MANAGING ENT R P NAVIGATING HOUSING COURT Rent Regulated Property - 12.02.14.pdf · MCLE credit allocation and certificate distribution. i. ... you must sign-out and enter the time

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MANAGING RENT REGULATED PROPERTY: NAVIGATING HOUSING

COURT Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY

scheduled for Tuesday, December 2, 2014

Program Co-sponsor:

Moderators: Mitchell Posilkin and Robin A. Bernstein, RSA

Faculty: Steven Banks, NYC Human Resources Administration; Matthew Brett, Belkin Burden Wenig & Goldman, LLP; Neil C. Dwork, Rosenberg & Estis, P.C.; Ronald Hariri, Ronald D. Hariri & Associates; Howard Stern,

RSA; Joseph Strasburg, RSA; Gilbert Taylor, NYC Department of Homeless Services

This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 3 Transitional and Non-Transitional credit hours; 1 Skills; 2.Professional Practice/Law Practice Management.

This program has been approved by the Board of Continuing Legal education of the Supreme Court of New Jersey for 3 hours of total CLE credits. Of these, .0 qualify as hours of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law.

ACCREDITED PROVIDER STATUS: NYCLA’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the States of New York and New Jersey.

Information Regarding CLE Credits and Certification

Managing Rent-Regulated Property: Navigating Housing Court December 2, 2014; 9:00 AM to 12:00 PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in and note the time of arrival to receive your

course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii. You will receive your MCLE certificate as you exit the room at

the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

iv. Please note: We can only certify MCLE credit for the actual time

you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

Thank you for choosing NYCLA as your CLE provider!

New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Managing Rent Regulated Property: Navigating Housing Court

December 2, 2014

9:00 AM - 12:00 PM

Program Co-Sponsor:

Moderators: Mitchell Posilkin, General Counsel, RSA Robin A. Bernstein, Deputy Counsel, RSA

Faculty: Steve Banks, Robin Bernstein, Matthew Brett, Neil C. Dwork, Ronald Hariri, Mitchell Posilkin, Howard Stern Joseph Strasburg, Gilbert Taylor

AGENDA

9:00 A.M. – 9:15 A.M. Announcements Bari Chase, NYCLA 9:15 A.M. – 9:20 A.M. Introduction Mitchell Posilkin Robin A. Bernstein 9:20 A.M. – 9:40 A.M. The Impact of the November Elections Joseph Strasburg 9:40 A.M. – 10:00 A.M. The City’s New Rental Assistance Programs Steve Banks, HRA Commissioner Gilbert Taylor, DHS Commissioner 10:00 A.M. – 10:30 A.M. Non-Payment Proceedings Howard Stern Ronald Hariri 10:30 A.M. – 10:45 A.M Break 10:45 A.M. – 11:40 A.M Holdover Proceedings Airbnb-type Cases and Related Issues Matthew Brett Failure to Renew and Deemed Leases Owner Occupancy Neil C. Dwork Non-Primary Residence Chronic Nonpayment Negotiating Buyouts with Tenants Matthew Brett 11:40 A.M. – Noon Questions and Answers

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Howard Stern, Esq.

Ronald D. Hariri, Esq.

Nonpayment Proceedings

Governed by Real Property and Proceedings Law (RPAPL)

Summary proceeding with statutory requirements strictly enforced and certain defects cannot be cured or waived notwithstanding trend allowing amendments if no prejudice

Expedited in theory/ limited discovery by leave of court: CPLR Article 4

NYC Civil Court Act §110: maintenance of housing standards

Federal Law on Debt Collection (Fair Debt Collection Practices Act § 801.15 USC 1601 Separate notice and right to dispute debt

Elements

Proper parties: RPAPL §721

Corporation and LLC must have attorney: CPLR Sec. 321

Petitioner must have possessory interest: RPAPL Sec. 741

Subtenants should be named and served

Estate/Guardian

Court may notify Adult Protective Services and appoint

Guardian ad Litem: duty to notify Court: Sengstack v. Sengstack, 4 NY2d 502 (1958)

Deceased tenant: may name spouse or issue after 3 months lapse. RPAPL 711(2)

Rental agreement (Lease)

Proper Rent Demand

Lease controls form except if it conflicts with law

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May be oral if not barred by lease or statutory 3 day demand

Cucinotta v. Saljon Ent., 532 NYS2d 39 (1988)

Only legal rent may be part of demand but additional fees may be mentioned but not as basis for possessory judgment

Rental amounts must be detailed and broken down by month

RPAPL §735 sets forth service requirements

Should use reliable professional process server

Record keeping requirements

Notice of Petition and Petition

Proper Description of Premises

Proper Parties

Must attach Rent Demand and Affidavits of Service

Regulatory Status

Verified by attorney or petitioner

Petition issued by Clerk in NYC

Default

Submitted to marshal or sheriff

Request For Final Judgment and Warrant

Non-military affidavit

Affidavit of Merit attesting to amount owed

Inquest not required

Answer

Within 5 days after service

Written or oral

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Court assigns initial date

Counterclaim: waiver clause /intertwined

Jury Trial

Motion to strike/ Waiver

Motion to strike must be timely: 55 Mgmt v. Goldman, NYLJ 11/23/01,20.6 (AT)

Defenses

Improper service: for predicate notice and petition

Personal/substituted v. conspicuous place

Traverse hearing

Regulation of process servers

RPAPL §735 authorizes personal, substitute and conspicuous place service

Answer must detail why service defective

Reasonable application to make personal in hand service

Filing requirement

Lack of Multiple Dwelling Registration Multiple Dwelling Law (MDL) §325 Cannot be waived and may not be curable

May be exception to rigid application

Defense limited to NYC

Lack of Certificate of Occupancy MDL §302 Cannot be waived or cured

Penal forfeiture provisions may not apply where premises not affected

Improper Regulatory Status: MSG Pomp v. Doe, 185 AD2d 798, 586 NYS2d 965

(1st Dept. 1992) (required element must be alleged)

Defective Rent Demand: Demand not amendable

Payment: Landlord’s business records/ledger

Improper amount: rent overcharge/Landlord must prove amount

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Documentation of increases

Registrations

Repairs and Improvements

Statute of Limitations

Agency jurisdiction

Warranty of Habitability: Real Property Law RPL § 235 (b)

Landlord must have actual or constructive notice

Amount of abatement will vary

Conditions include heat, hot water, leaks, construction, security

Rent impairing violations

Damages may exceed rent or time period alleged in petition

Repair and offset

Spiegel Law:

May be available where the tenant receives Public Assistance and

there are Housing Code violations in the apartment or building, if

hazardous violations are not cured

Retaliatory Eviction RPL §223(b)

Laches/Statute of Limitations

Stale rent: case by case analysis

Rent Deposit Law: RPAPL §745(2) limited enforcement

Settlement:

Stipulations governed by CPLR Sec 2104

Resolution part

Should detail rent and include possessory and money judgment

Time of Essence/Extension for “good cause”

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Allocution

Courts more protective of pro se tenants

Tension between strict enforcement and equitable jurisdiction

to prevent loss of tenancy

Order to Show Cause and Stays

Exercise of equitable discretion by Court: Parkchester Apt v. Scott, 271 AD2d 273. 707 NYS2d 55 (1st Dept. 2000); policy against forfeiture, see JNA Realty v. Cross Bay Chelsea, 42 NY2d 392, 397 NYS2d 958 (1977)

Relief from default

Evictions

What is the difference between an eviction and a legal possession?

In both evictions and legal possessions, the marshal returns control of the real property (apartment) to the owner. In order to accomplish this, the marshal must see that any entrance locks on the premises to which the tenant may have access are changed. In an eviction, the tenant's belongings are moved under the supervision of the marshal and stored at a private warehouse. In a legal possession, the tenant's personal property remains under the care and control of the owner until the tenant can arrange to transport the property to another location.

More information is available on the Department of Investigations website. NYC Human Rights Law (Title 8 of the Administrative Code of the City of New York)

Title 8 of the Administrative Code of the City of New York

§ 8-107(5) (a) provides in relevant part that:

It shall be an unlawful discriminatory practice

“(1) To refuse to sell, rent, lease approve the sale, rental or lease or otherwise deny to or withhold from any person or group of persons such a housing accommodation or an interest therein because of the actual or perceived race, creed, color, national origin, gender, age, disability, sexual orientation, marital status, partnership status, or alienage or citizenship status of such person or persons, or because of any lawful source of income of such person, or because children are, may be or would be residing with such person or persons.”

(More information is available on the Department of Investigations website at http://www.nyc.gov/html/doi/html/home/home.shtml)

http://www.nyc.gov/html/doi/html/home/home.shtml

6

Holdover Proceedings and

(and other Short Term Lodging Sites)

By Matthew S. Brett, Esq © 2014

I. Introduction

II. What are AirBnB and Short Term Lodging Sites?

A. A brief history

B. What is the impact on New York?

i. stated impact on property owners; ii. stated impact on tenants, cooperatives and

condominiums; iii. stated impact upon affordable housing; iv. stated impact on tax revenues, etc.

C. How do these sites Work?

III. Relevant Statutory, Code Provisions and Regulations

A. Multiple Dwelling Law; i. MDL § 4(8)(a); ii. MDL § 4(5).

B. Housing Maintenance Code;

i. HMC § 27-2004(a)(8).

C. The Real Property Law

i. RPL § 226-b;

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ii. RPL § 235-f.

D. Rent Regulation i. 9 NYCRR § 2205.1(a); ii. RSC § 2525.6(b) iii. RSC § 2525.6(f); iv. RSC § 2524.3(h) v. RSC § 2526.7

IV. Relevant Case Law

V. Strategies

A. Cease and Desist

B. Eviction Proceedings

C. Action for Injunction and other relief.

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Multiple Dwelling Law (“MDL) MDL § 4(8)(a) provides, in pertinent part:

A “class A” multiple dwelling is a multiple dwelling that is occupied for permanent residence purposes. . . . A class A multiple dwelling shall only be used for permanent residence purposes. For the purposes of this definition, “permanent residence purposes” shall consist of occupancy of a dwelling unit by the same natural person or family for thirty consecutive days or more and a person or family so occupying a dwelling unit shall be referred to herein as the permanent occupants of such dwelling unit. The following uses of a dwelling unit by the permanent occupants thereof shall not be deemed to be inconsistent with the occupancy of such dwelling unit for permanent residence purposes:

(1)(A) occupancy of such dwelling unit for fewer than thirty consecutive days by other natural persons living within the household of the permanent occupant such as house guests or lawful boarders, roomers or lodgers; or

(B) incidental and occasional occupancy of such dwelling unit for fewer than thirty consecutive days by other natural persons when the permanent occupants are temporarily absent for personal reasons such as vacation or medical treatment, provided that there is no monetary compensation paid to the permanent occupants for such occupancy.

MDL § 4(5) defines “family” as

either a person occupying a dwelling and maintaining a household, with not more than four boarders, roomers or lodgers, or two or more persons occupying a dwelling, living together and maintaining a common household, with not more than four boarders, roomers or lodgers. A “boarder,” “roomer” or “lodger” residing with a family shall mean a person living within the household who pays a consideration for such residence and does not occupy such space within the household as an incident of employment therein.

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Housing Maintenance Code (“HMC”)

HMC § 27-2004(a)(8) provides, in pertinent part:

A class A multiple dwelling is a multiple dwelling that is occupied for permanent residence purposes. This class shall include tenements, flat houses, maisonette apartments, apartment houses, apartment hotels, bachelor apartments, studio apartments, duplex apartments, kitchenette apartments, garden-type maisonette dwelling projects, and all other multiple dwellings except class B multiple dwellings. A class A multiple dwelling shall only be used for permanent residence purposes. For the purposes of this subparagraph, "permanent residence purposes" shall consist of occupancy of a dwelling unit by the same natural person or family for thirty consecutive days or more, and a natural person or family so occupying a dwelling unit shall be referred to herein as the permanent occupants of such dwelling unit. The following uses of a dwelling unit by the permanent occupants thereof shall not be deemed to be inconsistent with occupancy of such dwelling unit for permanent residence purposes: (1)(A) occupancy of such dwelling unit for fewer than thirty consecutive days by other natural persons living within the household of the permanent occupant such as house guests or lawful boarders, roomers or lodgers; or (B) incidental and occasional occupancy of such dwelling unit for fewer than thirty consecutive days by other natural persons when the permanent occupants are temporarily absent for personal reasons such as vacation or medical treatment, provided that there is no monetary compensation paid to the permanent occupants for such occupancy.

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Real Property Law (“RPL”)

RPL § 226-b provides, in pertinent part: . . . 2. (a) A tenant renting a residence pursuant to an existing lease in a dwelling having four or more residential units shall have the right to sublease his premises subject to the written consent of the landlord in advance of the subletting. Such consent shall not be unreasonably withheld. . . . 4. With respect to units covered by the emergency tenant protection act of nineteen seventy-four or the rent stabilization law of nineteen hundred sixty-nine the exercise of the rights granted by this section shall be subject to the applicable provisions of such laws. Nothing contained in this section two hundred twenty-six-b shall be deemed to affect the rights, if any, of any tenant subject to title Y of chapter 51 of the administrative code of the city of New York or the emergency housing rent control law. 5. Any sublet or assignment which does not comply with the provisions of this section shall constitute a substantial breach of lease or tenancy. 6. Any provision of a lease or rental agreement purporting to waive a provision of this section is null and void.

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RPL § 235-f provides: Unlawful restrictions on occupancy. 1. As used in this section, the terms: (a) "Tenant" means a person occupying or entitled to occupy a residential rental premises who is either a party to the lease or rental agreement for such premises or is a statutory tenant pursuant to the emergency housing rent control law or the city rent and rehabilitation law or article seven-c of the multiple dwelling law. (b) "Occupant" means a person, other than a tenant or a member of a tenant's immediate family, occupying a premises with the consent of the tenant or tenants. 2. It shall be unlawful for a landlord to restrict occupancy of residential premises, by express lease terms or otherwise, to a tenant or tenants or to such tenants and immediate family. Any such restriction in a lease or rental agreement entered into or renewed before or after the effective date of this section shall be unenforceable as against public policy. 3. Any lease or rental agreement for residential premises entered into by one tenant shall be construed to permit occupancy by the tenant, immediate family of the tenant, one additional occupant, and dependent children of the occupant provided that the tenant or the tenant's spouse occupies the premises as his primary residence. 4. Any lease or rental agreement for residential premises entered into by two or more tenants shall be construed to permit occupancy by tenants, immediate family of tenants, occupants and dependent children of occupants; provided that the total number of tenants and occupants, excluding occupants' dependent children, does not exceed the number of tenants specified in the current lease or rental agreement, and that at least one tenant or a tenants' spouse occupies the premises as his primary residence. 5. The tenant shall inform the landlord of the name of any occupant within thirty days following the commencement of occupancy by such person or within thirty days following a request by the landlord. 6. No occupant nor occupant's dependent child shall, without express written permission of the landlord, acquire any right to continued occupancy in the event that the tenant vacates the premises or acquire any other rights of tenancy; provided that nothing in this section shall be

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construed to reduce or impair any right or remedy otherwise available to any person residing in any housing accommodation on the effective date of this section which accrued prior to such date. 7. Any provision of a lease or rental agreement purporting to waive a provision of this section is null and void. 8. Nothing in this section shall be construed as invalidating or impairing the operation of, or the right of a landlord to restrict occupancy in order to comply with federal, state or local laws, regulations, ordinances or codes. 9. Any person aggrieved by a violation of this section may maintain an action in any court of competent jurisdiction for: (a) an injunction to enjoin and restrain such unlawful practice; (b) actual damages sustained as a result of such unlawful practice; and (c) court costs.

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Rent Regulation

9 NYCRR § 2205.1(a) (Rent Control) provides:

It shall be unlawful, regardless of any contract, lease or other obligation heretofore entered into, for any person to demand or receive any rent for any housing accommodations in excess of the applicable maximum rent established therefor by the State Rent Commission or the Division of Housing and Community Renewal, or otherwise to do or omit to do any act, in violation of any regulation, order or requirement of such administration under the State Enabling Act or under the Rent Law, or to offer, solicit, attempt or agree to do any of the foregoing.

RSC § 2525.6(b) (rent stabilization) provides:

The rental charged to the subtenant by the tenant shall not exceed the legal regulated rent plus no more than a 10-percent surcharge payable to the tenant if the housing accommodation is sublet fully furnished. Where a tenant violates the provisions of this subdivision, the subtenant shall be entitled to treble damages.

RSC § 2525.6(f) (rent stabilization) provides: An owner may terminate the tenancy of a tenant who sublets contrary to the terms of this section, or assigns without written consent of the owner, but no action or proceeding to terminate tenancy based upon the nonprimary residence of a tenant may be commenced prior to the expiration date of his or her lease.

RSC § 2524.3(h) (rent stabilization) provides: In the event of a sublet, an owner may terminate the tenancy of the tenant if the tenant is found to have violated the provisions of section 2525.6 of this Title.

RSC § 2525.7 (rent stabilization) provides:

(a) Housing accommodations subject to the RSL and this Code may be occupied in accordance with the provisions and subject to the limitations of section 235-f of the Real Property Law.

http://metcouncilonhousing.org/help_and_answers/L1962ch21.html

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(b) The rental amount that a tenant may charge a person in occupancy pursuant to section 235-f of the Real Property Law shall not exceed such occupant's proportionate share of the legal regulated rent charged to and paid by the tenant for the subject housing accommodation. For the purposes of this subdivision, an occupant's proportionate share shall be determined by dividing the legal regulated rent by the total number of tenants named on the lease and the total number of occupants residing in the subject housing accommodation. However, the total number of tenants named on the lease shall not include a tenant's spouse, and the total number of occupants shall not include a tenant's family member or an occupant's dependent child. Regardless of the number of occupants, tenants named on the lease shall remain responsible for payment to the owner of the entire legal regulated rent. The charging of a rental amount to an occupant that exceeds that occupant's proportionate share shall be deemed to constitute a violation of this Code.

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Supreme Court, Appellate Division, First Department, New York.

BLF REALTY HOLDING CORP., Plaintiff-Appellant, v. Steven KASHER, Defendant-Respondent.

Decided: September 19, 2002 MILTON L. WILLIAMS, P.J., DAVID B. SAXE, JOHN T. BUCKLEY, JOSEPH P. SULLIVAN and BETTY WEINBERG ELLERIN, JJ. Susan Baumel-Cornicello, of counsel (Cornicello & Tendler, LLP, attorneys) for plaintiff-appellant. Lawrence Maggitti, of counsel (Jeffrey S. Ween, on the brief, Jeffrey S. Ween & Associates, attorneys) for defendant-respondent.

Plaintiff, at all times relevant, has been the owner and landlord of the building at 54 North Moore Street in Manhattan, an Interim Multiple Dwelling (IMD) as defined by Article 7-C of the Multiple Dwelling Law (Loft Law) and the Rules and Regulations of the Loft Board contained in Title 29 of the Rules of the City of New York. Defendant is a tenant who took occupancy of the sixth-floor loft in the premises pursuant to a written lease dated May 5, 1977 with plaintiff's predecessor in interest. Plaintiff seeks a declaration that defendant has illegally sublet the demised premises, in violation of the Loft Law, at an amount in excess of the legal regulated amount, and that such conduct constitutes a ground for eviction.

