Landlord & Tenant

Supreme Ct., N.Y. Cty.

(Lobis, J.)

In an article 78 proceeding, landlord sought to compel DHCR to issue an order deregulating a rent-stabilized apartment. The court denied the petition, holding that DHCR's failure to request income information from the tenant in a timely fashion should not now prejudice tenant.

Landlord brought a high-income deregulation proceeding in 2004, contending that in the two preceding years, tenant and his roommate earned actual incomes in excess of $175,000. Tenant responded by admitting that the roommate occupied the apartment as a primary residence, but subsequently denied that the roommate had occupied the apartment as a primary residence in the requisite two-year period. Although the district rent administrator determined that the apartment was not the roommate's primary residence, DHCR reversed that determination and remanded for the purpose of determining the roommate's income. In 2006, the parties were notified that the DHCR petition would be opened and that tenant would be required to provide documentation to the state Department of Taxation and Finance. No such request was ever issued. Meanwhile, tenant and the roommate unsuccessfully challenged DHCR's authority to seek tax statements. That litigation did not end until 2010. In 2011, DHCR again sought tax information from the roommate, but the roommate has not yet responded. Landlord then brought this proceeding to compel DHCR to issue an order on the original deregulation petition.

In denying landlord's petition, the court rejected landlord's argument that DHCR was statutorily required to render a decision by December 2006. The court acknowledged that DHCR should have requested income information from the roommate in 2006, but held that the tenant and the roommate should not be prejudiced by DHCR's inaction. Because DHCR did not request the information until 2011, DHCR is not required to issue an order of deregulation until Dec. 1, 2011. As a result, a writ of mandamus does not lie against DHCR, requiring dismissal of the proceeding.

Identification of Known Occupants As John and Jane Doe Requires Vacatur of Judgment of Possession

K.C. RR Reo II, LLC v. Omeje

NYLJ 10/28/11, p. 23, col. 3

AppTerm, 2nd, 11th and 13th Districts

(memorandum opinion)

In landlord's summary holdover proceeding, occupant of the apartment appealed from Civil Court's denial of this motion to vacate the judgment awarding possession to landlord and to vacate the warrant executed against him. The Appellate Term reversed and vacated the judgment and the warrant, holding that the occupant had established that landlord had not made adequate efforts to identify occupants of the apartment, and that occupant's failure to record the deed allegedly giving him title to the apartment did not preclude his claim.

The subject building had been converted from commercial to residential use before landlord acquired title. After landlord acquired title, landlord brought his summary holdover proceeding against Theresa Omeje, occupant's daughter, and “John Doe” and “Jane Doe,” undertenants. Theresa was personally served, and stipulated to a judgment of possession against her. In the stipulation, she represented that no one resided in the subject apartment. After an inquest, a judgment was also entered, on the same day, against John Doe and Jane Doe. When Patrick Omeje, Theresa's father, was evicted, he moved to vacate the warrant of eviction, and to be restored to possession, relying on a deed by landlord's predecessor that had allegedly conveyed a life estate in the premises to him. Civil Court denied the motion, relying on Patrick's failure to record the alleged deed, and on Theresa's stipulation that no one occupied the premises.

In reversing, the Appellate Term first noted that CPLR 1024 requires a landlord who seeks to evict “John Doe” to demonstrate that he or she made timely efforts to identify the correct occupant. Here, because the occupant had demonstrated some evidence of his occupancy (a driver's license and a cable bill), and because landlord had not responded to his claim of defective service, the judgment of eviction and the warrant should have been vacated. With respect to Patrick's claim to be restored to the premises, the court remitted to Civil Court for a hearing. The court noted that the recording act would not bar occupant's claim if Patrick was in possession of the premises at the time the landlord acquired title, and therefore held that Patrick was entitled to a hearing on his claim of title.

COMMENT

Pursuant to CPLR '1024 “[a] party who is ignorant ' of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his name and identity as is known.” Although the statute, by its terms, applies to all cases in which the landlord does not know the actual name of the inhabitant, the courts have interpreted the statute to impose an obligation to investigate, and will almost invariably dismiss the landlord's petition when an inhabitant objects to the “John Doe” designation.

