Appellate Term Asserts Broader Powers in Housing

[consigliere]

This article appears in the February 6, 2003 online edition of the New York Law Journal:
 
Appellate Term Asserts Broader Powers in Housing
 
By Tom Perrotta
 
Saying that some of its previous holdings needed reconsideration, the Appellate Term, Second Department, has asserted its authority to restore possession of an apartment to a tenant who is appealing an eviction.
 
The unanimous ruling, handed down last week, awarded a Brooklyn tenant possession of her apartment so long as she paid more than $2,000 in back rent owed through the date of eviction and perfected her appeal to the court by April 23.
 
It also clearly stated that the court did not feel obliged to follow previous Appellate Term holdings on the subject from 1988 and 1986, largely because of Real Property Actions and Proceedings Law 747-a, an amendment passed by the Legislature in 1997, that sets guidelines for awarding temporary possession to evicted tenants.
 
The tenant, Marie Shade, was evicted last November from her apartment at 102 Macon Street after she failed to appear at a housing court proceeding.
 
But as she was being removed, her son, who also lives in the building, came to court and said his mother did not owe back rent exceeding $3,000, as the landlord claimed, and that she had not received notice of the housing court proceeding. Shade works as a live-in aide.  
 
Shade eventually filed an order to show cause, and it was determined that she owed only $2,200 in rent, nearly $1,600 of which she had paid on the day she was evicted. The landlord, Brooklyn Properties LLC, returned that money at a subsequent housing court hearing, and the court found that the payment was too late and denied Shade's motion for possession.
 
Shade, representing herself, then filed an order to show cause with the Appellate Term, which the court treated as an order seeking possession pending appeal.
 
In granting Shade's motion, the court said it would no longer follow holdings in Seley v. Churchill Ct. Assoc., NYLJ, Sept. 22, 1988, p. 22, col. 2, and Howard Ave. Assoc. v. Kearse, NYLJ, June 26, 1986, p. 17, col. 1, which both indicated that the Appellate Terms lacked the power to restore a tenant to possession pending an appeal.
 
"In our view, these decisions require re-examination, particularly in light of the subsequent acknowledgment by the Legislature of the power of the courts to 'stay' reletting . . . and of what is now the common practice of the courts to grant such 'stays,' " the court wrote. "Upon such re-examination, we conclude that this court has the power both to 'stay' reletting and to restore a tenant to possession pending determination of an appeal."
 
But, the court warned, this sort of preliminary injunctive relief for a tenant is "a drastic remedy which is to be used sparingly." The court said a party seeking such relief must show "(1) a likelihood of success on the merits, (2) the prospect of irreparable injury, and (3) a balance of equities tipping in the moving party's favor."
 
Scott E. Mollen, a partner at Herrick, Feinstein and a Law Journal columnist, said the ruling clearly changes the law in the Second Department and gives tenants a more direct path to a possible remedy.
 
"What [the court] is trying to do is make the remedy more available and the standard less onerous in the sense that one doesn't have to pursue it at the appellate division level," Mollen said.
 
Sitting on the appellate panel were Justices Michelle Weston Patterson, Joseph G. Golia and Jaime A. Rios.
 
Brooklyn Properties was represented by Jeffrey L. Saltiel of Tenenbaum Dunbar Saltiel & Berger, who could not be reached for comment.