Ragone v. Devoe Properties LLC, 35209/06
Decided: March 15, 2007
Justice Arthur M. Schack, KINGS COUNTY, Supreme Court
Plaintiff, Belkin Burden Wenig & Goldman, LLP, NY, NY
Defendant, Scher & Scher, Great Neck, NY
READ FULL DECISION HERE
In this action to enjoin defendant from continuing to excavate and construct a multiple dwelling at 291 Devoe Street, Brooklyn, New York, adjacent to plaintiff's one- family home, at 293 Devoe Street, Brooklyn, New York, plaintiff alleges that defendant has structurally damaged the foundation and walls to his home. Plaintiff, Vincent Ragone (Ragone) moves, by order to show cause, for a temporary restraining order (TRO), pending a hearing for a preliminary injunction, to enjoin defendant, Devoe Properties LLC, (Devoe) from: excavating and/or constructing any structure on defendant's lot that undermines or causes damage to plaintiff's property; directing defendant to remove any obstruction and materials on its lot that would hinder plaintiff from repairing his foundation wall; and granting plaintiff access to defendant's lot to repair plaintiff's foundation wall and home. Despite defendant's opposition to the order to show cause, the Court finds that plaintiff has met his burden, pursuant to CPLR §6301, to grant temporary restraining order relief. The Court, pursuant to CPLR §6312 (b), will order an appropriate undertaking to be given by plaintiff to defendant. Further, the Court will schedule a hearing to determine whether to grant a preliminary injunction....
Conclusion
Accordingly, it is
ORDERED, that plaintiff Vincent Ragone's order to show cause for a temporary restraining order against defendant Devoe Properties LLC, is granted, in that defendant Devoe Properties LLC, pending a hearing on whether to grant a preliminary injunction, is enjoined and restrained from continuing to excavate and construct a building on the lot at 291 Devoe Street, Brooklyn, New York; and it is further
ORDERED, that defendant Devoe Properties LLC is immediately directed to provide plaintiff Vincent Ragone with unlimited access to the lot at 291 Devoe Street, Brooklyn, New York, to enable plaintiff to repair his foundation wall and home; and it is further
ORDERED, that defendant Devoe Properties LLC, shall be allowed to remove debris, concrete forms, construction materials and equipment from the lot at 291 Devoe Street, Brooklyn, New York; and it is further
ORDERED, that plaintiff Vincent Ragone shall give an undertaking to the defendant Devoe Properties LLC, in the amount of a $50,000.00 surety bond; and it is further
ORDERED, that all parties appear in Part 27, Room 479, 360 Adams Street, Brooklyn, New York, on Monday, April 2, 2007 at 10:00 in the forenoon, for a hearing to determine if this Court shall grant a preliminary injunction in this matter.
This constitutes the Decision and Order of the Court.
Thursday, April 26, 2007
Wednesday, April 25, 2007
A.G. Parker Inc. v. Brown, 51741/06
Decided: March 23, 2007
Judge Anthony J. Fiorella
KINGS COUNTY, Civil Court
Petitioner commenced this nonpayment summary proceeding in January 2006 seeking rent arrears of approximately Ten Thousand, Three Hundred Eighty dollars ($10,380) accumulated between January 2004 and January 2006.
In February 2006 Respondent acknowledged owing $8,807.52 as all arrears through February. The Respondents were lawfully evicted from the premises early in August 2006. Respondent Lindel Brown's instant post-eviction Order to Show Cause seeks restoration to the subject premises alleging that Petitioner's Multiple Dwelling Registration (hereinafter "MDR") lapsed during the course of this proceeding and thus Petitioner is not entitled to the recovery of all the rental arrears. To this issue the Court responds in the negative...
In essence, Respondent's motion claims that Petitioner was not entitled to collect rent as of August 2006 as the MDR had lapsed and the subject building was not properly registered as a multiple dwelling with the Department of Housing Preservation and Development (hereinafter referred to as DHPD). When Petitioner commenced this proceeding a proper MDR was in effect. Petitioner is required by law to register the premises on an annual basis...
It is well established in law that the issue of a building's multiple dwelling registration is a non jurisdictional defect and in a nonpayment proceeding, can be amended at any time...
Moreover, even if the MDR had temporarily lapsed, petitioner would still be entitled to collect both the entire judgment amount which accrued during the period of lapsed registration and receive monies voluntarily paid as current rent credited pursuant to the stipulation terms...
CONCLUSION
The Court has reviewed Respondent's remaining arguments and finds them to be without merit. Accordingly, Respondent's motion for restoration to the subject premises is denied.
This constitutes the decision and order of the Court.
Judge Anthony J. Fiorella
KINGS COUNTY, Civil Court
Petitioner commenced this nonpayment summary proceeding in January 2006 seeking rent arrears of approximately Ten Thousand, Three Hundred Eighty dollars ($10,380) accumulated between January 2004 and January 2006.
In February 2006 Respondent acknowledged owing $8,807.52 as all arrears through February. The Respondents were lawfully evicted from the premises early in August 2006. Respondent Lindel Brown's instant post-eviction Order to Show Cause seeks restoration to the subject premises alleging that Petitioner's Multiple Dwelling Registration (hereinafter "MDR") lapsed during the course of this proceeding and thus Petitioner is not entitled to the recovery of all the rental arrears. To this issue the Court responds in the negative...
In essence, Respondent's motion claims that Petitioner was not entitled to collect rent as of August 2006 as the MDR had lapsed and the subject building was not properly registered as a multiple dwelling with the Department of Housing Preservation and Development (hereinafter referred to as DHPD). When Petitioner commenced this proceeding a proper MDR was in effect. Petitioner is required by law to register the premises on an annual basis...
It is well established in law that the issue of a building's multiple dwelling registration is a non jurisdictional defect and in a nonpayment proceeding, can be amended at any time...
