Scott E. Mollen
Scott E. Mollen ()

Landlord-Tenant—Tenant’s Complaint to Housing Authority Was Allegedly “Revenge” For Landlord’s Prior Complaint Against Tenant—Failure to Make Repairs Constituted Unlawful Retaliation—RPL §223(b) Is Not Complete Defense in Nonpayment Proceedings Where Landlord’s Retaliation Deprived Tenant of Subsidy—RPL §223(b) Provides Set Off Against Rent Owed—Warranty of Habitability Violations Minor—2 1/2 Percent Abatement of Rent

A landlord commenced a nonpayment proceeding against a tenant pursuant to RPAPL §711(2). The rent was $850 per month. The tenant received a rent subsidy from a Public Housing Authority (PHA) pursuant to the Section 8 voucher program. The PHA paid the subsidy directly to the landlord. The landlord had complained to the PHA that “the tenant had unacceptable amount of debris in the yard and unmitigated cat feces in the apartment and in the hallway.” The PHA threatened “to terminate the subsidies unless the tenant remedied the problems.” The tenant addressed the problems. Thereafter, the tenant lodged a complaint to the PHA against the landlord. In response, the PHA cited several violations which the landlord was required “to correct within thirty (30) days or the subsidy would be terminated.” The landlord asserted that the tenant’s complaint to the PHA was “‘revenge’ for her earlier complaint.” The landlord wrote to the tenant and the PHA, indicating that she would not make the requested repairs. Rather, the landlord demanded that the tenant vacate the premises.

The court found that the landlord understood that her refusal to correct the code deficiencies would cause the PHA to terminate the subsidy. The PHA terminated the subsidies.

The court rejected landlord’s contention that its refusal to make the repairs was based on the tenant’s threat that he would lodge a trespass charge against the landlord if the landlord entered the premises. The court also opined that, although the tenant’s complaint to the PHA may have been an act of revenge, “a tenant’s vengeful act provides no absolution for [landlord's] subsequent actions.” The court found that the landlord had refused to remedy the apartment defects, “with the intent to deprive the tenant of his…subsidy and to retaliate against the tenant for filing a complaint about the conditions of the apartment with [PHA].”

The tenant testified that he had asked the landlord for permission to remain in the apartment and offered to pay the full $850 rent, without the subsidy. The tenant allegedly advised the landlord that he could not timely make the June rent payment, but “needed time.” The tenant failed to pay the June rent and July rent. The court stated that although the landlord may have given the tenant permission to make a late payment, any consent “could not have possibly meant a complete shirking of the rental obligation.” Late in the subject trial, the tenant claimed that “his total non-payment of rent was because of the landlord’s failure to repair the code violations.”

The salient issue was “whether the landlord’s refusal to make repairs constituted unlawful retaliation in violation of Real Property Law §223-b; and if it does, what are the consequences”?

Real Property Law §223-b[4] provides in pertinent part:

In any summary proceeding to recover possession of real property, judgment shall be entered for the tenant if the court finds that the landlord is acting in retaliation for [a complaint by the tenant to a governmental authority of the landlord's alleged violation of any health or safety law] and further finds that the landlord would not otherwise have commenced such action or proceeding. The tenant shall not be relieved of the obligation to pay any rent for which he is otherwise liable.

The court explained:

Normally, a retaliation defense involves a landlord who terminates a lease or refuses to extend a lease to punish the tenant for complaining to government authorities and then the landlord brings a holdover proceeding to evict the tenant. In contrast, an eviction for non-payment of rent normally is unconnected to the landlord’s retaliation but relates to the tenant’s fault (not paying rent) which provides an independent and intervening justification to seek eviction. Thus, where a “tenant [has] admitted owing the rent in question retaliatory eviction is not a defense to a nonpayment proceeding”….

The court held that “RPL §223-b is not a complete defense in nonpayment proceedings, but…where a landlord’s retaliation deprived the tenant of his…subsidy, RPL §223-b affords at least an off-set against rent owed in a nonpayment action.”

Thus, the court found that the landlord, in bad faith, refused to remedy code violations and thereby breached the landlord’s agreement with the PHA. The PHA, in turn, terminated the subsidy. Therefore, the court held that “the landlord’s unlawful retaliatory conduct materially altered the tenant’s obligation to pay rent and that landlord in essence increased the rent from $435 to $850.” The court further held that the rent owed under the lease should be $435 per month ($850 less the subsidy of $315).

