New York City Landlord-Tenant Law Attorneys Blog

Misconceptions about the Law

2012-05-11T21:20:31Z

There are two popular misconceptions that many non-lawyers (and maybe even some lawyers) have about the law. One is that there is a "right" and "wrong" answer to every legal question. Another is that the legal system is a place to find justice. Regarding the first misconception, clients sometimes say to me "doesn't the judge have to find in our favor because that is the law?" But the law is not a science; it is more of an art. Law is a matter of interpretation and different judges can interpret things different ways. As the late Supreme Court Justice William Brennan famously said, the law is whatever five justices on the Supreme Court say it is!

A judge (housing cases are almost always decided by a judge) reaches a decision by looking at several things. The judge must determine what happened - what the facts are. The facts are often in dispute.

A tenant may argue, for instance, that she slept in her apartment more than 183 nights out of the year, one of the factors which determines whether a rent stabilized apartment is a tenant's "primary residence." The landlord will argue that the tenant was in the apartment many fewer nights. The judge has to look at all of the facts, including the testimony of the witnesses, to decide who is right. Sometimes the case will hinge on what documentary evidence the judge accepts into evidence. Other times the case will turn on whose testimony that judge finds more credible.

The facts are only one facet of the case. Equally important is the court's application of the law to the facts. The law has three major components. One is the statute itself, enacted by the legislature (e.g., the Rent Stabilization Law). The second is the regulation adopted by the relevant administrative agency, such as the Rent Stabilization Code. Often they do not say precisely the same thing. The judge also has to examine case law, or decisions by other judges regarding similar situations or issues. In looking at the law, the regulations and court decisions, there is lots of room for different interpretations. For instance, the Rent Stabilization Law says that a family member (or "non-traditional" family member) can succeed to the apartment of a tenant only if she has resided with the tenant for two or more years (one year if the tenant is disabled) prior to the tenant's "permanent vacatur." Neither the law nor the code defines precisely what is meant by "permanent vacatur." The courts have had to interpret this term by looking at specific cases. Courts have found that if the tenant moves out of the apartment but still signs renewal leases, pays the rent and visits the apartment, she has not permanently vacated. Therefore, the person claiming succession would most likely lose in this situation. This interpretation of the law strikes tenants and tenant attorneys as unfair (or "wrong") because a child who has spent his entire life in an apartment could be denied succession simply because a parent who has moved out retains ties to the apartment. (A tenant, for instance may keep signing leases and paying the rent thinking she is doing it to keep the apartment for her child although she moved out long ago and permanently settled elsewhere.)

Accordingly, for many, if not all legal questions, there is no "right" or "wrong" answer. There are different interpretations of the law which are argued by attorneys for each side because that particular interpretation would benefit their clients. The answer to the any legal question is what a judge decides it is. The same case with identical facts could be decided one way by one housing court judge and another by a different housing court judge. Of course, a judge may interpret the law using poor reasoning. Or a judge might interpret the facts in a way that is unreasonable. In this case the appellate courts may "correct" the lower court decision. But even the highest appellate court may reach a decision that could appear "wrong." For instance, the U.S. Supreme Court's decision in Bush v. Gore appeared wrong to many people and some felt that it was motivated more by political considerations than a reasonable interpretation of the law.

A second popular misconception is that the courts are where people go to find justice. As discussed above, the role of judges is to apply the law to facts. Sometimes the law is not on your side, even if you believe that your case is just. For instance, in the example above, it may seem extremely unjust that you could live in a rent stabilized apartment with your parents for your whole life, that they could move to another city, and that a court could not grant your right to succeed to the apartment. I would argue that it is unjust and even contrary to what the State Legislature intended. But the law, as it has been interpreted to date, could preclude you from getting succession if your parents had continued to renew the leases.

Another problem is that tenants often have grievances for which there is no legal remedy or no good legal remedy. A long pattern of minor harassment by a landlord is a good example. For instance, say the landlord is slow to do repairs and the super is hard to reach and insulting. Perhaps the super tells the tenant "you should move" and the landlord takes away the storage room and furniture in the lobby. While a tenant may accurately believe that all of these actions are designed to make rent regulated tenants lives miserable so that they will move out, it is unlikely these things add up to the kind of harassment for which the landlord could be punished. Moreover, even if the landlord is punished, the punishments meted out are often a slap on the wrist. While this may feel unjust, and is unjust, the law is not always about getting justice.

