The tenant moved to dismiss the petition. The tenant argued that the landlord waived the pet provision of the lease under NYC Administrative Code 27-2009.1(b), which provides when a tenant openly and notoriously harbors a household pet despite a lease provision prohibiting the keeping of such pets, and the owner fails to "commence" a summary proceeding within three months of the owner "or his or her agent" becoming aware of the violation, such lease provision "shall be deemed waived." The landlord argued that Rodriguez is not the building superintendent, but only a handyman and thus, is not an agent of the landlord and his awareness of the tenant's dog should not be imputed to the landlord. However, the court ruled, under Seward Park Housing Corp. v. Cohen, that Rodriguez's knowledge of the tenant's dog as of March or May, 2000 might be imputed to the landlord. The tenant also argued that, even if Rodriguez's knowledge of her dog could not be imputed to the landlord, this proceeding was not commenced within the three months required by 27-2009.1(b). The court, noting that the proceeding commenced with the service of the petition on August 8, 2001, also agreed with this argument and ruled the proceeding was commenced after the three months required by 27- 2009.1(b). Thus, the court dismissed the petition.

Landlords denied permission to sublet because tenants (1) failed to prove that the apartment was their primary residence and that they intended to return after the sublet; (2) failed to state a definite term for the sublease; and (3) failed to comply with the statutory time frames. Despite the rejection, tenants went ahead and sublet the apartment without authorization because landlords' (1) rejection was unreasonable and (2) request for additional information following tenants' initial request to sublet was unduly burdensome. Once tenants installed the subtenant, the landlords brought this holdover proceeding based upon the unauthorized sublet.

The court ruled that the apartment was the tenants' primary residence and they had an intent to return to the apartment upon the completion of renovations to the Brooklyn condominium. The court also ruled that the indefiniteness of the term of the sublease was not a material defect in the request. The court also ruled that the tenants had expressed an intention to await a response from the landlords before the commencement of the sublet and only sublet the apartment after they received the rejection letter from the landlords. Thus, the court ruled that landlords' withholding of consent was unreasonable and dismissed the petition.

The tenant moved to dismiss the proceeding on the basis of a defective rent demand and that the petition fails to state a cause of action. The tenant argues that the rent demand inaccurately states that the tenant has not paid any rent from August, 2001 forward. The Department of Social Services (DSS) paid tenant's monthly rent in the amount of $286.00 for the period of August, 2001 through and beyond January, 2002 (payment in January, 2002 was $192.00). These payments are not reflected in the rent demand nor petition which allege that the tenant has not paid any rent for this period. The landlord argued that credit had been given for all payments received by DSS for that period. The landlord applied any and all payments received, including the DSS payments, to the older arrears.

The court, noting that a rent payment designated for a specific month must be applied toward that month, ruled that the rent demand was defective. The landlord could have provided a monthly breakdown as to the arrears, but instead chose to present a rent demand inaccurate as to the origin of the arrears and a total dollar amount that may or may not be accurate. The court dismissed the petition, but allowed the landlord to commence a new proceeding with an accurate, detailed explanation of the arrears.

Prior to trial the tenant had moved to dismiss the petition because the landlord failed to allege any post-notice to cure acts in its notice of termination and the notice of termination lacks specificity. The court ruled that the landlord was not obligated to state in the termination notice the manner in which the tenant did not comply with the notice to cure. The court also ruled that the tenant was placed on notice of the basis for the petition and that the conduct alleges not just a violation of the lease, but a nuisance cause of action as well. The tenant argued that his lease did not permit eviction based on nuisance. The court ruled that Paragraph 23 of the lease permits termination of the tenancy based upon repeated violations of the rental agreement, including violations which interfere with the rights and quiet enjoyment of other tenants. The tenant argued that a lease he received in the context of his annual section 8 recertification during litigation of the instant proceeding created a new tenancy, vitiating the termination of the tenancy. The court rejected this argument, noting that after the landlord terminated the tenancy and was actively engaged in prosecuting an eviction proceeding against the tenant, it cannot be said that the tenant had any reasonable expectation that the parties intended to reinstate the tenancy when the renewal lease was offered without either negotiation or consideration therefor.

Finally, the tenant argued that the court lacked subject matter jurisdiction to decide this proceeding because the proceeding is based upon breach of a condition subsequent rather than pursuant to a conditional limitation in the lease. The court rejected this argument as well, noting that the tenant committed a nuisance, which constituted a material breach of a substantial obligation of the tenancy. The court also examined the lease and ruled that the language of the lease is in the nature of a conditional limitation, not a condition subsequent. The court also ruled that it has subject matter jurisdiction regardless of whether or not the lease clause in question is interpreted as a conditional limitation or a condition subsequent. Thus, the court ruled, it had subject matter jurisdiction to decide the proceeding.

Finally, the court ruled that the tenant's conduct in creating an unbearable condition for his neighbors compels issuance of a final judgment of possession in favor of the landlord.