When facts reveal that the landlord had actual knowledge of the inhabitant's identity, CPLR ' 1024 does not authorize landlord to use a “John Doe” designation. For example, in George Tut & Co. v. Doe, 20 Misc.3d 815, the Kings County Civil Court dismissed the landlord's petition, even though the landlord attempted to identify the inhabitant by adding (daughter of Ahmed Zokari) to “Jane Doe” because in a letter to his attorney the landlord used the actual name of the inhabitant, while claiming to the court that he was never provided with the proof of the inhabitant's name. The court held that the use of the fictitious name was not authorized by ' 1024 under such circumstances, and called the landlord's assertion “disingenuous” and the letter “a death knell to his application.” Even in cases where the landlord's petition is not tainted by evidence of actual knowledge, the courts will almost invariably hold that the landlord failed to make a diligent effort to learn the actual names of inhabitants. For instance, in Deutsche Bank Nat. Trust Co. v. Turner, 32 Misc.3d 1202(A), Bronx Civil Court dismissed the landlord's petition because there was no evidence or testimony that the landlord made any effort to learn the actual name of the inhabitant. The court suggested that in a two-family house knocking on the door of the apartment, checking the names on the mailboxes, or asking the prior owners whether anyone else resided in the building could easily generate the identities of the inhabitants. Since the landlord failed to take any of these steps before initiating the proceedings against “John Doe,” the court dismissed the petition as fatally defective.

On the other hand, when the inhabitant's name appears within the petition, reference in the caption to “John Doe” is not fatal to the proceeding. In Teachers College v. Wolterding, 77 Misc.2d 81, the Appellate Term held that the landlord could amend the caption nunc pro tunc because the inhabitant's name appeared in the body of the petition, he was personally served by a process server, and subsequently he appeared for the hearing. Subsequent cases have interpreted Teacher's College narrowly. For instance, in Capital Resources Corp. v. Doe, 154 Misc.2d 864, the court held Teachers College inapplicable because the name of the occupant was absent from both the caption and the body of the petition, while in George Tut & Co. v. Doe, the court distinguished Teacher's College based on the fact that landlord had actual knowledge of the inhabitant's identity, and had nevertheless failed to serve the inhabitant personally.

In Teacher's College, the Appellate Term also emphasized that the occupant in question was an undertenant, and was not, therefore, a necessary party to a summary proceeding. However, a subsequent case indicates that a court should dismiss even a petition against a subtenant when landlord uses a “John Doe” designation to proceed against a subtenant whose identity he knows. In Triborough Bridge and Tunnel Authority v. Wimpfheimer, 165 Misc.2d 584, the Appellate Term upheld the trial court's ruling that commercial subtenants were not necessary parties, but nonetheless dismissed the landlord's petition as to the subtenants designated as “John Doe” because the landlord had actual knowledge of the subtenants' identities prior to the commencement of proceedings.

Supreme Court Constitutes Proper Forum for Nuisance Claim Against Tenant

Chelsea 18 Partners LP v. Mak

NYLJ 11/4/11

AppDiv, First Dept.

(Opinion by Catterson, J.)

In landlord's common law nuisance action against tenants, landlord appealed from Supreme Court's dismissal of the complaint. The Appellate Division reversed, holding that Supreme Court was a proper forum for the nuisance claim.

