Landlord Claims Tenant and Illegal Subtenant Committed Fraud

(Decision submitted by Abner T. Zelman of the Manhattan law firm of Kucker & Bruh, LLP, attorneys for the landlord.) Landlord sent a termination notice to rent-controlled tenant based on nonprimary residence. Landlord claimed that tenant no longer lived in the apartment and that he had an illegal subtenant. Both tenant and subtenant gave up their rights to possession after landlord sent the notice. Landlord then sued former tenant and subtenant. Landlord claimed that tenant and subtenant acted to conceal the illegal sublet. Landlord claimed fraud, sought punitive damages, legal fees, money for unjust enrichment, and use and occupancy at market rent. Tenant and subtenant asked the court to dismiss the case without a trial. The court ruled against them in part. Landlord could go forward with its fraud claim because there were questions of fact as to whether there was fraud and whether this claim was time barred. Landlord could also be entitled to the difference between the rent-controlled rent charged and the rent-stabilized rent it could have collected had it been able to evict tenants for nonprimary residence. Landlord could seek use and occupancy against subtenant only, since it was undisputed that tenant had moved out some time ago. The rest of landlord's claims were dismissed.

Rosar Realty Corp. v. Leavin, Index No. 114263/02 (Sup. Ct. NY 9/3/03; Diamond, J) [4-pg. doc.]