough Apts. Corp. v. Becker

Issues/Legal Principles:

Tenant with three roommates does not violate roommate law which imposes no limitation on number of occupants, nor do the roommates violate the lease since the lease fails to limit the number of permissible occupants who may reside with the tenant.

Keywords:

roommates

Court:

Civil Housing Court, New York County

Judge:

Hon. Billings

Date:

September 15, 1999

Citation:

NYLJ, page 27, col 1

Referred Statutes:

RPL 235-f; CPLR 3211(a)(7)

Summary:

The tenant admitted that he had three roommates which triggered landlord's holdover proceeding based on tenant's excess roommates. Following on the heels of Capital Holding Co. v. Stavrolakes , 92 NY2d 1007 (1998), the court determined that the roommate law (RPL 235-f) does not limit the number of occupants a tenant may have living with them, but a lease may do so. In this regard, the landlord based its excess occupancy proceeding, not on the roommate law but rather on a lease clause. The clause at issue allowed additional occupants "as defined in and only in accordance with Real Property Law 235-f." The court therefore determined that the validity of the holdover proceeding turned on the interpretation of the word "occupants" under the roommate law. An occupant is defined in the law as "a person, other than a tenant or a member of a tenant's immediate family, occupying a premises with the consent of the tenant or tenants." The three roommates are not members of the tenant's immediate family and they occupy the premises with his consent. The court concluded that because the lease itself did not limit occupancy to one person (which would be enforceable), the holdover proceeding lacks merit. The lease clause in essence defers to the roommate law's interpretation, and Stavrolakes has determined that said law imposes no limitations on the number of roommates a tenant may live with. The court thereupon dismissed the petition.

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Case Caption:

Brocato v. Guisto

Issues/Legal Principles:

Out-of-City landlord who did not file registration requirements until after the nonpayment proceeding commenced can only obtain a monetary judgment against tenant for rent owed prior to the commencement of the proceeding, but will receive a monetary and possessory judgment for all rent accrued after the nonpayment proceeding began.

Keywords:

registration requirements

Court:

Civil Court, Richmond County

Judge:

Hon. Straniere

Date:

September 15, 1999

Citation:

NYLJ, page 33, col 2

Referred Statutes:

CPLR 104, 3026; RPAPL 735, 711, 732(2); Administrative Code 27-2097, 27- 2107; New York City Civil Court Act 208.42(g), 203;

Summary:

The landlord brought a nonpayment proceeding against the unregulated tenant. At trial the tenant claimed that the premises leaked, but admitted that he didn't notify the landlord of the problem, nor produce photographs or any other documentary proof of the leak. The tenant asked the court to dismiss the petition because the landlord is an out-of-city resident, and as such, he must have designated a resident of the City to serve as a lawful managing agent for the premises. The petition failed to allege these facts. However, since the building is not a multiple dwelling (i.e., 3 or more units), the court determined that the petition was not subject to dismissal for failure to plead these facts. The court found nonetheless that when the proceeding was commenced the landlord was not properly registered with the city agency as an out-of-City landlord. The landlord did not obtain his registration documents until after the proceeding began. The City Administrative Code contains a provision that owners who fail to register cannot maintain a nonpayment proceedings during the period of complaince. Yet, the court made note that the state laws pertaining to summary proceedings do not mention this esoteric City rule. This is a burden for litigants seeking access to the court system. The court also noted that if the Administrative Code is to be followed to the "T" that the petition should be subject to dismissal because the owner failed to attach a copy of the receipt of registration. The court fulminated about the nonsensical nature of this since a landlord must show documents at trial to prove its prima facie case anyway.

The court was still faced with the question of what is the effect of the landlord not registering as an out-of-City landlord until after the proceeding commenced? The Administrative Code Section 27-2107(b) provides that the owner would only be entitled to a money judgment for the rent due and owing prior to the time of his filing, but, if the tenant pays the rent deemed owed within five days of the judgment, the landlord is precluded from getting a judgment of possession or warrant of eviction against the tenant. This is somewhat consistent with the Multiple Dwelling Laws, although the MDL does not prohibit a landlord from maintaining an action or obtaining a judgment; the MDL merely prevents the collection of rent (i.e., enforcing a judgment) if an owner is not in compliance with registration requirements.

