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 In Corbo v. West Side Travel, Paschal Corbo sued West Side Travel for nonpayment of rent and alleged he orally demanded the money from his tenant.
When West Side later failed to file an answer or appear in court in response to Corbo's nonpayment case, a final judgment was entered against the company and it was subsequently evicted.
Soon thereafter, West Side sought to be restored to the space alleging that it had been misnamed in Corbo's papers -- its actual name was West "Street" Travel. The tenant also claimed it owed no money to Corbo and never received any payment requests from him.
When the Richmond County Civil Court denied the tenant's motion, the company appealed to the Appellate Term, Second Department, which found the misidentification "de minimis" and to have caused no confusion "as to the party being sued."
The AT2 also found that Corbo wasn't required to give the tenant notice in writing since the oral demand was a legally permissible alternative. The appellate court also noted any payments the tenant made to the landlord were properly applied to the rent arrears and the tenant failed to pay the balance of monies due.
Finally, restoring the company to its space wouldn't have been appropriate, since it was a "month-to-month" tenant, whose occupancy was terminable at any time by either party, and Corbo had already "served a termination notice on tenant."
Now that's some West Side story!
(Case closed?)
For a copy of the Appellate Term's decision, please use this link: Corbo v. West Side Travel
 In Allen v. Harlem Intl. Community School, LaShawn Allen - parent of an expelled student -- sought to recover the tuition paid to Harlem International -- a "private charter grammar school."
LaShawn's daughter and the school's principal, Ms. Simpson, had an "acrimonious" relationship which worsened when Ms. Simpson directed the child to write "I will not say shut up," 1000 times, as a disciplinary assignment.
LaShawn was none too pleased when she heard of the punishment and filed harassment charges against the principal. Soon thereafter, LaShawn's daughter was expelled for "incorrigible behavior."
After the New York County Small Claims Court found in LaShawn's favor and awarded her $1,500, an appeal to the Appellate Term, First Department, ensued.
Relying on the School's "Rules and Regulations," the AT1 found that the only situations warranting expulsion were a "student's use of illegal drugs or resort to violent behavior." Since neither basis applied, the AT1 thought the expulsion was wrongful.
Justice Douglas McKeon, a lone dissenter, was of the opinion the school's "Rules and Regulations" shouldn't be read so narrowly. Private schools, such as Harlem International, have "broad discretion" when it comes to disciplining students and "a private school may expel a pupil when such action is in the best interest of the school, child, or other students." Further, LaShawn was fully aware of the school's rules before she enrolled her daughter and, if she felt they were too strict, was free to choose another institution. However, the dissent noted LaShawn "got what she bargained for: an ultra-strict private school run by a no nonsense principal who is a strict disciplinarian."
As there was no evidence of "corporal punishment or criminal conduct," McKeon believed the claim should have been dismissed.
 This school's out!
To download a copy of the Appellate Term's decision, please use this link: Allen v. Harlem Intl. Community School
 In Misir v. Gilbert, Jerry Misir filed suit to recover rent from his tenant, Mae Ann Gilbert, for the period May 2005 through August 2006.
While the monthly rent rate was only about $800, Gilbert wouldn't pay because the building was allegedly being used as "an illegal multiple dwelling and that [Misir] breached the warranty of habitability."
In addition to evidence a prior case had been dismissed due to the building's status as an "illegal multiple dwelling," Gilbert produced copies of "two notices of violation" from the City which reflected the basement's illegal conversion to a third apartment.
Misir countered with "certificates of correction" from the New York City Department of Buildings indicating, as of December 10, 2005, the basement unit was no longer "illegal." As a result, the Queens County Civil Court awarded Misir all the rent sued for, less a 10% decrease due to apartment related conditions.
On appeal, the Appellate Term, Second Department, concluded the Civil Court "erred in allowing retroactive recovery of rent."
The AT2 was of the opinion Misir forfeited his ability to collect the money while the building was illegally configured and adjusted the judgment from $11,520 to $6,247.74 -- which encompassed 21 days in December and the reduced (post-abatement) rent for January through August, 2006.
Good luck getting the Appellate Division to correct that.
To download a copy of the Appellate Term's decision, please use this link: Misir v. Gilbert
 In TOA Construction Co., Inc v. Tsitsires, the Appellate Division, First Department, struggled with whether Michael Tsitsires maintained his apartment as his "primary residence," even though "mental illness" kept him from actually occupying the unit.
Tsitsires' landlord -- a "notorious slumlord" driven to "empty its building of all tenants" -- filed a case to evict Tsitsires from his "single-room occupancy" apartment since it wasn't the tenant's principal or "primary" home. The evidence established Tsitsires used this apartment as only a mail drop and storage space, he didn't keep a key, and that his long-time girlfriend -- Alberta Lang -- used the apartment for showers and storage of her own belongings.
