Notable Decisions

We are quite proud of the significant victories we have achieved for our clients and other property owners before the Court of Appeals, the Appellate Division, the Appellate Term, the Supreme Court and the Civil Court. The following notable decisions illustrate the breadth of the firm's practice areas and the extent of its litigation experience:

  • Board of Managers of Village Mall at Hillcrest Condominium v. Banerjee (Sup. Ct. Queens County Dec. 22, 2016). Court granted summary judgment to Board, ordering unit holder to remove balcony enclosure that had been in place since 1979. Court relied on business judgment rule and on board resolution the firm assisted in drafting. Senior Partner Eric M. Goidel served as Board’s counsel, and Senior Partner David R. Brody and Counsel Brian D. Graifman litigated.
  • Mondrow Art 78 v. NYC DHPD (December 15, 2016) Court denied Tenant's petition to overturn DHCR’s determination not to vacate the Certificate of No Harassment issued to our client.
  • Silverman v D'Arco- (November 29, 2016) In this decision, the Appellate Division upheld the ejectment of a stabilized tenant for repeated failure to abide by orders directing the payment of use and occupancy. The court noted that it was appropriate for the lower court to strike the tenant’s answer for willful and contumacious conduct – a standard usually seen in discovery contexts. The decision also notes what can constitute sufficient proof of non-payment of rent.
  • 149 Madison v. PSF - Landlord granted summary judgment against commercial tenant and guarantor for post-vacatur rent. Tenant breached the lease by vacating during the term thereof, and the guarantor held liable for tenant's default because tenant failed to return possession in a manner that would have terminated guarantor liability.
  • Verona Wine Bar vs. 353 West 20 th Street LLC (August 1, 2016). In this case, Tenant’s Yellowstone injunction application denied: it failed to provide proof of insurance coverage, a non-curable default and the lease provided for waiver of injunctive relief.
  • Rich Mayer v. 812-816 Lighthouse Properties, Judge initially found jurisdiction, but on motion to reargue, the Court reversed itself holding that the claim was more in the nature of a diminution of services than a code violation claim. The court determined that there was no jurisdiction to hear such a claim and dismissed .
  • DDG Warren LLC v Assouline Ritz 1, LLC, RPAPL 881 permits a landowner to commence a special proceeding to obtain a license to enter into adjacent land if it is necessary to make repairs or improvements to its property. It is frequently used these days by developers to erect new structures on this land. In DDG Warren LLC v. Assouline Ritz I LLC, where our firm represented the board of managers of a condominium adjacent to a development site, the Supreme Court awarded a license conditioned upon insurance, the posting of a bond, and the payment of the legal and engineering fees incurred by the board of managers and certain affected unit owners. It declined to award a license fee. One of the unit owners, which had been the sponsor and whose property would be significantly encumbered for at least 30 months, appealed the denial of the license fee. The developer appealed the requirement of a bond and the award of legal fees. The Appellate Division modified the order to award the license fee and upheld the grant of the other relief. The panel held that the court had discretion under the statute to award a license fee and that the circumstances permitted it. The panel also concluded there was no abuse of discretion in awarding legal fees and requiring a bond. This decision represents the most thorough exploration of the statute by the First Department to date and, with respect to the license fee, may well be of first impression at the appellate level. This case was argued by partner Paul N. Gruber. Partner David Brody was lead attorney in the court.
  • 49 Bleecker, Inc. v Gatien, This case involved Issues of Fact about whether landlord is owner; Dismissal reversed. handled by senior partner David R. Brody and partner Paul M. Gruber.
  • 274 Madison v. Ramsundar (March 3, 2016) In this case handled by David Rosenbaum, the client was granted summary judgment on a breach of lease /guaranty action and included Debtor/Creditor Law causes of action as well.
  • Berezanskly v. Daddy O's BBQ & Sports Bar - In this commercial holdover proceeding, respondents sought a stay of execution of the warrant of eviction because they are in negotiations to buy the mortgage notes from the bank that is foreclosing on the note. The net result would have been that the respondent would have stayed in possession, without satisfying the judgment, almost $200K, while becoming the holder of the note and foreclosing on the LL. The Judge denied the OSC. Partners Paul Gruber argued the OSC, Paul Gruber provided research and Glenn Berezanskiy was the receiver.
  • 191 St. Assoc. LLC v Cruz - (February 8, 2016) ) Landlord appeals from an order of the Civil Court of the City of New York, New York County (Anne Katz, J.), entered April 28, 2014, which conditionally granted tenant's motion to stay execution of the warrant of eviction in a nonpayment summary proceeding.
  • 42nd & 10th Assoc., LLC v Izeki (December 29, 2015 ) In an AIRBNB short term stay case tried and won by Borah Goldstein before Judge Jack Stoller and appealed by the tenant, the Appellate Term on December 30, 2015 affirmed the lower court in favor of the landlord. See decision.
  • The Matter of the Probate Proceeding, Will of Mery Su Ling Chin, Deceased (September 28, 2015) - In a will contest, where one witness to the will and the attorney draftsperson did not have perfect memory of the execution ceremony and another witness testified that the will was not properly executed, the Court admitted the will to probate after trial, holding that perfect memory was not required and that the Court, as trier of fact, could determine the credibility of the persons testifying at trial. The proponent of the will was represented by Jeffrey L. Nogee, Esq., partner in our trusts and estates department, with the assistance at trial of partner Anna Guiliano, Esq.
  • Tap Tap, LLC v. 558 7th Avenue Corp., (August 24. 2015) - The court denied a tenant's application for a Yellowstone Injunction, ruling that the landlord's letter to the tenant giving them permission to pay fines to remove violations at ECB did not invalidate the notice to terminate the tenancy. The notice to terminate was based upon the tenant's failure to operate the premises in violation of the lease and the certificate of occupancy, and the Yellowstone was denied because the tenant was unable to demonstrate the ability to cure the default. Senior Partner David B. Rosenbaum handled the case.