The landlord argued that acceptance of payment does not automatically revive the landlord tenant relationship. The court noted that the tenant's default was minimal, promptly cured, and was not an example of a tenant defaulting numerous times under various orders or stipulations. Though late in making the payment for April rent, she paid it and May's rent by May 13. The court rejected the landlord's argument and ruled that the landlord's acceptance of rent, which was for a period of time after the issuance of the warrant and after both the judgment and April's rent had been paid in full, vitiated the warrant and restored the landlord-tenant relationship. Finding the landlord-tenant relationship restored, the court ruled that the landlord had no right to execute the warrant on May 28, 2002 and restored the tenant to possession.

The tenant stated at trial that she told the building's agent when she applied for the apartment that Tiffany would be living with her, and was told that it didn't matter if Tiffany was listed as an occupant or not. She testified that she told the agent that since Tiffany would not be remaining in the apartment if anything happened to the grandmother, then she (the tenant) would not list her. The agent disputes that she was told by the tenant in the beginning that Tiffany would be living in the household, but the agent acknowledges that she knew Tiffany was living there, and notes in the file corroborate the granddaughter's presence. Although the building is maintained for senior citizens only, the landlord's witnesses testified that some tenants have their children living with them. Exceptions are made on a case by case basis.

The court noted that the HUD occupancy restrictions for this type of building apply to tenants over 62 years old "and to families where the head of household" is over 62 years old. Thus, on its face the HUD rules allow Tiffany's presence. Additionally, the court noted that HUD policy prohibits discrimination. Additionally, the Real Property Law allows tenants, including Section 8 tenants, to have roommates. Further, the record indicates that the landlord had sufficient knowledge of Tiffany's presence to constitute a waiver or estoppel; in other words, the landlord waited too long after knowing of her presence to do anything about it. The court concluded that Tiffany's occupancy alone cannot in itself be the basis for the termination of the tenancy. The court also concluded that the landlord did not suffer any consequences of the alleged "fraud," except if Tiffany provided any income to the household that went unreported. Since the landlord knew that Tiffany was living in the apartment, and that tenant never concealed her presence, simply because the tenant supplied false information that she was not living there cannot support a fraud case. Accordingly, the landlord's claim of fraud and material noncompliance with the lease was dismissed.

Usually it is the owner who asks that the tenant put up an undertaking (typically, arrears or ongoing payment of the rent) while the case is pending on appeal. In this case it is the tenant who claims damages of $1 million and wants the landlord to put up an undertaking of this amount, so that in the event she wins the funds will not have been squandered by the landlord in the interim while the appeal is pending. The court ruled that the purpose of the statute is to protect the possessory interest of an appellant where a judgment or order directs property to be conveyed or delivered to another. Therefore, the landlord is entitled to seek relief under the statute. The court held that the undertaking must be sufficient so that if the tenant prevails on appeal, she will be made whole. The undertaking must also protect against a sale of the property or any other transfer by landlord that would frustrate the judgment rendered in favor of the tenant. In that regard, the judge ordered the landlord to put up an undertaking of $500,000.

The DHCR rejected the tenant's arguments, ruling that the Katz and Reid Orders and the registration statements filed in 1993 were not reviewable. The DHCR determined that the Orders and the registration statements involved matters outside the four-year period. The DHCR also determined that the tenant's status as an intervenor did not provide a basis for a review of these documents either, because that proceeding involved matters that arose prior to the reviewable four-year period. The tenant then brought an Article 78 proceeding challenging the DHCR's determination. The Supreme Court ruled in tenant's favor and directed the DHCR to reinstate the Rent Administrator's July 9, 1997 order finding that the tenant had been overcharged. DHCR never perfected an appeal of the finding of overcharges in favor of tenant.

The instant case is actually a case involving legal fees. This is because after receiving a decision in his favor, the tenant then commenced this action seeking an award of legal fees of $22,327.25 with interest plus an additional $3,500 for the cost of the fee application pursuant to the New York State Equal Access to Justice Act (the State EAJA) or CPLR 8601(a). This statute provides that "a court shall award to a prevailing party, other than the state, fees and other expenses incurred by such party in any civil action brought against the state, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust." "Substantially justified" means "justified to a degree that could satisfy a reasonable person," or having "a reasonable basis both in law and fact." The Supreme Court ruled that the DHCR's refusal to consider the Katz and Reid Orders and its position that the tenant acquired no rights as an intervenor were unjustified and thus, awarded the tenant attorney's fees.