While the unit was described as "uninhabitable," that wasn't the dispute's central focus. The New York County Civil Court was compelled to find in the landlord's favor since Tsitsires hadn't maintained the apartment as his "primary residence." (The tenant's mental illness didn't excuse his physical absence.)
On appeal, the Appellate Term, First Department, expressed discomfort condemning a man to homelessness and reversed. ("[P]ublic policy concerns do not require us to sustain the needless eviction of this seriously disturbed tenant, upon what in essence would be a judicial finding that tenant maintains his primary residence on a park bench.")
When the dispute reached the Appellate Division, First Department, it sided with the Civil Court.
While Tsitsires didn't maintain another residence (as he preferred to sleep in Central Park or on local stoops), his "lifestyle choice" wasn't a dispositive consideration as a regulated tenant is required to maintain an "ongoing, substantial, physical nexus [with the regulated unit] ... for actual living purposes."
Although cases have excused "temporary" absences, a tenant must demonstrate an intention "to return to and reside in the apartment as soon as practicable." Tsitsires wasn't able to supply any evidence that he could, or would, return to the apartment particularly since he declined medical treatment for his condition.
While "sympathetic" to his "plight," the majority was steadfast in its conviction that Tsitsires had "abandoned" his apartment and was properly subject to eviction.
In a heated dissent, two justices of the AD1 felt the Civil Court's analysis was "seriously flawed and riddled with significant misstatements of fact."
The dissenters were of the opinion the trial court relied a bit too heavily on the testimony of a former building manager who never saw Tsitsires enter or exit the apartment. They believed the Civil Court hadn't considered that Tsitsires and his girlfriend "kept very irregular hours," that Tsitsires often waited in the lobby before going up to his unit for fear of seeing other building occupants, and that his girlfriend (Ms. Lang) used the apartment "on a continual basis."
Relying on the manager's characterization of Tsitsires' "homeless lifestyle," the Civil Court supposedly discounted Tsitsires' testimony he spent 7-8 months a year in his apartment and that his absences were seasonally related since apartment wiring didn't support air conditioning and the heat often wasn't working.
The dissenters also questioned the majority's reliance on Tsitsires' failure to accept medical treatment as the basis for his refusal to return to the apartment when, perhaps, the reason was the unit's uninhabitable condition. (They also objected to the lack of any evidence that Tsitsires "exceeded the 183-day period of unexplained absence permitted by the applicable statute.")
Life has certainly proven to be like a box of chocolates for this particular tenant.
 Will Tsitsires take his tsuris to the Court of Appeals?
To download a copy of the Appellate Division's decision, please use this link: TOA Construction Co. Inc. v. Tsitsires (AD)
To download a copy of the Appellate Term's decision, please use this link: TOA Construction Co., Inc. v. Tsitsires (AT)
To download a copy of the Civil Court's decision, please use this link: TOA Construction Co., Inc. v. Tsitsires (Civil Court)
 During a phone call made to the mother of his two children, Marcos Urbaez supposedly threatened to "withhold child support, beat her, knock out her teeth and break her face."
As a result of that misconduct, Urbaez was charged with aggravated harassment -- a class A misdemeanor. When prosecutors opted to reduce the charge to "attempted aggravated harassment" -- a class B misdemeanor -- Urbaez objected, arguing that the maneuver was intended to deny him a jury trial.
Both the New York City Criminal Court, and the Appellate Term, First Department, could discern no irregularity by the reduction.
On appeal, the New York State Court of Appeals held that a defendant has the right to a jury only when a "serious offense" is concerned and the maximum penalty for incarceration is over seven months.
Because Urbaez faced no jail time for his "relatively nonserious" crime, our state's highest court affirmed noting that by allowing prosecutors to process a "high volume of misdemeanor cases" as they saw fit, "the important public interest of effective judicial administration" was promoted.
Next!