Ultimately, the court decided to allow the landlord a money judgment only for all rent accrued prior to the commencement of the proceeding, and a money and possessory judgment for all rent accrued after the proceeding commenced. The court also granted the owner a money judgment only for late fees incurred at $25.00 per month. The court noted that landlord did not prove that a proper demand was made in accordance with the lease which required a five-day notice, but that tenant himself proved landlord's compliance and this sufficed for the judge.

Case Caption:

Washington Associates v. Torres

Issues/Legal Principles:

Proof of the existence of a Report of Decontrol, which was filed with the DHCR thirty-five (35) years ago, does not, without more, prove that the apartment is no longer subject to rent control.

Keywords

rent control; report of decontrol

Court:

Housing Part of the Civil Court, Kings County

Judge:

Hon. Finkelstein

Date:

September 8, 1999

Citation:

NYLJ, page 30, col 6

Referred Statutes:

NYC Rent and Eviction Regulations Sections 2202.2(f)(17) and 2202.2(f)(11)

Summary:

Landlord served a thirty day notice of termination upon tenant, followed by a holdover petition alleging that tenant is not subject to rent stabilization - because there are less that six rent stabilized units in the building - and not subject to rent control because the owner filed a report of decontrol with the DHCR in 1965. Therefore, the tenant had no statutory right to continuous occupancy of the subject premises and may be evicted after a thirty-day notice. The Rent Control regulations provide that apartments located in other than one or two family buildings, that were completed or converted to residential use before February 1, 1947, that were continuously occupied by the same tenant beginning on a date prior to July 1, 1971, are subject to rent control. The tenant in this case commenced occupancy on June 1, 1971 (prior to July 1, 1971). The landlord argued that a certain exemption to rent control coverage applies in this case: apartments which were continuously occupied by the owner for a period of one year prior to April 1, 1953 and then rented to a tenant after April 1, 1953 are exempt. As proof of entitlement to this exemption, the owner presented a DHCR rent card indicating that a prior owner filed a Report of Decontrol on March 11, 1965 under a certain docket number. The Court decided that the landlord did not prove entitlement to the exemption. The landlord did not present any evidence that the former owner occupied the apartment for a period of one year prior to April 1, 1953. The Court cited to other cases where Courts decided that the landlord's presentation of a Report of Decontrol filed with the DHCR was not sufficient proof of decontrol. In this case, the landlord's proof was even worse, because the landlord did not even present the Report of Decontrol to the Court - only a rent card indicating that such a report had been filed with the DHCR on a certain date. In contrast, the tenant presented the detailed and credible testimony of herself, her children and her son's ex-wife, as well as documentary evidence consisting of a receipt dated June 2, 1971 acknowledging payment of one month's rent and one month's security. The Court decided that the tenant proved continuous occupancy from a date commencing prior to July 1, 1971 and that the landlord did not prove entitlement to the exemption.

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Case Caption:

Kirso Property Co. v. Brief

Issues/Legal Principles:

Landlord cannot evict mentally ill tenant after proving only one incident of conduct, which breached the rules, and regulations of the lease.

Keywords:

mentally ill tenant; objectionable conduct; nuisance

Court:

Housing Part of the Civil Court, Richmond County

Judge:

Hon. Straniere

Date:

September 8, 1999

Citation:

NYLJ, page 31, col 3

Referred Statutes:

Penal Law Sections 240.20, 240.25(2); RPAPL Sections 711(1), 741, 749, 753, 753(4) and 841; RSL Section 2524.3; NYC Administrative Code Sections 8-107, 24-203(aaa) and 24-218; Executive Law Section 290 et seq; CPLR Section 3021; HUD Manual 4-19, 4-23; the Rehabilitation Act of 1973 (29 USC 794) the Fair Housing Act of 1988 (42 USC Section 3601 et seq); 42 USC Sections 12101(3); 29 USC 701(5), 705(9)(B), 705(20)(B) and 794(a); 42 USC Sections 3603(a)(1), 3602(h), 3604(f)(3)(B) and 3604(f)(9).

