Landlord v. Tenant: November 2014

Discrimination: Tenant Claims Therapy Dog Needed as Treatment for Disability

Landlord sued to evict tenant who kept a dog in violation of his lease and didn't remove the dog after landlord sent tenant a notice to cure. Tenant then complained to the State Division of Human Rights (DHR), claiming discrimination. Tenant argued that the pet was a therapy dog needed to relieve tenant's depression. The DHR later sued landlord to recover damages based on unlawful discrimination. Landlord asked the court to bar DHR from presenting testimony or documents asserting that tenant should be allowed to keep the dog as a reasonable accommodation to his disability.

The court ruled for landlord. Tenant's psychotherapist wrote varying opinions over time as to tenant's diagnosis. At one point the therapist stated that, while tenant was no longer depressed, he needed the dog to prevent a recurrence of the symptoms. The court agreed with landlord that these statements were too speculative to prove that tenant was suffering from a disability that required a reasonable accommodation.

• New York State Division of Human Rights v. 111 East 88th Partners: Index No. 402894-2007, NYLJ No. 1202670317446 (Sup. Ct. NY; 9/5/14)

Fire Department Violations: Penalties Reduced for Prompt Correction of Fire System Violations

The Fire Department issued a violation notice to landlord for failing to maintain required signs and postings, painted pipes and valves, and combination fire protection system. Landlord claimed all violations had been corrected. The ALJ ruled for landlord in part and imposed reduced penalties totaling $1,075. Landlord appealed and lost. Landlord claimed that there should be no penalties because the three violations were corrected. But correcting violations after the violation notice is issued isn't grounds for complete dismissal of the violations. Since the violations were corrected before the initial hearing date, the ALJ properly assessed mitigated penalties.

• 101 Ludlow LLC: ECB App. No. 1400666 (8/28/14)

Landlord’s Negligence: Landlord Not Responsible for One Tenant's Attack on Another

Tenant of a rented room sued landlord for negligence after another tenant attacked him in the building. Landlord asked the court to dismiss the case without a trial. The court ruled for landlord. Tenant argued that landlord was aware of the other tenant's violent tendencies, history of harassment, and criminal record, and that he had complained to landlord previously of the other tenant's behavior. But landlord wasn't responsible to protect one tenant from the criminal acts of another tenant. That would place an unreasonable burden on landlord over the acts of a third party over whom he had no control. Even if landlord evicted the other tenant, that wouldn't have necessarily prevented the incident from occurring.

• Palmitesta v. Bonifazio: Index No. 602814/2014, NYLJ No. 1202668581902 (Sup. Ct. Nassau; 8/21/14)

Major Capital Improvements: No MCI Rent Hike for Temporary Oil Tank

Landlord applied for MCI rent hikes based on the installation of a fuel oil tank. The DRA ruled for landlord in part, but disallowed any increase for a mobilization fee, filing fees, and installation of a temporary oil tank while the work was being performed. Landlord appealed and won, in part. DHCR policy bars any MCI increase for filing fees and temporary oil tanks. But DHCR policy does allow mobilization costs included in a contract for the work. So these costs were added to landlord's total approved MCI costs.

• 38-89 50th Street: DHCR Adm. Rev. Docket Nos. YC110032RO, YE110031RT (8/29/14)

Major Capital Improvements: Landlord Can Collect MCI Increase After J-51 Benefits Expire

Rent-stabilized tenant complained of rent overcharge because landlord didn't notify tenant in all his leases that an approved MCI rent hike would be restored after it was temporarily reduced by landlord's receipt of J-51 tax benefits. The DRA ruled for tenant. Landlord appealed and won. The building was a class A multiple dwelling built in 1951 that was subject to rent stabilization whether or not landlord received J-51 tax benefits. The only requirement for restoring MCI increase billing after expiration of the J-51 benefits was for landlord to file a notice with the DHCR. Landlord filed this notice, and wasn't required to provide any additional notice to tenant. The rent overcharge finding was revoked.

