Landlord v. Tenant: November 2013

DOB Violations: Building Staircase Leaning Out of Plumb

DOB issued a violation notice to landlord for failing to maintain its building in a code-compliant manner. DOB's inspector reported that the staircase from the fourth floor to the roof was leaning out of plumb. The stringer, which supports stair treads and risers, was separating from the wall. Stringers weren't attached to the headers. There were cracks in walls and ceilings in the hallways, and in the wall and ceiling of a fourth-floor apartment. All stairs and platforms were leaning out of plumb. Landlord argued that it had discovered and begun repairs on the condition before the violation was issued. The ALJ ruled against landlord and fined it $1,000. Landlord appealed and lost. Building Code Section 28-301.1 required landlord to keep its building in a safe and code-compliant manner. Landlord's engineer was at the building to assess the condition 13 days before the violation was issued. But there was no documentation that landlord had begun actual repairs by that time.

• David Ellis Real Estate, LP: ECB App. No. 1200476 (8/29/13)

Major Capital Improvements: Landlord Didn't Provide Correct Tenant Mailing Addresses

Landlord applied for MCI rent hikes based on the installation of closed-circuit TV, a new water tank, new elevators, and new windows. The DRA initially ruled for landlord but then revoked the rent increases based on irregularities in a vital matter. Landlord had failed to differentiate the tenant mailing addresses with its application and didn't provide further information as the DRA requested.

Landlord appealed and lost. The premises was one two-sided building with two addresses. But landlord didn't identify the separate mailing address for the tenants at 241 West 97th Street when it filed its MCI application. As a result, all notices of landlord's MCI application were mailed by the DRA to 240 West 98th Street, and some tenants didn't receive them. Landlord claimed that, as long as the apartment number was on the envelope, mail addressed incorrectly to 240 West 98th Street was delivered to tenants with a 241 West 97th Street address. But that was beside the point. And many of the notices sent to tenants by the DRA were returned by the post office as undeliverable. Landlord didn't respond to the DRA's request for proper mailing addresses.

• 240 West 98th Street/241 West 97th Street: DHCR Adm. Rev. Docket No. WI430016RO (8/16/13)

Owner Occupancy: Landlord Can't Get Tenant's Apartment for Himself and Wife

Landlord sued to evict rent-stabilized tenant, claiming that he needed the apartment for personal use. Landlord said he and his wife wanted to move into tenant's apartment and leave his young adult daughter in their existing apartment. The daughter was about to graduate from college and presently lived with her boyfriend in landlord's apartment with landlord and his wife. Tenant claimed that landlord's termination notice was insufficient and questioned landlord's good-faith intent. At trial, landlord said that he and his wife also wanted to live closer to his older daughter, who lived in tenant's building and was about to have a baby. And tenant's apartment had access to the backyard and to the basement.

The court ruled against landlord, finding that landlord hadn't proved his good-faith intent to occupy tenant's apartment. Landlord's younger daughter didn't testify in court. Tenant showed that, in a prior eviction proceeding, landlord had recovered another apartment in his building for the older daughter but she never moved in, and landlord instead rented that apartment to a new tenant. Landlord didn't mention wanting to live near his older daughter in his termination notice. Landlord also already had access to the backyard. And the court wasn't convinced that the older daughter's employment as an RA while in college was the only reason she didn't move into the other apartment previously recovered, renovated, and rerented by landlord.

• Naroznik v. Lisowski: Index No. L&T 95426/12, NYLJ 1202619567715 (Civ. Ct. Kings; 9/6/13; McClanahan, J)

Passing on Apartments: Landlord Claims Tenant's Son Uncooperative in Pretrial Questioning

Landlord sued to evict rent-stabilized tenant's son after tenant died. The son claimed that he had lived in the apartment for 38 years before tenant died in March 2012. The court granted landlord's request to conduct pretrial questioning of the son. The son complied with only some of landlord's requests for documents. In a deposition, he stated that he worked in the apartment as a freelance and unlicensed hairdresser off the books, had never owned a car or filed taxes, and had no passport, bank accounts, telephone bills, insurance policies, or driver's license. Landlord then asked the court to strike the son's answer to the eviction petition, claiming that he hadn't cooperated with the pretrial questioning.

The court ruled against landlord. There was no proof of any willful or obstructive conduct by the son. He did provide copies of his birth certificate, Social Security card, NY State ID card, his mother's death certificate, a 2010 lease renewal form with his name added, 2009 food stamps decision, 2011 tax offset letter, and a 2011 Brooklyn Family Court Support Order. Even if some of the son's responses were questionable, they weren't enough to warrant striking his answer. The son was ordered to produce any available additional documents sought by landlord within 20 days. If he didn't do so, he wouldn't be able to present those records at trial.