Summary:

Landlord served mentally-ill rent stabilized tenant with a "Ten Day Notice To Cure To Section 8 Tenant" enumerating nine separate events which took place on five different dates of incidents that the landlord alleges are violations of certain paragraphs of the lease and certain rules and regulations annexed to the lease. The landlord then served the tenant with a "Ten Day Notice of Limitation of Term" enumerating sixteen different lease violations occurring on 11 separate days. Finally, the landlord served the tenant with a holdover petition. The Court noted that paragraph 12 of the lease obliged tenant to obey the rules and regulations annexed to the lease. Rule 5 prohibits tenant from making disturbing noises or doing anything that interferes with the rights or comforts of other Tenants. If the landlord had presented competent evidence at trial that the tenant had actually engaged in all of this conduct, the Court said that it would have evicted tenant. However, the landlord only proved, through eyewitness testimony, the occurrence of one incident. The landlord attempted to prove all of the other incidents by inadmissible hearsay testimony and by introducing management records that were inadmissible because there was no proof that they were kept in the ordinary course of business. A tenant may not be evicted on the basis of only one incident. The Court dismissed the holdover proceeding against tenant for this reason and due to other defects in the petition and the notices underlying the petition.

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Case Caption:

Brusco v. Rivera

Issues/Legal Principles:

Daughter is entitled to succession rights despite the fact that tenant-mother legally sublet premises for the two-year period immediately prior to mother's permanent vacatur of apartment.

Keywords:

illegal sublet; succession rights

Court:

Appellate Term, First Department

Judge:

lower court judge: Hon. Maria Milin

Date:

September 9, 1999

Citation:

NYLJ, page 26, col 1

Referred Statutes:

RSC Sections 2523.5[b][11], 2523.5[b](2)[ii], 2525.6

Summary:

Landlord brought an illegal sublet holdover proceeding against tenant. The trial court granted landlord's summary judgment motion against tenant and the court denied landlord's motion. Landlord appealed and the appellate term (which is a panel of three judges) upheld the trial court's decision in a 2-1 opinion. The alleged illegal subtenant is the tenant's own daughter. The daughter was born in 1976 and lived in the apartment all of her life except when she was away at college. Time spent away at school does not interfere with daughter's succession rights. Two years prior to permanently vacating the subject premises, mother sublet the premises for two years to another individual after obtaining the landlord's consent. (Although the court's opinion does not specifically say so, it appears that the daughter was living in the apartment with this other individual). After the mother permanently vacated, the landlord claimed that the daughter was an illegal subtenant. Daughter defended on the basis that she has succession rights. The appellate panel, in a 2-1 decision, agreed that tenant has succession rights, stating as follows: "(i)n this fact pattern, the failure of mother and daughter to physically reside in the apartment immediately prior to the mother's surrender, for independently valid reasons, does not preclude the daughter from establishing her succession defense." The dissenting justice wrote an opinion stating that the daughter was not entitled to succession rights because the mother did not "reside with" the daughter during the two years prior to mother's permanent vacatur of the apartment.

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Case Caption:

Sullivan Properties, L.P. v. Sanabria

Issues/Legal Principles:

Court granted summary judgment to landlord in nonprimary residency case because landlord introduced many documents, which linked tenant to an address other than the subject premises.

