Scott E. Mollen
Scott E. Mollen ()

Tenants-In-Common Did Not Owe Each Other Fiduciary Duty Absent a Partnership or Joint Venture Agreement­—A Tenant-In-Common in Possession of Property Has a Duty to Maintain and Preserve the Property for the Benefit of All Co-Tenants and to Pay Real Estate Taxes—Plaintiff Was Not Entitled to an Accounting With Respect to Property in Which Her Brother Was Permitted to Live Rent Free and Is Not Entitled to Recover a One-Half Share of the Fair Rental Value of That Unit—However, There Were Issues of Fact as to Whether the Defendant “Improperly Apportioned or Disposed of Income Actually Realized From Arms’ Length Rentals, to Third Parties of Several Other Units”

A brother and sister each owned an undivided 50 percent interest in an apartment as tenants-in-common (TIC), with no right of survivorship. Their heirs currently own the apartment as TIC. The brother’s heir (defendant) currently lives in the apartment rent free. The sister’s heir (plaintiff) commenced the subject action seeking a declaration declaring that “she possesses an undivided 50 percent interest in the [apartment] as [TIC] with the defendant, and is entitled to all of the benefits of ownership of that interest, including the right to a proportionate share of rental income.” The plaintiff further sought, inter alia, an accounting and “a judgment pursuant to RPAPL 1201 awarding her an appropriate share of the rental income from the property” and “a permanent injunction prohibiting the defendant from managing the property.” The plaintiff moved for summary judgment on a claim for conversion and for leave to amend her complaint to add a cause of action for damages based on a breach of fiduciary duty.

The court explained that:

A [TIC] represents interests in property held individually by two or more persons. The distinguishing feature of this form of ownership is the right of each cotenant to use … the entire property as would a sole owner, provided that the other co-tenants are not thereby excluded from similar use and enjoyment. This undivided interest is a right enjoyed by all the co-tenants, whether or not they are in actual possession of the premises. … The occupancy by one of several tenants in common of an estate does not, of itself, make the occupant liable to the cotenant for rent of the premises or for use and occupation, so long as he or she does not exclude the other co-tenants from the exercise of similar rights. …One who holds an interest in real property as a tenant in common may seek physical partition of the property, or a partition and sale thereof, unless it appears that physical partition alone would greatly prejudice the owners of the premises. …

The plaintiff did not argue that she had been “ousted or excluded” from the apartment. The plaintiff never resided in the apartment and did not seek to reside there. Moreover, she did not challenge the defendant’s continued occupancy at the apartment, nor did she seek a partition or sale. Rather, she argued that “the defendant owes her a fiduciary duty to maximize the income to be realized from the management of the property, and that she is entitled to a proportionate share of income actually realized, or which should have been realized, from arms’ length rentals to third parties.”

The court explained that “where, as here, there is no partnership or joint venture agreement between co-tenants, persons who fortuitously hold property as [TIC] do not owe each other a fiduciary duty. …Rather, in the absence of such an agreement, a [TIC] who is in possession of the property has a duty only to maintain and preserve the property for the benefit of all co-tenants and to pay necessary real property taxes.”

Thus, the court held that the plaintiff was not entitled to an accounting for the property where her brother was permitted to live “rent free” and she was “not entitled to recover from the defendant a one-half share of the fair rental value of that unit.” However, the court found that there were issues of fact as to whether the defendant had “improperly apportioned or disposed of income actually realized from arms’ length rentals, to third parties, of several other units.” Thus, the court denied the plaintiff’s motion for summary judgment on her claim for an accounting and for “a judgment pursuant to RPAPL 1201 awarding her an appropriate share of the rental income from the property.”

Since the defendant admitted that the plaintiff holds an undivided 50 percent interest in the property, the court granted the plaintiff’s motion for a declaration with respect to her status as a TIC. However, since the court could not determine as a matter of law, that the defendant had failed to preserve and maintain the property and thereby injured the plaintiff’s interest, the court denied the plaintiff’s motion for a permanent injunction enjoining the defendant from managing the property. The court also denied the plaintiff’s motion to amend the complaint to assert a claim for a breach of fiduciary duty, since such claim was “palpably insufficient and patently without merit.”

Pichler v. Jackson, 651456/2015, NYLJ 1202767129901, at *1 (Sup., NY, Decided, 2016), Bannon, J.


