Scott E. Mollen
Scott E. Mollen ()

Landlord-Tenant—Summary Holdover Proceeding Based on Chronic Late Payment of Rent Dismissed—”Number and Frequency of Nonpayment Proceedings Are Not the Sole Factors”—Courts Consider the Totality of Circumstances, Including Bona Fide Claims for Repairs or Disputes as to the Amount of Rent Owed—Proceeding Dismissed Since Four of the Five Nonpayment Proceedings Were Settled Without a Judgment and Involved Repair Issues—a Fifth Nonpayment Proceeding Was Never Calendared

A landlord commenced a summary holdover proceeding, alleging that the tenants had substantially violated the terms of their tenancy, “because they were chronically late on payment of rent.” The landlord cited five nonpayment cases. Each of the nonpayment cases, except one, had been settled without a judgment on the first court appearance and involved stipulations that addressed repairs. The last case had been filed, but never calendared.

The court explained that “[a] history of repeated nonpayment proceedings brought to collect chronically late rental payments supports an eviction proceeding on the ground that the tenant has violated a substantial obligation of the tenancy.” Although courts will consider “the number and frequency of nonpayment proceedings,” “the number and frequency of nonpayment proceedings are not the sole factors.” Rather, “[t]he context of each proceeding and the entire circumstances concerning the delinquency in rent payment must be examined.” Thus, “[a] bona fide claim for repairs or a dispute as to the amount of rent owed alleged in a summary nonpayment proceeding may defeat a landlord’s case for chronic rent delinquency.”

Here, the court found that four out of the five subject nonpayment proceedings had not only been settled at the first court appearance, without a judgment, but had also “raised repair issues.” The most recent nonpayment proceeding had never been calendared and the court did not consider that proceeding “as part of the chronic nonpayment analysis.”

Accordingly, the court granted the tenant’s motion for summary judgment and dismissed the proceeding.

149 St. LLC v. Siciliano, 69991/16, NYLJ 1202777492160, at *1 (Civ., QU, Decided Jan. 13, 2017), Rodriguez, J.

Landlord-Tenant—Rent Stabilization—Elimination of a Sixth “Illegal” Apartment Does Not Take a Building out of Stabilization— Substantial Rehabilitation Exemption Under Tenant Protection Regulation 2500.9(e) and Rent Stabilization Code 2520.1(e)

A landlord sought possession of an apartment, alleging that the tenant was a month-to-month tenant whose occupancy had been terminated, in a building that was not subject to rent stabilization. The landlord contended that the building had less than six apartments. The tenant countered that the building had six units and was therefore subject to the stabilization. The certificate of occupancy (C of O) stated that the building was a “five-unit residential family building containing one unit on the ground/cellar floor, and two apartments each on the first and second floors.”

The tenant had testified that she had seen a person living in a “second apartment” in the rear area of the ground/cellar floor (rear apartment) and that she had entered such apartment and observed a “living room, bathroom and kitchen.” The building had six mailboxes. The landlord claimed that the rear apartment was a storage unit. A paralegal who worked for the tenant’s attorney went to the building with the tenant’s attorney to investigate the facts. The paralegal testified that she saw a bedroom with a bed and dresser, a living room with “a couch, a chair, a coffee table and a fish tank.” She also saw a kitchen and a bathroom as well. Photographs of the subject rooms were admitted into evidence. The paralegal had not seen a stove, but had seen a hot plate. She did not know whether there was hot and cold running water, but had seen a toilet in the bathroom and there was electricity in the apartment.

The landlord’s property manager testified that he had visited the rear apartment and had advised the then occupant “to leave because he had created a kitchen and bathroom.” The manager asserted that he had not been involved in the creation of the rear apartment. The manager testified that there is no longer a kitchen in the rear apartment and the space is now only used for storage.

The court explained:

The Rent Stabilization Law (RSL) of 1969, with limited exceptions, applies to all buildings with 6 or more dwelling units built after 1947. The Emergency Tenant Protection Act of 1974 (ETPA) extended rent stabilization coverage to those qualified units not previously subject to rent stabilization or rent control in buildings built prior to January 1, 1974…. This is true even where the number of units created exceeds the number of units permitted pursuant to the certificate of occupancy…. It is not disputed that there is a certificate of occupancy for the building dated May 27, 1959.

The court noted that “any reduction in the number of units does not divest the remaining tenants of protection under rent stabilization.” The court found that the landlord had failed “to rebut the credible testimony and documentary evidence presented by [tenant].” The petitioner had previously signed a “30-day notice of termination to evict the tenant of the sixth dwelling unit,” i.e., the rear apartment in a landlord-tenant action. The verified petition in that case stated that “the premises were ‘rented to respondent/tenant for residential purposes’ pursuant to a monthly rental agreement.” Thus, the court found that the manager’s testimony that the apartment was only used for storage lacked credibility.

The court also rejected the landlord’s argument that “in order to impute the illegal sixth apartment to the landlord,” the tenant must prove that the landlord had “constructed the apartment or acquiesced in its use.” The judicial precedent cited by the tenant addressed “the issue of whether the loft law allows for a loft unit to be declared rent stabilized.”