Moreover, even if the MDR had temporarily lapsed, petitioner would still be entitled to collect both the entire judgment amount which accrued during the period of lapsed registration and receive monies voluntarily paid as current rent credited pursuant to the stipulation terms...
CONCLUSION
The Court has reviewed Respondent's remaining arguments and finds them to be without merit. Accordingly, Respondent's motion for restoration to the subject premises is denied.
This constitutes the decision and order of the Court.
Monday, April 23, 2007
ILLUSORY TENANCY
Art Omi Inc. v. Vallejos, 52873/06
Decided: March 30, 2007
Judge Gerald Lebovits, NEW YORK COUNTY, Civil Court
Belkin Burden Wenig & Goldman, LLP, New York City (Joseph Burden of counsel), for petitioner.
Himmelstein, McConnell, Gribben, Donoghue & Joseph, New York City (David E. Frazer of counsel), for respondent.
READ FULL DECISION HERE
Art Omi contends that if the court were to rule for respondent, the court would confirm the saying that "no good deed goes unpunished." But Art Omi did no "good deed." Respondent did the good deed, not Art Omi. The court finds that Art Omi is an illusory tenant and that respondent is the real tenant. Art Omi, the prime tenant, acted as Time Equities's strawman when Art Omi subleased the apartment to respondent. Art Omi never occupied or intended to occupy the apartment as its home and had no dominion and control over the apartment. Art Omi, Time Equities, and 346-50 East 20th Street LLC colluded in the scheme. They circumvented the rent laws and profited. They led respondent to believe that she could continue in possession as a rent-regulated tenant. Although she paid the monthly rent during her 11-year tenancy, she was compelled to a large extent to allow Art Omi's occupants to stay in her apartment for free. When Time Equities received the monthly rent, it would split it in half: Time Equities kept half; Art Omi kept the other half. Everyone profited except respondent. Law and equity dictate that respondent should be the real tenant...
Time Equities needed a tenant, respondent needed an apartment, and Art Omi needed an apartment in New York City where its artists could stay. The parties therefore executed two agreements for the subject apartment at East 20th Street: one between Time Equities and Art Omi; the other between Art Omi and respondent. Greenburger and Linda Cross, Art Omi's Executive Director, conceived of the idea for Art Omi to rent the subject apartment and then to sublease it to respondent...
Respondent paid the rent for the apartment from 1995 until 2007. Division of Housing and Community Renewal records from 1995 through 2005 list Art Omi as the apartment's tenant of record and confirm that respondent was paying the legal regulated rent. Respondent would send Time Equities a check payable to Art Omi; Time Equities deposited the check; and Time Equities would keep half the money and give the other half to Art Omi...
A series of factors determine whether a court must find an illusory tenancy. As applied to the Facts, all the factors favor respondent. Art Omi is an illusory tenant. Respondent is the real tenant.
A. Factors Generally for Illusory Tenancies...
B. Whether the Prime Tenant Occupied or Intended to Occupy the Premises as a Home...
C. Whether the Prime Tenant had Dominion and Control over Premises...
D. Whether The Prime Tenant Colluded with the Landlord...
E. Whether the Subtenant Reasonably Expected to Continue in Possession...
F. Whether the Prime Tenant Profited...
III. Conclusion
Art Omi deprived respondent of her rights under the RSL. It deprived her of a lease, in her name, for the apartment. And Art Omi and Time Equities profited. In circumventing the rent laws, respondent could have been evicted at any time for any reason. No equitable or legal basis exists to apply the RSL to protect Art Omi's tenancy.
This opinion is the court's decision and order.
Decided: March 30, 2007
Judge Gerald Lebovits, NEW YORK COUNTY, Civil Court
Belkin Burden Wenig & Goldman, LLP, New York City (Joseph Burden of counsel), for petitioner.
Himmelstein, McConnell, Gribben, Donoghue & Joseph, New York City (David E. Frazer of counsel), for respondent.
READ FULL DECISION HERE
Art Omi contends that if the court were to rule for respondent, the court would confirm the saying that "no good deed goes unpunished." But Art Omi did no "good deed." Respondent did the good deed, not Art Omi. The court finds that Art Omi is an illusory tenant and that respondent is the real tenant. Art Omi, the prime tenant, acted as Time Equities's strawman when Art Omi subleased the apartment to respondent. Art Omi never occupied or intended to occupy the apartment as its home and had no dominion and control over the apartment. Art Omi, Time Equities, and 346-50 East 20th Street LLC colluded in the scheme. They circumvented the rent laws and profited. They led respondent to believe that she could continue in possession as a rent-regulated tenant. Although she paid the monthly rent during her 11-year tenancy, she was compelled to a large extent to allow Art Omi's occupants to stay in her apartment for free. When Time Equities received the monthly rent, it would split it in half: Time Equities kept half; Art Omi kept the other half. Everyone profited except respondent. Law and equity dictate that respondent should be the real tenant...
Time Equities needed a tenant, respondent needed an apartment, and Art Omi needed an apartment in New York City where its artists could stay. The parties therefore executed two agreements for the subject apartment at East 20th Street: one between Time Equities and Art Omi; the other between Art Omi and respondent. Greenburger and Linda Cross, Art Omi's Executive Director, conceived of the idea for Art Omi to rent the subject apartment and then to sublease it to respondent...
Respondent paid the rent for the apartment from 1995 until 2007. Division of Housing and Community Renewal records from 1995 through 2005 list Art Omi as the apartment's tenant of record and confirm that respondent was paying the legal regulated rent. Respondent would send Time Equities a check payable to Art Omi; Time Equities deposited the check; and Time Equities would keep half the money and give the other half to Art Omi...
A series of factors determine whether a court must find an illusory tenancy. As applied to the Facts, all the factors favor respondent. Art Omi is an illusory tenant. Respondent is the real tenant.