Finally, with respect to the warranty of habitability, the court found that the impact of the code violations was relatively minor and awarded the tenant a 21/2 percent abatement of rent (approximately $11 per month).

Pena v. Lockenwitz, LT-391-16/CO, NYLJ 1202765662342, at *1 (City, AL, Decided Aug. 1, 2016), Marcelle, J.


Landlord-Tenant—Rent Stabilization—Succession Claim Failed Because Respondent Came to New York to Help Her Mother, But Did Not Change Her Primary Residence—Respondent Owned Home in Florida, Filed Income Taxes in Florida, Held Florida Driver’s License, Was Attorney Admitted to the Florida Bar, Maintained Bank Accounts In Florida, Took Florida Business Expense Deductions

In a succession rights proceeding, the respondent stated that she took care of the prior rent-stabilized tenant, her mother, as her mother was declining in health, for the requisite two-year “succession period.” The need to care for her mother allegedly caused the respondent “to miss her son’s high school milestones;” and her daughter had come to New York for “months at a time” and was “home-schooled.” She further explained that documents placed her in Florida during the relevant time period, because her husband continued to live there during such time period. She further alleged that her care for her mother “caused her to forgo so much income that her husband became the breadwinner for the family and…she is also a member of the New York bar.”

Since the facts were not in dispute, the court found that summary judgment was appropriate.

The court explained that “[n]ormally, care of an ailing relative away from one’s home while one continues to maintain connections to one’s home establishes primary residency at the home,…not where the ailing relative lives, particularly when one continues to file taxes at one’s home,…maintain bank accounts at the home,…and maintain utility accounts at the home.” The court stated that “all else being equal, the home of an ailing relative one cares for is not one’s primary residence.” The court acknowledged that “a case-specific determination could potentially find that the home of an ailing relative one cares for could end up becoming that person’s primary residence,” but “that person would need to demonstrate the normal indicia of primary residence.”

Here, the court held that “the respondent’s mere assertion that the subject premises is her primary residence is insufficient to overcome the battery of documents connecting her to her home in Florida, particularly her write-off of her home in Florida for business purposes, which shows that she was conducting her business in Florida.”

Accordingly, the court granted the landlord a final judgment of possession.

ROC Century Associates v. Papavasiliou, 82510/2014, NYLJ 1202764513404, at *1 (Civ., NY, Decided Aug. 1, 2016), Stoller, J.


Landlord-Tenant—Rent Stabilization—Nuisance—Alleged Illegal Activity—Illegal Sublet—Predicate Notice Insufficient—One Alleged Incident Did Not Establish Continuing Dangerous Misconduct—Petition Dismissed

A landlord commenced a holdover proceeding, seeking possession of a rent-stabilized apartment based on, an illegal sublet and nuisance. The predicate notice stated that the respondent had “illegally sublet the apartment” to three people and that if the respondent failed to cure the illegal sublet, the tenancy would be terminated. The notice failed to allege that respondent did not reside in the apartment and did not state how the respondent should “cure.”

The portion of the notice that alleged nuisance stated, in part:

…you and/or occupants of the…apartment are causing,…and permitting conduct which interferes with the rights, safety,…of other tenants …, in that, upon information and belief, on or about April 23, 2015, a search warrant was executed at the…premises and resulted in the arrest of four (4) occupants of the…apartment, which included [the three alleged subtenants] and another individual, for violating New York Penal Law Section 220.16 (Criminal Possession of a Controlled Substance in the 3rd degree—…), New York Penal Law Section 220.50 (Criminally using Drug Paraphernalia in the 2nd degree—…) and New York Penal Law Section 220.03 (Criminal possession of a Controlled Substance in the 7th Degree—…), New York Penal Law Section 221.10 (Criminal possession of Marijuana in the 5th degree….)

