Eviction Prevention Archives

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. 

Small Start-Up Obtains "Yellowstone", Avoids Eviction and is Thriving

A small start-up company had just entered its lease for the office space in the Flatiron District. The Lease, especially the rent, was an essential part of the start-up company's business plan.

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

My name is Samuel Himmelstein, 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.

Two Recent Decisions: Courts Find Tenants To Be Rent Stabilized

Landlords will often rent apartments to tenants claiming that they are not rent stabilized when in fact they are. In two recent cases, the Housing Court found for the tenants. Ron Languedoc represented the tenant in Raywood. Sam Himmelstein and Ron Languedoc represented the tenant in Shomron.

Small Leak Big Case

A small leak developed in the closet ceiling of apartment 15L, a coop apartment. The Coop's engineer's opinion was that it was caused by a leak from the bathroom in apartment 16L. The 16L apartment owner retained our firm and an engineer whose opinion was that the leak was not emanating from our client's bathroom but rather from pipes higher up in the building.

Succession Rights: A Harsh New Landscape For Tenants And Their Families-Part I

Over the years, I have successfully represented many clients in succession cases. In the past, succession rights cases were straightforward and simple. Generally, a practitioner would look at three (3) factors: (a) first, the date the tenant of record left or vacated the premises; (b) second, whether the person asserting succession rights and the tenant of record had a close traditional or "Braschi1" family relationship; and (c) third, whether the putative successor resided with the tenant of record for at least two years prior to the date the latter left or vacated. Succession was almost guaranteed to a remainder family member who could prove these three factors.

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