To download a copy of the Court of Appeals' decision, please use this link: People v. Urbaez
Just in case you missed it, our partner Lucas A. Ferrara was quoted in Sunday's New York Times. While I don't agree with the analysis, it makes for interesting reading. (And is likely to stir up quite a bit of controversy.) Here's the piece in its entirety. Can a Bargain Rent Have Staying Power? By JAY ROMANO Published: May 11, 2008 FOR landlords and some tenants in rent-stabilized buildings, few issues are more important than “preferential rent” — rent that is lower than the legal regulated rent registered with the State Division of Housing and Community Renewal. Among the questions that surround those rents are whether they carry over to a subsequent renewal and how the answer to that question affects a tenant in a rental building that is being converted to a co-op or a condo. Lucas A. Ferrara, a Manhattan lawyer and an adjunct professor at New York Law School , said that before 2001, the courts held that a preferential rent would continue throughout the tenancy, even if the lease provided otherwise. In 2001, however, an appellate court held that the lease would govern and that if a preferential rent was not “for the duration of the tenancy,” that provision should be honored. In 2003, however, the State Legislature amended the Rent Stabilization Code to provide that preferential rents would terminate upon vacancy or renewal, allowing landlords to end preferential rents when leases expired. But despite that change, in a 2003 decision, in a case known as Colonnade Management v. Sturgis Warner, another appellate court ruled that the increase to a higher rent was permissible only if the lease unambiguously allowed it. Based on that decision, Mr. Ferrara said, the Division of Housing and Community Renewal last month updated its fact sheet on preferential rents, which is issued as a tenants’ aid. First, he said, if the lease makes clear that the reduced rent will apply only for a limited duration, the preferential rent will end at the time specified in the lease. But, Mr. Ferrara said, if the agreement provides that the preferential rent will apply for the entire tenancy — or if the landlord fails to disclose the legal regulated rent in the lease — the reduction may not be rescinded. And if the lease is ambiguous or silent about the duration of a preferential rent, the ambiguity is generally resolved in favor of the tenant and the preferential rent continues throughout the tenancy. Sherwin Belkin, a Manhattan lawyer who represents landlords, said that owners who want to make sure a preferential rent will end must make that clear in the first lease set at the reduced rent. The duration of preferential rents can be important when a building is being converted. Errol A. Brett, a real estate lawyer in Floral Park, N.Y., says he is representing several tenants who were given preferential rents during the conversion process but whose landlords — now that the conversion is complete and the tenants are no longer eligible to buy — are trying to increase the rents to the legal regulated amount. He believes that those rents cannot be raised. Under the law that governs conversions, he said, a tenant in occupancy has only 90 days after the plan is accepted for filing by the attorney general to buy at the “insider price.” By increasing the rent to the legal maximum after that period has expired, the landlord is essentially giving the tenant three options: buy at market price; pay the higher rent; or leave the apartment. To download a copy of this article, please use this link: NYT: Preferential Rents (5/11/08)
 When her eight-year-old autistic son came home from school with bruises, a Brooklyn mother placed an audio recording device in her son’s backpack to get some answers. To her shock and dismay, the recording revealed an exchange with her son’s “personal bus matron,” Connie Clark, which evinced abuse.
When Clark was charged with endangering the welfare of a child, she requesed that the audio be "suppressed" -- not admitted into evidence at her trial. According to Clark, the conversation was recorded without her permission or the that of the child and thus violated Penal Law 250.05 -- a law which makes “eavesdropping” a felony.* While the Kings County Criminal Court granted Clark's motion, the Appellate Term, Second Department, reversed. Likening the New York law to a federal wiretapping statute, the AT2 adopted the reasoning of a federal case which addressed wiretapping boundaries. In Pollock v. Pollock (154 F3d 601 [6th Cir 1998]), the Sixth Circuit Court of Appeals held that “when a parent or guardian can demonstrate a ‘good faith, objectively reasonable basis to believe that it was necessary for the welfare of the child to record a conversation,’ a parent may consent to the recording on the child’s behalf.” Because of the overriding public policy to safeguard minors, the AT2 bought a “vicarious consent” argument and found the child’s mother “consented to the recording on behalf of her child” and reversed the suppression order. A lone dissenter disagreed and found the outcome contrary to the law's “plain meaning.” The dissenter observed, “had the legislative intended the result proposed by the majority, it could have included such an exception in the statute.” We consent to your making a record of that. 
To download a copy of the Appellate Term’s decision, please use this link: People v. Clark _______________________ *“Eavesdropping” is defined as the “intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device of equipment.” Another state law -- CPLR 4506 -- safeguards against eavesdropping by excluding any evidence obtained in violation of Penal Law provisions.
 In Barklee 94 LLC v O’Keefe, the New York County Civil Court concluded that a breach of lease claim, stemming from the installation of a living room radiator cover back in 1983, was barred by a statute of limitations -- a state law which prescribes the time period within which lawsuits must be brought.
On appeal, the Appellate Term, First Department, agreed that the tenant’s conduct occurred more than twenty (20) years prior to the holdover proceeding’s commencement. According to the AT1, since the lease breach neither violated the law nor interfered with the rights of other building occupants, the tenant’s conduct did not constitute a “continuing wrong” which would have extended the applicable six-year timeframe. So, apparently, Barklee’s bark had no bite. To download a copy of the Appellate Term’s decision, please use this link: Barklee 94 LLC v O’Keefe
 Section 130-1.1 of New York State’s rules and regulations authorizes courts to impose costs and other monetary sanctions against any party or attorney engaged in “frivolous conduct.”
