Scott E. Mollen
Scott E. Mollen ()

Landlord-Tenant—Chronic Rent Delinquency -Six Year Statute of Limitations Does Not Bar Court From Considering Cases That Were More Than Six Years Old—However, Petition Dismissed Because There Had Not Been a Nonpayment Proceeding Commenced In the Prior Six Years and Therefore, Landlord Failed to Establish a “Continuous Pattern”

A landlord commenced a holdover eviction proceeding, alleging that a tenant violated “a substantial obligation of his rent-stabilized lease by being ‘frequently late…causing the landlord to institute numerous non-payment of rent summary proceedings….’” A notice of termination cited 14 nonpayment proceedings which had been commenced against the tenant between 2000 and 2015. The tenant asserted that the petition failed to state a cause of action for chronic rent delinquency and failed to state a cause of action based upon the six-year statute of limitations (SOL). The tenant moved for summary judgment.

To succeed on a claim for chronic rent delinquency, “a landlord must establish it was required to commence frequent nonpayment proceedings against a tenant in a relatively short period of time demonstrating a pattern.” The tenant contended that the six-year SOL for actions based on contract “bars the consideration of any nonpayment proceeding commenced more than six years prior to the filing of the holdover petition, and that because thirteen of the fourteen cases are over six years old and barred, this case should be dismissed.” The landlord countered that the SOL is a defense and “it is not a rule of evidence which would prevent the trier of fact from considering evidence, including cases older than six years.”

The court explained that “the six-year [SOL] does not automatically prevent consideration of cases more than six years old.” When considering chronic nonpayment holdover claims, courts will consider “the pattern of a landlord commencing repeated nonpayment proceedings. If a pattern of repeated nonpayment proceedings is continuous, there could be an argument that earlier cases, even cases over six years old could be part of a continuum with later cases.”

Here, 13 of the 14 nonpayment cases had been commenced between 2000 and 2009. Only one case was commenced after 2009, “a single 2015 case.” Thus, the period between the thirteenth and the fourteenth case exceeds six years. The court found that such “considerable gap exceeds not only the six-year [SOL] for actions based on contractual agreements, but also fails to establish that there is a continuous and repeated pattern requiring petitioner to resort to legal process for the collection of rent.” The court noted that “the need for continuous legal process ceased in August 2009 when the thirteenth case was discontinued on the first court date.” Thus, the court held that “[t]he commencement of one nonpayment proceeding six years later is insufficient to state a cause of action for breach of a substantial obligation of a tenancy for chronic nonpayment of rent.”

The court further explained that “[t]he late payment of rent, without the commencement of repeated nonpayment cases, fails to establish the existence of a cause of action for a chronic nonpayment rent holdover.” The court concluded that the six-year gap, during which the six-year SOL elapsed, “renders unpersuasive the argument that the earlier group of 13 nonpayment proceedings ending in 2009 are ‘part of a continuum’ that somehow connects the one 2015 case to a pattern.” Accordingly, the court dismissed the proceeding.

H.W. Hinkley Realty v. Romulus, 62371/16, NYLJ 1202779036943, at *1 (Civ., KI, Decided Jan. 24, 2017), Stanley, J.


Landlord-Tenant—Nuisance—Alleged Illegal Commercial Kitchen in Residential Apartment Which Lacked Exhaust Hood, Grease Trap and Sprinklers—For 16 Years Tenant Prepared 12-15 Lunches For Sale at Construction Sites to Support Family—Proceeding Dismissed

A landlord commenced a holdover proceeding, alleging that a rent-stabilized tenant “breached a substantial obligation of the lease or caused a nuisance by the cooking and packaging of lunches in the kitchen of the premises to be sold outside the premises.” The landlord asserted that a contractor had observed the tenant “carrying large quantities of food out of the apartment.” The landlord retained an architectural/engineering firm (architect), to ascertain whether the apartment “was being used for commercial purposes or whether the conduct posed a hazard.” Based upon the architect’s report, the landlord concluded that “there was an illegal use of the kitchen which was potentially hazardous to other tenants as well as to the integrity of the building.” Since the illegal use allegedly continued following service of a notice to cure, the landlord commenced the subject proceeding.

