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OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined the defendant out-of-possession landlord’s motion for summary judgment in this slip and fall case was properly denied. Plaintiff slipped and fell on water which appeared to be coming from the bathroom door in the leased premises:

An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a “duty imposed by statute or assumed by contract or a course of conduct” … . Here, the plaintiff alleged the violation of a duty imposed by Administrative Code of the City of New York § 28-301.1, which provides that the owner of a building “shall be responsible at all times to maintain the building and its facilities and all other structures regulated by this code in a safe and code-compliant manner” … .. The defendant failed to meet its prima facie burden of demonstrating that it completely relinquished possession and control of the basement area of the building, such that it cannot be held liable under that Administrative Code provision for injuries caused by a defective condition therein … . Nieves v Pennsylvania, LLC, 2018 NY Slip Op 07134, Second Dept 10-24-18

NEGLIGENCE (SLIP AND FALL, LANDLORD-TENANT, OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/LANDLORD-TENANT (NEGLIGENCE, SLIP AND FALL, OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (LANDLORD-TENANT, OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/OUT OF POSSESSION LANDLORD (SLIP AND FALL, OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))

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BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the lessee’s motion for summary judgment in this lead paint injury case should have been granted. The injured child was in the subtenant’s family. The subtenant sued the owner of the building for failing to abate the lead paint hazard. The owner attempted to seek indemnification from the lessee. The indemnification clause in the lease, however, was not enforceable because it was not limited to the lessee’s negligence:

At the time when the alleged injury occurred, Administrative Code of the City of New York former § 27-2013(h) (Local Law 1) … placed a specific duty on the owner of a multiple dwelling to abate lead paint in leased premises where children under the specified age resided… . The owner of a cooperative corporation was considered the owner of a multiple dwelling for purposes of Local Law 1… .

Contrary to the [lessee’s] contention, the fact that Local Law 1 imposed a nondelegable duty on [the owner] to abate the lead paint hazard does not mean that [the owner] is precluded from recovering in indemnity, either contractual or common-law, from third parties whose acts or omissions are alleged to have caused or contributed to the infant plaintiff’s injuries… . However, under the circumstances presented, [the owner] may not seek contractual indemnification from the [lessee] based on the indemnification provision contained in the proprietary lease. “A broad indemnification provision in a lease . . . which is not limited to the lessee’s acts or omissions, fails to make exceptions for the lessor’s own negligence, and does not limit the lessor’s recovery under the lessee’s indemnification obligation to insurance proceeds, is unenforceable pursuant to General Obligations Law § 5-321” … . N.A. v Hillcrest Owners Assn., Inc., 2018 NY Slip Op 07133, Second Dept 10-24-18

CONTRACT LAW (BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT))/LANDLORD-TENANT (BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT))/NEGLIGENCE  (BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT))/TOXIC TORTS (LEAD PAINT, (BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT))/INDEMNIFICATION (LEASE, BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT))

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LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED, TENANT WAS ASSAULTED IN THE BUILDING, ASSAULT WAS NOT FORESEEABLE (SECOND DEPT). ​

The Second Department determined the negligence action against the landlord in this third party assault case was properly dismissed. The plaintiff tenant was assaulted in the vestibule of the building. The landlord demonstrated the attack was not foreseeable because there had been no similar assaults in the past:

The plaintiff was assaulted in the vestibule of a residential building in which she lived. The vestibule was accessed through an unlocked front door. A second door leading into the building’s lobby was locked, and there was an intercom buzzer system in the vestibule that permitted residents to control access to the building. The perpetrator of the assault was inside the vestibule when the plaintiff entered the building. …

“Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person”… . “To establish foreseeability, there is no requirement that the past experience of criminal activity be of the same type as that to which the plaintiff was subjected” … . However, “the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location”… .

Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it lacked notice of any prior occurrences of the same or similar criminal activity at or near the subject premises … . George v 855 Ocean Ave., LLC, 2018 NY Slip Op 07100, Second Dept 10-24-18

NEGLIGENCE (LANDLORD-TENANT, THIRD PARTY ASSAULT, LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED, TENANT WAS ASSAULTED IN THE BUILDING, ASSAULT WAS NOT FORESEEABLE (SECOND DEPT))/LANDLORD-TENANT (NEGLIGENCE, THIRD PARTY ASSAULT, LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED, TENANT WAS ASSAULTED IN THE BUILDING, ASSAULT WAS NOT FORESEEABLE (SECOND DEPT))/THIRD PARTY ASSAULT (NEGLIGENCE, LANDLORD-TENANT, LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED, TENANT WAS ASSAULTED IN THE BUILDING, ASSAULT WAS NOT FORESEEABLE (SECOND DEPT))/ ASSAULT, THIRD PARTY (NEGLIGENCE, LANDLORD-TENANT, LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED, TENANT WAS ASSAULTED IN THE BUILDING, ASSAULT WAS NOT FORESEEABLE (SECOND DEPT))