Landlord-Tenant—Owner’s Use Holdover Proceeding Dismissed —Predicate Notices Were Insufficient—Notices Failed to State That Multiple Units Were Being Sought as the Primary Residence of the Petitioner and His Immediate Family or Describe With Specificity How the Units Would Be Combined or Used by the Petitioner and His Family—Notices “Omitted Details…Crucial to Respondent Forming a Defense”

A landlord commenced an “owner’s use holdover proceeding,” based on the landlord’s assertion that he sought to recover the subject apartment “for the use and occupancy of himself and his immediate family.” The tenant moved to dismiss the petition “for failure to offer [tenant] an equivalent or superior accommodation due to her alleged disabled status” and “for failing ‘to provide sufficient facts in the notice of nonrenewal and to plead with adequate specificity … his reason for seeking possession of four rent-stabilized apartments in one building for his and his immediate family’s personal use.”

The court explained that “a landlord may seek more than one unit for his or his family’s personal use.” Judicial precedent held that predicate notices involving multi-unit occupancy proceedings were permissible, where the notices of nonrenewal stated:

the landlord’s intention to recover possession of all of the remaining rent-stabilized apartments on the ground of owner-occupancy, and (2) that each of the predicate notices “detailed defendants’ [landlords'] plan for converting the floors into question into their own single-family dwelling.”

The subject predicate notice stated that the landlord sought to terminate the tenancy pursuant to Rent Stabilization Code (RSC) §2524.2, based on his need of the apartment for the use and occupancy of his immediate family. The notice recited “the present living circumstances of the landlord and why the geographic location of the [apartment] is more advantageous for his family.”

However, the landlord sought to recover three other apartments in the same building. The landlord was seeking four different apartments on three different floors. None of the notices indicated that “multiple units are being sought and how they are all to be used as the primary residence of the [landlord] and his immediate family. Nor do any of the notices, including the one at bar, describe with specificity a plan as to how the units would be combined or used by [landlord] and his family.”

The court found that the landlord had “omitted details which are crucial to [tenant] forming a defense” and that the notice failed to comply with the specificity requirements of RSC §2524.2(b) and governing case law. Accordingly, the court dismissed the petition. The tenant’s argument with respect to the failure to provide equivalent or superior accommodations, was denied as moot.

Comment: While the law permits an owner to recover a rent stabilized apartment for personal use or for use by immediate family members, the landlord must demonstrate, inter alia, that its “professed intent” is legitimate and not a subterfuge to merely terminate a rent stabilized tenancy. Courts have looked at, inter alia, details about the family members who allegedly plan to move into the premises, e.g., do they presently live in smaller or larger premises, do they have pressing needs for more space, are they employed nearby, do they attend a nearby school, do they own or lease other properties, etc.? Courts have also looked at whether proposed renovations would be lawful and whether the landlord previously attempted to “recapture” other apartments for personal use and/or has made prior inconsistent representations as to how the apartments would be used.

Lasala v. Liguori, L&T 97378/2015, NYLJ 1202764732638, at *1 (Civ., KI, Decided July 26, 2016), J. Finkelstein, J.


Land Use—Mootness—Impact of Subsequent Amendment to a Land Use Code During an Appeal—No Evidence That the Amendment Was the Product of Malice, Oppression or Corruption—No Evidence That Municipality Acted in Bad Faith and Unduly Delayed Action Until Zoning Law Could Be Changed

The court had previously dismissed certain of the petitioners’ claims, but did not dismiss a claim which alleged that a Feb. 2, 2015 decision by the respondent Zoning Board of Appeals and village (ZBA) must be vacated as arbitrary and capricious. The court had held:

“[T]he ZBA was correct in finding that it is without authority to compel [the town code enforcement officer, 'code officer'] to submit the application to the [Joint Review Board for the village...(hereinafter the JRB)] for consideration. … However, the court is troubled by its failure to address the . . . issue of whether [code officer] should have treated the JRB's resolution and the APA's [Adirondack Park Agency's] Jurisdictional Determination as controlling. Notwithstanding that counsel for petitioners framed the issue in a peculiar fashion—approaching it from a procedural standpoint rather than a substantive one­—substantive issues ... remain for consideration. To that end, the appropriate remedy may be remittal to the ZBA for a determination on the merits."