  • NY Great Stone Inc. v. Two Fulton Square LLC (March 24, 2015) - Yellowstone injunctions are routinely granted to avoid forfeiture of a commercial tenant's interest prior to a determination of the merits, where the tenant demonstrates the existence of a commercial lease, receipt of a notice of default, a timely application for a temporary restraining order and the desire and ability to cure the alleged default. However, courts have held that a tenant faced with a notice to cure for failure to maintain insurance is not entitled to a Yellowstone injunction because such a default is not curable. As the Supreme Court, Queens County, recently explained in NY Great Stone Inc. v. Two Fulton Square LLC, a failure to maintain insurance is not a curable default because a prospective insurance policy does not protect a landlord against unknown claims that might arise during the period in which no coverage existed.
  • Sarah Weinberg v. Leslie Sultan , et al., (February 23, 2015) - In this highly publicized case, our client purchased two buildings in foreclosure on West 46th Street in Manhattan. The seller, who had been occupying an apartment in the building stipulated to vacate, and a portion of the proceeds from the sale were escrowed to secure her obligation. The seller commenced an action in Supreme Court to rescind the sale, alleging that the purchaser, her attorneys and her family members defrauded her into selling the buildings. The seller's claim to rescind the sale was dismissed because she could not allege any fraudulent act. The escrow to secure the seller's departure from the buildings was released to the purchaser because she failed to vacate and the stay of her eviction was lifted.
  • 42nd and 10th Associates v. Henry Ikezi - (February 20, 2015) - The ruling is the first to order the eviction of a rent-stabilized tenant who profiteered using AirBNB, without affording an opportunity to cure. The trial court granted the landlord a judgment of possession after a trial of this summary holdover proceeding. The landlord alleged that the use of the rent stabilized apartment as a hotel via AIRBNB was illegal and therefore the tenant had no right to cure. This was the first time a NYC housing court ruled that the violation by the tenant was not curable.
  • Roosevelt Island Associate v. Guy Long - (January In a Surrogate's proceeding, the beneficiary of real property pursuant to a will, successfully petitioned the court to force the transfer the deed to him despite protests of the executor that the property was part of the Estate and proceeds of sale were needed to pay expenses of the Estate.
  • FM United LLC v Wollin - December 22, 2014, Landlord sued to evict rent-stabilized tenant based on chronic nonpayment of rent. Tenant initially made Motion to Dismiss claiming renewal lease sent to tenant which parties breached, reinstalled tenancy. Judge denied motion, as landlord had to offer renewal under rent stabilization laws. Since there was a history of of repeated nonpayment proceedings based on chronically late payment and no question of fact, landlord could evict tenant.
  • 80-02 v. CM Realty - (December 17, 2014) This case involved a claim for rent against the principal of a shell corporation that was dissolved by proclamation prior to the making of the lease. The Appellate Division held that the principal of the corporation was liable for the sums sought by the landlord.
  • Park LLC v. SG8, LLC d/b/a Screme Gelato Bars - (February 10, 2014) Landlord granted possession and a money judgment against its commercial tenant --a gelato shop -- for unpaid rent. The tenant was not entitled to withhold rent because it was "closed for the winter" while remaining in possession and otherwise asserted no meritorious defense to nonpayment.
  • Fort Washington Holdings LLC v. Maurice Abbott- (July 31, 2014) Landlord obtained a favorable jury verdict on a rent controlled succession case involving a nephew. While the nephew had resided with his aunt and had emotional ties, evidence of financial commitment and interdependence was unclear, and the jury ruled against him on that issue. The trial judge threw out the verdict based upon his believe there was an error in the charge and that it was against the weight of the evidence. The Appellate Term reinstated the jury verdict. On occupant’s appeal to the Appellate Division, the jury verdict was affirmed. The court held that the jury charge, which presented the issues of emotional and financial interdependence and commitment as separate question, properly tracked the regulation and that the verdict was against the weight of the evidence. In noting that the nephew was required to prove both, the court appears to have backed away from earlier cases de-emphasizing the financial aspect in cases involving persons of modest means.
  • City of New York v. Grey Family Properties - (July 18, 2014) - Landlord contested a violation issued by the NYC Department of Buildings, resulting from the collapse of a retaining wall, which adjoined the Landlord's building on St. Nicholas Avenue with its neighbor on Edgecombe Avenue. After a hearing conducted by partners Jeffrey Seiden and Christian Hylton the violation was dismissed. The landlord produced evidence that the retaining wall, located on the Edgecombe Avenue property was built for the benefit of the Edgecombe property in the early 20 th Century, as it sat on a lower grade than the St. Nicholas property. Consequently the violation for the landlord's failure to repair was unwarranted. The landlord's attorneys were able to demonstrate that the finding by the inspector for the NYC Department of Buildings' as to the location of the retaining wall and source of the collapse was mere speculation and insufficient to assess civil penalties.
  • 247 Madison Company v Smart Apartments LLC and Robert Chan – (April 4, 2014) Plaintiff was granted summary judgment against out-of-possession tenant for unpaid rent in the amount of $401,886.45.
  • St. Owner LP. v. Patricia Y. McQueeney (January 16, 2014) Landlord succeeded in non-payment case where tenant refused to execute lease.
  • WCA 495 Broadway LLC v NFP Bakery Manufacturing Corp and Philip Kirsh – (October 25, 2014) Plaintiff, net lessee of the building, obtained summary judgment against the tenant and guarantor arising from tenant's breach of a surrender agreement. The surrender agreement did not effect the tenant’s obligation to pay liquidated damages because the lease remained in effect. That the net lessee was not a party to the surrender agreement did not preclude summary judgment because the owner designated the net lessee as its agent vis-à-vis the tenant. That the owner was not a party to the action was a non-issue for the same reason, and because the owner had assigned the tenant's lease to the net lessee. The tenant's lack of knowledge of the assignment was irrelevant.
  • 104 West 27 th Street Realty Inc. v. Lim – (October 24, 2013) Upheld judgment in excess of $400,000 against the guarantor of a commercial lease where there had been a change in the amount of space made after the guaranty was executed where guaranty stated it applied in the event the lease was modified.