A third obstacle to obtaining "justice" is that while there may theoretically be a good legal remedy for a problem, it may not be cost effective to hire an attorney to litigate the case for you because the cost of the attorney could exceed the benefit you could obtain. This is often the case where a tenant has withheld rent because she has been deprived of basic services and the landlord has commenced a nonpayment proceeding.

It should be noted that sometimes justice does in fact prevail! I had a client whose building had a broken elevator for almost a year. The court had ordered the landlord to fix the elevator and the landlord ignored the order. I personally served the (notoriously bad) landlord with a contempt motion which could subject him to imprisonment. The elevator was promptly repaired.

David Hershey-Webb

Mold Cases Are Back

2012-05-09T23:28:37Z

Like spores brought to life by a new leak, mold cases are back after 4 dormant years, due to the March 2012 Appellate Court decision of Cornell v. 360 West 51^st Street Realty LLC.

Mold claims went dormant 4 years ago when the appellate court decided Fraser v. 301-52 Townhouse Corp., 57 A.D3rd 416 (2008), holding that, in that case, plaintiffs had not demonstrated causation between mold exposure and disease. Despite the "narrow" holding, its impact was broad. The mere handful of lawyers doing personal injury mold cases shrunk as the risk of taking mold cases was simply too great. Fraser effectively put the kibosh on mold personal injury claims and people with claims have had the unfortunate reality of losing health and home without compensation.

However, those of us representing tenants, shareholders and unit owners in damp buildings after Fraser were painfully aware that nothing had changed for the individual. People were still getting sick from the cocktail of mold, bacteria, dust mites and cockroach droppings present in damp buildings.

Advocates for individuals continued to strive to convince the court that mold was a serious issue. The facts were often obvious, like those present in Cornell: Brenda Cornell moved into her apartment located directly above a basement which was damp, musty and vermin infested. After a steam pipe broke in her apartment, a small amount of mold appeared in her bathroom. When she entered the bathroom, she began to feel ill, got a body rash, shortness of breath, fatigue, disorientation and headaches. Subsequent renovations in the basement resulted in Ms. Cornell's experiencing dizziness, chest tightness, congestion, shortness of breath, a rash, swollen eyes and a metallic taste in her mouth.

At one point, the landlord told her to wash the area with bleach, which she did and which temporarily helped her symptoms. (Mold remediation techniques vary, but courts generally adhere to the Department of Health guidelines and experts' opinions.)

We now have good news for individuals in damp buildings. Reinstating her complaint, the appellate court clarified in Cornell:

"The scientific evidence shows that exposure to molds, particularly the types of molds whose presence in plaintiff's apartment was confirmed by sampling...can cause the types of ill effects experienced by plaintiff."

The science has now been analyzed twice by the appellate court. Based on the number of ill people, particularly children, with ill effects in damp buildings-the court got it right the second time in Cornell. Will the personal injury lawyers now follow?

Elizabeth Donoghue

US Supreme Court declines to hear challenge to Rent Laws

2012-04-25T22:40:44Z

Last week the Supreme Court declined to hear a challenge to New York's rent stabilization laws, Harmon v. Kimmel, brought by an Upper West Side landlord. In the case landlord James Harmon argued that the rent laws amounted to a "taking" of property in violation of the U.S. Constitution because he is unable to evict without cause the tenants in his brownstone. Although the law has long been settled in this area, there was some concern given the willingness of the current Supreme Court to reconsider and reverse long-term precedents. New York City and New York State submitted briefs defending the rent laws based upon longstanding precedent. The real estate community blanketed the court with "amicus" briefs which apparently did not sway the justices. The real estate community also organized a media blitz resulting in many news articles about the alleged "unfairness" of the rent laws. Tenants must remain ever vigilant and organized to preserve the rent laws which the real estate industry will continue to attack on legal, political and media fronts as long as there are bigger profits to be made.

Rent Controlled Tenants Beat Back "Hardship" Rent Increases

2012-02-03T16:41:46Z

Rent Controlled tenants won a big victory recently when Supreme Court Justice Schlomo S. Hagler upheld a DHCR decision denying "hardship" rent increases for 27 elderly tenants living at London Terrace Towers in Chelsea. London Terrace Associates v. DHCR v. Four Corners Tenants Association, Index No. 103341/11 (Sup Ct, NY Co, January 18, 2012). I was the lead attorney on the case that goes back more than ten years. The so-called "hardship" rent increases would have doubled and tripled rents of the few remaining rent controlled tenants in a co-op.