Landlord owns a 26-unit apartment building. Tenants, parents and their son, collectively occupy two rent-controlled apartments in the building. In the past, landlord has brought several actions against tenant in the Housing Part of Civil Court, alleging nonpayment of rent, refusal of access, and harassment of other tenants. In June 2010, landlord served tenants with notices of termination, and then brought this action in Supreme Court, alleging common law nuisance and seeking possession and/or money damages. Landlord alleged that tenant had illegally altered plumbing in both apartments (switching the position of the sink and tub), added electrical outlets, switches and fixtures creating a hazardous electrical condition, and then complained to the Department of Buildings (DOB) that the plumbing and electricity in the apartments were inadequate. Landlord also alleged that tenants refused access to the apartments, making it impossible for landlord to cure the violations, and then applied for rent reductions based on the conditions they refused to permit landlord to correct. Over a three-year period, tenants procured 76 housing violations against landlord; none were lodged concerning any other tenancies in the building. Landlord also alleged that tenants sought to “extort” extra work from landlord in return for providing access, and alleged that tenants verbally and physically abused landlord's workers, and filed a baseless noise complaint against the only commercial tenant in the building. Despite these allegations, Supreme Court granted tenant's motion to dismiss the complaint, holding that landlord had disguised a summary proceeding as a plenary action, and concluding that Civil Court was the proper forum for the action.

In reversing, the Appellate Division started by noting that Supreme Court has unlimited general jurisdiction over all real property actions, including those brought by a landlord against a tenant. The court acknowledged that Supreme Court may, in its discretion, decline to review an action on the ground that the case belongs in Civil Court, but the court held that on the facts of this case, Supreme Court improvidently exercised that discretion. In particular, the Appellate Division held that Supreme Court had not understood that the thrust of the action was a common-law claim for private nuisance. Accepting all of landlord's allegations as true, the complaint adequately pleaded a pattern of recurring objectionable conduct, makings dismissal of the complaint inappropriate.

COMMENT

Since the 1982 enactment of RPAPL ' 753(4), there has been little reason for Supreme Court to retain jurisdiction over a housing dispute. Before RPAPL ' 753(4), if landlord served a notice to cure a lease violation, Civil Court could not provide tenant with time to cure after tenant unsuccessfully challenged landlord's claim that tenant had breached. Once landlord brought a holdover proceeding in Civil Court, the lease would have expired by virtue of landlord's notice of termination, and Civil Court lacked authority to reinstate a lease. To preserve the right to challenge landlord's claim without risking forfeiture of the tenancy, a tenant would seek a Yellowstone injunction in Supreme Court to toll the cure period and therefore prevent expiration of the lease. RPAPL ' 753(4) makes Yellowstone relief unnecessary by giving Civil Court statutory authority to stay eviction until after adjudication, as well as mandating a 10-day cure period when breach has been found. In Post v. 120 East End Ave. Corp., 62 N.Y.2d 19, decided shortly after enactment of RPAPL ' 753(4), the Court of Appeals held that tenant was not entitled to injunctive relief in Supreme Court because RPAPL ' 753(4)'s mandatory stay and 10-day cure period rendered a Yellowstone injunction unnecessary to protect the tenant. The court explained that the new statute would allow both sides adequate relief in one proceeding rather than forcing tenants to file in Supreme Court for injunction while landlords file in Civil Court for eviction.

Although Supreme Court retains general jurisdiction to hear any dispute, in all but the rarest cases, it will dismiss a housing dispute because Civil Court can provide adequate relief. For instance, in Cox v. J.D. Realty Associates, 217 A.D.2d 179, the court held that tenant's Supreme Court action for a declaratory judgment should be dismissed without prejudice to be adjudicated in Civil Court. Tenant had sought a declaration that landlord could not evict on the grounds that the apartment was not used as a primary residence. Before the enactment of RPAPL 753(4), Supreme Court would have maintained jurisdiction as the only forum in which the tenant could have been protected from pre-adjudication eviction. In dismissing the action, the court stated that housing matters are more desirably brought in Civil Court.

Although the Chelsea 18 court purports to distinguish the nuisance claim brought in Supreme Court from nuisance claims better adjudicated in Civil Court, it is not clear what exactly the distinction is. Chelsea 18 arose out of a notice of termination served to tenants pursuant to Administrative Code ' 26-408, which does not distinguish between public and private nuisance, merely stating that committing or permitting nuisance is grounds for eviction. The court, however, places importance on the private nuisance claim in determining that Supreme Court is the proper forum without addressing that other cases arising out of ' 26-408 or similar statutes are adjudicated in Civil Court.