The court had scheduled oral argument for May 19, 2016, on the issue of whether it should remit the matter to the ZBA. Prior thereto, the code officer advised the court that the town had amended the local Land Use Code (LUC). The subject property had been deemed a "lot of record" in a Sept. 10, 2010 resolution of the JRB and a Mar. 10, 2014 "jurisdictional determination" of the Adirondack Park Agency. The petitioners argued that therefore, it is "exempt from the minimum lot width and lot area requirements" under the LUC. However, before the oral argument, the subject amendment was adopted by the village. On the oral argument, the parties addressed the issues of "mootness" and whether a remittal to the ZBA was required.

With respect to mootness, the court explained that "'the general rule ... is that when a law is amended during an appeal's pendency, the law to be utilized is that in effect at the time the decision on appeal is rendered'. ..." Here, the code officer considered the petitioners' application for permits to construct a residence and accessory building under the former LUC.

The court explained that certain language in the "amended...LUC deviates substantially from the language" in the former statute. Although the former statute "provides that a permitted building or use may be constructed on any lot of record, [the LUC] is more restrictive, providing that only a building or use that was permissible at the time of creation of a given lot of record may be constructed on any lot of record." The court stated that since the application had been made and considered under the former LUC, "it has been rendered moot by the amendment" and therefore, the proceeding had to be "dismissed as moot."

The court further explained that "where 'special facts' are present to demonstrate that the municipality acted in bad faith and unduly delayed acting upon an application while the zoning law was changed,' the court can ignore the general rule and apply the law as it existed at the time of the application. ..."

Although the petitioners argued that "this 'special facts' exception is applicable under the circumstances herein," the court was "not persuaded." There was no evidence to suggest that the town and village had deliberately delayed this proceeding so as to amend the LUC, "nor is there any evidence to suggest that the amendment 'was the product of malice, oppression, manipulation or corruption'. ..." Accordingly, the court held that there was "no need to address the issue of remittal to the ZBA."

However, the court noted that if the matter were remitted to the ZBA for a determination on the merits, such remittal would be decided pursuant to the former LUC. Thus, the petition was dismissed as moot. The court also stated that if the petitioners file a new application under the former LUC and an administrative appeal proceeds, "the ZBA is encouraged to address both the substantive and procedural issues raised."

Roda v. The Zoning Board of Appeals of the Town of North Elba, CV15-0120, NYLJ 1202764214285, at *1 (Sup., ESSEX, Decided July 22, 2016), Muller, J.

Tenants-In-Common Did Not Owe Each Other Fiduciary Duty Absent a Partnership or Joint Venture Agreement­—A Tenant-In-Common in Possession of Property Has a Duty to Maintain and Preserve the Property for the Benefit of All Co-Tenants and to Pay Real Estate Taxes—Plaintiff Was Not Entitled to an Accounting With Respect to Property in Which Her Brother Was Permitted to Live Rent Free and Is Not Entitled to Recover a One-Half Share of the Fair Rental Value of That Unit—However, There Were Issues of Fact as to Whether the Defendant "Improperly Apportioned or Disposed of Income Actually Realized From Arms' Length Rentals, to Third Parties of Several Other Units"

A brother and sister each owned an undivided 50 percent interest in an apartment as tenants-in-common (TIC), with no right of survivorship. Their heirs currently own the apartment as TIC. The brother's heir (defendant) currently lives in the apartment rent free. The sister's heir (plaintiff) commenced the subject action seeking a declaration declaring that "she possesses an undivided 50 percent interest in the [apartment] as [TIC] with the defendant, and is entitled to all of the benefits of ownership of that interest, including the right to a proportionate share of rental income." The plaintiff further sought, inter alia, an accounting and "a judgment pursuant to RPAPL 1201 awarding her an appropriate share of the rental income from the property" and "a permanent injunction prohibiting the defendant from managing the property." The plaintiff moved for summary judgment on a claim for conversion and for leave to amend her complaint to add a cause of action for damages based on a breach of fiduciary duty.

The court explained that:

A [TIC] represents interests in property held individually by two or more persons. The distinguishing feature of this form of ownership is the right of each cotenant to use ... the entire property as would a sole owner, provided that the other co-tenants are not thereby excluded from similar use and enjoyment. This undivided interest is a right enjoyed by all the co-tenants, whether or not they are in actual possession of the premises. ... The occupancy by one of several tenants in common of an estate does not, of itself, make the occupant liable to the cotenant for rent of the premises or for use and occupation, so long as he or she does not exclude the other co-tenants from the exercise of similar rights. ...One who holds an interest in real property as a tenant in common may seek physical partition of the property, or a partition and sale thereof, unless it appears that physical partition alone would greatly prejudice the owners of the premises. ...