• Beach Haven Apartments Associates LLC: DHCR Adm. Rev. Docket No. AR210022RO (8/28/14)

Major Capital Improvements: No MCI Rent Hike Where Some Windows Not Replaced

The DRA granted landlord's application for MCI rent hikes based on the installation of apartment windows. Tenants appealed, claiming that not all of the apartment windows were replaced. The DHCR ruled for tenants. In order to qualify as an MCI, all apartment windows must be replaced unless new windows had been installed in certain apartments earlier or certain windows had special characteristics clearly of a distinct or different nature. In this case, DHCR inspection showed that landlord had not replaced old bathroom windows in the A and C lines of the building. The MCI rent hikes therefore were revoked entirely.

• 151 East 80th Street: DHCR Adm. Rev. Docket No. XL430054RT (8/6/14)

Major Capital Improvements: MCI Granted for CCTV Security System

Landlord applied for MCI rent hikes based on the installation of a new CCTV security system, four wooden entrance doors, new windows and lintels, a sidewalk bridge, and engineer fees in connection with the window installation. The DRA ruled for landlord in part but disallowed the cost of the entrance doors and consulting engineer fees. Tenants appealed, claiming that the useful life of the prior security camera system hadn't expired. Tenants also claimed that the prior landlord had previously replaced windows in many renovated apartments.

The DHCR ruled against tenants. The prior security system didn't have cameras located at every building entrance, and didn't have cameras that were monitored by a working monitor on a continuous basis. The new CCTV security system therefore wasn't a mere replacement of the prior security system. Landlord also installed 607 new aluminum windows and did so in each of the building's apartments. Tenants presented no proof of prior window installations and no prior MCI increase was granted for windows.

• 330 East 63rd Street: DHCR Adm. Rev. Docket No. ZA410049RT (8/15/14)

Rent Overcharge: Tenant Rejected Landlord's Refund While Complaint Pending

Rent-stabilized tenant complained of rent overcharge. The DRA ruled for tenant and ordered landlord to refund over $32,000, including triple damages. Landlord appealed, claiming that the overcharge wasn't willful. The DHCR ruled for landlord and revoked the triple damages. Landlord had issued three checks to tenant to cover the overcharge refund, with interest, but tenant refused to accept them. The fact that landlord didn't tender the refund within the initial time afforded to answer the complaint didn't matter in this case. Landlord made a good faith attempt to refund the full amount including interest before the DRA's order was issued. Plus, the overcharge resulted from the piercing of the four-year rule to give effect to a rent reduction order issued in 1987. And the DRA's notice to landlord regarding the imposition of triple damages didn't refer to the 1987 rent reduction order.

• Seashore Management: DHCR Adm. Rev. Docket No. BR210039RO (8/6/14)

Rent Overcharge: Triple Damages Revoked Due to Overcharge Refund

Rent-stabilized tenant complained of rent overcharge. The DRA ruled for tenant and ordered landlord to refund $60,000, including triple damages. Landlord appealed that portion of the order that assessed triple damages. Landlord pointed out that it had sent tenant a refund check for $24,000 before the DRA issued its order, which covered the overcharge plus interest. And the overcharge was the result only of a DHCR rent reduction order that had been issued six years before tenant filed her complaint. The DHCR ruled for landlord and revoked the triple damages.

• Monte Carlo, LLC: DHCR Adm. Rev. Docket No. AQ710016RO (8/15/14)

Rent Stabilization Coverage: Tenant Didn't Receive J-51 Lease Riders

Landlord applied for high-rent/high-income deregulation of rent-stabilized tenant's apartment in 2010. Tenant answered the DRA's notice of the application by stating that he was exempt from luxury deregulation because his building was receiving J-51 tax benefits. The DRA sent tenant several follow-up notices, again requesting income certification information. Tenant again stated only that he wasn't subject to deregulation. The DRA ruled for landlord based on tenant's failure to respond to its notices.

Tenant appealed and won. The building was subject to rent stabilization only as a result of receiving J-51 benefits and was not otherwise rent stabilized. Tenant's initial rent was over $2,000, and the J-51 benefits had expired by the time that landlord sought deregulation of tenant's apartment. However, tenant's leases, including the renewal lease in effect at the time that the J-51 benefits expired, didn't contain a notice provision required under Rent Stabilization Law Section 26-504(c) advising tenant that he was subject to deregulation when the J-51 benefits expired.

• Resnicow: DHCR Adm. Rev. Docket No. BU410032RT (8/5/14)