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Posts tagged "housing court"

When Your Landlord Refuses To Live Up To An Agreement in Court

Whether your landlord is suing you for eviction, or you are suing your landlord for repairs, being in court takes its toll. Resources get depleted. Tenants have to take off from work, pay an attorney to represent them, and live with the stress of an unknown outcome.

Owner Use Abuse

Our firm recently won a huge victory in a long, bitter and hard fought case entitled Samra v. Messeca. The case was an example of our work in eviction prevention. This was what is known as an "owner use" proceeding-an eviction case brought against a rent stabilized tenant because the landlord claims that they want to have an immediate family member-in this case one of the landlord's daughters- occupy the unit. In order to prevail in such a case, the landlord only needs to establish that he or she has a good faith, honest intention to have the family member live in the unit. Landlords frequently use owner occupancy as a ruse to evict rent stabilized tenants. This case was a textbook example of bad faith. There had been a long history of animosity between the tenant and the landlords. After recovering another apartment under the guise of owner occupancy, the family member for whom the apartment was sought did not move in; instead the landlord destabilized it and quadrupled the rent. Moreover, there were other apartments available which the landlord could have moved his daughter into, and blatant harassment of the tenant. In order to maintain an owner use case, the building must be owned by individuals; in this case, although the deed was transferred to an individual, the building was still managed and operated through a corporation. Tellingly, the landlord had attempted to coerce the tenant into accepting de facto and illegal deregulation of her apartment years before this case began, by suggesting that if she failed to agree, the landlord would evict her in an owner occupancy case. The court, in a 19 page decision, dismissed the case, citing these many factors and held that the landlord did not have a good faith desire to have his daughter occupy the apartment; in effect the court found that the landlord was lying and that the case was a sham. The tenant in this case was represented by Janet Ray Kalson and Sam Himmelstein.

Court Dismisses Chronic Non-Payment Claim where Non-Payment Proceedings Occurred More than Six Years Ago

Repeated failures to pay rent which result in non-payment proceedings could result in eviction on the basis of "chronic non-payment."  While there is no specific number of non-payments that could result in eviction, Tenants have been evicted where there have been nine non-payments in three years. Not all non-payments count, however.  In a recent Bronx County Housing Court case, Mins Court Housing v. Wright, the landlord alleged that there were 12 prior non-payment proceedings in the last 22-years.  The Court, however, dismissed the case finding that nine of the proceedings occurred more than six years ago and therefore were barred by the six-year statute of limitations for contract claims.  In addition, in two of the more recent proceedings, the tenant had warranty of habitability or overcharge defenses.  Non-payment proceedings where a tenant has valid defenses  such as a bona fide habitability claim or dispute over the amount of rent owed rent do not count in a chronic non-payment case.  A mere inability to pay due to lack of money may excuse an isolated instance of non-payment but is not however a valid defense to chronic non-payment. 

A Mystery: Tenants in Buildings Receiving 421-G Located in the Financial District Show Little Interest in Securing Rent Stabilization Protections/Rights

On December 23, 2009, attorneys at the law firm of Himmelstein, McConnell, Gribben, Donoghue and Joseph secured a potentially major victory for tenants in New York City.

Can I Sublet My Apartment?

Most residential leases prohibit subleasing. However, a statute, Real Property Law section 226-b, titted "Right to Sublet", gives the appearance that despite the lease prohibition you can go ahead and sublet. You would not be faulted if you believed that. Alas, it is not that easy and sometimes acts as a trap to the unaware.

Judge Finds That Rent Has to be Set Based Upon the "Default Formula"

In the 1980's, a Brooklyn brownstone containing 7 units was converted to 4 units. None of the units were ever registered with the DHCR. A duplex unit was occupied by the owners from 1998 to 2008. In 2008, these owners sold the building, and the new owners rented the duplex to new tenants. They were given a "market" lease and paid the rent demanded for 4 years. In 2012, a Housing Court Judge determined that the tenants were rent stabilized and ordered a trial on rent overcharge. After trial, Housing Court Judge McClanahan found, in Chun v. Raywood, that the legal rent had to be set based on the DHCR's "default formula," a calculation used when no reliable rental history records are available, and ordered the owners to refund the amount overpaid for the past 4 years, plus interest. Under the "default formula" the rent could be set on the basis of the lowest rent stabilized rent for a comparable apartment in the same line of apartments, or on other alternative formulas that would generally result in a lower rent.