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LANDLORD’S SUMMARY JUDGMENT MOTION PROPERLY DENIED IN THIS THIRD PARTY ASSAULT CASE, PLAINTIFF TENANT WAS ASSAULTED IN AN ALLEYWAY WHERE TENANTS LEFT THEIR TRASH (FIRST DEPT). ​

The First Department determined defendant landlord’s motion for summary judgment in this third party assault case was properly denied. Infant plaintiff was assaulted in an alleyway outside the building where tenants left their trash. There was a question of fact whether the assault was foreseeable. The alternative theory of liability, that defendant failed to maintain safety measures voluntarily undertaken in the alleyway, was rejected because plaintiff did not demonstrate reliance on those measures:

Contrary to defendant’s contention, the alleyway, in which tenants of the building deposited their trash, was not a public area where defendant had no duty to maintain minimal security precautions … . Issues of fact as to the foreseeability of the assault are presented by the record evidence of previous criminal activity in or at the building, including drug dealing, multiple burglaries, including one at gunpoint, and gunshots and the discovery of empty shell casings outside the building . Issues of fact exist as to whether the gate to the alleyway was maintained in a closed and locked condition and whether there was sufficient lighting in the alleyway. Issues of fact also exist as to whether the open gate or any insufficiency in the lighting was a proximate cause of the assault … . Accordingly, considering the neighborhood’s susceptibility to incidents of violent crime, we are unable to hold as a matter of law that defendant upheld its common law duty to maintain the premises in a safe and secure manner.

However, we reject plaintiff’s alternative theory that defendant is liable to the extent that it voluntarily provided a locked gate, lighting, or video monitoring for the alleyway, and then negligently maintained those items. Even were we to conclude that defendant created a duty by introducing such security measures, plaintiff failed to demonstrate that she was lulled into a false sense of security such that she neglected to take precautions that she would have otherwise taken in the absence of those measure … . Sanchez v Morris Ave. Equities Corp., 2018 NY Slip Op 07071, First Dept 10-23-18

NEGLIGENCE (LANDLORD-TENANT, THIRD PARTY ASSAULT, LANDLORD’S SUMMARY JUDGMENT MOTION PROPERLY DENIED IN THIS THIRD PARTY ASSAULT CASE, PLAINTIFF TENANT WAS ASSAULTED IN AN ALLEYWAY WHERE TENANTS LEFT THEIR TRASH (FIRST DEPT))/LANDLORD-TENANT (NEGLIGENCE, THIRD PARTY ASSAULT, LANDLORD’S SUMMARY JUDGMENT MOTION PROPERLY DENIED IN THIS THIRD PARTY ASSAULT CASE, PLAINTIFF TENANT WAS ASSAULTED IN AN ALLEYWAY WHERE TENANTS LEFT THEIR TRASH (FIRST DEPT))/THIRD PARTY ASSAULT (LANDLORD-TENANT, NEGLIGENCE, LANDLORD’S SUMMARY JUDGMENT MOTION PROPERLY DENIED IN THIS THIRD PARTY ASSAULT CASE, PLAINTIFF TENANT WAS ASSAULTED IN AN ALLEYWAY WHERE TENANTS LEFT THEIR TRASH (FIRST DEPT))

OKAY TO REPLACE PART-TIME LOBBY ATTENDANTS WITH VIDEO SURVEILLANCE (SECOND DEPT). ​

The Second Department determined that the Rent Administrator's determination that a video surveillance system can be installed to replace part-time lobby attendants:

The Rent Stabilization Code provides that “[a]n owner may file an application to modify or substitute required services, at no change in the legal regulated rent, . . . on the grounds that: . . . such modification or substitution is not inconsistent with the [Rent Stabilization Law] or this Code” (9 NYCRR 2522.4[e]). A modification of services may be made if the proposed change is an “adequate substitute” … . Here, the DHCR's [New York State Division of Housing and Community Renewal] determination that the Rent Administrator did not err in finding that the video surveillance system was an adequate substitute for the part-time lobby attendants was rational, and was not arbitrary and capricious … . Matter of Bazile v Rubin, 2018 NY Slip Op 06737, Second Dept 10-10-18

