Landlord v. Tenant: May 2013

Attorney's Fees: No Attorney’s Fees for Landlord After Harassment Claim Dismissed

Tenant sued landlord in housing court for harassment and asked for a restraining order. The court ruled against tenant after a trial and dismissed the case. Landlord then asked the court for attorney’s fees. The court ruled against landlord. Under NYC Housing Maintenance Code 27-2115(m)(3), a court can award a landlord attorney’s fees in a harassment case if the claim was frivolous. While that provision doesn’t define “frivolous,” other laws state that a case is frivolous if it is completely without merit, is claimed primarily to delay resolution of a conflict, or asserts materially false statements. In this case, tenant didn’t intend to harass or annoy landlord but actually believed that landlord had engaged in a prior pattern of harassing conduct through prior nonpayment proceedings that were decided in landlord’s favor. There also was no pattern of prior actions by tenant against landlord.

• Huss v. Fried: Index No. HP6370/2012, NYLJ No. 1202593427041 (Civ. Ct. Kings; 2/28/13)

DOS Violations: Landlord Fined for Uncovered Trash Receptacles

DOS issued a violation notice to landlord for uncovered receptacles. The DOS inspector noted four cans uncovered, exposing household waste likely to be scattered about. Landlord claimed that the 30-unit building had a live-in super and that eight metal garbage cans abutted a fence in front of the building. These cans all had lids that were chained to the fence. Landlord stated that tenants brought their trash down to the cans and that when the cans became full, the super removed the trash and placed it in large black trash bags that were stored against the building until collection time. Landlord also testified that the super and his wife swept the sidewalk four times a day and checked to make sure the cans were covered at those times. Landlord suspected that pedestrians searching for bottles took the lids off the cans. The ALJ believed landlord, but still held him responsible and fined him $100.

Landlord appealed and lost. Landlord’s efforts to keep the cans covered were insufficient since the DOS inspector found them uncovered and landlord admitted that passersby opened the cans. Landlord must take additional steps, such as purchasing cans with tamper-resistant lids, having the super check more frequently, or storing garbage in tightly sealed plastic garbage bags.

• 455 East 92nd Realty Associates: ECB App. No. 1201241 (2/28/13)

Hotels: City Can Block Short-Term Stays at Apartment Buildings Pending Lawsuit

The City of New York sued landlords for deceptive trade practices under the consumer protection law, and for public nuisance. The city claimed that landlords operated a multi-tiered business that advertised, booked, operated, and maintained transient accommodations for short-term stays of less than 30 days in 50 or more Class A multiple dwellings. The city sought a preliminary injunction against landlords while the case was pending.

The court ruled for the city, which showed a likelihood of success on the merits of the case, irreparable injury absent the injunction, and a balancing of the equities that favored the city’s position. Landlord’s advertising touted short-term stays but didn’t mention that this use of apartment dwellings as transient hotels was illegal and created fire safety hazards in violation of both the NYC Housing Maintenance and Fire Codes. There also was likely a public nuisance because landlords’ use depleted the city’s stock of affordable, long-term housing while creating security risks and quality-of-life problems at the buildings.

• City of New York v. Smart Apartments LLC: Index No. 402255/12, NYLJ No. 1202592998859 (Sup. Ct. NY; 2/13/13)

Landlord's Negligence: Tenant Claims Emotional Distress Due to Bedbugs

Tenant sued landlord for personal injury and emotional distress, claiming that her apartment was infested with bedbugs and that she had been bitten. The court denied landlord’s request to dismiss the case without a trial and dismissed some of tenant’s claims before trial. Tenant appealed and lost. The lack of medical treatment, while significant when determining damages, didn’t require dismissal outright of tenant’s claim for personal injuries. But tenant didn’t show that landlord’s failure to maintain the property in a reasonably safe condition unreasonably endangered her physical safety or caused her to fear for her safety so as to support a claim for negligent infliction of emotional distress. And landlord’s leasing of the apartment to tenant while aware of a bedbug history didn’t rise to the level of outrageous conduct required to sustain a claim for infliction of emotional distress, especially since at the time the case was started landlord had no legal obligation to notify prospective tenants of the bedbug history at the building. There also were no grounds for tenant’s claim that landlord was “morally culpable” and subject to punitive damages.

• Bour v. 259 Bleecker LLC: 104 A.D.3d 454, 2013 NY Slip Op 01488 (App. Div. 1 Dept; 3/12/13)

Lead Paint: Was Former Tenant’s Son Injured by Lead Paint?

Plaintiff, the son of a former tenant, sued landlord for damages arising from his exposure to lead paint as a child. Landlord asked the court to dismiss the case without a trial. The court ruled for landlord. The child appealed and won, in part. The case was reopened. There were questions of fact as to whether landlord had constructive notice of the lead paint hazard in the apartment, requiring a trial. Still, the appeals court held that the statutory warranty of habitability didn’t create a presumption that landlord had notice of the claimed dangerous condition. And plaintiff wasn’t entitled to reopen the judgment in landlord’s favor based on newly discovered documents in which landlord acknowledged at the time it purchased the building that it was aware that the building contained or may contain lead-based paint, since the document didn’t state that landlord knew that there was peeling or chipping paint in tenant’s apartment where child lived.

• Watson v. Priore: 104 A.D.3d 1304, 2013 NY Slip Op 01961 (App. Div. 4 Dept.; 3/22/13)