Housing Court Decisions — August 2002
Editor: Colleen F. McGuire, Esq.

Return to TenantNet Home
Return to Housing Court Decisions index
Search Housing Court Decisions
Archives: 2002    2001    2000    1999    1998    1997    1996   


Significant Cases
Harmir Realty Co. v. Ravinett

New York Law Journal,
decisions for the week of August 12-16, 2002 (4 cases)


Case Caption:
Harmir Realty Co. v. Ravinett
Issues/Legal Principles:
Where landlord voluntarily agrees to discontinue holdover petition due to defective notice and tenant retains right to pursue legal fees, tenant is entitled to fees as the prevailing party.
Keywords:
discontinuance; legal fees; settlement; ultimate outcome
Court:
Appellate Term, First Department
Judge:
Trial Court: Hon. Laurie Lau
Date:
August 12, 2002
Citation:
NYLJ, page 19, col 5
Referred Statutes:
RSC 2524.2(c)(2); Real Property Law 234
Summary:
By stipulation the landlord and tenant voluntarily discontinued a nonprimary residence proceeding against the tenant, and the stipulation provided for tenant's retention of his claim for legal fees. The landlord agreed to discontinue since the service of its Golub Notice (non-renewal notice) was not timely. Now tenant seeks to recover legal fees. The lower court granted the fees based on the fact that the ultimate outcome of the case had been determined in tenant's favor. The landlord appealed and the Appellate Term affirmed the lower court's decision in favor of the tenant.


Case Caption:
930 Fifth Corp. v. Miller
Issues/Legal Principles:
Co-op tenants who signed a letter prior to purchasing acknowledging that the co-op board policy does not allow pets cannot be sued for fraud or misrepresentation when they moved in with a pet because they did not by the letter agree not to bring in a pet.
Keywords:
pets
Court:
Supreme Court, New York County
Judge:
Hon. Marilyn Diamond
Date:
August 14, 2002
Citation:
NYLJ, page 18, col 3
Referred Statutes:
Administrative Code of the City of New York 27-2009
Summary:
The tenants, who purchased a co-op apartment, agreed prior to their purchase to sign an inducement letter drafted by the co-op board stating that they were aware that the co-op's policy was that "permission would not be granted for the keeping of any animals." Additionally, the proprietary lease forbids the harboring of animals. Nonetheless the tenants moved into their apartment with a small dog. Eighteen months later the tenants were served a notice that the managing agent recently became aware of the dog and demanding that the dog be removed. The tenants refused to remove the dog and the landlord (i.e., the co-operative board) brought a holdover proceeding.

In the housing court proceeding, the judge dismissed the case on grounds that the Pet Law requires an owner to commence a proceeding within three months of knowledge of the alleged unlawful pet. The court ruled that the landlord waited in excess of three months and as a result the petition was dismissed. The case went to the Appellate Term and the dismissal was affirmed.

The landlord co-op board has now sued the tenants in Supreme Court for fraud and misrepresentation on grounds that they fraudulently represented when they signed the inducement agreement that they would not keep pets in the apartment. The judge disagreed and correctly noted that the tenants only signed a document which indicated that they were aware of the board's policy; they never signed an agreement representing that they would abide by the policy. The court held that it could not stretch the language of the inducement letter to mean what the landlord wants it to mean because that would be against public policy since such interpretation would automatically waive the three month period under the Pet Law. The court dismissed the complaint.

The tenants counterclaimed stating that they put up one year's maintenance totalling $10,588.32 in escrow and were supposed to have it refunded after two years. The tenants were not behind in maintenance payments and yet their request for a refund of the escrowed money was denied by the landlord, so they made a counterclaim in this action seeking its return. The court granted their request, less 1% for administrative fees.


Case Caption:
Giffuni Bros. v. Feingold
Issues/Legal Principles:
nonpayment; legal fees; MCIs
Keywords:
Landlord is entitled to recover legal fees since it was the prevailing party on the central issue litigated in the nonpayment proceeding.
Court:
Appellate Term, First Department
Judge:
Trial Court: Hon. Jerald Klein
Date:
August 16, 2002
Citation:
NYLJ, page 18, col 1
Referred Statutes:
none cited
Summary:
The landlord brought a nonpayment proceeding regarding its entitlement to collect MCI increases pursuant to an unchallenged DHCR order. Tenant withheld rent even though landlord showed her a copy of the DHCR order. The trial court found for the landlord but refused to grant the landlord legal fees. The Appellate Term reversed on grounds that the landlord was the prevailing party in the central issue litigated.


