Landlord v. Tenant: April 2016

Landlord’s Negligence: Landlord Not Responsible for Scalding Shower Water

Tenant sued landlord and its heating service provider following injuries suffered when she was scalded by hot water when showering. Both landlord and the heating service provider asked the court to dismiss the case without a trial. The court dismissed the case against the heating service provider but not against landlord. Landlord appealed and won. Landlord showed that the building’s boiler system was regularly inspected, and there was no prior notice of fluctuating water temperatures. Tenant’s reliance on the 1968 Building Code and 2008 Plumbing Code was misplaced since the building wasn’t subject to those codes. There also was no support for tenant’s claim that the bathroom was negligently designed. There was no proof of negligence by the heating service provider, which was no under contract to maintain the boiler, and there had been no boiler issues for over a month after the company did an annual inspection.

• Frassinelli v. 120 East 73rd Street Corp.: 2016 NY Slip Op 00899, 2016 WL 484109 (App. Div 1 Dept.; 2/9/16)

Primary Residence: Tenant Lived in Other Apartment

Landlord sued to evict rent-stabilized tenant for nonprimary residence. The court ruled for landlord after a trial. Landlord showed that tenant listed another address on his driver’s license, car registration, and mortgage documents. Tenant also hadn’t occupied the apartment for actual living purposes for a year before landlord started the eviction proceeding. Tenant’s testimony about where he was living since 2013 wasn’t credible. Tenant had substantial means and owned three homes in Queens. Tenant claimed that landlord hadn’t made repairs to the apartment and therefore he couldn’t live there but presented no proof that he had notified landlord or requested repairs. Tenant himself was a landlord and complained for the first time about apartment conditions only after landlord started the eviction proceeding. The electric use at the apartment was low since at least 2010, and tenant listed a Queens address on his driver’s license since 2004. Tenant also acknowledged that he still wasn’t living in the apartment.

• Fros Property LLC v. Lam: 50 Misc.3d 1219(A), 2016 NY Slip Op 50179(U) (Civ. Ct. NY; 2/19/16)

Rent Overcharge: Court Orders DHCR to Reconsider Landlord’s Proof of IAIs

Rent-stabilized tenant complained of rent overcharge. The DRA ruled for tenant and ordered landlord to refund $20,650, including interest. Landlord appealed and won, in part. The DHCR found that most of landlord’s claimed individual apartment improvements (IAIs) were instead repair and maintenance items, but that the DRA hadn’t properly figured Rent Guidelines Board Order #41 in calculating tenant’ rent. This reduced the total overcharge by $1,000. Landlord then filed an Article 78 court appeal, claiming that the DHCR unreasonably disallowed its IAI costs.

The court ruled for landlord and ordered the DHCR to reconsider and to inspect the apartment. Landlord had submitted cancelled checks proving payment of $15,000 to a contractor plus proof of other payment for electrical upgrading, cabinets, and flooring materials. The court found the DHCR’s decision was irrational and that it was “arbitrary and capricious” for the DHCR to reject landlord’s renovation costs without justification. The DHCR ruled that, while sending the case back to the DRA for review, the rent set in the PAR order would remain in effect, but any refund was stayed.

• Chrismar Equities Corp.: DHCR Admin. Rev. Docket No. DX110007RP (1/12/16)