Affidavits Don't Prove Improvements Were Made

(Decision submitted by Alan G. Morley of the Manhattan law firm of Himmelstein, McConnell, Gribben, Donoghue & Joseph, attorneys for the tenant.) Facts: Landlord sued to evict rent-stabilized tenant for nonpayment of rent since late 1998. Landlord claimed that tenant owed $60,000. Tenant claimed that landlord had collected a rent overcharge. His first rent was $1,125. Landlord claimed that prior landlord had made apartment improvements costing $16,000 before tenant moved in and, so, was entitled to a 1/40th rent increase of $400. Landlord had no contract, invoices, or canceled checks. At the trial, landlord's managing agent testified that he supervised the work and paid the contractor in cash. Landlord also submitted an affidavit from the contractor that was signed at the time the work was done. The managing agent said he prepared affidavits for contractors in case there ever was a question before the DHCR or a court about the cost of improvements. Court: Landlord loses. The contractor's affidavit was prepared for possible litigation and, so, wasn't a business record. So it wasn't admissible in court as proof of landlord's apartment improvements. The total rent tenant owed landlord was $22,000.

W. 58th St. Properties LLC v. Kulbersh: Index No. 92913/99 (Civ. Ct. NY 5/21/03; Schneider, J) [11-pg. doc.]