DHCR's Failure to Request Income Information Should Not Prejudice Tenant

Application of East 77th Realty, LLC v. DHCR

NYLJ 10/26/11

Supreme Ct., N.Y. Cty.

(Lobis, J.)

In an article 78 proceeding, landlord sought to compel DHCR to issue an order deregulating a rent-stabilized apartment. The court denied the petition, holding that DHCR's failure to request income information from the tenant in a timely fashion should not now prejudice tenant.

Landlord brought a high-income deregulation proceeding in 2004, contending that in the two preceding years, tenant and his roommate earned actual incomes in excess of $175,000. Tenant responded by admitting that the roommate occupied the apartment as a primary residence, but subsequently denied that the roommate had occupied the apartment as a primary residence in the requisite two-year period. Although the district rent administrator determined that the apartment was not the roommate's primary residence, DHCR reversed that determination and remanded for the purpose of determining the roommate's income. In 2006, the parties were notified that the DHCR petition would be opened and that tenant would be required to provide documentation to the state Department of Taxation and Finance. No such request was ever issued. Meanwhile, tenant and the roommate unsuccessfully challenged DHCR's authority to seek tax statements. That litigation did not end until 2010. In 2011, DHCR again sought tax information from the roommate, but the roommate has not yet responded. Landlord then brought this proceeding to compel DHCR to issue an order on the original deregulation petition.

In denying landlord's petition, the court rejected landlord's argument that DHCR was statutorily required to render a decision by December 2006. The court acknowledged that DHCR should have requested income information from the roommate in 2006, but held that the tenant and the roommate should not be prejudiced by DHCR's inaction. Because DHCR did not request the information until 2011, DHCR is not required to issue an order of deregulation until Dec. 1, 2011. As a result, a writ of mandamus does not lie against DHCR, requiring dismissal of the proceeding.

Identification of Known Occupants As John and Jane Doe Requires Vacatur of Judgment of Possession

K.C. RR Reo II, LLC v. Omeje

NYLJ 10/28/11, p. 23, col. 3

AppTerm, 2nd, 11th and 13th Districts

(memorandum opinion)

In landlord's summary holdover proceeding, occupant of the apartment appealed from Civil Court's denial of this motion to vacate the judgment awarding possession to landlord and to vacate the warrant executed against him. The Appellate Term reversed and vacated the judgment and the warrant, holding that the occupant had established that landlord had not made adequate efforts to identify occupants of the apartment, and that occupant's failure to record the deed allegedly giving him title to the apartment did not preclude his claim.

The subject building had been converted from commercial to residential use before landlord acquired title. After landlord acquired title, landlord brought his summary holdover proceeding against Theresa Omeje, occupant's daughter, and “John Doe” and “Jane Doe,” undertenants. Theresa was personally served, and stipulated to a judgment of possession against her. In the stipulation, she represented that no one resided in the subject apartment. After an inquest, a judgment was also entered, on the same day, against John Doe and Jane Doe. When Patrick Omeje, Theresa's father, was evicted, he moved to vacate the warrant of eviction, and to be restored to possession, relying on a deed by landlord's predecessor that had allegedly conveyed a life estate in the premises to him. Civil Court denied the motion, relying on Patrick's failure to record the alleged deed, and on Theresa's stipulation that no one occupied the premises.

In reversing, the Appellate Term first noted that CPLR 1024 requires a landlord who seeks to evict “John Doe” to demonstrate that he or she made timely efforts to identify the correct occupant. Here, because the occupant had demonstrated some evidence of his occupancy (a driver's license and a cable bill), and because landlord had not responded to his claim of defective service, the judgment of eviction and the warrant should have been vacated. With respect to Patrick's claim to be restored to the premises, the court remitted to Civil Court for a hearing. The court noted that the recording act would not bar occupant's claim if Patrick was in possession of the premises at the time the landlord acquired title, and therefore held that Patrick was entitled to a hearing on his claim of title.

