Residential Landlord-Tenant Law and Procedure

New York Lawyers Practical Skills Series Residential Landlord-Tenant Law and Procedure Honorable Gerald Lebovits * Damon P. Howard, Esq. Michael B. Terk, Esq. 2012 2013 * The authors of this fifth (2012 2013) edition thank Victor S. Faleck, Esq., for his co-authorship of the second (2009 2010) and third (2010 2011) editions and Dan M. Blumenthal, Esq., for his co-authorship of the first (2008 2009) edition. For their research on the fourth (2011 2012) edition, the authors thank Judge Lebovits s judicial interns Daphne Bareket (Florida International), Alison Genova (Fordham), and Hailey B. Render (Syracuse). For their research on the third edition, the authors thank then-new York Law School students Deena M. Crimaldi and Alana Sliwinski. For their research on the second edition, the authors thank Judge Lebovits s judicial interns P. Alex de Richemont (Harvard), Mariella Soussou (Fordham), and Mary Jane Yoon (Columbia). For their research on the first edition, the authors thank Mary Ann Amodeo, Esq., Judge Lebovits s court attorney Alexandra Standish, Esq., and Judge Lebovits s judicial interns Alana Wrublin (Fordham), Victor J. Brubaker (New York Law School), and Stephanie L. Torre (New York Law School). For writing the section on the Buffalo Housing Court and for providing the Buffalo Housing Court forms, the authors thank former Buffalo City Court judge, and now Supreme Court justice, Henry Nowak and now-retired court attorney/referee Mark Doane, Esq. For writing the section on the Justice Courts, a section new to the fifth edition, the authors also thank Town of Bethlehem Justice Ryan Donovan and 2012 Albany Law School graduate Katelyn Primono. NEW YORK STATE BAR ASSOCIATION

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CONTENTS I. Introduction... 1 II. The Tenancy... 2 A. Market Rentals... 7 1. The Parties... 9 2. The Premises... 12 3. Rent... 13 4. Default... 13 5. Legal Fees Provisions... 15 6. Recording of Leases... 17 B. Rent Regulation... 17 1. Rent-Controlled Premises... 18 2. Rent-Stabilized Premises... 21 a. Rent Stabilization Overview... 21 b. Tenants Rights Under Rent Stabilization... 23 c. Exemptions From Rent Stabilization... 25 3. Rent-Overcharge Claims... 28 4. Succession Rights... 31 5. Preferential Rents... 33 C. Public Housing... 34 D. Section 8 (Tenant and Project-Based) Housing... 36 1. The Voucher Program... 36 2. Project-Based Section 8... 41 E. Cooperatives and Condominiums... 41 1. Cooperatives Generally... 41 2. Cooperative and Condominium Conversions... 43 3. Condominiums... 45 4. Cooperative and Condominium Summary Proceedings in New York City... 45 5. Subsidized/Regulated Cooperatives Under the Private Housing Finance Law... 45 a. Housing Development Fund Companies... 45 b. Limited-Profit Housing Companies (Mitchell-Lama Housing)... 46 F. Lofts... 47 G. Single-Room Occupancies (SROs)... 49 III. Tenancy Protections... 50 A. Housing Discrimination... 50 B. Warranty of Habitability... 52 IV. Conveying the Tenancy... 56 V. Summary Proceedings... 58 A. Introduction to Summary Proceedings... 58 1. Overview... 58 2. The Basic Structure of Modern Summary Proceedings... 61 a. Pleadings... 61 b. Governing Procedural Statutes... 62 c. Counterclaims and Jury Waivers... 62 d. Attorney Fees and Costs... 62 e. Types of Summary Proceedings... 63 iii