LANDLORD-TENANT (BUILDING SECURITY, OKAY TO REPLACE PART-TIME LOBBY ATTENDANTS WITH VIDEO SURVEILLANCE (SECOND DEPT))/SECURITY (LANDLORD-TENANT, BUILDING SECURITY, OKAY TO REPLACE PART-TIME LOBBY ATTENDANTS WITH VIDEO SURVEILLANCE (SECOND DEPT))/VIDEO SURVEILLANCE (LANDLORD-TENANT, BUILDING SECURITY, BUILDING SECURITY, OKAY TO REPLACE PART-TIME LOBBY ATTENDANTS WITH VIDEO SURVEILLANCE (SECOND DEPT))

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IN THIS SLIP AND FALL CASE, THERE WAS A QUESTION OF FACT WHETHER THE OUT-OF-POSSESSION LANDLORD WAS LIABLE FOR AN ALLEGEDLY DEFECTIVE DRAINAGE SYSTEM WHICH RESULTED IN ICE ACCUMULATION. PLAINTIFF’S AFFIDAVITS SHOULD HAVE BEEN CONSIDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff lessee's complaint in this slip and fall case against the landlord should not have been dismissed. Although defendant, an out-of-possession landlord, demonstrated it was solely plaintiff lessee's responsibility to remove ice and snow, plaintiff raised a question of fact about whether defendant was responsible for an inadequate drainage system which caused ice and snow to accumulate. The Second Department noted that Supreme Court should have considered the expert affidavit and plaintiff's and his ex-wife's affidavits stating that the ice and snow condition could not be dealt with by normal methods (due to the drainage issue):

Here, there was no statute imposing a duty on the defendants to maintain the premises in a reasonably safe condition. The defendants also demonstrated that the parties agreed that the plaintiff would be responsible for snow and ice removal and that the plaintiff actually undertook to conduct snow and ice removal. …

Even in the absence of a duty to repair an allegedly defective condition, liability may attach to an out-of-possession landlord who has affirmatively created a dangerous condition or defect … . The defendants did not dispute that they installed the drainage system.

Moreover, the defendants failed to establish that they did not have a duty to repair a defective condition in the drainage system.

… [P]laintiff raised triable issues of fact as to whether the drainage system was defective and, if so, whether such defect contributed to his accident … . The court should have considered the affidavits of the plaintiff and his former wife, in which they averred that the icy condition on the driveway could not be ameliorated by snowplowing and their daily efforts at salting, sanding, and ashing the driveway, as those averments were consistent with the plaintiff's deposition testimony… . The court also should have considered the affidavit of the plaintiff's expert, in which he stated that defective conditions in the property's drainage system made the driveway area near the entrance prone to the pooling and freezing of water from the roof and surrounding lawn areas. Contrary to the court's determination, there is no requirement that a plaintiff establish the violation of a specific statutory provision where the duty to repair a defective condition is assumed by the landlord by contract or course of conduct … . Bartels v Eack, 2018 NY Slip Op 05995, Second Dept 9-12-18

NEGLIGENCE (IN THIS SLIP AND FALL CASE, THERE WAS A QUESTION OF FACT WHETHER THE OUT-OF-POSSESSION LANDLORD WAS LIABLE FOR AN ALLEGEDLY DEFECTIVE DRAINAGE SYSTEM WHICH RESULTED IN ICE ACCUMULATION (SECOND DEPT))/LANDLORD-TENANT (SLIP AND FALL, NEGLIGENCE, IN THIS SLIP AND FALL CASE, THERE WAS A QUESTION OF FACT WHETHER THE OUT-OF-POSSESSION LANDLORD WAS LIABLE FOR AN ALLEGEDLY DEFECTIVE DRAINAGE SYSTEM WHICH RESULTED IN ICE ACCUMULATION (SECOND DEPT))/OUT OF POSSESSION LANDLORD (SLIP AND FALL, NEGLIGENCE, IN THIS SLIP AND FALL CASE, THERE WAS A QUESTION OF FACT WHETHER THE OUT-OF-POSSESSION LANDLORD WAS LIABLE FOR AN ALLEGEDLY DEFECTIVE DRAINAGE SYSTEM WHICH RESULTED IN ICE ACCUMULATION (SECOND DEPT))/SLIP AND FALL (LANDLORD-TENANT, IN THIS SLIP AND FALL CASE, THERE WAS A QUESTION OF FACT WHETHER THE OUT-OF-POSSESSION LANDLORD WAS LIABLE FOR AN ALLEGEDLY DEFECTIVE DRAINAGE SYSTEM WHICH RESULTED IN ICE ACCUMULATION (SECOND DEPT))/EVIDENCE (SUMMARY JUDGMENT, IN THIS SLIP AND FALL CASE, THERE WAS A QUESTION OF FACT WHETHER THE OUT-OF-POSSESSION LANDLORD WAS LIABLE FOR AN ALLEGEDLY DEFECTIVE DRAINAGE SYSTEM WHICH RESULTED IN ICE ACCUMULATION, PLAINTIFF'S AFFIDAVITS SHOULD HAVE BEEN CONSIDERED  (SECOND DEPT))