  • Piller v. Marsam Realty 13 th Avenue LLC - (October 23, 2013) Held that a prospective purchaser of two apartment buildings in Brooklyn was not entitled to specific performance of a letter of intent affording him the opportunity to enter into a purchase agreement and close on the properties by a date certain upon certain terms where the letter of intent did not include all the necessary terms of a contract for the sale of real property, where the purchaser continued to negotiate terms up to the day scheduled for closing and where funds were not available until after the day scheduled for closing.
  • Mattone Group Raceway LLC, Gart Roosevelt Associates,LLC and JMM Raceway, LLC v Scotto's Westbury, NY LLC - (October 18, 2013)Plaintiffs-landlords obtained summary judgment against the tenant and guarantor for unpaid rent and liquidated damages totaling $684,595.18 after tenant vacated the premises during the term of the lease. Plaintiffs did not agree to accept surrender or otherwise modify the lease in writing and alleged conversations were inadmissible parol evidence. No surrender by operation of law was inferred from plaintiffs' entry into the premises after recovering possession as permitted by the lease. Guarantor is liable because tenant did not vacate in compliance with the lease and tenant's security deposit is not available to guarantor as a set off.
  • CE Eastern Parkway LLC v. Martin, L&T 77223/11 . The landlord commenced a summary licensee holdover proceeding against an occupant of a rent stabilized apartment upon learning of the tenant of record’s demise. The tenant of record, Pearl Martin, died in 1978. For over three decades, her daughter, Yanthy Martin perpetrated a charade whereby she pretended to be her deceased mother, Pearl Martin. Lease renewals were executed and rent payments were made, all in the name of the decedent. Additionally, Yanthy Martin appeared in court and represented herself as the decedent. The landlord moved to strike Ms. Martin’s affirmative defense seeking succession rights because in 1978 the Rent Stabilization Code did not contain a provision providing family members with succession rights. The Court held that Yanthy Martin is not entitled to succession rights.
  • 2794 Broadway Acquisitions LLC vs AJS Public House Corp - (January 28, 2013) Court found real estate escalation clause did obligate tenant to pay increase of real estate tax based on improvements to the building which were not for the benefit of the tenant’s space
  • Barton v. 270 St. Nicholas Avenue HDFC, 84 A.D.3d 696 (1 st Dep't 2011). Defeated effort of tenants of an HDFC rental building to compel not-for-profit owner to convert building located in improving area to cooperative ownership.
  • Langham Mansions LLC v. DHCR , 76 A.D. 3d 855 (1 st Dep't 2010). Reversed DHCR determination permanently excluding five apartments from MCI rent increase due to allegedly defective windows on the ground that DHCR offered no reason to depart from its stated policy to suspend the collection of the increase for the affected apartments under the condition it is remedied in such instances.
  • Lee v. DHCR , 73 A.D. 3d 778 (2d Dep't 2010). DHCR directed to re-open rent overcharge proceedings to consider leases and other rent history that was first submitted by the owner to DHCR on a post petition application to the agency where the owner offered a credible explanation for not submitting the material earlier and the evidence demonstrated that there was likely no overcharge.
  • 985-987 First Avenue LLC v. Aretakis , 25 Misc.3d 62 (App. T. 1 st Dep't 2009). Recovered rent stabilized apartment from attorney on non-primary residence grounds where documentary evidence connected him to an upstate residence owned by his wife notwithstanding his claims they maintained separate residences and that he used apartment for his law practice. The court noted the absence of electrical usage and the tenant's failure to seek enforcement of a court order directing the landlord supply a working refrigerator.
  • Wassfam LLC v. Ude , 26 Misc.3d 90 (App. T. 1 st Dep't 2009). Obtained a final judgment of possession against a tenant who was given a lease in a building subject to rent stabilization solely due to its receipt of J-51 benefits where the tax benefit had expired and the stipulation affording him tenancy rights erroneously prescribed that he would receive a rent stabilized lease.
  • 315 E. 72 nd Street Owners Inc. v. Siegel , 22 Misc.3d 10 (App. T. 1 st Dep't 2008). Succession rights denied to the grandson of a deceased rent stabilized tenant where the grandson had resided with his parents in Florida, returned to New York prior to commencing college in New York, resided in campus housing while in college and stayed in his grandmother's apartment shortly before starting college and during breaks and occasional weekends.
  • Pinehurst Construction Corp. v. Schlessinger, 12 Misc. 3d 26 (App. T. 1st Dep't 2006). Ruled that tenant engaging in bizarre and abusive conduct against occupants of neighboring apartment was removable as a nuisance.
  • Shoprite Supermarkets, Inc. v. Yonkers Plaza Shopping, LLC , 29 A.D. 3d 564 (2d Dep't 2006). First Appellate Division case to set forth the base requirements for a Rent Demand and for a Notice to Cure.
  • 157 East 57th Street, LLC v. Birrenbach, 8 Misc. 3d 123 (A) (App. T. 1st Dep't 2005. Defeated tenant's claim for attorneys fees in non-payment proceeding where tenant received a substantial rent abatement for constructive eviction due to mold.
  • Classic Realty LLC v. DHCR , 2 NY 3d 142 (2004). In Luxury Decontrol setting, tenant cannot submit amended tax return during "comment" period to avoid high income deregulation.
  • Nobu Next Door LLC v. Fine Arts Housing, Inc. , 3 A.D.3d 335 (1st Dep't 2004). Held that a Tenant's business judgment in failing to timely exercise lease renewal clause in lease was not excusable.
  • Ridges & Spots Realty Corp. v. Edward, 4 Misc. 3d 130 (A) (App. T. 1st Dep't 2004) - Dismissed a challenge to deregulated rent based upon 1997 Rent Regulation Reform Act.
  • Herald Towers LLC. v. Perry, NYLJ February 7, 2003 p. 18 col. 1 (App. T. 1st Dep't). Obtained summary judgment based upon tenant's repeated failures to timely pay rent.
