Scott E. Mollen
Scott E. Mollen ()

Landlord-Tenant—Rent Stabilization—Alleged Illegal Sublet—Predicate Notice Failed to Sufficiently Set Forth Specific Factual Allegations—”Court Is Not a Place to Throw Claims Against the Wall Just to See What Sticks”

A landlord commenced a summary eviction proceeding, alleging that the respondent tenant had illegally “sublet or assigned her rent stabilized apartment without” the landlord’s permission. The predicate notice to cure (notice) stated that:

(1) [tenant] is “currently residing either at [address], Wurtsboro, NY…and/or elsewhere other than at the premises involved;” and (2) [tenant] has “permitted Hamid Razik, John Doe,”…to use or occupy the premises involved and/or sublet the same or assigned [her] rights of tenancy to [the same individuals] without first obtaining your landlord’s written consent.

The notice alleged no other facts. The tenant moved, pre-answer, to dismiss the petition on the ground that “the [notice] contain[ed] insufficient facts.” The tenant acknowledged that she owns property in Wurtsboro, but claimed that it is a “summer home only” and that Mr. Razik lives in her apartment as a “roommate.”

The Appellate Term has observed that “the ‘salutary’ purpose of requiring specific facts is ‘to discourage baseless eviction claims founded upon speculation and surmise, rather than concrete facts’….”

The subject court noted that the seriousness with which the Appellate Term “reviews predicate notices to ensure that this purpose is not undermined is illustrated by its recent decision in 128 Second Realty v. Dobrowolski(51 Misc 3d 147[A], 2016 NY Slip Op 50772[U] [App Term, 1st Dept. 2016]).” A concurring opinion in 128 Second Realty, explained that “a more thorough facts investigation should be undertaken before starting this nuisance-type eviction proceeding.”

In the subject case, the landlord’s managing agent asserted that the landlord had “undertaken a ‘comprehensive investigation’” through which the agent “became aware that [tenant] has not been residing at the subject premises and resides at either [the Wurtsboro address] or elsewhere unknown to [landlord].” Based on the foregoing, the landlord commenced the instant holdover proceeding.

The court opined that “either the investigation revealed very little information or [landlord] has declined to share the information with [tenant] and the court, as no additional details regarding what the comprehensive investigation entailed or revealed are provided in the affidavit or [notice].” The court further stated that “[t]he paucity of specific facts in the notice is all the more glaring after reviewing [landlord's] burden of proof when alleging illegal sublet.” The court emphasized that “[e]vidence that someone other than the tenant occupies an apartment, without more, does not establish a sublet….” Moreover, to establish an illegal sublet or assignment, “a landlord must do more than simply demonstrate that the apartment is or may not be the tenant’s primary residence….”

Additionally, the court stated that “[a] holdover summary eviction proceeding must be based on concrete facts, not speculation or surmise, as evidenced by sufficient specific factual allegations in the [notice].” “If a landlord has concrete facts to support its claims, but fails to include them in the predicate notice out of expediency or the hope of gaining some advantage, it does so at its own peril. But if a landlord does not have concrete facts to support its claims, then it must refrain from commencing litigation until after it has conducted a thorough investigation. The court is not a place to throw claims against a wall just to see what sticks.” Accordingly, the court dismissed the petition on the grounds that the notice failed to sufficiently set forth specific factual allegations in support of the landlord’s claim.

East Village Re Holdings v. McGowan, 83676/2015, NYLJ 1202769084623, at *1 (Civ., NY, Decided Sept. 19, 2016), Weisberg, J.


Land Use—Public Trust Doctrine—Environmental Review—Hudson River Park Trust Had Taken the “Requisite ‘Hard Look’ at the Project’s Anticipated Adverse Environmental Impacts”—Had Provided a “‘Reasoned Elaboration’ for the ‘Negative Declaration, and Its Determination Was Not Arbitrary or Capricious, Unsupported by the Evidence, or a Violation of the Law”

A trial court held, inter alia, that the “respondents’ proposed Pier 55 project, including respondent Hudson River Park Trust’s (trust) decision to enter into a lease with respondent PIER55, Inc., does not violate the public trust doctrine….” The trial court dismissed the subject Article 78 proceeding. The Appellate Division, First Department (court) affirmed.