The tenant lived in the second floor apartment for 24 years with her husband, three children and both her parents. To support her family, she prepares and cooks Ecuadorian food in her kitchen and then sells it “at construction sites Monday through Saturday.” The tenant has a “food vendor’s license” and “sells on average 12 to 15 lunches a day.” The tenant disposes of grease, by allowing it “to congeal…places it in a plastic bag and places the bag in the garbage.” Approximately six months prior to the proceeding, the tenant had purchased a fire extinguisher. The average length of time for food preparation was two hours. The tenant opens the apartment windows to permit ventilation. However, the kitchen lacks water sprinklers and the sink lacks a “grease trap.”

The tenant stated that “she cleans the oven daily with Easy Off” and that she had permission from the prior landlord to cook in the premises. The current landlord bought the building approximately four years ago. The tenant testified that “there was never a fire or other serious condition in the kitchen during the 15 years of food preparation.”

The landlord’s architect testified, inter alia, that although she saw “a smoke detector and carbon monoxide detector,” she did not see “any mechanical ventilation systems or grease disposal equipment.” The architect opined that “the absence of a fire suppression system violated the NYC Building Code §904.2.” The architect further testified that the building was located in a zoning district that “permitted commercial usage” only on the first floor of the building. The architect asserted that the zoning permitted a home occupation, “but that there are six restrictions to such use,” e.g., there cannot be “excessive noise, vibration, smoke, dust, odors, heat, humidity or other objectionable effects.”

Additionally, the architect testified that “the use of this kitchen with intent to sell” the food “is the very definition of a commercial kitchen and that such use violates the permissible” zoning. She also stated that the lack of an exhaust hood above the stove creates “the likelihood of a fire spreading and violates the mechanical code….” She further noted that a grease trap is mandated for commercial kitchens pursuant to NYC Plumbing Code §§10003.1 to 1003.3.5 and that the absence of a grease trap could lead to “a backup up into other residents’ apartments.” She further testified that a commercial kitchen on the second floor violated ZR §32-421, which requires that a commercial kitchen be on the first floor when in the subject zoning district.

The prior landlord acknowledged that he had given permission to the tenant “to cook in the premises and sell the lunches outside the premises.” However, he stated that such consent was given “without investigating the legality of the matter and he did not inform the buyer of the agreement with [the tenant].”

The court had previously struck the landlord’s claim pursuant to RSC §2524.3(c) that the food preparation “for sale outside the premises constituted an illegal use of the premises.” The court had cited “the lack of an underlying violation.” The court then considered whether the tenant “violated a substantial obligation of the lease under RSC §2524.3(a) or that the alleged activity constitutes a nuisance under RSC §2524.3(b).”

The court explained that “[g]enerally, in order for a business use of the premises to substantially violate the lease, the business use must materially affect the character of the building, materially damage or burden the property or materially disturb other tenants.” Neither the petition nor the predicate notices cited a particular provision of the lease that the tenant had substantially violated. The court found that [t]he credible testimony and documentary evidence failed to establish that [the tenant] violated a substantial obligation of the lease.”

The court observed that the tenant’s business was “not a large business enterprise but rather an example of an enterprising immigrant mother helping to support her family by preparing home cooked meals for workers at construction sites.” The court cited the lack of tenant complaints or evidence of “increased traffic to the premises or a rodent or cockroach infestation, fires, floods or any other negative consequence that has resulted from [the tenant's] cooking which has lasted for the past 16 years.” The court acknowledged that the volume of cooked meals might “trigger the requirements for a commercial kitchen.” However, the court found that the facts did not support such a conclusion.

The court then explained:

A “nuisance,” for purposes of the Rent Stabilization Code, is a “condition that threatens the comfort and safety of others in the building” and “key to the definition is a pattern of continuity or recurrence of objectionable conduct”…. Not every annoyance or interference constitutes a nuisance…. A nuisance must “interfere with a person’s interest in the use and enjoyment of land”…. Moreover, any threat from a nuisance must be real and imminent.