  • Eighteen Assocs. LLC v. Nanjim Leasing Corp. , 297 A.D.2d 358 (2d Dep't 2002). Held that subtenants of commercial space not in direct privity with the owner were nevertheless responsible for the payment of use and occupancy.
  • Goldman v. LaFollette Corp., NYLJ June 4, 2002 p. 15 col. 1 (App. T. 1st Dep't) and Herald Towers, LLC v. Jeet International, Ltd. NYLJ, Jan. 24, 2002 p. 19 col. 4 (App. T. 1st Dep't). Recovered possession of rent stabilized apartments let to corporate tenants as nonprimary residents.
  • DK Property Inc. v. MeKong Restaurant Corp., 187 Misc. 2d 610 (App. T. 1st Dep't 2001). Liberalized standard for holdover notices in commercial proceedings.
  • East 145 Co. v. Benayoun, 190 Misc. 2d 164 (App. T. 1st Dep't 2001). Determined that a landlord's commencement of proceeding based on breach of no pet clause was not retaliation for tenant's commencement of personal injury suit against landlord.
  • Goldman v. Becraft, NYLJ July 13, 2001 p. 18 col. 2 (App. T. 1st Dep't). Rejected the tenant's effort to avoid defending a primary residence case on the merits when owner inadvertently accepted rent prior to commencement of the holdover proceeding.
  • Avon Bard Co. v. Aquarian Foundation, 260 A.D.2d 207 (1st Dep't 1999). Re-established that corporate non-primary resident tenant is not entitled to a renewal lease under the Rent Stabilization Law.
  • Graubard Mollen, et al, v. 600 Third Avenue Associates , 93 N.Y.2d 508 (1999). Detailed the scope and nature of "Yellowstone" Injunctive Relief and obtained more than $500,000.00 in interest for client on late rental payments.
  • Rose Associates v. Lenox Hill Hospital , 262 A.D.2d 68 (1st Dep't, 1999). Obtained more than two million dollars in use and occupancy arrears from holdover hospital tenant.
  • Community Housing Improvement Program, Inc. v. DHCR , 230 A.D.2d 66 (3rd Dep't 1997). Nullifying DHCR policy, determined that qualified owners under the Rent Control Maximum Base Rent program must obtain increases based upon a formula yielding a higher return than that employed by DHCR.
  • Nick v. State Div. Of Housing and Community Renewal , 244 A.D.2d 299 (1st Dep't 1997). First case to interpret default provision of Luxury Decontrol Law and hold that default cannot be excused.
  • Pleasant East Associates v. Soto, NYLJ May 13, 1996 p. 28 col. 2 (App. T. 1st Dep't). Affirmed jury verdict evicting tenant for drug activity committed by her former boyfriend in the apartment.
  • Cox v. J.D. Realty Associates, 217 A.D.2d 179 (1st Dep't 1995). Established that Civil Court, rather than Supreme Court, is the proper forum to resolve apartment succession disputes.
  • DBL Realty Co. v. Zavala, 166 Misc. 2d 736 (App. T. 1st Dep't 1995). Vacated rent overcharge award predicated upon late DHCR registration as violative of 1993 Rent Regulation Reform Act.
  • Holy Properties Ltd. v. Kenneth Cole Productions, Inc. , 87 N.Y.2d 130 (1995). Established in the modern era that a landlord has no duty to mitigate damages in a commercial setting.
  • Cyline Properties Co. v. Rubin, NYLJ February 15, 1994 p. 28 col. 4 (App. T. 1st Dep't) - First Appellate ruling holding that a nonprimary residence case may be maintained against nonpurchasing rent regulated tenant under a noneviction cooperative conversion plan.
  • Teichman v. Ciapi, 160 Misc. 2d 182 (App. T. 1st Dept 1994). Permitted an owner's own use proceeding to go forward on notice of nonrenewal alleging minimal facts.
  • Baer v. Gotham Craftsman, 154 Misc. 2d 490 (App. T. 1st Dep't 1992). Established that a loft landlord is permitted to seek rent where noncompliance with the legalization timetable of statute is due to the city's failure to entertain applications or issue regulations.
  • 61 W. 62 Owners Corp. v. Harkness Apartment Owners Corp., 173 A.D.2d 372 (1st Dep't 1991). Established that a owner may recover possession if a tenant fails to pay court ordered use and occupancy as condition to a "Yellowstone" injunction.
  • Briar Hill Apartments Co. v. Teperman, 165 A.D.2d 519 (1st Dept' 1991). Established criteria to determine non-primary residence issues.
  • Goho Equities v. Weiss, 149 Misc. 2d 628 (App. T. 1st Dep't 1991). Established that a loft landlord need not refund rents collected when not in compliance with legalization timetable.
  • Sohn v. Calderon , 78 N.Y.2d 755 (1991). Established areas where administrative agencies have exclusive jurisdiction.
  • Beaux Arts Properties Co. v. Whalen, NYLJ Jan. 12, 1990 p. 21 col. 2 (App. T 1st Dep't). First Appellate decision to authorize attorneys to issue rent demands.
  • Ansonia Residents Ass'n v. DHCR , 75 N.Y.2d 206 (1989). Established that Major Capital Improvement Increases become a permanent part of a tenant's base rent.
  • Rose Associates v. Lewandowski, NYLJ Nov. 1, 1989 p. 21 col. 1 (App. T. 1st Dep't). First Appellate decision indicating that a notice of nonrenewal in a primary residence proceeding is sufficient if it alleges only an alternate address where the landlord believes the tenant resides.
  • Kumble v. Windsor Plaza Co. , 128 A.D.2d 425 (1st Dep't 1987). Established that attorney's fees must be proven by means of an adversarial hearing.
  • 829 Seventh Ave. Co. v. Reider , 67 N.Y.2d 930 (1986). Expounded on the "living with" requirement for Rent Controlled Succession rights.
  • Sullivan v. Brevard Assocs. , 66 N.Y.2d 489 (1985). Seminal case defining tenant which led to enactment of the succession statutes.