According to 22 NYCRR 130-1.1, conduct is frivolous if: (1) it is without merit and "cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;" (2) its primary purpose is to delay proceedings or "harass or maliciously injure" another party; or (3) "it asserts material factual statements that are false." When considering whether there has been a possible violation of that rule, a court is required to examine the circumstances surrounding the party’s conduct and must consider -- among other things -- whether its frivolous nature was apparent, should have been apparent, or had been brought to a party’s attention. In 1050 Tenants Corp. v. Lapidus, a cooperative tenant was sanctioned under this Rule by the New York County Civil Court for falsely testifying at a nonpayment proceeding about the signing of a stipulation of settlement. Since the agreement’s enforceability was a focal point of the case, and the tenant was found to have asserted a “material factual statement” that was false, the court awarded costs to the cooperative. When the Appellate Term, First Department, affirmed on appeal, we doubt the tenant-shareholder sanctioned the outcome. To download a copy of the Appellate Term’s decision, please use this link: 1050 Tenants Corp. v. Lapidus
Continue reading "FALSE TESTIMONY SANCTIONED" »
 In Rodriguez v. Central Parking System of New York, Inc., Adriano Rodriguez filed suit to recover the value of a car that had been stolen from one of Central Parking System’s parking garages.
Inexplicably, Rodriguez waited more than three years to start the litigation. As a result, Central Parking System filed a motion to dismiss the case, claiming Rodriguez was barred by a three-year “statute of limitations” -- a state law requiring such cases to be started within a delineated timeframe or the underlying claims are forever lost. Believing that Rodriguez had 6 years to sue, the Civil Court of the City of New York denied the motion. On appeal, the Appellate Term, First Department, agreed and found that “[a]n action for failure to exercise due care in the performance of a contract, where the plaintiff seeks damages for injury to property or pecuniary interests, is governed by the six-year” limitations period. While the AT1 conceded that it had previously applied a three-year period to cases of this type, it noted that the Court of Appeals -- our state’s highest court --“‘has refused to apply a shortened negligence statute of limitations to a claim seeking breach-of-contract damages on a claim for property damages.’” With that, the AT1 bailed out of this case … fast. To download a copy of the Appellate Term’s decision, please use this link: Rodriguez v. Central Parking System of New York, Inc.
 In People v Gayle, the Queens County Criminal Court convicted Rudolph Gayle of criminal possession of a weapon in the fourth degree.
On appeal to the Appellate Term, Second Department, Gayle challenged the Criminal Court’s denial of his motion to suppress the introduction of a knife which had been found after Gayle was stopped by police. Gayle argued that, because the unsignaled lane changes for which he was stopped were not violative of law, the officers lacked “probable cause” -- or a legal basis -- for their conduct. By failing to raise that specific issue below, the AT2 was of the opinion that Gayle had not preserved the argument for appellate review. Despite that error, the AT2 explained that signalless lane-changing violated Vehicle and Traffic Law § 1163 and thus justified the officers’ conduct. If nothing else, the AT2 was sending a very clear signal to Gayle. To download a copy of the Appellate Term’s decision, please use this link: People v Gayle
 In Skinner v. Noy, Rosalyn Skinner filed a small claims case to recover a security deposit from her former landlord, Freddie Noy.
Skinner initially sought to recoup her entire deposit of $3,450. However, she amended her claim to comport with the jurisdictional limit of the Small Claims Part of the Justice Court, and sought a reduced sum of $3,000. The Rockland County Justice Court found that Skinner was entitled to recover her entire security deposit, minus $322 for the damage she caused to Noy’s carpeting and awarded her the sum of $3,000. On appeal, the Appellate Term, Second Department, sided with Skinner, but reduced the amount of her recovery to $1,953. The AT2 found that Noy was entitled to a month’s rent because Skinner had “failed to give her landlord sufficient notice.” Since Skinner was a month-to-month tenant, New York Real Property Law § 232-b requires such tenants (outside the NYC area) to give a landlord notice “at least one month before the expiration of the term of [the] election to terminate.’” Skinner admitted that she only notified Noy of her intent to vacate the premises on August 22, 2006, and moved out on August 31, 2006. As Skinner failed to satisfy the law’s one-month advance-notice provision, the AT2 held that she was liable for the September 2006 rent, in the amount of $1,175. The AT2 found no reason to disturb the lower court’s decision regarding the premises’ condition or Skinner’s obligation to pay $322 for damage to the carpet, and only modified the judgment to account for the one-month’s rent payment that was due to the former landlord. Obviously, Skinner boxed herself into a reduced award. 
