Landlord & Tenant

Petitioner Wilson, who occupied a two-bedroom apartment with his partner, sought to transfer to a different two-bedroom apartment. A couple with a child sought to transfer to the same apartment. HPD denied Wilson's application on the ground that he did not meet the Mitchell-Lama occupancy requirements, which provide that a two-bedroom apartment may be occupied by a household consisting of no fewer than three persons, or a brother and sister who are both adults, or a parent or guardian with at least one child. Wilson resided only with his partner, whom he later married. Wilson then brought this article 78 proceeding challenging HPD's determination. The other couple intervened. Supreme Court granted Wilson's petition and directed HPD to process his application. HPD and the other couple appealed.

In modifying, the court started by noting that an administrative agency's interpretation of its own regulations is entitled to deference. HPD's determination that its occupancy regulations applied to transfer applications, including from persons already residing in two-bedroom apartments, had a rational basis. Finally, the court rejected Wilson's argument that HPD's failure to enforce the regulation in the past estopped HPD from enforcing the regulation in this case. As a result, the court reinstated HPD's determination.

ADA Does Not Entitle Two Parking Spaces

Temple v. Hudson View Owners Corp.
NYLJ 12/5/16 U.S. Dist Ct., EDNY (Seibel, J.)

In an action by disabled apartment occupants alleging that the building owner violated the Fair Housing Act and the Americans with Disabilities Act (ADA) by depriving them of two parking spaces, the building owner moved for summary judgment. The court granted the motion, holding that occupants had not provided support for their position that two parking spaces were necessary to accommodate their disabilities.

For 13 years, occupants, a married couple, used and paid for two parking spaces in their apartment complex. In January 2016, the management company notified occupants that they would have to surrender one of the spaces to another resident of the complex. The wife asked the Board not to take away her space because of her disability, but the board denied the request. The couple then brought this action, pro se, apparently alleging that the complex had not reasonably accommodated their disabilities.

In awarding summary judgment to the complex owners and managers, the court started by noting that a parking space for a disabled individual is a reasonable accommodation required by the federal statutes. But the court then noted that it could find no precedent holding that a request for two parking spaces by disabled tenants of a single apartment constitutes a reasonable accommodation. The court noted that occupants had not established that they were deprived of meaningful access to the benefits of the apartment, and noted that the statutes require only equality, not that an advantage be given to disabled occupants over other occupants who are entitled to only one parking space.

Apartments Converted From Commercial to Residential Use

Bartis v. Harbor Tech, LLC
NYLJ 12/30/16, p 24, col. 2 AppDiv, Second Dept. (Opinion by Dickerson, J.)

In a putative class action by tenants seeking a declaration that their apartments are subject to rent stabilization, tenants appealed from Supreme Court's award of summary judgment to landlord declaring that the apartments are not subject to rent stabilization. The Appellate Division affirmed, holding that when a building is converted from commercial to residential use, the newly created apartments are not subject to rent stabilization.

Until 1999, the subject building was used as a commercial warehouse. In that year, current landlord purchased the building and began converting open floor space in one wing of the building in 40 separate commercial loft units, each of which had new kitchens with refrigerators, bathrooms, and interior walls and doors. Landlord also added new plumbing, heating, electrical, ventilation and sprinkler systems. Most of the 40 units were used as artist workplaces. In 2000, landlord applied to the City Planning Commission to have the site rezoned from M1-1 to R6, which would allow residential apartment buildings. When landlord obtained a rezoning, landlord created an additional 60 apartments, making improvements similar to those it had made in the 40 initial apartments. In 2005, landlord obtained certificates of occupancy for 100 dwelling units.

Eight years later, 35 tenants brought this action on behalf of themselves and other former and current tenants in the building, contending that the apartments were subject to rent stabilization under the Emergency Tenant Protection Act of 974 (ETPA). Supreme Court rejected the claim and awarded summary judgment to landlord. Tenants appealed.

In affirming, the Appellate Division, in an opinion by Justice Dickerson, rejected tenants' contention that the apartments were stabilized because landlord had not complied with provisions of the Rent Stabilization Code and DHCR Operational Bulletin providing that exempt apartments in a rehabilitated building are exempt when 75% of all building-wide and individual housing accommodation systems have been replaced. The court held that the 75% rule applies only when a residential building is substantially rehabilitated, not when a commercial building is converted to residential use. In so holding, the court emphasized that the purpose of the exemption is to ensure that existing tenants do not lose the benefit of rent stabilization unless landlord truly makes a substantial rehabilitation. When the building was initially devoted to commercial use, there were no pre-existing residential tenants to protect.