The respondent moved to dismiss on the basis of “an insufficient and defective predicate notice.” The respondent stated that she lived in the apartment for 12 years, she is 52 years old, she is a Section 8 recipient and her only income is social security disability. She lives in the apartment with her daughter. The named respondents who were arrested in the apartment, “were boyfriends of the respondent and her daughter.” The two men did not live in the apartment and did not have keys to the apartment. The respondent claimed that “she was completely surprised by the drug raid on April 23, 2015.” Neither the respondent nor her daughter were arrested or charged with crimes related to the search. The respondent alleged that the “raid was the only time the police were in her apartment in her twelve-year tenancy.”

The court explained that “[a] nuisance involves conduct that is recurring, frequent, continuous or extremely dangerous, which constitutes an unreasonab1e or unlawful use of the property to the annoyance, inconvenience, discomfort or damage of others that has the primary purpose of intentionally harassing the landlord, other tenants or occupants by substantially interfering with their comfort or safety.” Here, the notice alleged only “one act.” The police had arrested two individuals in the apartment, who apparently “were guests of the respondent.”

The court observed that there was “only one event that is the basis of the nuisance, and the notice fails to state how the raid is evidence of respondent’s misconduct, or caused harm to the petitioner or the other tenants.” There was “no allegation of on going criminal or drug activity,” and there was “no allegation of on going nuisance behavior other than one event.” Neither the respondent nor her daughter were arrested during the raid and there was “no allegation of recurring, frequent, continuous or extremely dangerous behavior which constitute[d] an unreasonable or unlawful use of the property.” Prior case law held that a predicate “notice alleging a single incident…is insufficient…to support a nuisance holdover proceeding.”

The court further explained that a cause of action for “a sublet requires that the petitioner allege that the tenant is not residing in the apartment, vacated the apartment, and/or has not been seen at the subject apartment, and that someone else is residing there.” Moreover, “[a] rent stabilized tenant has the right to cure the sublet.” Here, the notice failed “to allege that respondent no longer resides in the apartment, that she has vacated, or even that she has not been seen at the apartment.” The court noted that there is no “cure” for a tenant who never left their apartment and simply had overnight guests. Thus, the court held that the notice was facially defective and granted the motion to dismiss the petition.

1120 Bergen Street, LLC v. Beckford, 062365/2016, NYLJ 1202765154516, at *1 (Civ., KI, Decided Aug. 5, 2016), Sikowitz, J.

Landlord-Tenant—Tenant’s Complaint to Housing Authority Was Allegedly “Revenge” For Landlord’s Prior Complaint Against Tenant—Failure to Make Repairs Constituted Unlawful Retaliation—RPL §223(b) Is Not Complete Defense in Nonpayment Proceedings Where Landlord’s Retaliation Deprived Tenant of Subsidy—RPL §223(b) Provides Set Off Against Rent Owed—Warranty of Habitability Violations Minor—2 1/2 Percent Abatement of Rent

A landlord commenced a nonpayment proceeding against a tenant pursuant to RPAPL §711(2). The rent was $850 per month. The tenant received a rent subsidy from a Public Housing Authority (PHA) pursuant to the Section 8 voucher program. The PHA paid the subsidy directly to the landlord. The landlord had complained to the PHA that “the tenant had unacceptable amount of debris in the yard and unmitigated cat feces in the apartment and in the hallway.” The PHA threatened “to terminate the subsidies unless the tenant remedied the problems.” The tenant addressed the problems. Thereafter, the tenant lodged a complaint to the PHA against the landlord. In response, the PHA cited several violations which the landlord was required “to correct within thirty (30) days or the subsidy would be terminated.” The landlord asserted that the tenant’s complaint to the PHA was “‘revenge’ for her earlier complaint.” The landlord wrote to the tenant and the PHA, indicating that she would not make the requested repairs. Rather, the landlord demanded that the tenant vacate the premises.

The court found that the landlord understood that her refusal to correct the code deficiencies would cause the PHA to terminate the subsidy. The PHA terminated the subsidies.

The court rejected landlord’s contention that its refusal to make the repairs was based on the tenant’s threat that he would lodge a trespass charge against the landlord if the landlord entered the premises. The court also opined that, although the tenant’s complaint to the PHA may have been an act of revenge, “a tenant’s vengeful act provides no absolution for [landlord's] subsequent actions.” The court found that the landlord had refused to remedy the apartment defects, “with the intent to deprive the tenant of his…subsidy and to retaliate against the tenant for filing a complaint about the conditions of the apartment with [PHA].”