The court found that there was “no evidence of damage to property or imminent danger of such damage.” Although the landlord’s architect testified “that the mere fact that food was prepared…with intent to sell rendered the kitchen a commercial kitchen,” there were “no violations” for “failure to install life and safety equipment required in commercial kitchens.” Moreover, “the testimony did not establish an imminent threat to the landlord or other occupants of the building,” since the tenancy existed for 24 years and the tenant had prepared meals for sale outside the apartment for 16 of those years, “without complaint or other incident from the former landlord or from other tenants.”

Thus, the court held that the behavior did not rise to the level of a “nuisance that poses an imminent threat to the landlord or other tenants” and dismissed the petition.

121 Irving MGM v. Perez, 80117/15, NYLJ 1202780068804, at *1 (Civ., KI, Decided Jan. 18, 2017), Stanley, J.


Landlord-Tenant—Rent Stabilization—Succession Rights—If Respondent Was Disabled, Then the Co-Residency Requirement Is One Year—Depression Is a Qualifying Disability, But Alcoholism Is Not A Qualifying Disability

A landlord of a rent-stabilized apartment commenced a holdover proceeding against a respondent on the grounds that the respondent is “a licensee whose license has terminated.” The respondent, the prior tenant’s son, asserted that “he had the right to succeed to the prior tenancy.” The landlord moved for summary judgment. The prior tenant had died on May 14, 2014. The respondent had remained in possession of the apartment after the prior tenant’s death.

The salient issue was whether the son had resided with the prior tenant for the requisite time period. The respondent had moved into the apartment in September 2012, “more than a year, but less than two years before the prior tenant [died].” “If respondent is disabled, one year of co-residency with the prior tenant confers succession rights upon him, and if respondent is not disabled, two years of co-residency with the prior tenant confers succession rights upon him.” Thus, the issue was whether the respondent is disabled. The court explained:

In order to prove that respondent is “disabled” for the purposes of his succession claim, respondent must prove that he has an impairment which results from anatomical, physiological or psychological conditions, other than addiction to alcohol, gambling, or any controlled substance, which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques, and which are expected to be permanent and which substantially limit one or more of respondent’s major life activities.

The respondent asserted that he had suffered from “severe depression for several years.” The respondent submitted “a letter from a hospital stating that he had been depressed and suicidal.” The respondent further alleged that “he has been prescribed medication for this condition.” However, the respondent also acknowledged that he has been an alcoholic.

The court explained that “[d]epression may constitute a disability under federal law.” The respondent had been approved for Supplemental Security Income (SSI) on March 28, 2016 retroactive to September of 2015.” In order to be eligible for SSI, “the Social Security Administration (SSA) would have had to determine that respondent has had, inter alia, a mental impairment which is demonstrable by medically acceptable clinical and laboratory diagnostic techniques.”

The landlord argued that the respondent’s alcoholism bars a finding that he is disabled, citing the definition set forth in Rent Stabilization Code 9 N.Y.C.R.R. §2523.5(b)(4). The court reasoned that the landlord had not eliminated “issues of fact that respondent’s depression may have a separate cause than alcoholism.” The court stated that the respondent “would not have been eligible for SSI if alcoholism was a contributing factor material to the determination that he is disabled….” A “disability independent of alcoholism still renders an applicant eligible for SSI.”

The landlord further argued that the respondent’s disability “did not arise until after the prior tenant died,” and therefore, the respondent may not rely on the one-year co-residency succession standard. The court explained that “when a tenant acquires a status that the Rent Stabilization Code or Rent Control Law protect during the pendency of litigation, the tenant generally may avail himself or herself of the benefits of that status.”

The record was not “clear that respondent’s depression first manifested after the prior tenant died.” Although the SSI benefits began after the prior tenant died, “the earliest month that SSA pays benefits is the month following the month an applicant files an application for benefits,…, not necessarily the month in which the disability started.”

Thus, the court found that the respondent’s allegation that he suffers from depression and his supporting documentation raised issues of fact as to whether he is disabled. Accordingly, the court denied the landlord’s motion for summary judgment with respect to the respondent’s succession defense.

Roc-Jane Street v. Riffon, 67873/2015, NYLJ 1202778035284, at *1 (Civ., NY, Decided Jan. 25, 2017), Stoller, J.

