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NYS DIVISION OF HOUSING AND COMMUNITY RENEWAL (DHCR) ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT RULED THE MAXIMUM COLLECTIBLE RENT FOR AN APARTMENT WAS $125 PER MONTH, THE RENT HAD REMAINED LOW FOR DECADES BECAUSE THE APARTMENT HOUSE HAD BEEN OWNED AND RESIDED IN BY FAMILY MEMBERS (SECOND DEPT).

The Second Department, over an extensive dissent, determined the New York State Division of Housing and Community Renewal (DHCR) acted arbitrarily and capriciously when it held that the current maximum collectible rent for the subject apartment is $125 per month. The apartment house had been owned and resided in by family members since 1941. The petitioner bought property in 2000:

… [E]ven assuming that the petitioner was aware or should have been aware of the subject apartment’s rent-controlled status at the time he purchased the building, this factor is not determinative. While an owner’s lack of such awareness may be considered in determining the maximum rent … , there is no requirement in 9 NYCRR 2202.7 that an owner lack prior knowledge of the regulated status of its premises in order to receive an increase in the maximum rent. Rather, … that provision solely requires “the presence of unique or peculiar circumstances” … , which are present in this case. Those circumstances have resulted in the same monthly rent of $125 being paid for the subject two-bedroom apartment since 1961, which is clearly substantially lower than rents generally prevailing in the same area for substantially similar housing accommodations … , and “there are issues of fairness and equity” that must be considered in setting an appropriate present day rent for the subject apartment … . Matter of Migliaccio v New York State Div. of Hous. & Community Renewal, 2018 NY Slip Op 03132, Second Dept 5-2-18

​LANDLORD-TENANT (NYS DIVISION OF HOUSING AND COMMUNITY RENEWAL (DHCR) ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT RULED THE MAXIMUM COLLECTIBLE RENT FOR AN APARTMENT WAS $125 PER MONTH, THE RENT HAD REMAINED LOW FOR DECADES BECAUSE THE APARTMENT HOUSE HAD BEEN OWNED AND RESIDED IN BY FAMILY MEMBERS (SECOND DEPT))/ADMINISTRATIVE LAW (LANDLORD-TENANT, NYS DIVISION OF HOUSING AND COMMUNITY RENEWAL (DHCR) ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT RULED THE MAXIMUM COLLECTIBLE RENT FOR AN APARTMENT WAS $125 PER MONTH, THE RENT HAD REMAINED LOW FOR DECADES BECAUSE THE APARTMENT HOUSE HAD BEEN OWNED AND RESIDED IN BY FAMILY MEMBERS (SECOND DEPT))/RENT CONTROL (NYS DIVISION OF HOUSING AND COMMUNITY RENEWAL (DHCR) ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT RULED THE MAXIMUM COLLECTIBLE RENT FOR AN APARTMENT WAS $125 PER MONTH, THE RENT HAD REMAINED LOW FOR DECADES BECAUSE THE APARTMENT HOUSE HAD BEEN OWNED AND RESIDED IN BY FAMILY MEMBERS (SECOND DEPT))

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COMPLAINT DID NOT SUFFICIENTLY ALLEGE DEFENDANT HAD WAIVED THE REQUIREMENT OF WRITTEN NOTICE TO EXERCISE THE OPTION TO RENEW THE LEASE, PROPOSED AMENDMENT OF THE COMPLAINT WAS PALPABLY WITHOUT MERIT, MOTION TO AMEND WAS NOT FRIVOLOUS CONDUCT WARRANTING SANCTIONS (SECOND DEPT).

The Second Department determined the allegations in the complaint were insufficient to allege there was a waiver of the requirement that the option to renew the lease be in writing. Therefore the complaint was properly dismissed for failure to state a cause of action. The motion to amend the complaint was properly denied because the amendment was palpably insufficient or patently devoid of merit. The proposed amendment did not allege the existence of a specific agreement with the defendant. However, the motion to amend was not frivolous conduct and Supreme Court should not have awarded sanctions to defendant:

“Although a party may waive his or her rights under an agreement or decree, waiver is not created by negligence, oversight, or thoughtlessness, and cannot be inferred from mere silence” … . Moreover, with respect to the plaintiff’s allegations that [defendant’s representative] stated that the defendant would not object to the assignment [of the lease to the prospective purchaser of plaintiff’s business], subject to, inter alia, a credit check, “a mere agreement to agree, in which a material term is left for future negotiations, is unenforceable” … . …

The plaintiff’s proposed amended complaint was palpably insufficient and devoid of merit. The plaintiff failed to allege that (1) it actually came to an agreement with the proposed purchaser six months prior to the expiration of the lease, (2) it gave the defendant notice of its intention to exercise the option within six months of the expiration of the lease, irrespective of whether it came to an agreement with the proposed purchaser, or (3) the proposed purchaser was creditworthy. …

