Landlord & Tenant

In June 2014, tenant informed the landlord that a long-standing water condition had damaged the floor of the building's lower level, and that tenant would not pay rent for that month. Landlord then commenced a summary nonpayment proceeding in Civil Court, and that court directed entry of a judgment evicting the tenant and awarding landlord the June 2014 rent. Tenant then brought this action for breach of the lease, including rent it paid after the premises were allegedly damaged. Landlord counterclaimed for rent and water charges between July 2014 and July 2015, and also raised a number of affirmative defenses. In particular, landlord alleged that tenant had elected its remedies by withholding rent, and that tenant's claim was barred by res judicata and collateral estoppel. Supreme Court denied tenant's motion dismissing landlord's counterclaim and affirmative defenses.

In modifying, the Appellate Division upheld Supreme Court's denial of tenant's motion to dismiss landlord's counterclaim for rent and water charges, noting that questions of fact remained about whether the premises were unfit for use. But the court held that landlord's affirmative defenses should have been dismissed. First, the court noted that because the lease explicitly gave tenant the right to withhold rent in the event the premises became unfit for use, tenant's decision to withhold rent did not constitute an election of remedies barring an action for damages. The court then held that because Civil Court lacked subject matter jurisdiction to entertain a cause of action for the additional damages sought by tenant, Civil Court's determination could not operate to bar tenant's claims in this action.

Accommodation of Disabilities

Prospect Union Associates v. DeJesus 2018 WL 6797863 AppDiv, First Dept. (memorandum opinion)

In landlord's summary holdover proceeding, handicapped tenants appealed from the Appellate Term's affirmance of Civil Court's denial of their motion to vacate stipulations of settlement and denial of their motion to vacate a final judgment of possession. The Appellate Division affirmed in part and reversed in part, holding that the judgment of possession should be vacated for a hearing to determine whether tenants are entitled to a permanent stay of eviction as an accommodation for their disabilities.

Tenants have lived in their Section 8 subsidized apartment since 1998. The wife suffers from a cognitive impairment and her husband has mobility limitations. In 2015, landlord served them with a notice of termination for failure to maintain their apartment in a safe and sanitary condition, alleging bedbugs, posing a fire hazard, and failing to prepare the apartment for extermination. Housing Court appointed a guardian ad litem for the tenants, and the guardian signed three stipulations designed to allow the tenant more time to prepare the apartment for extermination in order to avoid eviction. Tenants failed to comply with the terms of all three stipulations. Tenants then obtained counsel who moved to vacate the stipulations on the ground that the guardian had exceeded her authority. Housing Court denied the motion but directed that Adult Protective Services (APS) be notified. APS then commenced an article 81 proceeding in Supreme Court, which resulted in appointment of a temporary guardian for tenants. The guardian arranged for a heavy duty cleaning, followed by extermination. A follow-up report a week after the extermination revealed no evidence of live bedbugs or roaches. Supreme Court then granted tenants a further stay of eviction until Aug. 12, 2016. Then, back in Housing Court, tenant moved to dismiss the judgment of possession and warrant of eviction on the ground that the conditions had been cured. Housing Court denied the motion, concluding that even if tenants had cured most of the conditions alleged, the cure was untimely, and tenants were not entitled to post-judgment relief because their failure to co-operate had prejudiced landlord. The Appellate Term affirmed.

In modifying, the Appellate Division started by agreeing with the courts below that tenants had not met the burden of showing that the guardian had inadvisedly entered into stipulations on behalf of the tenants. But the court then reversed the determination that tenants are not entitled to a permanent stay of eviction. The court noted that tenants were handicapped within the meaning of the Fair Housing Act, and that landlord was therefore required to make reasonable accommodation to their handicaps. The court concluded that Housing Court had failed to consider whether, with ongoing supportive services and suitable monitoring, tenants could continue to live an orderly existence in their apartment without harming their neighbors. The court remanded for a hearing to determine whether accommodations would curtail the risk of nuisance, and whether there should be a permanent stay of eviction.