Case Caption:
Melohn v. Franklin
Issues/Legal Principles:
Tenant proved a nontraditional family relationship with the deceased tenant of record, thereby entitling him to succession rights.
Keywords:
nontraditional family rights; succession rights
Court:
Appellate Term, First Department
Judge:
lower court: Hon. Peter Wendt
Date:
August 16, 2002
Citation:
NYLJ, page 18, col 1
Referred Statutes:
Rent Stabilization Code 2204.6(d)
Summary:
The lower court ruled that the respondent was entitled to succession rights and the appellate court affirmed. The record showed that he resided with the prime tenant until the prime tenant's death in 2000 in a relationship that was akin to husband and wife. The couple shared household expenses, travelled together and attended family functions. He cared for her during several illnesses. They jointly owned investment accounts with the right of survivorship and he was given a power of attorney over her checking account. The deceased's tenant's family members also testified in his behalf. The court concluded that the couple maintained a nontraditional family relationship which would entitle respondent to succeed to his partner's lease.


New York Law Journal,
decisions for the week of August 5-9, 2002 (4 cases)


Case Caption:
Commercial Hotel, Inc. v. White
Issues/Legal Principles:
The lack of a proper certificate of occupancy for an apartment precludes recovery of rent by the landlord for use and occupancy for that apartment.
Keywords:
overcharge; eviction; certificate of occupancy
Court:
Appellate Term, Second Department
Judge:
Trial Court: Hon. Dart
Date:
August 6, 2002
Citation:
NYLJ, page 20, col 4
Referred Statutes:
Rent Stabilization Code 2524.2; Rent Stabilization Code 2524.3; RSL 25-516(a); Rent Stabilization Code 2520.6
Summary:
The landlord brought an action seeking possession and an award of arrears. The tenants, White and Heward-Mills, counterclaimed for rent overcharge. The Civil Court, Queens County entered judgment for the landlord awarding possession and total arrears in the amount of $11,400. On appeal, the court modified the judgment by dismissing with prejudice the landlord's causes of action for ejectment, by dismissing the landlord's cause of action for use and occupancy against tenant Heward-Mills (with prejudice) and tenant White (without prejudice), and by dismissing without prejudice the tenants' counterclaims for rent overcharge.

The court noted that upon the landlord's addition of a sixth unit to the building (allegedly in 1992) all the units in the building were brought under rent stabilization and the tenants could only be evicted upon one of the grounds set forth in Section 2524.3 of the Rent Stabilization Code ("RSC"). The court ruled that because the landlord did not plead and prove the existence of such grounds and did not serve the notices required by the RSC, its causes of action for ejectment are dismissed with prejudice. The court dismissed with prejudice the landlord's cause of action for use and occupancy against tenant Heward-Mills because the lack of a proper certificate of occupancy for her apartment precludes recovery of rent or use and occupancy for this apartment. However, tenant Heward-Mills may not recover rents paid based solely on this ground and dismissed without prejudice her counterclaim for rent overcharge. The court dismissed without prejudice the landlord's cause of action for use and occupancy against tenant White because the landlord has not registered the premises with the Division of Housing and Community Renewal, a legal regulated rent has not yet been established, thus rendering the landlord's claim for rent arrears premature. Similarly, the court ruled that tenant White's claim for the recovery of overcharges, if they lie at all, must await the establishment of the legal regulated rents and dismissed without prejudice her counterclaim for rent overcharge.


