Landlord v. Tenant: November 2012

Discrimination: Preliminary Injunction to Reinstall Building Ramps Denied

Disabled tenants sued landlord for violations of the federal Fair Housing Act and New York State Fire Prevention and Building Code. They claimed that landlord improperly removed wheelchair ramps that tenants used at the building and therefore deprived them of reasonable and safe access to their apartments. They asked the court to direct landlord to reinstall the ramps while their case was pending.

The court ruled against tenants. There was no irreparable harm, and tenants were unlikely to win the case. Landlord had removed ramps from rear patios to a grassy area behind the building during a renovation project that would remove ramps from all first-floor patios and enclose the patios. There was no discrimination under the Fair Housing Act because the presence of the ramps from their rear patios to the grass area wasn't a reasonable modification necessary to provide tenants with equal opportunities to use and enjoy their housing. No residents would have access to the grassy area from their apartments in the future. Tenants also had unencumbered access to the grassy area by a sidewalk adjacent to the area by which all other tenants obtained access. There was no building or fire code violation because the proposed modification didn't affect access to the building.

• Little v. Landsman Development Corporation: No. 12-CV-6386T, 2012 WL 3862448 (WDNY; 9/5/12)

DOB Violations: Partial Transient Use of Building Creates Violations

DOB issued violation notices to landlord based on its failure to provide an automatic sprinkler system, failure to provide a fire alarm system, failure to provide exit signs, failure to illuminate exits, and failure to have ground-floor entrance doors swing in the direction of egress travel. The violations were all based on a finding that the building was occupied for transient use. Landlord claimed that the building was a Class "A" multiple dwelling with 38 apartments, and that only two tenants illegally sublet their apartments for transient use without landlord's knowledge or consent. The ALJ ruled for landlord and dismissed the violations since they applied only to transient hotels, not apartment buildings.

DOB appealed and won. As DOB argued, partial transient occupancy required landlord to comply with the cited exit and fire protection laws. In 2009, the Multiple Dwelling Law was modified to prevent the transient use of even a minority of dwelling units in a building classified as a Class "A" multiple dwelling. So DOB didn't have to prove that the entire building was being occupied for transient use. The law was changed to prevent the illegal use of apartment buildings as hotels. It didn't matter that landlord didn't know or that the transient use was corrected after the violations were issued. Landlord was fined $7,400.

• Mige Associates II, LP: ECB App. No. 1200383 (8/30/12)

Renewal Leases: Four-Year Rule Applied

Landlord sued to evict rent-stabilized tenant based on tenant's failure to renew her lease. Tenant claimed that the renewal was unlawful and asked the court to dismiss the case. The court ruled for tenant but denied any award of attorney's fees.

Tenant had moved into the apartment in 2005 under a two-year unregulated lease at $1,440 per month. The lease was renewed in 2007 and 2009. In 2010, tenant joined a proposed class action claiming that her apartment was unlawfully deregulated while the building received J-51 tax benefits. That case was dismissed, and tenant's appeal was pending. But landlord acknowledged that the apartment was rent stabilized and offered tenant a rent-stabilized lease commencing Oct. 1, 2011, listing a stabilized rent of $2,799 for two years, $2,707 for one year, and preferential rents of $1,780 or $1,720 respectively. The offered renewal also contained a J-51 rent rider. Tenant refused to sign the renewal, claiming that the offered rent wasn't the legal rent and the J-51 rider was improper.

The court calculated the lawful rent by using the rent paid four years before tenant filed her class action claim as the base date. Landlord therefore should have offered tenant a renewal lease at $1,731 for a two-year renewal and $1,674 for a one-year renewal. The court ruled that the renewal lease was offered at an unlawful rent, but that the renewal lease itself was not unlawful for including a tax abatement rider that wasn't included in the initial lease, and landlord didn't act in bad faith in offering the renewal lease at an unlawful rent. The court also denied attorney's fees since tenant could have signed the improper renewal offer and filed a rent overcharge complaint.

• Sixth Lenox Terrace Associates v. Schneider: 2012 NY Slip Op 22279, 2012 WL 4451003 (Civ. Ct. NY; 9/25/12)

Warranty of Habitability: No Rent Abatement for Period Before Tenants Notified Landlord of Bedbug Condition

Two former co-tenants sued landlord in small claims court for the return of their security deposits and damage to their property resulting from a bedbug condition. Landlord in turn claimed that tenants owed back rent. The court ruled against landlord, and awarded tenants a total of $4,000. Landlord appealed and won, in part. Tenants proved the existence of a bedbug condition that made the apartment uninhabitable as of May 23, 2010, causing constructive eviction. Tenants therefore weren't responsible for rent payment starting June 1, 2010, and were each entitled to the return of their respective $625 security deposits. But tenants weren't entitled to damages for the breach of warranty of habitability equal to rent paid for the last nine days of May 2010 because they didn't notify landlord of the condition until May 23 and landlord was entitled to a reasonable amount of time to correct the condition. There was no proof that landlord was on notice of the condition before May 23.

• Gawad v. Aviad: 2012 NY Slip Op 51851(U), 2012 WL 4447437 (App. T. 2 Dept.; 9/19/12)