The tenant testified that he had asked the landlord for permission to remain in the apartment and offered to pay the full $850 rent, without the subsidy. The tenant allegedly advised the landlord that he could not timely make the June rent payment, but “needed time.” The tenant failed to pay the June rent and July rent. The court stated that although the landlord may have given the tenant permission to make a late payment, any consent “could not have possibly meant a complete shirking of the rental obligation.” Late in the subject trial, the tenant claimed that “his total non-payment of rent was because of the landlord’s failure to repair the code violations.”

The salient issue was “whether the landlord’s refusal to make repairs constituted unlawful retaliation in violation of Real Property Law §223-b; and if it does, what are the consequences”?

Real Property Law §223-b[4] provides in pertinent part:

In any summary proceeding to recover possession of real property, judgment shall be entered for the tenant if the court finds that the landlord is acting in retaliation for [a complaint by the tenant to a governmental authority of the landlord's alleged violation of any health or safety law] and further finds that the landlord would not otherwise have commenced such action or proceeding. The tenant shall not be relieved of the obligation to pay any rent for which he is otherwise liable.

The court explained:

Normally, a retaliation defense involves a landlord who terminates a lease or refuses to extend a lease to punish the tenant for complaining to government authorities and then the landlord brings a holdover proceeding to evict the tenant. In contrast, an eviction for non-payment of rent normally is unconnected to the landlord’s retaliation but relates to the tenant’s fault (not paying rent) which provides an independent and intervening justification to seek eviction. Thus, where a “tenant [has] admitted owing the rent in question retaliatory eviction is not a defense to a nonpayment proceeding”….

The court held that “RPL §223-b is not a complete defense in nonpayment proceedings, but…where a landlord’s retaliation deprived the tenant of his…subsidy, RPL §223-b affords at least an off-set against rent owed in a nonpayment action.”

Thus, the court found that the landlord, in bad faith, refused to remedy code violations and thereby breached the landlord’s agreement with the PHA. The PHA, in turn, terminated the subsidy. Therefore, the court held that “the landlord’s unlawful retaliatory conduct materially altered the tenant’s obligation to pay rent and that landlord in essence increased the rent from $435 to $850.” The court further held that the rent owed under the lease should be $435 per month ($850 less the subsidy of $315).

Finally, with respect to the warranty of habitability, the court found that the impact of the code violations was relatively minor and awarded the tenant a 21/2 percent abatement of rent (approximately $11 per month).

Pena v. Lockenwitz, LT-391-16/CO, NYLJ 1202765662342, at *1 (City, AL, Decided Aug. 1, 2016), Marcelle, J.


Landlord-Tenant—Rent Stabilization—Succession Claim Failed Because Respondent Came to New York to Help Her Mother, But Did Not Change Her Primary Residence—Respondent Owned Home in Florida, Filed Income Taxes in Florida, Held Florida Driver’s License, Was Attorney Admitted to the Florida Bar, Maintained Bank Accounts In Florida, Took Florida Business Expense Deductions

In a succession rights proceeding, the respondent stated that she took care of the prior rent-stabilized tenant, her mother, as her mother was declining in health, for the requisite two-year “succession period.” The need to care for her mother allegedly caused the respondent “to miss her son’s high school milestones;” and her daughter had come to New York for “months at a time” and was “home-schooled.” She further explained that documents placed her in Florida during the relevant time period, because her husband continued to live there during such time period. She further alleged that her care for her mother “caused her to forgo so much income that her husband became the breadwinner for the family and…she is also a member of the New York bar.”

Since the facts were not in dispute, the court found that summary judgment was appropriate.

The court explained that “[n]ormally, care of an ailing relative away from one’s home while one continues to maintain connections to one’s home establishes primary residency at the home,…not where the ailing relative lives, particularly when one continues to file taxes at one’s home,…maintain bank accounts at the home,…and maintain utility accounts at the home.” The court stated that “all else being equal, the home of an ailing relative one cares for is not one’s primary residence.” The court acknowledged that “a case-specific determination could potentially find that the home of an ailing relative one cares for could end up becoming that person’s primary residence,” but “that person would need to demonstrate the normal indicia of primary residence.”