A building owner is entitled to hardship rent increases only if the rents are not sufficient to cover costs plus a "reasonable" profit of 8 ½%. (The "reasonable" profit used to be 6% but was raised in 1970 to 8.5%. Let's hope it doesn't get any more reasonable!)

The Owner (the holder of unsold shares in the remaining rent controlled apartments) who sought the increases had already made millions of dollars selling vacated rent controlled apartments and retaining ownership of valuable rental and commercial space. Millions more could be made if the Sponsor could force the remaining rent controlled tenants to vacate by increasing their rents.

The decision helps protect the 40,000 or so remaining rent controlled tenants from misnamed "hardship" rent increases. The road to victory (for now) was a long and winding one involving arcane matters of tax law and a dispute over how to measure a building's "capital value" which determines an owner's profit. (No surprise that one way that people get and stay rich is by writing the tax laws and interpreting them in a way that favors them!)

The Owner applied for the rent increases in 1996. The DHCR took 10-years to rule on the applications. In 2006 it granted the applications, imposing not only substantial rent increases going forward but 10-years of retroactive rent increases as well. The increases would have forced some tenants from their homes and compelled others to spend their life savings to remain in their apartments and pay off the 10-years of arrears.

The Tenants Association appealed arguing, among other things, that the DHCR was using an outdated measure of capital value, Article 12A of the Real Property Tax Law rather than Article 12. Under the Article 12A measure of capital value, the owner's profit is measured at four times what it would be under the Article 12 measure. (Both Article 12 and Article 12A use an "equalization ratio" which converts the building's assessed value to an estimated market value.)

We argued that the DHCR should look to the Court of Appeals decision City of New York, 97 NY2d 216, 765 NE 829, 739 NYS2d 333 (2001) which, in upholding a 1997 law involving maximum base rent ("MBR") increases, held that Article 12 is a "more accurate" measure of capital value.

That "more accurate" measure, in the case of the tenants at London Terrace Towers, resulted in the Owner being entitled to no hardship rent increase since the rents were sufficient to cover its costs and profit. On the other hand, applying the Article 12A measure resulted in the Sponsor being entitled to substantial rent increases to make its (inflated) profit.

In a decision dated February 10, 2011, the DHCR applied Article 12 and found that the Owner was not entitled to any rent increases. That decision was upheld by Judge Hagler on January 18, 2012. We expect that the Owner will appeal to the Appellate Division.

David Hershey-Webb

Non-Primary residence-your electronic life is an open book

2012-01-17T15:56:31Z

Virtually all forms of rent regulation in New York City-Rent Stabilization, Rent Control, Mitchell-Lama to name a few-require that the apartment be maintained as the tenant's primary residence. Clients will often say to me at an initial consultation something like this: "The apartment is my primary residence; I pay New York City taxes, I list the address on my voter registration, driver's license and my jury duty notice came to that address." Then comes the shocker-I tell these clients that while the address listed on those documents is important, the key factor in the case will generally be the number of days and, more importantly nights, that the tenant spends at the apartment. New York courts have repeatedly held that "physical presence in the apartment for ordinary living purposes" is the most important component of primary residence.

So you might ask, as many do, "How will the landlord prove this," correctly assuming that the burden of proof in a non-primary residence case is on the landlord (while this is true in cases involving rent controlled and rent stabilized apartments, which are litigated in Housing Court, City Mitchell Lama cases are heard at an administrative proceeding before the Department of Housing, Preservation and Development and the burden of proof to establish primary residence is on the tenant).