A. Factors Generally for Illusory Tenancies...
B. Whether the Prime Tenant Occupied or Intended to Occupy the Premises as a Home...
C. Whether the Prime Tenant had Dominion and Control over Premises...
D. Whether The Prime Tenant Colluded with the Landlord...
E. Whether the Subtenant Reasonably Expected to Continue in Possession...
F. Whether the Prime Tenant Profited...
III. Conclusion
Art Omi deprived respondent of her rights under the RSL. It deprived her of a lease, in her name, for the apartment. And Art Omi and Time Equities profited. In circumventing the rent laws, respondent could have been evicted at any time for any reason. No equitable or legal basis exists to apply the RSL to protect Art Omi's tenancy.
This opinion is the court's decision and order.
Friday, April 20, 2007
27-year Yonkers housing suit settled - Now lets burn a fat one???
YONKERS, April 19 — After 27 years of contentious court battles over housing segregation, this city’s mayor, Philip A. Amicone, and Herman Keith, a former president of the local N.A.A.C.P. chapter, shared cigars on Thursday as they celebrated the settlement of a lawsuit that had pitted neighbor against neighbor in bitter protests.
“We gather here with a rare opportunity to straddle the chasms of race and class that have at times been so wide in this country and in this city,” Mayor Amicone told a crowd of civil rights activists, housing advocates and local officials during a signing ceremony at City Hall, before the private cigar celebration in his wood-paneled office. “We finally have the freedom to choose our own destiny. And knowing this, we have the confidence that our choice will be right.”
Karen Edmonson, the current president of the Yonkers chapter of the National Association for the Advancement of Colored People, which filed the lawsuit in 1980, said the event marked “the ceremonial ending to a long, hard struggle.”
The lawsuit, which contended that city housing policies separated poor black and Hispanic residents from their white, more affluent counterparts, opened an ugly chapter in the city’s history, tearing apart neighborhoods, building and destroying political careers and unleashing a heated court battle that nearly drove Yonkers to bankruptcy.
At issue was the construction of 800 units of public and affordable housing in eastern Yonkers, which is predominantly white and middle-class. The homes were meant to lodge low-income minority families who had long been confined to the housing projects and subsidized apartments squeezed in the city’s southwestern quadrant, which borders the Bronx.
Judge Leonard B. Sand of Federal District Court in Manhattan, who has presided over the lawsuit since its onset, when he had just one year on the bench, will hold a final hearing in the case on May 1. He is expected to announce then whether he approves of the settlement.
Reflecting on the case, the longest of his career, Judge Sand said in an interview: “Any efforts not to comply with the law are counterproductive to the image of the community and its well-being. The millions and millions of dollars that the City of Yonkers has spent” in this litigation, he added, “could have gone to better things for the community.”
The last of the 600 affordable homes, whose rents and mortgages are subsidized in part by the city, are expected to be occupied this summer on East Grassy Sprain Road, four years behind the schedule laid out in a 1996 federal court order. According to the order, Yonkers was to have made 100 units of affordable housing, in new and existing buildings, available each year for six years.
One reason for the delay, according to Michael Sussman, a lawyer who represents the plaintiffs in the case, was that city officials authorized low-income white families who lived in southwest Yonkers to move into some of these units, defying the intent of the order, which was to bring minority families to the east side of town.
“At the heart of this lawsuit were core constitutional values, but when it takes over 20 years to validate these values, it’s as if you were devaluing the values,” Mr. Sussman said in an interview. “I certainly sympathize with those in the minority community who feel nothing celebratory toward this, but feel very frustrated instead.”
Judge Sand ruled against Yonkers in 1985, saying that the city had engaged in a pattern of discrimination against some of its poorest, most vulnerable residents. At first, members of the City Council seemed willing to negotiate a settlement, but some of them bowed under public pressure, leading to a long — and expensive —legal showdown.
In 1988, after Judge Sand imposed contempt-of-court fines that doubled every day, the Council acquiesced and voted to approve the court-ordered desegregation plan. By the time of the vote, though, Yonkers had already racked up $819,000 in nonrefundable fines. If the plan had not been approved, the city would have had to lay off hundreds of workers to pay the mounting fines.
“It was a tumultuous time,” said Angelo R. Martinelli, who was elected mayor in 1982, inheriting the litigation, and who attributes his re-election loss in 1984 to his support of a settlement. “This is a great day,” he said on Thursday. “But the truth is, this day should have happened 20 years ago.”
Mary Dorman, who has lived with her husband, Bud, in a modest brick house in eastern Yonkers since before the lawsuit was filed, was at first one of the most active and vociferous opponents of the construction of public housing on her side of town. She picketed the federal courthouse in Manhattan and attended most of the City Council meetings at which matters related to the court’s desegregation order were discussed or put to a vote.
But once she met the first tenants of the town-house-style public housing project built a few blocks from her home, Mrs. Dorman began to change her mind, she said, deciding that it was better to welcome her new neighbors than to alienate them.
She did not attend the ceremony on Thursday — “I had other plans,” she said — but acknowledged the significance of the moment, saying: “Yonkers learned a lesson, on all sides. We all learned something.”
“In a sense, the desegregation plan did work,” she added. “It didn’t spoil our neighborhoods; we had a lot of nice people who lived there. It wasn’t the horror that we all thought it was going to be.”
Tuesday, April 17, 2007
Sex, Drugs and NonPayment proceedings
Bel Air Leasing LP v. Kuperblum, 57127/06
Decided: March 28, 2007
Judge George M. Heymann, KINGS COUNTY, Civil Court
READ FULL DECISION HERE
This nonpayment proceeding, which has been pending for over a year, presents the following issue for determination:
Does the commencement of an illegal drug use holdover proceeding, at the behest of the Office of the District Attorney ["D.A."], during the pendency of the instant nonpayment proceeding require dismissal of the nonpayment proceeding and vacatur of the judgment and warrant therein?