… [T]he plaintiff’s conduct in moving for leave to amend the complaint and/or replead was not, under the circumstances, “frivolous” within the meaning of 22 NYCRR 130-1.1(c) … . NHD Nigani, LLC v Angelina Zabel Props., Inc., 2018 NY Slip Op 03135, Second Dept 5-2-18

​CONTRACT LAW (COMPLAINT DID NOT SUFFICIENTLY ALLEGE DEFENDANT HAD WAIVED THE REQUIREMENT OF WRITTEN NOTICE TO EXERCISE THE OPTION TO RENEW THE LEASE, PROPOSED AMENDMENT OF THE COMPLAINT WAS PALPABLY WITHOUT MERIT, MOTION TO AMEND WAS NOT FRIVOLOUS CONDUCT WARRANTING SANCTIONS (SECOND DEPT))/LANDLORD-TENANT (COMPLAINT DID NOT SUFFICIENTLY ALLEGE DEFENDANT HAD WAIVED THE REQUIREMENT OF WRITTEN NOTICE TO EXERCISE THE OPTION TO RENEW THE LEASE, PROPOSED AMENDMENT OF THE COMPLAINT WAS PALPABLY WITHOUT MERIT, MOTION TO AMEND WAS NOT FRIVOLOUS CONDUCT WARRANTING SANCTIONS (SECOND DEPT))/CIVIL PROCEDURE (SANCTIONS, FRIVOLOUS CONDUCT, MOTION TO AMEND THE COMPLAINT WAS NOT FRIVOLOUS CONDUCT WARRANTING SANCTIONS (SECOND DEPT))/SANCTIONS (FRIVOLOUS CONDUCT, MOTION TO AMEND THE COMPLAINT WAS NOT FRIVOLOUS CONDUCT WARRANTING SANCTIONS (SECOND DEPT))/FRIVOLOUS CONDUCT (MOTION TO AMEND THE COMPLAINT WAS NOT FRIVOLOUS CONDUCT WARRANTING SANCTIONS (SECOND DEPT))

THE 20% VACANCY INCREASE SHOULD BE INCLUDED WHEN CALCULATING THE LEGAL REGULATED RENT TO DETERMINE WHETHER AN APARTMENT HAS REACHED THE $2000 THRESHOLD IN THE RENT STABILIZATION LAW (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, reversing the Appellate Division, determined “the 20% vacancy increase should be included when calculating the legal regulated rent for purposes of determining whether the subject apartment has reached the $2,000 deregulation threshold in the Rent Stabilization Law:”

In November 2003, plaintiff Richard Altman entered into a sublease with Keno Rider, who had been the tenant of the subject apartment since 1993. Rider had a rent-stabilized lease with the prior landlord at a legal regulated rent of $1,829.49 per month. In December 2004, the prior landlord commenced a nonpayment proceeding against Altman and Rider. In March 2005, Altman and the prior landlord entered into a stipulation of settlement, under which the parties agreed that Rider would surrender all rights to the apartment and the landlord would deliver a new lease to Altman. Along with the new lease, Altman executed a ‘Deregulation Rider for First Unregulated Tenant.’ The Deregulation Rider stated that the apartment was not rent-stabilized ‘because the legal rent was or became $2000 or more on vacancy” after the statutory vacancy increase was added to the last regulated rent. In August 2005, the landlord removed the apartment from registration with the Division of Housing and Community Renewal (DHCR), based on “high rent vacancy.’ * * *

… [T]he 20% increase should have been considered in determining the legal regulated rent at the time of the vacancy and, as a result, the subject apartment was properly deregulated in 2005. Altman’s remaining arguments relating to this issue are without merit. Altman v 285 W. Fourth LLC, 2018 NY Slip Op 02829. CtApp 4-26-18

​LANDLORD-TENANT (THE 20% VACANCY INCREASE SHOULD BE INCLUDED WHEN CALCULATING THE LEGAL REGULATED RENT TO DETERMINE WHETHER AN APARTMENT HAS REACHED THE $2000 THRESHOLD IN THE RENT STABILIZATION LAW (CT APP))/RENT STABILIZATION LAW (THE 20% VACANCY INCREASE SHOULD BE INCLUDED WHEN CALCULATING THE LEGAL REGULATED RENT TO DETERMINE WHETHER AN APARTMENT HAS REACHED THE $2000 THRESHOLD IN THE RENT STABILIZATION LAW (CT APP))/VACANCY INCREASE (LANDLORD-TENANT, RENT STABILIZATION LAW, THE 20% VACANCY INCREASE SHOULD BE INCLUDED WHEN CALCULATING THE LEGAL REGULATED RENT TO DETERMINE WHETHER AN APARTMENT HAS REACHED THE $2000 THRESHOLD IN THE RENT STABILIZATION LAW (CT APP))