On appeal, the Appellate Division reversed and ruled that the Supreme Court improperly awarded the tenant legal fees. Bragston Realty Corp. v. Dixon, an Appellate Term, 2nd Dept. case, counters the Supreme Court holdings, and the lower court acknowledged as much. As to the September, 1995 orders, the case cited by the lower court, Klipper v. DHCR, Index No. 115867/98 (Sup. Ct. NY Co. March 1999), rejected the argument (made in that case by the DHCR) that rulings pertaining to rent disputes arising more than four years prior to the filing of a rent-overcharge complaint are reviewable if decided within the four-year period. The court also ruled that the DHCR's position that the tenant's intervention in the Katz proceeding did not help him because that proceeding involved matters that arose prior to the reviewable four-year period. Thus, the Appellate Division ruled that the DHCR's position that the tenant was not overcharged, although ultimately rejected by the Supreme Court, was substantially justified so as to defeat the tenant's application for legal fees under New York's Equal Access to Justice Act.

The court then determined what amount of attorney's fees was reasonable under the circumstances of the case. The court ruled that time spent on the case by the partner of the tenant's lawyer and the time spent on the companion Supreme Court case would not be added to the calculation of attorney's fees. The court also ruled that the tenant's attorney's fees request, for approximately $65,000, was not excessive as a matter of law. Finally, the court ruled that the attorney's fees award shall not be reduced by the time expended on the attorney's fees application and the hearing on that application. With this in mind, and by multiplying the number of hours by the hourly rate of $240, the court awarded the tenant $32,700 in attorney's fees, $382.21 in expenses.

On November 4, 1994, the DHCR sent landlord's counsel an Amended Summary Notice detailing how the fair market rent would be calculated in light of landlord's default in submitting proof of improvements. This notice requested that any comments be made within 21 days or November 25, 1994, but on November 29, 1994, landlord's counsel informed the DHCR by letter that the landlord had been in a car accident and therefore needed a further extension. On December 23, 1994, the DHCR issued a Rent Administrator's Order setting the tenant's fair market rent at $489.10, noting that the landlord had failed to provide documentation to substantiate the cost of alleged improvements to the apartment. The landlord, in a mailing postmarked December 23, 1994, submitted invoices and cancelled checks purporting to establish $18,000 in expenses renovating the apartment.

The landlord filed a Petition for Administrative Review claiming he had misdiaried the "due date" and that the DHCR should have considered his documentation mailed only a few days late. More than five years later on April 16,1999, the DHCR denied landlord's Petition on the ground that the landlord had been provided adequate time to submit documentation, but had failed to do so. The landlord then commenced this Article 78 proceeding in Supreme Court. The Supreme Court ruled in favor of the landlord and remanded to the DHCR to determine whether landlord's untimely submission of documentation was an infraction too trivial to take notice of. The court noted that the DHCR itself had delayed resolution of the matter by not forwarding tenant's complaint or a Fair Market Rent Appeal Package in a timely fashion.

On appeal, the Appellate Division reversed the Supreme Court's decision and ruled that the DHCR properly exercised its discretion in holding that landlord's multiple defaults were inexcusable. The court noted that the untimely submission of documentation was not an infraction too trivial to take notice of because the DHCR had made six separate requests for documentation, over a period of two years and six months, and the landlord had failed to comply with a single one. The court noted that despite the DHCR's delays, the landlord had engaged in clearly dilatory conduct and this, combined with the importance of setting the correct rent, was sufficient to support the DHCR's decision. Thus, the court ruled that, in viewing the record in its entirety, the DHCR's determination that the landlord's repeated defaults were inexcusable had a rational basis and the court refused to disturb that determination.

The concurring opinion noted that the landlord's evidence only proved that the tenants maintained a second home and that in the realm of housing law, a husband and wife may establish two separate primary residences without penalty. The dissenting opinion focused on the facts that the tenants jointly owned the Florida condominium, claimed the Florida Homestead exemption, filed joint federal income tax returns listing Florida as their residence, and did not file New York State income tax returns. The dissent also noted that the trial court's findings of fact should not be disturbed on appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence. In other words, even under these facts, the tenants ties to Florida compel a finding of nonprimary residence in New York, especially since they declared themselves Florida residents on their tax returns and failed to pay New York income tax, and these facts were never explained or undisputed by the tenants at trial.

The landlord argued that Ramos failed to meet the three criteria required to succeed to the subject Mitchell-Lama apartment as a remaining family member, including residing with the tenant for two years before they die. The landlord argued that the granddaughter was a mere caretaker not entitled to succession rights. The granddaughter argued that she resided with her grandmother since the inception of Caraballo's tenancy in the subject apartment and as such, is a remaining family member whose rights of occupancy survive her grandmother's death. This is one of the statutory grounds that permit succession rights. The court agreed and ruled in the granddaughter's favor and found that she moved into the subject apartment at the inception of Caraballo's tenancy of the subject apartment and that she qualifies to succeed to Caraballo's tenancy as a remaining family member. The court also noted that the granddaughter's income was listed for the new apartment and that her income accounted for why the tenant's rent increased when she transferred to the new apartment. The court also noted that a caretaker's income is not considered in household rent determinations.