Due to the unique nature of illegal drug use holdover proceedings, it is the opinion of this Court that dismissal of the nonpayment proceeding is not warranted and that the judgment and warrant remain in full force and effect...
Thus, if the subsequent commencement of a nonpayment proceeding has no impact on this type of holdover proceeding, a fortiori, a previously commenced nonpayment proceeding, as is the case herein, should have no bearing on the holdover either. Likewise, the commencement of a holdover proceeding at the behest of the D.A. for illegal drug activity in or about the subject premises does not, under these unique circumstances, require the dismissal of the pending nonpayment proceeding.
Decided: March 28, 2007
Judge George M. Heymann, KINGS COUNTY, Civil Court
READ FULL DECISION HERE
This nonpayment proceeding, which has been pending for over a year, presents the following issue for determination:
Does the commencement of an illegal drug use holdover proceeding, at the behest of the Office of the District Attorney ["D.A."], during the pendency of the instant nonpayment proceeding require dismissal of the nonpayment proceeding and vacatur of the judgment and warrant therein?
Due to the unique nature of illegal drug use holdover proceedings, it is the opinion of this Court that dismissal of the nonpayment proceeding is not warranted and that the judgment and warrant remain in full force and effect...
Thus, if the subsequent commencement of a nonpayment proceeding has no impact on this type of holdover proceeding, a fortiori, a previously commenced nonpayment proceeding, as is the case herein, should have no bearing on the holdover either. Likewise, the commencement of a holdover proceeding at the behest of the D.A. for illegal drug activity in or about the subject premises does not, under these unique circumstances, require the dismissal of the pending nonpayment proceeding.
Saturday, April 14, 2007
Commercial Leases - Yellowstone injuction, summary judgment, cross-claims, counterclaims, piercing the corporate veil, this case has it all
Communications Inc. v. YTK Corp., Index No. 411-06
Decided: March 12, 2007
Justice Leonard B. Austin, NASSAU COUNTY, Supreme Court
COUNSEL FOR PLAINTIFF, David Bolton, P.C.
COUNSEL FOR DEFENDANT,(for YTK Corp), Erol Mucen, Esq.
(for 21st Century Fuel, LLC), McBreen & Kopco
READ FULL TEXT OF DECISION
Here, both the Management Agreement and the Sublease are dated April 23, 2003. They govern different businesses on the same property. Each refers to the other. The relevant language in the sublease is very broad and states that a violation of the Management Agreement is a default under the sublease (Sublease, Article XIII[a][ix]). In addition, the Management Agreement is expressly incorporated by reference in the sublease. In contrast, according to the Management Agreement, only a default under the sublease by YTK is a default under the Management Agreement (Management Agreement, ¶8[b]). In other words, a breach of the Management Agreement by Penny does not automatically constitute a default under the sublease with Century. Under these circumstances, the two contracts must be viewed as independent. Thus, YTK's insistence that a breach of the Management Agreement justifies its failure or refusal to pay rent under the sublease is unsupported...
Decided: March 12, 2007
Justice Leonard B. Austin, NASSAU COUNTY, Supreme Court
COUNSEL FOR PLAINTIFF, David Bolton, P.C.
COUNSEL FOR DEFENDANT,(for YTK Corp), Erol Mucen, Esq.
(for 21st Century Fuel, LLC), McBreen & Kopco
READ FULL TEXT OF DECISION
Here, both the Management Agreement and the Sublease are dated April 23, 2003. They govern different businesses on the same property. Each refers to the other. The relevant language in the sublease is very broad and states that a violation of the Management Agreement is a default under the sublease (Sublease, Article XIII[a][ix]). In addition, the Management Agreement is expressly incorporated by reference in the sublease. In contrast, according to the Management Agreement, only a default under the sublease by YTK is a default under the Management Agreement (Management Agreement, ¶8[b]). In other words, a breach of the Management Agreement by Penny does not automatically constitute a default under the sublease with Century. Under these circumstances, the two contracts must be viewed as independent. Thus, YTK's insistence that a breach of the Management Agreement justifies its failure or refusal to pay rent under the sublease is unsupported...
Tuesday, April 10, 2007
NYCTL 1997-1 Trust v. Hirakis, Index No. 21154/01
Make sure you pay your taxes and water bills!! You can't win with the DEP.
Decided: March 28, 2007
Justice Ira B. Harkavy, KINGS COUNTY, Supreme Court
Read Full Decision Here
Mr. Hirakis is the current owner of the premises. He purchased the premises at auction in 1997, subject to the liens held by plaintiffs. Mr. Hirakis claims that after he purchased the premises, he attempted to establish with the City the amount of unpaid water charges which he owed on the property. He claims that premises had been erroneously billed for usage based upon both "frontage" and "metered" billing, rather than one or the other...
The new evidence reveals, inter alia, that the lien at issue was not comprised solely of DEP charges, i.e. water and wastewater charges, but that it was comprised almost entirely of DOF charges, including unpaid real estate taxes. Of the approximately $36,000 lien, it appears that $32,745.38 was a DOF lien and $3,372.37 was a DEP lien. DEP records submitted as evidence reveal that of the $3,371.37 DEP lien, the DEP reversed $2,210.06, so that only $1,162.31, plus interest, in DEP charges should have been included as part of the lien sale.2 The Court notes that Mr. Hirakis has not challenged the DOF charges, which includes unpaid real estate taxes and which makes up the bulk of the lien held by plaintiffs.
Plaintiffs' motion for summary judgment is granted.
Plaintiffs shall settle an order on notice appointing a Referee to ascertain and compute the total sum due and owing to the plaintiffs, and for such other relief as is consistent with this Decision, Opinion and Order of this Court.