The court found that the trust had taken the required “‘hard look’ at the project’s anticipated adverse environmental impacts, and provided a ‘reasoned elaboration’ for the negative declaration, and its determination was not arbitrary and capricious, unsupported by the evidence, or a violation of law….” The court held that the trust’s use of a “previously permitted 2005 Pier 54 rebuild design as the ‘no action’ alternative in its SEQRA [State Environmental Quality Review Act] analysis was ‘not irrational, an abuse of discretion, or arbitrary and capricious and,…, should not be disturbed’….” The court further found that the trust had “adequately considered the cumulative impacts of the Pier 55 project and the nearby Pier 57 project in issuing the negative declaration.”

The court also held that the petitioners lacked “standing to object to the trust’s failure to issue any bid prospectus with respect to the Pier 55 lease…, since they never alleged…that they had the wherewithal to submit a plausible competing bid or that, having suitable resources and expertise, they would have done so….” The court also rejected the petitioners’ argument that they did not have to “state what their bid would be since the trust failed to state what the prospectus would have looked like.” Although there was no prospectus, “the record contains a detailed statement of the Pier 55 project, with projected costs and the amounts to be contributed by PIER55′s philanthropic principals.” Thus, the court held that the petitioners had “sufficient information to make a bid.”

The court further found that construction of Pier 55 outside of Pier 54′s historic footprint did not violate the Hudson River Park Act’s Estuarine Sanctuary provisions. The court opined that a “2013 amendment to the provisions, referring to a ‘reconstruction’ or ‘redesign’ of Pier 54 outside of its historic footprint, makes clear that the Legislature was authorizing an entirely new, redesigned structure….” The court reasoned that given “the amendment’s plain language…, petitioners’ reliance on the statement of one of the amendment’s cosponsors, who asserts that she believed that the new structure would be substantially similar to the old Pier 54, is unavailing….”

Additionally, the court noted that there was “no case law in New York applying the public trust doctrine to state, as opposed to municipal, parkland….” The court believed that it “need not decide whether to follow” a Fourth Department decision, since “even if the doctrine applies here, the project and lease do not violate it. The Hudson River Park Act expressly authorizes the use of the park for revenue-generating events, including performing arts events…, and courts have upheld the charging of fees for park facilities, provided that overall public access is not unduly constrained….”

The court also observed that “beyond the performances for which Pier 55 is designed, most of the park-like pier, most of the time, will be devoted to even more fundamental ‘public park uses, including passive and active public open space uses’….” Finally, the court noted that “the lease requires that 51 percent of the performances be free or low-cost.” Accordingly, the court affirmed.

City Club v. Park Trust, 101068/15, NYLJ 1202767020810, at *1 (App. Div., 1st, Decided Sept. 8, 2016) Before: Friedman, J.P., Richter, Gische, Kahn, JJ.


Landlord-Tenant—Holdover Proceeding—Tenant’s Chronic Late Payment and Nonpayment of Rent

This decision involved a holdover proceeding predicated upon a “chronic late payment and nonpayment of rent.” A notice of termination alleged that since 2002, the landlord “had to commence sixteen separate nonpayment proceedings and serve an additional four rent demands.” During the six years prior to the commencement of this proceeding, the landlord had commenced seven nonpayment cases and served an additional two rent demands. The proceeding was originally settled two years ago, pursuant to “a two-attorney stipulation under which respondent [tenant] was required to pay the then-outstanding arrears of $6,191.95 by the end of the month and then, for a period of eighteen months starting with October 2014, adhere to a strict rent payment schedule under which he was required to pay his rent by the tenth day of each month starting with the month of October 2014 and continuing through the end of February 2016.” The stipulation stated in capital letters that “NO CURE PERIODS SHALL BE GIVEN” and “NO ONE DEFAULT SHALL BE DEEMED DE MINIMUS.”