  • Vance v. Century Apartment Assocs. , 61 N.Y.2d 716 (1984). Established that subletter must demonstrate an intent to return.
  • Board of Managers of Village Mall at Hillcrest Condominium v. Banerjee (Sup. Ct. Queens County Dec. 22, 2016). Court granted summary judgment to Board, ordering unit holder to remove balcony enclosure that had been in place since 1979. Court relied on business judgment rule and on board resolution the firm assisted in drafting. Senior Partner Eric M. Goidel served as Board’s counsel, and Senior Partner David R. Brody and Counsel Brian D. Graifman litigated.
  • Mondrow Art 78 v. NYC DHPD (December 15, 2016) Court denied Tenant's petition to overturn DHCR’s determination not to vacate the Certificate of No Harassment issued to our client.
  • Silverman v D'Arco- (November 29, 2016) In this decision, the Appellate Division upheld the ejectment of a stabilized tenant for repeated failure to abide by orders directing the payment of use and occupancy. The court noted that it was appropriate for the lower court to strike the tenant’s answer for willful and contumacious conduct – a standard usually seen in discovery contexts. The decision also notes what can constitute sufficient proof of non-payment of rent.
  • 149 Madison v. PSF - Landlord granted summary judgment against commercial tenant and guarantor for post-vacatur rent. Tenant breached the lease by vacating during the term thereof, and the guarantor held liable for tenant's default because tenant failed to return possession in a manner that would have terminated guarantor liability.
  • Verona Wine Bar vs. 353 West 20 th Street LLC (August 1, 2016). In this case, Tenant’s Yellowstone injunction application denied: it failed to provide proof of insurance coverage, a non-curable default and the lease provided for waiver of injunctive relief.
  • Rich Mayer v. 812-816 Lighthouse Properties, Judge initially found jurisdiction, but on motion to reargue, the Court reversed itself holding that the claim was more in the nature of a diminution of services than a code violation claim. The court determined that there was no jurisdiction to hear such a claim and dismissed .
  • DDG Warren LLC v Assouline Ritz 1, LLC, RPAPL 881 permits a landowner to commence a special proceeding to obtain a license to enter into adjacent land if it is necessary to make repairs or improvements to its property. It is frequently used these days by developers to erect new structures on this land. In DDG Warren LLC v. Assouline Ritz I LLC, where our firm represented the board of managers of a condominium adjacent to a development site, the Supreme Court awarded a license conditioned upon insurance, the posting of a bond, and the payment of the legal and engineering fees incurred by the board of managers and certain affected unit owners. It declined to award a license fee. One of the unit owners, which had been the sponsor and whose property would be significantly encumbered for at least 30 months, appealed the denial of the license fee. The developer appealed the requirement of a bond and the award of legal fees. The Appellate Division modified the order to award the license fee and upheld the grant of the other relief. The panel held that the court had discretion under the statute to award a license fee and that the circumstances permitted it. The panel also concluded there was no abuse of discretion in awarding legal fees and requiring a bond. This decision represents the most thorough exploration of the statute by the First Department to date and, with respect to the license fee, may well be of first impression at the appellate level. This case was argued by partner Paul N. Gruber. Partner David Brody was lead attorney in the court.
  • 49 Bleecker, Inc. v Gatien, This case involved Issues of Fact about whether landlord is owner; Dismissal reversed. handled by senior partner David R. Brody and partner Paul M. Gruber.
  • 274 Madison v. Ramsundar (March 3, 2016) In this case handled by David Rosenbaum, the client was granted summary judgment on a breach of lease /guaranty action and included Debtor/Creditor Law causes of action as well.
  • Berezanskly v. Daddy O's BBQ & Sports Bar - In this commercial holdover proceeding, respondents sought a stay of execution of the warrant of eviction because they are in negotiations to buy the mortgage notes from the bank that is foreclosing on the note. The net result would have been that the respondent would have stayed in possession, without satisfying the judgment, almost $200K, while becoming the holder of the note and foreclosing on the LL. The Judge denied the OSC. Partners Paul Gruber argued the OSC, Paul Gruber provided research and Glenn Berezanskiy was the receiver.
  • 191 St. Assoc. LLC v Cruz - (February 8, 2016) ) Landlord appeals from an order of the Civil Court of the City of New York, New York County (Anne Katz, J.), entered April 28, 2014, which conditionally granted tenant's motion to stay execution of the warrant of eviction in a nonpayment summary proceeding.
  • 42nd & 10th Assoc., LLC v Izeki (December 29, 2015) In an AIRBNB short term stay case tried and won by Borah Goldstein before Judge Jack Stoller and appealed by the tenant, the Appellate Term on December 30, 2015 affirmed the lower court in favor of the landlord. See decision.
  • The Matter of the Probate Proceeding, Will of Mery Su Ling Chin, Deceased (September 28, 2015) - In a will contest, where one witness to the will and the attorney draftsperson did not have perfect memory of the execution ceremony and another witness testified that the will was not properly executed, the Court admitted the will to probate after trial, holding that perfect memory was not required and that the Court, as trier of fact, could determine the credibility of the persons testifying at trial. The proponent of the will was represented by Jeffrey L. Nogee, Esq., partner in our trusts and estates department, with the assistance at trial of partner Anna Guiliano, Esq.
  • Tap Tap, LLC v. 558 7th Avenue Corp., (August 24. 2015) - The court denied a tenant's application for a Yellowstone Injunction, ruling that the landlord's letter to the tenant giving them permission to pay fines to remove violations at ECB did not invalidate the notice to terminate the tenancy. The notice to terminate was based upon the tenant's failure to operate the premises in violation of the lease and the certificate of occupancy, and the Yellowstone was denied because the tenant was unable to demonstrate the ability to cure the default. Senior Partner David B. Rosenbaum handled the case.