Decided: March 28, 2007
Justice Ira B. Harkavy, KINGS COUNTY, Supreme Court
Read Full Decision Here
Mr. Hirakis is the current owner of the premises. He purchased the premises at auction in 1997, subject to the liens held by plaintiffs. Mr. Hirakis claims that after he purchased the premises, he attempted to establish with the City the amount of unpaid water charges which he owed on the property. He claims that premises had been erroneously billed for usage based upon both "frontage" and "metered" billing, rather than one or the other...
The new evidence reveals, inter alia, that the lien at issue was not comprised solely of DEP charges, i.e. water and wastewater charges, but that it was comprised almost entirely of DOF charges, including unpaid real estate taxes. Of the approximately $36,000 lien, it appears that $32,745.38 was a DOF lien and $3,372.37 was a DEP lien. DEP records submitted as evidence reveal that of the $3,371.37 DEP lien, the DEP reversed $2,210.06, so that only $1,162.31, plus interest, in DEP charges should have been included as part of the lien sale.2 The Court notes that Mr. Hirakis has not challenged the DOF charges, which includes unpaid real estate taxes and which makes up the bulk of the lien held by plaintiffs.
Plaintiffs' motion for summary judgment is granted.
Plaintiffs shall settle an order on notice appointing a Referee to ascertain and compute the total sum due and owing to the plaintiffs, and for such other relief as is consistent with this Decision, Opinion and Order of this Court.
Monday, April 9, 2007
Matter of Newport Partners LLC v. N.Y.S. Division of Housing and Community Renewal, Index No. 112525/06
Decided: March 19, 2007
Justice Herman Cahn, NEW YORK COUNTY, Supreme Court
Petitioner was represented by Heiberger & Associates. PC, Ricardo Vasquez, Esq.
Respondent was represented in-house at the New York State Division of Housing and Community Renewal, David B. Cabrera, Esq.
full decision HERE
In Short: When involved with real estate KEEP GOOD RECORDS or else
Justice Herman Cahn, NEW YORK COUNTY, Supreme Court
Petitioner was represented by Heiberger & Associates. PC, Ricardo Vasquez, Esq.
Respondent was represented in-house at the New York State Division of Housing and Community Renewal, David B. Cabrera, Esq.
full decision HERE
In Short: When involved with real estate KEEP GOOD RECORDS or else
Friday, April 6, 2007
Paniccioli v Division of Hous. & Community Renewal, Index No. 21233/06
Decided: March 19, 2007
Justice Yvonne Lewis, KINGS COUNTY, Supreme Court
Plaintiff: Angelyn D. Johnson, Esq.
Defendant: DHCR
Papers, petitioner Estate of Ernest Paniccioli, deceased by Wendy Panniccioli, administrator ("petitioner") seeks judicial review, under article 78 of the CPLR, of an order issued by respondent Division of Housing and Community Renewal ("DHCR") dated May 16, 2006, which denied petitioner's petition for administrative review ("PAR") and affirmed a decision of the Rent Administrator ("RA").
Petitioner is the owner of an apartment building located at 155 Hicks Street in Brooklyn. Cindy Goulder took occupancy of apartment 5A in the subject building in February 1971. Allegedly, after decedent petitioner Ernest Paniccioli ("Paniccioli") became the owner of the building in 1990, a dispute arose between Paniccioli and Goulder with respect to an occupant in the subject apartment characterized by Paniccioli as an illegal subtenant. On August 28, 1992, Paniccioli and Goulder entered into an agreement (hereinafter the "vacate agreement") whereby Goulder agreed to vacate the apartment by February 28, 1993 in return for $10,000 and free rent for the remaining six months of her occupancy. Goulder, however, did not vacate the apartment by February 28, 1993 as set forth in the vacate agreement. The vacate agreement was thereafter renegotiated between Goulder and Paniccioli to provide that Goulder could retain the $10,000 and continue her occupancy of the apartment for a decontrolled rent of $600 per month with annual increases of 10 percent. This arrangement continued through April 1998, at which time Goulder paid a rent of $726.
On February 24, 1999, the DHCR received a rent overcharge complaint from Goulder, wherein she alleged that Paniccioli had illegally increased the rent without obtaining the proper authorizations from the DHCR. Goulder thereafter submitted to the DHCR various documents demonstrating her continuous tenancy since February 1971 and claimed that she signed the vacate agreement under duress and without the benefit of counsel. On November 3, 2000, the RA issued an order determining that the apartment was still subject to rent control, and established the maximum collectible rent at $155.77. Paniccioli filed a PAR on December 4, 2000, wherein he argued that Goulder agreed to vacate the apartment or become a decontrolled tenant upon receiving $10,000 from Paniccioli. On February 27, 2001, the Deputy Commissioner issued an order granting the PAR in part and remanding the proceedings to the RA. The Deputy Commissioner determined that the RA properly found the apartment to be subject to rent control, and was justified in refusing to enforce the vacate agreement on the ground that it constituted a waiver of rent control benefits in violation of Section 2200.15 of the Rent and Eviction Regulations. However, the Deputy Commissioner stated that in light of the "peculiar circumstances" of the case, the proceeding should be remanded for a determination of whether the vacate agreement and the payment of $10,000 to Goulder might have kept Paniccioli from applying to the DHCR for the increases to which he would have been entitled under the Rent Control Law.
