LANDLORD/TENANT UPDATE
In Roxborough Apt. Corp. v. Becker1, a holdover proceeding, the tenant sought to have the petition dismissed because the landlord had retained several rent checks delivered by the tenant after service of the notice of termination. The tenant maintained that the retention of the checks vitiated the notice of termination.
The landlord argued that the notice of termination was not vitiated by the mere retention of the checks because the landlord had never cashed the checks.
The court held that where the landlord receives rent checks after the service of the notice of termination and does not immediately return them or explain any inadvertent cashing of the checks, such retention will constitute sufficient acceptance to vitiate the notice of termination.
Since a properly served notice of termination is a condition precedent to the commencement of the holdover summary proceeding and the proper invocation of the subject matter jurisdiction of the court, the court dismissed the petition.
In Annamae Johnson v. Juan Cabrera2, a summary non-payment proceeding, the landlord appealed from an order of the Appellate Term which reversed a judgment of the Civil Court, Queens County and dismissed her petition.
The Appellate Division reiterated that it “is well-settled that a commercial tenant may be relieved of its obligations to pay the full amount of rent due where it has been actually or constructively evicted from either the whole or a part of the leasehold”.
Finding that the landlord had failed to correct a frozen pipe condition which deprived the tenant of the loss of heat and water for two months during the winter and that such deprivation substantially and materially “deprived the tenant of the beneficial use and enjoyment of the premises” thereby constituting the requisite constructive eviction, the Appellate Division affirmed the Appellate Term decision dismissing the petition.
In Prosnitz v. Augustus3, a summary holdover proceeding, the petitioner, appointed Receiver of the premises in an action to foreclose a lien for unpaid common charges, sought entry of a final judgment of possession contending that, as Receiver, he was entitled to removal of the respondents even though they were still fee owners of the condominium unit.
The respondent, in opposition, contended that the Housing Court was not the proper forum to seek the removal of a condominium unit owner in light of the fact that no landlord/tenant relationship existed between the parties and that such relief must be obtained in a plenary action.
The court pointed out that the only available avenue for the petitioner to maintain a summary proceeding would have been pursuant to Real Property Actions and Proceedings Law §713, where no landlord/tenant relationship exists. However, pursuant to such section, the property needs to have been sold in foreclosure, the deed transferred and the new deed exhibited to the respondent. Since title to the unit did not pass in the foreclosure action, the court held, §713 was not available to the petitioner.
Since the petitioner was unable to demonstrate that a landlord/tenant relationship existed between the parties or that §713 would apply, the petitioner’s motion was denied for lack of standing and the respondent’s cross-motion to dismiss the proceeding was granted.
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1 N.Y.L.J., Mar. 4, 1998, at p. 27, col. 2 (Mar. 4, 1998, Civ.Ct. N.Y.).
2 N.Y.L.J., Jan. 26, 1998 at p. 30, col. 4 (Jan. 26, 1998, App. Div. 2d Dep’t).
3 N.Y.L.J., Jan. 28, 1998 at p. 28, col. 3 (Jan. 28, 1998, Civ.Ct. Bronx).