Landlord-Tenant—Chronic Rent Delinquency -Six Year Statute of Limitations Does Not Bar Court From Considering Cases That Were More Than Six Years Old—However, Petition Dismissed Because There Had Not Been a Nonpayment Proceeding Commenced In the Prior Six Years and Therefore, Landlord Failed to Establish a “Continuous Pattern”

A landlord commenced a holdover eviction proceeding, alleging that a tenant violated “a substantial obligation of his rent-stabilized lease by being ‘frequently late…causing the landlord to institute numerous non-payment of rent summary proceedings….’” A notice of termination cited 14 nonpayment proceedings which had been commenced against the tenant between 2000 and 2015. The tenant asserted that the petition failed to state a cause of action for chronic rent delinquency and failed to state a cause of action based upon the six-year statute of limitations (SOL). The tenant moved for summary judgment.

To succeed on a claim for chronic rent delinquency, “a landlord must establish it was required to commence frequent nonpayment proceedings against a tenant in a relatively short period of time demonstrating a pattern.” The tenant contended that the six-year SOL for actions based on contract “bars the consideration of any nonpayment proceeding commenced more than six years prior to the filing of the holdover petition, and that because thirteen of the fourteen cases are over six years old and barred, this case should be dismissed.” The landlord countered that the SOL is a defense and “it is not a rule of evidence which would prevent the trier of fact from considering evidence, including cases older than six years.”

The court explained that “the six-year [SOL] does not automatically prevent consideration of cases more than six years old.” When considering chronic nonpayment holdover claims, courts will consider “the pattern of a landlord commencing repeated nonpayment proceedings. If a pattern of repeated nonpayment proceedings is continuous, there could be an argument that earlier cases, even cases over six years old could be part of a continuum with later cases.”

Here, 13 of the 14 nonpayment cases had been commenced between 2000 and 2009. Only one case was commenced after 2009, “a single 2015 case.” Thus, the period between the thirteenth and the fourteenth case exceeds six years. The court found that such “considerable gap exceeds not only the six-year [SOL] for actions based on contractual agreements, but also fails to establish that there is a continuous and repeated pattern requiring petitioner to resort to legal process for the collection of rent.” The court noted that “the need for continuous legal process ceased in August 2009 when the thirteenth case was discontinued on the first court date.” Thus, the court held that “[t]he commencement of one nonpayment proceeding six years later is insufficient to state a cause of action for breach of a substantial obligation of a tenancy for chronic nonpayment of rent.”

The court further explained that “[t]he late payment of rent, without the commencement of repeated nonpayment cases, fails to establish the existence of a cause of action for a chronic nonpayment rent holdover.” The court concluded that the six-year gap, during which the six-year SOL elapsed, “renders unpersuasive the argument that the earlier group of 13 nonpayment proceedings ending in 2009 are ‘part of a continuum’ that somehow connects the one 2015 case to a pattern.” Accordingly, the court dismissed the proceeding.

H.W. Hinkley Realty v. Romulus, 62371/16, NYLJ 1202779036943, at *1 (Civ., KI, Decided Jan. 24, 2017), Stanley, J.


Landlord-Tenant—Nuisance—Alleged Illegal Commercial Kitchen in Residential Apartment Which Lacked Exhaust Hood, Grease Trap and Sprinklers—For 16 Years Tenant Prepared 12-15 Lunches For Sale at Construction Sites to Support Family—Proceeding Dismissed

A landlord commenced a holdover proceeding, alleging that a rent-stabilized tenant “breached a substantial obligation of the lease or caused a nuisance by the cooking and packaging of lunches in the kitchen of the premises to be sold outside the premises.” The landlord asserted that a contractor had observed the tenant “carrying large quantities of food out of the apartment.” The landlord retained an architectural/engineering firm (architect), to ascertain whether the apartment “was being used for commercial purposes or whether the conduct posed a hazard.” Based upon the architect’s report, the landlord concluded that “there was an illegal use of the kitchen which was potentially hazardous to other tenants as well as to the integrity of the building.” Since the illegal use allegedly continued following service of a notice to cure, the landlord commenced the subject proceeding.