Following the remand of the proceeding and after accepting further submissions by the parties, the RA issued an order, dated September 18, 2003, whereby the maximum collectible rent was increased to $371.00 per month effective October 1, 2003. The RA determined that Goulder's acceptance of a lump sum payment for signing the vacate agreement, and Paniccioli's good faith reliance upon the same were unusual circumstances which caused Paniccioli to not apply for rent control increases since the execution of the vacate agreement, and as a result it was appropriate to grant an increase in rent pursuant to section 2202.7 of the Rent and Eviction Regulations (Unique and Peculiar Circumstances). On October 27, 2003, Paniccioli filed a PAR, wherein he contended that the RA's order "does not consider that [Goulder] illegally subletted the premises, took $10,000 to vacate and charged the subtenant $500 p/month…
The instant article 78 proceeding ensued. Petitioner challenges the DHCR's determination on several grounds, including the alleged failure of the agency to consider the affidavits submitted in support of the PAR , its failure to address or determine the illegal sublet and profiteering issues, the failure of the agency to set a market rent, and the failure of the agency to consider and enforce the vacate agreement entered into by Goulder and Paniccioli…
It would be inherently unfair for DHCR to allow this tenant to retain a $10,000.00 payment made to decontrol an apartment that is retaining its rent-control status. By doing so, DHCR would either be awarding the tenant an abatement of approximately $75.76 per month from 1992 to 2003 (11 years; i.e., from the date of the parties' agreement to the date of the rent increase) or deferring the rent increase for 46.51 months or 3.89 years (($10,000.00 divided by the net rent increase of $215.00), as aforementioned, for no discernible reason. Both outcomes constitute an abuse of discretion that this court cannot sanction as rationally or non-arbitrarily arrived at.
Wherefore, the instant article 78 petition is granted and the matter is remitted directing that the petitioner must be afforded a rent increase under the "unique and peculiar" analysis, effective as of the parties' agreement date of 9/92, and in such manner as would compensate for the $10,000.00 credit (in effect) that the tenant reaped as a result of the parties' agreement that has already been determined to have created the unique and peculiar circumstances warranting a rent increase.
The foregoing constitutes the decision, order and judgment of the court.
Justice Yvonne Lewis, KINGS COUNTY, Supreme Court
Plaintiff: Angelyn D. Johnson, Esq.
Defendant: DHCR
Papers, petitioner Estate of Ernest Paniccioli, deceased by Wendy Panniccioli, administrator ("petitioner") seeks judicial review, under article 78 of the CPLR, of an order issued by respondent Division of Housing and Community Renewal ("DHCR") dated May 16, 2006, which denied petitioner's petition for administrative review ("PAR") and affirmed a decision of the Rent Administrator ("RA").
Petitioner is the owner of an apartment building located at 155 Hicks Street in Brooklyn. Cindy Goulder took occupancy of apartment 5A in the subject building in February 1971. Allegedly, after decedent petitioner Ernest Paniccioli ("Paniccioli") became the owner of the building in 1990, a dispute arose between Paniccioli and Goulder with respect to an occupant in the subject apartment characterized by Paniccioli as an illegal subtenant. On August 28, 1992, Paniccioli and Goulder entered into an agreement (hereinafter the "vacate agreement") whereby Goulder agreed to vacate the apartment by February 28, 1993 in return for $10,000 and free rent for the remaining six months of her occupancy. Goulder, however, did not vacate the apartment by February 28, 1993 as set forth in the vacate agreement. The vacate agreement was thereafter renegotiated between Goulder and Paniccioli to provide that Goulder could retain the $10,000 and continue her occupancy of the apartment for a decontrolled rent of $600 per month with annual increases of 10 percent. This arrangement continued through April 1998, at which time Goulder paid a rent of $726.
On February 24, 1999, the DHCR received a rent overcharge complaint from Goulder, wherein she alleged that Paniccioli had illegally increased the rent without obtaining the proper authorizations from the DHCR. Goulder thereafter submitted to the DHCR various documents demonstrating her continuous tenancy since February 1971 and claimed that she signed the vacate agreement under duress and without the benefit of counsel. On November 3, 2000, the RA issued an order determining that the apartment was still subject to rent control, and established the maximum collectible rent at $155.77. Paniccioli filed a PAR on December 4, 2000, wherein he argued that Goulder agreed to vacate the apartment or become a decontrolled tenant upon receiving $10,000 from Paniccioli. On February 27, 2001, the Deputy Commissioner issued an order granting the PAR in part and remanding the proceedings to the RA. The Deputy Commissioner determined that the RA properly found the apartment to be subject to rent control, and was justified in refusing to enforce the vacate agreement on the ground that it constituted a waiver of rent control benefits in violation of Section 2200.15 of the Rent and Eviction Regulations. However, the Deputy Commissioner stated that in light of the "peculiar circumstances" of the case, the proceeding should be remanded for a determination of whether the vacate agreement and the payment of $10,000 to Goulder might have kept Paniccioli from applying to the DHCR for the increases to which he would have been entitled under the Rent Control Law.
Following the remand of the proceeding and after accepting further submissions by the parties, the RA issued an order, dated September 18, 2003, whereby the maximum collectible rent was increased to $371.00 per month effective October 1, 2003. The RA determined that Goulder's acceptance of a lump sum payment for signing the vacate agreement, and Paniccioli's good faith reliance upon the same were unusual circumstances which caused Paniccioli to not apply for rent control increases since the execution of the vacate agreement, and as a result it was appropriate to grant an increase in rent pursuant to section 2202.7 of the Rent and Eviction Regulations (Unique and Peculiar Circumstances). On October 27, 2003, Paniccioli filed a PAR, wherein he contended that the RA's order "does not consider that [Goulder] illegally subletted the premises, took $10,000 to vacate and charged the subtenant $500 p/month…
The instant article 78 proceeding ensued. Petitioner challenges the DHCR's determination on several grounds, including the alleged failure of the agency to consider the affidavits submitted in support of the PAR , its failure to address or determine the illegal sublet and profiteering issues, the failure of the agency to set a market rent, and the failure of the agency to consider and enforce the vacate agreement entered into by Goulder and Paniccioli…
It would be inherently unfair for DHCR to allow this tenant to retain a $10,000.00 payment made to decontrol an apartment that is retaining its rent-control status. By doing so, DHCR would either be awarding the tenant an abatement of approximately $75.76 per month from 1992 to 2003 (11 years; i.e., from the date of the parties' agreement to the date of the rent increase) or deferring the rent increase for 46.51 months or 3.89 years (($10,000.00 divided by the net rent increase of $215.00), as aforementioned, for no discernible reason. Both outcomes constitute an abuse of discretion that this court cannot sanction as rationally or non-arbitrarily arrived at.