Case Caption:
Wonforo Associates v. Maloof
Issues/Legal Principles:
A tenant's chronic nonpayment of rent on its own is insufficient to establish an actionable nuisance. The landlord must also prove "aggravating circumstances" to support an eviction based on the ground of nuisance.
Keywords:
nuisance; nonpayment proceeding; notice to admit; chronic non-payment of rent; aggravating circumstances
Court:
Civil Housing Court, New York County
Judge:
Hon. Hagler
Date:
August 7, 2002
Citation:
NYLJ, page 20, col 3
Referred Statutes:
RSC 2524.3; RPL 235-f; RSC 2542.3(b); RPAPL 753(4); CPLR 3123(a)
Summary:
In late 1990 the tenant moved into a rent stabilized apartment, #15-A at 140 West 86th Street, New York, New York. He renovated the kitchen and made other improvements. From the outset of the landlord/tenant relationship, the tenant complained that the subject apartment was in need of repairs. From 1992 to 2000, the landlord commenced 12 nonpayment proceedings. Most of these proceedings were settled by stipulation requiring the landlord to make repairs or cure violations. The landlord was also compelled to give the tenant approximately $11,000 in abatements and other credits against his rent. Of note is the May, 1993 proceeding which went to trial. After trial, the Hon. Dianne S. Gasworth awarded the tenant a 25 percent abatement of the outstanding rental arrears. Judge Gasworth found serious conditions existed for a "substantial period of time" such as "cracked walls and missing tiles [in bathroom], the kitchen window sash was painted shut and there was a defective smoke detector." In addition to these nonpayment proceedings, the landlord served nine (9) rent demands on respondent, all of which were paid by the tenant shortly thereafter. All but one of the rent demands were dated before the thirteenth day of the month the rent was due and more than half of them were dated prior to the tenth day of the month.

In March, 1994, the tenant filed a complaint of decreased services with the New York State Division of Housing and Community Renewal ("DHCR"). The DHCR found that the landlord did not maintain several services and reduced the rent from $1730 to $1545.38. Inasmuch as the conditions noted by the DHCR persisted, the tenant was compelled to commence an HP proceeding seeking an order to correct these conditions. >From January, 1996 through May, 2001, the tenant consistently sent letters to the landlord's agents requesting repairs. The City of New York Department of Housing Preservation and Development ("HPD") also issued more than fifty-five (55) violations in the subject apartment from 1993 through 2001 and approximately 20 percent of these violations were "immediately hazardous."

The landlord commenced this holdover proceeding to recover possession of the subject apartment based on the primary ground that the tenant's alleged chronic nonpayment of rent constituted a nuisance pursuant to the Rent Stabilization Code ("RSC") Section 2524.3(b). The tenant interposed an amended answer asserting, inter alia, that the subject apartment was in need of repairs and numerous violations were issued by HPD. The landlord has the burden of proving, based on a preponderance of the credible evidence, that the tenant's conduct constituted an actionable nuisance pursuant to RSC 2524.3(b). For a chronic nonpayment of rent to constitute a nuisance, the landlord must also prove that "aggravating circumstances" exist to support an eviction. The court credited the tenant's witnesses over the landlord's witnesses. In particular, the landlord's witness Joseph Eckart's testimony lacked credulity.

The court examined the landlord's allegations upon which it relied to prove the existence of "aggravating circumstances." These allegations included among other things, the tenant's maintaining a plant on the window sill in violation of the lease, the tenant harbored a dog in violation of the lease, and the tenant installed an antenna on the roof without the landlord's permission. The court noted that these allegations were more appropriately characterized as breach of lease obligations subject to cure. Thus, the court found that the tenant's conduct did not constitute an actionable nuisance pursuant to RSC 2524.3(b). The court ruled by dismissing the petition with prejudice.


Case Caption:
Youth Action Homes II HDFC v. Ashe
Issues/Legal Principles:
Section 8 payments made by a housing authority on behalf of a tenant constitutes rent and the acceptance of such payments by the landlord after the termination of tenancy vitiates the notice of termination.
Keywords:
Section 8 subsidy; receipt of rent; vitiation of termination notice
Court:
Civil Housing Court, New York County
Judge:
Hon. Acosta
Date:
August 7, 2002
Citation:
NYLJ, page 21, col 1
Referred Statutes:
Section 8; HUD Rule 982.311(b); CPLR 3211
Summary:
The landlord brought a holdover proceeding seeking a judgment of possession of the tenants' apartment because, according to the landlord, the tenants are committing and permitting a nuisance in the premises. The tenants offered as an affirmative defense that the landlord continued to accept Section 8 subsidy payments from the New York City Housing Authority following the service of a Notice of Termination and prior to the commencement of the proceeding. The tenants argue that the landlord's acceptance of such payments vitiates the Notice of Termination. The landlord moves for an order dismissing this affirmative defense. The landlord acknowledged receipt and retention of New York City Housing Authority subsidy payments following the effective date of the termination notice and does not dispute that such payments were received prior to the commencement of the proceeding. The landlord argues that the retention of the checks did not vitiate the termination notice because (a) HUD Federal Regulations require the landlord to continue accepting the Section 8 subsidy following service of a termination notice; (b) the subsidy does not constitute "rent;" and (c) receipt of the subsidy checks, without cashing the checks, does not constitute acceptance.

