Landlord & Tenant

AppDiv, Second Dept

(Opinion by Howard Miller, J.)

The Division of Human Rights brought this proceeding to enforce its award of money damages against a landlord for engaging in same-sex sexual harassment of a tenant. Upon Supreme Court's transfer of the proceeding, the Appellate Division granted the petition for enforcement, and confirmed the Division's award.

Tenant signed a one-year lease, beginning in July 200, for a ground-floor apartment in landlord's building. Landlord lived on the fourth floor. On Dec. 19, 2001, tenant brought a complaint to the Division of Human Rights alleging that landlord had made sexually offensive comments and gestures to tenant and tenant's guests, spied on tenant through an apartment widow, took photographs of tenant and his friends as they left the apartment, and told one of tenant's friends that he was interested in a sexual relationship with tenant. Based on tenant's testimony to these facts, the Division's administrative law judge (ALJ) made a finding that landlord had discriminated against tenant because of his gender in violation of the Human Rights Law. The ALJ recommended an award of $7500 in compensatory damages. When confronted with the ALJ's recommended findings, landlord filed objections, contending that tenant was a flagrant exhibitionist who en-gaged in sexual activity in full view of passersby on the street. Landlord denied any sexual interest in tenant, and denied all of tenant's allegations. The Commissioner concluded that landlord's behavior had affected tenant's right to enjoy his home, and had caused mental anguish. The Commissioner awarded $10,000 in compensatory damages. Landlord never paid, leading DHCR to bring this enforcement proceeding.

In confirming DHCR's award, the court first noted judicial holdings that Executive Law section 296(1)(1), like its analogue, title VII of the federal Civil Rights Act, prohibits both opposite-sex and same-sex sexual harassment in the workplace. The court noted, however, that to date, no case has determined whether section 296(5) prohibits same-sex harassment in the context of rental of housing accommodations. The court then transplanted the analysis from the employment context and concluded that same-sex harassment constituted prohibited sexual discrimination. The court then upheld the $10,000 award as 'entirely proper.'

DHCR Lacks Authority to Waive Rent Arrears in Unsuccessful Fair Market Rent Appeal

In re IG Second Generation Partners, L.P. v. DHCR

NYLJ 12/5/06, p. 31, col. 6

AppDiv, First Dept

4-1 decision; memorandum opinion; dissenting memorandum by Mazzarelli, J.)

In landlord's article 78 proceeding challenging DHCR's determination to cancel rent arrears owed by tenant after dismissal of tenant's fair market rent appeal, DHCR appealed from Supreme Court's judgment annulling DHCR's determination. The Appellate Division affirmed, holding that DHCR had no authority to waive the rent arrears once it found that the lease rent did not exceed fair market value.

Tenant rented the subject apartment for $830 per month. Sixteen years ago, she brought a fair market rent appeal. Five years later, DHCR's rent administrator reduced the rent to $556.82 per month, and ordered landlord to refund the overcharges. The owner filed a petition for administrative review (PAR), which stayed the order directing a refund, but tenant began paying the lower rent. While the PAR was pending, the legislature enacted the Rent Regulation Reform Act of 1997, which changed the comparability requirement for fair market rent appeals. Applying the new statute, DHCR granted landlord's PAR in 2000, concluding that the legal rent in 1990 was $798.07. Tenant brought an article 78 proceeding challenging that determination, which resulted in a remand to DHCR to reconsider. Meanwhile, the legislature again amended the comparability standards, making them still less restrictive. DHCR applied the new standards on the remitted application, and concluded that the fair market rent in 1990 was $1,078.30. DHCR dismissed tenant's fair market rent appeal. At the same time, DHCR concluded that tenant would face undue hardship if required to pay rent arrears from 1995 to 2004. As a result, DHCR concluded that tenant's obligation to pay rents based on its new determination would be prospective only. Landlord then brought this article 78 proceeding, and Supreme Court granted the petition, remanding to DHCR for a computation of the amount of arrearage and for settling terms of repayment.

In affirming, the Appellate Division majority concluded that no regulations empower DHCR to excuse rent arrearages. Although DHCR had invoked a hardship provision in the Rent Stabilization Code (' 2527.7), the majority held that the mere fact that tenant owes landlord more money as a result of DHCR's determination does not constitute hardship. The court noted the absence of other evidence of hardship, and emphasized that tenant could have escrowed the amount in dispute pending final resolution of the dispute.

Justice Mazzarelli, dissenting, argued that DHCR's interpretation of its regulations was entitled to deference, and concluded that DHCR was entitled to conclude that retroactive application of its order would constitute undue hardship. She emphasized that tenant had not had the opportunity to produce evidence of hardship before DHCR, and emphasized that landlord's victory before DHCR had been the product of a series of legislative amendments, not the facts of the particular case.