Keywords:

nonprimary residency; summary judgment motion

Court:

Appellate Term, First Department

Judge:

lower court judge: Hon. Timmie Erin Elsner

Date:

September 9, 1999

Citation:

NYLJ, page 26, col 2

Referred Statutes:

none cited

Summary:

Landlord brought a nonprimary residence holdover proceeding against tenant, alleging that her primary residence was a rent stabilized apartment on Jane Street, not at the subject premises, a rent controlled apartment on Sullivan Street. Landlord's summary judgment motion included many documents that gave tenant's address as Jane Street, including tenant's initial Jane Street lease and renewal leases, her Jane Street SCRIE exemption forms, a DHCR complaint filed about the Jane Street, her brother's death certificate which includes her address as informant, her checking account and a telephone account in her own name. The party opposing a summary judgment motion is obligated to present the court with all it their proof. The tenant in this case did not come forward with any documentary or testimonial evidence, but merely contended that she lives in the Sullivan Street apartment and uses the Jane Street apartment only to perform sewing work to supplement her income. The appellate court decided that the trial court should not have denied landlord's motion for summary judgment, because "landlord established beyond factual dispute that tenant does not maintain an 'ongoing physical nexus' with the subject rent controlled premises."

Case Caption:

Edgecomb Revitalization Corp. v. Newbold

Issues/Legal Principles:

Sanctions were wrongfully imposed against tenant's attorney.

Keywords:

sanctions

Court:

Appellate Division, First Department

Judge:

lower court: Hon. Eardell Rashford

Date:

August 30, 1999

Citation:

NYLJ, page 26, col 3

Referred Statutes:

22 NYCRR 130

Summary:

Tenant's attorney brought a motion for contempt against landlord's attorneys which the lower court deemed as "frivolous." Based on the so-called frivolous motion, the lower court sanctioned tenant's attorney by directing him to pay for the fees the landlord incurred when the landlord's attorneys defended the motion. The Appellate Term affirmed the trial court's order. The Appellate Division, however, reversed, holding that while the attorney attempted to use the pending contempt motion as a vehicle to obtain a rent settlement from the landlord, the Civil Court imposed costs on the ground that the contempt motion was improperly brought in the first instance. The Appellate Division found that the evidence does not support the conclusion that the contempt motion was frivolous. Since the Civil Court's imposition of costs was made solely on the basis that the motion was supposedly frivolous, an erroneous premise, the Appellate Division ruled that the Civil Court's sanctions was an improvident exercise of discretion.

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Case Caption:

Quisqueya Housing Corp. v. Various Tenants

Issues/Legal Principles:

Tenants in building slated for rehabilitation are entitled to proper 20-day notices required by City laws.

Keywords:

substantial rehabilitation; notices

Court:

Civil Court, New York County

Judge:

Hon. Doris Ling-Cohan

Date:

August 30, 1999

Citation:

NYLJ, page 28, col 6

Referred Statutes:

28 Rules of the City of New York 21-23

Summary:

The landlord holds a net lease to the property which was conveyed to him by the City of New York under the Neighborhood Redevelopment Program for the purpose of substantial rehabilitation. The landlord served holdover proceedings on 15 tenants. Landlord first served each tenant a 20-day "notice" indicating its intent to commence a holdover proceeding, and upon the tenants' failure to relocate, the landlord served each tenant a 30-day termination notice. The issue before the court was one of first impression and involved the contents of the 20 day notice which is required by the Rules of the City of New York in these special types of cases involving rehabilitated buildings. The 15 cases were consolidated and the tenants made a motion to dismiss the petitions. The tenants argued that the notices fail to comply with the statutory requirement to provide the tenant a specific housing accommodation in the same or nearby building. The notices merely direct the tenants to contact management so that arrangements can be made for their relocation. The tenants argue that this is insufficient and renders the notices defective on their face. The Court agreed with the tenants.

The Rules of the City of New York specifically provide that a net lessee like this landlord can evict a tenant on the ground that the tenant has refused, after at least 20 days written notice, "to move to a substantially similar housing accommodation, in the same building or nearly building, at the same rent. . . " The notices are signed by the attorney, not the landlord. They are not labeled a notice, nor labeled a 20-day notice. The Court noted that the statute does not state what the 20-day notice must contain. However, for such a notice to be meaningful, the tenant must be apprised of a substantially similar apartment in the building or nearby at the same rent. The notices at issue do not extend an offer to the tenants to move to a substantially similar apartment in the building or nearby at the same rent, as required by the statute. Rather, the notices advise the tenant to contact management to arrange a relocation and then to vacate and relocate within 20 days. The Court, however, held that the statute does not require the tenant to contact management within the 20-day period which is an additional affirmative obligation not specified in the statute. The landlord stated that management needed to meet with each tenant to determine their family composition and size. But the Court held that the statute does not specify these factors in requiring that a "substantially similar" apartment be offered to the tenants. On this note, the Court dismissed all 15 petitions because of defective notices.