• 1482 Montgomery Estates, LLC v. Brown: Index No. 04355/2012, NYLJ No. 1202618746732 (Civ. Ct. Bronx; 9/10/13)

Procedure--Court: Landlord Didn't Properly Present Process Server's GPS Records

Landlord sued to evict unregulated tenant after tenant's lease expired. Tenant claimed that landlord failed to serve the court papers properly and therefore the court had no jurisdiction over her. The court held a traverse hearing and dismissed the case. Landlord's process server testified that he made two attempts at service, one on Dec. 10, 2012, at 7:28 p.m. and another on Dec. 11, 2012, at 11:05 a.m. He said that no one responded either time and that he then made conspicuous place service. The process server's testimony was consistent with his logbook and with his affidavit of service.

However, the process server's logbook contained some inconsistent entries. For one thing, it stated that he attempted service in midtown Manhattan six minutes after an attempted service on Wall Street. This didn't seem physically possible. Tenant also testified and gave a detailed account of being at home on the dates and times that delivery was supposedly attempted. Although tenant ultimately received the court papers, the issue is whether they were properly delivered. Landlord pointed out that the process server's GPS records showed that he was actually at the building at the times claimed. The GPS requirement is relatively new under the law, and landlord didn't present testimony by the independent party that must maintain these records. The process server himself can't present this proof. The case was dismissed without prejudice. Landlord could recommence the proceeding with proper service.

• 505 West 143rd Street HDFC v. Coppedge: Index No. 090627/2012, NYLJ NO. 1202620088002 (Civ. Ct. NY; 9/24/13)

Rent Overcharge: Landlord Fraudulently Registered Prior Rent and Nonexistent Tenant

Tenant moved into a rent-stabilized apartment in November 2003 at a rent of $1,800 per month. In December 2003, landlord registered the apartment with the DHCR, stating that a prior tenant paid $1,000 per month. The apartment also was registered for a previous tenant at $475 per month. Landlord sued to evict tenant for nonpayment in 2009. Tenant claimed harassment, breach of the warranty of habitability, and rent overcharge. In that case, the court found that landlord had fraudulently registered prior tenant, who didn't exist, and claimed nonexistent improvements to the apartment to inflate the rent. The court also found that the base rent was affected by the fraud. But because tenant didn't prove the amount of the legal regulated rent, the overcharge claim was dismissed without prejudice.

Tenant then sued landlord for rent overcharge and sought triple damages and attorney's fees. Tenant also claimed that the corporate landlord abused the corporate form by intermingling assets and asked the court to pierce the corporate veil. The court ruled for tenant without a trial.

Landlord appealed and lost. Since a court had already ruled that there was fraud, landlord couldn't now claim that there was none. Because there was fraud, the four-year rule didn't apply to tenant's new overcharge claim. And there was proof that landlord intermingled his corporate funds with personal funds. Landlord also failed to prove that the overcharge wasn't willful, so the court properly awarded triple damages.

• Conason v. Megan Holding LLC: 2013 NY Slip Op 05956, 2013 WL 5311526 (App. Div. 1 Dept.; 9/24/13)

Tenant Nuisances: Tenant's Yelling Didn't Create Nuisance

Landlord sued to evict tenant for creating a nuisance by objectionable conduct. Landlord and tenant signed a settlement agreement in court that placed tenant on probation for five years. Tenant agreed not to shout, scream, or yell in his apartment or the public areas of the building; not to jump up and down in his apartment; and to refrain from other similar conduct. Under the agreement, landlord could go back to court to seek a judgment and eviction warrant if it claimed that tenant violated the agreement, for a hearing on whether tenant engaged in prohibited conduct to an extent that constitutes a nuisance.

Landlord did go back to court, claiming that tenant violated the agreement. Tenant's next-door neighbor testified that he heard tenant through their common wall on a regular basis. During a one-month period, the neighbor reported that he heard tenant 22 times, mostly during the day. Tenant was shouting at himself, criticizing himself, calling himself names, and, on a few occasions, saying that he would kill himself. The building super also testified that he heard tenant shouting at himself inside his apartment 15 or 20 times over several months. Tenant testified that he had lived in the apartment for 42 years, worked at home a few days a week as a freelance editor, wasn't suicidal, but sometimes yelled at himself when frustrated. Tenant was diagnosed with Asperger's Disorder and was a client of Adult Protective Services.

The court ruled against landlord. Tenant's behavior didn't rise to the level of nuisance. Apartment dwellers must expect to put up with a certain level of noise, and there was no proof of any disturbing conduct occurring outside of tenant's apartment. Tenant didn't confront others or berate himself in public spaces.

• JSB Properties v. Cohen: Index No. 58678/11, NYLJ No. 1202619904667 (Civ. Ct. NY; 9/20/13)