Defendant's lease, for a five-year term commencing June 1, 1977 and expiring May 31, 1982, provided for a fifth-year rental at $450 per month. Defendant's tenancy continued thereafter, and his rent increases were set by Loft Board Regulation § 2-06(c)(l )(ii). In April 1990, defendant's rent was $551.22 per month. Under the terms of the lease, defendant could sublet with the landlord's consent, which was not to be unreasonably withheld. Ever since the building was first registered as an IMD, the sixth-floor loft, which contains approximately 2,300 square feet, has been listed as a single unit.

On May 1, 1990, defendant entered into a “Loft Share Agreement” with Suzanna Dent for the “northeast section of the loft,” which consists of two-thirds of the total space, or approximately 1,500 square feet and, according to defendant, began to share occupancy of the loft with her. Dent thereafter married and exclusively occupied her portion of the loft with her husband, Howard Patlis (collectively referred to hereafter as the subtenants), and their child.

According to plaintiff, defendant constructed separate entrances into the two sections. Plaintiff states that each had its own separate kitchen and bathroom, as well as buzzer and intercommunication system. It is undisputed that the two

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sections shared one hot water heater and electric meter. Plaintiff also claims that at the time defendant was paying the legally regulated rent of $551.22, he was charging Dent a monthly rental of $1,600 initially and, beginning in May 1992, $1,700.

The relationship between defendant and the subtenants deteriorated and the latter ceased paying rent in June 1994. Defendant served a notice to quit in January 1995. The parties thereafter entered into a settlement agreement dated April 20, 1995, whereby the subtenants were permitted to remain in temporary occupancy and, inter alia, agreed not to initiate an overcharge proceeding against defendant if he complied with the agreement and consented to the commencement of a licensee holdover proceeding against them, which defendant subsequently commenced. As an inducement to vacate, defendant agreed to an incentive payment for an early departure.

Thereafter, in May 1995, the subtenants commenced an action in Supreme Court, New York County, seeking the recovery of $62,000 in rent overcharges between May 1, 1990 and June 30, 1994, as well as treble damages and attorneys' fees.1 That action was settled by a stipulation dated September 26, 1995 that incorporated the April 1995 settlement. The subtenants agreed to the entry of a judgment of possession with a stay of execution of the warrant.

On May 3, 1996, plaintiff served defendant with a five-day notice to cure alleging a sublet without the landlord's consent in violation of Loft Board's regulations and the charging of rent in excess of the legal regulated amount, as well as illegal alterations to the premises. Thereafter, on June 28, 1996, plaintiff served a 30-day notice terminating the tenancy based solely on the illegal rent charged the subtenants. It commenced the instant declaratory judgment action on September 20, 1996. Defendant answered, interposing affirmative defenses including mootness based, apparently, on the subtenants' vacating the premises, that the shared occupancy of defendant's loft was permitted pursuant to Real Property Law § 235-f, and that the statutory and regulatory scheme under the Loft Law made no provision for an eviction based on rent overcharge.

Thereafter, in the course of motion practice, this action was transferred to the Civil Court pursuant to CPLR 325(d). The parties moved and cross-moved for summary judgment, defendant arguing that the subtenants were, in fact, his roommates and that they had vacated the premises prior to the commencement of the action. Civil Court granted defendant's motion, finding that because he continued to occupy a portion of the loft no sublet had taken place and that, even if one had taken place, such a sublet was not in violation of the lease, which permitted subletting with the landlord's consent. Moreover, the court found that, unlike rent stabilization or rent control, where rent gouging

http://caselaw.findlaw.com/ny-supreme-court-appellate-division/1245600.html#footnote_1

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by a protected tenant constitutes grounds for eviction, a loft tenant is not subject to eviction on such ground. The court refused to read the Loft Board's regulations in pari materia with the Rent Stabilization Law and Code because the Loft Law expressly mandates that the latter are not applicable until after an IMD is legalized, a certificate of occupancy issued and the tenant given a stabilized lease. Plaintiff's cross motion was denied. On appeal, the Appellate Term reversed, holding the transfer invalid because the “Civil Court lacks jurisdiction to adjudicate [plaintiff's] claims on a complaint for declaratory judgment.” The action was thereafter restored to the Supreme Court calendar.

The parties again moved and cross-moved for summary judgment. Supreme Court denied plaintiff's motion, granted defendant's cross motion and dismissed the complaint. The court found an issue of fact as to whether the loft had been subdivided into two units and as to whether Dent and Patlis were defendant's roommates or subtenants, but held that neither issue mattered since, even assuming a sublet, the Rent Stabilization Code provisions permitting eviction for profiteering were not applicable to the Loft Law. The court noted that while the Rent Stabilization Code provisions that allow a landlord to evict on the basis of profiteering had been extended to rent-controlled apartments, these provisions could not be read in pari materia with the Loft Law, which does not provide such a remedy but, instead, allows the subtenant, in a case of overcharge, to sue the prime tenant for treble damages. Plaintiff appeals. We reverse.

There is a significant body of law that denies the protection of rent regulation to tenants who utilize their apartments for commercial exploitation. Rent-stabilized tenants who charge a subtenant more than the legal required rent are subject to lease termination. (See Rent Stabilization Code § 2525.6[b] and [f]; § 2524.3[h]; Continental Towers Ltd. Partnership v. Freuman, 128 Misc.2d 680, 494 N.Y.S.2d 595 [App. Term 1st Dept.].) Specifically, Rent Stabilization Code § 2525.6(b) prohibits a tenant from charging a subtenant more than the legal rent, plus a 10% surcharge if the apartment is fully furnished. Where the tenant is in violation of this prohibition, Rent Stabilization Code § 2525.6(f) entitles the owner to terminate the tenancy.2 Rent Stabilization Code § 2525.7(b) also prohibits a stabilized tenant from charging a roommate in excess of the roommate's proportional share of the stabilized rent. Rent profiteering in the latter circumstance may also entitle a landlord to maintain a holdover proceeding against the stabilized tenant. (See Ram 1 LLC v. Mazzola, 2001 WL 1682829, [App.Term 1st Dept.].) Where there has been a substantial surcharge, the tenant cannot cure the lease violation. (Continental Towers Ltd. Partnership v. Freuman, 128 Misc.2d at 681, 494 N.Y.S.2d 595.)

In the case of rent control, while a tenant may not accept rent from a subtenant in excess of the lawful rent (see New York City Rent and Eviction


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Regulations, 9 NYCRR § 2205.1[a], City Rent and Rehabilitation Law, Administrative Code of City of N.Y. § 26-412[a] ), no provision exists entitling the landlord to commence an eviction proceeding for profiteering in such circumstances. Notwithstanding, courts have extended the rule that profiteering tenants who sublease their apartments forfeit their rights and are subject to eviction as tenants of rent-controlled apartments. (See Hurst v. Miske, 133 Misc.2d 362, 505 N.Y.S.2d 984.) Applying the holding of Continental Towers Ltd. Partnership v. Freuman, 128 Misc.2d 680, 494 N.Y.S.2d 595, supra, the Hurst court noted, “This rationale should apply equally if not more to a rent-controlled tenant, who profits from her rental accommodation, since rent-controlled units are more stringently controlled than rent-stabilized units and ․ the rent-controlled tenant derives a higher benefit in rent regulation than that of a rent-stabilized tenant.” (Hurst v. Miske, 133 Misc.2d at 365, 505 N.Y.S.2d 984.)

While there is no specific provision in the Loft Board's regulations authorizing eviction proceedings on the basis of rent gouging, the same reasoning as in the case of rent control should be applied to loft tenants who engage in similar exploitive conduct. Like the Rent Stabilization and Rent Control Laws, the stated intent of the Loft Law is to protect the public inasmuch as a “serious public emergency exists in the housing of a considerable number of persons in cities having a population of over one million, which emergency has been created by the increasing number of conversions of commercial and manufacturing loft buildings to residential use without compliance with applicable building codes and laws” requiring governmental intervention to effectuate legalization and to “establish a system whereby residential rentals can be reasonably adjusted so that residential tenants can assist in paying the cost of such legalization without being forced to relocate.” (Multiple Dwelling Law § 280.) Enactment of the Loft Law and regulations reflects an attempt to regulate the occupancy of commercial units used for residential purposes. The legislation has as its goal the eventual conversion of these loft buildings to Class A multiple dwellings and the integration of the rental units, known as IMD units-if occupied for residential purposes and covered by the Loft Law-into rent stabilization. (See Multiple Dwelling Law § 286[3].) Surely, the Legislature could not have intended, as the Supreme Court ruled, that a covered loft tenant could profiteer on a sublet prior to the landlord's conversion of the building in compliance with the legalization requirements and the subsequent tender of a rent-stabilized lease only to have that opportunity taken away once the residential occupant becomes subject to rent stabilization. Such a result makes no sense.

Even before full compliance and legalization of the loft building, the Loft Board's regulations and the Rent Stabilization Law have substantially similar provisions and requirements with respect to subletting, the amount of rent that may be charged to a subtenant and the requirement of primary residency. For

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instance, under both Rent Stabilization Code § 2525.6(a) and Loft Board Regulation § 2-09(c)(4)(I), the right to sublet is subject to section 226 b of the Real Property Law, which sets the procedures and limitations of sublets. Rent Stabilization Code § 2525.6(b) limits the amount of rent charged to a subtenant to the legal regulated rent plus no more than a 10% surcharge if the housing accommodation is fully furnished. Loft Board Regulation § 2-09(c)(4)(ii)(A) similarly provides that the subtenant's rent may not exceed the legal rent, as established by Article 7-C and the regulations, plus a 10% surcharge for a fully furnished unit. Under Rent Stabilization Code § 2525.6(a), a sublet is subject to the requirement that the tenant maintain the accommodation as his or her primary residence with the intent to occupy it as such at the lease's expiration, while Loft Board Regulation § 2-09(c)(4)(ii)(B) requires, as a condition to subletting, that the residential occupant be able to establish that the unit is his or her primary residence.

The similarity between the two systems, Rent Stabilization and the Loft Law, with regard to subletting clearly supports the premise that the penalty for a violation of the subletting regulations be similar as well. Despite the similarities, the Loft Law, like the Rent Control laws, is silent on the issue of eviction, whereas Rent Stabilization Code § 2525.6(f) specifically provides an owner with the right to terminate the tenancy where a tenant sublets in violation of the provisions of the Code. Nevertheless, as already noted, the courts have extended the remedy of termination of a tenancy for a violation of the subletting regulations to apartments covered under rent control. (See Hurst v. Miske, 133 Misc.2d 362, 505 N.Y.S.2d 984 supra). We see no rationale for not extending the same remedy to accommodations covered by the Loft Law, especially on a record such as the instant one, where the loft tenant charged the subtenants more than triple the lawful rent over a four-year period.

Since profiteering, in the context of both rent stabilization and rent control, constitutes an incurable ground for eviction, the same result should obtain under the Loft Law pursuant to the doctrine of pari materia, since they speak on the same matter or subject. “[S]tatutes in pari materia are to be construed together and ‘as intended to fit into existing laws on the same subject unless a different purpose is clearly shown.’ ” (Lower Manhattan Loft Tenants v. Loft Bd., 66 N.Y.2d 298, 304, 496 N.Y.S.2d 979, 487 N.E.2d 889, quoting Delaware Midland Corp. v. Incorporated Vil. of Westhampton Beach, 79 Misc.2d 438, 444, 359 N.Y.S.2d 944, affd. 48 A.D.2d 681, 369 N.Y.S.2d 378, affd. 39 N.Y.2d 1029, 387 N.Y.S.2d 248, 355 N.E.2d 302.)

In Lower Manhattan, the tenants argued that unlike the other rent regulation statutes governing rent control and rent stabilization,3 Article 7-C of the Multiple Dwelling Law does not make “primary residence” a condition to coverage and therefore the residency requirement should not apply to them. In rejecting this


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argument, the Court of Appeals determined that the absence of a primary residency requirement in the Multiple Dwelling Law did not render the requirement inapplicable, because statutes in pari materia, such as the Multiple Dwelling Law and the Rent Stabilization and Rent Control laws, are to be construed together. The court also recognized the illogic of imposing a primary residence requirement after a loft is legalized and brought under rent regulation (see ETPA § 5[A][11], McKinney's Uncons. Laws of N.Y. § 8625[a][11] ) but not imposing the same requirement prior to legalization. The same reasoning should apply to rent gouging. Thus, we hold that the remedy of eviction is available against a loft tenant who charges a subtenant rent in excess of the legal regulated amount.

Nor does this record reveal an issue of fact as to deprive plaintiff of the remedy it seeks. In that regard, Supreme Court erroneously found an issue of fact as to whether Dent and Patlis were actually subtenants or, instead, roommates of defendant. As the record reflects, a physical inspection in August 1992 showed that the sixth-floor loft was configured into two separate units, with two separate doorways leading into the two units. Each had a separate bathroom and living space.4 In fact, the plans annexed to defendant's moving papers depict a sixth floor configured into two separate units. A comparison with an earlier plan prepared in 1986 shows an additional bathroom, as well as a partition separating the two units. A subsequent inspection in the winter of 1997/1998 showed that a portion of the partition wall adjacent to the two bathrooms as well as a gas range had been removed. The removal of the wall restored the sixth floor to a single unit.

Although conceding, as he must, that there were two bathrooms, defendant denies that the loft was partitioned into two units, and that there were two kitchens. He argues that the two bathrooms and kitchen were shared areas, thus entitling him to the protection of Real Property Law § 235-f(3), which, in relevant part, provides that “[a]ny lease or rental agreement for residential premises ․ shall be construed to permit occupancy by ․ one additional occupant.” Such an arrangement involves a tenant's sharing of the entire space with an additional occupant. Defendant cites, inter alia, Handwerker v. Ensley, 261 A.D.2d 190, 690 N.Y.S.2d 54; 520 East 81st Street Assocs. v. Roughton Hester, 157 A.D.2d 199, 555 N.Y.S.2d 70, supra and Killington Investors v. Leino, 148 A.D.2d 334, 538 N.Y.S.2d 812, for the proposition that where the relationship is that of roommates, rent regulation is inapplicable. Defendant does not, however, come under the protection of Real Property law § 235-f because 235-f permits only one additional occupant, not, as was the case here, two.

Moreover, in the April 20, 1995 stipulation of settlement, defendant acknowledged that Dent and Patlis enjoyed exclusive occupancy of the northeast section of the loft and, on the condition that they comply with the


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stipulation, agreed to their continued occupancy until December 31, 1997 at the latest. Thus, contrary to the holding in the determination under review, there are no issues of fact for trial. Finally, we note, nowhere in the record does defendant deny the overcharge.

Accordingly, the judgment of the Supreme Court, New York County (Diane Lebedeff, J.), entered January 10, 2002, dismissing the complaint, should be reversed, on the law, with costs and disbursements, plaintiff's motion for summary judgment granted, defendant's cross motion denied, and a declaration made in plaintiff's favor.

Judgment, Supreme Court, New York County (Diane Lebedeff, J.), entered January 10, 2002, reversed, on the law, with costs and disbursements, plaintiffs motion for summary judgment granted, defendant's cross motion denied, and a declaration made in plaintiff's favor.

FOOTNOTES

1. Defendant makes the absurd argument that the overcharge action was a tactic used as a means of securing payment of the settlement sums provided for in the April 20, 1995 stipulation of settlement. Left unexplained is the obvious: why would anyone go to the trouble of preparing a seven-page summons and complaint, purchase an index number and arrange for service to ensure compliance with a stipulation of settlement, when the same result could be achieved by a one-page confession of judgment to be held in escrow pending compliance with the stipulation of settlement? Moreover, it appears that the index number was purchased before execution of the September 26, 1995 stipulation.

2. Section 2525.6(b) of the Code entitles the subtenant to treble damages as an additional penalty.

3. The Emergency Housing Rent Control Law (McKinney's Uncons Laws of N.Y. § 8582[2][l] [L. 1946, ch. 274, § 2, as amended] ); the Emergency Tenant Protection Act of 1974 [ETPA] (McKinney's Uncons Laws of N.Y. § 8625 [a][ll] [L. 1974, ch. 576, § 4, as amended] ); the Local Emergency Housing Rent Control Act (McKinney's Uncons Laws of N.Y. § 8625 [L. 1962, ch. 21, as amended] ); the New York City Rent and Rehabilitation Law (Administrative Code of City of New York § Y51-3.0[e] [2] [I][10] ), and the New York City Rent Stabilization Law (Administrative Code § YY 51-3.0[a][1] [f] ).

4. It is, of course, irrelevant that only a portion of the sixth-floor loft was occupied by the subtenants since a sublease includes, by its definition, a transfer of part of the demised premises. A sublease is a “transfer by a tenant

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of ․ part of his estate or interest in the whole, or in a part, of the leased premises.” (Rasch, New York Landlord & Tenant, Fourth Ed., 9.2 [1998]; see 520 East 81st Street Assocs. v. Roughton-Hester, 157 A.D.2d 199, 201, 555 N.Y.S.2d 70.)

SULLIVAN, J.

All concur.

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4 Misc.3d 77 (2004)

781 N.Y.S.2d 551

270 RIVERSIDE DRIVE, INC., Appellant, v.

SAUL BRAUN, Respondent, et al., Respondents.

Supreme Court, Appellate Term, First Department.

June 9, 2004.

78*78 Kucker & Bruh, LLP, New York City (Joshua C. Price of counsel), for appellant.

Lynn Armentrout, New York City, for Saul Braun, respondent.

DAVIS, J.P., GANGEL-JACOB and SCHOENFELD, JJ., concur.

OPINION OF THE COURT

Per Curiam.

Order dated November 21, 2002 affirmed, with $10 costs.

Appeal from order dated June 28, 2002 dismissed, without costs, as academic.

Landlord sought possession of the subject four-bedroom rent-controlled apartment on the ground that the tenant engaged in profiteering by collecting rent from two roommates in the aggregate sum of $1,270, in excess of the legal regulated rent of $1,192. On the undisputed record evidence, including tenant's previous deposition supplied by landlord, Civil Court correctly decided that a cause of action for eviction could not be proven. As landlord concedes, there is no provision in the rent control regulations equivalent to Rent Stabilization Code (9 NYCRR) § 2525.7, which prohibits charging a roommate a disproportionate share of the legal rent. Nor, more critically, do the regulations provide for eviction proceedings without a certificate on this ground (see NY City Rent and Eviction Regulations [9 NYCRR] § 2204.2). Division of Housing and Community Renewal's omission from the rent control regulations of a requirement for proportionate rental contributions among roommates cannot be disregarded as mere oversight (see Sullivan v Brevard Assoc., 66 NY2d 489, 493-494 [1985]), particularly since the addition of section 2525.7 to the code on or about December 20, 2000 was part of a comprehensive revision of the four rent codes promulgated by the agency. "[W]e may not rectify any perceived omission of

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such a provision by providing one by implication" (518 W. 134th St. Tenants Assn. v Calderon, 181 Misc 2d 216, 217 [1999]; see Pajak v Pajak, 56 NY2d 394, 397-398 [1982]).