These days most of us have an "electronic paper trail." Many tenants regularly use credit and debit cards, ATMs, and EZ-Passes. Many work in buildings which require the employees to "swipe" in when they enter the building. Airlines keep a record of travelers' flights. Con Ed, telephone and other utility records exist which show the amount of usage at the apartment and at the alternate residence(s). Land line phone bills show the frequency of outgoing calls. What all of these records have in common is that courts now routinely order tenants to hand over these records to the landlord during the court case in what is known as "discovery," usually for a period of two years immediately prior to the commencement of the case. Thus, while the burden of proof is the landlord's, the evidence the landlord will use to sustain its burden of proof will come from the tenant. And many of these records, such as the credit and debit card bills, EZ-Pass records and flight records create an "electronic footprint" which places the tenant at a geographical location on any given date, and show the tenant's travel pattern. This so called "objective" evidence is much more persuasive to trial judges than testimonial evidence, and it is often these documents which are the key pieces of evidence in determining whether the tenant wins or loses the case.

Samuel J. Himmelstein

How to Get Repairs By Suing Your Landlord #1

2012-01-11T15:02:39Z

Housing Part or "HP" actions are great tools for tenants, shareholders and, in some cases, even condo unit owners, to obtain needed repairs in their apartments. This blog is a general introduction to this effective tool. In future blogs, I will address HP actions from the various perspectives of tenants, tenants associations, shareholders and condo unit owners.)

HP actions are relatively inexpensive and get the parties into court much faster than conventional litigation does. While you do now have to retain an attorney to bring an HP action, you may need one if expert witnesses testify on your behalf or if your case is complicated. Whether you retain an attorney or not, be assured that once the relevant parties are forced into a courtroom, repairs often get done!

To begin, you simply go to the window of the Landlord/Tenant division of the Civil Court clerk's office where your apartment is located and ask for HP forms. Although not all cases require an inspection (where, for example, you have other ample proof of a condition) in most cases you will fill out a form listing the conditions so that an inspector from the Department of Housing Preservation and Development (DHPD) http://www.nyc.gov/html/hpd/html/home/home.shtml will inspect the premises. The inspector will issue a violation if found, which will be categorized as immediately hazardous, hazardous or non hazardous. The category of violation includes a deadline by which the owner must make the repair. If the inspector finds there is no violation, he or she will report "NVR"-no violation reported.

The landlord/building/management/board is served with the HP forms by mail as the HP clerk directs. Sending these papers will officially put the landlord on notice that you filed a complaint. Do not be surprised if the landlord suddenly tries to fix the problem before the inspector arrives to avoid a violation being issued. You should always let your landlord make repairs.

Next, the parties go to court. The parties are you and the landlord. DHPD is also a party to an HP case because DHPD is the city agency in charge of overseeing the repair of housing code violations to preserve the housing stock in New York City.

When you go to court, the clerk will give you the results of the inspection and generally, the landlord will consent to fix outstanding housing code violations within the legal time frame dictated by law: 24 hours for immediately hazardous "C" violations, 30 days for hazardous "B" violations and 90 days for non hazardous "A" violations.

Landlords will often ask for more time to make repairs so often these time frames are extended, however, those extensions are memorialized in a court order. If the landlord fails to comply with the stipulation you can return to court to seek contempt of the court order. An order finding contempt of court could result in civil and criminal penalties, even jail for the landlord. Landlords rarely get thrown in jail for failure to make repairs, but they do get fined for non compliance. Those fines go to the City, not the tenants.

From start to finish, an HP action can get you results within months-- a much shorter time frame than most litigation-which is appropriate considering the urgency of needed repairs.

In my next blog on HP actions, I will discuss some of the issues rent regulated tenants face in coop buildings to obtain repairs and by using the HP action effectively. Do tenants in coops report problems to the superintendent? To the owner of the shares for the apartment? To the Board of the coop? Details to follow!

Elizabeth Donoghue

Due Diligence When Purchasing A Cooperative or Condominium Apartment

2012-01-11T14:42:33Z

When I represent a client who is purchasing a co-op or condo apartment, it is important to look into the finances of the Co-operative or Condominium. A co-op or condo owner does not just own their own apartment. The owner owns a part of the cooperative or the condominium. The financial health of the cooperative or condominium has a direct effect on the apartment owner. Whether the building's mortgage is due to be re-financed or a real estate tax abatement is about to expire are factors that would have an effect on the common charges or maintenance the owner is obligated to pay.

Similarly, if the capital reserve fund is inadequate to pay for a planned building wide repair and improvement project, there would probably be assessments imposed against each of the owners; the assessments would, of course, drive up the costs of ownership and adversely affect the value of the apartment.

This type of inquiry, called "due diligence" is important for the would-be purchaser so that the risks of ownership are understood and evaluated before the purchase is completed.