The plaintiff did not argue that she had been "ousted or excluded" from the apartment. The plaintiff never resided in the apartment and did not seek to reside there. Moreover, she did not challenge the defendant's continued occupancy at the apartment, nor did she seek a partition or sale. Rather, she argued that "the defendant owes her a fiduciary duty to maximize the income to be realized from the management of the property, and that she is entitled to a proportionate share of income actually realized, or which should have been realized, from arms' length rentals to third parties."

The court explained that "where, as here, there is no partnership or joint venture agreement between co-tenants, persons who fortuitously hold property as [TIC] do not owe each other a fiduciary duty. ...Rather, in the absence of such an agreement, a [TIC] who is in possession of the property has a duty only to maintain and preserve the property for the benefit of all co-tenants and to pay necessary real property taxes."

Thus, the court held that the plaintiff was not entitled to an accounting for the property where her brother was permitted to live "rent free" and she was "not entitled to recover from the defendant a one-half share of the fair rental value of that unit." However, the court found that there were issues of fact as to whether the defendant had "improperly apportioned or disposed of income actually realized from arms' length rentals, to third parties, of several other units." Thus, the court denied the plaintiff's motion for summary judgment on her claim for an accounting and for "a judgment pursuant to RPAPL 1201 awarding her an appropriate share of the rental income from the property."

Since the defendant admitted that the plaintiff holds an undivided 50 percent interest in the property, the court granted the plaintiff's motion for a declaration with respect to her status as a TIC. However, since the court could not determine as a matter of law, that the defendant had failed to preserve and maintain the property and thereby injured the plaintiff's interest, the court denied the plaintiff's motion for a permanent injunction enjoining the defendant from managing the property. The court also denied the plaintiff's motion to amend the complaint to assert a claim for a breach of fiduciary duty, since such claim was "palpably insufficient and patently without merit."

Pichler v. Jackson, 651456/2015, NYLJ 1202767129901, at *1 (Sup., NY, Decided, 2016), Bannon, J.


Landlord-Tenant—Owner's Use Holdover Proceeding Dismissed —Predicate Notices Were Insufficient—Notices Failed to State That Multiple Units Were Being Sought as the Primary Residence of the Petitioner and His Immediate Family or Describe With Specificity How the Units Would Be Combined or Used by the Petitioner and His Family—Notices "Omitted Details...Crucial to Respondent Forming a Defense"

A landlord commenced an "owner's use holdover proceeding," based on the landlord's assertion that he sought to recover the subject apartment "for the use and occupancy of himself and his immediate family." The tenant moved to dismiss the petition "for failure to offer [tenant] an equivalent or superior accommodation due to her alleged disabled status" and "for failing 'to provide sufficient facts in the notice of nonrenewal and to plead with adequate specificity ... his reason for seeking possession of four rent-stabilized apartments in one building for his and his immediate family's personal use."

The court explained that "a landlord may seek more than one unit for his or his family's personal use." Judicial precedent held that predicate notices involving multi-unit occupancy proceedings were permissible, where the notices of nonrenewal stated:

the landlord's intention to recover possession of all of the remaining rent-stabilized apartments on the ground of owner-occupancy, and (2) that each of the predicate notices "detailed defendants' [landlords'] plan for converting the floors into question into their own single-family dwelling."

The subject predicate notice stated that the landlord sought to terminate the tenancy pursuant to Rent Stabilization Code (RSC) §2524.2, based on his need of the apartment for the use and occupancy of his immediate family. The notice recited "the present living circumstances of the landlord and why the geographic location of the [apartment] is more advantageous for his family."

However, the landlord sought to recover three other apartments in the same building. The landlord was seeking four different apartments on three different floors. None of the notices indicated that "multiple units are being sought and how they are all to be used as the primary residence of the [landlord] and his immediate family. Nor do any of the notices, including the one at bar, describe with specificity a plan as to how the units would be combined or used by [landlord] and his family."

The court found that the landlord had "omitted details which are crucial to [tenant] forming a defense" and that the notice failed to comply with the specificity requirements of RSC §2524.2(b) and governing case law. Accordingly, the court dismissed the petition. The tenant's argument with respect to the failure to provide equivalent or superior accommodations, was denied as moot.