While the remedy of termination of a tenancy has been recognized where profiteering tenants sublease apartments covered under rent control (see BLF Realty Holding Corp. v Kasher, 299 AD2d 87, 91 [2002], citing Hurst v Miske, 133 Misc 2d 362 [1986]), tenant's actions here partake of apartment sharing arrangements. The restrictions against profiteering in sublet situations have traditionally not been applied to living arrangements 79*79 involving roommates (see 520 E. 81st St. Assoc. v Roughton-Hester, 157 AD2d 199, 203 [1990]). Indeed, until enactment of section 2525.7 of the code, it was the firm rule in this Department that "[t]here is no cause of action for rent profiteering with respect to a roommate" (Handwerker v Ensley, 261 AD2d 190, 191 [1999]). In light of this history, if the charging of a disproportionate rental amount in these circumstances is to furnish the basis for an eviction, the governing regulations should affirmatively so state.

To the extent landlord relies upon BLF Holding v Kasher (supra) as authority for this proceeding, that case is both legally and factually distinguishable in that it addresses the interplay between the Loft Law and the Rent Stabilization Law, and concerned a tenant who subdivided and sublet his loft space.

Finally, even assuming that the remedy of eviction is available in this case, we would hold that tenant's conduct did not rise to the level of an incurable violation warranting forfeiture of the tenancy (cf. Continental Towers v Freuman, 128 Misc 2d 680 [1985]).
















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Supreme Court, Appellate Term, First Department, West 148 LLC, Respondent,

v Paule-Sylvie Yonke, Appellant

February 8, 2006

APPEARANCES OF COUNSEL

Paule-Sylvie Yonke, appellant pro se. Rappaport, Hertz, Cherson & Rosenthal, P.C., Forest Hills (David I. Paul of counsel), for respondent.

{**11 Misc 3d at 27} OPINION OF THE COURT

Per Curiam.

Final judgment entered May 10, 2004 affirmed, without costs.

The trial evidence shows, and it is not seriously disputed, that tenant rented a portion of the stabilized apartment to a series of guests or "roommates"; that tenant charged each of the roommates nearly double the monthly stabilized rent, collecting what the trial court aptly described as a "lucrative windfall"; and that tenant herself described the apartment, in both an Internet listing for "Affordable Hotels" and on her business card, as the "Chez Sylvie Bed and Breakfast." On these facts, the trial court correctly concluded that the tenant's commercial exploitation of her stabilized apartment required eviction pursuant to Rent Stabilization Code (9 NYCRR) § 2525.7 (see Ram 1 LLC v Mazzola, 2001 NY Slip Op 50073[U] [2001], lv denied 2002 NY App Div LEXIS 6531; see also BLF Realty Holding

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Corp. v Kasher, 299 AD2d 87 [2002], lv dismissed 100 NY2d 535 [2003]; compare 54 Greene St. Realty Corp. v Shook, 8 AD3d 168 [2004]).

Suarez, P.J., Davis and Schoenfeld, JJ., concur.

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33 A.D.3d 491 (2006) 823 N.Y.S.2d 44

220 WEST 93RD ST., LLC, Respondent, v.

RENA STAVROLAKES, Appellant. Appellate Division of the Supreme Court of the State of New York, First

Department.

Decided October 24, 2006.

Concur — Buckley, P.J., Tom, Saxe, Sullivan and McGuire, JJ.

The judgment was supported by a fair interpretation of the evidence and should not be disturbed (Saperstein v Lewenberg, 11 AD3d 289 [2004]). Sufficient evidence, in the form of testimony and numerous exhibits, was presented for the court to find that the occupancy of this three-bedroom apartment (with dining room converted to a fourth bedroom) by numerous persons between 2001 and 2005—especially short-term transient students at illegal rents—was in the nature of subletting rather than taking in roommates, and constituted profiteering and commercialization of the premises, an incurable violation of the rent control laws (see BLF Realty Holding Corp. v Kasher, 299 AD2d 87 [2002], lv dismissed 100 NY2d 535 [2003]).

We have considered defendant's remaining arguments and find them without merit.

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54 A.D.3d 251 (2008) 862 N.Y.S.2d 501

FIRST HUDSON CAPITAL, LLC, Respondent, v.

RON SEABORN, Appellant. Appellate Division of the Supreme Court of the State of New York, First

Department.

August 5, 2008.

Concur—Mazzarelli, J.P., Andrias and Sweeny, JJ.

Since it became effective December 20, 2000, Rent Stabilization Code (RSC) (9 NYCRR) § 2525.7 (b) makes it a violation to 252*252 charge a roommate more than a proportional share of the rent. However, unlike RSC § 2525.6 (f), which permits an owner to terminate the tenancy of a tenant who charges his subtenant more than the legal regulated rent plus no more than 10 percent if the apartment is sublet fully furnished (see RSC § 2525.6 [b]), RSC § 2525.7 (b) does not provide for termination of the lease. Prior to enactment of RSC § 2525.7, it was the firm rule in this Department that "[t]here is no cause of action for rent profiteering with respect to a roommate" (Handwerker v Ensley, 261 AD2d 190, 191 [1999]). Such position was in accord with our holding in 520 E. 81st St. Assoc. v Roughton-Hester (157 AD2d 199, 202 [1990]) that a landlord may not evict a tenant for "profiteering" with respect to the rent charged a roommate. In so ruling, this Court stated: "Unlike the section pertaining to sublets, the paragraph in which the Legislature introduced the Roommate Law stresses the need to permit such living arrangements to continue and does not mention the elimination of speculation and profiteering as a purpose underlying the enactment of the statute (Seaview-Atlas Mfg. Co. v Fonville, [NYLJ, Apr. 19, 1989, at 23, col 4], supra). We conclude that this omission was deliberate and decline to impose the restrictions against profiteering in sublet situations to living arrangements involving roommates (see, Sullivan v Brevard Assoc., 66 NY2d 489) . . . In sum, neither the lease nor any law governing rent-stabilized apartments permit a landlord to evict a tenant for earning a profit from the rent charged a roommate (Schneller v Moed, 128 Misc 2d 885)" (id. at 203-204). Our reading of the statute and the underlying legislative intent could not have been clearer, and that decision is still good law and binding upon us under principles of stare decisis.

Nevertheless the dissent attempts to discount this Court's holding in Roughton-Hester on the ground that it was issued a decade before the enactment of RSC § 2525.7 and "hardly provides a definitive answer as to whether the subsequently-enacted RSC § 2525.7 supports an eviction remedy." However, a

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fundamental principle of statutory construction is that "[i]n arriving at the legislative intent, the language of an amendment may be construed in the light of previous decisions construing the original act, it being presumed that the Legislature had such judicial construction in mind when adopting the amendment" (McKinney's Cons. Laws of NY, Book 1, Statutes § 191, at 353-354). Nothing could make the legislative mandate clearer than when a court finds that a statute does not have an eviction provision and the Legislature later amends that statute but still omits such a provision. While the Rent Stabilization Code was amended since our decision in Roughton-Hester to prohibit 253*253 overcharging a roommate, our rationale in limiting evictions for overcharging a roommate to cases where there is specific regulatory authority for such a cause of action "is equally applicable here, if not more so" (see Giachino Enters. L.P. v Inokuchi, 7 Misc 3d 738, 742 [2005]). Moreover, the dissent's suggestion that we affirm the Appellate Term's application of "the rule it has developed through its own common-law jurisprudence since enactment of that provision," not only is legally unsupported, but defies logic in that neither the Appellate Term nor this Court may develop its own "common-law jurisprudence" in an area as thoroughly legislated and highly regulated as the rent stabilization laws in New York City by ignoring the plain language of a statute, its clear legislative intent, and binding case law precedent of this Court applying the statute.

Although this Court subsequently indicated that rent profiteering involving roommates might entitle a landlord to maintain a holdover proceeding against the stabilized tenant (BLF Realty Holding Corp. v Kasher, 299 AD2d 87, 91 [2002], lv dismissed 100 NY2d 535 [2003], citing RAM 1 LLC v Mazzola, 2001 NY Slip Op 50073[U] [App Term, 1st Dept 2001]), as noted by the Appellate Term in 270 Riverside Dr., Inc. v Braun (4 Misc 3d 77 [2004]), that case is both legally and factually distinguishable in that it addressed the interplay between the Loft Law and the Rent Stabilization Law as it concerned a tenant who subdivided and sublet his loft space.

Moreover, the Appellate Term for the Ninth and Tenth Judicial Districts has subsequently noted that "DHCR [the agency charged with enforcement of the Rent Stabilization Code] has taken the position that [section] 2505.8 (b) [of the Emergency Tenant Protection Regulations] and its counterpart in the Rent Stabilization Code (9 NYCRR 2525.7 [b]) were intended to vest a roommate with the right to file a complaint against the tenant and not to create a new cause of action for eviction (see Note, Regulating Roommate Relations: Protection or Attack Against New York City's Tenants, 10 Journal of Law and Policy, 539, 547, 585, n 36 [2002])" (SBR Assoc., LLC v Diederich, 2003 NY Slip Op 51057[U] [2003]).

While the 20-year tenant, who originally moved into commercial space and invested thousands of dollars in improvements in order to gain rent stabilized status, concededly advertised for roommates in the Village Voice and charged






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them more than their proportional share of the rent, this is not a case like West 148 LLC v Yonke, (11 Misc 3d 40 [2006], lv denied 2006 NY Slip Op 73839[U] [1st Dept 2006]), where the tenant rented a portion of the stabilized apartment at double the regulated 254*254 rent to a series of guests or "roommates" and described the apartment, in both an Internet listing for "Affordable Hotels" and on her business card, as the "Chez Sylvie Bed and Breakfast" (id. at 41). It is closer to 54 Greene St. Realty Corp. v Shook (8 AD3d 168 [2004], lv denied 4 NY3d 704 [2005]), where the tenant erroneously, but not unreasonably, believed that he was entitled to some compensation for the improvements he made to the former loft space. In any event, to the extent that those cases presuppose a cause of action for eviction by the landlord, they should not be followed.

Saxe and Gonzalez, JJ., dissent in a memorandum by Saxe, J., as follows:

The question presented on this appeal is whether Rent Stabilization Code (9 NYCRR) § 2525.7 (b), which prohibits a tenant in a rent-stabilized apartment from charging a roommate more than his or her proportionate share of the legal rent, permits a landlord to evict the tenant when a violation of this provision is established. I would affirm the holding of Appellate Term, First Department, which applied the rule it has developed through its own common-law jurisprudence since enactment of that provision—that the remedy of eviction is permitted where the evidence demonstrates intentional commercial profiteering from roommates by the tenant of record. That is precisely what happened here.

I further observe at the outset that the majority's discussion contains a fundamental inconsistency. On one hand, it supports its conclusion that eviction is improper here by equating respondent's conduct with the benign roommate overcharge in 54 Greene St. Realty Corp. v Shook (8 AD3d 168 [2004], lv denied 4 NY3d 704 [2005]), and distinguishing it from the egregious commercial exploitation justifying the tenant's eviction for a violation of RSC § 2525.7 in West 148 LLC v Yonke (11 Misc 3d 40 [App Term, 1st Dept 2006], lv denied 2006 NY Slip Op 73839[U] [2006]). On the other hand, the majority follows that discussion with the offhand comment that "to the extent that those cases presuppose a cause of action for eviction by the landlord, they should not be followed." This Court cannot properly direct that. Yonke not be followed while at the same time using Yonke to determine whether the facts here are similar enough to render its holding applicable to the present case.

The provision of the Rent Stabilization Code applicable to overcharging roommates, 9 NYCRR 2525.7 (b), was enacted in 2000. Unlike the section's counterpart regarding overcharging subtenants, 9 NYCRR 2525.6, which authorizes both an award of treble damages to the overcharged subtenant (RSC § 2525.6 255*255 [b]) and the termination of the lease of the prime tenant














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(RSC § 2525.6 [f]), the enactment regarding overcharging roommates contains no specific provision for how it may be enforced, or by whom.

Although RSC § 2525.7 contains no enforcement provision, it cannot seriously be suggested that it was intended to stand merely as an empty prohibition with no means of enforcement. Since enactment of the provision, Appellate Term, First Department has considered the issue in several cases and has concluded that RSC § 2525.7 supports a judgment of eviction in appropriate roommate-profiteering cases (see e.g. Roxborough Apts. Corp. v Becker, 11 Misc 3d 99 [App Term, 1st Dept 2006]; West 148 LLC v Yonke, 11 Misc 3d 40 [2006], supra; RAM 1 LLC v Mazzola, 2001 NY Slip Op 50073[U] [App Term, 1st Dept 2001], lv denied 2002 NY App Div LEXIS 6531 [2002]). Indeed, in two of those cases this Court has denied leave to appeal, which, although not a determination on the merits, indicates that we perceived no grave error in the rule enunciated in those cases (see Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 298 [1929]).

However, this Court has not directly ruled on the issue of whether RSC § 2525.7 supports a judgment of eviction for roommate-profiteering. Our decision in 520 E. 81st St. Assoc. v Roughton-Hester (157 AD2d 199 [1990]), was issued a decade before the enactment of RSC § 2525.7, so our conclusion there, that a landlord may not evict a tenant for profiteering with respect to the rent charged to a roommate, while relevant to the interpretation of the statute, hardly provides a definitive answer as to whether the subsequently-enacted RSC § 2525.7 supports an eviction remedy. Yet, the majority treats that 1990 decision, issued 10 years before enactment of the provision, as controlling, trotting out a worn and tired proposition from McKinney's Statutes, a compendium of aphorisms where even a casual researcher can find some support for nearly any proposition, however dubious, sought to be advanced.

In order to arrive at our own conclusion as to whether Appellate Term has correctly held that an eviction remedy may be read into RSC § 2525.7, I therefore turn to consider rulings issued by this Court since enactment of the provision. Our ruling in BLF Realty Holding Corp. v Kasher (299 AD2d 87, 91 [2002], lv dismissed 100 NY2d 535 [2003]), is instructive, since we stated there that: "Rent Stabilization Code § 2525.7 (b) also prohibits a stabilized tenant from charging a roommate in excess of the roommate's proportional share of the stabilized rent. Rent profiteering in the latter circumstance may also entitle a 256*256 landlord to maintain a holdover proceeding against the stabilized tenant" (emphasis added). Kasher did not concern the interpretation of RSC § 2525.7 (b), and the above statement therefore constitutes dicta. However, in addition, this Court's decision in 54 Greene St. Realty Corp. v Shook (8 AD3d 168 [2004], supra), provides further, albeit indirect, support for the proposition that RSC § 2525.7 authorizes eviction as an available remedy where roommates are overcharged












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and there is a finding of an intent to profiteer. While rejecting the remedy of eviction in that matter, we did so based on the nonegregious nature of the conduct; "the IAS court properly refused to eject the tenant and his roommate since the amount of overcharge was small and there was no evidence of bad faith or an intent to profiteer" (54 Greene St. Realty Corp., 8 AD3d at 168 [emphasis added]). The holding implicitly acknowledges that eviction would be an available remedy in cases involving more egregious profiteering by the tenant. Notably, in Kasher we also cited with approval RAM 1 LLC v Mazzola (2001 NY Slip Op 50073[U] [2001], supra), in which Appellate Term, First Department held that RSC § 2525.7 supports a possessory cause of action for a roommate overcharge.

Finally, mention must be made of the majority's odd notion that a common-law court may not develop its own "`common-law jurisprudence' in an area as thoroughly legislated and highly regulated as the rent stabilization laws of New York City." Without belaboring this point, it is incorrect. Statutes are interpreted by common law courts in their decisions, becoming part of the body of our common law. "[C]odes and statutes do not render the judge superfluous, nor his work perfunctory and mechanical. There are gaps to be filled" (Cardozo, The Nature of the Judicial Process, at 14 [1921]). The law of rent stabilization is no exception. Its provisions, its nuances, its silences and its legislative history, among other things, are and always will be subject to the scrutiny and interpretive powers of common law judges doing what they are empowered to do—decide cases.

I add that there is a significant policy rationale for permitting eviction of a rent-stabilized tenant who profiteered from roommates. When a tenant sublets, the landlord is entitled to demand an array of information, including a copy of the sublease, whereas the landlord has no right to any such information with respect to a roommate beyond the name of the new occupant (Real Property Law § 235-f [5]). With so little oversight over roommate arrangements, the possibility of profiteering from roommates will be better kept in check where tenants have reason to know that forming such an arrangement in violation of 257*257 the Rent Stabilization Code may result in the serious penalty of eviction rather than merely having to pay back rent overcharges.

I therefore reject the suggestion that eviction of tenants for overcharging roommates is never permitted because the regulation does not specifically authorize such a cause of action. Rather, I would adopt the rule stated by the Appellate Term, First Department, and implied in this Court's previously discussed cases: RSC § 2525.7 must be read to permit a cause of action to evict a rent-stabilized tenant who overcharges roommates, where the overcharges have been found to constitute the commercial exploitation of the tenant's rent-stabilized apartment through the use of intentional profiteering.






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I would further adopt the finding of the Civil Court and Appellate Term that respondent's conduct amounted to intentional profiteering, rising to the level of commercial exploitation of his rent-stabilized apartment. The conduct of respondent here, as found by the trial court, was not of the benign nature demonstrated in 54 Greene St. Realty Corp. v Shook (8 AD3d 168 [2004], supra). It was far closer to that in West 148 LLC v Yonke (11 Misc 3d 40 [2006], supra), which affirmed the eviction of the tenant of record where the tenant had rented a portion of her rent-stabilized apartment to a series of guests she termed "roommates," each of whom she charged nearly double the stabilized rent; the tenant had listed her apartment on the internet under "Affordable Hotels" and printed up business cards reading "Chez Sylvie Bed and Breakfast" (id. at 41), so the finding that she had commercially exploited her rent-stabilized apartment was well supported.

The present case parallels Yonke in many ways. Respondent sometimes collected rent virtually covering his entire stabilized rent, and sometimes, when he had two roommates simultaneously, he collected almost twice his stabilized rent. Moreover, respondent's credibility was seriously undermined by his testimony regarding the overcharge refund he purportedly paid to one roommate, Nigel Borel. Although respondent initially testified to having refunded Borel $1,350 by check on December 1, 2004, Borel then called that refund into question with his own testimony that respondent had instructed him that he would write Borel a check for $1,350, but that Borel would have to pay respondent cash in that amount, in order to make it appear that Borel had paid less rent than he actually did. Borel's bank statement showed a withdrawal of cash in the amount of $1,350 on December 9, 2004, which cash he testified he gave to respondent. Borel further testified that respondent set up this transaction after first indicating, in late November, that Borel 258*258 would have to vacate the premises because the landlord was in the process of making a case against respondent. When respondent was subsequently recalled to the stand, he admitted that when he gave Borel that check, he asked for the same amount back in cash, but he explained that he needed a loan, and that Borel had agreed to the loan. Moreover, he said he refunded Borel the $1,350 by mailing him a check to his place of business on June 2, 2005.

The Civil Court's rejection of respondent's credibility, and its resultant rejection of his defense that his violation of the roommate overcharge provision was minor and unwitting, was well supported by the testimony, and Appellate Term's characterization of respondent's actions as commercial exploitation of his stabilized apartment was an accurate assessment, warranting the resulting judgment.

