Several weeks later the landlord gave the tenant a check for $1,587.79 with a notation "paid in full." An attorney for tenant wrote the landlord to say that the check was being held in his escrow account and would remain there until "final determination" of the landlord's liability is determined. The letter noted that tenant was forced to move due to a total lack of heat which is a breach of the warranty of habitability. The letter sought return of all tenant's money, meaning the outstanding balance of $1,098.21.

The landlord responded by saying that the tenant did not complain of the absence of heat until several weeks after moving in and on the date she complained the furnace was working properly. No violations were issued against the landlord. The landlord concluded that the tenant had broken the lease without justification and that the landlord was generous for returning one month's security and one month's rent paid in advance, less the costs attributable to the gas and electric bill.

The issue for the court was whether there was an accord and satisfaction. If so, then the tenant's claim must be dismissed. Under the Uniform Commercial Code (UCC) a creditor may preserve her right to the balance of a disputed claim by explicit reservation in her endorsement. The tenant's endorsement of the tendered check for deposit in her attorney's escrow account indicates that there was no accord and satisfaction. Additionally, the court ruled that the three bedroom apartment was without heat except for one bedroom with an electric baseboard heater. Tenant had to purchase her own heater for additional comfort. The radiator vents or valves were frozen shut and encrusted with paint. The temperature had dropped to 47 degrees. Consequently the court found that the conditions were dangerous and hazardous to the tenant's health and violated the warranty of habitability. Further the landlord had sufficient notice of the health hazard. The landlord's failure to timely remedy the situation was detrimental to tenant's health and forced her to vacate the apartment which constitutes a constructive eviction. The court concluded that the tenant was entitled to $825.00 additional to the sum already tendered by landlord.

The court noted that only the attorney submitted an affirmation to the motion to re- calendar the inquest. Missing was an affidavit from the landlord or an affidavit from anyone about efforts made to communicate. The court pointed out other defects with the motion and concluded that the landlord did not adequately explain the failure to be ready on the inquest date with the necessary documents, including the fact that if there were telephone difficulties in April, how could that effect the inquest date in May? Additionally, although the multiple dwelling registration statement is now produced, the document indicates that its registration had expired on May 1, 2001. The building was not properly registered when the inquest was scheduled to be heard and no excuse was provided by the attorney for this lapse in registration. Hence, even had the inquest gone forward, the petition would have been dismissed due to lack of proper registration. Thus, it is not possible to re-calendar the inquest. The court concluded that in this case there were no special circumstances or surprises which might have excused the lack of readiness on the inquest date. The court surmised that what happened here is simply that the landlord and tenant did not confer with each other until the moment the inquest was to begin. The court denied the motion to re-calendar the inquest.

The landlord argues that the husband has personal knowledge of his wife's whereabouts and for this reason the landlord needs to depose the husband. The tenant argues that the landlord should have sought to depose her husband in the initial request for discovery and that he should now be barred from this request. The tenant also argues that the landlord's motion failed to attach the relevant pages from her deposition which would have supposedly supported the landlord's claim that the husband's testimony is necessary, and that the landlord is just engaging in a fishing expedition.

The court observed that discovery is available when the party can show ample need. In this case, the landlord failed to show ample need. First of all, without the benefit of the deposition transcript the court was unable to determine exactly what the tenant said at the deposition which prompted the landlord to seek her husband's deposition. Second, the court believes that the real reason the landlord wants to depose the husband is to use him to impeach the credibility of the tenant. A deposition of the husband would only be duplicative of testimony that the tenant already provided. The court agreed with the tenant that the landlord was engaging in a fishing expedition. The court also agreed that the landlord should have sought the husband's deposition in the initial discovery request since the landlord alleged from the beginning (i.e., in the non-renewal notice) that the New Jersey residence of the husband constitutes the tenant's primary residence.

In a five month period the court reported that it denied NYCHA applications for default judgments on 127 occasions because of the absence of an attorney signature/certification. The court found at least 36 instances when NYCHA simply filed new proceedings without bothering to discontinue the first proceeding, nor did the new proceedings bear signatures/certifications. The court noted that the law provides that the court "shall" strike any unsigned paper if the omission is not corrected promptly after being called to the attention of the attorney. The court stated that NYCHA's attorney was notified 127 times of the omission. The court therefore denied NYCHA's application for a default judgment.

In December, 1999, tenant filed a complaint with the DHCR. Within six months thereafter, the landlord served a notice to cure based on the washing machine. The landlord then withdrew its first holdover petition and started a second one. The court dismissed the current petition. The court held that the landlord waived a right to proceed against the tenant on grounds of waiver. In other words, the landlord cannot accept rent all these years without having heretofore complained about the washing machine. Further, the landlord steps into the shoes of the old landlord who gave permission for the appliance. Additionally, the landlord could offer no grounds for if or whether this washing machine has caused any damage, and therefore, absent such proof there is no substantial violation of the lease. Further, there is nothing in the language of the lease to indicate that the retention of a washing machine constitutes a substantial violation of the tenancy.

The tenant maintains that the sole reason for this lawsuit is retaliatory eviction for the complaint filed at DHCR regarding conditions in the apartment. The court held that the service of the notice of cure within six months of the filing of the complaint raises a presumption of retaliation. The landlord, according to the court, has failed to present a credible explanation of a non-retaliatory motive for the holdover proceeding. By virtue of the timing, one can only logically conclude that retaliatory eviction is present.