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Case Caption:

Tabak Family Realty Co. v. Kennedy

Issues/Legal Principles:

Landlord's attorney entitled to conduct a deposition on nonparty witnesses: the deceased tenant's wife and estate executor.

Keywords:

subpoenas; discovery; succession rights

Court:

Civil Housing Court, New York County

Judge:

Hon. Arlene Hahn

Date:

September 1, 1999

Citation:

NYLJ, page 27, col 3

Referred Statutes:

CPLR 3120(b)

Summary:

Deceased tenant's son sought succession rights to the apartment after the landlord brought a holdover proceeding against him. The son already underwent depositions (questioned under oath) and testified that he continuously lived with his father for ten years prior to his death in 1997. He also testified that although his father re-married in the mid-70s, he never lived with his wife in her apartment. Based on this testimony, the landlord served subpoenas to produce documents on the deceased tenant's wife and the executor of the tenant's estate who apparently was a good friend of the tenant, and also served these nonparties with a demand that they appear at a deposition to be asked questions. The son asked the court to quash the subpoenas and the deposition on grounds that the son would be prejudiced. The court noted that the standard in such a request is "whether the requested information is utterly irrelevant to any proper inquiry." The court rejected the son's request and ruled that the nonparties have to produce the documents requested, although the court gave the son the opportunity to redact monetary information on the documents. The court also allowed the landlord to do depositions of the nonparties, but only upon serving them properly.

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Case Caption:

ALH Properties Thirteen Inc. v. Li

Issues/Legal Principles:

Holdover based on alleged commercial usage of apartment that was marked off calendar does not interfere with or prevent landlord from maintaining second holdover based on nonprimary residency.

Keywords:

primary residency; collateral estoppel; commercial usage

Court:

Civil Housing Court, New York County

Judge:

Hon. Shlomo Hagler

Date:

September 1, 1999

Citation:

NYLJ, page 27, col 4

Referred Statutes:

CPLR 3211(a), 3212, 3022, 408; RPAPL 741, 721; RSC 2524.2(b), 2524.4

Summary:

The tenants live in a rent stabilized apartment, but the landlord claims they are not using the apartment as their primary residence, and rather that they are using the apartment for commercial purposes, a beauty salon. A prior holdover proceeding based on commercial usage of the premises was marked off calendar. In that first case the tenants argued that the landlord should have served a "Golub Notice" which is the notice served before an owner commences a nonprimary residency proceeding. Judge Lau ruled that the landlord's commercial usage proceeding had some factual allegations that were similar to those usually alleged in a nonprimary residency proceeding, but this was clearly a commercial usage case. In this second proceeding, the tenants have argued that the prior proceeding based on the same facts is still pending (i.e., the alleged commercial usage proceeding). The judge in this second case, however, rejected this argument and similar to Judge Lau, he ruled that this second case is based on a different theory from the first one. The tenants also tried to argue collateral estoppel, a legal term which roughly means that a decision involving the same facts and same parties has already been determined. The court rejected this argument as well by finding that the first case did not deal with the nonprimary residency issue, as this second one does. In sum, the court rejected the tenants' argument that the petition should be dismissed. The landlord requested the court to strike almost all of tenant's affirmative defenses, most of which were technical, which the court did. This left for litigation the main issue of whether the tenants occupied the premises as their primary residence.

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Case Caption:

Sherman v. Hallmark

Issues/Legal Principles:

Prime tenant was justified in rescinding sublease agreement when subtenant cancelled the check containing her security deposit.

