Landlord v. Tenant: Recent Sublet Rulings

Court Dismisses Roommate’s Claim of Illusory Tenancy

Landlord sued to evict rent-stabilized tenant for nonprimary residence. Landlord claimed that tenant lived and worked in Switzerland, and that she had sublet the apartment to an occupant without landlord’s permission. The trial court ruled for landlord. Tenant admitted that she no longer lived in the apartment as her primary residence. Occupant claimed that there was an illusory tenancy and that she was entitled to remain as a rent-stabilized tenant. Instead the court found that tenant and occupant participated in a scheme to hide a sublet from landlord. In 2007, when landlord sued to evict tenant for illegal subletting, both tenant and occupant claimed that occupant was tenant’s roommate. Tenant and occupant repeatedly made this claim to landlord, submitting to inspections and even setting up a joint bank account. There was no profiteering by tenant, who charged occupant only the legal regulated rent.

• 68-74 Thompson Realty LLC v. Heard: 50 Misc.3d 1225(A), 2016 NY Slip Op 50269(U) (Civ. Ct. NY; 3/8/16)

Eviction Proceeding Improperly Dismissed

Landlord sued to evict tenant for illegal subletting. The court denied landlord’s request for a default judgment against tenant and granted the subtenant’s request to dismiss the case. Landlord appealed and won. The case was dismissed because the landlord named the subtenant as “John Doe” in its court papers, even though landlord knew the subtenant’s name. While this was a valid reason to dismiss the holdover petition as against the subtenant, the case against the defaulting tenant shouldn’t have been dismissed. The subtenant was a proper party, but not a necessary party, to the eviction proceeding. The case was reinstated and sent back to housing court.

• 1234 Broadway LLC v. Ying: 50 Misc.3d 140(A), 2016 NY Slip Op 50190(U) (App. T. 1 Dept.; 2/22/16)

Claim That Tenant Illegally Sublet Apartment Was Too Vague

Landlord sued to evict Section 8 tenant for illegal sublet or assignment of her apartment to “John Doe” or “Jane Doe.” Tenant claimed that landlord’s notice to cure and termination notice were defective and asked the court to dismiss the case. The court ruled for tenant. The notices stated that the 84-year-old tenant hadn’t been seen at the building for an extended period of time and that various people were seen coming and going from the apartment. This was vague and insufficient. Tenant said that she was visited at the apartment by her seven children, 18 grandchildren, and 20 great-grandchildren. Landlord’s notices failed to set forth a single specific factual claim. The case was dismissed.

• 2647 Sedgwick LLC v. Cruz: Index No. L&T 36978/15, NYLJ No. 1202745899577 (Civ. Ct. Bronx; 12/15/15)

Tenant Needs Guardian Ad Litem

Landlord sued to evict rent-stabilized tenant for illegal subletting. Landlord and tenant signed a settlement agreement in court. Tenant was represented by an attorney. Tenant agreed to move out. Landlord waived over $13,600 in back rent and agreed to give tenant $5,000 when she moved. Tenant’s attorney asked the court to vacate the agreement and to appoint a guardian ad litem (GAL) for tenant.

The court ruled for tenant. Tenant was 64, had lived in the apartment since 1977, and was employed as a school lunch helper. Her attorney said that, at the time of the court settlement, it wasn’t apparent to him that tenant had impaired judgment, didn’t understand the seriousness of the matter, and required a GAL. The court held a hearing and health professionals who had met with tenant testified that she was impaired and possibly had Down Syndrome. The court vacated the settlement agreement and appointed a GAL. Tenant also claimed that she hadn’t illegally sublet but that a nephew lived with her. In any event, if tenant was illegally subletting, she would have a right to cure.

• SG 455 LLC v. Green: Index No. L&T 054084/15, NYLJ 1202740678954 (Civ. Ct. Kings; 10/13/15)

Landlord and Tenant Both Responsible for Overcharge of Subtenant

Subtenant complained of rent overcharge and failure to renew a rent-stabilized lease in his name. Tenant Dennis Dziena Associates had rented the apartment from landlord in 1995. In 2003, tenant sublet the apartment to subtenant. In 2008, a DHCR attorney wrote to the apartment “occupant,” noting that the 2008 apartment registration listed Dennis Dziena Associates as tenant of many apartments in the building and asking the names of actual tenants living in the apartment and the rents they paid. Subtenant then filed his complaints. The DRA ruled for subtenant and found both tenant and landlord jointly and individually responsible for willful rent overcharge.