To download a copy of the Appellate Term’s decision, please use this link: Skinner v. Noy
 In People v. Scarlet, Saint Aubyn Scarlet’s wife testified that he had threatened to “cut her up” and had swung a machete at her. (This happened just before he punched her in the chest and again on the chin.)
When two officers arrived on the scene they found a machete knife and observed swelling of the victim’s face. Following a non-jury trial, the Queens County Criminal Court convicted Scarlet of attempted assault in the third degree, attempted menacing in the second degree, and harassment in the second degree. Claiming that the evidence presented at trial was legally insufficient to justify a conviction, Scarlet appealed to the Appellate Term, Second Department. Even though he failed to preserve his objection for appellate review, the AT2 gave a damn and, after reviewing the record, confirmed that the evidence established Scarlet’s guilt beyond a reasonable doubt. To download a copy of the Appellate Term’s decision, please use this link: People v. Scarlet
 In People v. Spagnola, Spagnola was charged with thirty-six (that's 36) counts of falsifying business records in the second degree.
Spagnola, a licensed nurse practitioner, allegedly recorded false blood pressures and weights of nursing-home patients under her care on at least 36 occasions. Coworkers also claimed that they had been instructed by Spagnola to falsify records. Yet, the Staten Island Criminal Court dismissed the charges against the defendant “in the interests of justice.” The Criminal Court was persuaded by Spagnola’s lack of an arrest record, the fact that no actual harm had been caused by her questionable recordkeeping practices, there was no apparent motive for financial gain, and a dismissal would have no negative impact on the community’s safety and welfare. While the Appellate Term, Second Department, concurred with the outcome, a lone dissenter was much less forgiving. These patients -- the elderly and infirm -- are among our society’s most vulnerable citizens. Spagnola’s misconduct could have impacted dosing recommendations and treatment plans, exposing patients to over-medication and death. As Justice Ariel E. Belen persuasively pointed out in his dissent, Spagnola could easily have been facing a negligent homicide charge. Should healthcare professionals be encouraged to act with reckless disregard? Sorry, we no speak Spagnola. To download a copy of the Appellate Term’s decision, please use this link: People v. Spagnola
 In Adelphi Assoc., LLC v. Gardner, since Gardner was incapable of defending himself within the context of a nonpayment case, a guardian ad litem (GAL) was appointed to represent the tenant's interests.
Without ever meeting or consulting with the tenant, the GAL agreed to convert the nonpayment to a holdover proceeding, and consented to the tenant’s eviction. When the tenant later secured counsel and asked the Kings County Civil Court to vacate the agreement and be restored possession, that forum denied the request. On appeal, the Appellate Term, Second Department, sided with the tenant and vacated the agreement since it had been “inadvisedly entered into.” But the restoration request was denied with leave to renew, as the apartment's current occupant had not been joined to the case. Should that occur, the AT2 suggested the use of a “balancing test” to determine who would get to keep the unit -- after weighing such factors as the former tenant's ability to pay his debts and future rent, together with the prejudice or injury the existing occupant would suffer. Wouldn't want to be the judge that has to make that decision. To download a copy of the Appellate Term’s decision, please use this link: Adelphi Assoc., LLC v. Gardner
 In Fa Wah Management, Inc. v. Alvarrez, “Fa Wah” Management (“FWM”) started a holdover summary proceeding against Zoilo Gavilan “Alvarrez,” who was doing business as Juquiliuta Bar & Restaurant.
FWM terminated Alvarrez’s lease, after Alvarrez failed to pay several months' rent. When negotiations for a new lease proved unproductive, the parties entered into two successive stipulations, which required Alvarrez to pay FWM certain sums of money for "use and occupancy" and to provide FWM proof of insurance on or before April 4, 2006. When he defaulted and an inquest was held by the Kings County Civil Court, FWM “established a prima facie case, including proof of [Alvarrez’s] original rent default,” and possession was awarded to the landlord. On appeal, the Appellate Term, Second Department, affirmed. Alvarrez’s main defense was that the pleadings in the case -- the Notice of Petition and Petition -- were fatally defective, because FWM’s true name was “Fai Wa,” rather than “Fa Wah,” and Alvarrez’s last name was really spelled “Alvarez.” Notwitstanding those gaffes, the AT2 was of the opinion, that the tenant “was not, and could not reasonably have been confused by these minor errors.” Alvarrez further asserted on appeal that since he had eventually obtained the required insurance, enforcement of the stipulation would prove to be inequitable. But the AT2 was unmoved. Since that claim was unsubstantiated, and more importantly, not in the record, it could not be considered on appeal. Discerning no irregularity, the AT2 directed Fa Wah (or “Fai Wa”) to proceed with the eviction ForthWith. 
