Landlord v. Tenant: September 2014

Alterations to Apartments: Tenant Renovated Bathroom Without Landlord’s Permission

Landlord sued to evict rent-stabilized tenant for creating a nuisance and for violating his lease by performing unauthorized alterations. Landlord claimed that tenant demolished the apartment’s bathroom and removed walls, the toilet, the medicine cabinet, and sink fixtures. Tenant claimed that landlord didn’t respond to his request for repairs in 2008, so he did the repairs himself with the help of landlord’s handyman in 2013. At trial, landlord’s super testified that when he discovered the work in progress after returning from vacation, he told tenant to stop. Landlord’s managing agent testified that tenant never requested bathroom repairs. Landlord’s architect testified that removal of structural or fire walls in the apartment could require building permits.

The court ruled for landlord. Although he didn’t create a nuisance, tenant did violate his lease. Tenant therefore was given 10 days to cure the conditions and restore the bathroom to its prior condition in order to avoid eviction.

• 201 West 54th Street Buyer LLC v. Rodin: 44 Misc.2d 1217(A), 2014 NY Slip Op 51167(U) (Civ. Ct. NY; 7/31/14)

DOB Violations: Landlord Operated Apartment Building as Transient Hotel

DOB issued a violation notice to landlord for having an occupancy contrary to that allowed by DOB records. DOB’s inspector noted that landlord had combined 2690 Broadway with 2688 Broadway and that it was occupied as a transient hotel. Landlord claimed that there was no violation. The building didn’t have a Certificate of Occupancy. But HPD I-cards and Schedule “A” forms attached to two Alt-1 applications showed that 2690 Broadway was authorized as a Class A permanent residence apartment house. At the time DOB issued the violation notice, its inspector observed a guest registry at the front desk and visited 15 units in the two buildings. Guests he interviewed said that they had stayed anywhere between a few days and a few weeks. The ALJ ruled against landlord and fined him $2,900.

Landlord appealed and lost. Landlord argued that DOB failed to prove transient use of the building. Landlord claimed for the first time on appeal that there was no front desk at 2690 Broadway because the first floor was occupied by a Starbucks restaurant and that there was no door from there providing access to the upper floors of the building. But DOB’s inspector testified credibly and presented documentary evidence that the building was classified as a Class A apartment building and improperly occupied as a transient hotel.

• Branic International Realty Corp.: ECB App. No. 1400348 (6/26/14)

DOH Violations: Standing Water Couldn’t Cause Mosquitoes in January

DOHMH issued a violation notice to landlord for failing to eliminate standing water, which created a condition conducive to mosquitoes at a construction site. Landlord’s construction manager testified that the water was there for only a short time and that it was pumped out of the foundation on the same day that the violation was issued. The construction manager also pointed out that the violation was issued in January, at a time when mosquitoes wouldn’t be present. The ALJ ruled against landlord since the area had accumulations of standing water at the time the violation was issued. Landlord appealed and won. At the time of the violation, there was no evidence of mosquitoes or the likelihood that the standing water presented conditions that would cause mosquito breeding or harborage at that time of year.

• 155 East 79th Street, LLC: ECB App. No. 1400257 (6/26/14)

Leases: Lease Clause Requiring Automatic Debit Payments Unenforceable

Landlord sued to evict rent-stabilized tenant for nonpayment of rent. Landlord and tenant signed a settlement agreement in court. Tenant later sought more time to pay back rent owed under the agreement. Landlord objected and asked for a money judgment for all sums owed. While finding some of tenant’s lease terms unenforceable, the court ruled that landlord was entitled to a money judgment of $3,500. Tenant’s lease provided for a “discounted” rent, which the court found was a de facto preferential rent. A lease rider divesting tenant of her rights under rent stabilization was unenforceable, as was a provision requiring automatic debit payments as a substantial obligation of the lease.

• Jamaica Seven LLC v. Jean: Index No. L&T85240/2013, NYLJ No. 1202663259524 (Civ. Ct. Queens; 6/27/14)

Major Capital Improvements: MCI Increase Granted for Sidewalk Work

The DRA granted landlord’s MCI rent increase application based on the installation of a concrete walkway but denied any increase for work to the sidewalk, gate, fencing, or for architectural fees. Landlord appealed and won, in part. Landlord showed that the sidewalk/concrete side paths at the driveways of the building complex were within the property line. So the rent increase for the concrete walkway should have included the cost of removing the existing sidewalk and installing two new sidewalk/concrete side paths as part of the resurfacing within the property line. But, since landscaping wasn’t an MCI, no architectural fees for landscaping could be included in the approved MCI cost.

• 144-67/77/87 41st Street: DHCR Adm. Rev. Docket No. YB110045RO (6/3/14)

Major Capital Improvements: MCI Increase Denied Due to Outstanding Rent Reduction Order

Landlord applied for MCI rent hikes based on pointing and waterproofing. The DRA ruled against landlord based on outstanding rent reduction orders for the building. Landlord appealed and lost. Landlord claimed that the order in question didn’t reduce rents but merely directed landlord to make specific repairs. But landlord had filed an application to restore rents in connection with the rent reduction order. This application was denied because not all conditions had been corrected. Landlord’s PAR of the order denying rent restoration also had been denied. The DRA correctly applied DHCR policy to landlord’s MCI application. The existence of a rent reduction order barred the granting of an MCI rent increase. This was true even if no tenant raised the issue while landlord’s MCI application was pending or if it went undetected in prior DHCR proceedings.