Landlord and tenant appealed and lost. Landlord claimed that it wasn’t responsible for the overcharge by tenant because it had no relationship with tenant. But landlord knew or should have known about the illegal subletting because it rented 23 apartments to tenant’s entity. Landlord failed to properly manage the building and its actions enabled the overcharge to take place. The DRA also correctly invalidated the lease between landlord and tenant and established the base date rent using the DHCR’s default formula. The DRA also properly imposed triple damages.

• 333 East 49th Partnership, LP et al.: DHCR Adm. Rev. Docket No. CS410013RO (7/1/15)

Evicted Tenant Must Be Reinstated Despite Rerental of Apartment

Landlord sued to evict tenant in 2009 based on unauthorized subletting. The court ruled for landlord based on tenant’s default, and tenant was evicted in April 2010. It turned out tenant failed to appear in court because he had been in prison since 2008 for attempted burglary. Landlord rerented the apartment to new tenant in 2012. In 2013, tenant was released from prison and sought to be restored to the apartment. The court joined new tenant to the proceeding as a necessary party and permitted tenant to reopen the eviction case.

The court then held a hearing to balance the interest of tenant and new tenant in the apartment. The court ruled that tenant could be reinstated and that new tenant would have to move out. Tenant was 59 years old, and had lived in the apartment with his mother since he was 7 years old. Tenant received $800 per month from Social Security for a disability and his apartment rent had been $450 per month. He had been staying with friends since his release from jail and was on the verge of becoming homeless. New tenant, a bank analyst, earned over $70,000 per year. The court found that new tenant had the funds to move and needed only one bedroom.

• 46 Downing Street, LLC v. Thompson: Index No. 81450/09, NYLJ No. 1202732411218 (Civ. Ct. NY; 7/25/15)

No Proof Subtenants Lived in Apartment with Tenant

Landlord sued to evict rent-stabilized tenant for illegal subletting. Tenant asked the court to dismiss the case without a trial, claiming that he lived in the apartment with his children and never assigned or sublet the unit. Landlord’s property manager claimed that tenant sublet part of the apartment to other persons, including a man in a wheelchair. Tenant said it was himself who used a wheelchair since 2012 because he suffered from dizzy spells and a heart condition. The court ruled for tenant and dismissed the case since landlord presented no other information that presented a question of fact.

• Bridge Street Development Corp. v. Williams: Index No. 81850/14, NYLJ No. 1202727947628 (Civ. Ct. Kings; 5/22/15)

Tenant Illegally Sublet Apartment

Landlord sued to evict rent-stabilized tenant for unauthorized subletting. Landlord claimed that tenant and his family lived in another rent-stabilized apartment while subletting landlord’s apartment to an unrelated individual. Tenant claimed that his family moved out because he and his wife were separated but that he remained in landlord’s apartment with a roommate. The court ruled for landlord. Records from Con Edison and Bronx housing court, as well as DHCR rent registrations and tax records showed that tenant lived with his family at the other address. Tenant’s claim that he still lived in landlord’s one-bedroom apartment with the “roommate” and the roommate’s family wasn’t credible. Tenant was given 10 days to cure the illegal sublet or face eviction.

• 1466 Holding Ltd. v. Barasona: Index No. L&T 025483/2014, NYLJ 1202728631761 (Civ. Ct. Bronx; 5/29/15)

Collection of “Key Money” Was Rent Overcharge

Rent-stabilized tenant complained of rent overcharge. He claimed that landlord collected “key money” from him as a condition to giving tenant a lease. The DRA ruled for tenant and ordered landlord to refund the money. Landlord appealed and lost. Landlord claimed that he merely collected a 10 percent sublet fee for the prior period when tenant was a subtenant in the apartment. Tenant didn’t owe any sublet fee to landlord while he was a subtenant. Landlord wasn’t entitled to collect this fee.

• 60 West 76th, LLC: DHCR Adm. Rev. Docket No. CS410025RO (3/13/15)

Tenant Claims No Illegal Sublet or Profiteering

Landlord sued to evict rent-stabilized tenant for unauthorized subletting and profiteering. The court ruled for landlord based on tenant’s default. Tenant appealed, and the case was reopened. Tenant’s nonappearance in the case was neither willful nor intentional and didn’t cause prejudice to landlord. Tenant also showed she had a meritorious defense. She claimed that the occupant in question was a roommate, not a subtenant, and that the roommate moved out after one month. So there was no profiteering. The case was reopened and sent back to the lower court for further proceedings.

• Horseshoe Realty LLC v. Meah: 47 Misc.3d 127(A), 2015 NY Slip Op 50370(U) (App. T. 1 Dept.; 3/26/15)