B. Holdover Proceedings... 63 1. Holdover Proceedings Against Tenants... 64 2. Grounds for Holdover Proceeding Against Tenants Breach of a Substantial Obligation of the Tenancy... 66 a. Unauthorized Sublets... 66 b. Pets... 69 c. Alterations... 71 d. Security Deposit... 72 e. Broker s Fee... 72 f. Specified Use or Purpose... 72 3. Grounds for Holdover Proceedings Against Tenants Wrongful Acts of Tenants and Nuisance... 73 a. Nuisance... 73 b. Hoarding... 75 c. Chronic Late Payment of Rent... 75 d. Access... 76 e. Destruction of the Premises... 77 f. Illegal Occupancy... 77 g. Illegal Use... 78 4. Grounds for Holdover Proceedings Against Tenants Separate Grounds to Recover Rent-Regulated Units... 81 a. Non-primary Residence... 81 b. Owner s Use... 84 c. Recovery for Use by Nonprofit Institution... 87 d. Demolition... 88 e. Withdrawal From the Rental Market... 89 f. Eviction Plan... 89 g. Failure to Renew... 89 h. Profiteering... 90 5. Grounds for Holdover Proceedings Against Nontenants... 90 a. Proceedings by Purchasers in Foreclosure... 90 b. Licensee Proceedings... 91 c. Squatters... 93 d. Occupant Remaining in Possession After Sale of the Premises... 93 e. Vendee in Possession After Default Under Contract of Sale... 94 f. Occupant Under Cultivation Agreement... 94 g. Employer-Employee Proceedings... 94 h. Occupant After Termination of Life Estate... 95 i. Occupant by Forcible or Unlawful Entry... 96 6. Predicate Notices... 96 a. Overview... 96 b. Notice to Cure... 96 c. Notice of Termination... 97 d. Timeliness of Notices Served by Mail... 104 iv

7. Notice of Petition and Petition... 105 a. Notice of Petition/Service/Necessary Parties... 105 (1) Issuance of the Notice of Petition... 105 (2) Timing for Service of the Notice of Petition and Petition... 105 b. Contents of the Petition... 108 (1) General Requirements... 108 (2) Description of the Premises Sought to Be Recovered... 109 (3) Statement of the Parties Interests in the Premises Sought to Be Recovered... 109 (4) Regulatory Status of the Premises and Compliance With the Applicable Rent Regulation Laws... 110 (5) Verification of the Petition... 111 (6) Liberalization of Pleading Requirements... 112 (7) Alternative Pleadings... 112 (8) Inquests... 113 C. Nonpayment Proceedings... 114 1. Proper Parties... 114 2. Elements of a Nonpayment Proceeding... 114 3. What May Be Recovered as Rent in a Nonpayment Proceeding... 114 4. Rent Demands... 116 a. Overview... 116 b. Contents of the Rent Demand... 117 c. Modifying Notice Requirements by Agreement Between the Parties... 119 d. Oral vs. Written Rent Demands... 119 e. Compliance With the Fair Debt Collection Practices Act... 120 5. Notice of Petition and Petition... 121 6. Defaults... 122 7. Spiegel Law... 123 8. Bankruptcy... 123 D. Answering a Summary Proceeding... 124 E. Recovery of Use and Occupancy in Summary Proceedings... 128 F. Disclosure in Summary Proceedings... 131 G. Rent Deposits/Pendente Lite Use and Occupancy... 133 H. Stays, Warrant, Cures... 134 1. Stays of Warrants/Execution/Eviction in Nonpayment Proceedings... 134 2. Stays of Warrants/Execution/Eviction in Holdover Proceedings... 136 a. Ten-Day Stay of Warrant of Eviction in Breach of Lease Holdover Proceedings... 136 b. Extension of the Post-Judgment Cure to Holdover Proceedings Based on Grounds Other Than Breach of Lease... 138 (1) Non-Renewal of a Rent Stabilized Lease... 138 (2) Failure to Give Access... 138 (3) Nuisance... 138 (4) Unavailability of a Post-Judgment Cure in Certain Types of Holdover Proceedings... 139 (5) Public Policy Against Forfeiture of Tenancies in New York... 139 v