Keywords:

security deposit; sublease; co-op; consideration; rescission

Court:

Civil Court, New York County

Judge:

Hon. Samuels

Date:

September 1, 1999

Citation:

NYLJ, page 28, col 1

Referred Statutes:

CPLR 3211(c), 3212, 3022, 408; RPAPL 741, 721; RSC 2524.2(b), 2524.4

Summary:

The tenants are owners of a co-op apartment which makes them the landlords vis-a-vis the subtenant who signed a sublease agreement to reside in the apartment for roughly one year. The sublease specified that the approval of the co-op board was necessary before the sublease would begin. The monthly rent was $2,595, and a $3,900 security deposit was required. After the sublease was signed the tenants made various requests upon the subtenant, such as, that she (the subtenant) forward them their mail on a weekly basis (in Federal Express envelopes filled out and paid for by the tenants), water the plants regularly, and instructions how to clean the kitchen, among other information. The subtenant began to get worried that she would not get board approval in time to move in. She therefore notified the tenants (via their neighbor) that she was cancelling the sublease and she stopped payment on the check which included the $3,000 security deposit. The subtenant didn't realize, however, that when she cancelled the sublease the board's written approval was sitting in her fax machine. Some five days later when she checked her fax machine and realized that she was approved, she withdraw her cancellation letter, came to New York, and armed with the sublease and the approval letter, she convinced the doorman to let her into the apartment. Meanwhile, however, the tenants had made plans to sublease the premises to someone else. The tenants flew to New York from their vacation retreat in Washington State upon learning of the subtenant's entry into their apartment. They attempted to change the locks, the police were called, and the police told the tenants to start an eviction proceeding instead.

The issue before the court was whether the prime tenants had the right to cancel the sublease. The court concluded yes, primarily because the subtenant had cancelled her check which had included the security deposit. The court analogized the security deposit to a down payment on a contract to close on real property. In those types of cases, courts have long held that the seller is fully justified in cancelling the contract if the buyer's downpayment check bounces, even if inadvertently or by mistake. A security deposit is a substantial obligation and its cancellation resulted in the subtenant's failure to give consideration. Without the security deposit, the tenants were left in a position "substantially different from what was contracted for." The prime tenant would not have signed the sublease agreement, but for the paying of the security deposit by the subtenant. Thus, when the subtenant cancelled the security deposit check, the court ruled that the subtenant set the stage to allow the prime tenant to cancel the entire agreement. The court therefore granted the prime tenants a judgment of eviction with a stay of 3 days for the subtenant to vacate.

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Case Caption:

UFH Apartments, Inc. v. Aedh

Issues/Legal Principles:

Tenant entitled to attorney's fees for dismissal of case, but not for fees incurred in defending against the appeal.

Keywords:

attorneys fees

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Douglas Hoffman

Date:

September 2, 1999

Citation:

NYLJ, page 26, col 1

Referred Statutes:

none cited

Summary:

The lower court determined that the tenant was the prevailing party in a holdover brought on grounds of illegal sublet. The holdover was dismissed without prejudice for technical reasons, but apparently landlord appealed and apparently lost. The landlord never commenced another proceeding thereafter. The tenant sought attorney's fees because he/she was the prevailing party. The lower court awarded tenant attorney's fees for the underlying proceeding as well as the appeal. The Appellate Term, however, pointed out that the tenant "did not substantially prevail" in the appeal, and thus was not entitled to attorney's fees for that portion of the litigation. (The decision gives no other facts in which to ascertain what the court meant by the tenant's failing on appeal to "substantially prevail.")

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Case Caption:

Burgos v. Srivastava

Issues/Legal Principles:

Proprietary leaseholder is entitled to bring Housing Court licensee proceeding against former intimate partner, rather than commence an ejectment action in Supreme Court.