The tenant “immediately defaulted” by failing to timely pay the arrears and rent for October 2014. The tenant thereafter moved for “an extension of the payment deadline and reinstatement of the probationary period.” A prior court noted that the tenant was “a twenty year tenant, and presented an ability to become current under the stipulation,” and “stayed execution of the warrant of eviction through December 31, 2014 for [tenant] to become current on his rent…, and, upon making such payment in full and on time, ordered [tenant] to be restored to the terms of the probationary stipulation, which the court extended through May 2016.”

The tenant thereafter defaulted again and obtained another order to show cause. Another stipulation was entered into which stated that the tenant sought “one last opportunity to remain in possession” and provided the tenant with an extension to pay its rent. After making certain payments, the tenant again defaulted. The tenant claimed that he had mailed a money order to the landlord, but it had been “lost in the mail ‘and ultimately cashed by a stranger.’” The tenant neither provided a copy of the money order nor an explanation for why he had only made a partial rent payment and had additional rent defaults.

The court explained that “where there is a lengthy history of late payment and nonpayment of rent, or other breaches of a probationary stipulation, without sufficiently compelling and mitigating circumstances,” it is “inappropriate to exercise…discretion” to prevent forfeiture of a leasehold. The court found that the tenant’s current request for extension presented “no compelling reason to ignore the court’s prior order and grant respondent a third chance, and it would be improvident for the court to exercise its discretion not to enforce the stipulations in this case at this juncture.”

Thus, the court denied the tenant’s request for further extension of time to pay rent and be placed back on probation. The court stayed execution of the warrant of eviction for a short period of time to allow the tenant “a limited opportunity to seek alternate housing,” provided that the tenant “reduce his rent account to zero by paying the balance due” and that the tenant thereafter pay use and occupancy no later than the tenth day of the month. In the event of any default in payment, the warrant of eviction could be executed “after service by first-class mail of the requisite City Marshal’s six-day notice of eviction.”

NSA 2015 Owner v. Frederick, 39206/2014, NYLJ 1202767129843, at *1 (Civ., BX, Decided Sept. 6, 2016), Lutwak, J.

Landlord-Tenant—Rent Stabilization—Alleged Illegal Sublet—Predicate Notice Failed to Sufficiently Set Forth Specific Factual Allegations—”Court Is Not a Place to Throw Claims Against the Wall Just to See What Sticks”

A landlord commenced a summary eviction proceeding, alleging that the respondent tenant had illegally “sublet or assigned her rent stabilized apartment without” the landlord’s permission. The predicate notice to cure (notice) stated that:

(1) [tenant] is “currently residing either at [address], Wurtsboro, NY…and/or elsewhere other than at the premises involved;” and (2) [tenant] has “permitted Hamid Razik, John Doe,”…to use or occupy the premises involved and/or sublet the same or assigned [her] rights of tenancy to [the same individuals] without first obtaining your landlord’s written consent.

The notice alleged no other facts. The tenant moved, pre-answer, to dismiss the petition on the ground that “the [notice] contain[ed] insufficient facts.” The tenant acknowledged that she owns property in Wurtsboro, but claimed that it is a “summer home only” and that Mr. Razik lives in her apartment as a “roommate.”

The Appellate Term has observed that “the ‘salutary’ purpose of requiring specific facts is ‘to discourage baseless eviction claims founded upon speculation and surmise, rather than concrete facts’….”

The subject court noted that the seriousness with which the Appellate Term “reviews predicate notices to ensure that this purpose is not undermined is illustrated by its recent decision in 128 Second Realty v. Dobrowolski(51 Misc 3d 147[A], 2016 NY Slip Op 50772[U] [App Term, 1st Dept. 2016]).” A concurring opinion in 128 Second Realty, explained that “a more thorough facts investigation should be undertaken before starting this nuisance-type eviction proceeding.”

In the subject case, the landlord’s managing agent asserted that the landlord had “undertaken a ‘comprehensive investigation’” through which the agent “became aware that [tenant] has not been residing at the subject premises and resides at either [the Wurtsboro address] or elsewhere unknown to [landlord].” Based on the foregoing, the landlord commenced the instant holdover proceeding.