VI. (6) Non-Residential Tenants and Tenants Outside the City of New York... 139 (7) Prevailing Landlords Entitlement to Attorney Fees... 140 3. General Powers to Stay Warrants in Summary Proceedings... 140 4. Stay of the Proceeding Itself Before or After Judgment... 140 I. Service of Process in Summary Proceedings... 142 1. Overview of Traverse in Summary Proceedings... 142 2. Service Requirements... 142 3. Challenging Service... 146 4. Process Server Rules and Regulations in the City of New York... 147 a. Overview of Rules... 147 b. Licensing Requirements/Process Servers and Process Server Agencies... 147 c. Mandatory Posting of Bonds... 148 d. Record-Keeping Requirements... 148 e. GPS Technology... 149 f. Judicial Actions and Proceedings/Claims for Improper Service/ Traverse Hearings... 149 g. Exemptions... 149 J. General and Affirmative Defenses to Summary Proceedings... 149 1. Overview... 149 2. Traverse/Service... 150 3. Lack of Multiple Dwelling Registration in New York City... 150 4. Lack of a Proper Certificate of Occupancy... 151 5. Failure Accurately to State Regulatory Status and Comply With Rent Laws... 152 6. Omitting or Misstating Required Elements of the Petition... 152 7. Lack of Proper Predicate Notice/Rent Demand Notice... 152 8. Predicate Notice Vitiated/Tenancy Reinstated... 153 9. Retaliatory Eviction... 153 10. A Laches Defense in a Nonpayment Proceeding... 153 11. Conditions... 155 12. Actual Eviction/Constructive Eviction... 155 13. Statute of Limitations... 156 14. Succession Rights... 156 K. Alleging a Respondent s Military Status... 157 L. Competency of Parties to a Landlord-Tenant Proceeding, Including the Unrepresented, Non-English Speakers, and Those Needing Guardians Ad Litem... 159 M. Settlements in Landlord-Tenant Summary Proceedings... 161 N. Enforcing Warrants of Eviction and Orders of Possession... 166 O. Post-Eviction Relief... 166 Landlord-Tenant Actions and Proceedings Other Than Nonpayment and Holdover Proceedings... 169 A. Ejectment Actions... 169 B. HP Proceedings... 171 C. Article 7-A Proceedings... 177 D. Proceedings Under the Tenant Protection Act in New York City... 178 vi

E. Illegal Lockout/Unlawful Eviction Actions and Proceedings... 179 1. Overview... 179 2. Summary Proceedings to Be Restored to Possession... 179 3. Criminal Penalties... 181 4. Plenary Actions for Damages/RPAPL 853... 181 5. Defenses Against Illegal Lockout Allegations... 181 F. Foreclosure Proceedings... 182 G. Yellowstone Injunction Actions... 188 H. Plenary Actions Between Landlords and Tenants... 190 VII. Abandonment and Surrender of Possession... 190 VIII. Courts That Award Possession of Real Property... 192 A. Overview of Which Courts Adjudicate Summary Proceedings in Which Geographic Locations... 192 B. Supreme Court... 193 C. The New York City Civil Court... 193 D. New York State District Courts (Nassau and Suffolk Counties)... 196 E. City Court... 197 1. The Housing Part of Buffalo City Court... 197 a. History... 197 b. Code Violation Actions... 198 (1) The Initial Impetus Behind the Problem-Solving Model District-by-District Scheduling... 199 (2) Use of Housing Court Liaisons... 199 (3) Arraignment... 200 (4) Use of Interlocutory Orders... 201 (a) Orders to Vacate... 201 (b) Demolition Orders... 202 (c) Receiverships... 202 (d) Case-Specific Orders... 202 (5) The Funding Calendar... 203 (6) Sentencing... 203 c. Evictions... 206 (1) Accessibility... 206 (2) Legal Representation for Qualifying Tenants... 207 (3) Linkage... 207 (4) Stays Until Housing Violations Are Addressed... 207 (5) Stipulations... 208 (6) Mandatory Mediation... 209 (7) Habitability Investigations and Hearings... 209 (8) Duty to Repair in the Commercial Setting... 209 (9) Hearing Before the Court Attorney/Referee... 209 (10)Money Judgments and Appearances in the Buffalo City Court... 210 (11)Attorneys Signing Petitions... 210 (12)Control of Out Dates... 210 (13)Evictions in Section 8 Tenancies... 211 (14)Conclusion... 211 2. City Courts Outside Buffalo and the City of New York... 212 vii