There is no question that in appropriate circumstances a tenant who overcharged roommates should be given an opportunity to cure the violation





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(see Roxborough Apts. Corp. v Becker, 11 Misc 3d at 100); however, I agree with the trial court's determination that even if respondent's violation was considered curable, he did not succeed in establishing any true intent to undertake such a cure in good faith. Rather, respondent's conduct was on the order of that established in Yonke, such as would clearly justify the ordered eviction. Accordingly, I dissent. [See 15 Misc 3d 40.]


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NYC v. Abe Carrey September 26, 2013

Appeal Nos. 1300602 & 1300736

Petitioner, the Department of Buildings (DOB), appeals from that portion of a recommended master decision and order dismissing two Class 1 violations of Section 28-301.1 of the Administrative Code of the City of New York (Code) for failure to maintain a building in a safe and Code-compliant manner, a Class 1 violation of Section 907.2.8 of the New York City Building Code (BC) for failure to provide a fire alarm system,1 and a Class 2 violation of Section 22-00 of the New York City Zoning Resolution (ZR) for illegal use in a residential district. These notices of violation (NOVs) are dated September 12, 2012. In the first NOV citing a violation of Code Section 28-301.1, the issuing officer (IO) stated that Respondent had failed to provide an automatic sprinkler system where required per BC 903.2 “for transient use in apt 5G.” In the second NOV citing a violation of Code Section 28-301.1, the IO stated that Respondent had failed to provide required means of egress for every floor per BC 1018.1 “for transient use.” In the NOV citing a violation of BC 907.2.8, the IO stated that Respondent failed to provide a fire alarm system “for transient use in apt 5G.” In the NOV citing a violation of ZR 22-00, the IO stated that “apt #5G occupied as a transient use in R8B general residence district.”

Respondent, premises owner, cross-appeals from that portion of the same recommended master decision and order sustaining a Class 1 violation of Code Section 28-118.3.2 for occupancy in a manner contrary to that allowed by DOB records. In the NOV, the IO stated that on September 12, 2012, unit 5G at the cited premises had been converted from a Class “A” apartment to transient use.

The hearing

At the hearing, Petitioner submitted the certificate of occupancy C of O for the cited premises showing that Class “A” apartments were authorized on the first through sixth floors. Petitioner also submitted a recorded deed and part of a recorded declaration of condominium showing that Respondent owned condominium unit 5G. The IO testified that he spoke with two women coming out of apartment 5G, who told him that they were tourists from Russia who had rented the apartment from September 12 to 14, 2012 through an internet platform called Airbnb.2 According to the IO, the tourists had three keys for the apartment, including a key for the room in which they were staying. The IO stated that he did not inspect the apartment.

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Respondent’s representative, Nigel Warren, testified that he and his roommate, Yuliya (aka Julia) Kodysh, were long-term tenants of apartment 5G, a two-bedroom, one-bathroom unit. Mr. Warren conceded that through Airbnb, he rented his bedroom to a female Russian tourist from September 10 to 13, during which period he was out of town. He claimed, however, that Ms. Kodysh, his roommate, remained in the apartment during this time period and shared it with the Russian tourist. He denied that his bedroom or Ms. Kodysh’s bedroom had locks. Mr. Warren argued that under Section 4(8)(a)(1)(A) of the New York State Multiple Dwelling Law (MDL), the temporary occupancy of the apartment by a paying boarder with a permanent occupant present was consistent with the occupancy of the apartment for permanent residence purposes.

The hearing decision

The administrative law judge (ALJ) found that Ms. Kodysh, the co-tenant, was present in the apartment during the Russian tourist’s stay. The ALJ noted that under the law,3 the occupancy of a Class “A” apartment for fewer than 30 consecutive days by other natural persons living within the household of the permanent occupant, such as houseguests or lawful boarders, roomers, or lodgers, was not inconsistent with occupancy of such dwelling unit for permanent residence purposes. The ALJ concluded, however, that the terms “houseguests,” “boarders,” and “lodgers” referred to “occupants who share the life of the dwelling with its permanent occupants” and did not apply to “complete strangers who have no, and are not intended to have any, relationship with the permanent occupants.” Accordingly, the ALJ found that Respondent had not established a defense to the charge of Code Section 28-118.3.2 and sustained this violation.

The ALJ dismissed the two violations of Code Section 28-301.1 and the violation of BC 907.2.8 on the grounds that the condominium association, and not Respondent, the owner of an individual condominium unit, was responsible for complying with the cited sprinkler, fire alarm, and egress requirements. Additionally, the ALJ dismissed the violation of ZR Section 22-00, finding that Petitioner had not established that the premises was occupied as a transient hotel, as defined under the ZR.

Issue presented

The issue on appeal is whether the occupancy of the cited Class “A” apartment by a tourist for less than thirty consecutive days while a permanent occupant was present in the apartment is consistent with using such apartment for permanent residence purposes.

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Relevant law

MDL Section (4)(8)(a) provides, in pertinent part:

A “class A” multiple dwelling is a multiple dwelling that is occupied for permanent residence purposes. . . . A class A multiple dwelling shall only be used for permanent residence purposes. For the purposes of this definition, “permanent residence purposes” shall consist of occupancy of a dwelling unit by the same natural person or family for thirty consecutive days or more and a person or family so occupying a dwelling unit shall be referred to herein as the permanent occupants of such dwelling unit. The following uses of a dwelling unit by the permanent occupants thereof shall not be deemed to be inconsistent with the occupancy of such dwelling unit for permanent residence purposes:

(1)(A) occupancy of such dwelling unit for fewer than thirty consecutive days by other natural persons living within the household of the permanent occupant such as house guests or lawful boarders, roomers or lodgers; or

(B) incidental and occasional occupancy of such dwelling unit for fewer than thirty consecutive days by other natural persons when the permanent occupants are temporarily absent for personal reasons such as vacation or medical treatment, provided that there is no monetary compensation paid to the permanent occupants for such occupancy.

MDL Section 4(5) defines “family” as

either a person occupying a dwelling and maintaining a household, with not more than four boarders, roomers or lodgers, or two or more persons occupying a dwelling, living together and maintaining a common household, with not more than four boarders, roomers or lodgers. A “boarder,” “roomer” or “lodger” residing with a family shall mean a person living within the household who pays a consideration for such residence and does not occupy such space within the household as an incident of employment therein.

The appeal and cross-appeal

In its appeal, Petitioner contends that apartment 5G was subject to the cited fire protection and egress requirements where the unit was transiently occupied. Petitioner contends that as unit owner, Respondent was properly named. Petitioner asserts that even if the fire protection systems and exits were located in the common elements of the building, Respondent, as part owner of the common elements, was properly named. Petitioner reiterates that the unit was occupied as a transient hotel, in violation of the ZR.

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In its answer to Petitioner’s appeal, Respondent, by its attorney, contends that the IO did not gain access to apartment 5G and therefore no evidence was adduced to prove that the apartment lacked a sprinkler and fire alarm system or the required number of exits. Respondent argues that as owner of an undivided share in the common elements, he cannot be held responsible for the building’s obligation to comply with applicable laws affecting the common elements. Respondent reiterates that the occupancy of the apartment was not converted into transient use where the Russian tourist shared the apartment with Ms. Kodysh. Respondent argues that because the violations relating to fire protection and exit requirements were issued on the basis of the alleged transient use, these violations must be dismissed where no transient use was established. Respondent points out that sprinkler system and exit requirements are the same for transiently or permanently occupied residences. Respondent also contends that Petitioner failed to establish that the apartment was occupied as a “transient hotel,” as defined under the ZR.

In its cross-appeal, Respondent argues, as at the hearing, that under a plain reading of Code Section 27-2004(a)(8)(a)(1)(A), occupancy of a Class “A” dwelling unit for less than 30 consecutive days by paying boarders, roomers, or lodgers while a permanent occupant is present does not change the character of the unit from a permanent residence to a transient residence. Respondent urges that this interpretation of the statutory exception is supported by legislative history. Respondent argues further that in interpreting the statute, the ALJ judicially legislated an entirely new “family member” or “mingle” test, wholly without support in statute, case law, or legislative history. Alternatively, Respondent asserts that any ambiguity in the statute must be construed in favor of Respondent.

In its answer to the cross-appeal, Petitioner asserts that the cross-appeal was filed by the discretionary intervenor, which has no standing to appeal. However, the Board notes that the cross-appeal and answer to Petitioner’s appeal were prepared and filed by a law firm on behalf of Respondent and the discretionary intervenor. Because a discretionary intervenor has no standing to appeal the ALJ’s decision pursuant to Section 3-35(b) of Title 48 of the Rules of the City of New York, the Board declines to accept the cross-appeal and answer to Petitioner’s appeal to the extent that they represent solely positions of the discretionary intervenor. Petitioner generally supports the ALJ’s interpretation of the statute. Petitioner contends that Respondent failed to show that the Russian tourist had access to all parts of the unit and therefore did not prove that she and Ms. Kodysh were maintaining a common household.

Occupancy consistent with permanent residence purposes

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On this record, the Board finds that the occupancy of the cited Class “A” apartment by a tourist for less than thirty consecutive days while a permanent occupant was present in the apartment is consistent with using such apartment for permanent residence purposes. It is undisputed that Mr. Warren and Ms. Kodysh were the permanent occupants of apartment 5G on the date of the violations. It is also undisputed that Mr. Warren had rented his bedroom to a Russian tourist who stayed in the apartment for a period of less than 30 consecutive days and was there on the date of the violations. At the hearing, Mr. Warren testified that he vetted the tourist with Ms. Kodysh, who remained in the apartment during the Russian tourist’s stay. In support, he offered an email exchange with Ms. Kodysh about the proposed rental to the Russian tourist, an advertisement through Airbnb describing the apartment as a two-bedroom apartment and advising that any renter would be sharing the apartment with his roommate, and a statement from Ms. Kodysh that she was living in the apartment on the date of the violations.

In its cross-appeal, as at the hearing, Respondent argues that the statutory definition of “permanent residence purposes” expressly allows a paying, lawful boarder, roomer, or lodger, such as the Russian tourist, to live a few days within the household of Ms. Kodysh, the permanent occupant. The Board agrees.

The ALJ found that Ms. Kodysh was present in the apartment during the Russian tourist’s stay. However, the ALJ concluded that the tourist was not “living within the household of the permanent occupant” because she and Ms. Kodysh were strangers. Contrary to the ALJ’s decision, there is nothing in the MDL definition of “boarder,” “roomer,” or “lodger” that requires such individuals to have a personal relationship with the permanent occupants of the residence. Nor is such a relationship required under MDL Section (4)(8)(a)(1)(A).

In its answer to the cross-appeal, Petitioner contends that no evidence was submitted to show that Ms. Kodysh maintained a “common household” with the Russian tourist. More specifically, Petitioner claims that unless the occupants have free and unobstructed access to all parts of the apartment, no “common household” is being maintained. However, Mr. Warren testified that the apartment consisted of two bedrooms, one kitchen, and one bathroom. He testified further that neither his bedroom nor Mr. Kodysh’s bedroom had locks. Although the IO stated that the Russian tourist had three keys – one to the building entrance, one to the apartment, and one to the room she was staying in inside the apartment – he conceded that he did not inspect the interior of the apartment. On this record, the Board concludes that the Russian tourist was living “within the household of the permanent occupant,” Ms. Kodysh. Consequently, the occupancy of apartment 5G on the date of inspection was not inconsistent with permanent residence purposes, pursuant to MDL Section 4(8)(a)(1)(A), and the Board dismisses the violation of Code Section 28-118.3.2.

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As Petitioner conceded at the hearing that the four other violations issued on the same date for the alleged transient use could not stand if such use was not found, the Board dismisses the two charges of Code Section 28-301.1, the charge of BC 907.2.8, and the charge of ZR Section 22-00. The Board therefore need not address the other arguments raised by the parties in respect of these violations.

Accordingly, the Board affirms the ALJ’s dismissal of the two charges of Code Section 28-301.1, the charge of BC 907.2.8, and the charge of ZR 22-00, but on different grounds. The Board reverses the ALJ’s finding of violation of Code Section 28-118.3.2 and dismisses this charge.

1 The BC is found in Title 28 of the Code.

2 Airbnb Internet Platform was granted discretionary intervenor status and appeared at the hearing by two employees and counsel.

3 The ALJ cited the provisions of Code Section 27-2004(a)(8), which contains language identical to MDL Section 4(8)(a).

When a Tenant Refuses to Renew: Deemed Leases and Failure to Renew Holdover

By Matthew S. Brett, Esq © 2014

I. Introduction

II. Why a tenant fails to renew their rent stabilized lease?

III. Relevant Statutes and Codes

A. RPL § 232-c; B. RSC § 2523.5 (a); C. RSC § 2523.5(c)(2) and (3) (as amended); D. RSC § 2524.3 (f); E. RSC § 2524.2 (c)(1).

IV. Relevant Case Law

V. DHCR Fact Sheet

VI. The Death of the Deemed Renewal

VII. The Failure to Renew Holdover

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RPL § 232-c Holding over by a tenant after expiration of a term longer than one month; effect of acceptance of rent. Where a tenant whose term is longer than one month holds over after the expiration of such term, such holding over shall not give to the landlord the option to hold the tenant for a new term solely by virtue of the tenant's holding over. In the case of such a holding over by the tenant, the landlord may proceed, in any manner permitted by law, to remove the tenant, or, if the landlord shall accept rent for any period subsequent to the expiration of such term, then, unless an agreement either express or implied is made providing otherwise, the tenancy created by the acceptance of such rent shall be a tenancy from month to month commencing on the first day after the expiration of such term.

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RSC § 2523.5 (a) On a form prescribed or a facsimile of such form approved by the DHCR, dated by the owner, every owner, other than an owner of hotel accommodations, shall notify the tenant named in the expiring lease not more than 150 days and not less than 90 days prior to the end of the tenant's lease term, by mail or personal delivery, of the expiration of the lease term, and offer to renew the lease or rental agreement at the legal regulated rent permitted for such renewal lease and otherwise on the same terms and conditions as the expiring lease. The owner shall give such tenant a period of 60 days from the date of service of such notice to accept the offer and renew such lease. The tenant's acceptance of such offer shall be entered on the designated part of the prescribed form, or facsimile thereof, and returned to the owner by mail or personal delivery. Pursuant to the provisions of section 2522.5(b)(1) of this Title, the owner shall furnish to such tenant a copy of the fully executed renewal lease form bearing the signatures of the owner and tenant within 30 days of the owner's receipt of the renewal lease form signed by the tenant. Upon execution by the owner and delivery to the tenant, such form shall constitute a binding renewal lease. Upon failure of the owner to deliver a copy of the fully executed renewal lease form to the tenant within 30 days from the owner's receipt of such form signed by the tenant, such tenant shall not be deprived of any of his or her rights under the RSL and this Code and the owner shall be barred from commencing any action or proceeding against the tenant based upon nonrenewal of lease, pursuant to section 2524.3(f) of this Title. In the event that such notice is given to the tenant after the expiration of the lease, the provisions of subdivision (c) of this section shall govern.

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RSC § 2523.5(c)(2) and (3)

(2) Where the tenant fails to timely renew an expiring lease or rental agreement offered pursuant to this section, and remains in occupancy after expiration of the lease, such lease or rental agreement may be deemed to be in effect, for the purpose of determining the rent in an overcharge proceeding, where such deeming would be appropriate pursuant to Real Property Law section 232-c. In such event, the expiring lease will be deemed to have been renewed upon the same terms and conditions at the legal regulated rent, together with any guidelines adjustments that would have been applicable had the offer of a renewal lease been timely accepted. Unless otherwise dictated by Real Property Law section 232-c, the effective date of the rent adjustment under the “deemed” renewal lease shall commence on the first rent payment date occurring no less than 90 days after such offer is made by the owner. (3) Where there is no deemed lease pursuant to the provisions of paragraph (2) of this subdivision, an owner may commence an action or proceeding to recover possession of a housing accommodation in a court of competent jurisdiction pursuant to sections 2524.2(c)(1) and 2524.3(f) of this Title, where the tenant, upon the expiration of the existing lease or rental agreement, fails to timely renew such lease in the manner prescribed by this section.

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RSC § 2524.3(f) (f) The tenant has refused, following notice pursuant to section 2523.5 of this Title, to renew an expiring lease in the manner prescribed in such notice at the legal regulated rent authorized under this Code and the RSL, and otherwise upon the same terms and conditions as the expiring lease. This subdivision does not apply to permanent hotel tenants, nor may a proceeding be commenced based on this ground prior to the expiration of the existing lease term.

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RSC § 2524.2(c)(1) (c) Every such notice shall be served upon the tenant: (1) in the case of a notice based upon section 2524.3(f) of this Part, at least 15 days prior to the date specified therein for the surrender of possession; or

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Samson Mgt., LLC v Hubert

2012 NY Slip Op 01598 [92 AD3d 932]

February 28, 2012

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, March 28, 2012

—[*1] Robert E. Judge, P.C., Brooklyn, N.Y., for appellant.

In an action to recover unpaid rent pursuant to a lease, the plaintiff appeals, by

permission, from an order of the Appellate Term of the Supreme Court for the

Second, Eleventh, and Thirteenth Judicial Districts dated May 21, 2010, which

reversed a judgment of the Civil Court, Richmond County (Dollard, J.), entered May

21, 2009, which, upon an order of the same court dated January 29, 2009, granting the

plaintiff's motion for summary judgment on the cause of action to recover unpaid rent

and dismissing the defendant's counterclaim for a return of his security deposit, was in

favor of it and against the defendant in the principal sum of $6,817.81, and thereupon

denied its motion and remitted the matter to the Civil Court, Richmond County, for a

trial.

Ordered that the order dated May 21, 2010, is affirmed, without costs or

disbursements.

The plaintiff landlord and the defendant tenant were parties to a one-year lease

for a rent-stabilized apartment on Staten Island that expired on April 30, 2004. In

accordance with the Rent Stabilization Code (hereinafter RSC) (9 NYCRR parts

http://www.courts.state.ny.us/reporter/

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2520-2531), the plaintiff timely offered the defendant a renewal lease, which the

defendant did not execute. After the expiration of the lease, the defendant remained in

possession of the apartment until October 6, 2004, and paid the increased rent as

specified in the renewal offer.

The plaintiff commenced this action to recover unpaid rent for the remainder of a

one-year lease it alleges commenced on May 1, 2004. The Civil Court granted the

plaintiff's motion, inter alia, for summary judgment on its cause of action to recover

unpaid rent on the ground that the plaintiff properly deemed the lease renewed for a

one-year term pursuant to RSC § 2523.5 (c) (2). Thereafter, the Civil Court entered a

judgment in favor of the plaintiff for an amount representing seven months of rent less

the amount of the defendant's security deposit. The Appellate Term of the Supreme

Court for the Second, Eleventh, and Thirteenth Judicial Districts (hereinafter the

Appellate Term), among other things, reversed the judgment and denied the plaintiff's

motion for summary judgment. This Court granted leave to appeal, and we now

affirm.

