Court Refuses to Enforce 2004 HPD Certificate of Eviction

(Decision submitted by David Berger of the Brooklyn law firm of Tenenbaum Berger & Shivers, LLP, attorneys for the tenants.)

Landlord of Roberto Clemente Plaza sued to evict Mitchell-Lama tenants based on a 2004 HPD decision denying them succession rights. At that time, HPD also issued a certificate of eviction. Landlord claimed that, since tenants never appealed HPD's decision, it was entitled to evict tenants as a matter of law and that no trial was needed.

The court ruled against landlord after examining the full history behind the HPD decision. In a 1990 discrimination action by non-white families against landlord, landlord agreed to set aside 16 apartments for incoming minority families. Later, at a time when landlord was having difficulty complying with the agreement, it reviewed other occupancies, and, in 2004, it rescinded the succession rights granted to some tenants and obtained certificates of eviction from HPD against tenants, including tenants in this eviction case. Unlike these tenants, other tenants in the building who received similar decisions from HPD in 2004 filed an Article 78 court appeal. In those cases, the court ruled for tenants and found that HPD regulations didn't give the agency or landlord the authority to initiate proceedings to revoke succession rights that had already been granted to tenants years earlier.

In this case, the housing court ruled that even though tenants weren't parties to that Article 78 proceeding, it would be unfair to enforce HPD's decision to retroactively rescind tenants' succession rights when the same decisions regarding other tenants had been declared by State Supreme Court to be unfair, unauthorized, illegal, and barred by equitable estoppel. Moreover, landlord didn't seek to enforce the certificate of eviction against tenants between 2004 and 2011 when it started this eviction proceeding. The facts showed that tenants had moved in with prior tenant in 1993 and were listed as part of the family from 1994 to 1996. When prior tenant moved out in 1996, they were granted succession rights. In 2004, HPD retroactively rescinded their succession rights. In 2005, a court granted the Article 78 petition of other similarly situated tenants in the building and revoked HPD's order. During the entire period between 1996 and 2011, landlord recertified tenants annually, gave tenants leases, and accepted their rent payments. 

Kent Village Housing Company Inc. v. Wertzberger: Index No. 110647/2011 (Civ. Ct. Kings; 2/13/13; Finkelstein, J)