F. Justice Courts... 212 1. Overview... 212 2. Eviction Proceedings Specific to Town and Village Courts in Upstate New York... 213 3. Justice Courts: Jurisdiction and Venue... 214 4. Notice of Petition... 215 5. Petition... 215 6. Service... 216 G. Surrogate s Court... 216 H. County Courts... 217 I. Federal Courts... 217 IX. Appeals... 218 X. Conclusion... 221 Appendix 1 Buffalo Housing Court Duties of Housing Court Liaisons... 223 Appendix 2 Script for Arraignments... 225 Appendix 3 Order for Access... 229 Appendix 4 Order to Vacate... 231 Appendix 5 Order Appointing Receiver... 233 Appendix 6 Funding Calendar Application for Rehabilitation of Property... 237 Appendix 7 Addendum to Petition for Non-title Owners... 239 Appendix 8 Memorandum, Decision and Order re: Eviction (Buffalo Housing Court)... 241 Appendix 9 Stipulation... 245 Appendix 10 Referral to Department of Health for Habitability Inspection... 247 Appendix 11 Request for Extension of Time for Issuance or Execution of Warrant of Eviction... 249 Residential Landlord-Tenant Forms Index... 253 Table of Authorities... 425 About the Authors... 471 viii

ABOUT THE AUTHORS 471 DAMON P. HOWARD, ESQ. Damon P. Howard is a founding partner of Ephron-Mandel & Howard, L.L.P., located in New York City. His experience ranges from commercial litigation, including actions for injunctive and declaratory relief, to residential and commercial landlord-tenant issues. Mr. Howard is a graduate of the University of Texas at Austin and the Tulane University Law School and received his early training as a litigator as an intern for the U.S. Attorney s Office, Civil Division. He is admitted to practice in New York, the Southern District of New York, New Jersey and Louisiana. HONORABLE GERALD LEBOVITS Gerald Lebovits has been a New York City judge since 2001. He currently presides in Civil Court. Previously, he presided in Criminal Court and Housing Court, where he served as the president of the Association of Housing Court Judges. A part-time teacher, he is a lecturer-in-law at Columbia Law School and an adjunct professor at Fordham University School of Law and New York University School of Law. Previously, he was an adjunct professor at St. John s University School of Law and New York Law School. Active in the New York State Bar Association, he is a past co-chair of the Association s Committee on Landlord and Tenant Proceedings, has authored the Bar Journal s Legal Writer column since 2001, and has published 19 articles in the Association s New York Real Property Law Journal. He graduated from the Ottawa (LL.L.), Tulane (M.C.L.), and New York University (LL.M.) law schools. MICHAEL B. TERK, ESQ. Michael B. Terk is an associate with David Rozenholc & Associates, where he practices primarily landlord-tenant and real estate litigation. Prior to joining David Rozenholc & Associates, he practiced landlord-tenant law as an associate at two other New York firms. Mr. Terk regularly represents clients in New York State Supreme Court, New York City Civil Court (both residential and commercial parts), and before administrative agencies such as the New York State Division of Housing and Community Renewal (DHCR). He also represents clients at the appellate level and has written briefs in connection with precedent-setting Appellate Term and Appellate Division cases. Mr. Terk is admitted to practice law in New York and Massachusetts. He is a member of the New York County Lawyers Association, the New York State Bar Association, and the Nassau County Bar Association. He received his J.D. from the Hofstra University School of Law and his B.A. from Brandeis University. He first began landlord-tenant litigation while still in law school, providing free legal representation to low-income tenants in Nassau County District Court under a student practice order, as part of Hofstra Law s Community Legal Assistance Corp. Housing Rights Clinic.