Landlord & Tenant

AppTerm, First Dept.

(memorandum opinion)

In landlord's nuisance holdover proceeding, landlord appealed from Civil Court's dismissal of the petition. The Appellate Term reversed, holding that videotape evidence established that tenant had violated a stipulation of settlement.

In May 2014, landlord and tenant entered into a stipulation of settlement resolving a proceeding brought by landlord, who had alleged that tenant permitted up to 15 people to live in the rent-stabilized apartment, causing physical destruction of the premises. The stipulation created a 16-month probationary period during which tenant would not engage in or permit the complained-of conduct, and would permit landlord to restore the proceeding to the calendar if tenant violated the probationary conditions. Within two weeks of executing the stipulation, landlord videotaped an event showing numerous people entering and exiting tenant's apartment while she was home, showing a melee in which the building's front entry door was shattered. Based on this tape, landlord sought a judgment of possession. Civil Court dismissed the petition, concluding that tenant had not acquiesced in the conduct that occurred. Landlord appealed.

In reversing, the Appellate Term concluded that tenant had breached the stipulation by failing to take meaningful steps to curtail the recurrent destruction by co-occupants or guests. As a result, landlord was entitled to a judgment of possession.

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Net Lessee of Single Unit in Six-Story Building Can Recover Rent

49 Bleecker, Inc. v. Gatien

NYLJ 5/13/16, p. 18, col. 3

AppTerm, First Dept.

(2-1 decision; per curiam opinion; dissenting opinion by Ling-Cohan, J.)

In landlord's summary nonpayment proceeding, tenants appealed from Civil Court's denial of their motion for summary judgment dismissing the proceeding. A divided Appellate Term affirmed, holding that the net lessee of a single unit in a six-story building did not qualify as an owner of a multiple dwelling.

Landlord is the net lessee of a single floor in a six-story residential building. Although there are residential tenants on other floors, the building does not have a valid residential certificate of occupancy. Landlord executed a 10-year lease to tenant. When tenant stopped paying rent, landlord brought this nonpayment proceeding. Tenant moved to dismiss, citing section 302(1)(b) of the Multiple Dwelling Law, which precludes an “owner of a multiple dwelling” from collecting rent or maintaining a nonpayment proceeding for any period during which the premises are occupied in violation of the certificate of occupancy. Civil Court denied the motion to dismiss and granted landlord's motion to conduct discovery.

In affirming, the Appellate Term held that tenant had not established that the third floor of the building was the only floor under landlord's control, constituted a “multiple dwelling.” As a result section 302(1)(b) did not preclude landlord from collecting rent. Justice Ling-Cohan, dissenting, argued that the building was a multiple dwelling, and as the owner or lessee of part of the building, landlord fell within the statutory prohibition. She noted that the majority's construction would make it possible for a building owner to avoid the statute by executing net leases to independent entities who would then sublet to tenants, removing the incentive to bring buildings into compliance with the multiple dwelling law.

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