Landlord v. Tenant: September 2015

Landlord’s Negligence: Landlord Had No Notice Before Pipe Burst

Tenant sued landlord and its managing agent in small claims court for water damage to her property caused by a broken pipe in her apartment building. The court dismissed the case against the managing agent, finding that only landlord could be liable. Tenant claimed at trial that landlord was negligent since it didn’t contact her in a timely manner after discovering the leak. The court ruled against tenant, who appealed and lost. Landlord had no notice of any potential defect in a pipe inside the wall and, as soon as it learned of the broken pipe, repaired it as quickly as possible. It was also unclear that, had tenant been contacted immediately after the pipe burst, there would have been any less damage to her property. 

• Suk v. K&C Building-35, LLC: 48 Misc.3d 132(A), 2015 NY Slip Op 51055(U) (App. T. 2 Dept.; 7/7/15; Weston, JP, Aliotta, Elliot, JJ)

Pets: Landlord May Be Responsible for Dog Attack on Tenant’s Guest

After a child attended a Halloween party at landlord’s apartment building, he visited tenant’s apartment and was bitten by tenant’s pit bull dog. The child’s family sued tenant and landlord for negligence. Landlord claimed that he wasn’t responsible and asked the court to dismiss the case. The court ruled against landlord, who appealed and lost. There were pretrial statements from other tenants that the dog had vicious tendencies and was muzzled during walks. Landlord had learned about the dog a few months before the incident, claimed that he was unaware of any problems, but wanted tenant to get rid of the dog because large dogs weren’t allowed at the building. Landlord argued that, even if it knew about the dog, he hadn’t had sufficient time to enforce its removal. There were questions of fact that required a trial as to whether landlord was responsible for failing to take action to remove the dog.

• Rodgers v. Horizons at Monticello, LLP: 130 A.D.3d 1285, 2015 NY Slip Op 06189 (App. Div. 3d Dept.; 7/16/15)

Primary Residence: Brooklyn College Professor Primarily Resided in Connecticut

Landlord sued to evict rent-stabilized tenant based on nonprimary residence. The trial court ruled for landlord. Tenant appealed and lost. Tenant rented the apartment in 1975 and prior to his marriage in 1993, he bought a house in Connecticut. The court found that tenant primarily resided in Connecticut with his wife and family, where he was registered to vote. He taught classes at Brooklyn College two or three days per week and generally went to Connecticut on Fridays, returning on Tuesday or Wednesday. Tenant’s work duties were divided among teaching (25%), research (60%), and committee work (15%). Tenant did all of his research work in Connecticut. Tenant testified that he spent 120 to 160 days per year at the apartment, didn’t have a driver’s license, but did his banking Brooklyn and all of his healthcare providers were in Brooklyn. 

• Kalikow Family Partnership, LP v. Seidemann: 28 Misc.3d 134(A), 2015 NY Slip Op 51080(U) (App. T. 2 Dept.; 7/14/15)

Primary Residence: Tenant Who Deducted Rent as S Corporation Expense Can’t Claim Primary Residence

Landlord sued to evict rent-stabilized tenant for nonprimary residence. Landlord asked the court to rule in its favor without a trial, based on documentary evidence. The court ruled against landlord, who appealed and won. On her federal income tax returns for the years 2009, 2010, and 2011, tenant deducted the entire rent for the apartment as an expense of her S corporation. The instructions for filing returns for S corporations disallow the deduction of rent “for a dwelling unit occupied by any shareholder for personal use.” Tenant’s position that the apartment was her primary residence therefore was contrary to declarations made under penalty of perjury on income tax returns that she didn’t occupy the apartment for personal use. It didn’t matter that Rent Stabilization Code Section 2520.6(u) stated that “no single factor” was solely determinative in a primary residence case. Tenant’s claim was logically incompatible with the position she asserted on her tax returns.

