Landlord v. Tenant: August 2016

Landlord’s Negligence: Landlord Not Responsible for Shooting of Two Tenants in Vestibule

Tenant and the family of another tenant sued landlord for negligence after they were shot in the building’s public vestibule. One of the tenants died. Landlord asked the court to dismiss the case without a trial, claiming that it had no duty to protect tenants. The court ruled against landlord, who appealed and won. There was no issue of fact as to whether the shootings were foreseeable and landlord’s reduction of security officers at the building wasn’t the cause of residents’ injuries. There were 200 buildings in the complex and 24 reports of gunshots fired at the complex. This didn’t raise an issue as to whether the shootings were foreseeable. None of the reported shootings occurred in the vicinity of tenants’ building. Tenants also were specifically targeted by the shooters.

• Wong v. Riverbay Corporation: 2016 NY Slip Op 03585, 2016 WL 2353696 (App. Div. 1 Dept.; 5/5/16)

MCIs: Backflow Prevention Device Qualifies as Major Capital Improvement

Landlord applied for MCI rent hikes based on the installation of a backflow preventer. The DRA ruled for landlord. Tenants appealed and lost. Tenants claimed that a backflow prevention device didn’t qualify as an MCI. But installation of backflow preventers when required by law constitute MCIs. According to Rent Stabilization Code Section 2522.4(a)(2)(iii), a building-wide improvement that’s necessary to comply with a specific requirement of law qualifies for an MCI rent increase. And NYC and NY State regulation and code required landlord to install the backflow device.

• 166 Second Avenue Tenants’ Association: DHCR Adm. Rev. Docket No. CW430024RT (4/27/16)

Primary Residence: Tenants Used Second Apartment for Storage, Not as Primary Residence

Landlord sued to evict rent-stabilized tenants based on nonprimary residence. The trial court ruled against landlord, who appealed and won. Video surveillance showed that tenants rarely entered the apartment. Video footage showed that one tenant entered the apartment for a total of 39 hours in a two-year period; the other tenant entered the apartment on 10 different days during the same two years. Neither tenant ever slept in the apartment. Landlord also showed that the apartment was used by tenants essentially for storage and convenience, there was little use of electricity in the apartment, tenants primarily resided in a second apartment that they rented in the same building, and the apartment had boxes piled up to six feet high with a narrow pathway through the pile, blocking the kitchen, bathroom, and window area.

• 135 W. 13, LLC v. Stollerman: 2016 NY Slip Op. 26140, 2016 WL 1762319 (App. T. 1 Dept.; 5/3/16)

Rent Overcharge: Legal Rent Increase Waived

Rent-stabilized tenant complained of rent overcharge. The DRA ruled for tenant and ordered landlord to refund $14,944, including interest. Landlord appealed and lost. For the lease period commencing on June 1, 2010, landlord was entitled to charge tenant a vacancy rent increase of 17 percent, which would have made the legal rent $2,454. But landlord instead charged tenant $2,400 without preserving the lesser rent as a preferential rent. The base rent therefore was $2,400. It is well settled that when a landlord has failed to collect the maximum permissible increase, landlord may not retroactively recalculate tenants rent based on the maximum permissible amount that had been waived. In addition, landlord failed to register the apartment rent for 2012, 2013, and 2014. Therefore, the DRA properly froze tenant’s rent until the missing registrations are filed.

• Amwest Realty Assoc. LLC: DHCR Adm. Rev. Docket No. DX410019RO (4/27/16)