Landlord v. Tenant: April 2013

DOB Violations: Landlord Improperly Stored Wood Behind Building

DOB issued a violation notice to landlord for unsafe storage of combustible materials and equipment. DOB’s inspector observed wooden planks and plywood stored at the rear yard of the building. Landlord claimed that the violation notice was improperly delivered. He also argued that the materials were stored near the backyard fence, away from the building, and were being used in ongoing construction at the building and two adjacent buildings that he owned. The ALJ ruled against landlord and fined him $1,200.

Landlord appealed and lost. DOB properly affixed and mailed the violation notice after the super didn’t answer his bell at the building. In addition, although Building Code Section 3303.4.5 permits storage of materials during lawful ongoing construction, landlord didn’t prove that it was performing lawful construction. And Building Code Section 2203.4.6 requires storage of combustible or other material that may present a fire hazard to comply with NYC Fire Code Section 315, which further prohibits outdoor storage of such material within 10 feet of a property line or 50 feet of the nearest wall of a building.

• Paik: ECB App. No. 1200987 (1/31/13)

Eviction: Landlord Can Evict Tenant for Chronic Nonpayment of Rent

Landlord sued to evict rent-stabilized tenant for chronic nonpayment of rent. On the initial court date in October 2009, landlord and tenant signed a so-ordered settlement agreement by which tenant agreed to pay back rent owed and then pay rent coming due between December 2009 and May 2011 on or before the first of each month. Tenant consented to entry of a final judgment of possession and forthwith issuance of an eviction warrant. If tenant defaulted, landlord could be evicted upon service of a marshal’s notice. Tenant later defaulted, and in May 2010 asked the court to delay eviction because he had been out of work and was now able to pay the back rent accrued. The court gave tenant a few days to pay and extended tenant’s probation period through December 2011. In February 2011 tenant again asked for a delay of the eviction, claiming that he was unemployed.

The parties signed a new settlement agreement excusing tenant’s default and extending tenant’s probationary period through June 2012. In April 2012, tenant again sought an extension after failing to pay. The parties signed another agreement giving tenant until April 30, 2012, to become current and extending the probation period to June 2013. In early 2013, tenant again sought to delay eviction, now claiming that he was in default because his mother-in-law died, he had to pay funeral expenses, and he was again unemployed. Tenant had failed to pay rent on time from September through November 2012 and had paid no rent at all in December 2012 or January 2013. Tenant, whose monthly rent was $818, now owed landlord $2,372.

The court ruled against tenant in light of his repeated defaults and his current inability to pay the outstanding rent. Tenant failed to comply with three so-ordered settlement agreements and one court order. Landlord could evict tenant after Feb. 28.

• 258 East 4th Street LP v. Morales: Index No. L&T 88282/2009 (Civ. Ct. NY; 2/13/13; Kraus, J)

Owner Occupancy: Landlord Seeks to Recover SRO Building

Landlord sued to evict rent-stabilized SRO tenant for owner-occupancy purposes. Tenant asked the court to dismiss the case because landlord had brought a separate action against a different tenant claiming that that individual lived in the same room. Tenant also claimed that landlord improperly sought to recover SRO units without obtaining a certificate of no harassment from HPD.

The court ruled against tenant. Although landlord had started an ejectment action in State Supreme Court against another occupant landlord claimed was occupying the “third floor front room” and this was the same description used to identify the premises in the housing court eviction case against tenant, the two cases weren’t identical. It also seemed unlikely that tenant and the occupant named in the other case were living in the same SRO room. While it may be appropriate to consolidate the two cases to prevent inconsistent results, the housing part of the Civil Court didn’t have the authority to send the eviction case to State Supreme Court. Tenant could, however, seek consolidation with the Supreme Court action from that court. Tenant also argued that the case should be dismissed because landlord sought the whole SRO building for owner occupancy yet hadn’t obtained a certificate of no harassment from HPD. The court found that this may be a consideration in determining whether landlord was acting in good faith, but wasn’t grounds to dismiss the case outright.

• Briskin v. Mills: 38 Misc.3d 1227(A), 2013 NY Slip Op 50291(U) (Civ. Ct. NY; 2/27/13)

Passing on Apartments: Tenant’s Sister Was in Occupancy Since Inception of Tenancy

Landlord sued to evict rent-stabilized tenant for nonprimary residence. Tenant’s sister claimed that, even if tenant no longer primarily resided in the apartment, she had succession rights because she had lived with tenant since the inception of the tenancy. The court ruled for landlord in part, finding that tenant didn’t primarily reside in the apartment. But the court found that tenant’s sister had succession rights.

The sister had moved to New York from Guyana in 1976 and claimed that she moved in with tenant when tenant rented the apartment in 1979. The sister presented copies of her son’s 1983 birth certificate, 17 W-2 statements showing that she worked at HSBC Bank between 1990 and 2007, a 2009 driver’s license, and Hunter College transcripts from 1979 to 1982. All of these documents listed the apartment as the sister’s address. Tenant also testified that the sister had moved into the apartment with her when she first rented it. Since the sister demonstrated that she had lived with tenant since the “inception of the tenancy,” it didn’t matter when exactly tenant stopped living in the apartment as her primary residence or whether the sister could prove that they lived together in the apartment as their primary residence for two years before tenant permanently vacated. Landlord had argued that the “inception of the tenancy” provision applied only where tenant and a successor family member were in occupancy for less than two years, but the court disagreed with landlord’s interpretation of Rent Stabilization Code Section 2523.5(b)(1).

• M&B Lincoln Realty Corp. v. Thompson: Index No. 069897/2011, NYLJ No. 1202586448805 (Civ. Ct. Kings; 1/14/13)

Rent Overcharge: Tenant Can Vacate Settlement Agreement Due to Potential Rent Overcharge

Landlord sued to evict a deregulated tenant for nonpayment of rent. Landlord and tenant signed a settlement agreement in court. Tenant, whose monthly rent was $4,150, agreed to pay $24,900 in back rent owed over a period of time. An eviction warrant was issued but execution stayed pending payments. Tenant later asked the court to vacate the agreement after consulting an attorney and realizing there was a potential rent overcharge.

The court ruled for tenant, finding that this was grounds to reopen the case. Landlord had deregulated the rent-stabilized apartment when the rent reached $2,000 per month. But the building was receiving J-51 tax benefits at the time and New York’s highest court later established in the Roberts case that this was unlawful. In the 2012 case of 72A Realty Assoc. v. Lucas, an appellate court indicated that the deregulation of a rent-stabilized apartment in a building with a J-51 tax abatement prior to the ruling in the Roberts case, combined with a lack of clarity as to the establishment of a vacancy rent at such a level to merit luxury deregulation, warranted an examination of any available records of the rental history needed to set the proper base date rent. There was a question in this case as to whether the rent increase for tenant’s apartment from $1,018 in 1997 to $4,150 was justified, and the proof presented by landlord so far was insufficient to explain individual apartment improvements made before tenant moved in. Tenant may have a meritorious rent overcharge defense.

• Clermont York Associates LLC v. Zgodny: Index No. 73941/2012, NYLJ No. 1202586642126 (Civ. Ct. NY; 1/29/13)