Real Property Law § 232-c provides that "[w]here a tenant whose term is longer

than one month holds over after the expiration of such term, such holding over shall

not give to the landlord the option to hold the tenant for a new term solely by virtue of

the tenant's holding over." Instead, a landlord facing a holdover tenant can either

commence a proceeding to remove the tenant [*2]or accept rent for any period after

the expiration of the lease, thereby creating a month-to-month tenancy "unless an

agreement either express or implied is made providing otherwise" (Real Property Law

§ 232-c). This statute abolished the common-law rule that a holdover tenant may be

held as a tenant for a new term (see Matter of Jaroslow v Lehigh Val. R.R. Co., 23

NY2d 991 [1969]).

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The Rent Stabilization Law of 1969 (hereinafter RSL) provides that no provision

of the RSC "shall impair or diminish any right or remedy granted to any party by this

law or any other provision of law" (RSL [Administrative Code of City of NY] § 26-

511 [b]). Section 2523.5 (c) (2) of the RSC provides, in pertinent part: "Where the

tenant fails to timely renew an expiring lease or rental agreement offered pursuant to

this section, and remains in occupancy after expiration of the lease, such lease or

rental agreement may be deemed to have been renewed upon the same terms and

conditions, at the legal regulated rent . . . had the offer of a renewal lease been timely

accepted."

Here, the Appellate Term properly determined that RSC § 2523.5 (c) (2) is

invalid to the extent it impairs a right granted to tenants by Real Property Law § 232-

c. The RSC provision purports to provide landlords of rent-stabilized units a remedy

to deal with holdover tenants that is expressly precluded by Real Property Law § 232-

c. Accordingly, the plaintiff cannot rely on RSC § 2523.5 (c) (2) and deem the prior

lease renewed solely by virtue of the fact that the defendant remained in the apartment

after the expiration of the lease and, thus, the Appellate Term properly reversed the

judgment of the Civil Court and denied the plaintiff's motion for summary judgment

on the complaint. Dillon, J.P., Florio, Austin and Roman, JJ., concur.

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265 Realty, LLC v Trec

2013 NY Slip Op 50974(U) [39 Misc 3d 150(A)]

Decided on June 6, 2013

Appellate Term, Second Department

Decided on June 6, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ 2011-2057 K C2012-314 K C.

265 Realty, LLC, Respondent, —

against

Maria Trec, Tenant, DOROTA TREC, Appellant, -and- JOHN DOE and JANE DOE, Undertenants.

Appeals from (1) a final judgment of the Civil Court of the City of New York,

Kings County (Anthony J. Fiorella, Jr., J.), entered March 24, 2010, and (2) an order

of the same court entered May 14, 2010. The final judgment, entered pursuant to an

order of the same court entered March 24, 2010 granting landlord's motion for

summary judgment, awarded landlord possession and the sum of $10,883.53 in a

nonpayment summary proceeding. The order entered [*2]May 14, 2010, insofar as

appealed from, upon, in effect, granting tenant Dorota Trec leave to reargue her

opposition to landlord's prior motion for summary judgment, adhered to the prior

determination, and granted to an extent the branch of landlord's cross motion seeking

an award of attorney's fees.

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ORDERED that, on the court's own motion, the appeals are consolidated for

purposes of disposition; and it is further,

ORDERED that the final judgment is reversed, without costs, the order entered

March 24, 2010 is vacated, landlord's motion for summary judgment is denied, and,

upon searching the record, summary judgment is awarded to tenant Dorota Trec

dismissing the petition; and it is further,

ORDERED that the order entered May 14, 2010, insofar as appealed from, is

reversed, without costs, tenant Dorota Trec's motion to reargue her opposition to

landlord's prior motion for summary judgment is denied as moot and the branch of

landlord's cross motion seeking an award of attorney's fees is denied.

In this nonpayment proceeding, Dorota Trec (tenant) appeals from (1) a final

judgment of the Civil Court awarding landlord possession and the sum of $10,883.53,

entered pursuant to a March 24, 2010 order granting landlord's motion for summary

judgment, and (2) an order entered May 14, 2010 which, upon, in effect, granting

tenant leave to reargue her opposition to landlord's summary judgment motion,

adhered to the prior determination and granted to an extent the branch of landlord's

cross motion seeking an award of attorney's fees.

The petition, dated October 7, 2009, alleges that Maria Trec and Dorota Trec are

in possession pursuant to a written rental agreement. (However, Maria Trec died in

2008, prior to the commencement of this proceeding.) The petition further alleges that

tenants promised to pay monthly rent of $1,209.17 and that they owe rent for July

2009 through October 2009.

The record establishes that, contrary to the allegations of the petition, there was

no rental agreement in effect when this proceeding was commenced. The last renewal

lease expired on August 31, 2009, and tenant did not sign a renewal lease for the

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period after that expiration. Nor did tenant pay any rent for the period after the

expiration.

Under Samson Mgt., LLC v Hubert (92 AD3d 932 [2012], affg 28 Misc 3d 29

[App Term, 2d, 11th & 13th Jud Dists 2010]), when a rent-stabilized tenant's lease

expires and the tenant remains in possession without signing a renewal lease, the

landlord is not permitted to deem the lease renewed, as the provision in the Rent

Stabilization Code which allows a landlord to deem a lease renewed (9 NYCRR

2523.5 [c] [2]) violates Real Property Law § 232-c, which abolished deemed lease

renewals.

Thus, there was no lease in effect after August 31, 2009. Since there was no payment

and acceptance of rent after the expiration of the last lease on August 31, 2009, no

month-to-month tenancy was created (Real Property Law § 232-c; see Matter of

Jaroslow v Lehigh Val. R.R. Co., 23 NY2d 991 [1969]; cf. Samson Mgt., LLC v

Hubert, 92 AD3d 932). Because a nonpayment proceeding must be predicated on a

rental agreement that is in effect at the time the proceeding is commenced (Matter of

Jaroslow, 23 NY2d 991; 615 Nostrand Ave. Corp. v Roach, 15 Misc 3d 1 [App Term,

2d, 11th & 13th Jud Dists 2006]; Licht v Moses, 11 Misc 3d 76 [App Term, 2d & 11th

Jud Dists 2006]) and no rental agreement was in effect (see Pald Enters. v Gonzalez,

173 Misc 2d 681 [App Term, 2d & 11th Jud Dists 1997]; cf. Stern v [*3]Equitable

Trust Co. of NY, 238 NY 267, 269 [1924] ["the relation of landlord and tenant is

always created by contract, express or implied, and will not be implied where the acts

and conduct of the parties negative its existence"]), the petition must be dismissed.

Consequently, landlord's application for attorney's fees must also be denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: June 06, 2013

http://www.nycourts.gov/reporter/3dseries/2012/2012_01598.htm





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Fact Sheet #4: Lease Renewal in Rent Stabilized Apartments Generally, tenants in rent stabilized apartments must be offered renewal leases. The renewal lease can be for a term of one or two years, at the tenant's choice and is at a rate set by the local Rent Guidelines Board. The renewal lease offer must be made on a form created by or on a facsimile approved by the Division of Housing and Community Renewal.

The Lease Renewal Process 1. In New York City, the owner must give written notice of renewal by mail or personal delivery not more than 150

days and not less than 90 days before the existing lease expires on a DHCR Renewal Lease Form (RTP-8). For tenants outside of New York City, an owner must first sign and date the renewal notice (RTP-8 ETPA), and then send it by certified mail not more than 120 days and not less than 90 days before the existing lease expires.

2. After the renewal offer is made, the tenant has 60 days to choose a lease term, sign the lease, and return it to the owner. For tenants outside of New York City, the lease must be returned to the owner by certified mail. If the tenant does not accept the renewal lease offer within this 60-day period, the owner may refuse to renew the lease and may also proceed in court after the expiration of the current lease, to have the tenant evicted.

3. When a tenant signs the Renewal Lease Form and returns it to the owner, the owner must return the fully signed and dated copy to the tenant within 30 days. A renewal should go into effect on or after the date that it is signed and returned to the tenant but no earlier than the expiration date of the current lease. In general, the lease and any rent increase may not begin retroactively. (See Example #1 below)

Other Considerations

If the owner does not return a copy of the fully executed Renewal Lease Form to the tenant within 30 days of receiving the signed lease from the tenant, the tenant should nevertheless pay the new rent, and may file the "Tenant's Complaint of Owner's Failure to Renew Lease and/or Failure to Furnish a Copy of a Signed Lease" [DHCR form RA-90].

Renewal leases must keep the same terms and conditions as the expiring lease unless a change is necessary to comply with a specific law or regulation. Those lawful provisions that would change the expiring lease should be attached to the Renewal Lease Form. (See Example #2 below)

In New York City only, when a tenant receives the Lease Renewal Form, a copy of the Rent Stabilization Rights Rider for Apartment House Tenants Residing in New York City must be attached. The Rider will explain how the proposed rent was computed and describe the rights and obligations of tenants and owners under the Rent Stabilization Law.

Reasons for Not Renewing a Lease

An owner can refuse to renew a lease for several reasons, some of which are:

1. The owner or a member of the owner's immediate family needs the apartment for their personal use and primary residence. If the tenant is a senior citizen, or disabled, special rules apply [See Fact Sheets on Special Rights of Senior Citizens and Special Rights of Disabled Persons].

2. The apartment is not used as the tenant's primary residence.

3. The owner wants to take the apartment off the rental market, either to demolish the building for reconstruction or use it for other purposes permitted by law.

However, when the owner does not offer the tenant a renewal lease for one of these reasons, the owner must give the tenant written notice of non-renewal during the lease offering time frame described in "The Lease

http://www.nyshcr.org/Rent/factsheets/orafac4.htm#example1

http://www.nyshcr.org/Rent/factsheets/orafac4.htm#example2

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Renewal Process" section of the Fact Sheet. Failure to serve this notice on the tenant during this time frame will entitle the tenant to a renewal lease.

Examples:

Example #1 1. Mr. Rivera's lease expired on July 31, 2007. He did not receive a timely renewal lease offer and has continued to

pay his rent of $800. 2. On May 15, 2008, the landlord makes him an offer of a renewal lease to commence retroactively on August 1, 2007

at a rent of $834 for 1 year or $858 for 2 years. The additional $34 represents a 4.25% increase for 1 year, and the additional $58 represents a 7.25% increase for 2 years.

3. In this situation, the option for the commencement date of the lease is Mr. Rivera's. He can request that the lease be dated to start on:

a. August 1, 2007, the date it would have begun had a timely offer had been made or b. September 1, 2008, the first rent payment date occurring no less than 90 days

4. Whether Mr. Rivera chooses option (a) or (b), the applicable guideline increase will be the lower of the two possible rates. In this case, he will be liable for the lower rates in effect on September 1, 2008; 3% for 1 year or 5.75% for two years. Moreover, the increase in rent to either $824 for 1 year, or $846 for 2 years, will not go into effect until September 1, 2008.

Example #2 1. Two years ago, Mrs. Cooper signed a vacancy lease which contained no clauses or riders regarding lead paint,

recyclable materials, late fees, or pets. Upon expiration of her lease, the landlord offers a renewal lease which includes several riders:

a. Rider 1 (Prevention of Lead-Based Paint Hazards) requests that Mrs. Cooper advise the owner if a child under 6 years old resides in the apartment.

b. Rider 2 specifies how certain materials such as paper, cardboard, cans, bottles, etc. must be recycled. c. Rider 3 states that the tenant will be liable for a $20 late fee if rent is received by the landlord after the 10th of

the month. d. Rider 4 prohibits the harboring of pets in the apartment.

2. In this situation, Riders 1 and 2 constitute lawful provisions to the lease because they are necessary to comply with New York City lead paint and recycling laws.

3. Riders 3 and 4 are provisions that cannot be added to the renewal lease because they constitute material changes to the terms and conditions of the vacancy lease, which did not include a late fee or a pet clause. Mrs. Cooper can sign the rider without waiving any rights and may file a lease renewal complaint.

Sources: • New York City Rent Stabilization Code, Section 2523.5 • Tenant Protection Regulations, Section 2503.5

Related Material: • Fact Sheet #2: Rent Stabilization Lease Rider

For more information or assistance, call the DHCR Rent InfoLine, or visit your Borough or County Rent Office.

Revised: 01/14

Last updated on 01/20/14

http://www.nyshcr.org/Rent/FactSheets/index.htm#fac2

http://www.nyshcr.org/AboutUs/contact.htm#ora

Rosenberg & Estis, P.C. MANAGING RENT REGULATED PROPERTY:

NAVIGATING HOUSING COURT December 2, 2014

(9:00 AM – 12:00 PM) Speaker: Neil C. Dwork, Esq.

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DESCRIPTION:

In this portion of the lecture, we will cover the foundation of Holdover Proceedings concentrating on:

Three types of holdover proceedings – non-primary residence, owner occupancy and chronic non-payment;

Basis for termination of a tenancy;

Predicate notices ;

The type of information you will need to gather prior to commencing a holdover proceeding;

Applicable timeframes for terminating a tenancy;

Some of the applicable statutes that permit termination of a rent-regulated tenancy;

What notice must be given, and the proper form for same.




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OVERVIEW:

A. General Explanation

Summary proceedings, such as non-payment and holdover proceedings, are “special proceedings” that are governed by Article 4 of the CPLR. To litigate a “special proceeding” in the Housing Court, one needs to be familiar not only with Article 4 of the CPLR, but the RPAPL, RPL, Rent Stabilization Code, Rent Control laws, as well as numerous other statutes.

“A summary proceeding is a special proceeding governed entirely by statute and it is well established that there must be strict compliance with the statutory requirements to give the court jurisdiction” Gonzalez v. Peterson, 177 Misc. 2d 940, 941, 678 N.Y.S.2d 855, 856 (App. Term 1998) aff'd sub nom. Dass-Gonzalez v. Peterson, 258 A.D.2d 298, 685 N.Y.S.2d 197 (1999)

A summary proceeding under Article 7 of the Real Property Actions and Proceedings Law (“RPAPL”) is a special proceeding governed by CPLR Article 4. N.Y. C.P.L.R. 103 (McKinney)

Because of time limitations, I will only cover the basics of “holdover proceedings” involving non-primary residence, owner occupancy and chronic non-payment and predicate notices related to the same.

B. What Is A Holdover Proceeding?

A suit to recover possession of the premises. (Attachment 1 - Notice of Petition and Petition).

The defendant's petition in the summary holdover proceeding sought to recover possession of the subject premises. Dimery v. Ulster Sav. Bank, 13 A.D.3d 574, 575, 789 N.Y.S.2d 159, 160 (2004)




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I. SUBSTANTIVE GROUNDS TO TERMINATE TENANCY

A. Termination Of Tenancy (generally)

To maintain a summary holdover proceeding, the landlord must allege and prove that the tenant remains in possession after the expiration of his or her term. Kern v. Guller, 40 A.D.3d 1231, 1232, 835 N.Y.S.2d 764, 766 (N.Y. App. Div. 2007)

There must be termination of a tenancy, expiration of term, termination of license, or the like, in order to bring a holdover proceeding. The power of the termination is based either upon:

i. The lease agreement between the parties, or

ii. Applicable statute/regulation (e.g., non-primary residence, owner’s own use, nuisance, against a rent-regulated tenant).

In a holdover proceeding, the tenancy must be terminated prior to the commencement of the action and the prior termination must be pleaded. Pleasant E. Associates v. Cabrera, 125 Misc. 2d 877, 881, 480 N.Y.S.2d 693, 695 (Civ. Ct. 1984)

B. Exercising The “Conditional Limitation” (generally)

A conditional limitation is a provision in a lease which permits termination of the lease upon a specified event, usually the passage of a cure period without the tenant effecting a correction of the default (the “cure”). Whether the conditional limitation may be exercised for rent-related lapses will depend upon the nature and terms of the parties’ lease.

The termination clauses in the leases were conditional limitations. As such they provided that if a notice of default were sent, the leases would automatically expire on the happening of a specified contingency, the arrival of the termination date fixed in the notice. TSS-Seedman's, Inc. v. Elota Realty Co., 72 N.Y.2d 1024, 1026, 531 N.E.2d 646, 647 (1988)

[The lease] further provides that in the event of a default under [the lease], the term of the lease shall automatically terminate without additional notice to the lessee thereby creating a conditional limitation. Helsam Realty Co., Inc. v. H.J.A. Holding Corp., 4 Misc. 3d 64, 71, 781 N.Y.S.2d 554, 559 (App. Term 2004)

Upon the occurrence of a conditional limitation, the agreement automatically expires; no other act is necessary to end it. To create a conditional limitation rather than a condition, the agreement must state clearly that it will expire upon the happening of some objective event. Gouveneur Gardens Hous. Corp. v. Lee, 2 Misc. 3d 525, 528, 769 N.Y.S.2d 829, 831 (Civ. Ct. 2003)




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A lease provision will be deemed a “conditional limitation” if, after a notice of default in accordance with the lease, the lease will “automatically expire on the happening of a specified contingency, the arrival of the termination date fixed in the notice.” Chuang v. Quezada, 6 Misc.3d 1023(A), 800 N.Y.S.2d 344 (Civ. Ct. 2005)

The key practical difference between a “conditional limitation” and a “condition subsequent” is that for a breach of the former, a landlord may bring an RPAPL Article 7 summary holdover proceeding in Civil Court … Simply put, if a lease allows a landlord to serve a notice to cure based on an alleged violation thereof, the lease has created a conditional limitation.” VNO 100 W. 33RD St. LLC v. Square One of Manhattan, Inc., 22 Misc.3d 560, 564, 874 N.Y.S.2d 683, 686 (Civ. Ct. 2008)

C. Violation Of “Substantial Obligation Of Tenancy”

Park East Land Corporation v. Finkelstein, 299 N.Y. 70, 85 N.E.2d 869 (1949) “‘Substantial’ is a word of general reference which takes on color and precision from its total context. Having little if any meaning when considered in abstract or in vacuum, it must be defined with reference to the peculiar legal and factual setting in which it occurs.”

Because “substantial” is such a general term, in order to determine whether what the tenant is doing is substantial enough to merit the commencement of a holdover proceeding, generally, the answer will be that it depends on what the lease says unless there has been a statutory violation.

Although I’m not going to focus on these types of holdovers today, in general a breach of a substantial obligation of the tenancy include the following categories:




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(1) Illegal Sublease/Assignment

(2) Illegal Alterations

(3) Failure to Provide Landlord Duplicate Keys

(4) Washing Machines

(5) Tenant’s Failure to Give a Security Deposit

(6) Covenant to Occupy for Residential Purposes

(7) Harboring Pets

(8) Property Damage

E. “Nuisance” [See also 9 NYCRR §2524.3(b)]

(1) Threat to health, safety, comfort of neighboring tenants/building occupants

Frank v. Park Summit Realty Corp., 175 A.D.2d 33, 573 N.Y.S.2d 655 (1st Dep't 1991), modified 79 N.Y.2d 789, 587 N.E.2d 287, 579 N.Y.S.2d 649 (1991) (key is pattern of continuity or recurrence")

Concluding “that petitioner-landlord met its burden to demonstrate that tenant engaged in a “recurring or continuing pattern” of objectionable conduct sufficient to constitute a nuisance.” J.H. Taylor Const. Corp. v. Liguori, 5 Misc. 3d 74, 75, 787 N.Y.S.2d 598 (App. Term 2004)

It is well established by the Rent Stabilization Code and case law that a tenancy may be terminated when a tenant creates a nuisance by engaging in a recurrent pattern of objectionable conduct that substantially threatens the health, safety and comfort of other building occupants. 405 E. 56th St., LLC v. Morano, 19 Misc. 3d 62, 64, 860 N.Y.S.2d 784, 785 (App. Term 2008)

Lexington Avenue Properties v. Charrier, N.Y.L.J. 1/29/86, p. 11, col. 4 (App.Term, 1st Dept) ("While an isolated instance of objectionable conduct ordinarily would be insufficient to warrant the removal of a tenant as objectionable ... here, the conduct complained of represents a pattern of behavior engaged in over a period of more than two years.")