  • NY Great Stone Inc. v. Two Fulton Square LLC (March 24, 2015) - Yellowstone injunctions are routinely granted to avoid forfeiture of a commercial tenant's interest prior to a determination of the merits, where the tenant demonstrates the existence of a commercial lease, receipt of a notice of default, a timely application for a temporary restraining order and the desire and ability to cure the alleged default. However, courts have held that a tenant faced with a notice to cure for failure to maintain insurance is not entitled to a Yellowstone injunction because such a default is not curable. As the Supreme Court, Queens County, recently explained in NY Great Stone Inc. v. Two Fulton Square LLC, a failure to maintain insurance is not a curable default because a prospective insurance policy does not protect a landlord against unknown claims that might arise during the period in which no coverage existed.
  • Sarah Weinberg v. Leslie Sultan , et al., (February 23, 2015) - In this highly publicized case, our client purchased two buildings in foreclosure on West 46th Street in Manhattan. The seller, who had been occupying an apartment in the building stipulated to vacate, and a portion of the proceeds from the sale were escrowed to secure her obligation. The seller commenced an action in Supreme Court to rescind the sale, alleging that the purchaser, her attorneys and her family members defrauded her into selling the buildings. The seller's claim to rescind the sale was dismissed because she could not allege any fraudulent act. The escrow to secure the seller's departure from the buildings was released to the purchaser because she failed to vacate and the stay of her eviction was lifted.
  • 42nd and 10th Associates v. Henry Ikezi - (February 20, 2015) - The ruling is the first to order the eviction of a rent-stabilized tenant who profiteered using AirBNB, without affording an opportunity to cure. The trial court granted the landlord a judgment of possession after a trial of this summary holdover proceeding. The landlord alleged that the use of the rent stabilized apartment as a hotel via AIRBNB was illegal and therefore the tenant had no right to cure. This was the first time a NYC housing court ruled that the violation by the tenant was not curable.
  • Roosevelt Island Associate v. Guy Long - (January In a Surrogate's proceeding, the beneficiary of real property pursuant to a will, successfully petitioned the court to force the transfer the deed to him despite protests of the executor that the property was part of the Estate and proceeds of sale were needed to pay expenses of the Estate.
  • FM United LLC v Wollin - December 22, 2014, Landlord sued to evict rent-stabilized tenant based on chronic nonpayment of rent. Tenant initially made Motion to Dismiss claiming renewal lease sent to tenant which parties breached, reinstalled tenancy. Judge denied motion, as landlord had to offer renewal under rent stabilization laws. Since there was a history of of repeated nonpayment proceedings based on chronically late payment and no question of fact, landlord could evict tenant.
  • 80-02 v. CM Realty - (December 17, 2014) This case involved a claim for rent against the principal of a shell corporation that was dissolved by proclamation prior to the making of the lease. The Appellate Division held that the principal of the corporation was liable for the sums sought by the landlord.
  • Park LLC v. SG8, LLC d/b/a Screme Gelato Bars - (February 10, 2014) Landlord granted possession and a money judgment against its commercial tenant --a gelato shop -- for unpaid rent. The tenant was not entitled to withhold rent because it was "closed for the winter" while remaining in possession and otherwise asserted no meritorious defense to nonpayment.
  • Fort Washington Holdings LLC v. Maurice Abbott- (July 31, 2014) Landlord obtained a favorable jury verdict on a rent controlled succession case involving a nephew. While the nephew had resided with his aunt and had emotional ties, evidence of financial commitment and interdependence was unclear, and the jury ruled against him on that issue. The trial judge threw out the verdict based upon his believe there was an error in the charge and that it was against the weight of the evidence. The Appellate Term reinstated the jury verdict. On occupant’s appeal to the Appellate Division, the jury verdict was affirmed. The court held that the jury charge, which presented the issues of emotional and financial interdependence and commitment as separate question, properly tracked the regulation and that the verdict was against the weight of the evidence. In noting that the nephew was required to prove both, the court appears to have backed away from earlier cases de-emphasizing the financial aspect in cases involving persons of modest means.
  • City of New York v. Grey Family Properties - (July 18, 2014) - Landlord contested a violation issued by the NYC Department of Buildings, resulting from the collapse of a retaining wall, which adjoined the Landlord's building on St. Nicholas Avenue with its neighbor on Edgecombe Avenue. After a hearing conducted by partners Jeffrey Seiden and Christian Hylton the violation was dismissed. The landlord produced evidence that the retaining wall, located on the Edgecombe Avenue property was built for the benefit of the Edgecombe property in the early 20 th Century, as it sat on a lower grade than the St. Nicholas property. Consequently the violation for the landlord's failure to repair was unwarranted. The landlord's attorneys were able to demonstrate that the finding by the inspector for the NYC Department of Buildings' as to the location of the retaining wall and source of the collapse was mere speculation and insufficient to assess civil penalties.
  • 247 Madison Company v Smart Apartments LLC and Robert Chan – (April 4, 2014) Plaintiff was granted summary judgment against out-of-possession tenant for unpaid rent in the amount of $401,886.45.
  • St. Owner LP. v. Patricia Y. McQueeney (January 16, 2014) Landlord succeeded in non-payment case where tenant refused to execute lease.
  • WCA 495 Broadway LLC v NFP Bakery Manufacturing Corp and Philip Kirsh – (October 25, 2014) Plaintiff, net lessee of the building, obtained summary judgment against the tenant and guarantor arising from tenant's breach of a surrender agreement. The surrender agreement did not effect the tenant’s obligation to pay liquidated damages because the lease remained in effect. That the net lessee was not a party to the surrender agreement did not preclude summary judgment because the owner designated the net lessee as its agent vis-à-vis the tenant. That the owner was not a party to the action was a non-issue for the same reason, and because the owner had assigned the tenant's lease to the net lessee. The tenant's lack of knowledge of the assignment was irrelevant.
  • 104 West 27 th Street Realty Inc. v. Lim – (October 24, 2013) Upheld judgment in excess of $400,000 against the guarantor of a commercial lease where there had been a change in the amount of space made after the guaranty was executed where guaranty stated it applied in the event the lease was modified.