• Ansonia Associates Limited Partnership v. Unwin: 130 A.D.3d 453, 2015 NY Slip Op 05880 (App. Div. 1 Dept.; 7/7/15)

Rent Stabilization Coverage: Landlord Not Entitled to First Rent for Altered Apartment

Tenant complained to the DHCR of rent overcharge. Landlord claimed that it had properly set an unregulated initial rent for a newly created apartment when tenant moved in. Prior tenant had paid $831 per month for a two-bedroom apartment. Prior landlord then added two additional bedrooms to the apartment, but new landlord sealed those rooms off and did not use or rent them. When complaining tenant moved in, landlord unsealed the doorway, performed electrical work to rewire the extra bedrooms, and rented the unit to tenant as a four-bedroom apartment.

The DHCR ruled for tenant and found that landlord had done no more than change the number of bedrooms without changing the outer perimeter of the apartment. Landlord requested reconsideration, and the DHCR modified its ruling to find that landlord was entitled to a $200 rent increase for the increased square footage. Landlord then filed an Article 78 court appeal, claiming that the DHCR’s decision was arbitrary and unreasonable. The court ruled against landlord and went further, finding that the DHCR arbitrarily and unreasonably added the $200 rent increase. 

Landlord appealed and lost. The appeals court pointed out that permitting a first rent for a newly created apartment is a DHCR policy that applies only when the perimeter walls of an apartment have been substantially moved and changed and where the previous apartment essentially ceases to exist. Here, landlord didn’t construct a new apartment by simply unsealing a doorway that led to two additional bedrooms. Instead, landlord was entitled under Rent Stabilization Code (RSC) Section 2522.4(a)(1) to increase tenant’s rent for adding square footage to the apartment. But the DHCR didn’t follow the statutory calculation set forth in RSC Section 2522.4(a)(4), and the case was properly sent back to the DHCR for recalculation of the legal rent. One appeals court judge disagreed with the majority’s decision and argued that, under DHCR policy and case law, landlord was entitled to set a first free-market rent. 

• Velasquez v. DHCR: 130 A.D.3d 1045, 2015 NY Slip Op 06353 (App. Div. 2 Dept.; 7/29/15)

Warranty of Habitability: Insufficient Proof of Second-Hand Smoke

Landlord sued to evict rent-stabilized tenant for nonpayment of rent. Tenant claimed breach of the warranty of habitability based on second-hand smoke coming from the upstairs apartment. The court ruled against tenant after a trial. Presence of second-hand smoke can be grounds for a claim of breach of the warranty of habitability or constructive eviction. But here the proof was insufficient. The upstairs neighbor testified that she smoked one or two cigarettes per day in her apartment. Tenant testified that he smelled smoke six or seven days per month. Tenant’s expert stated that on one occasion he smelled no smoke in tenant’s apartment. But he couldn’t confirm whether tenant’s symptoms were from second-hand smoke or even whether any second-hand smoke had infiltrated the apartment. There were inexpensive tests available that could have determined whether second-hand smoke had entered the apartment, but tenant declined to pay for that testing. Otherwise, landlord took reasonable steps to investigate tenant’s claim and the upstairs neighbor took steps to reduce smoke infiltration.

• 555-565 Associates, LLC v. Kearsley: 48 Misc.3d 1211(A), 2015 NY Slip Op 51093(U) (Civ. Ct. NY; 7/17/15)

Warranty of Habitability: No Rent Abatement Where Tenant Refused Access for Repairs

Landlord sued to evict tenant for nonpayment of rent. The court ruled for landlord and found that tenant owed $4,550. Tenant appealed, claiming that there were apartment conditions that required repair. The appeals court ruled against tenant. Landlord testified credibly at trial that tenant refused access for repairs.

• Sajo Realty Corp. v. Antoine: 48 Misc.3d 133(A), 2015 NY Slip Op 51076(U) (App. T. 2 Dept.; 7/14/15)