COMMENT

Pursuant to CPLR '1024 “[a] party who is ignorant ' of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his name and identity as is known.” Although the statute, by its terms, applies to all cases in which the landlord does not know the actual name of the inhabitant, the courts have interpreted the statute to impose an obligation to investigate, and will almost invariably dismiss the landlord's petition when an inhabitant objects to the “John Doe” designation.

When facts reveal that the landlord had actual knowledge of the inhabitant's identity, CPLR ' 1024 does not authorize landlord to use a “John Doe” designation. For example, in George Tut & Co. v. Doe, 20 Misc.3d 815, the Kings County Civil Court dismissed the landlord's petition, even though the landlord attempted to identify the inhabitant by adding (daughter of Ahmed Zokari) to “Jane Doe” because in a letter to his attorney the landlord used the actual name of the inhabitant, while claiming to the court that he was never provided with the proof of the inhabitant's name. The court held that the use of the fictitious name was not authorized by ' 1024 under such circumstances, and called the landlord's assertion “disingenuous” and the letter “a death knell to his application.” Even in cases where the landlord's petition is not tainted by evidence of actual knowledge, the courts will almost invariably hold that the landlord failed to make a diligent effort to learn the actual names of inhabitants. For instance, in Deutsche Bank Nat. Trust Co. v. Turner, 32 Misc.3d 1202(A), Bronx Civil Court dismissed the landlord's petition because there was no evidence or testimony that the landlord made any effort to learn the actual name of the inhabitant. The court suggested that in a two-family house knocking on the door of the apartment, checking the names on the mailboxes, or asking the prior owners whether anyone else resided in the building could easily generate the identities of the inhabitants. Since the landlord failed to take any of these steps before initiating the proceedings against “John Doe,” the court dismissed the petition as fatally defective.

On the other hand, when the inhabitant's name appears within the petition, reference in the caption to “John Doe” is not fatal to the proceeding. In Teachers College v. Wolterding, 77 Misc.2d 81, the Appellate Term held that the landlord could amend the caption nunc pro tunc because the inhabitant's name appeared in the body of the petition, he was personally served by a process server, and subsequently he appeared for the hearing. Subsequent cases have interpreted Teacher's College narrowly. For instance, in Capital Resources Corp. v. Doe, 154 Misc.2d 864, the court held Teachers College i napplicable because the name of the occupant was absent from both the caption and the body of the petition, while in George Tut & Co. v. Doe, the court distinguished Teacher's College based on the fact that landlord had actual knowledge of the inhabitant's identity, and had nevertheless failed to serve the inhabitant personally.

In Teacher's College, the Appellate Term also emphasized that the occupant in question was an undertenant, and was not, therefore, a necessary party to a summary proceeding. However, a subsequent case indicates that a court should dismiss even a petition against a subtenant when landlord uses a “John Doe” designation to proceed against a subtenant whose identity he knows. In Triborough Bridge and Tunnel Authority v. Wimpfheimer, 165 Misc.2d 584, the Appellate Term upheld the trial court's ruling that commercial subtenants were not necessary parties, but nonetheless dismissed the landlord's petition as to the subtenants designated as “John Doe” because the landlord had actual knowledge of the subtenants' identities prior to the commencement of proceedings.

Supreme Court Constitutes Proper Forum for Nuisance Claim Against Tenant

Chelsea 18 Partners LP v. Mak

NYLJ 11/4/11

AppDiv, First Dept.

(Opinion by Catterson, J.)

In landlord's common law nuisance action against tenants, landlord appealed from Supreme Court's dismissal of the complaint. The Appellate Division reversed, holding that Supreme Court was a proper forum for the nuisance claim.

