February 2025 Insights
By Eileen O’Toole, Esq., Contributing Editor
A number of recent court and DHCR cases highlight current procedural issues or questions on which decision makers do not always agree.
In Nostrand III Equities LLC v. Smith (LVT #33579), a Brooklyn Housing Court ruled that it wasn’t necessary to add five days for mailing to the 14 days required by a rent demand notice before filing a notice of petition and petition in a summary eviction proceeding based on nonpayment. The court’s decision provides a helpful discussion of different statutory provisions or fact distinctions between a rent demand and a notice to cure. Since 2004, New York’s highest court has required that a 10-day notice to cure mailed to a tenant must provide for five additional days to cure. In Nostrand III, the court pointed out that there is no appellate court ruling to date on a five-day mailing rule for rent demands. New York Landlord v Tenant has reported at least one other case (Watertown Assets LLC v. Tazewell, LVT #33249) where a different Brooklyn Housing Court judge ruled that an additional five days was required for service of a 14-day rent demand.
In Matter of Sydney Leasing, LP (LVT #33554), a recent PAR decision concerning rent overcharge, the DHCR ruled that an owner could not charge a rent-stabilized tenant a rent surcharge for water usage. The owner argued that the Rent Stabilization Code permitted charging tenants for “utility services” and cited a prior DHCR decision supporting its use of submetering and rental agreement provisions concerning water surcharges. But the DHCR pointed out that, under RSC Section 2520.6(r), hot and cold water was a required service to be provided by landlords. And to the extent that a 2011 DHCR decision may have ruled differently, the DHCR would no longer follow that ruling.
The DHCR reached different conclusions, based on the respective facts involved, in two cases concerning whether a rent-stabilized tenant who transferred apartments in the owner’s building retained the same base rent. In Matter of Alscot Realty (LVT #33562), consistent with other rulings, the DHCR found that a tenant who requested transfer to another unit and was notified by the owner that the new unit was deregulated, had no overcharge claim.
In other cases where a tenant moves to another apartment at the landlord’s request, the DHCR will find that the tenant’s base rent should be the rent charged in the initial apartment at the time of the move. In Matter of Diaz (LVT #33561), where the tenant requested the move because his current apartment had become uninhabitable, the DHCR ruled for the tenant in a recent overcharge case, finding that the tenant’s base rent should remain his current rent-stabilized rent. Otherwise the decision would be irrational and unjust.
Under current law, landlords cannot seek additional rent or rent surcharges beyond the base monthly rent amounts in eviction proceedings based on nonpayment of rent. In Cedar Manor Mut. Hous. Corp. v. Taylor (LVT #33570), a Queens Housing Court recently ruled that assessments charged to Mitchell-Lama co-op shareholder-tenants constituted rent rather than surcharges and could be sought in the nonpayment proceeding.
Some recent overcharge case rulings by the DHCR are treating excess rents paid on tenants’ behalf by ERAP the same as overpayments made by the SCRIE or DRIE programs, and have ordered landlords to refund overcharges to the OTDA. See, e.g., Matter of Phillip (LVT #33564); Matter of Hillside Park 168 LLC (LVT #33565).
Application of New York’s Good Cause Eviction (GCE) law raises new questions that the Housing Courts must now address. In Lau v. Zheng (LVT #33568), a tenant sought dismissal of a holdover petition because it included no reference to the GCE law. The tenant pointed out that the landlord’s affidavit of service of the court petition was filed after the GCE law took effect in April 2024. But the petition was filed in January 2024, before the GCE law was enacted, and the delay in serving the petition and filing the affidavit of service resulted only because of calendaring delays by the court system.
Finally, civility or lack thereof, in public discourse was the subject of a Housing Court ruling in Stanhope Estate LLC v. Dominquez (LVT #33581) where the court sanctioned an owner’s attorney for offensive speech directed at the judge, fined the attorney $4,000, and referred the matter to the State Bar’s Disciplinary Committee.