• 33 William Street Assoc., Ltd.: DHCR Adm. Rev. Docket No. BQ910049RO (6/20/14)

Primary Residence: Tenant and Son Lived in Israel for Over Three Years

Landlord sued to evict rent-stabilized tenant for nonprimary residence. The court ruled for landlord after a trial. Tenant appealed and lost. Tenant acknowledged that she had lived in Israel for all but 54 days during the three and a half years before the date of landlord’s lease termination notice. Landlord also proved that tenant illegally sublet her apartment during her extended absence. The fact that tenant may have relocated to Israel to provide specialized therapeutic and educational services to her minor autistic son didn’t defeat landlord’s claim. Tenant didn’t adequately explain why she and her son didn’t move back to the apartment until June 2010, shortly after landlord sent its lease nonrenewal notice. Tenant’s own expert witness also testified that the son would have been eligible as early as August 2007 to apply for extensive public special education services in New York City, which the son in fact began receiving soon after the family returned to New York.

• First Avenue Equities LLC v. Doron: 2014 NY Slip Op 24194, 2014 WL 3557319 (App. T. 1 Dept.; 7/16/14)

Procedure-DHCR: Tenant Excused Twice for Not Answering Deregulation Application

Landlord applied for high-rent/high-income deregulation of tenant’s rent-stabilized apartment in 2008. The DRA ruled for landlord based on tenant’s failure to answer the DRA’s notices. Tenant then appealed and showed good cause for his default, so the DHCR reopened the proceeding. On remand, the DRA again ruled for landlord based on tenant’s failure to respond to a new notice of landlord’s application. Tenant appealed again, claiming that he had submitted sufficient information to the DRA to determine that his income was below the deregulation threshold. Tenant, who was 75 years old, also claimed he still suffered from the same medical problems and disabilities as he cited previously, including heart irregularities, diabetes, and glaucoma.

The DHCR ruled for tenant and again sent the case back to the DRA for reconsideration. Tenant was represented by an attorney when he filed his first PAR, but the DRA didn’t send copies of the new notice of landlord’s application to the attorney. And tenant had no prior experience with luxury deregulation proceedings since landlord filed its first application in 2008. Tenant had shown good cause for his failure to answer the DRA’s notice of the remanded proceeding, and the case was sent back again to the DRA for re-service of landlord’s application on both tenant and his attorney.

• Paris: DHCR Adm. Rev. Docket No. AT410029RT (6/27/14)

Rent Overcharge: No Indication of Fraud Warranting Older Rent History Review

Tenant complained of rent overcharge. The DRA ruled against tenant, finding that the apartment had been deregulated and wasn’t subject to rent stabilization. Tenant appealed and argued that there was no prior DHCR order confirming the deregulated status of the apartment, and that the vacancy rent of $2,000 per month that he paid was based on a fraudulent increase over the prior tenant’s rent.

The DHCR ruled against tenant. The base date rent charged four years before tenant’s complaint was filed was $2,000 per month. Landlord submitted proof of this in the form of an executed lease. A DHCR order wasn’t required to deregulate the apartment. As to tenant’s fraud claim, a rent increase that was greater than the legal increase and that occurred prior to the base date was insufficient by itself to warrant an inquiry for fraud. Tenant could have filed her overcharge claim earlier than she did. The discrepancy between an earlier offer of a rent-stabilized renewal lease and the later registration of the apartment as exempt also didn’t rise to the level of fraud that would warrant a review of records pre-dating the four-year review period.

• Bandera: DHCR Adm. Rev. Docket No. CN210017RT (6/6/14)

Required Services: Tenant Claims A/Cs No Longer Work

Rent-stabilized tenant complained of a reduction in services. He claimed that landlord reduced the electrical amperage to his apartment from 30 amps to 15 amps. The DRA ruled for tenant and reduced his rent. Landlord appealed and lost. Landlord claimed that tenant deliberately overloaded the circuits and pointed out that the DHCR’s inspector stated that he was “unable to ascertain the amperage of the circuit breaker inside the apartment.” But tenant claimed that he could no longer run the two air conditioners in his apartment because if he did the circuit would trip. Tenant paid a rent surcharge for the use of the two air conditioners. The DHCR’s inspector could see in the basement that tenant’s apartment had only a 15 amp fuse and other apartments had circuit breakers with a 30 amp fuse.

But the DHCR noted that in 1961 the Temporary State Housing Rent Commissioner had issued an order authorizing an increase in the apartment’s legal rent for the installation and maintenance of two air conditioners. So use of the A/C units was a base date service included in the rent-stabilized rent for the apartment. The DHCR revoked the DRA’s decision and sent the case back for further consideration of tenant’s loss of the air conditioning units.

• 354 East 66th Street Realty Corp.: DHCR Adm. Rev. Docket No. AV410036RO (6/13/14)