Just in case you missed it, Lucas was quoted in yesterday's New York Times. Here's the piece in its entirety:

April 27, 2008

Q & A

Getting Access to Fix a Leaky Bathroom

Q. A bathroom in a rent-stabilized apartment in a building we own is leaking into an apartment below. The tenant with the leak refuses to grant access to his apartment so we can repair the problem.

What legal recourse does a landlord have to force a tenant to provide access to an apartment to make repairs? And once we gain access, what is our financial responsibility to the tenant if his bathroom is unusable during repairs?

A. “By law, residential tenants are required to provide owners with access to their apartments so that necessary repairs may be made,” said Lucas A. Ferrara, a Manhattan real estate lawyer and adjunct professor at New York Law School in Manhattan.

In a “nonemergency” situation, which this appears to be, Mr. Ferrara said, a landlord should give a tenant “reasonable advance notice” of when entry is desired.

“How much time is appropriate will depend on a number of factors, including whether or not the unit is subject to some form of rent regulation and what the parties’ lease agreement may provide,” he said. With regulated apartments in New York City, for example, seven days would be considered reasonable notice, he added.

Mr. Ferrara said that a tenant’s baseless refusal to cooperate with a legitimate repair request could be grounds for eviction.

As to the question about the landlord’s responsibility to the tenant if the bathroom is rendered unusable during repairs, Mr. Ferrara said that in New York, owners of residential buildings are ultimately responsible for ensuring that their structures are livable and free of conditions that would present a threat to the health, safety and well-being of the building’s occupants.

“A nonfunctioning toilet would, in my estimation, present such a hazard,” he said.

In such a situation, he noted, a landlord might need to relocate tenants while repairs are being made.

To access a copy of the article, please use this link: April 27, 2008 NYT

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After denying their landlord access to their rent-stabilized apartment (for extermination and inspection purposes), a holdover proceeding ensued and the Earleys eventually agreed to a stipulation of settlement which awarded the landlord a possessory judgment to their unit.

Under the agreement's terms, their eviction would be stayed for a two-year period provided that the Earleys never filed a complaint regarding "housing repairs and/or conditions" with "any agency or forum" including the New York City Department of Housing Preservation and Development and the New York State Division of Housing and Community Renewal.

Less than two weeks before that agreement expired, the landlord -- One Convent Avenue Realty -- moved to evict the Earleys because the tenants had filed a complaint with the Davidson Senior Center alleging they had not received a renewal lease from their building's owner.

In One Convent Ave. Realty Corp. v. Earley, the New York County Civil Court granted the landlord’s motion and allowed the tenants’ eviction to proceed. On appeal, the Appellate Term, First Department, reversed.

According to the AT1, because the Earleys’ complaint did not relate to housing repairs or conditions, their conduct did not violate the stipulation's terms.

Luckily for the Earleys, the AT1’s decision arrived Not A Moment Too Soon.

To download a copy of the Appellate Term’s decision, please use this link: One Convent Ave. Realty Corp. v Earley

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (12)

In 12 Broadway Realty, LLC v. Levites, Broadway Realty filed a nuisance (holdover) case against Laura Levites. 

At issue, was Levites' refusal to allow her landlord access to the apartment to remedy a mouse infestation.

Broadway sent Levites a notice to cure, which afforded her 10 days from its receipt to begin a correction of the problem. While the document referred to the correct lease provision, since it erroneously claimed that she had only ten days to cure (rather than 10 days to begin a cure), Levites moved for the case’s dismissal.

The New York County Civil Court granted Levites’ request and, on appeal, the Appellate Term, First Department affirmed. But, when the case reached the Appellate Division, First Department, that higher court viewed the dispute quite differently.

According to the AD1, the lease required “not only that [Levites] must begin to cure within 10 days, but also that she must ‘continue to do all that is necessary to correct the default.’” Since Broadway had submitted an affidavit from a building manager, which indicated Levites failed to continue  to abate the condition, “a triable issue of fact” existed as to whether Levites complied with her lease. As a result, summary judgment in the tenant’s favor was viewed as inappropriate and the case was reinstated for a formal hearing or trial.

While Levites argued that she was not guilty of a “nuisance” -- in that the condition only impacted her unit -- the AD1 was unpersuaded by that posture since mice are known to spread from one part of a building to another and that “[a] tenant’s refusal to allow a landlord access to her apartment to correct a condition that threatens the health and safety of others in the building can constitute a nuisance.”

Will someone please give our regards to Broadway (particularly now that the strike is long over)?

To view a copy of the Appellate Division’s decision, please use this link: 12 Broadway Realty, LLC v. Levites

To view a copy of the Appellate Term's decision, please use this link: 12 Broadway Realty, LLC v. Levites (A.T.)

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (0)

In Nyamekye v. Madison, Absylom Nyamekye sought possession of an apartment rented to Lucille Madison. At issue was Ms. Madison’s unwillingness to provide Nyamekye with all keys to the subject apartment's entrance-door locks.

While the Civil Court of the City of New York granted Nyamekye’s motion for summary judgment and awarded him possession of the unit, the court stayed the issuance and execution of the warrant of eviction for a ten-day period, in order to afford Madison an opportunity to cure. Four months later, when Madison failed to comply, the court granted Nyamekye’s request to proceed with an eviction.

On appeal, the Appellate Term, First Department, found that, by failing to provide keys to Nyamekye, Madison had breached a substantial obligation of her tenancy. The court was also of the opinion that Madison’s “failure to afford [Nyamekye] meaningful access was not merely a negligent oversight, but an intentional failure to cooperate.”

While the AT1 did not wish to condone Madison’s conduct it recognized that forfeiture of her tenancy was a severe outcome. As a result, the court afforded Madison a final opportunity to stave off eviction by providing Nyamekye all keys within ten days. Failing that, Madison could be forcibly removed from her home by a New York City Marshal.

(Ironically, that latter entry was also likely to be keyless.)

To view a copy of the Appellate Term’s decision, please use this link: Nyamekye v. Madison 

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (0)

Unreasonably refusing a landlord access to your apartment can result in your eviction.

In 3420 Newkirk LLC v. Sulker, the Sulkers were unwilling to allow their landlord entry into their rent-stabilized unit for the purpose of addressing a "severe water condition" that not only impacted their apartment but that of a "disabled elderly person, on dialysis, whose rent subsidy was in danger of termination owing to the deteriorated conditions therein."

After a trial, the Kings County Civil Court found that the tenants had violated a substantial obligation of their tenancy by refusing to allow their landlord access to perform repairs.

On appeal, the tenants contended they were at a severe disadvantage since they had been unrepresented at the time of the trial. 

Finding no irregularity in the way the trial was conducted, the Appellate Term, 2d and 11th Judicial Districts, offered the following quote:

"[I]t is well settled that a litigant who appears pro se at trial does so at his [or her] own peril and acquires no greater rights than any other litigant" ... and, in any event, the record does not reveal that the court below failed to apply the law accurately and impartially, or that it improvidently exercised its discretion in its ruling with respect to the conduct of the proceedings and the admission of evidence.

The tenants' remaining arguments, including but not limited to, that the landlord's intention was to harass them and that the case was in retaliation for their attempts to form a tenants' association, were summarily discounted by the appellate court as contrary to the weight of the evidence and governing law, and, the judgment of possession was permitted to stand.

In other words, these tenants were deaccessed.

For a copy of the Appellate Term's decision, please use this link: 3420 Newkirk LLC v. Sulker

Posted by Lucas A. Ferrara, Esq. at 12:00 PM | Permalink | TrackBacks (0) | Comments (0)