RNR Realty Corp. v. Smith, N.Y.L.J., 8/6/98, p. 23, col. 2 (Civ.Ct., Kings County) ("A nuisance requires continuing course of conduct. A single occurrence does not constitute a nuisance unless it is so egregious it causes serious injury or damage to the property, the landlord or other persons. Isolated instances of objectionable conduct will be insufficient …)




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(2) Examples:

i. Chronic non-payment

Sharp v. Norwood, 223 A.D.2d 6, 643 N.Y.S.2d 39 (lst Dept., 1996), aff’d, 89 N.Y.2d 1068, 681 N.E.2d 1280, 659 N.Y.S.2d 834 (1997) (tenant must intend to harass or injure landlord or landlord must be prejudiced by delay)

“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.” PWV Acquisition, LLC v. Maddox, 8 Misc. 3d 127(A), 801 N.Y.S.2d 781 (App. Term 2005) citing, Adam's Tower Ltd. P'ship v. Richter, 186 Misc. 2d 620, 621, 717 N.Y.S.2d 825, 826 (App. Term 2000).

A respondent's chronic nonpayment of rent on its own is insufficient to establish an actionable nuisance. The petitioner must also prove “aggravating circumstances” to support an eviction based on such ground. Wonforo Associates v. Maloof, 60137/01, 2002 WL 1868727 (N.Y. Civ. Ct. July 19, 2002)




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E. Owner Occupancy

(3) Unregulated tenancies – simply do not renew lease – terminate any month-to-month tenancy.

(4) RSC – Grounds for Refusal to Renew

i. 90 to 150 day “window period” – “Golub” notice – Attachment 5 – Golub Notice for Owner Occupancy

When regulated unit is required for owner’ (or immediate family member’s) use as primary residence.

(RSC) 9 NYCRR § 2524.4(a)(1)

Notice must set forth “facts” supporting owner occupancy claim.

Adequate Notice

Landlord must demonstrate “genuine” intention to occupy. Nestor v. Britt, 213 A.D.2d 255, 624 N.Y.S.2d 14 (1st Dept 1995) (petitioner failed to evince proof, "by a preponderance of the evidence, that [it] had a genuine intention to occupy respondent's apartment for the personal use")

The courts have continued to adhere to the rule that an owner is not entitled to a judgment of possession in the first instance if the owner cannot prove his or her good faith intention prior to evicting the tenant. Hirsch v. Stewart, 63 A.D.3d 74, 79, 877 N.Y.S.2d 285, 289 (2009)

ii. Once recovered, landlord must remain in occupancy of the unit for THREE (3) years.

(RSC) 9 NYCRR § 2524.4(a)(5)

iii. Corporations and partnerships may not recover.

Rudd and Klein v. Devine, N.Y.L.J., 11/15/99, p. 26, col. 1 (App.Term, 1st Dep't) ("Under section 2524.4(a)(3) of the Rent Stabilization Code, only one of the individual owners of a building may recover possession of an apartment for personal use. The record establishes that in a prior holdover proceeding co-owner Mark Rudd recovered a rent stabilized apartment for his own use. Hence, the present proceeding for possession of tenant's apartment brought on behalf of the co-owner Klein does not lie.")

If there is more than one owner, only one of the individual owners may recover the units for his or her personal use and occupancy. Pultz v. Economakis, 10 N.Y.3d 542, 548, 890 N.E.2d 880, 882 (2008)




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A landlord may recover multiple units

Owners who can prove their good faith may recover possession of one, more than one, or all apartments for personal or family use. Malta v. Brown, 12 Misc. 3d 1164(A), 819 N.Y.S.2d 210 (Civ. Ct. 2006)

iv. Where tenants are:

- SIXTY-TWO (62) years of age; and/or

- Disabled;

They must be offered equivalent or superior housing in closely proximate area for same or lower rent. [9 NYCRR § 2524.4(a)(2)]

F. NON-PRIMARY RESIDENCE – (Attachment 4 – Notice of NPR “Golub” notice)

Landlord may recover a unit where tenant does not maintain an "ongoing, substantial/physical nexus ... demonstrated by objective, empirical evidence.' Pendias v. 3 East 69th Street Associates, 119 A.D.2d 467, 500 N.Y.S.2d 679 (1st Dep’t 1986)

The governing statute provides that a landlord may recover possession of a rent-stabilized apartment if it “is not occupied by the tenant ... as his or her primary residence” (Rent Stabilization Code [9 NYCRR] § 2524.4[c] ). “Primary residence” is judicially construed as “an ongoing, substantial, physical nexus with the ... premises for actual living purposes”. 542 E. 14th St. LLC v. Lee, 66 A.D.3d 18, 20-21, 883 N.Y.S.2d 188, 189 (2009) citing, Emay Properties Corp. v. Norton, 136 Misc. 2d 127, 128, 519 N.Y.S.2d 90, 91-92 (App. Term 1987)

(1) RSC – Grounds for Refusal to Renew

i. 90-150 day “window period” and termination notice – “Golub” notice

The landlord must serve a Golub notice notifying the tenant of the landlord's intent not to renew the lease within a “window period” of not more than 150 days nor fewer than 90 days prior to the lease expiration. Raffone v. Schreiber, 18 Misc. 3d 925, 928, 850 N.Y.S.2d 851, 854 (Civ. Ct. 2008)

(RSC) 9 NYCRR § 2524.2(c)(2)

Notice must set forth “facts” supporting non-primary residence claim

The statement in the first timely Notice that “you do not occupy the Premises as your primary residence” simply stated the ground for the non-renewal. It was not a statement of facts supporting that ground. Berkeley Associates Co. v. Camlakides, 173 A.D.2d 193, 194, 569 N.Y.S.2d 629, 630 aff'd, 78 N.Y.2d 1098, 586 N.E.2d 55 (1991)




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II. PREDICATE NOTICE

A predicate notice is a document served upon persons in possession of the premises prior to the litigation’s actual commencement. This may be a “default notice,” “notice to cure,” “termination notice,” or “notice to quit,” with its contents, time frame, and manner of service prescribed by statute, regulation, case law, and/or by the party’s lease. In some instances, other types of notices may be required (e.g., a “notice of non-renewal” indicates of a rent-regulated tenant). Since an omission would disregard one or more of these preliminary notices is likely to result in a proceeding’s dismissal, strict compliance with the governing procedural mandates must be exercised.

The failure to serve a predicate notice as required by the lease requires dismissal of the case, in view of the required strict compliance with the lease provisions regarding notices of termination. “Petitioner admitted on the record that he failed to serve the 3 day notice of termination as required by the lease. Failure to comply with the contract requirements of the lease results in this proceeding being dismissed because the lease was not effectively terminated.” PSRS Realty v. Dmitriy Prosolov, 38 Misc.3d 1226(A) (N.Y. Dist. Ct. 2013).

“Landlord's termination notice issued pursuant to a demolition clause in the parties' commercial lease failed to comply with the requirements for notices given under the lease as set forth in paragraph 61. … Since landlord's threshold notice was ineffective to terminate the lease or serve as a predicate for eviction proceedings, the holdover petition was properly dismissed.” Intell 157th St. Realty, LLC. v. Winston Harris Galleries, Ltd., 570802/01, 2002 WL 759125 (N.Y. App. Term. Apr. 16, 2002)

“Service of a notice of termination is the necessary predicate to evicting tenants from rent-stabilized apartments.” Univ. Towers Associates v. Gibson, 18 Misc.3d 349, 350, 846 N.Y.S.2d 872, 874 (Civ. Ct. 2007)

A. Contents Of The Notice

(1) No notice is required in lease expiration cases (upon lease expiration, commercial and unregulated residential tenancies).

“No statute abrogates the common-law rule that notice is unnecessary to maintain an ejectment action against a tenant who wrongfully holds over after expiration of a fixed and definite term.” Sheila Properties, Inc. v. A Real Good Plumber, Inc., 74 A.D.3d 779, 781, 904 N.Y.S.2d 709, 711 (2010)




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(2) Notice To Cure (generally) (Attachment 2 – Notice to Cure)

a) Specificity is the key;

b) Identify violations;

c) Direct the tenant to cure within the time frame provided by lease and/or statute; and

d) Advise of the consequences of the failure to comply with the notice (i.e., that the tenancy will be terminated)

(3) Regulated Tenancies (special considerations) – See 9 NYCRR § 2524.2 and 3

The notice should cite:

(a) The lease and/or statute to a provision violated;

(b) The nature of the violation;

(c) Factual underpinnings that support/establish the alleged wrongs; and

(d) A specific date by which action must be taken.

See Chinatown Apartments Inc. v. Chu Cho Lam, 51 NY 2d 786, 412 N.E. 2d 1312, 433 N.Y.S. 2d 86 (1980)

(4) Notice Of Termination (generally) (Attachment 3 – Notice of Termination)

Again, specificity is the key. The notice should:

(e) Apprise of claims’ nature;

(f) Permit responsive action (e.g., vacate space); and

(g) Allow the tenant to interpose/prepare defenses.

(a) Regulated tenancies (special considerations)

The notice should cite:

(h) Statutory grounds;

(i) Supporting facts;

(j) Date by which tenant is required to surrender.

See New York City Rent and Eviction Regulations 9 NYCRR § 2204.3(a), (b);




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Rent Stabilization Code 9 NYCRR § 2524.2(b).

A petition will be dismissed if the notice merely contains conclusory allegations. See, e.g., Dowarp Realty Co. v. Acevedo, NYLJ, 4/3/90, p. 26, col. 2 (App. T., 1st Dep’t).

(5) Other Types Of Notices (Attachment 4 – Notice of Non-Renewal of Lease)

(a) Notice of non-renewal in rent stabilized apartments (i.e., “Golub Notice”). See 9 NYCRR 2524.2(c)(2) and (3).

Must be served 90 to 150 days prior to the expiration of the lease. See 9 NYCRR § 2524.2(c)(ii); Golub v. Frank, 65 N.Y.2d 900, 483 N.E. 2d 126, 493, NYC 2d 451 (1985)

(b) Month to month tenancies (in New York City where there is lease or regulatory protection) require:

A thirty (30) day notice, which should:

(a) Contain the date the landlord elects to terminate the tenancy; and

(b) Notify the recipient that absent vacatur, the landlord will commence proceedings.

(c) The notice must track the prior lease term.

See RPL § 232-(a) (New York City); Taranto v. Alexejew, 166 Misc. 2d 223, 632 N.Y.S. 2d 758 (Dist. Ct., Nassau County, 1995) (contrasting § 232-(a) with § 228).

“No monthly tenant, or tenant from month to month, shall hereafter be removed from occupancy unless at least 30 days before the expiration of the term the landlord or his agent serve ... a notice in writing to the effect that the landlord elects to terminate the tenancy and that unless the tenant removes from the premises on the day on which the term expires the landlord will commence a summary proceeding under the statute to remove such tenant therefrom.” Citing RPL § 232-(a). 430 Broome St. Realty Corp. v. Bonnouvrier, 17 Misc.3d 1128(A), 851 N.Y.S.2d 69 (Sup. Ct. 2007)

(d) The notice must be “clear, definite and unequivocal.” See Park Summit Realty Corp. v. Frank, 56 N.Y.2d 1025, 439 N.E. 2d 358, 453 N.Y.S. 2d 643 (1982).




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(6) A “reasonableness” standard now applies.

With respect to adequacy of a predicate notice, the appropriate test is one of reasonableness in view of the attendant circumstances. Only in circumstances where such a notice contains substantial and prejudicial misstatements would be subject to strict construction as a matter of equity. Measured against the test of reasonableness, a notice will be found to be factually sufficient where it states the nature of the landlord’s claim, the facts necessary to establish the existence of ground for eviction and any misstatements were errant references could not have materially misled or confused the tenant or hindered the tenant’s preparation of a defense. Hughes v. Lenox Hill Hospital, 226 A.D.2d 4, 651 N.Y.S. 2d 418 (1st Dep’t 1996) citing 190 Riverside Drive LLC v. Nosei, NYLJ, 7, 17, 2000, p. 24, col. 5 (App. T. 1st Dep’t). See also DK Property Inc. v. Mekong Restaurant Corp., NYLJ, 1, 10, 2001, p. 26, col. 1 (App. T. 1st Dep’t).

B. Authorized Signatories

The best practice is to have the actual owner/principal/agent execute the notice (with authorization annexed).

(1) Courts have held that a notice received from a complete stranger may be insufficient to sustain a holdover proceeding. Siegel v. Kentucky Fried Chicken of Long Island, Inc., 67 N.Y.2d 792, 492 N.E. 2d 390, 501 N.Y.S. 2d 317 (1986)

(2) However, where there was prior notification of the agency status, the court sustained the use of a notice signed by such person. See Owego Properties v. Campfield, 182 A.D. 2d 1058, 583 N.Y.S. 2d 37 (3d Dep’t 1992).

“The purpose … is to provide tenants with assurance that notices purported to come from the landlord are in fact so authorized. Whenever such assurance can be demonstrated to exist, either by legal document or actual occurrence, statutory requirements have been satisfied.” Ohday Realty Corp. v. Lupone, 192 Misc. 2d 317, 320, 746 N.Y.S.2d 233, 235 (Civ. Ct. 2002)

C. Service of A Notice

(1) Notice to cure/terminate – (Attachments 2 and 3)

Always look to the applicable lease or regulation provision; regular mail may be sufficient. See 61 West 62nd Owner’s Corp. v. Harkness Apartment Owners Corp., 173 A.D.2d 372, 570 N.Y.S. 2d 8 (1st Dep’t 1991).

“The governing regulations clearly allow service of notices to cure to be made by mail.” ATM One, LLC. v. Landaverde, 307 A.D.2d 922, 924, 763 N.Y.S.2d 631,




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633 (2003) aff'd sub nom. ATM One, LLC v. Landaverde, 2 N.Y.3d 472, 812 N.E.2d 298 (2004)

(2) Month to month termination notice

Served in the same manner as a notice of petition and petition (See RPAPL § 735).

(3) Notice to quit (licensees, squatters)

Served in the same manner as a notice of petition and petition (RPAPL § 735).




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SPEAKER NOTES:

When an owner or managing agent of real properly is motivated to recover space (i.e., evict a tenant),

whether the tenant is commercial or residential, the first question an attorney is asked is: what can I do

to get my tenant out of my space?

Initially, the answer will always be “it depends.” It depends on a number of factors, some of which may

be obvious to everyone in this room. Whether or not there is a written lease, whether or not the

premises are residential or commercial, whether the premises are subject to rent regulation, when does

the lease expire, what is the relationship between the landlord and the occupant of the premises,

together with other considerations, some of which we will discuss below.

There are two types of proceedings that involve eviction in Housing Court. The most common, by far, is

the non-payment proceeding. That is a case that involves suing a tenant for non-payment of rent. I am

not going to address those cases today, but rather, will address the second group, most commonly

known as “holdover proceedings.” I will specifically deal with summary proceedings to recover

possession of premises based upon the “holdover” proceeding.

A holdover proceeding, as distinguished from a non-payment proceeding, is a case where the petitioner

seeks to recover possession of the subject premises. Summary proceedings are governed by Article 7 of

the RPAPL. The grounds upon which a summary proceeding to recover possession of real property may

be brought are defined in the RPAPL under two categories. The first, is under Section 711, where a

landlord-tenant relationship exists, and the second, under Section 713, where no landlord-tenant

relationship exists.

Section 711’s reference of “landlord-tenant relationship” is straightforward, and self-explanatory. It

should be noted, however, that 711 excludes a transient occupant of one or more rooms of a hotel, who

has been in possession for less than 30 consecutive days.

Section 711 states that where a landlord-tenant relationship exists, such a person shall not be removed

from possession except in a special proceeding. As it relates to holdover proceedings, the statute

specifies that the tenant may be removed where he or she continues in possession after expiration of

his or her term, without permission of the landlord. RPAPL Section 711(1). The key phrase is “after

expiration of [the tenant’s] term.”

I will discuss 711 proceedings today as it relates to a refusal to renew a rent-regulated tenancy.

713 proceedings involve non landlord-tenant relationships and are broken down into eleven categories.

In other words, there are eleven situations where a summary holdover proceeding may be maintained




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after a 10-day notice to quit has been served in the manner prescribed by law (here, by law means in

accordance with Section 735 of the RPAPL) on the following grounds:

1. The property has been sold by virtue of an execution;

2. The occupant occupies the premises under an agreement to cultivate the property and the time period for occupancy has expired;

3. The occupant is a squatter;

4. The property has been sold for unpaid taxes, and the tax deed has been executed and delivered to the purchaser;

5. The property has been sold in foreclosure;

6. The occupant is a life tenant, and there has been a termination of the estate of such life tenant;

7. Termination of license;

8. The owner of the property has conveyed title, for value;

9. The person is a vendee under a contract of sale (to be completed within 90 days after execution);

10. The person in possession has entered, or remains in possession, by force or unlawful means;

11. Termination of employment.

Section 721 of the RPAPL discusses who may maintain such a proceeding. Generally speaking, it is

the landlord, or lessee, of the premises who may maintain such a proceeding. However, the

definition includes, depending on the situation, the owner, the reversioner, the remainderman, the

purchaser upon the execution of a foreclosure, the person forcibly kept out, a law enforcement

agency (where applicable), the receiver of a landlord, a lessee entitled to possession, and basically,

anyone entitled to a right of possession.

Summary holdover proceedings are commenced by service of a notice of petition and petition

(Attachment 1), which is akin to a summons and complaint, with some differences. In a holdover

proceeding, the notice of petition specifies the time and place of the hearing on the petition, and

must be served in accordance with the provisions set forth in RPAPL Section 735. In basic terms

Section 735 requires a process server to attempt to deliver the notice of petition and petition

personally. A process server shall make two attempts to deliver the notice of petition and petition

personally and then if upon reasonable application admittance cannot be obtained the notice of

petition and petition can be affixed to a conspicuous part of the property to be recovered. There




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must be strict compliance with the statute. The most common defense to a holdover proceeding is

a lack of personal jurisdiction because of improper service.

While a petition, like a complaint, must set forth the underlying facts of the case, the first step to a

holdover proceeding is found in the preparation of the notices that must precede the

commencement of a holdover proceeding. What notices are required depends on what the basis of

the holdover proceeding is. Generally, there is a notice to cure (Attachment 2) and notice of

termination (Attachment 3). The first line of attack by any tenant who seeks to dispute a landlord’s

holdover petition, is to challenge the sufficiency of the notice. THerefore, it can be fairly stated that

extreme care must be taken when preparing these notices. One must be familiar with the

applicable statutes, the leases involved, as well as the case law relevant to same. With this in mind,

I want to address the substantive grounds to terminate a tenancy.

