Landlord v. Tenant: December 2012

Attorney's Fees: Tenant Gets Attorney's Fees in Discrimination Case

Prospective tenant, a 45-year-old disabled man with AIDS, sued a real estate broker for housing discrimination after it refused to show him any apartments. Tenant had disclosed that he had a subsidy to help pay the rent. The Fair Housing Justice Center also sent testers to the broker, with similar results. After landlord refused to comply with pretrial questioning and disclosure of documents, tenant asked the court to limit the broker's defenses and award attorney's fees for the motion related to the broker's noncompliance. The court ruled for tenant. For purposes of this case, the court would presume that from July 1, 2010, through June 30, 2011, the broker's rental listing database included instructions from multiple landlords that the broker not assist clients with governmental housing subsidies in applying for or renting apartments on behalf of those landlords. The court also awarded tenant $23,000 in attorney's fees.

•  Short v. Manhattan Apartments, Inc.: No. 11 CV 5989, 2012 WL 4829615 (SDNY; 10/11/12; Wood, DJ)

DOS Violations: Landlord Fined $2,400 for Repeated Violations

DOS issued 24 violation notices to landlord during a three-year period for placing recyclables out for collection with nonrecyclables, for failing to keep the sidewalk clean and clear of debris, for loose rubbish, for snow, and for leaving ice and dirt on the sidewalk in front of landlord's building. Landlord failed to appear for hearings and was fined $2,400. Later, an Article 81 guardian showed that landlord was legally incompetent on the hearing dates, but the fines were upheld. Landlord appealed and lost. A property owner who has consented to the appointment of a special guardian to manage her property isn't excused from the responsibilities imposed under the Sanitation Code. Landlord was still responsible for the violations.

• Sandecki: ECB App. No. 1200423 (10/25/12) [3-pg. doc.]

Landlord's Negligence: Was Landlord Responsible for Robbery in Building?

Tenant sued landlord for negligence after her apartment was robbed. She claimed that landlord had failed to fix a broken lock on the building's front door entrance despite notice. Landlord asked the court to dismiss the case without a trial. The court ruled for landlord. Tenant appealed, and the case was reopened. Tenant had testified that the front door lock was broken and that this condition existed for at least two weeks before she was robbed by intruders. Tenant claimed that she told the building super and property manager's secretary about the condition shortly before the robbery.

There were questions of fact as to whether the robbery was foreseeable, given the evidence of prior crimes in and around the building. In addition, there were questions of fact as to whether the robbers were intruders who entered the building through the defective front door and whether this was the cause of the incident. Tenant stated that the intruders were impersonating police officers and weren't residents. But tenant had opened the front door of her apartment to take out the trash when the intruders pushed her into the apartment.

• Bello v. Campus Realty, LLC: NYLJ, 10/29/12, p. 20, col. 3 (App. Div. 1 Dept.; Mazzarelli, JP, Sweeny, Renwick, Richter, Roman, JJ)

Pets: Landlord Waited Too Long to Enforce "No Pets" Lease Clause

Landlord sued to evict tenant for violating a "no pets" provision of her lease. Tenant asked the court to dismiss the case, claiming that landlord waited more than three months to enforce the lease clause. The court ruled for tenant and dismissed the case. Landlord appealed and lost. Landlord had written to tenant on Sept. 22, 2009, to warn her that she would be fined for her barking dog and stated that dogs weren't allowed at the building. So landlord clearly had knowledge of the presence of tenant's dog. Landlord then waited more than three months to bring an eviction proceeding, and therefore waived the right to object to this lease violation.

• Noonan Plaza LLC v. Rubio: NYLJ, 10/25/12, p. 25, col. 1 (App. T. 1 Dept.; Lowe III, PJ, Schoenfeld, Torres, JJ)

Primary Residence: Vermont House Wasn't Tenant's Primary Residence

Landlord sued to evict rent-stabilized tenant for nonprimary residence. The trial court and first appeals court ruled for landlord. Tenant appealed again and won. Tenant moved into the studio apartment in 1980. In 2006, landlord refused to renew tenant's lease, claiming that she lived in a Vermont cabin. Tenant had a Vermont driver's license, and her car was registered there. After Sept. 11, 2001, tenant wrote to landlord that she would be staying in Vermont temporarily due to the attacks and wanted to receive her rent bill there. Utility bills for the apartment showed unusually low electrical usage. Credit and debit card statements showed that tenant was in New York City only 45 percent of the time. But tenant had testified that she spent most of her time in the New York apartment and had a full-time job there. She said her utility bills were low because she generally ate take-out food. Other witnesses testified that tenant spent most of her time in New York. The appeals court found that the trial proof showed that tenant used the Vermont house only as a weekend/vacation home and that the case should have been dismissed.

• 409-411 Sixth Street, LLC v. Mogi: 951 N.Y.S.2d 500, NY Slip Op 06568 (App. Div. 1 Dept.; 10/2/12; Mazzarelli, JP, Friedman [dissenting], Catterson [dissenting], Renwick, Freedman, JJ)

Rent Stabilization Coverage: Former Super's Apartment Improperly Deregulated

Tenant complained of a rent overcharge. Landlord claimed that tenant was deregulated. The DHCR ruled for tenant, landlord appealed, and the court sent the case back to the DHCR for reconsideration. The DHCR looked at rent history records predating the four-year base date for rent overcharge in order to determine the apartment's rent stabilization status.

In April 2000, the apartment was listed as rent stabilized on the annual rent registration with a legal rent of $698. But at that time the apartment was temporarily exempt because it was occupied by the building super. Landlord then terminated the super's job and gave him a lease for the apartment. That lease listed the rent as $900 per month but also contained a notation that the unit was "exempt" with a "legal rent" of $2,000. The super later vacated, and tenant moved into the apartment on April 1, 2001, at a monthly rent of $1,095. The 2001 apartment registration listed tenant at this rent amount. Tenant's subsequent leases listed the apartment as exempt from rent stabilization. But the legal regulated rent never equaled or exceeded $2,000 per month, so the apartment was never deregulated. Total rent overcharges were $16,000, including triple damages.

• Kwik Realty LLC/Wishart: DHCR Adm. Rev. Docket No. AM410002RP (9/26/12) [9-pg. doc.]

Required Services: Landlord Seeks Reduction in Building Services

Landlord asked the DHCR for permission to reduce the existing hours of the building concierge, porter, and super and to modify mail delivery and garbage collection services. The DRA ruled for landlord, ordered some service substitutions, and didn't reduce tenants' rents. Tenants appealed, claiming the modifications would improperly reduce required services.

The DHCR reopened the case for further consideration. Landlord sought to reduce the 24/7 concierge service to 4 p.m.-12 a.m. five days per week, and to reduce three porter shifts providing seven-day coverage to one shift from Sunday-Thursday 11 a.m.-7 p.m. Landlord also wanted to change the super's hours from 9 a.m.-5 p.m. to 8 a.m.-4 p.m. As a result there would be periods of time when there was no staff on site, and it was unclear whether the proposed virtual security system was a sufficient substitute. Landlord also wanted to change trash collection service in the building so that tenants brought their trash to the basement instead of the stairwells on their floors. This could be a reduction in services that warranted a rent reduction. Landlord also sought to install mailboxes to replace pickup at the concierge desk. Landlord claimed that the concierge would continue to accept packages for tenants but didn't explain how this would happen with the proposed reduction in concierge hours. The DRA must consider questions raised by tenants before ruling on landlord's request.

• 134 West 58th Street: DHCR Adm. Rev. Docket No. ZI410036RT (9/4/12) [3-pg. doc.]