Landlord owns a 26-unit apartment building. Tenants, parents and their son, collectively occupy two rent-controlled apartments in the building. In the past, landlord has brought several actions against tenant in the Housing Part of Civil Court, alleging nonpayment of rent, refusal of access, and harassment of other tenants. In June 2010, landlord served tenants with notices of termination, and then brought this action in Supreme Court, alleging common law nuisance and seeking possession and/or money damages. Landlord alleged that tenant had illegally altered plumbing in both apartments (switching the position of the sink and tub), added electrical outlets, switches and fixtures creating a hazardous electrical condition, and then complained to the Department of Buildings (DOB) that the plumbing and electricity in the apartments were inadequate. Landlord also alleged that tenants refused access to the apartments, making it impossible for landlord to cure the violations, and then applied for rent reductions based on the conditions they refused to permit landlord to correct. Over a three-year period, tenants procured 76 housing violations against landlord; none were lodged concerning any other tenancies in the building. Landlord also alleged that tenants sought to “extort” extra work from landlord in return for providing access, and alleged that tenants verbally and physically abused landlord's workers, and filed a baseless noise complaint against the only commercial tenant in the building. Despite these allegations, Supreme Court granted tenant's motion to dismiss the complaint, holding that landlord had disguised a summary proceeding as a plenary action, and concluding that Civil Court was the proper forum for the action.

In reversing, the Appellate Division started by noting that Supreme Court has unlimited general jurisdiction over all real property actions, including those brought by a landlord against a tenant. The court acknowledged that Supreme Court may, in its discretion, decline to review an action on the ground that the case belongs in Civil Court, but the court held that on the facts of this case, Supreme Court improvidently exercised that discretion. In particular, the Appellate Division held that Supreme Court had not understood that the thrust of the action was a common-law claim for private nuisance. Accepting all of landlord's allegations as true, the complaint adequately pleaded a pattern of recurring objectionable conduct, makings dismissal of the complaint inappropriate.

COMMENT

Since the 1982 enactment of RPAPL ' 753(4), there has been little reason for Supreme Court to retain jurisdiction over a housing dispute. Before RPAPL ' 753(4), if landlord served a notice to cure a lease violation, Civil Court could not provide tenant with time to cure after tenant unsuccessfully challenged landlord's claim that tenant had breached. Once landlord brought a holdover proceeding in Civil Court, the lease would have expired by virtue of landlord's notice of termination, and Civil Court lacked authority to reinstate a lease. To preserve the right to challenge landlord's claim without risking forfeiture of the tenancy, a tenant would seek a Yellowstone injunction in Supreme Court to toll the cure period and therefore prevent expiration of the lease. RPAPL ' 753(4) makes Yellowstone relief unnecessary by giving Civil Court statutory authority to stay eviction until after adjudication, as well as mandating a 10-day cure period when breach has been found. In Post v. 120 East End Ave. Corp., 62 N.Y.2d 19, decided shortly after enactment of RPAPL ' 753(4), the Court of Appeals held that tenant was not entitled to injunctive relief in Supreme Court because RPAPL ' 753(4)'s mandatory stay and 10-day cure period rendered a Yellowstone injunction unnecessary to protect the tenant. The court explained that the new statute would allow both sides adequate relief in one proceeding rather than forcing tenants to file in Supreme Court for injunction while landlords file in Civil Court for eviction.

Although Supreme Court retains general jurisdiction to hear any dispute, in all but the rarest cases, it will dismiss a housing dispute because Civil Court can provide adequate relief. For instance, in Cox v. J.D. Realty Associates, 217 A.D.2d 179, the court held that tenant's Supreme Court action for a declaratory judgment should be dismissed without prejudice to be adjudicated in Civil Court. Tenant had sought a declaration that landlord could not evict on the grounds that the apartment was not used as a primary residence. Before the enactment of RPAPL 753(4), Supreme Court would have maintained jurisdiction as the only forum in which the tenant could have been protected from pre-adjudication eviction. In dismissing the action, the court stated that housing matters are more desirably brought in Civil Court.

Although the Chelsea 18 court purports to distinguish the nuisance claim brought in Supreme Court from nuisance claims better adjudicated in Civil Court, it is not clear what exactly the distinction is. Chelsea 18 arose out of a notice of termination served to tenants pursuant to Administrative Code ' 26-408, which does not distinguish between public and private nuisance, merely stating that committing or permitting nuisance is grounds for eviction. The court, however, places importance on the private nuisance claim in determining that Supreme Court is the proper forum without addressing that other cases arising out of ' 26-408 or similar statutes are adjudicated in Civil Court.