The power of termination is generally based upon either the lease agreement between the parties,

and/or applicable statutes and regulations. The most common holdover proceeding commenced is

the straightforward expiration of lease, where a tenant’s lease expires, and there is no right to a

renewal. This is generally the case where there is a lease for a specified term, and the premises are

exempt from any rent regulation. Such a case is, relatively speaking, simple.

The more complicated holdover is based upon a violation of a “substantial obligation of tenancy.”

(Attachment 2) Examples of a violation of a substantial obligation of tenancy include:

Illegal sublease;

Illegal alteration;

Failure to provide keys;

Illegal installation of a washing machine/dryer;

Failure to maintain sufficient security deposit;

Failure to occupy the premises for residential purposes;

Illegal pets;

Property damage;

Nuisance;

Illegal use of the premises;

Refusal to permit access.




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In rent-regulated tenancies, we have the following additional proceedings:

Owner’s own use;

Non-primary residence; (Attachment 4)

Failure to renew lease;

Nuisance (it can be both, a breach of a substantial obligation of tenancy, as well as a basis for termination);

Refusal to permit access (also, can be both, a breach of a substantial obligation of tenancy, as well as a basis for termination).

In order to commence a proceeding on any of the foregoing grounds, a predicate notice must be

prepared and served as required by statute. Under most lease clauses, this requires service in the

specified means set forth in the lease agreement between the parties. However, in some situations,

something more than service by mail must be done. For example, service of a 30-day notice terminating

a month-to-month tenancy, must be served in the same manner as a notice of petition and petition. See

RPAPL Section 735. A termination notice under Rent Control must be filed with office of rent control

within 48 hours of completion of service.

The contents of the notice are of particular concern, inasmuch as it has been held that an insufficient

notice is tantamount to giving no notice. This is not just a matter of dotting the “i’s” and crossing the

“t’s”, but most importantly, setting forth sufficient facts to support the allegations contained in the

notice, providing the date by which the cure must be completed (or the date by which the tenant must

vacate in the situation of a termination notice), and setting forth the basis.

As far as authorized signatories, the best practice is to have the actual owner/principal/agent execute

the notice.

With respect to non-tenant terminations, a notice under Section 713 of the RPAPL must be served in the

same manner as a notice of petition and petition, and cannot simply be mailed. Again, sufficient facts

must be set forth, and the date by which the occupant is required to vacate must be clearly set forth. It

is insufficient to simply state you must vacate “within 10 days from receipt of this notice.”

One additional statute that we should all be familiar with, is RPAPL Section 753, which gives the court

discretion to grant a stay on the execution of a warrant of eviction. Once the holdover proceeding is

brought to conclusion, and you have been granted the ultimate relief requested, a final judgment of

possession and issuance of a warrant of eviction to obtain legal possession, the marshal must “execute

the warrant” and return possession to you. However, in some circumstances the court has the

discretion to stay the execution of the warrant of eviction.




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In a non-payment case, the court is required to stay issuance of the warrant for five days, to permit the

payment of the judgment amount. However, in a holdover proceeding based upon a breach of a

substantial obligation of tenancy, the court is required to grant a 10-day stay on the issuance of the

warrant, during which time the respondent may correct the breach. RPAPL 753(4). In the City of New

York, RPAPL Section 753(1), gives the court the discretion to stay execution of the warrant on

application of the occupant, for a period of up to six months, if the movant establishes that the premises

are used for dwelling purposes, the application is made in good faith, the applicant cannot within the

neighborhood secure suitable premises similar to those occupied by him or her, that he or she has made

due and reasonable efforts to secure such other premises, or that by reason of other facts, it would

occasion extreme hardship for his or her family if he stay were not granted. The only exception to the

foregoing is where the petitioner establishes to the satisfaction of the court that the occupant is

objectionable




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ATTACHMENT 1

CIVIL COURT OF THE CITY OF NEW YORK

COUNTY OF NEW YORK: HOUSING PART __ – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – X

L&T Index No.:_______/14

NOTICE OF PETITION HOLDOVER

,

Petitioner-Landlord,

-against- Apartment No. 3E New York, New York 10021,

Respondent-Tenant, “JOHN DOE” and “JANE DOE”,

Respondent-Undertenants. The name of Undertenants are fictitious and unknown to petitioner. The persons intended are whomsoever in possession of the premises described herein

: : : : : : : : : : : : : : : : : : : : : :

– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – X

To the respondents above named and described, in possession of the Premises

hereinafter described or claiming possession thereof:

PLEASE TAKE NOTICE, that a hearing at which you must appear will be held at the Civil

Court of the City of New York, Housing Part , Room to be held at the Courthouse, located at 111

Centre Street, County of New York on November __, 2014 at __________ A.M./P.M., on the annexed

petition which prays for a final judgment of eviction, awarding to the Petitioner possession of Premises




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described as follows: Apartment No. 3E on the third floor, in the building known as and located at

______________, City of New York, County of New York and further granting to the Petitioner such

other and further relief as is demanded in the petition, which you must answer.

PLEASE TAKE FURTHER NOTICE, that demand is made in the petition for judgment

against you for use and occupancy of the Premises to the date Petitioner recovers the Premises.

PLEASE TAKE FURTHER NOTICE, that your answer may set forth any defense or

counterclaim you may have against the Petitioner unless such defense or counterclaim is precluded by

law or prior agreement of the parties.

PLEASE TAKE FURTHER NOTICE, that if you shall fail at such time to interpose and

establish any defense that you may have to the petition, you may be precluded from asserting such

defense or the claim on which it is based in any other proceeding or action.

PLEASE TAKE FURTHER NOTICE, that your answer may be made at the time of hearing

specified above, either orally before the Clerk of the Court at the Clerk’s office or in writing by serving a

copy thereof upon the attorney for the Petitioner, and by filing the original of such written answer with

proof of service thereof in the Office of the Clerk at least three (3) days before the time the petition is

noticed to be heard; in addition thereto, you must appear before the court at the time and place

hereinabove set forth for the hearing.

PLEASE TAKE FURTHER NOTICE, that your failure to appear and answer may result in

final judgment by default for the Petitioner granting Petitioner possession of the Premises and in the

amount demanded in the petition.




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TAKE NOTICE, that under Section 745 of the Real Property Actions and Proceedings Law,

you may be required by the Court to make a deposit of use and occupancy, or a payment of use and

occupancy to the Petitioner, upon your second request for an adjournment or if the proceeding is not

settled or a final determination has not been made by the Court within 30 days of the first court

appearance. Failure to comply with an initial deposit or payment order may result in the entry of a final

judgment against you without a trial. Failure to make subsequent required deposits or payments may

result in an immediate trial on the issues raised in your answer.

Dated: New York, New York October __, 2014 Carol Alt, Clerk of the Civil Court of the City of

New York ROSENBERG & ESTIS, P.C. Attorneys for Petitioner By:

Neil C. Dwork, Esq. 733 Third Avenue New York, New York 10017 (212) 867-6000 IMPORTANT TO TENANT

- IF YOU ARE DEPENDENT UPON A PERSON IN THE MILITARY SERVICE OF THE UNITED STATES OR THE STATE OF NEW YORK, ADVISE THE CLERK IMMEDIATELY, IN ORDER TO PROTECT YOUR RIGHTS.




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CIVIL COURT OF THE CITY OF NEW YORK

COUNTY OF NEW YORK: HOUSING PART __ – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – X

L&T Index No.:_________/14

PETITION HOLDOVER NON-PRIMARY RESIDENCE

Petitioner-Landlord,

-against- Apartment No. 3E New York, New York 10021,

Respondent-Tenant,

“JOHN DOE” and “JANE DOE”,1

Respondent-Undertenants.

: : : : : : : : : : : : : : : : : :

– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – X

The petition of ___________(“Landlord”) shows that:

1. The Petitioner is the owner and Landlord of the premises described below (the

“Premises”). Petitioner is a New York limited liability company.

2. Respondent-tenant ________(“Tenant”) is the Tenant of the Premises pursuant to

a lease dated June 26, 1967 between _______________, as Tenant’s predecessors-in-interest, and

________________, as Landlord’s predecessor-in-interest. Said agreement was most recently extended

1 The name of Undertenants are fictitious and unknown to petitioner. The persons intended are whomsoever in

possession of the premises described herein.




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by renewal lease, dated June 25, 2012, between Tenant, and ____________________, as Landlord’s

agent, which expired on September 30, 2014 (collectively, the “Lease”).

3. Respondents-undertenants, “John Doe” and “Jane Doe” are the undertenants of

the Tenant.

4. The premises are described as follows:

All rooms, Third Floor, Apartment No. 3E in the building known as and located at ____________, New York New York

which is situated within the territorial jurisdiction of the Civil Court of the City of New York, County of

New York.

5. The term for which Premises were rented by Tenant expired on September 30,

2014.

6. Respondents continue in possession of the Premises without permission of

Landlord after the expiration of said term.

7. The Premises are subject to the Rent Stabilization Law and the Premises are

registered with the New York State Division of Housing and Community Renewal, and the owner is in

compliance with the Rent Stabilization Law and the rent demanded herein does not exceed the lawful

stabilized rent permitted the owner under said law.

8. Notwithstanding the foregoing, Section 26-504 of the Rent Stabilization Law

provides inter alia that housing accommodations not occupied by Tenant, not including subtenants or

occupants, as Tenant’s primary residence, as determined by a court of competent jurisdiction are

exempt from the Rent Stabilization Law. As a result of Tenant not occupying the Premises as Tenant’s




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primary residence, Tenant is not entitled to the protections of the Rent Stabilization Law including, but

not limited to, a renewal lease or continued occupancy.

9. During the period 90-150 days prior to the expiration of Tenant’s lease, Tenant

was served with a notice, in writing, a copy of which is annexed hereto with proof of service, that

Landlord elected not to renew the lease as a result of Tenant not occupying the Premises as Tenant’s

primary residence.

10. Pursuant to Section 26-504 of the Rent Stabilization Law and § 2524.4(c) of the

Rent Stabilization Code, at least thirty (30) days prior to the commencement of this proceeding seeking

to recover possession of the Premises on the grounds that the Premises are not occupied by Tenant as

Tenant’s primary residence, Landlord served a written notice, a copy of which is annexed hereto with

proof of service and made a part hereof, of Petitioner’s intention to commence such a proceeding on

such grounds.

11. At least 30 days before the expiration of the term, Tenant was served in the

manner provided for by law with a notice in writing, a copy of which with proof of service is hereby

annexed and made a part hereof, that the Landlord elected to terminate the said tenancy and that

unless Tenant removed from the Premises on the day on which said term expired, Landlord would

commence summary proceedings under the statute to remove Tenant therefrom.

12. Petitioner lacks written information or notice of any address where the Tenant

resides, is employed, or has a place of business in New York State, other than the Premises and

_________________________________________________.




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13. The Building is a multiple dwelling and pursuant to the Administrative Code of the

City of New York, Article 2, there is a currently effective registration statement on file with the Office of

Code Enforcement in which the owner of the building, has designated as managing agent, a natural

person below named, over 21 years of age, to be in control of and responsible for the maintenance and

operation of the dwelling:

MDR number:

Registered managing agent:

Business address:

14. Under the terms of the most recent rental agreement, Tenant agreed to pay rent

for the Premises at the rate of ________ per month, plus the costs and disbursements, including

attorneys’ fees, which might be incurred by Petitioner in any action to enforce Petitioner’s rights under

the rental agreement. No monies for rent and/or “use and occupancy” have been received and/or

accepted for the period after September 30, 2014 and Petitioner has or will incur reasonable attorneys’

fees in an amount which will be determined by the Court. In addition, the fair value of Respondents’ use

and occupancy of the Premises is the sum of at least $3,000 per month.

WHEREFORE, Petitioner requests a final judgment awarding Petitioner (a) possession of

the Premises with the issuance of a warrant to remove Respondents from possession of the Premises,

(b) a money judgment against Tenant for Tenant’s use and occupancy of the Premises in an amount to

be determined by the Court; for attorneys’ fees in an amount to be determined by the Court but

believed to be no less than $3,000.00, and for the costs and disbursements of this proceeding and (c) a

money judgment against the remaining Respondents for their use and occupancy of the Premises in an




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amount to be determined by the Court.

Dated: New York, New York October __, 2014 Petitioner ROSENBERG & ESTIS, P.C. Attorneys for Petitioner By:

Neil C. Dwork, Esq. 733 Third Avenue New York, New York 10017 (212) 867-6000




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CORPORATE VERIFICATION

STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK )

, being duly sworn, deposes and says:

1. I am the Vice President of Petitioner, a New York limited liability company.

2. I have read the Petition and know the content thereof; and the same is true to

my own knowledge, except as to the matters therein stated to be alleged upon information and belief,

and as to those matters, I believe them to be true. The source of my information and belief is the books

and records of Petitioner.

3. This Verification is made by deponent because Petitioner is a New York limited

liability company and I am an officer thereof.

Sworn to before me this ___ day of October, 2014

NOTARY PUBLIC




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ATTACHMENT 2

TEN (10) DAY NOTICE TO CURE

TO: Tenant: Apartment 6-H New York, New York 10019

RE: Premises: All Rooms, Apartment 6-H on the 6th floor in the building known as and located at ________, New York, New York 10019 (the "Premises").

PLEASE TAKE NOTICE, that you are in violation of Section 2524.3(b) of the Rent

Stabilization Code, upon the grounds that you have committed and/or permitted a nuisance at the

Premises, in that, you have retained and/or stored excessive amounts of furniture, clothing, plastic bags,

boxes, crates, blankets, shoes, books and other debris within the Premises, extending to a height of

approximately six feet from the bottom of pile to the top of the pile, the volume of which entirely blocks

the hallway into the bedroom, the entranceway into the bathroom and the entranceway into living

room of the Premises, causes the dining room and sunroom to be completely inaccessible, interferes

with access into and egress from the Premises and results in a fire and health hazard which interferes

substantially with the safety of other tenants and occupants of the building.

PLEASE TAKE FURTHER NOTICE, that you are hereby required to cure said nuisance on or

before November 1, 2013, that being more than ten (10) days after the service of this Notice upon you,

and that upon your failure to so cure, the Landlord will elect to terminate your tenancy in accordance

with Section 2524.3(b) of the Code.




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PLEASE TAKE FURTHER NOTICE, that the Premises are subject to the Rent Stabilization

Law of 1969, as amended and that this Notice is being served upon you pursuant to Section 2524.3(b) of

the Code and in accordance with Paragraph "26" of your lease.

PLEASE TAKE FURTHER NOTICE, that any response to this Notice should be sent and

directed to the below-named attorneys for the landlord.

Dated: New York, New York October ___, 2013

, Owner and Landlord

By: , Member ROSENBERG & ESTIS, P.C. Attorneys for Owner and Landlord 733 Third Avenue, 14th Floor New York, New York 10017 (212) 867-6000 Attn: Neil C. Dwork, Esq.




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ATTACHMENT 3

SEVEN (7) DAY NOTICE OF TERMINATION

TO: Tenant: Apartment 6-H New York, New York 10019

RE: Premises: All Rooms, Apartment 6-H on the 6th floor of the building known as and

located at _________, New York, New York 10019 (the “Premises”).

PLEASE TAKE NOTICE, that pursuant to §2524.3(b) of the Rent Stabilization Code (the

“Code”), your tenancy is hereby terminated effective November 20, 2013, that being at least seven (7)

days after the service of this notice upon you, upon the grounds that you have committed and/or

permitted a nuisance at the Premises and you failed to cure such nuisance after written notice by the

landlord (a copy of which, together with proof of service thereof, is annexed hereto) which nuisance did

not cease within ten (10) days thereof.

PLEASE TAKE FURTHER NOTICE, that the landlord believes that the following facts

constitute a nuisance which are grounds for the termination of the tenancy:

On or about September 20, 2013, building personnel obtained access to the Premises in order to inspect an allege leak in the kitchen of the Premises. Upon arriving at the Premises it was discovered that the entire Premises were filled with excessive amounts of furniture, clothing, plastic bags, boxes, crates, blankets, shoes and other debris, extending to a height of approximately six feet from the bottom of pile to the top of the pile, the volume of which entirely blocks the hallway into the bedroom, the entranceway into the bathroom and living room, causes the dining room and




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sunroom to be completely inaccessible and interferes with access into and egress from the Premises and results in a fire and health hazard which interferes substantially with the safety of other tenants and occupants of the building.

PLEASE TAKE FURTHER NOTICE, that you are hereby required to vacate and surrender

possession of the Premises to the landlord on or before November 20, 2013, and, upon your failure to

quit and vacate possession thereof the landlord will commence a summary proceeding under the

statute to recover possession of the Premises.

PLEASE TAKE FURTHER NOTICE, that this notice is being served upon you pursuant to

Paragraph “26” of your lease, Section 2524.2(c)(2) and 2524.3(b) of the Code and applicable provisions

of law.


directed to the below-named attorneys for the landlord.

DATED: New York, New York __________________________, November ____, 2013 , Owner and Landlord

BY: , Member

ROSENBERG & ESTIS, P.C. Attorneys for Owner and Landlord 733 Third Avenue, 14th Floor New York, New York 10017 (212) 867-6000 Attn: Neil C. Dwork, Esq.




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ATTACHMENT 4

NOTICE OF NON-RENEWAL OF LEASE TO: Tenants:

Apartment No. 15-B New York, New York

Apartment No. 15-B

New York, New York

RE: Premises: All rooms, Apartment No. 15-B, in the building known as and

located at , New York, New York (the "Premises").

PLEASE TAKE NOTICE, that pursuant to Sections 2524.2 and 2524.4(c) of the Rent

Stabilization Code, the Owner and Landlord ("Landlord") does not intend to renew your lease for the

Premises which expires on December 31, 2005 (the “Lease”) upon the grounds that the Premises are not

being used as Tenants’ primary residence.

PLEASE TAKE FURTHER NOTICE, that pursuant to Section 2524.4(c) of the Rent

Stabilization Code, Landlord intends to commence an action or proceeding seeking to recover

possession of the Premises on the grounds that the Premises are not occupied by Tenants as Tenants’

primary residence.

PLEASE TAKE FURTHER NOTICE, that in the event you fail to vacate and surrender

possession of the Premises on or before December 31, 2005, that being the expiration of the Lease, and

at least thirty (30) days after the service of this notice upon you, Landlord intends to commence an

action or proceeding to recover possession of the Premises on the grounds that the Premises are not

occupied by Tenants as Tenants’ primary residence.