Keywords:

licensee; jurisdiction; ejectment

Court:

Appellate Term, First Department

Judge:

lower court: Hon. Debra James

Date:

September 2, 1999

Citation:

NYLJ, page 26, col 2

Referred Statutes:

RPAPL 713(7)

Summary:

The Petitioner-Tenant brought a licensee proceeding against the Respondent-Occupant to remove the respondent from combined cooperative apartments. The proprietary lease was in the petitioner's name only, although apparently the two parties had an intimate relationship at one time, which infers that the respondent may be contesting petitioner's 100% claim of ownership of the co-op shares. The respondent challenged the petitioner's right to bring this proceeding in Housing Court. The lower court accepted the respondent's argument, but the Appellate Term reversed. The Appellate Term, however, rejected the view that petitioner should have to commence an ejectment action in Supreme Court. The Appellate Term noted that generally Housing Court proceedings may be unavailable to resolve "intrafamily" housing disputes (Family Court may be the forum, or even Supreme Court divorce proceedings). The Appellate Term also noted that the parties' relationship was not "solemnized," meaning that they were not married. The Appellate Term stated that their decision to reject respondent's jurisdiction challenge did not mean that they had any opinion as to the ultimate outcome of the case.

Notes:

If the respondent is claiming part ownership in the co-op apartment based on the once intimate relationship between the two parties, then respondent would have to commence a Supreme Court action to seek half ownership of the co-op. The respondent will not win any ownership rights in Housing Court because that forum cannot address the issues respondent needs to raise to prove why the property should be split in two. (A constructive trust would have to be alleged).

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Case Caption:

220 West 98 Realty LLC v. New York Province for the Society of Jesus et al

Issues/Legal Principles:

Jesuit community in occupancy for over 24 years is deemed actual tenant since owner consistently treated the community as the tenant, even though the formal tenant to the lease was a not-for-profit corporation.

Keywords:

not-for-profit corporations; corporate nonprimary residency; sublets

Court:

Civil Housing Court, New York County

Judge:

Hon. Maria Milin

Date:

September 2, 1999

Citation:

NYLJ, page 27, col 4

Referred Statutes:

Omnibus Housing Act Chapter 403

Summary:

Landlord brought a holdover proceeding against various tenants who are Jesuits who occupy 16 rent stabilized apartments. The Jesuits' leases are in the name of the New York Province for the Society of Jesus ("Province"), a not-for-profit corporation. The landlord sent a non-renewal notice alleging that the Tenant Province was not entitled to a renewal lease because it is a corporation and cannot be regarded as the primary resident of the 16 rent stabilized apartments. In 1974, the landlord extended the lease to include the West Side Jesuit Community ("WSJC") and the individual Jesuits, and as a result the Jesuits argue that the landlord recognized them as the primary residents of the apartments. Rent was paid since 1974 to WSJC. The owner's position is that the WSJC is a mere subtenant.

The Jesuits are organized into provinces and each province is made up of a number of communities. The WSJC is one of those communities. In 1969 the Province leased the apartments and a rider provided that the premises were to be used by Woodstock College, a seminary owned by the Province, and the lease permitted the Province to sublet the apartments to its students and faculty. In 1974, Woodstock College closed and the number of apartments needed was reduced. A lease extension was signed between the owner and the Province as tenant. The extension provided that it is "in effect for any Jesuit Community of the New York Province for the Society of Jesus." For 24 years since, rent was paid to the owner in the name of WSJC.

The owner took the position that the 1994 case called Manocherian v. Lenox Hill Hospital is on point with the facts in this case, and the court should hold for the landlord as the Court of Appeals ultimately did in Manocherian. That case involved a law amended in 1984 to allow not-for-profit hospitals who hold the prime lease to rent apartments for residential use to their employees as subtenants without first obtaining the owner's consent. The Court of Appeals ruled that the law was an unconstitutional taking of property which did not advance a legitimate state interest but simply provided a valuable perk to a corporation not occupying the premises as its primary residence but merely subletting for potentially unlimited periods. The Court of Appeals ruled against Lenox Hill Hospital's sublets.