Here, the court held that “the respondent’s mere assertion that the subject premises is her primary residence is insufficient to overcome the battery of documents connecting her to her home in Florida, particularly her write-off of her home in Florida for business purposes, which shows that she was conducting her business in Florida.”

Accordingly, the court granted the landlord a final judgment of possession.

ROC Century Associates v. Papavasiliou, 82510/2014, NYLJ 1202764513404, at *1 (Civ., NY, Decided Aug. 1, 2016), Stoller, J.


Landlord-Tenant—Rent Stabilization—Nuisance—Alleged Illegal Activity—Illegal Sublet—Predicate Notice Insufficient—One Alleged Incident Did Not Establish Continuing Dangerous Misconduct—Petition Dismissed

A landlord commenced a holdover proceeding, seeking possession of a rent-stabilized apartment based on, an illegal sublet and nuisance. The predicate notice stated that the respondent had “illegally sublet the apartment” to three people and that if the respondent failed to cure the illegal sublet, the tenancy would be terminated. The notice failed to allege that respondent did not reside in the apartment and did not state how the respondent should “cure.”

The portion of the notice that alleged nuisance stated, in part:

…you and/or occupants of the…apartment are causing,…and permitting conduct which interferes with the rights, safety,…of other tenants …, in that, upon information and belief, on or about April 23, 2015, a search warrant was executed at the…premises and resulted in the arrest of four (4) occupants of the…apartment, which included [the three alleged subtenants] and another individual, for violating New York Penal Law Section 220.16 (Criminal Possession of a Controlled Substance in the 3rd degree—…), New York Penal Law Section 220.50 (Criminally using Drug Paraphernalia in the 2nd degree—…) and New York Penal Law Section 220.03 (Criminal possession of a Controlled Substance in the 7th Degree—…), New York Penal Law Section 221.10 (Criminal possession of Marijuana in the 5th degree….)

The respondent moved to dismiss on the basis of “an insufficient and defective predicate notice.” The respondent stated that she lived in the apartment for 12 years, she is 52 years old, she is a Section 8 recipient and her only income is social security disability. She lives in the apartment with her daughter. The named respondents who were arrested in the apartment, “were boyfriends of the respondent and her daughter.” The two men did not live in the apartment and did not have keys to the apartment. The respondent claimed that “she was completely surprised by the drug raid on April 23, 2015.” Neither the respondent nor her daughter were arrested or charged with crimes related to the search. The respondent alleged that the “raid was the only time the police were in her apartment in her twelve-year tenancy.”

The court explained that “[a] nuisance involves conduct that is recurring, frequent, continuous or extremely dangerous, which constitutes an unreasonab1e or unlawful use of the property to the annoyance, inconvenience, discomfort or damage of others that has the primary purpose of intentionally harassing the landlord, other tenants or occupants by substantially interfering with their comfort or safety.” Here, the notice alleged only “one act.” The police had arrested two individuals in the apartment, who apparently “were guests of the respondent.”

The court observed that there was “only one event that is the basis of the nuisance, and the notice fails to state how the raid is evidence of respondent’s misconduct, or caused harm to the petitioner or the other tenants.” There was “no allegation of on going criminal or drug activity,” and there was “no allegation of on going nuisance behavior other than one event.” Neither the respondent nor her daughter were arrested during the raid and there was “no allegation of recurring, frequent, continuous or extremely dangerous behavior which constitute[d] an unreasonable or unlawful use of the property.” Prior case law held that a predicate “notice alleging a single incident…is insufficient…to support a nuisance holdover proceeding.”

The court further explained that a cause of action for “a sublet requires that the petitioner allege that the tenant is not residing in the apartment, vacated the apartment, and/or has not been seen at the subject apartment, and that someone else is residing there.” Moreover, “[a] rent stabilized tenant has the right to cure the sublet.” Here, the notice failed “to allege that respondent no longer resides in the apartment, that she has vacated, or even that she has not been seen at the apartment.” The court noted that there is no “cure” for a tenant who never left their apartment and simply had overnight guests. Thus, the court held that the notice was facially defective and granted the motion to dismiss the petition.

1120 Bergen Street, LLC v. Beckford, 062365/2016, NYLJ 1202765154516, at *1 (Civ., KI, Decided Aug. 5, 2016), Sikowitz, J.