The court opined that “either the investigation revealed very little information or [landlord] has declined to share the information with [tenant] and the court, as no additional details regarding what the comprehensive investigation entailed or revealed are provided in the affidavit or [notice].” The court further stated that “[t]he paucity of specific facts in the notice is all the more glaring after reviewing [landlord's] burden of proof when alleging illegal sublet.” The court emphasized that “[e]vidence that someone other than the tenant occupies an apartment, without more, does not establish a sublet….” Moreover, to establish an illegal sublet or assignment, “a landlord must do more than simply demonstrate that the apartment is or may not be the tenant’s primary residence….”

Additionally, the court stated that “[a] holdover summary eviction proceeding must be based on concrete facts, not speculation or surmise, as evidenced by sufficient specific factual allegations in the [notice].” “If a landlord has concrete facts to support its claims, but fails to include them in the predicate notice out of expediency or the hope of gaining some advantage, it does so at its own peril. But if a landlord does not have concrete facts to support its claims, then it must refrain from commencing litigation until after it has conducted a thorough investigation. The court is not a place to throw claims against a wall just to see what sticks.” Accordingly, the court dismissed the petition on the grounds that the notice failed to sufficiently set forth specific factual allegations in support of the landlord’s claim.

East Village Re Holdings v. McGowan, 83676/2015, NYLJ 1202769084623, at *1 (Civ., NY, Decided Sept. 19, 2016), Weisberg, J.


Land Use—Public Trust Doctrine—Environmental Review—Hudson River Park Trust Had Taken the “Requisite ‘Hard Look’ at the Project’s Anticipated Adverse Environmental Impacts”—Had Provided a “‘Reasoned Elaboration’ for the ‘Negative Declaration, and Its Determination Was Not Arbitrary or Capricious, Unsupported by the Evidence, or a Violation of the Law”

A trial court held, inter alia, that the “respondents’ proposed Pier 55 project, including respondent Hudson River Park Trust’s (trust) decision to enter into a lease with respondent PIER55, Inc., does not violate the public trust doctrine….” The trial court dismissed the subject Article 78 proceeding. The Appellate Division, First Department (court) affirmed.

The court found that the trust had taken the required “‘hard look’ at the project’s anticipated adverse environmental impacts, and provided a ‘reasoned elaboration’ for the negative declaration, and its determination was not arbitrary and capricious, unsupported by the evidence, or a violation of law….” The court held that the trust’s use of a “previously permitted 2005 Pier 54 rebuild design as the ‘no action’ alternative in its SEQRA [State Environmental Quality Review Act] analysis was ‘not irrational, an abuse of discretion, or arbitrary and capricious and,…, should not be disturbed’….” The court further found that the trust had “adequately considered the cumulative impacts of the Pier 55 project and the nearby Pier 57 project in issuing the negative declaration.”

The court also held that the petitioners lacked “standing to object to the trust’s failure to issue any bid prospectus with respect to the Pier 55 lease…, since they never alleged…that they had the wherewithal to submit a plausible competing bid or that, having suitable resources and expertise, they would have done so….” The court also rejected the petitioners’ argument that they did not have to “state what their bid would be since the trust failed to state what the prospectus would have looked like.” Although there was no prospectus, “the record contains a detailed statement of the Pier 55 project, with projected costs and the amounts to be contributed by PIER55′s philanthropic principals.” Thus, the court held that the petitioners had “sufficient information to make a bid.”

The court further found that construction of Pier 55 outside of Pier 54′s historic footprint did not violate the Hudson River Park Act’s Estuarine Sanctuary provisions. The court opined that a “2013 amendment to the provisions, referring to a ‘reconstruction’ or ‘redesign’ of Pier 54 outside of its historic footprint, makes clear that the Legislature was authorizing an entirely new, redesigned structure….” The court reasoned that given “the amendment’s plain language…, petitioners’ reliance on the statement of one of the amendment’s cosponsors, who asserts that she believed that the new structure would be substantially similar to the old Pier 54, is unavailing….”