  • Piller v. Marsam Realty 13 th Avenue LLC - (October 23, 2013) Held that a prospective purchaser of two apartment buildings in Brooklyn was not entitled to specific performance of a letter of intent affording him the opportunity to enter into a purchase agreement and close on the properties by a date certain upon certain terms where the letter of intent did not include all the necessary terms of a contract for the sale of real property, where the purchaser continued to negotiate terms up to the day scheduled for closing and where funds were not available until after the day scheduled for closing.
  • Mattone Group Raceway LLC, Gart Roosevelt Associates,LLC and JMM Raceway, LLC v Scotto's Westbury, NY LLC - (October 18, 2013)Plaintiffs-landlords obtained summary judgment against the tenant and guarantor for unpaid rent and liquidated damages totaling $684,595.18 after tenant vacated the premises during the term of the lease. Plaintiffs did not agree to accept surrender or otherwise modify the lease in writing and alleged conversations were inadmissible parol evidence. No surrender by operation of law was inferred from plaintiffs' entry into the premises after recovering possession as permitted by the lease. Guarantor is liable because tenant did not vacate in compliance with the lease and tenant's security deposit is not available to guarantor as a set off.
  • CE Eastern Parkway LLC v. Martin, L&T 77223/11 . The landlord commenced a summary licensee holdover proceeding against an occupant of a rent stabilized apartment upon learning of the tenant of record’s demise. The tenant of record, Pearl Martin, died in 1978. For over three decades, her daughter, Yanthy Martin perpetrated a charade whereby she pretended to be her deceased mother, Pearl Martin. Lease renewals were executed and rent payments were made, all in the name of the decedent. Additionally, Yanthy Martin appeared in court and represented herself as the decedent. The landlord moved to strike Ms. Martin’s affirmative defense seeking succession rights because in 1978 the Rent Stabilization Code did not contain a provision providing family members with succession rights. The Court held that Yanthy Martin is not entitled to succession rights.
  • 2794 Broadway Acquisitions LLC vs AJS Public House Corp - (January 28, 2013) Court found real estate escalation clause did obligate tenant to pay increase of real estate tax based on improvements to the building which were not for the benefit of the tenant’s space
  • Barton v. 270 St. Nicholas Avenue HDFC, 84 A.D.3d 696 (1 st Dep't 2011). Defeated effort of tenants of an HDFC rental building to compel not-for-profit owner to convert building located in improving area to cooperative ownership.
  • Langham Mansions LLC v. DHCR , 76 A.D. 3d 855 (1 st Dep't 2010). Reversed DHCR determination permanently excluding five apartments from MCI rent increase due to allegedly defective windows on the ground that DHCR offered no reason to depart from its stated policy to suspend the collection of the increase for the affected apartments under the condition it is remedied in such instances.
  • Lee v. DHCR , 73 A.D. 3d 778 (2d Dep't 2010). DHCR directed to re-open rent overcharge proceedings to consider leases and other rent history that was first submitted by the owner to DHCR on a post petition application to the agency where the owner offered a credible explanation for not submitting the material earlier and the evidence demonstrated that there was likely no overcharge.
  • 985-987 First Avenue LLC v. Aretakis , 25 Misc.3d 62 (App. T. 1 st Dep't 2009). Recovered rent stabilized apartment from attorney on nonprimary residence grounds where documentary evidence connected him to an upstate residence owned by his wife notwithstanding his claims they maintained separate residences and that he used apartment for his law practice. The court noted the absence of electrical usage and the tenant's failure to seek enforcement of a court order directing the landlord supply a working refrigerator.
  • Wassfam LLC v. Ude , 26 Misc.3d 90 (App. T. 1 st Dep't 2009). Obtained a final judgment of possession against a tenant who was given a lease in a building subject to rent stabilization solely due to its receipt of J-51 benefits where the tax benefit had expired and the stipulation affording him tenancy rights erroneously prescribed that he would receive a rent stabilized lease.
  • 315 E. 72 nd Street Owners Inc. v. Siegel , 22 Misc.3d 10 (App. T. 1 st Dep't 2008). Succession rights denied to the grandson of a deceased rent stabilized tenant where the grandson had resided with his parents in Florida, returned to New York prior to commencing college in New York, resided in campus housing while in college and stayed in his grandmother's apartment shortly before starting college and during breaks and occasional weekends.
  • Pinehurst Construction Corp. v. Schlessinger, 12 Misc. 3d 26 (App. T. 1st Dep't 2006). Ruled that tenant engaging in bizarre and abusive conduct against occupants of neighboring apartment was removable as a nuisance.
  • Shoprite Supermarkets, Inc. v. Yonkers Plaza Shopping, LLC , 29 A.D. 3d 564 (2d Dep't 2006). First Appellate Division case to set forth the base requirements for a Rent Demand and for a Notice to Cure.
  • 157 East 57th Street, LLC v. Birrenbach, 8 Misc. 3d 123 (A) (App. T. 1st Dep't 2005. Defeated tenant's claim for attorneys fees in non-payment proceeding where tenant received a substantial rent abatement for constructive eviction due to mold.
  • Classic Realty LLC v. DHCR , 2 NY 3d 142 (2004). In Luxury Decontrol setting, tenant cannot submit amended tax return during "comment" period to avoid high income deregulation.
  • Nobu Next Door LLC v. Fine Arts Housing, Inc. , 3 A.D.3d 335 (1st Dep't 2004). Held that a Tenant's business judgment in failing to timely exercise lease renewal clause in lease was not excusable.
  • Ridges & Spots Realty Corp. v. Edward, 4 Misc. 3d 130 (A) (App. T. 1st Dep't 2004) - Dismissed a challenge to deregulated rent based upon 1997 Rent Regulation Reform Act.
  • Herald Towers LLC. v. Perry, NYLJ February 7, 2003 p. 18 col. 1 (App. T. 1st Dep't). Obtained summary judgment based upon tenant's repeated failures to timely pay rent.
  • Eighteen Assocs. LLC v. Nanjim Leasing Corp. , 297 A.D.2d 358 (2d Dep't 2002). Held that subtenants of commercial space not in direct privity with the owner were nevertheless responsible for the payment of use and occupancy.