The tenant lived in the second floor apartment for 24 years with her husband, three children and both her parents. To support her family, she prepares and cooks Ecuadorian food in her kitchen and then sells it “at construction sites Monday through Saturday.” The tenant has a “food vendor’s license” and “sells on average 12 to 15 lunches a day.” The tenant disposes of grease, by allowing it “to congeal…places it in a plastic bag and places the bag in the garbage.” Approximately six months prior to the proceeding, the tenant had purchased a fire extinguisher. The average length of time for food preparation was two hours. The tenant opens the apartment windows to permit ventilation. However, the kitchen lacks water sprinklers and the sink lacks a “grease trap.”

The tenant stated that “she cleans the oven daily with Easy Off” and that she had permission from the prior landlord to cook in the premises. The current landlord bought the building approximately four years ago. The tenant testified that “there was never a fire or other serious condition in the kitchen during the 15 years of food preparation.”

The landlord’s architect testified, inter alia, that although she saw “a smoke detector and carbon monoxide detector,” she did not see “any mechanical ventilation systems or grease disposal equipment.” The architect opined that “the absence of a fire suppression system violated the NYC Building Code §904.2.” The architect further testified that the building was located in a zoning district that “permitted commercial usage” only on the first floor of the building. The architect asserted that the zoning permitted a home occupation, “but that there are six restrictions to such use,” e.g., there cannot be “excessive noise, vibration, smoke, dust, odors, heat, humidity or other objectionable effects.”

Additionally, the architect testified that “the use of this kitchen with intent to sell” the food “is the very definition of a commercial kitchen and that such use violates the permissible” zoning. She also stated that the lack of an exhaust hood above the stove creates “the likelihood of a fire spreading and violates the mechanical code….” She further noted that a grease trap is mandated for commercial kitchens pursuant to NYC Plumbing Code §§10003.1 to 1003.3.5 and that the absence of a grease trap could lead to “a backup up into other residents’ apartments.” She further testified that a commercial kitchen on the second floor violated ZR §32-421, which requires that a commercial kitchen be on the first floor when in the subject zoning district.

The prior landlord acknowledged that he had given permission to the tenant “to cook in the premises and sell the lunches outside the premises.” However, he stated that such consent was given “without investigating the legality of the matter and he did not inform the buyer of the agreement with [the tenant].”

The court had previously struck the landlord’s claim pursuant to RSC §2524.3(c) that the food preparation “for sale outside the premises constituted an illegal use of the premises.” The court had cited “the lack of an underlying violation.” The court then considered whether the tenant “violated a substantial obligation of the lease under RSC §2524.3(a) or that the alleged activity constitutes a nuisance under RSC §2524.3(b).”

The court explained that “[g]enerally, in order for a business use of the premises to substantially violate the lease, the business use must materially affect the character of the building, materially damage or burden the property or materially disturb other tenants.” Neither the petition nor the predicate notices cited a particular provision of the lease that the tenant had substantially violated. The court found that [t]he credible testimony and documentary evidence failed to establish that [the tenant] violated a substantial obligation of the lease.”

The court observed that the tenant’s business was “not a large business enterprise but rather an example of an enterprising immigrant mother helping to support her family by preparing home cooked meals for workers at construction sites.” The court cited the lack of tenant complaints or evidence of “increased traffic to the premises or a rodent or cockroach infestation, fires, floods or any other negative consequence that has resulted from [the tenant's] cooking which has lasted for the past 16 years.” The court acknowledged that the volume of cooked meals might “trigger the requirements for a commercial kitchen.” However, the court found that the facts did not support such a conclusion.

The court then explained:

A “nuisance,” for purposes of the Rent Stabilization Code, is a “condition that threatens the comfort and safety of others in the building” and “key to the definition is a pattern of continuity or recurrence of objectionable conduct”…. Not every annoyance or interference constitutes a nuisance…. A nuisance must “interfere with a person’s interest in the use and enjoyment of land”…. Moreover, any threat from a nuisance must be real and imminent.