Landlord Prevails in Nonprimary Residence Proceeding

Houston Street Management Co. v. LaCroix
NYLJ 1/10/17, p. 22, col. 1 AppTerm, First Dept. (memorandum opinion; dissenting memorandum by Ling-Cohan, J.)

In landlord's nonprimary residence proceeding, tenant appealed from Civil Court's grant of judgment to landlord. A divided Appellate Term affirmed, holding that landlord met its burden of establishing that tenant did not reside in the Manhattan apartment during the relevant period prior to the May 31, 2011 expiration of her prior lease.

Tenant was absent from the apartment for a nine-month period through December 2010. She returned in January 2011, notified landlord that she would be relocating to a Florida rental, and sought permission to sublet her apartment for two years, stating that it was possible she would never be able to return. Tenant's banking records showed various Florida addresses from April through December 2010, and tenant made monthly deposits of rent from the proposed subtenant of her Manhattan apartment before January 2011, indicating that she had already sublet before asking landlord for permission. In addition, telephone records showed calls originating in Florida for a period of over eight months.

Tenant contended that her presence in Florida was due to a knee replacement operation requiring extended treatment in Florida. The trial court discredited tenant's testimony, and rejected documents submitted by tenant to support her claim: an unsworn letter from her doctor and a HIPAA authorization. Tenant did not submit Medicare records until after she had made a sworn statement that she had disclosed all relevant documents. The trial court also noted that tenant had been absent from the apartment from 2005 to 2007, as part of the overall history of her absence from the apartment. Based on the evidence, the trial court concluded that the Manhattan apartment was not tenant's primary residence.

In affirming, the Appellate Division majority concluded that giving due regard to the documentary evidence and the credited testimonial evidence, the trial court's decision represented a fair interpretation of the evidence. Justice Ling-Cohan, dissenting, concluded that the trial court erred in holding that the apartment was no longer her primary residence. She emphasized that tenant's absence was due to her medical treatments in Florida, and noted that tenant had maintained a New York driver's license, and had continued to pay New York cable, Internet and telephone

HPD'S Failure to Enforce Regulation in the Past Did Not Affect the Present

Matter of Wilson v. Department of Housing Preservation and Development
NYLJ 12/23/16, p. 29, col. 4 AppDiv, Second Dept. (memorandum opinion)

In an article 78 proceeding by a Mitchell-Lama tenant/cooperator seeking to compel the Department of Housing Preservation and Development to approve a transfer to another apartment in the same building, HPD and an intervenor tenant/cooperator appealed from Supreme Court's grant of the petition. The Appellate Division modified to deny the petition and dismiss the proceeding, holding that HPD was not estopped from applying its own occupancy restrictions.

Petitioner Wilson, who occupied a two-bedroom apartment with his partner, sought to transfer to a different two-bedroom apartment. A couple with a child sought to transfer to the same apartment. HPD denied Wilson's application on the ground that he did not meet the Mitchell-Lama occupancy requirements, which provide that a two-bedroom apartment may be occupied by a household consisting of no fewer than three persons, or a brother and sister who are both adults, or a parent or guardian with at least one child. Wilson resided only with his partner, whom he later married. Wilson then brought this article 78 proceeding challenging HPD's determination. The other couple intervened. Supreme Court granted Wilson's petition and directed HPD to process his application. HPD and the other couple appealed.

In modifying, the court started by noting that an administrative agency's interpretation of its own regulations is entitled to deference. HPD's determination that its occupancy regulations applied to transfer applications, including from persons already residing in two-bedroom apartments, had a rational basis. Finally, the court rejected Wilson's argument that HPD's failure to enforce the regulation in the past estopped HPD from enforcing the regulation in this case. As a result, the court reinstated HPD's determination.

ADA Does Not Entitle Two Parking Spaces

Temple v. Hudson View Owners Corp.
NYLJ 12/5/16 U.S. Dist Ct., EDNY (Seibel, J.)

In an action by disabled apartment occupants alleging that the building owner violated the Fair Housing Act and the Americans with Disabilities Act (ADA) by depriving them of two parking spaces, the building owner moved for summary judgment. The court granted the motion, holding that occupants had not provided support for their position that two parking spaces were necessary to accommodate their disabilities.

For 13 years, occupants, a married couple, used and paid for two parking spaces in their apartment complex. In January 2016, the management company notified occupants that they would have to surrender one of the spaces to another resident of the complex. The wife asked the Board not to take away her space because of her disability, but the board denied the request. The couple then brought this action, pro se, apparently alleging that the complex had not reasonably accommodated their disabilities.