The court rejected each of these arguments in turn and ruled that the landlord's motion to dismiss the tenants' affirmative defense is denied. First, the HUD rule the landlord relied on requires HUD to continue sending the subsidy to the landlord, but nothing in the HUD rules require the landlord to accept the subsidy. Second, the court noted that it was well accepted that Section 8 payments made by a housing authority on behalf of a tenant constitutes rent. Third, the landlord, though never cashed the checks, never returned the checks to either the tenants or to the Housing Authority and thus, accepted rent following the effective date of the termination notice and prior to the commencement of the proceeding. Finally, the court dismissed the petition, inasmuch as the termination notice is vitiated, because a valid termination notice is a condition precedent to a holdover proceeding, dismissal of a petition is required where, as here, the notice is deficient.


Case Caption:
Anduja v. Hewitt
Issues/Legal Principles:
Tenant in federal subsidized housing complex who invited her 17 year old goddaughter to live in her 2 bedroom apartment with her and her 3 year old son may maintain a cause of action for housing discrimination in federal court against the landlord based on the Fair Housing Act when the landlord refused to allow the goddaughter residency rights.
Keywords:
roommate; unlawful eviction; federal removal; housing discrimination
Court:
United States District Court; Southern District of New York
Judge:
Hon. Scheindlin
Date:
August 9, 2002
Citation:
NYLJ, page 24, col 2
Referred Statutes:
42 USC 1983 & 3604, Federal Rules of Civil Procedure 8 and 12; RPAPL 853 & 236(a)
Summary:
The tenant lives in subsidized housing, a two bedroom apartment, with her 3 year old son. She was approached by the New York City Administration for Children's Services (ACS) if she would take in her goddaughter, Marybeth Cordero, as a foster child. Marybeth was 17 at the time and thus considered a minor. The tenant agreed to do so and spent many hours taking a class for foster parents, although she apparently never received certification from that class. Her landlord notified her that she was in violation of the occupancy agreement because she did not have authorization to have Marybeth live in the apartment. Even if she had sought authorization, the landlord said it could not be done or the landlord's subsidy program from the federal government would be jeopardized, if not lost. This is apparently because the federal housing rules prohibit children of different sexes from sharing a bedroom and so Marybeth cannot sleep in Ryan's bedroom. The rules also prohibit an adult from sharing the same bedroom as a child so Marybeth cannot share her godmother's bedroom. The ASC and the Catholic Home Bureau pleaded with the landlord to allow the goddaughter to be allowed to live in the tenant's home because the environment was so healthy and needed for Marybeth. The landlord refused and Marybeth was forced to go a foster home in Brooklyn.

Despite Marybeth's removal from the apartment, several months later the landlord commenced a holdover proceeding in Housing Court to evict the tenant because of her past violation, even though the tenant cured the alleged wrong. Before the case could proceed to a resolution or a final decision, the tenant and Marybeth sued the landlord and its various agents in federal court on various grounds, including violation of the Fair Housing Act and wrongful eviction of the goddaughter. The defendants raised a plethora of defenses including that there was a case pending in state court and therefore the federal court was precluded from hearing the matter, but to this the judge ruled that there is no finality in the housing court case, and therefore the federal court is not "reviewing" any state court's decision, and further there is no "state interest" which should compel the court to abstain from exercising jurisdiction because the underlying case is simply a routine landlord-tenant matter.

Defendants also argue that the plaintiffs have no standing to bring an unfair housing claim because the tenant's status as a foster parent was never finalized. The court, however, referred to case law in other districts where a foster parent has been deemed an "aggrieved person." Further, the sole reason the tenant did not finalize her foster parent training was specifically because the landlord threatened to evict her if Marybeth stayed in the apartment. The court ruled that this "easily qualifies" the tenant as an "aggrieved person." The court agreed with the defendants that, since the landlord is a private party and not a state actor, the plaintiffs' constitutional rights cannot be deemed to have been violated. The court refused to dismiss the case against two individual employees of the landlord who were named as parties in their individual capacities because the facts show that the employees engaged in actual discriminatory conduct.

Finally the court ruled that Marybeth cannot make a claim for wrongful eviction because she must prove that she was in "peaceable possession." This means she must show that her entry at the time she took possession must have been uncontested. In this case, however, the landlord contested her entry from the very beginning. Therefore she does not have a claim for wrongful eviction under RPAPL 853.