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YELLOWSTONE INJUNCTION NOT WARRANTED IN THIS LEASE-TERMINATION CASE, PLAINTIFF NIGHTCLUB DID NOT DEMONSTRATE ITS WILLINGNESS TO CURE AN ALLEGED NOISE-LEVEL VIOLATION OF THE LEASE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that a Yellowstone injunction should not have issued to plaintiff nightclub. The defendant landlord started proceedings to terminate the lease based upon an alleged violation of the noise-level provision in the lease:

” A Yellowstone injunction maintains the status quo so that a commercial tenant, when confronted by a threat of termination of its lease, may protect its investment in the leasehold by obtaining a stay tolling the cure period so that upon an adverse determination on the merits the tenant may cure the default and avoid a forfeiture' of the lease”… . ” To obtain a Yellowstone injunction, the tenant must demonstrate that (1) it holds a commercial lease, (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease, (3) it requested injunctive relief prior to both the termination of the lease and the expiration of the cure period set forth in the lease and the landlord's notice to cure, and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises'” … . A plaintiff demonstrates that it has the desire and ability to cure its alleged default by indicating in its motion papers that it is willing to repair any defective condition found by the court and by providing proof of the substantial effort it has already made in addressing the default listed on the notice to cure … .

In this case, the plaintiff failed to satisfy its burden of adducing evidence that it is willing and able to cure its default. 146 Broadway Assoc., LLC v Bridgeview at Broadway, LLC, 2018 NY Slip Op 05990, Second Dept 9-12-18

LANDLORD-TENANT (YELLOWSTONE INJUNCTION NOT WARRANTED IN THIS LEASE-TERMINATION CASE, PLAINTIFF NIGHTCLUB DID NOT DEMONSTRATE ITS WILLINGNESS TO CURE AN ALLEGED NOISE-LEVEL VIOLATION OF THE LEASE (SECOND DEPT))/YELLOWSTONE INJUNCTION (LANDLORD-TENANT, YELLOWSTONE INJUNCTION NOT WARRANTED IN THIS LEASE-TERMINATION CASE, PLAINTIFF NIGHTCLUB DID NOT DEMONSTRATE ITS WILLINGNESS TO CURE AN ALLEGED NOISE-LEVEL VIOLATION OF THE LEASE (SECOND DEPT))/CIVIL PROCEDURE (LANDLORD-TENANT, YELLOWSTONE INJUNCTION NOT WARRANTED IN THIS LEASE-TERMINATION CASE, PLAINTIFF NIGHTCLUB DID NOT DEMONSTRATE ITS WILLINGNESS TO CURE AN ALLEGED NOISE-LEVEL VIOLATION OF THE LEASE (SECOND DEPT))

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LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT).

The First Department, over a dissent, determined the defendants-landlords had properly calculated a rent overcharge by going back four years from a date deemed to be when the tenants would have filed a rent overcharge complaint (none had been filed because the relevant law was unclear at the time):

Defendants chose May 1, 2010 as the date on which plaintiffs would be deemed to have filed a claim for overcharges, in the absence of any such claim having been filed, and then used these 2526.1(a) standards to fix the base date for determining the overcharge as May 1, 2006, the date four years before they undertook their review. Defendants then reduced plaintiffs' rent and forwarded payment to them for the overcharges so reflected. In June 2010 defendants filed registrations for the years 2006, 2007, 2008 and 2009 in accordance with these recalculations. Raden v W 7879, LLC, 2018 NY Slip Op 05799, First Dept 8-16-18

LANDLORD-TENANT (MUNICIPAL LAW, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))/MUNICIPAL LAW (LANDLORD-TENANT, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))/CIVIL PROCEDURE (LANDLORD-TENANT, MUNICIPAL LAW, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))/CPLR 213-a (LANDLORD-TENANT, MUNICIPAL LAW, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))/RENT STABILIZATION LAW  (LANDLORD-TENANT, MUNICIPAL LAW, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))

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WHERE THERE IS NO FRAUD ON THE LANDLORD’S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT).