Kevin R. McConnell

Succession Rights: A Harsh New Landscape For Tenants And Their Families-Part I

2011-12-30T18:38:52Z

Over the years, I have successfully represented many clients in succession cases. In the past, succession rights cases were straightforward and simple. Generally, a practitioner would look at three (3) factors: (a) first, the date the tenant of record left or vacated the premises; (b) second, whether the person asserting succession rights and the tenant of record had a close traditional or "Braschi¹" family relationship; and (c) third, whether the putative successor resided with the tenant of record for at least two years prior to the date the latter left or vacated. Succession was almost guaranteed to a remainder family member who could prove these three factors.

Lately, I have on too many occasions had the unenviable task of having to convince my clients that the landscape has dramatically changed. The most difficult and heart-wrenching succession cases involve clients who were born or raised in the apartment, and never left; whose parents are the tenant of record, but moved out gradually over the years rather than abruptly or suddenly; and who continue to maintain a close and supporting relationship with their parents.

How did the Rent Stabilization or Rent Control Laws - the primary purpose of which is to prevent disruptive practices, dislocation, uncertainty, exactions and oppressive rents - come to permit the eviction of such persons from their home. What changed? What common mistakes tenants and their families make in these types of cases? What can they do to ensure that they are not victim of this changing landscape?

In this and other blogs, I will attempt to answer these questions. First, we should look at a recent reported case, which illustrates the contours of this new landscape. The facts and procedural posture in Malone v Sapinsky, 2011 NY Slip Op 51044(U), 31 Misc 3d 1239(A), decided on June 13, 2011, are straightforward. Petitioner-Landlord commenced the case, alleging that Joseph Sapinsky (the tenant of record) was not using the apartment as his primary residence. The tenant of record and his daughter appeared and raised two defenses: first, that petitioner-landlord had accepted rent after service of the predicate notice, and therefore could not maintain the proceeding; and second, that the daughter had succession rights should the Court find that the tenant of record was no longer primarily residing in the apartment.

As ordinarily happens in this type of cases, the proceeding was marked off the calendar for discovery. The record reveals that the tenant of record was not deposed because he suffers from dementia. The daughter however was deposed. After discovery, petitioner moved for summary for judgment.

Judge David Kaplan found a number of facts to be undisputed. First, the Court found that the tenant of record stopped primarily residing in the apartment since 2003, although he continued to periodically use the apartment over the next couple of years. Second, the Court also found that 2004 through 2008, the petitioner-landlord offered the tenant of record on three (3) separate occasions lease renewals. In each of those three occasions, the daughter failed to assert her succession rights, and instead brought the offers to her father, who signed and returned them to Petitioner-Landlord. Third, the Court also found that the tenant of record continued to pay the rent each month in his own name, drawn from an account with the subject premises listed as the address.

Judge Kaplan found that under these undisputed facts, "the daughter waived her right to assert her succession claim." The Court reasoned that "In instances where the tenant of record and the potential successor tenant distort the fact that the tenant has vacated the premises by continuing to pay the monthly rent and executing renewal leases in the tenant of record's name, then the permanent vacatur date is generally defined as the date the last renewal lease expired". Thus, the Court found that earliest date that the tenant of record could have been deemed to have permanently vacated the subject premises for purposes of a succession claim is July 2010 when the last renewal lease expired". The Court concluded that since during the immediate preceding two-year period there was no showing that the tenant of record lived with his daughter in the premises, summary judgment in favor of the landlord and against the tenant of record and his daughter was appropriate. Lastly, the Court announced this guiding principle : "

The Petitioner-landlord was awarded a final judgment of possession; the warrant of eviction was issued forthwith, but stayed through August 31, 2011. The tenant of record and his daughter were required to pay ongoing use and occupancy without prejudice to the Petitioner-Landlord's right to request market rate use and occupancy. The matter was further restored to the calendar for a hearing to determine the reasonable amount of attorneys' fees Petitioner-Landlord incurred in the proceeding and was entitled to recover from the tenant of record and the daughter.

NEXT: WHAT HAPPENED? HOW COULD THE TENANT AND HIS DAUGHTER LOSE SO BADLY? WHAT COULD THEY HAVE DONE DIFFERENTLY? WHAT ARE THE NEW FACTORS TENANTS MUST PROVE TO PREVAIL IN SUCCESSION CASES?