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PLEASE TAKE FURTHER NOTICE, that Landlord reasonably believes that the facts

necessary to establish the existence of Tenants’ non-primary residence include, but are not limited to,

the following and such other facts as may be ascertained during the course of pretrial discovery

proceedings:

1. Tenants maintain their primary residence at an abode other than the Premises; and/or

2. Upon information and belief, Tenants own ______________________(the “Old Barn Residence”); and/or

3. Upon information and belief, Tenants occupy the Old Barn Residence as their primary

residence; and/or

4. Upon information and belief, Tenants elected to apply for School Tax Relief (“STAR”) exemption and certified that the Old Barn Residence is owned by Tenants and is their primary residence; and/or

5. Upon information and belief, Tenant maintains telephone service in his name at the Old

Barn Residence, listing telephone number ; and/or

6. Upon information and belief, Tenant maintains telephone service in her name at the Old Barn Residence, listing telephone number ; and/or




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7. Upon information and belief, the Tenants maintain a residential utility service account with Central Hudson Electric & Gas for the Old Barn Residence, in the name of Tenant; and/or

8. Upon information and belief, Tenant has a current New York State drivers’ license,

reflecting his address as the Old Barn Residence; and/or

9. Upon information and belief, Tenant has a current New York State vehicle registration, reflecting his address as the Old Barn Residence; and/or

10. Upon information and belief, Tenant has a current New York State drivers’ license,

reflecting her address as the Old Barn Residence; and/or

11. Upon information and belief, Tenants are registered to vote from the Old Barn Residence.

PLEASE TAKE FURTHER NOTICE, that you are hereby required to vacate and surrender

possession of the Premises to Landlord on or before December 31, 2005 and, upon your failure to

vacate and surrender possession thereof, Landlord will commence an action or proceeding in a court of

competent jurisdiction to recover possession of the Premises.

PLEASE TAKE FURTHER NOTICE, which this Notice is being served upon you in

accordance with paragraph "26" of the Lease, Sections 2524.2 and 2524.4(c) of the Rent Stabilization

Code and applicable provisions of law.




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directed to the below-named attorneys for Landlord.

Dated: New York, New York September __, 2005 Owner and Landlord By: ____________________________

ROSENBERG & ESTIS, P.C. Attorneys for Owner and Landlord 733 Third Avenue, 14th Floor New York, New York 10017 (212) 867-6000 Attn: Neil C. Dwork, Esq. cc:




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ATTACHMENT 5

NOTICE OF NON-RENEWAL OF LEASE

TO: Tenant: Apartment 3F New York, New York 10014

RE: Premises: All rooms, Apartment 3F, in the building known as and located at , New York, New York 10014 (the “Premises”)

PLEASE TAKE NOTICE, that, pursuant to Section 2524.4(a) of the Rent Stabilization Code

(“RSC”), _____________, the owner and landlord (“Landlord”) of the building known as and located at

, New York, New York (“the Building”), does not intend and elects not to renew your lease for the

Premises which expires on February 28, 2006 upon the grounds that Landlord seeks to recover

possession of the Premises for his personal use and occupancy as his primary residence in the City of

New York.

PLEASE TAKE FURTHER NOTICE, that Landlord reasonably believes that the facts

necessary to establish the existence of such grounds include, but are not limited to, the following:

1. Landlord is the owner and landlord of the Building;

2. Landlord purchased the Building with the good faith intention to use and occupy the entire Building as a single family dwelling and as his primary residence;

3. Landlord has retained an architect to, among other things, design the Building to be used as a single family residence, as well as design it so that different




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apartments can be integrated with the 4th Floor Apartment (defined below) as additional apartments become available;

4. Landlord has retained a general contractor to perform work so that, among

other things, the Building can be used as a single family dwelling;

5. Such general contractor is in the process of performing work to carry out Landlord’s intentions;

6. The Building has five floors -- floors one through five;

7. Landlord has possession of floors one, two and four in the Building;

8. Landlord is in the process of renovating the first and second floors in the

Building;

9. Landlord has possession of apartment 3R in the Building (“Apartment 3R”), which is one of the two apartments on the third floor of the Building;

10. The other apartment on the third floor is the Premises;

11. Landlord has been and is currently residing in the only apartment on the fourth

floor of the Building (the “4th Floor Apartment”) as his primary residence;

12. Landlord is in the process of renovating Apartment 3R so that it can be used as a bedroom;

13. Pursuant to an agreement with the tenants of the only apartment on the fifth

floor of the Building (the “5th Floor Apartment”), Landlord expects to obtain possession of the 5th Floor Apartment on or before June 30, 2006;

14. When Landlord recovers legal possession of the 5th Floor Apartment, he intends

to renovate it so that he can use it for his own personal use in conjunction with the remainder of the Building as his primary residence unless the Premises are occupied at that time. Specifically, Landlord intends to use and occupy the 5th Floor Apartment as a bedroom and a recreation room;

15. Landlord maintains an honest and good faith intention and desire to use and

occupy the Premises (as a bedroom) for his own personal use, together with the remainder of the Building as a single family residence and his primary residence;




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16. The Building is the only real properly owned by Landlord in the City of New York; and

17. Tenant _______ is neither a senior citizen nor a disabled person as described

in the RSC. PLEASE TAKE FURTHER NOTICE, that you are hereby required to vacate or surrender

possession of the Premises to Landlord on or before February 28, 2006, and that upon your failure to

vacate or surrender possession thereof on or before such date, Landlord will commence an action or

proceeding in a court of competent jurisdiction to recover possession of the Premises.

PLEASE TAKE FURTHER NOTICE, that this notice is being served upon you pursuant to

paragraph “4” of your lease, RSC Sections 2524.2(c) and 2524.4(a), and applicable provisions of law.


directed to the below-named attorneys for Landlord.

Dated: New York, New York November __, 2005 Owner and Landlord _________________________________ ROSENBERG & ESTIS, P.C. Attorneys for Owner and Landlord 733 Third Avenue New York, New York 10017 (212) 867-6000 Attn: Neil C. Dwork, Esq.

Faculty Biographies

Commissioner Steven Banks

Steven Banks has dedicated his entire career to improving the lives of low-income New Yorkers. Prior to being appointed Commissioner of New York City Human Resources Administration / Department of Social Services, Steven Banks was the Attorney-in-Chief of the Legal Aid Society, the country’s oldest and largest not-for-profit legal services organization.

At Legal Aid, Banks managed a staff of 1,900 and was responsible for all aspects of the legal practice and operations of the organization’s criminal, juvenile rights, and civil programs in New York City. He is credited with helping reach a landmark settlement with the city in 2008 over its treatment of the homeless, which resulted in the establishment of a permanent enforceable right to shelter for homeless families in New York City. Prior to becoming the Attorney-in-Chief, Banks held the positions of Associate Attorney-in-Chief, Deputy Attorney-in-Charge of the Civil Practice, Coordinating Attorney of the Homeless Rights Project, and Director of Government Relations for the Civil Practice. He began his career at Legal Aid in 1981 as a Staff Attorney in the organization’s Staten Island Neighborhood Office.

He received his B.A. magna cum laude from Brown University in 1978 and his J.D. from New York University School of Law in 1981.

MATTHEW S. BRETT Belkin Burden Wenig & Goldman, LLP 270 Madison Avenue New York, NY 10016 TEL: 212.867.4466 FAX: 212.297.1859 [email protected]

MATTHEW S. BRETT joined Belkin Burden Wenig & Goldman, LLP in 2000 and became a Partner in 2007. He specializes in real estate litigation and has worked on notable cases including Lenox Hill Hospital v. Spitz and HF Associates v. Sullivan.

Mr. Brett earned his Juris Doctor from Brooklyn Law School where he was a Moot Court Honor Society Quarter Finalist in the National Environmental Law Moot Court Competition. He earned a Bachelor of Arts degree in Political Science and Human and Natural Ecology from Emory University. He is the Chairman of the New Jersey Emory University Alumni Association.

Mr. Brett is an Owner's Representative on the Advisory Council of the Housing Part of the New York City Civil Court. He is also a member of the Housing and Urban Development Committee of the New York City Bar Association. Mr. Brett was a member of the Housing Court Committee of the New York City Bar Association and has served as Co-Chair of Continuing Legal Education (CLE) courses hosted by the New York Bar Association including How to Successfully Navigate, Litigate & Resolve Mold Issues, Housing in Cyberspace and Future Perspectives on Affordable Housing and Economic Development in New York City.

Mr. Brett has lectured on the Internet and Evidence for the Rent Stabilization Association and Rent Regulation for the New York City Bar Association.

Robin A. Bernstein Deputy Counsel Rent Stabilization Association T: (212)-214-9246 Email: [email protected]

Robin A. Bernstein is the Deputy General Counsel to the Rent Stabilization Association. Prior to her current position, Ms. Bernstein served as in-house General Counsel to a major New York City property owner, and was in private practice in the areas of landlord/tenant and real estate litigation and transactions. Ms. Bernstein has coordinated and co-authored materials for numerous RSA seminars including: Property Insurance for Apartment Building Owners – Learning from Sandy, Managing Rent Regulated Property in New York City series, and The City’s New Energy laws series. Ms. Bernstein is a member of the New York City Bar Association, The New York State Bar Association, the New York County Lawyers’ Association and the Association of Corporate Counsel. She has served on the Housing Court and Housing Court Public Projects Committees of the New York Bar Association. She has also served on the New York Bar Association Judiciary Committee for several terms. Ms. Bernstein is a member of Civil Court Practice Section of the New York County Lawyers' Association. Prior to the implementation of the Housing Court Resource Centers, Ms. Bernstein supervised RSA staff located in the court houses that assisted unrepresented small property owners. The written owners’ materials now distributed in the Resource Centers were modeled on documents drafted by RSA. She is a certified member of the Volunteer Lawyers Program of the Housing Part of the Civil Court of the City of New York. She served on the New York City Hoarding Task Force, and the City DRIE Board. She has worked with City officials, NYSERDA, private consultants, lenders, Con- Edison and National Grid to educate RSA members on how to comply with the City’s new energy laws.

Mitchell L. Posilkin, Esq. General Counsel T: (212) 214-9244 Email: [email protected] Website: www.rsanyc.org

Mitchell Posilkin is the General Counsel of the Rent Stabilization Association, a trade association that represents approximately 25,000 owners and managers of over one million apartments in the City. In that capacity, Mr. Posilkin addresses myriad issues that affect property owners which arise in the courts, in government agencies and in the State Legislature and City Council. Prior to the commencement of his tenure at RSA in January 1996, Mr. Posilkin served as Deputy General Counsel of the Department of Housing Preservation and Development for eleven years, including two and one-half years as the Acting Director of the Department's Housing Litigation Bureau. Mr. Posilkin began his career as an Assistant Corporation Counsel in the Division of Legal Counsel at the New York City Law Department from 1979 to 1984. Mr. Posilkin graduated from the State University of New York at Binghamton in 1976 and from New York Law School, where he served as an editor of the Law Review, in 1979. Mr. Posilkin currently serves as a representative of property owners on the Housing Court Advisory Council. He has previously served on the Advisory Council as the City’s representative and as a representative of property owners, and has also served on the Housing Court Committee of the Association of the Bar of the City of New York. Mr. Posilkin has presented at many seminars held by RSA, the New York State Office of Court Administration, the New York City Bar Association, the New York State Bar Association and the Kings County Housing Court Bar Association, including programs pertaining to the significant changes over the years in the State’s rent regulatory laws and regulations, the City’s lead paint laws, Section 8, and numerous other regulatory and legislative issues of concern to property owners.

mailto:[email protected]

NEIL C. DWORK Rosenberg & Estis 270 Madison Avenue New York, NY 10016 TEL: 212-551-8407 FAX: 212-551-8484 EMAIL: [email protected] WEB: www.rosenbergestis.com

Neil Dwork joined Rosenberg & Estis in 1999 and has been a member of the firm since 2008. Neil represents developers and owners in residential and commercial lease disputes. Neil has successfully litigated cases involving non-primary residence, nuisance, owner occupancy, illegal alteration, illegal sublet, non-payment of rent, Yellowstone injunctions, J-51 tax abatement issues, rent gouging and succession rights. He has also successfully advocated for clients before the Appellate Term, Appellate Division and the United States Bankruptcy Court. In addition, Neil defends owners in Supreme Court and Civil Court against claims involving mold, asbestos and breach of the warranty of habitability. In addition to his litigation practice, Neil works with clients on development issues and assemblages. He has successfully vacated a number of development sites in Manhattan such as 220 Central Park South and East 86th Street and First Avenue. Neil advises cooperative and condo boards and has successfully litigated shareholder disputes. Neil has successfully represented owners, owner’s representatives and general contractors in construction contract disputes before the Supreme Court and during mediation and arbitration. Neil has defended clients against claims brought before the New York State Division of Housing and Community Renewal and the New York State Division of Human Rights. Neil believes that understanding clients' short and long term business objectives is essential in developing successful strategies to navigate them through the complexities of real estate litigation, while keeping in mind their bottom line.

RONALD D. HARIRI, ESQ. RONALD D. HARIRI & ASSOCIATES 220 East 49 Street New York, New York 10017 Tel: (212)980-2233 Fax: (212)980-0750 E-Mail: [email protected]

Ronald D. Hariri is a real estate and landlord-tenant litigator with over thirty years of experience. He has represented a diverse client base ranging from large commercial landlords and developers and managing agents to small property owners, residential and commercial tenants, as well as closely held corporations, small business ventures and financial institutions. Mr. Hariri’s Law Firm has served as a designated law firm for the Rent Stabilization Association’s Legal Plan (NYC’s largest trade association) since 1989. Mr. Hariri pioneered this legal plan more than 25 years ago to help smaller property owners deal with the court and administrative systems.

Mr. Hariri has served as representative of the real estate industry on the Housing Court Advisory Council appointed by the Chief Administrative Judge. He is a member of the Association of the Bar of the City of New York, where he serves as a member of the Committee on State Courts of Superior Jurisdiction and previously served as Secretary of the Civil Court Committee and also served as a member of the Housing Court Committee. Mr. Hariri has participated in scores of evaluations of judicial candidates and judges for the past decade for the City Bar and Advisory Council.

A life-long New Yorker, Mr. Hariri is a magna cum laude graduate of Columbia College and was also graduated from Columbia University’s School of Law, where he also served as editor of his Law Journal. During his last year at Columbia Law, Mr. Hariri clerked for the United States District Judge Mary Johnson Lowe of the Southern District of New York. He began his legal career at Finley, Kumble, Wagner, Heine, Underberg & Casey. Mr. Hariri also has taught continuing legal education courses on the purchase of real estate and summary proceedings and writes frequently for real estate trade publications. He was born in Forest Hills, Queens, and currently resides in Manhattan and Eastern Long Island.

In addition to his real estate practice, Mr. Hariri is an experienced commercial litigator, who has appeared in both Federal and State Courts on a broad spectrum of matters including corporate and securities disputes and business litigation matters. Mr. Hariri has handled cases throughout the City of New York in all Courts and Agencies involving housing, landlord-tenant and real estate matters. He is admitted to the Federal and State Courts of New York and has been admitted pro haec vice to the Federal and State Courts of New Jersey.

Howard Stern, Esq. RSA Legal Plan Administrator 2 William Street, Suite 509 White Plains, NY 10601 Tel: (212) 682-0505 & (914) 683-0505 Fax: (914) 683-0508

Howard Stern, Esq. has been the Administrator of the Rent Stabilization Association's (RSA) Legal Service Plan since 1994. Mr. Stern is a lecturer and the moderator for most RSA seminars and, among his specialties, are assisting in the purchase and sale of rent regulated properties in New York. In addition to teaching the RSA Non-Payment Seminar, he has lectured on the Americans with Disabilities Act and he is also a frequent lecturer for SPONY (Small Property Owners of New York). As a monthly contributor, Mr. Stern writes a column for the RSA Reporter and his column has been quoted in Blackstone Publishing and New York Magazine in real estate related issues. Mr. Stem is a native of New York City: a Bronxite, to be exact. He graduated from the Bronx High School of Science and earned a Bachelor of Arts degree from City College of New York in 1974. In 1972, he began working in a family law firm while he was attending college. Mr. Stem attended New York Law School and he was admitted to practice law before the Courts of the State of New York in September 1978, before the U.S. District Court for the Southern District of New York in August 1979 and before the Eastern District of that court in September of that same year. Since that time, he has actively engaged in the practice of law, first as Managing Director for the law firm of Stern & Weissman for nearly ten years and, since 1988 and to this date, as a solo practitioner. Mr. Stem served as an Administrative Law Judge for the New York City Taxi & Limousine Commission from 1986 to 1990. He has also acted as Of Counsel to Horing, Welikson & Rosen P.C., a law firm specializing in landlord/tenant and real estate law. From 1985 through 1991, when they closed their Retail Division, Mr. Stern presided over real estate closings for Barclays Bank of New York. Mr. Stern is currently a member of the Real Estate Subcommittee of Financing of the New York State Bar Association.

Joseph Strasburg President Rent Stabilization Association T: (212)-214-9222 Email: [email protected]

Joseph Strasburg has served as the President of the Rent Stabilization Association since 1994. Prior to this appointment, Mr. Strasburg acted as Chief of Staff and Legislative Counsel to Councilman Peter Vallone, Speaker of the New York City Council. Serving in the City Council for more than fifteen years, Mr. Strasburg was Counsel to the City Council's Housing and Buildings Committee, and Assistant Counsel to Council leader Tom Cuite, Speaker Vallone's predecessor. Mr. Strasburg played a key role in the negotiations regarding the restructuring of the Council after the abolition of the Board of Estimate, and was the Council's liaison on redistricting.

Mr. Strasburg was Chairman of the State of New York Mortgage Agency (SONYMA) from 1997 through 2006.

Commissioner Gilbert Taylor

For two decades, Gilbert Taylor has dedicated his career to serving New York City's low-income children and families in the public and non-profit sectors. Well-known for his outstanding record of achievement, he was most recently appointed by Mayor Bill de Blasio to lead the City's Department of Homeless Services (DHS), assuming his post as Commissioner on Monday, January 13, 2014.

Prior to his appointment, Commissioner Taylor had worked for the Administration for Children's Services (ACS), most recently serving as the Executive Deputy Commissioner in the Division of Child Protection. The division was the largest in the agency, consisting of more than 3,500 employees tasked with investigating over 50,000 reports of child maltreatment annually. During his tenure at ACS, Commissioner Taylor had also served as the Deputy Commissioner for the agency's division of Family Court Legal Services, which involved overseeing all Family Court Litigation Units, the agency's Juvenile Justice Initiative and the Family Assessment Program (PINS Diversion).

In his years at Children's Services, Commissioner Taylor had many milestone achievements while working in both divisions, including:

•Participating in the creation and implementation of Childstat within the Division of Child Protection.

•Improving the safety and risk assessment practice within the Division of Child Protection, which directly contributed to a reduction in the number of children being placed into foster care - resulting in an all time low census of fewer than 12,000 children in care.

•Overseeing the procurement and implementation of evidence based preventive service models which are more specifically tailored to meet the needs of children and families in the system.

•Expediting Family Court case processing time frames on child protective proceedings filed in NYC Family Courts.

Commissioner Taylor has proven himself to be a strong advocate and trailblazer, contributing and leading major child welfare reforms for the City of New York during his tenure at ACS.

Announcing Commissioner Taylor's appointment, Mayor Bill de Blasio said that his years at ACS gave him "an extraordinary understanding of what children face in this City," regardless of their housing status. "He will use every tool we have to fight homelessness and preserve and protect families," the Mayor asserted.

"Being homeless is a traumatic event at any age, but especially for children," said Commissioner Taylor. "As DHS demonstrates its fundamental commitment to provide more comprehensive prevention policies and housing support, we will also put compassion first - always remembering that the families in our system are families in crisis."

Documents

MANAGING ENT R P NAVIGATING HOUSING COURT Rent Regulated Property - 12.02.14.pdf · MCLE credit allocation and certificate distribution. i. ... you must sign-out and enter the time