To download a copy of the Appellate Term’s decision, please use this link: Fa Wah Management, Inc. v. Alvarrez
 In Ellis v. Disch, Ari Ellis brought a holdover proceeding against his tenant, Thomas Disch.
Disch was living in a rent-stabilized apartment with his co-tenant, Charles Naylor, who died on September 6, 2005 -- several months before the lease expired. After Naylor’s death, Disch continued to live in the apartment and, when the lease expired, Disch remained in possession of the apartment despite the owner's refusal to renew. Disch sought dismissal of the holdover based on Ellis’ failure to join Naylor’s estate as a “necessary party,” and on the grounds that the estate had not been served with the non-renewal notice. The New York County Civil Court granted Disch’s motion and dismissed the case. On appeal, the Appellate Term, First Department, reversed. When Naylor died, and his lease expired, the landlord was under no obligation to join Naylor’s estate as to a party to the holdover proceedings. As the AT1 observed, “any possessory claim of the estate lapsed upon the termination of the decedent’s lease.” That’s the Disch! To download a copy of the Appellate Term’s decision, please use this link: Ellis v. Disch
 In Kent Equities Corp. v. Paez, the New York County Civil Court dismissed a holdover case due to the landlord’s non-compliance with a law -- New York City Rent and Eviction Regulations § 2204.3 -- which requires landlords to file copies of certain notices served on rent-controlled tenants with the New York State Division of Housing and Community Renewal within a 48-hour timeframe.
On appeal, the Appellate Term, First Department, affirmed the dismissal and characterized that technical violation as “fatal to landlord’s right to maintain the holdover proceeding.” So you see, missteps and omissions can still trigger the demise of a summary proceeding. In this particular instance, the landlord’s error brought Paez peace. To download a copy of the Appellate Term’s decision, please use this link: Kent Equities Corp. v. Paez
 Sirii Marvits -- a 71-year-old woman who has lived in a rent-controlled West Village apartment for 43 years -- shares her home with two cats, Apollo and Athena.
In February of 2005, Marvits' landlord, 184 W. 10th St. Corp., started a holdover proceeding against her, alleging that her animals violated the lease's "no pets" provision. After finding that the landlord had waived the violation because of New York City’s “Pet Law," (NYC Administrative Code § 27-2009.1[b]) -- a law which requires that an eviction case be started within three months of a landlord’s knowledge of a pet's existence -- a New York County Civil Court judge ruled in Marvits’ favor. Marvits established that the cats had continuously occupied the apartment since January 1997 and that, on numerous occasions, the building's managing agent, super, together with independent contractors and other employees had been in the apartment for inspections and repairs, and on all those occasions, the animals and their accoutrement had been visibly apparent. Seven months after Marvits’ victory, the landlord made a motion to "reargue" the outcome pursuant to CPLR 2221(d) and, surprisingly, the court reversed its earlier decision and awarded possession to the owner. An appeal to the Appellate Term, First Department, ensued. Characterizing it as a “threshold matter,” the AT1 noted that the “motion to reargue” should have been denied as untimely. The majority was also of the opinion that the landlord had waived any objections to the cats’ existence as early as August 2000 when the landlord’s agent, super and contractors made multiple visits to the unit. Not everyone on the panel agreed with that outcome. Justice William P. McCooe noted that an objection as to the reconsideration request's timeliness had not been raised below and thus could not be considered on appeal. He was also of the opinion that an “agency” relationship between the landlord and an independent contractor (Dennis Tsomas) did not exist, since the latter reported to the premises only when called. Surprisingly, Justice Douglas E. McKeon, another member of the panel, countered in a concurring opinion that, in New York State, there is “no temporal litmus test before an independent contractor becomes an agent for another.” Quite disconcerting, no? If there’s no “temporal litmus test” then no independent contractors would ever be viewed as “independent.” Owners would be liable for acts of these “third parties” whenever their services were utilized. (Respectfully, that ain’t the law as we currently know it.) In addition to that “agency” issue, the AT1 judges battled over whether a "waiver" by the landlord had been triggered. McKeon noted that, on the numerous occasions, when the super or the managing agent were in the apartment, the cats were always present. Furthermore, when repairs were performed to the unit, the litter box and feed bowls were readily visible. McCooe, on the other hand, read that same record quite differently. Since the cats fled when strangers entered and their paraphernalia were hidden -- on top of the refrigerator or placed in the bathtub, covered by a non-transparent shower curtain -- McCooe believed that the tenant had failed to demonstrate the timing of landlord’s knowledge of the pets’ existence. Ladies and gentlemen, this is one cat-fight that’s headed straight to the Appellate Division! To download a copy of the Appellate Term's decision, please use this link: 184 W. 10th St. Corp. v. Marvits * * * We extend our congratulations to our friend and colleague, Steven M. DeCastro, for his success on behalf of the tenant in this case.