The court explained that “[t]he use of an illegal unit as a residential unit creating six residential units makes the building subject to rent stabilization.” Therefore, the subject premises were rent stabilized and the landlord may not therefore seek to evict the tenant “based upon termination of a month- to-month tenancy.” Rather, “[o]ther than for nonpayment of rent, [tenant's] tenancy can only be terminated for grounds enumerated in the rent stabilization code. RSC §2524.1(a).” Accordingly, the court dismissed the petition.

Comment: See also, Henry v. Kingsberry (99699/15, NYLJ, 1202780069528 at *1, [Civ. Kings Co.], Stroth, J., decided Jan. 15, 2017), where the court dismissed a summary holdover proceeding on the grounds that, contrary to the landlord’s allegations, the building was rent stabilized. The building had been a six-unit building prior to 1974. A prior landlord had allegedly converted the building to four apartments following a fire. The current landlord claimed that the premises were exempt from stabilization, because the building had been substantially rehabilitated “in accordance with the Tenant Protection Regulation §2500.9(e) and Rent Stabilization Code 2520.1(e).” The landlord cited a NYC Department of Buildings (DOB) document which had been filed in 2003, approved in 2004 and signed off in 2005, as proof that the premises were “75 percent made new.”

The landlord had provided “insufficient documentation” to demonstrate that the building had been “substantially rehabilitated.” The landlord provided “uncertified documents” showing that a fire had occurred in 2002, but had provided “no receipts, bills, or detailed breakdown indicating renovations supporting the conclusory claim…that there was a 75 percent substantial rehabilitation of the building.” The DOB document reflected an estimated cost of $60,000, but only referred to a “new enclosure for a boiler and stairs.” It did not reflect a “total renovation of the systems in the building or the kind of work the petitioner suggests was done to exempt the property from…stabilization.” Moreover, the landlord had purchased the property after the conversion of the building had already been done, had not alleged that it paid for any of the renovations and stated that she had “no personal knowledge of the alleged substantial rehabilitation of the building.” Accordingly, the court observed that:

Petitioner fails to attach documentation showing at least 75 percent of the building-wide and apartment systems have been replaced with new systems as per the “criteria” listed by the New York State Division of Housing and Community Renewal (DHCR) operational bulletin 95-2, the Emergency Tenant Protection Regulations (TPR), Section 2500.9, and the Rent Stabilization Code, Section 2520.11(e). Petitioner has not only failed to prove that substantial renovations were done, but petitioner fails to show even the preliminary requirement for a finding of substantial rehabilitation, that the building was in a substandard or seriously deteriorated condition.

Accordingly, the court granted the tenant’s motion for summary judgment and dismissed the petition.

Boreland v. Blackwood, 90899/15, NYLJ 1202778475567, at *1 (Civ., KI, Decided Jan. 6, 2017), Stanley, J.

Motion to Restore to Possession Granted—Tenant Defaulted on Stipulations—Where Defaults Were Not Inadvertent, De Minimis and Promptly Cured, Tender of Monies Due Does Not Constitute “Appropriate Circumstances”—However, Given the Relatively Small Amount of the Default, One Time Nature of the Rent Default and Tenant’s Ability to Pay Monies Due, Court Granted Motion to Restore on Condition That Money Is to Be Tendered

A tenant moved to be restored to possession. A “so-ordered stipulation” in a nonpayment proceeding provided that the tenant would pay $3,873 in rent arrears in installments. The last installment was to be paid on Dec. 31 2016. The tenant paid the first installment, but only made a partial payment as to the second installment. A warrant was executed and the tenant was evicted on Dec. 14, 2016. Through Dec. 31, 2016, the rent arrears totaled $2,965.

The landlord claimed that it had incurred $1,895 in legal fees and $550 in marshal’s fees. On Dec. 14, 2016, the tenant moved to be restored to possession. The court denied the motion since the tenant could only make partial payments of the rent owed, but would not be able to pay “legal and marshal’s fees without a lengthy installment payout.” Thereafter, the tenant asserted that he was getting a loan from his pension and that he could pay the total amount due by Dec. 30, 2016. Although the tenant was not a “long-term tenant,” the tenant had been in the apartment for seven years and apart from the instant proceeding, “the tenancy ha[d] been free of rent-delinquency.”

The court explained:

RPAPL §749(3) provides that the issuance of a warrant “cancels the agreement under which the person removed held the premises, and annuls the relation of landlord and tenant***” Nonetheless, it has long been the case that even after execution of the warrant, for “good cause,”…, or where there are “appropriate circumstances,”…, a court may vacate the warrant and reinstate a tenancy.

The court acknowledged that “a tender of sums due does not constitute ‘appropriate circumstances’ or ‘good cause’ to restore to possession, especially where the tenant has defaulted on stipulations and the defaults have not been inadvertent, de minimis, and promptly cured….” However, based on the tenant’s ability to meet the previously set deadline for the last installment payment of Dec. 31, 2016, “the relatively small amount of the default, and the one-time nature of [tenant's] rent default,” the court held that there were “appropriate circumstances to grant [the tenant's] motion….” Thus, the court stayed reletting of the premises through noon on Dec. 30, 2016, and ordered that the tenant be “restored to possession and the tenancy reinstated” if the tenant tenders the full amount due by such time.

5510 345 Lefferts Blvd. v. Jean-Baptiste, 82953/16, NYLJ xxxxxx, at *1 (Civ., KI, Decided Dec. 20, 2016), Marton, J.