Serge Joseph

¹ In Braschi v Stahl Associates Co., 74 NY2d 201, 544 NYS2d 784, 543 NE2d 49 (1989) the Court of Appeals expanded the concept of family to include a homosexual couple for the purpose of succession rights to a Rent Controlled apartment.

Welcome to our New York City landlord-tenant law blog

2011-12-30T18:36:42Z

We established this blog to share stories and information about topics relevant to our practice. Our intent is to highlight local stories, as well as national subject matter, that we think you will find interesting. We will regularly update this blog and encourage you to share your thoughts on these posts.

COLLYERS SYNDROME (EXTREME HOARDING)

2011-12-30T18:22:50Z

Cluttering, hoarding, accumulated "stuff" piled high and wide, a condition referred to as a Collyers syndrome (see E.L. Doctorow, Homer and Langley and reality show Hoarders), is the basis for a nuisance eviction case brought routinely by landlords.

Extreme hoarding involves the unwillingness or inability to part with items that would usually be discarded-old newspapers, magazines, plastic bags. I have also seen piles of old bicycle parts, rope, wire and wood scraps. These undifferentiated piles, sometimes head high, turn apartments into caves, dark and infested with small paths separating rooms. Often rooms are totally cut off from the rest of the apartment, back bedrooms or kitchens being sealed shut with wall to wall, floor to ceiling stuff.

The good news is that these cases almost never result in an eviction if the tenant commits to and actually clears out the clutter. My representation always starts with a visit to the apartment so an attorney, not the tenant, determines what has to be done. Most times it is professional clean-up companies that get the job and depending on the severity, can cost several thousands of dollars.

As long as the process of cleaning begins and a completion date is in sight Judges will afford the time required to get the job done.

I have "lost" only one Collyers case. A client in the Bronx refused to un-clutter because, as he said: "no one can tell me what to do in my apartment". He was evicted!

Most clients say the clean-up changed their lives for the better. Isolation, shame and depression also went out the door with the stuff.

William J. Gribben

Payment of Attorneys' Fees by the Losing Party in a Landlord-Tenant Case

2011-12-30T18:18:41Z

The general rule in American courts (the so-called "American rule") is that each party to a lawsuit bears his/her own legal expenses. Landlord-tenant litigation is sometimes an exception to that rule. Tenants who would like to know whether they may have to pay the landlord's legal fees, or if the landlord may have to pay the tenant's legal fees, will need to review the lease. In the case of a rent stabilized tenant, the lease the tenant must examine will be the original lease; this is because under rent stabilization, a lease is renewed on the same terms and conditions as the original lease. In the case of a market tenant, the tenant must examine the current lease, or if there is no current lease, the most recent lease. If there has never been any lease, then there is no right to attorneys' fees for either the landlord or the tenant (but see the exceptions discussed below).

Many (if not most) leases have so-called attorneys' fees provision. However, these clauses can be worded differently. A typical attorneys' fees provision in a lease will state that the landlord may recover attorneys' fees incurred as the result of the failure of the tenant to perform any covenant or agreement contained in the lease, or that legal fees paid by the landlord shall be paid by the tenant as additional rent. The Courts may enforce these provisions by ordering the tenant to pay the landlord's legal fees, especially in a case where the tenant has not asserted any valid defense, or where the Court has fully reviewed the evidence and decided against the tenant. A rent stabilized tenant may be ordered to pay the landlord's legal fees; however, the fees can't be collected as "additional rent" no matter what the lease says; the landlord may only recover fees from a stabilized tenant as a monetary judgment.

Some leases, especially older apartment leases, have differently-worded attorneys' fees provisions, and the Courts are divided as to whether these provisions are enforceable. For example, a lease provision that states the landlord who incurs legal fees in "re-renting" the apartment may recover the fees, may or may not be enforceable, depending on the particular Court's review of the entire lease, as well as that Court's interpretation of the law.

Under New York Law, specifically Real Property Law Section 234, where a residential lease has an attorneys' fees provision containing the language referred to above, there shall be implied in the lease a covenant by the landlord to pay attorneys' fees to the tenant incurred by the failure of the landlord to perform any covenant under the lease, or in the successful defense of any lawsuit brought by the landlord against the tenant arising under the lease. This statutory provision is designed to "level the playing field" so that landlords will be deterred from commencing and pursuing litigation that they know to be without merit.