The principal of the prior corporate owner is the current landlord's husband. On June 28, 1999, the current landlord purchased the building. That same day she sent the tenants a letter rescinding the prior owner's offer of a renewal lease, and instead served the tenants a notice of nonrenewal. The tenants, however, returned the renewal lease, signed, and their attorney later sent a letter rejecting the recision letter. The question for the court was whether the landlord may rescind a lease offer which was made by her predecessor.

The court referred to appellate case law which held that a new landlord may not rescind a lease renewal offer made by the prior landlord during a sixty day period in which the tenant has to accept or reject the renewal lease. Here the tenant accepted the lease within two weeks. Thus, on this ground alone, the court reasoned, the petition must be dismissed. The court went on to rule that even if the landlord was not required to offer a renewal lease, the landlord's holdover proceeding must still be dismissed due to the fact that a tenant residing in a rent controlled unit for twenty years may not be evicted.

In order to reach this result of non-eviction the court had to determine whether the two separate, non-contiguous units are used by the tenant as a single home and whether the owner acquiesced in that usage. The court looked at the facts, including the tenant's claim that the prior landlord helped ConEdison remove one of the kitchens, although the landlord's husband denies this. The tenants' children are being raised in both apartments, and there is a presumption that the residence of the children is the residence of their parents. The owner offered case law indicating that a landlord may seek one of two apartments which a tenant utilizes as a single primary residence. But the court distinguished that case from this one because either one of those two units occupied as a single residence was recoverable, whereas in this case, one of the two units (the rent controlled unit) is not possible to recover due to the twenty-year rule protecting long-term tenancies in rent controlled units. The court essentially concluded that the nature of these two units made them impossible to separate.

The court declined to appoint an administrator for several reasons: (1) the conditions complained of by the tenants had been removed or remedied, (2) repairs that the landlord had repeatedly made were vandalized by unknown parties who were provided access to the building, (c) some of the tenants had denied the landlord access to do repairs, and (4) the tenants failed to demonstrate that they had the requisite one-third of the building tenants supporting the appointment of a 7-A Administrator.

In this case the landlord alleged that he had been separated from his wife for roughly two years and was living with his brother in Staten Island or his mother's apartment which is in the subject building. The owner, however, does not have a written separation agreement with his wife, he continues to live in the marital home for periods of time, pays the mortgage on the house, files his tax returns and receives mail from the house and maintains the telephone in his name and keeps clothing and belongings there. The tenant called him several times at the house to request repairs and he answered. The owner says he remains on decent terms with his wife.

The owner did not file a petition for divorce until the eve of trial. Since there is no separation agreement, the grounds for the divorce would be cruelty or abandonment, but the court did not know which since the owner failed to produce a copy of the divorce complaint at trial. The court concluded that the divorce petition was a sham since the other evidence contradicts the alleged grounds for the owner's divorce. The court drew negative inferences by the fact that neither the brother or mother of the owner came to testify. During the period he allegedly separated from his wife, all four of the remaining apartments in the building became vacant, but the owner did not move into any of them. (The mother and this tenant occupy the other two units.) Based on the totality of the facts, the court denied the owner's petition to evict the tenant on owner occupancy grounds.

The court observed that RSC 2524.4(c) does not refer to owner occupancy proceedings, but rather nonprimary residency proceedings. Thus, the owner failed to cite the legal ground on which the proceeding is based. The court found the notice deficient as well because it failed to state the factual grounds on which the petition was based since only a conclusory statement was asserted that the owner needed the apartment for personal use without stating further supporting facts. Therefore the court dismissed the petition.

After a trial the court concluded, with respect to the first issue, that the landlord purchased the fixtures from the outgoing tenant in 1988 for fair market value. This purchase removed the unit from any rent regulation. The court rejected the landlord's demand, after many days of trial and extended passage of time, to have a jury hear the case.

With respect to the forgery issue, the court found that the tenant and the tenant's handwriting expert who also testified were credible. The tenant testified that he observed the landlord sign a 14-year renewal lease in 1997, and his expert concluded (by comparing the signatures on the rent checks to the lease) that the lease bore the landlord's signature. Further, the court observed that a 14 year lease was consistent with the tenant's testimony that he wanted security for his family. By contrast, the landlord's testimony was not credible. He could not remember "anything before yesterday," and amazingly appeared to take pride in his lack of recollection as a senior citizen. Further, his testimony fell far short of credibility in general. As a result, the court concluded that the lease is valid and not a product of fraud or undue influence. Even if the lease were a product of mistake on the landlord's part, to invalidate the lease the mistake must be mutual, and yet there was no evidence of a mistake on either party's part. The court therefore dismissed the petition.

The court analyzed the history of case law pertaining to chronic nonpayment of rent. A Court of Appeals case, Sharp v. Norwood, held that the landlord proceeded by way of a nuisance, but failed to satisfy the higher standards of proof necessary. A nuisance proceeding does not require a notice to cure. The court noted that a body of case law developed wherein chronic nonpayment cases were dealt with as a violation of a substantial obligation of the tenancy and the case law held that no notice to cure was needed. The court, however, observed that these cases preceeded the enactment of RPAPL 753(4) which allows a tenant a post-judgment cure of a default of the lease.

If a post-judgment cure of a lease default allows a tenant to cure after judgment, then there must be an opportunity to cure prior to the judgment. The lease in this case calls for a cure period and the Rent Stabilization Code does as well when the landlord accuses the tenant of violating a subtantial obligation of the tenancy. For this reason the court dismissed the petition for failure to serve a notice to cure. The court also noted that some case law provides that a course of conduct was developed over the years where landlord routinely accepted late payments and the landlord's change in position (i.e., no longer accepting late payments) warrants a notice to the tenant and an opportunty for a comcomitant change in practice on the tenant's part.