Human Rights Law Bars Same-Sex Harassment of Tenant

Matter of State Division of Human Rights v. Stoute

NYLJ 12/8/06, p. 22, col. 1

AppDiv, Second Dept

(Opinion by Howard Miller, J.)

The Division of Human Rights brought this proceeding to enforce its award of money damages against a landlord for engaging in same-sex sexual harassment of a tenant. Upon Supreme Court's transfer of the proceeding, the Appellate Division granted the petition for enforcement, and confirmed the Division's award.

Tenant signed a one-year lease, beginning in July 200, for a ground-floor apartment in landlord's building. Landlord lived on the fourth floor. On Dec. 19, 2001, tenant brought a complaint to the Division of Human Rights alleging that landlord had made sexually offensive comments and gestures to tenant and tenant's guests, spied on tenant through an apartment widow, took photographs of tenant and his friends as they left the apartment, and told one of tenant's friends that he was interested in a sexual relationship with tenant. Based on tenant's testimony to these facts, the Division's administrative law judge (ALJ) made a finding that landlord had discriminated against tenant because of his gender in violation of the Human Rights Law. The ALJ recommended an award of $7500 in compensatory damages. When confronted with the ALJ's recommended findings, landlord filed objections, contending that tenant was a flagrant exhibitionist who en-gaged in sexual activity in full view of passersby on the street. Landlord denied any sexual interest in tenant, and denied all of tenant's allegations. The Commissioner concluded that landlord's behavior had affected tenant's right to enjoy his home, and had caused mental anguish. The Commissioner awarded $10,000 in compensatory damages. Landlord never paid, leading DHCR to bring this enforcement proceeding.

In confirming DHCR's award, the court first noted judicial holdings that Executive Law section 296(1)(1), like its analogue, title VII of the federal Civil Rights Act, prohibits both opposite-sex and same-sex sexual harassment in the workplace. The court noted, however, that to date, no case has determined whether section 296(5) prohibits same-sex harassment in the context of rental of housing accommodations. The court then transplanted the analysis from the employment context and concluded that same-sex harassment constituted prohibited sexual discrimination. The court then upheld the $10,000 award as 'entirely proper.'

DHCR Lacks Authority to Waive Rent Arrears in Unsuccessful Fair Market Rent Appeal

In re IG Second Generation Partners, L.P. v. DHCR

NYLJ 12/5/06, p. 31, col. 6

AppDiv, First Dept

4-1 decision; memorandum opinion; dissenting memorandum by Mazzarelli, J.)

In landlord's article 78 proceeding challenging DHCR's determination to cancel rent arrears owed by tenant after dismissal of tenant's fair market rent appeal, DHCR appealed from Supreme Court's judgment annulling DHCR's determination. The Appellate Division affirmed, holding that DHCR had no authority to waive the rent arrears once it found that the lease rent did not exceed fair market value.

Tenant rented the subject apartment for $830 per month. Sixteen years ago, she brought a fair market rent appeal. Five years later, DHCR's rent administrator reduced the rent to $556.82 per month, and ordered landlord to refund the overcharges. The owner filed a petition for administrative review (PAR), which stayed the order directing a refund, but tenant began paying the lower rent. While the PAR was pending, the legislature enacted the Rent Regulation Reform Act of 1997, which changed the comparability requirement for fair market rent appeals. Applying the new statute, DHCR granted landlord's PAR in 2000, concluding that the legal rent in 1990 was $798.07. Tenant brought an article 78 proceeding challenging that determination, which resulted in a remand to DHCR to reconsider. Meanwhile, the legislature again amended the comparability standards, making them still less restrictive. DHCR applied the new standards on the remitted application, and concluded that the fair market rent in 1990 was $1,078.30. DHCR dismissed tenant's fair market rent appeal. At the same time, DHCR concluded that tenant would face undue hardship if required to pay rent arrears from 1995 to 2004. As a result, DHCR concluded that tenant's obligation to pay rents based on its new determination would be prospective only. Landlord then brought this article 78 proceeding, and Supreme Court granted the petition, remanding to DHCR for a computation of the amount of arrearage and for settling terms of repayment.

In affirming, the Appellate Division majority concluded that no regulations empower DHCR to excuse rent arrearages. Although DHCR had invoked a hardship provision in the Rent Stabilization Code (' 2527.7), the majority held that the mere fact that tenant owes landlord more money as a result of DHCR's determination does not constitute hardship. The court noted the absence of other evidence of hardship, and emphasized that tenant could have escrowed the amount in dispute pending final resolution of the dispute.

Justice Mazzarelli, dissenting, argued that DHCR's interpretation of its regulations was entitled to deference, and concluded that DHCR was entitled to conclude that retroactive application of its order would constitute undue hardship. She emphasized that tenant had not had the opportunity to produce evidence of hardship before DHCR, and emphasized that landlord's victory before DHCR had been the product of a series of legislative amendments, not the facts of the particular case.