Additionally, the court noted that there was “no case law in New York applying the public trust doctrine to state, as opposed to municipal, parkland….” The court believed that it “need not decide whether to follow” a Fourth Department decision, since “even if the doctrine applies here, the project and lease do not violate it. The Hudson River Park Act expressly authorizes the use of the park for revenue-generating events, including performing arts events…, and courts have upheld the charging of fees for park facilities, provided that overall public access is not unduly constrained….”

The court also observed that “beyond the performances for which Pier 55 is designed, most of the park-like pier, most of the time, will be devoted to even more fundamental ‘public park uses, including passive and active public open space uses’….” Finally, the court noted that “the lease requires that 51 percent of the performances be free or low-cost.” Accordingly, the court affirmed.

City Club v. Park Trust, 101068/15, NYLJ 1202767020810, at *1 (App. Div., 1st, Decided Sept. 8, 2016) Before: Friedman, J.P., Richter, Gische, Kahn, JJ.


Landlord-Tenant—Holdover Proceeding—Tenant’s Chronic Late Payment and Nonpayment of Rent

This decision involved a holdover proceeding predicated upon a “chronic late payment and nonpayment of rent.” A notice of termination alleged that since 2002, the landlord “had to commence sixteen separate nonpayment proceedings and serve an additional four rent demands.” During the six years prior to the commencement of this proceeding, the landlord had commenced seven nonpayment cases and served an additional two rent demands. The proceeding was originally settled two years ago, pursuant to “a two-attorney stipulation under which respondent [tenant] was required to pay the then-outstanding arrears of $6,191.95 by the end of the month and then, for a period of eighteen months starting with October 2014, adhere to a strict rent payment schedule under which he was required to pay his rent by the tenth day of each month starting with the month of October 2014 and continuing through the end of February 2016.” The stipulation stated in capital letters that “NO CURE PERIODS SHALL BE GIVEN” and “NO ONE DEFAULT SHALL BE DEEMED DE MINIMUS.”

The tenant “immediately defaulted” by failing to timely pay the arrears and rent for October 2014. The tenant thereafter moved for “an extension of the payment deadline and reinstatement of the probationary period.” A prior court noted that the tenant was “a twenty year tenant, and presented an ability to become current under the stipulation,” and “stayed execution of the warrant of eviction through December 31, 2014 for [tenant] to become current on his rent…, and, upon making such payment in full and on time, ordered [tenant] to be restored to the terms of the probationary stipulation, which the court extended through May 2016.”

The tenant thereafter defaulted again and obtained another order to show cause. Another stipulation was entered into which stated that the tenant sought “one last opportunity to remain in possession” and provided the tenant with an extension to pay its rent. After making certain payments, the tenant again defaulted. The tenant claimed that he had mailed a money order to the landlord, but it had been “lost in the mail ‘and ultimately cashed by a stranger.’” The tenant neither provided a copy of the money order nor an explanation for why he had only made a partial rent payment and had additional rent defaults.

The court explained that “where there is a lengthy history of late payment and nonpayment of rent, or other breaches of a probationary stipulation, without sufficiently compelling and mitigating circumstances,” it is “inappropriate to exercise…discretion” to prevent forfeiture of a leasehold. The court found that the tenant’s current request for extension presented “no compelling reason to ignore the court’s prior order and grant respondent a third chance, and it would be improvident for the court to exercise its discretion not to enforce the stipulations in this case at this juncture.”

Thus, the court denied the tenant’s request for further extension of time to pay rent and be placed back on probation. The court stayed execution of the warrant of eviction for a short period of time to allow the tenant “a limited opportunity to seek alternate housing,” provided that the tenant “reduce his rent account to zero by paying the balance due” and that the tenant thereafter pay use and occupancy no later than the tenth day of the month. In the event of any default in payment, the warrant of eviction could be executed “after service by first-class mail of the requisite City Marshal’s six-day notice of eviction.”

NSA 2015 Owner v. Frederick, 39206/2014, NYLJ 1202767129843, at *1 (Civ., BX, Decided Sept. 6, 2016), Lutwak, J.