Posted by JJ on July 04, 2001 at 22:55:31:
In Reply to: eviction? posted by chelsea on July 04, 2001 at 09:10:59:
: Very interesting. So what is your interpretation of what the final version of the amended RSC says about whether a tenant who is found to have overcharged roomates can be evicted? Is any violation of the code grounds for eviction, or does it have to specifically stated?
DHCR could have included this new unenforceable rule within the section of grounds for eviction: it deliberately put in outside of that section.
In Mazzola, the tenant did a pre-answer motion to dismiss due to this reason (assumption, based on reading the motion decision on NYLJ)
The judge denied the motion saying "not enough info, needs more legal discussion" my words, not his.
So, if he is presented with the legal theory that the rule as written in unenforecable because applied as written produces absurd results, he'll decide on that theory.
There is also the "DHCR has no authority to invent new rules out of thin air" theory (part of the bigger fight in the Brooklyn challenging the whole 12/20 code).
If the tenant doesn't bring up these two legal challenges, then he'll only be left to decide on whether ANY violation of the code is grounds for eviction, even if DHCR deliberately put the new rule outside of the eviction section.
In this case with only one tenant and one roommate, splitting the rent 50/50 as the rule requires is rational. If it was one tenant and 4 roommates OR 4 tenants with one roommate, it is legally absurd for the tenant to charge 50%.
search on Mazzola for late June posts..... and 12/20 for earlier new-rule roommate posts
Here's the last paragraph of
Given the language of Section 2525.7(b) of the Rent
Stabilization Code, as well as the standard of review and
limited inquiry of the court in a pre-answer motion to dismiss
for failure to state a cause of action, respondent's motion to
dismiss the petition is denied. Taking petitioner's allegations
as true, and in light of the recent amendment of the Rent
Stabilization Code, the petition states a valid cause of
action. Respondents are directed to serve and file their
answers within seven (7) days of service of a copy of this
decision and order with Notice of entry thereon. This case
shall be restored to the calendar of Part D, room 428 on
June 20, 2001 at 9:30 A.M. for all purposes.
This constitutes the decision and order of the court.
Date Received: June 07, 2001
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