  • Goldman v. LaFollette Corp., NYLJ June 4, 2002 p. 15 col. 1 (App. T. 1st Dep't) and Herald Towers, LLC v. Jeet International, Ltd. NYLJ, Jan. 24, 2002 p. 19 col. 4 (App. T. 1st Dep't). Recovered possession of rent stabilized apartments let to corporate tenants as nonprimary residents.
  • DK Property Inc. v. MeKong Restaurant Corp., 187 Misc. 2d 610 (App. T. 1st Dep't 2001). Liberalized standard for holdover notices in commercial proceedings.
  • East 145 Co. v. Benayoun, 190 Misc. 2d 164 (App. T. 1st Dep't 2001). Determined that a landlord's commencement of proceeding based on breach of no pet clause was not retaliation for tenant's commencement of personal injury suit against landlord.
  • Goldman v. Becraft, NYLJ July 13, 2001 p. 18 col. 2 (App. T. 1st Dep't). Rejected the tenant's effort to avoid defending a primary residence case on the merits when owner inadvertently accepted rent prior to commencement of the holdover proceeding.
  • Avon Bard Co. v. Aquarian Foundation, 260 A.D.2d 207 (1st Dep't 1999). Re-established that corporate non-primary resident tenant is not entitled to a renewal lease under the Rent Stabilization Law.
  • Graubard Mollen, et al, v. 600 Third Avenue Associates , 93 N.Y.2d 508 (1999). Detailed the scope and nature of "Yellowstone" Injunctive Relief and obtained more than $500,000.00 in interest for client on late rental payments.
  • Rose Associates v. Lenox Hill Hospital , 262 A.D.2d 68 (1st Dep't, 1999). Obtained more than two million dollars in use and occupancy arrears from holdover hospital tenant.
  • Community Housing Improvement Program, Inc. v. DHCR , 230 A.D.2d 66 (3rd Dep't 1997). Nullifying DHCR policy, determined that qualified owners under the Rent Control Maximum Base Rent program must obtain increases based upon a formula yielding a higher return than that employed by DHCR.
  • Nick v. State Div. Of Housing and Community Renewal , 244 A.D.2d 299 (1st Dep't 1997). First case to interpret default provision of Luxury Decontrol Law and hold that default cannot be excused.
  • Pleasant East Associates v. Soto, NYLJ May 13, 1996 p. 28 col. 2 (App. T. 1st Dep't). Affirmed jury verdict evicting tenant for drug activity committed by her former boyfriend in the apartment.
  • Cox v. J.D. Realty Associates, 217 A.D.2d 179 (1st Dep't 1995). Established that Civil Court, rather than Supreme Court, is the proper forum to resolve apartment succession disputes.
  • DBL Realty Co. v. Zavala, 166 Misc. 2d 736 (App. T. 1st Dep't 1995). Vacated rent overcharge award predicated upon late DHCR registration as violative of 1993 Rent Regulation Reform Act.
  • Holy Properties Ltd. v. Kenneth Cole Productions, Inc. , 87 N.Y.2d 130 (1995). Established in the modern era that a landlord has no duty to mitigate damages in a commercial setting.
  • Cyline Properties Co. v. Rubin, NYLJ February 15, 1994 p. 28 col. 4 (App. T. 1st Dep't) - First Appellate ruling holding that a nonprimary residence case may be maintained against nonpurchasing rent regulated tenant under a noneviction cooperative conversion plan.
  • Teichman v. Ciapi, 160 Misc. 2d 182 (App. T. 1st Dept 1994). Permitted an owner's own use proceeding to go forward on notice of nonrenewal alleging minimal facts.
  • Baer v. Gotham Craftsman, 154 Misc. 2d 490 (App. T. 1st Dep't 1992). Established that a loft landlord is permitted to seek rent where noncompliance with the legalization timetable of statute is due to the city's failure to entertain applications or issue regulations.
  • 61 W. 62 Owners Corp. v. Harkness Apartment Owners Corp., 173 A.D.2d 372 (1st Dep't 1991). Established that a owner may recover possession if a tenant fails to pay court ordered use and occupancy as condition to a "Yellowstone" injunction.
  • Briar Hill Apartments Co. v. Teperman, 165 A.D.2d 519 (1st Dept' 1991). Established criteria to determine non-primary residence issues.
  • Goho Equities v. Weiss, 149 Misc. 2d 628 (App. T. 1st Dep't 1991). Established that a loft landlord need not refund rents collected when not in compliance with legalization timetable.
  • Sohn v. Calderon , 78 N.Y.2d 755 (1991). Established areas where administrative agencies have exclusive jurisdiction.
  • Beaux Arts Properties Co. v. Whalen, NYLJ Jan. 12, 1990 p. 21 col. 2 (App. T 1st Dep't). First Appellate decision to authorize attorneys to issue rent demands.
  • Ansonia Residents Ass'n v. DHCR , 75 N.Y.2d 206 (1989). Established that Major Capital Improvement Increases become a permanent part of a tenant's base rent.
  • Rose Associates v. Lewandowski, NYLJ Nov. 1, 1989 p. 21 col. 1 (App. T. 1st Dep't). First Appellate decision indicating that a notice of nonrenewal in a primary residence proceeding is sufficient if it alleges only an alternate address where the landlord believes the tenant resides.
  • Kumble v. Windsor Plaza Co. , 128 A.D.2d 425 (1st Dep't 1987). Established that attorney's fees must be proven by means of an adversarial hearing.
  • 829 Seventh Ave. Co. v. Reider , 67 N.Y.2d 930 (1986). Expounded on the "living with" requirement for Rent Controlled Succession rights.
  • Sullivan v. Brevard Assocs. , 66 N.Y.2d 489 (1985). Seminal case defining tenant which led to enactment of the succession statutes.
  • Vance v. Century Apartment Assocs. , 61 N.Y.2d 716 (1984). Established that subletter must demonstrate an intent to return.