Wherefore, the instant article 78 petition is granted and the matter is remitted directing that the petitioner must be afforded a rent increase under the "unique and peculiar" analysis, effective as of the parties' agreement date of 9/92, and in such manner as would compensate for the $10,000.00 credit (in effect) that the tenant reaped as a result of the parties' agreement that has already been determined to have created the unique and peculiar circumstances warranting a rent increase.
The foregoing constitutes the decision, order and judgment of the court.
Tuesday, April 3, 2007
322 West 57th Owner LLC v. Penhurst Productions Inc., Index No. 63319/06
Decided: March 19, 2007
Hon. David B. Cohen, NEW YORK COUNTY, Civil Court
Pollack & Sharan, LLP, Attorneys for Petitioner, by: Adam Paul Pollack, Esq.
Himmelstein McConnell Gribben Donoghue & Joseph, Attorneys for Respondents
by: Kevin R. McConnell, Esq., Janet Ray Kalson, Esq.
Read full decision here
I. Question Presented
Whether unregulated holdover tenants may invoke the protection of the Martin Act to avoid eviction by the sponsor of a non-eviction condominium conversion plan, which has been accepted for filing by the Attorney General?
Respondents are tenants residing at the Sheffield, who are holding over beyond the time of their expired unregulated leases. Twenty-three (23) distinct holdover proceedings brought by petitioner are currently pending against respondents, with the proceedings against respondent Penhurst Productions, Inc. ("Penhurst"), having the lowest index number.1 Because all respondents are in substantially similar circumstances, all parties have stipulated to be bound by the court's decision on the case against Penhurst, including the motion to dismiss on Martin Act grounds.
B. Factual Background
Petitioner, as sponsor, is attempting to convert the Sheffield from rental to condominium ownership. In June 2005 petitioner submitted a proposed offering plan ("the plan") to the New York State Department of Law for review by the New York State Attorney General ("Attorney General"), and provided the tenants of the Sheffield with copies of the plan. All respondents reside in unregulated apartments; their leases have now expired and have not been renewed.
On June 22, 2006, the petitioner's condominium conversion plan was accepted for filing by the Attorney General. Subsequent to the submission of the plan, and prior to its acceptance by the Attorney General, the petitioner served notice on the respondents that it would not be renewing their leases. When the respondents did not vacate, petitioner commenced these summary holdover proceedings in Housing Court...
C. Protections Afforded to Tenants in Non-Eviction Plans
The Martin Act provides a number of protections to existing tenants in buildings undergoing conversion under a non-eviction plan, including: (1) the right to purchase one's apartment or the shares allocated thereto (GBL §353-eeee [2] [c] [i]); (2) the corresponding right to be free from eviction in the event one chooses not to purchase their dwelling or for any other reason applicable to "expiration of tenancy" (GBL §353-eeee [2] [c] [ii]); and (3) protection from unconscionable rent increases, harassment, and other conduct which "substantially interferes" with the use and occupancy of one's dwelling (GBL §353-eeee [2] [c] [iv]; [4])...
IV. Respondents Fall Within the Class of Individuals Protected by The Martin Act
A. "Tenants In Occupancy" Are Protected by the Martin Act
B. Respondents Are "Tenants In Occupancy" Entitled to Protection
V. Dismissal of the Housing Court Proceedings Are Warranted
The Martin Act gives respondents the right to be free from eviction in the event they choose not to purchase their dwellings or for any other reason applicable to "expiration of tenancy"...Further, respondents are protected from any conduct which "substantially interferes" with their use and occupancy of the subject dwellings
VI. Conclusions
In light of the Attorney General's acceptance of the non-eviction plan for the subject residential building, respondents are protected from "no cause" holdover eviction proceedings by the Martin Act (GBL §352-eeee [2] [c] [ii], §352-eeee [4]). Accordingly, the petitioner's holdover proceedings against respondents are dismissed.
This constitutes the decision and order of this court.
Hon. David B. Cohen, NEW YORK COUNTY, Civil Court
Pollack & Sharan, LLP, Attorneys for Petitioner, by: Adam Paul Pollack, Esq.
Himmelstein McConnell Gribben Donoghue & Joseph, Attorneys for Respondents
by: Kevin R. McConnell, Esq., Janet Ray Kalson, Esq.
Read full decision here
I. Question Presented
Whether unregulated holdover tenants may invoke the protection of the Martin Act to avoid eviction by the sponsor of a non-eviction condominium conversion plan, which has been accepted for filing by the Attorney General?
Respondents are tenants residing at the Sheffield, who are holding over beyond the time of their expired unregulated leases. Twenty-three (23) distinct holdover proceedings brought by petitioner are currently pending against respondents, with the proceedings against respondent Penhurst Productions, Inc. ("Penhurst"), having the lowest index number.1 Because all respondents are in substantially similar circumstances, all parties have stipulated to be bound by the court's decision on the case against Penhurst, including the motion to dismiss on Martin Act grounds.
B. Factual Background
Petitioner, as sponsor, is attempting to convert the Sheffield from rental to condominium ownership. In June 2005 petitioner submitted a proposed offering plan ("the plan") to the New York State Department of Law for review by the New York State Attorney General ("Attorney General"), and provided the tenants of the Sheffield with copies of the plan. All respondents reside in unregulated apartments; their leases have now expired and have not been renewed.
On June 22, 2006, the petitioner's condominium conversion plan was accepted for filing by the Attorney General. Subsequent to the submission of the plan, and prior to its acceptance by the Attorney General, the petitioner served notice on the respondents that it would not be renewing their leases. When the respondents did not vacate, petitioner commenced these summary holdover proceedings in Housing Court...