The First Department, reversing the NYC Department of Housing and Community Renewal (DHCR), over an extensive two-justice dissent, determined the DHCR erred when it looked back more than for years from the date of the rent overcharge complaint to determine the base rent for calculating the amount of the overcharge. There was no dispute that the landlord was receiving J-51 tax benefits and was therefore subject to the Rent Stabilization Law (RSL), which had a four-year statute of limitations:

The primary question presented in this appeal is how to determine the proper rent on the base date. * * *

… [I]n the absence of evidence of fraud, this Court has declined to look back more than four years before the filing of the overcharge complaint to set the base date rent … .

In the case at bar, DHCR was not arbitrary and capricious in finding that landlord did not engage in a fraudulent scheme to evade the Rent Stabilization Law. As a consequence, DHCR was prohibited from looking at the unit's rental history before November 2, 2005 [four years before the overcharge complaint]. …

[The legislature] not only set a four-year limitations period, but it also explicitly barred any “examination of the rental history of the housing accommodation prior to the four-year period preceding the filing of a complaint” (RSL § 26-516[a][2]). The Court of Appeals has found that the purpose of the four-year limitations period is “to alleviate the burden on honest landlords to retain rent records indefinitely” … . The Court of Appeals has made what we have called a “limited exception” to the four-year limitations period in cases where landlords act fraudulently … . To expand this exception to landlords who have not engaged in fraud would create a much broader exception that would appear to negate the temporal limits contained in the Rent Stabilization Law and the CPLR. Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 2018 NY Slip Op 05797, First Dept 8-16-18

LANDLORD-TENANT (MUNICIPAL LAW, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/MUNICIPAL LAW (LANDLORD-TENANT, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/RENT STABILIZATION LAW  (LANDLORD-TENANT, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/RENT OVERCHARGE  (MUNICIPAL LAW, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/CIVIL PROCEDURE (MUNICIPAL LAW, LANDLORD-TENANT, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/CPLR 213-a (MUNICIPAL LAW, LANDLORD-TENANT, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))

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THEATER NOT LIABLE FOR THIRD PARTY ASSAULT IN PARKING LOT, ASSAULT WAS SUDDEN AND WAS NOT FORESEEABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant movie theater's (Regal's) motion for summary judgment in this parking lot assault case should have been granted. The third-party assault by Casallas-Gonzalez was sudden and was not foreseeable:

A landlord is under a duty to take minimal precautions to protect its tenants and invitees from foreseeable harm, “including the harm caused by a third party's foreseeable criminal conduct on the premises”… . “To establish that criminal acts were foreseeable, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location” … . Knowledge of ambient neighborhood crime, standing alone, is insufficient to establish foreseeability … .

Here, Regal established its prima facie entitlement to judgment as a matter of law through the submission of evidence demonstrating that the physical altercation between the injured plaintiff and Casallas-Gonzalez was a sudden and unforeseeable event that could not have been anticipated or prevented by the provision of greater security measures … . Regal also established prima facie that the alleged criminal acts committed by Casallas-Gonzalez were not reasonably predictable … . Muzafarov v Casallas-Gonzalez, 2018 NY Slip Op 05771, Second Dept 8-15-18

NEGLIGENCE (THIRD PARTY ASSAULT, THEATER NOT LIABLE FOR THIRD PARTY ASSAULT IN PARKING LOT, ASSAULT WAS SUDDEN AND WAS NOT FORESEEABLE (SECOND DEPT))/ASSAULT (LANDLORD'S LIABILITY FOR THIRD PARTY ASSAULT, THEATER NOT LIABLE FOR THIRD PARTY ASSAULT IN PARKING LOT, ASSAULT WAS SUDDEN AND WAS NOT FORESEEABLE (SECOND DEPT))/LANDLORD-TENANT (ASSAULT, LIABILITY FOR THIRD PARTY ASSAULT, THEATER NOT LIABLE FOR THIRD PARTY ASSAULT IN PARKING LOT, ASSAULT WAS SUDDEN AND WAS NOT FORESEEABLE (SECOND DEPT))

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