Landlord v. Tenant: October 2013

Eviction: Court Vacates Settlement After Landlord Renews Tenant’s Lease

Landlord sued to evict elderly rent-stabilized tenant in 2009, claiming that tenant refused access to the apartment to exterminate bedbugs. Landlord and tenant signed a settlement agreement in court. Tenant agreed to give access but also agreed to move out in 2012. The agreement gave landlord a judgment of possession and an eviction warrant was issued. In 2012, tenant asked the court to vacate the settlement agreement. He was now represented by an attorney for the first time. Landlord argued that the settlement agreement was binding.

The court ruled for tenant. Tenant signed the settlement agreement on the initial court date and didn’t understand that he had defenses to the eviction petition. Tenant paid a low rent and had a low income. He had lived in the apartment for 33 years. And, in 2011, landlord had sent tenant a rent-stabilized renewal lease, which tenant signed and sent back. Landlord then sent tenant a fully executed renewal lease for a two-year period. Landlord also accepted increased rent payments from tenant under the terms of the renewal lease. The settlement agreement, judgment, and warrant were vacated.

• Wilson Prop. Corp. v. Burda: Index No. L&T 098520/09, NYLJ No. 1202613858669

Fire Department Violations: Landlord Didn’t Schedule Five-Year Trip Test

The Fire Department issued a violation notice to landlord for failing to arrange for a five-year trip test of its dry sprinkler system. This was a repeat violation. Landlord claimed that he didn’t receive the notice in a timely manner and therefore missed the initial hearing date. Landlord had now scheduled the sprinkler test. The ALJ ruled against landlord and fined it $1,500. Landlord appealed and lost. The Fire Department made reasonable attempts to deliver the notice at the building and by regular mail. The Fire Department inspector had affixed the notice to a building wall after finding no authorized representative of landlord at the building. And because the violation was a repeat offense, no cure was available to avoid imposition of the penalty for the violation.

• Kriegel’s Product Realty Inc.: ECB App. No. 1300472 (7/25/13)

Rent: Landlord Charged Excessive Late Rent Fees

Landlord sued to evict tenant, who failed to appear on an adjourned court date. The court ruled for landlord based on tenant’s default, granting a judgment of possession and for unpaid rent. An eviction warrant was issued. Tenant later returned and asked the court to vacate the default and dismiss the case. Tenant claimed that he missed the court date because “he had a lot going on in his life and forgot.” Tenant didn’t deny receipt of a timely 60-day notice to quit or that he failed to pay rent. Tenant merely disagreed with the amount of the money judgment entered on default, claiming that certain payments had been made. Tenant also questioned the attorney verification of landlord’s eviction petition.

The court ruled against tenant in part, finding no reasonable excuse for tenant’s default and no meritorious defense to landlord’s possession. However, while Real Property Actions and Proceedings Law Section 741 did allow attorney verifications of court papers in eviction proceedings, the wording of the verification required an inquest on the claimed amount due. After holding an inquest, the court found that the late fee charges of $310 per month claimed by landlord were excessive, disproportionate to the rent owed, and void. The court did award landlord attorney’s fees of $750 and costs in the amount of $197.

• VP Village Park, LLC v. Victor: 40 Misc.3d 1233(A), 2013 NY Slip Op 51418(U)

Rent: Tenant Not Responsible for Unsubsidized Portion of Rent After Subsidy Terminated

Landlord sued to evict rent-stabilized tenant for nonpayment of rent. Landlord and tenant signed a settlement agreement, agreeing that she owed $5,600. Tenant later obtained an attorney and asked the court to vacate the settlement stipulation. The court ruled for tenant, vacated the judgment and warrant, and dismissed the case. Tenant had received a Section 8 subsidy, which was terminated in December 2010 before landlord brought the nonpayment proceeding. In general, absent a showing by landlord of a new agreement, a Section 8 tenant doesn’t become liable for the unsubsidized portion of her rent even after the termination of the subsidy. Landlord argued that tenant’s August 2012 renewal lease made her responsible for payment of the full lease rent. But this can’t be considered a “new agreement.” The Section 8 subsidy was a term and condition of tenant’s rent-stabilized lease that had to be incorporated into any renewal lease. The lower court properly exercised discretion by vacating the settlement agreement that required tenant to assume responsibility for payment of rent that she wasn’t required to pay under controlling case law.

• 1466 Holding Co. v. Sanchez: 40 Misc.3d 138(A), 2013 NY Slip Op 51404(U) (App. T. 1 Dept.; 8/27/13)

Rent Increase Denied: DHCR Limits Amount of 1/40th Rent Increase to Tenant’s MCR

The DRA increased rent-controlled tenant’s MCR by $36 per month based on the installation of a new stove, refrigerator, and fireproof door. The DRA allowed an additional rent increase of $225 per month based on 50 percent of the claimed cost for other improvements. Tenant’s new monthly rent was $711. Landlord appealed and lost. Landlord argued that tenant had agreed to major renovation work in her apartment. Under rent control, landlord was entitled to a 1/40th rent increase to cover the full cost of the improvements made to the apartment. But generally, this involved painting or installation of a few appliances. And tenant thought that her Section 8 voucher would pay for any rent increase. It would be unfair to increase tenant’s rent by the full amount that could result from the work performed. And landlord knew or should have known that tenant wouldn’t consent to such a substantial increase to her $312 rent and wouldn’t willingly consent to a $650 rent increase.

• 24-28 Saint Nicholas LLC: DHCR Adm. Rev. Docket No. BN420012RO (7/31/13)

Rent Overcharge: Landlord Didn’t Commit Fraud

Tenant complained of a rent overcharge. Landlord claimed that the building had fewer than six apartments and therefore wasn’t rent stabilized. But a separate court ruling found that the building had more than six units and therefore was rent stabilized. The DRA ruled for tenant, who had moved into the basement apartment in 2005. The overcharge started in 2007 when landlord increased tenant’s rent without giving him a lease. The DRA ordered landlord to pay tenant $9,000, including triple damages. Tenant appealed and lost. He pointed out that he had to go to court to prove rent-stabilization status, that he never had a lease, and that the apartment was never registered. Tenant claimed that landlord committed fraud by hiding the building’s rent-stabilization status and that the DHCR should apply the default formula in calculating his legal rent.

In this case, the DHCR found no fraud. Landlord believed that the building was unregulated because it contained fewer than six units. Her belief may have been unreasonable, thus warranting triple damages, but there were some facts to support it. The DHCR didn’t find any fraud on landlord’s part and upheld the four-year look-back period for calculating tenant’s overcharge.

• Kulitsa: DHCR Adm. Rev. Docket No. ZC410037RT (6/14/13)