C. Protections Afforded to Tenants in Non-Eviction Plans
The Martin Act provides a number of protections to existing tenants in buildings undergoing conversion under a non-eviction plan, including: (1) the right to purchase one's apartment or the shares allocated thereto (GBL §353-eeee [2] [c] [i]); (2) the corresponding right to be free from eviction in the event one chooses not to purchase their dwelling or for any other reason applicable to "expiration of tenancy" (GBL §353-eeee [2] [c] [ii]); and (3) protection from unconscionable rent increases, harassment, and other conduct which "substantially interferes" with the use and occupancy of one's dwelling (GBL §353-eeee [2] [c] [iv]; [4])...
IV. Respondents Fall Within the Class of Individuals Protected by The Martin Act
A. "Tenants In Occupancy" Are Protected by the Martin Act
B. Respondents Are "Tenants In Occupancy" Entitled to Protection
V. Dismissal of the Housing Court Proceedings Are Warranted
The Martin Act gives respondents the right to be free from eviction in the event they choose not to purchase their dwellings or for any other reason applicable to "expiration of tenancy"...Further, respondents are protected from any conduct which "substantially interferes" with their use and occupancy of the subject dwellings
VI. Conclusions
In light of the Attorney General's acceptance of the non-eviction plan for the subject residential building, respondents are protected from "no cause" holdover eviction proceedings by the Martin Act (GBL §352-eeee [2] [c] [ii], §352-eeee [4]). Accordingly, the petitioner's holdover proceedings against respondents are dismissed.
This constitutes the decision and order of this court.
Monday, April 2, 2007
Kwiecinski v Sea Breeze II Condominium Association (Index No. 1595/98)
Kwiecinski v Sea Breeze II Condominium Association (Index No. 1595/98)
By Schmidt, J.P.; Santucci, Rivera and Spolzino, JJ.
Joyce Kwiecinski, appellant,
v.
Sea Breeze II Condominium Association, etc. res
Joyce Kwiecinski, Long Beach, N.Y. (John Decolator of counsel), appellant pro se.
Tromello, McDonnell & Kehoe, Melville, N.Y. (A.G. Chancellor III of counsel), for respondents.
In 1997 the condominium board of a condominium complex known as Sea Breeze II (hereinafter the board) hired a contractor to perform repair work on the exterior of the building at a cost of $52,296. The contractor agreed to finance the project over a two-year period and the board executed a note in the amount of $52,296. The board imposed a special assessment on all unit owners to cover the cost of the repairs. The unit owners did not vote on the decision to execute the note or on the imposition of the special assessment. The by-laws of the condominium provided that "the affirmative consent of at least two-thirds, both in number and in aggregate Common Interests, of all Unit Owners shall be required for the borrowing of any sum in excess of $50,000 in any one fiscal year."
The plaintiff, a unit owner in the condominium, commenced this action alleging, inter alia, that the board violated the condominium's by-laws in borrowing in excess of $50,000 without the requisite approval of the unit owners. The defendants moved for summary judgment dismissing the complaint. The Supreme Court, inter alia, granted that branch of the defendants' motion which was for summary judgment dismissing the eighth cause of action finding, inter alia, that the board did not violate the condominium's by-laws.
A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557). Here, the defendants failed to demonstrate the absence of any triable issue of fact with respect to the plaintiff's claim that they violated the condominium's by-laws in borrowing more than $50,000 in 1997 without the requisite approval of the unit owners. Therefore, the submissions in support of the motion were insufficient to make out a prima facie case for summary judgment (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Zuckerman v City of New York, supra). Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was for summary judgment dismissing the eighth cause of action.
The plaintiff's remaining contentions have been rendered academic in light of our determination.
SCHMIDT, J.P., SANTUCCI, RIVERA and SPOLZINO, JJ., concur.
By Schmidt, J.P.; Santucci, Rivera and Spolzino, JJ.
Joyce Kwiecinski, appellant,
v.
Sea Breeze II Condominium Association, etc. res
Joyce Kwiecinski, Long Beach, N.Y. (John Decolator of counsel), appellant pro se.
Tromello, McDonnell & Kehoe, Melville, N.Y. (A.G. Chancellor III of counsel), for respondents.
In 1997 the condominium board of a condominium complex known as Sea Breeze II (hereinafter the board) hired a contractor to perform repair work on the exterior of the building at a cost of $52,296. The contractor agreed to finance the project over a two-year period and the board executed a note in the amount of $52,296. The board imposed a special assessment on all unit owners to cover the cost of the repairs. The unit owners did not vote on the decision to execute the note or on the imposition of the special assessment. The by-laws of the condominium provided that "the affirmative consent of at least two-thirds, both in number and in aggregate Common Interests, of all Unit Owners shall be required for the borrowing of any sum in excess of $50,000 in any one fiscal year."
The plaintiff, a unit owner in the condominium, commenced this action alleging, inter alia, that the board violated the condominium's by-laws in borrowing in excess of $50,000 without the requisite approval of the unit owners. The defendants moved for summary judgment dismissing the complaint. The Supreme Court, inter alia, granted that branch of the defendants' motion which was for summary judgment dismissing the eighth cause of action finding, inter alia, that the board did not violate the condominium's by-laws.
A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557). Here, the defendants failed to demonstrate the absence of any triable issue of fact with respect to the plaintiff's claim that they violated the condominium's by-laws in borrowing more than $50,000 in 1997 without the requisite approval of the unit owners. Therefore, the submissions in support of the motion were insufficient to make out a prima facie case for summary judgment (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Zuckerman v City of New York, supra). Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was for summary judgment dismissing the eighth cause of action.
The plaintiff's remaining contentions have been rendered academic in light of our determination.
SCHMIDT, J.P., SANTUCCI, RIVERA and SPOLZINO, JJ., concur.
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