 In Berdy v. Tilcon New York, Inc., Steven Berdy filed a small claims case to recover compensation for damage caused to his home. (Apparently, Tilcon had been engaged in blasting activities in the area.)
After the Rockland County Justice Court, awarded Berdy $2,565, Tilcon appealed, and the Appellate Term, Second Department, affirmed. While “[a] party engaged in blasting activities is strictly liable for any injury to neighboring property caused by blasting,” the “party seeking to recover for damage to his property from a defendant’s blasting activities must prove causation.” Berdy testified that, during the course of the explosions, he witnessed some of the damage occur and heard cracking noises in other parts of his house where he later discovered additional damage. (The AT2 found that an inference that the blasting caused the damage could be drawn from the facts and circumstances.) Even though Tilcon countered with an expert, who testified that the company's activities could not have caused the damage, the AT2 held that when an eyewitness and an expert disagree, the ultimate determination must be made by the trial court. Since that forum found Berdy’s testimony more credible, the AT2 could see no reason to disturb the outcome. Now, that’s Berdy. To download a copy of the Appellate Term’s decision, please use this link: Berdy v. Tilcon New York, Inc.
 In Malik v. Nihar, Malik filed a case to recover the cost of car insurance premiums he had paid to Nihar, the owner of a livery cab company.
Malik, a cab driver with a poor driving record, was unable to obtain car insurance. In order to continue operating his cab, Malik came to agreement with Nihar where in exchange for insurance coverage through Nihar’s company, Malik sold his vehicle for $600 and paid $4,300 upfront for five and a half months of insurance payments. Ten days later, Malik was in an automobile accident and totaled the car. While the insurance company paid Nihar $8,248, he only gave Malik $4,000. After finding that Nihar had been “unjustly enriched” the Kings County Civil Court awarded Malik $4,316.50. On appeal, the Appellate Term, Second Department, reversed and dismissed the lawsuit. The AT2 refused to grant Malik relief because of his “unclean hands,” and offered the following quote from another case: “It is the settled law of this State (and probably every other State) that a party to an illegal contract cannot ask a court of law to help him carry out his illegal object … For no court should be required to serve as paymaster of the wages of crime, or referee between thieves. Therefore, the law will not extend its aid to either of the parties or listen to their complaints against each other, but will leave them where their own acts have placed them.” (Ford v. Henry, 155 Misc 2d 192, 193-194 [App Term, 2d & 11th Jud Dists 1993], quoting Stone v. Freeman, 298 NY 268, 271 [1948], citing Schermerhorn v. Talman, 14 NY 93, 141 [1856]).
Purell, anyone? To download a copy of the Appellate Term’s decision, please use this link: Malik v. Nihar
 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
 In 60 West 57 Realty, Inc. v. Durante, 60 West 57 Realty brought a nonprimary-residence holdover proceeding against Loretta Durante.
The case was based on the allegation that Durante “made only sporadic use of the subject West 57th Street stabilized apartment for the one-year period from October 2001 to October 2002, during which [Durante] was married to a New Jersey domiciliary.” The New York County Civil Court sided with 60 West 57 Realty, and awarded the landlord possession of the apartment. On appeal, the Appellate Term, First Department, reversed. The AT1 concluded that the evidence clearly demonstrated that Durante had lived in the subject apartment eight years prior to her “short-lived” marriage, and that she had no ownership or proprietary interest in her former husband’s New Jersey home (or any other property for that matter). During the marriage, Durante “kept most of her furniture and personal belongings in the apartment, did not sublet the apartment, and received her mail there.” In addition, the AT1 found that Durante resumed full-time occupancy unit by October of 2002 at the latest, which was six months prior to the expiration of her renewal lease. In view of that history, and the “settled principle that a husband and wife can maintain two separate primary residences,” the AT1 was of the opinion that the landlord failed to establish its nonprimary residence claim and dismissed the case. Good night, Ms. Durante, wherever you are! "Ha-cha-cha-chaaaaaaa!" To download a copy the Appellate Term’s decision, please use this link: 60 West 57 Realty, Inc. v. Durante
 In 115 E. 9th St. Retail v. STA Travel, Inc., 115 E. 9th St. Retail filed a nonpayment case against its tenant, STA Travel, Inc. (STAT). At issue was STAT’s failure to pay its real-estate tax escalation and water and sewer charges.