Typically, a tenant who believes he or she is entitled to an award of attorneys' fees under the lease and the law must obtain a court ruling after the case has been completely litigated and resolved in the tenant's favor. That is, the tenant must be the "prevailing party" to the litigation. A tenant is usually not considered the prevailing party if the lawsuit is settled by stipulation. Where the dispute is partially won by the tenant, and partially won by the landlord, the Court will decide if the tenant is the prevailing party.

Also, the Court will sometimes order the landlord to pay the tenant's attorneys fees in other situations. For example, if a landlord brings a holdover proceeding alleging that the tenant is not a primary resident of the apartment, then spends several months conducting discovery before deciding not to take the case to trial, the Court may order the landlord to pay the tenant's fees as a condition for dropping ("discontinuing") the case. A landlord also can be ordered to pay the tenant's fees if a valid sublet request is unreasonably rejected, or if the landlord is found to have willfully overcharged a rent stabilized tenant.

Finally, a Court may order the losing party in a landlord-tenant case to pay the winning party's attorneys' fees if the Court finds that the losing party or the losing party's attorney engaged in "frivolous conduct," which is defined as taking a position that is completely without merit in law, or is undertaken primarily to delay the lawsuit or to harass or maliciously injure someone, or if false factual statements are made.

Ronald S. Languedoc

Don't Rent Out Your Rent-Stabilized Apartment

2011-12-30T18:15:02Z

Tenants suffering hard economic times have taken to renting their apartments for short term overnight or weekend stays, only to discover-often when it's too late-that renting out some or all of a rent regulated apartment is not permitted under the Rent Stabilization Code. In fact, tenants can face eviction for commercializing and converting their apartments into profit-making hotel enterprises.

Landlords easily find out about short term rentals online. Landlords regularly peruse advertisements and see nightly rates and photographs of amenities; they even read reviews by those who have stayed. Once a short term rental is confirmed, a landlord can commence a holdover proceeding against the tenant for wrongful conduct. A tenant can be charged with unlawful rent overcharge and profiteering, causing his or her tenancy to be terminated, without a right to cure the violation.

Even if the hotel enterprise business is thriving in New York, it is unwise to convert your apartment into a short term hotel. You could lose your rent regulated apartment, which is a precious commodity in this day and age.

Elizabeth Donoghue

Court of Appeals to Hear MCI Case

2011-12-30T18:12:01Z

On January 3, 2012, the New York State Court of Appeals will hear argument in the Terrace Court LLC v. DHCR v. Katel, et. al. case. In that case the New York State Division of Housing and Community Renewal ("DHCR") ruled that, after a façade MCI, apartments still experiencing leaks were permanently exempt from the MCI rent increase. The Supreme Court and the Appellate Division affirmed, agreeing with the DHCR and the tenants. The landlord is arguing that such exemptions can never be permanent but that landlords should always be given another chance to complete the work long after the MCI application has been filed. I drafted an amicus brief in the case on behalf of the New York State Tenants & Neighbors Coalition and Metropolitan Council on Housing. I argued that if a facade MCI is not completed when the application is filed that not only should tenants whose apartments still experience leaks be permanently exempt but that no tenant should have to pay the MCI rent increase.

David Hershey-Webb

Major Capital Improvements - #1

2011-12-30T17:59:51Z

Tenants in rent stabilized and rent controlled apartments are subject to "Major Capital Improvement" ("MCI") rent increases when an owner undertakes certain building-wide improvements such as replacing a roof, a boiler, installing new windows. I've worked with thousands of tenants over the years to successfully fight these rent increases. In challenging an MCI rent increase it helps to have a strong Tenants Association. In most cases the Tenants Association will want to retain both an attorney and an engineer. The primary grounds of defeating or reducing an MCI increase are: the work was not completed or was "unworkmanlike" (substandard), the MCI application was not filed within 2-years of the completion of the work, the item replaced had not exceeded its "useful life," the item was not a "building-wide" improvement.

In a recent case the tenants defeated a roof MCI where there were leaks into several top floor apartments. In another building an elevator MCI was defeated when I discovered, after careful review of the application, that it had not been filed within 2-years of completion of the work.

David Hershey-Webb