The court found that there was “no evidence of damage to property or imminent danger of such damage.” Although the landlord’s architect testified “that the mere fact that food was prepared…with intent to sell rendered the kitchen a commercial kitchen,” there were “no violations” for “failure to install life and safety equipment required in commercial kitchens.” Moreover, “the testimony did not establish an imminent threat to the landlord or other occupants of the building,” since the tenancy existed for 24 years and the tenant had prepared meals for sale outside the apartment for 16 of those years, “without complaint or other incident from the former landlord or from other tenants.”

Thus, the court held that the behavior did not rise to the level of a “nuisance that poses an imminent threat to the landlord or other tenants” and dismissed the petition.

121 Irving MGM v. Perez, 80117/15, NYLJ 1202780068804, at *1 (Civ., KI, Decided Jan. 18, 2017), Stanley, J.


Landlord-Tenant—Rent Stabilization—Succession Rights—If Respondent Was Disabled, Then the Co-Residency Requirement Is One Year—Depression Is a Qualifying Disability, But Alcoholism Is Not A Qualifying Disability

A landlord of a rent-stabilized apartment commenced a holdover proceeding against a respondent on the grounds that the respondent is “a licensee whose license has terminated.” The respondent, the prior tenant’s son, asserted that “he had the right to succeed to the prior tenancy.” The landlord moved for summary judgment. The prior tenant had died on May 14, 2014. The respondent had remained in possession of the apartment after the prior tenant’s death.

The salient issue was whether the son had resided with the prior tenant for the requisite time period. The respondent had moved into the apartment in September 2012, “more than a year, but less than two years before the prior tenant [died].” “If respondent is disabled, one year of co-residency with the prior tenant confers succession rights upon him, and if respondent is not disabled, two years of co-residency with the prior tenant confers succession rights upon him.” Thus, the issue was whether the respondent is disabled. The court explained:

In order to prove that respondent is “disabled” for the purposes of his succession claim, respondent must prove that he has an impairment which results from anatomical, physiological or psychological conditions, other than addiction to alcohol, gambling, or any controlled substance, which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques, and which are expected to be permanent and which substantially limit one or more of respondent’s major life activities.

The respondent asserted that he had suffered from “severe depression for several years.” The respondent submitted “a letter from a hospital stating that he had been depressed and suicidal.” The respondent further alleged that “he has been prescribed medication for this condition.” However, the respondent also acknowledged that he has been an alcoholic.

The court explained that “[d]epression may constitute a disability under federal law.” The respondent had been approved for Supplemental Security Income (SSI) on March 28, 2016 retroactive to September of 2015.” In order to be eligible for SSI, “the Social Security Administration (SSA) would have had to determine that respondent has had, inter alia, a mental impairment which is demonstrable by medically acceptable clinical and laboratory diagnostic techniques.”

The landlord argued that the respondent’s alcoholism bars a finding that he is disabled, citing the definition set forth in Rent Stabilization Code 9 N.Y.C.R.R. §2523.5(b)(4). The court reasoned that the landlord had not eliminated “issues of fact that respondent’s depression may have a separate cause than alcoholism.” The court stated that the respondent “would not have been eligible for SSI if alcoholism was a contributing factor material to the determination that he is disabled….” A “disability independent of alcoholism still renders an applicant eligible for SSI.”

The landlord further argued that the respondent’s disability “did not arise until after the prior tenant died,” and therefore, the respondent may not rely on the one-year co-residency succession standard. The court explained that “when a tenant acquires a status that the Rent Stabilization Code or Rent Control Law protect during the pendency of litigation, the tenant generally may avail himself or herself of the benefits of that status.”

The record was not “clear that respondent’s depression first manifested after the prior tenant died.” Although the SSI benefits began after the prior tenant died, “the earliest month that SSA pays benefits is the month following the month an applicant files an application for benefits,…, not necessarily the month in which the disability started.”

Thus, the court found that the respondent’s allegation that he suffers from depression and his supporting documentation raised issues of fact as to whether he is disabled. Accordingly, the court denied the landlord’s motion for summary judgment with respect to the respondent’s succession defense.

Roc-Jane Street v. Riffon, 67873/2015, NYLJ 1202778035284, at *1 (Civ., NY, Decided Jan. 25, 2017), Stoller, J.