After the New York County Civil Court awarded the landlord $37,545.84 in rent arrears, STAT appealed to the Appellate Term, First Department. The AT1 found that STAT could not challenge the landlord’s real-estate tax escalation, as the tenant had “failed to object to landlord's annual real estate tax escalation statements within 45 days of their issuance” as required by the parties’ lease agreement. As for the payment of the water and sewer charges, STAT did not contest their “reasonableness” or claim they were "inflated." Rather, the tenant argued that since the landlord had not received bills from the City for the water and sewer charges STAT was not required to remit payment. Without a lease provision which supported the tenant’s position, the AT1 was of the opinion that the objection lacked a meritorious basis. And that’s STAT. To download a copy of the Appellate Term’s decision, please use this link: 115 E. 9th St. Retail v. STA Travel, Inc.
 In Bailey v. Suarez, the tenant sought to dismiss a residential holdover proceeding on the grounds that the building's leases had been assigned to a lender as security for a mortgage and that the assignment prohibited the owners from altering, modifying or changing the terms of those leases or from canceling or terminating same.
Neither the Kings County Civil Court nor the Appellate Term, 2nd and 11th Judicial Districts, was receptive to that posture and disposed of the argument as follows: When the assignment of a lease is given as security for a mortgage, it is the assignor, not the assignee, who retains the right to maintain a summary proceeding against a tenant .... Accordingly, landlords have standing to maintain the instant proceeding. Since the mortgage was intended to protect the mortgagee bank's interests, not any interest of tenant, tenant is not a third-party beneficiary of the mortgage and cannot claim rights thereunder .... Finally, because the assignment does not affect landlords' standing to bring the instant proceeding and is not determinative of the parties' rights, the notice was not defective, and the petition adequately stated the interest of the landlords in the premises pursuant to RPAPL 741 (1) ....
Interesting, no? One reader vehemently disagreed with the outcome and opined that the mortgage documents had divested the landlord of the authority to terminate the lease. And, without the lender's consent, a necessary condition precedent to the maintenance of the holdover proceeding had not been satisfied. Spare us any squealing, please. To view a copy of the Appellate Term's decision, please use this link: Bailey v. Suarez
 If you love soaps, you are going to want to read the Appellate Term's decision in Bakht v. Akhtar.
In that holdover case, Shirin Akhtar was being evicted by her in-laws. Although she was only a tenant-at-will (who had never had a lease in her name nor paid rent), Shirin refused to vacate when asked to do so, and, when litigation ensued, she challenged the court's jurisdiction over her person by objecting to the service of the pleadings. Apparently, the process server believed he had resorted to substituted service by leaving copies of the Notice of Petition and Petition with Afruz Bahkt, Shirin's father-in-law and a co-respondent. It appears the process server was unaware that Afruz and Shirin weren't getting along and that they were "hostile" co-tenants. (Afruz wanted Shirin out so that his son could return to the home.) When a Civil Court Judge ordered Shirin's eviction, the Appellate Term, 2nd and 11th Judicial Districts, reversed that outcome on appeal and dismissed the holdover case. While it's usually permissible to serve someone who resides or is employed at the premises sought to be recovered, the AT2 would not uphold the attempt in this instance due to the estranged nature of the group's relationship. Here's how the appellate court phrased it: A conflict of interest may be found where, as here, the recipient of service and the intended respondent are related, but their interests in the proceeding are opposed ... whether this conflict is known to the process server or not .... Despite the fact that Afruz Bakht was a co-respondent in the present proceeding, all of the Bakhts, according to appellant, including the co-respondents, wanted her out of the house so that her estranged husband, Mohammad J. Bakht, could return and live there. Their interests were thus aligned against hers. It must be noted in this regard that none of the tenants, other than appellant, offered any testimony in the proceeding or even appeared in it. Under the circumstances presented, there is a conflict of interest between the recipient of service and the appellant such that the recipient was not a person of suitable discretion for purposes of RPAPL 735 (1). Accordingly, substituted service of the petition and notice of petition on Afruz Bakht did not constitute good service upon appellant.
A lone dissenter, Hon. Michelle Weston Patterson, wasn't persuaded by Shirin's arguments and would have affirmed the lower court's determination. Justice Patterson did not believe the trial evidence established the existence of an "acrimonious" relationship with Afruz and thus would have upheld the service effort since the parties lived at the same address, their interests were sufficiently aligned, and Shirin admitted receiving copies of the pleadings by regular and certified mail. What a relative mess! To download a copy of the Appellate Term's decision, please use this link: Bakht v. Akhtar
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