TESTIMONY OF DAVID HERSHEY-WEBB OPPOSING PROPOSED AMENDMENTS TO RULES GOVERNING CITY-AIDED LIMITED PROFIT HOUSING COMPANIES AT HPD HEARING ON NOVEMBER 6, 2013

My name is David Hershey-Webb, I am a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph. We represent tenants, tenants associations, co-op shareholders and condo unit owners. Over the years we have represented numerous Mitchell Lama Tenants Associations and individual tenants. Most recently I argued and won a case at the New York State Court of Appeals, Murphy v. DHCR, which upheld the right of succession for Mitchell Lama family members, including non-traditional family members, in DHCR supervised buildings.

Owner Use Abuse

Last week our firm week won a huge victory in a long, bitter and hard fought housing court case entitled Samra v. Messeca. This was what is known as an "owner use" proceeding-an eviction case brought against a rent stabilized tenant because the landlord claims that they want to have an immediate family member-in this case one of the landlord's daughters- occupy the unit. In order to prevail in such a case, the landlord only needs to establish that he or she has a good faith, honest intention to have the family member live in the unit. Landlords frequently use owner occupancy as a ruse to evict rent stabilized tenants This case was a textbook example of bad faith. There had been a long history of animosity between the tenant and the landlords. After recovering another apartment under the guise of owner occupancy, the family member for whom the apartment was sought did not move in; instead the landlord destabilized it and quadrupled the rent. Moreover, there were other apartments available which the landlord could have moved his daughter into, and blatant harassment of the tenant. In order to maintain an owner use case, the building must be owned by individuals; in this case, although the deed was transferred to an individual, the building was still managed and operated through a corporation. Tellingly, the landlord had attempted to coerce the tenant into accepting de facto and illegal deregulation of her apartment years before this case began, by suggesting that if she failed to agree, the landlord would evict her in an owner occupancy case. The court, in a 19 page decision, dismissed the case, citing these many factors and held that the landlord did not have a good faith desire to have his daughter occupy the apartment; in effect the court found that the landlord was lying and that the case was a sham. The tenant in this case was represented by Janet Ray Kalson and Sam Himmelstein.

Agreement by Tenant to Vacate Set Aside

Approximately 95% of tenants in housing court are not represented by attorneys. One of the results is that tenants often enter into agreements (or "stipulations") to give up their apartment even when they may have a strong defense to the case against them. In a recent Kings County housing court case, Wilson v. Burda, NYLJ 8/7/13, Judge Finklestein set aside an agreement to vacate that the tenant entered into three years before. The landlord had brought a case to evict the tenant solely because he had not provided access for extermination of bedbugs. Rather than defend the case, the tenant agreed to move out. The tenant never did move out but instead made a motion to set aside the agreement. The court, in setting aside the agreement, found that it was unduly harsh and one-sided, signed inadvertently, improvidently and worked a severe prejudice and detriment to tenant. Even though the tenant was successful in this case two key lessons are - do not deny access for extermination of bedbugs (unless you have a very good reason and have consulted with an attorney), and if at all possible do not sign an agreement to move out of your apartment without having an attorney look at it first.

Non-Payment Dismissed Where Landlord Refused Tendered Rent

New York Housing Court Judge Sabrina B. Kraus recently dismissed a landlords non-payment proceeding on the grounds that the landlord had repeatedly refused rent which the tenant tried to pay. The defense is known as "tender and refusal." Windermere vs. Mulla, NYLJ, 8/7/13. The tenant had been subject to repeated court proceedings by the landlord which had been either settled or discontinued. In one case the landlord failed to file any opposition papers and in the non-payment proceeding the landlord failed to refute the tenants claim that it had refused rent. Landlords often try to wear down tenants with repeated meritless proceedings.