The owner argued that the corporate Province's status was like that of Lenox Hill hospital and the WSJC and the Jesuits were simply unauthorized sublets. The tenants propose that the persons constituting the WSJC are not mere subtenants but are the intended occupants who reside in the 16 apartments as their primary residences. They distinguish their situations from Manocherian because for 24 years the owner treated WSJC as the tenant on the same footing as its parent, the Province. A number of examples were offered to substantiate the similar treatment argument. The owner, however, argues that neither the lease nor lease extensions mention any individuals and that no tenancy by implication was created with WSJC. The court, however, sided with the Jesuits and held that there was evidence of a longtime treatment of the WSJC as tenants by the owner, including the rent payments. The court also distinguished Manocherian in that only Lenox Hill Hospital in that case made an appearance and litigated, and that none of the subtenant employees were involved. In this case (and there were past proceedings), the so-called subtenants (the Jesuits) consistently appeared and defended their interests. The court additionally noted that the policy interests advanced in Manocherian are not applicable here (the perks for employees) because WSJC and its members are not faceless and nameless transient employees of a corporation. Since the owner has treated the Jesuits as the tenants in word and deed, the court dismissed the petitions and set the matter down for a hearing on the amount of attorney's fees to be awarded the Jesuits.

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Case Caption:

Marshall Estates v. Ahrens

Issues/Legal Principles:

Landlord's lawyer is sanctioned by the court for material misrepresentations and attempting to obtain information from non-parties which was not authorized by the court.

Keywords:

sanctions; subpoenas

Court:

Civil Housing Court, New York County

Judge:

Hon. Spears

Date:

August 11, 1999

Citation:

NYLJ, page 23, col 5

Referred Statutes:

CPLR 2304, 4504 , 3120(b), 3103(c); 22 NYCRR 130.1-1(a)

Summary:

Landlord brought a licensee proceeding against the occupants. The case doesn't state the defense(s) raised by the occupants, but succession rights is likely. (For convenience sake, the "occupants" will be referred to as "tenants.") Landlord's attorney made a number of motions to the court but the one at issue in this decision involves landlord's motion and tenant's cross-motion to quash various subpoenas served by both sides. Tenant's subpoenas were served on agents and/or principles of the landlord. In other words, the subpoenas were served on parties to the proceeding (according to the judge's decision). The court therefore refused to grant landlord's motion to quash the subpoenas because they "appear relevant and [were] served on parties who would be known to have the information requested." The court rejected landlord's position that the tenant's subpoenas were overbroad, irrelevant or intentionally harassing.

On the other hand, the landlord's attorneys served subpoenas on non-party witnesses, including the tenant's dentist and banks. The court noted that there is a doctor-client privilege with respect to the dentist, and that it was an abuse of process to use a subpoena to obtain confidential and/or privileged records from a non-party. The judge further noted that there had been a previous discussion in open court wherein the tenants' privacy rights were discussed. Up to this point, landlord's counsel had received four separate discovery decisions, and had never asked any judge for clarification of the discovery orders, i.e., whether subpoenas to the dentists were permissible. Landlord's counsel's argued that because the tenant had attached dentist bills to previous opposition papers, that this gave the landlord some kind of right to issue subpoenas to the dentist. The court rejected this position, stating that while the bills gave the tenant's adversary a glimpse of information or evidence, the inclusion of such document "does not in and of itself give the petitioner the right to further delve into those areas without the proper notice and court approval, particularly when the information is privileged." The court admonished the attorneys for not taking seriously the severity of their actions and for acting as if no wrong had been done.

Additionally, the attorneys represented to the court that the entities subpoenaed voluntarily sent documents to their office. The court, however, made its own investigation and learned that this was a false statement. The court determined that in at least two instances, the attorneys followed up their subpoenas with letters to the non-parties which enabled the attorneys to view the documents in an unedited form, contrary to two prior court orders addressing the tenant's privacy issues. The court quashed the subpoenas issued by the landlord and suppressed the usage of any information obtained by the landlord's attorney's as a result of their improper, unauthorized tactics.

Correction:

TenantNet had previously identified the landlord attorneys in this case as the firm of Mitofsky & Shapiro. This was an error in that the Housing Court computer database had not been updated to reflect that Mitofsky & Shapiro had ceased acting as counsel for the landlord in this case as of April 16, 1998. We have made the correction in the summary above and apologize for the error.