In awarding summary judgment to the complex owners and managers, the court started by noting that a parking space for a disabled individual is a reasonable accommodation required by the federal statutes. But the court then noted that it could find no precedent holding that a request for two parking spaces by disabled tenants of a single apartment constitutes a reasonable accommodation. The court noted that occupants had not established that they were deprived of meaningful access to the benefits of the apartment, and noted that the statutes require only equality, not that an advantage be given to disabled occupants over other occupants who are entitled to only one parking space.

Apartments Converted From Commercial to Residential Use

Bartis v. Harbor Tech, LLC
NYLJ 12/30/16, p 24, col. 2 AppDiv, Second Dept. (Opinion by Dickerson, J.)

In a putative class action by tenants seeking a declaration that their apartments are subject to rent stabilization, tenants appealed from Supreme Court's award of summary judgment to landlord declaring that the apartments are not subject to rent stabilization. The Appellate Division affirmed, holding that when a building is converted from commercial to residential use, the newly created apartments are not subject to rent stabilization.

Until 1999, the subject building was used as a commercial warehouse. In that year, current landlord purchased the building and began converting open floor space in one wing of the building in 40 separate commercial loft units, each of which had new kitchens with refrigerators, bathrooms, and interior walls and doors. Landlord also added new plumbing, heating, electrical, ventilation and sprinkler systems. Most of the 40 units were used as artist workplaces. In 2000, landlord applied to the City Planning Commission to have the site rezoned from M1-1 to R6, which would allow residential apartment buildings. When landlord obtained a rezoning, landlord created an additional 60 apartments, making improvements similar to those it had made in the 40 initial apartments. In 2005, landlord obtained certificates of occupancy for 100 dwelling units.

Eight years later, 35 tenants brought this action on behalf of themselves and other former and current tenants in the building, contending that the apartments were subject to rent stabilization under the Emergency Tenant Protection Act of 974 (ETPA). Supreme Court rejected the claim and awarded summary judgment to landlord. Tenants appealed.

In affirming, the Appellate Division, in an opinion by Justice Dickerson, rejected tenants' contention that the apartments were stabilized because landlord had not complied with provisions of the Rent Stabilization Code and DHCR Operational Bulletin providing that exempt apartments in a rehabilitated building are exempt when 75% of all building-wide and individual housing accommodation systems have been replaced. The court held that the 75% rule applies only when a residential building is substantially rehabilitated, not when a commercial building is converted to residential use. In so holding, the court emphasized that the purpose of the exemption is to ensure that existing tenants do not lose the benefit of rent stabilization unless landlord truly makes a substantial rehabilitation. When the building was initially devoted to commercial use, there were no pre-existing residential tenants to protect.

Landlord Prevails in Nonprimary Residence Proceeding

Houston Street Management Co. v. LaCroix
NYLJ 1/10/17, p. 22, col. 1 AppTerm, First Dept. (memorandum opinion; dissenting memorandum by Ling-Cohan, J.)

In landlord's nonprimary residence proceeding, tenant appealed from Civil Court's grant of judgment to landlord. A divided Appellate Term affirmed, holding that landlord met its burden of establishing that tenant did not reside in the Manhattan apartment during the relevant period prior to the May 31, 2011 expiration of her prior lease.

Tenant was absent from the apartment for a nine-month period through December 2010. She returned in January 2011, notified landlord that she would be relocating to a Florida rental, and sought permission to sublet her apartment for two years, stating that it was possible she would never be able to return. Tenant's banking records showed various Florida addresses from April through December 2010, and tenant made monthly deposits of rent from the proposed subtenant of her Manhattan apartment before January 2011, indicating that she had already sublet before asking landlord for permission. In addition, telephone records showed calls originating in Florida for a period of over eight months.

Tenant contended that her presence in Florida was due to a knee replacement operation requiring extended treatment in Florida. The trial court discredited tenant's testimony, and rejected documents submitted by tenant to support her claim: an unsworn letter from her doctor and a HIPAA authorization. Tenant did not submit Medicare records until after she had made a sworn statement that she had disclosed all relevant documents. The trial court also noted that tenant had been absent from the apartment from 2005 to 2007, as part of the overall history of her absence from the apartment. Based on the evidence, the trial court concluded that the Manhattan apartment was not tenant's primary residence.

In affirming, the Appellate Division majority concluded that giving due regard to the documentary evidence and the credited testimonial evidence, the trial court's decision represented a fair interpretation of the evidence. Justice Ling-Cohan, dissenting, concluded that the trial court erred in holding that the apartment was no longer her primary residence. She emphasized that tenant's absence was due to her medical treatments in Florida, and noted that tenant had maintained a New York driver's license, and had continued to pay New York cable, Internet and telephone