Comment: While the law permits an owner to recover a rent stabilized apartment for personal use or for use by immediate family members, the landlord must demonstrate, inter alia, that its "professed intent" is legitimate and not a subterfuge to merely terminate a rent stabilized tenancy. Courts have looked at, inter alia, details about the family members who allegedly plan to move into the premises, e.g., do they presently live in smaller or larger premises, do they have pressing needs for more space, are they employed nearby, do they attend a nearby school, do they own or lease other properties, etc.? Courts have also looked at whether proposed renovations would be lawful and whether the landlord previously attempted to "recapture" other apartments for personal use and/or has made prior inconsistent representations as to how the apartments would be used.

Lasala v. Liguori, L&T 97378/2015, NYLJ 1202764732638, at *1 (Civ., KI, Decided July 26, 2016), J. Finkelstein, J.


Land Use—Mootness—Impact of Subsequent Amendment to a Land Use Code During an Appeal—No Evidence That the Amendment Was the Product of Malice, Oppression or Corruption—No Evidence That Municipality Acted in Bad Faith and Unduly Delayed Action Until Zoning Law Could Be Changed

The court had previously dismissed certain of the petitioners' claims, but did not dismiss a claim which alleged that a Feb. 2, 2015 decision by the respondent Zoning Board of Appeals and village (ZBA) must be vacated as arbitrary and capricious. The court had held:

"[T]he ZBA was correct in finding that it is without authority to compel [the town code enforcement officer, 'code officer'] to submit the application to the [Joint Review Board for the village...(hereinafter the JRB)] for consideration. ... However, the court is troubled by its failure to address the . . . issue of whether [code officer] should have treated the JRB's resolution and the APA's [Adirondack Park Agency's] Jurisdictional Determination as controlling. Notwithstanding that counsel for petitioners framed the issue in a peculiar fashion—approaching it from a procedural standpoint rather than a substantive one­—substantive issues ... remain for consideration. To that end, the appropriate remedy may be remittal to the ZBA for a determination on the merits."

The court had scheduled oral argument for May 19, 2016, on the issue of whether it should remit the matter to the ZBA. Prior thereto, the code officer advised the court that the town had amended the local Land Use Code (LUC). The subject property had been deemed a "lot of record" in a Sept. 10, 2010 resolution of the JRB and a Mar. 10, 2014 "jurisdictional determination" of the Adirondack Park Agency. The petitioners argued that therefore, it is "exempt from the minimum lot width and lot area requirements" under the LUC. However, before the oral argument, the subject amendment was adopted by the village. On the oral argument, the parties addressed the issues of "mootness" and whether a remittal to the ZBA was required.

With respect to mootness, the court explained that "'the general rule ... is that when a law is amended during an appeal's pendency, the law to be utilized is that in effect at the time the decision on appeal is rendered'. ..." Here, the code officer considered the petitioners' application for permits to construct a residence and accessory building under the former LUC.

The court explained that certain language in the "amended...LUC deviates substantially from the language" in the former statute. Although the former statute "provides that a permitted building or use may be constructed on any lot of record, [the LUC] is more restrictive, providing that only a building or use that was permissible at the time of creation of a given lot of record may be constructed on any lot of record." The court stated that since the application had been made and considered under the former LUC, "it has been rendered moot by the amendment" and therefore, the proceeding had to be "dismissed as moot."

The court further explained that "where 'special facts' are present to demonstrate that the municipality acted in bad faith and unduly delayed acting upon an application while the zoning law was changed,' the court can ignore the general rule and apply the law as it existed at the time of the application. ..."

Although the petitioners argued that "this 'special facts' exception is applicable under the circumstances herein," the court was "not persuaded." There was no evidence to suggest that the town and village had deliberately delayed this proceeding so as to amend the LUC, "nor is there any evidence to suggest that the amendment 'was the product of malice, oppression, manipulation or corruption'. ..." Accordingly, the court held that there was "no need to address the issue of remittal to the ZBA."

However, the court noted that if the matter were remitted to the ZBA for a determination on the merits, such remittal would be decided pursuant to the former LUC. Thus, the petition was dismissed as moot. The court also stated that if the petitioners file a new application under the former LUC and an administrative appeal proceeds, "the ZBA is encouraged to address both the substantive and procedural issues raised."

Roda v. The Zoning Board of Appeals of the Town of North Elba, CV15-0120, NYLJ 1202764214285, at *1 (Sup., ESSEX, Decided July 22, 2016), Muller, J.