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CITY OF NEW YORK PROGRAM TO MOVE HOMELESS INTO APARTMENTS VIOLATES THE URSTADT LAW BY IMPOSING RENT CONTROLS ON BUILDINGS NOT PREVIOUSLY SUBJECT TO CONTROL (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Sweeney, determined the City of New York’s Living in Communities (LINC) Program, designed to move homeless persons into apartments, violated the Urstadt Law, which prohibits the expansion (by a city) of rent controls to buildings beyond those subject to controls at the time the law was enacted (1971):

The “Urstadt Law was intended to check City attempts, whether by local law or regulation, to expand the set of buildings subject to rent control or stabilization, and particularly to do so in the teeth of State enactments aimed at achieving the opposite effect” … . * * *

Where the LINC Program runs afoul of the Urstadt Law … is in its use of mandatory riders that compel a landlord to renew a lease for up to five years at a minimum increase specifically tied to other City rent regulatory programs to which the housing unit is not presently subject. The application of Local Law 10 to compel acceptance of LINC Program rent vouchers as presently structured effectively expands the number of buildings subject to City control by imposing on those housing units a more stringent control than presently exists. This creates exactly the situation which the Urstadt Law forbids … . In determining whether a local law imposes more stringent or restrictive control over a housing unit than presently existed, the “substance rather than the form of the local law is determinative”… . Here, the effect of the LINC lease riders clearly and improperly expands City regulatory control to housing units not presently subject to that control. Alston v Starrett City, Inc., 2018 NY Slip Op 02420, First Dept 4-5-18

​MUNICIPAL LAW (LANDLORD-TENANT, CITY OF NEW YORK PROGRAM TO MOVE HOMELESS INTO APARTMENTS VIOLATES THE URSTADT LAW BY IMPOSING RENT CONTROLS ON BUILDINGS NOT PREVIOUSLY SUBJECT TO CONTROL (FIRST DEPT))/LANDLORD-TENANT (RENT CONTROL, CITY OF NEW YORK, PROGRAM TO MOVE HOMELESS INTO APARTMENTS VIOLATES THE URSTADT LAW BY IMPOSING RENT CONTROLS ON BUILDINGS NOT PREVIOUSLY SUBJECT TO CONTROL (FIRST DEPT))/RENT CONTROL (URSTADT LAW, CITY OF NEW YORK PROGRAM TO MOVE HOMELESS INTO APARTMENTS VIOLATES THE URSTADT LAW BY IMPOSING RENT CONTROLS ON BUILDINGS NOT PREVIOUSLY SUBJECT TO CONTROL (FIRST DEPT))/LINC PROGRAM  (LANDLORD-TENANT, CITY OF NEW YORK PROGRAM TO MOVE HOMELESS INTO APARTMENTS VIOLATES THE URSTADT LAW BY IMPOSING RENT CONTROLS ON BUILDINGS NOT PREVIOUSLY SUBJECT TO CONTROL (FIRST DEPT))/URSTADT LAW (LANDLORD-TENANT, CITY OF NEW YORK PROGRAM TO MOVE HOMELESS INTO APARTMENTS VIOLATES THE URSTADT LAW BY IMPOSING RENT CONTROLS ON BUILDINGS NOT PREVIOUSLY SUBJECT TO CONTROL (FIRST DEPT))

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RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT).

The Third Department, reversing County Court (which had affirmed Town Court), determined that the tenant-respondent’s defenses in this eviction proceeding should have been considered:

“When a landlord-tenant relationship exists, the landlord may maintain a special proceeding to remove a tenant if, as relevant here, ‘[t]he tenant continues in possession of any portion of the premises after the expiration of his [or her] term'” … . The tenant is free, however, to raise “any legal or equitable defense, or counterclaim” in answering the allegations in the petition … .

In that regard, respondent asserted a defense of retaliatory eviction, which includes the scenario wherein a landlord terminates a tenancy “to punish the tenant for complaining to government authorities and then . . . brings a holdover proceeding to evict the tenant” … . Respondent made “[a] good faith complaint . . . to a governmental authority of the landlord’s violation of any health or safety law, regulation, code, or ordinance” within the six months prior to the commencement of this proceeding … . …

​Town Court further failed to grapple with the defenses of constructive eviction and breach of the implied warranty of habitability raised by respondent. County Court correctly observed that these defenses cannot forestall an eviction in a holdover proceeding, but overlooked that they are viable “defense[s] to the recovery of rent” in such proceeding ,,, , Matter of Kirkview Assoc. LP v Amrock, 2018 NY Slip Op 02389, Third Dept 4-5-18

​LANDLORD-TENANT (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/EVICTION (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/RETALIATORY EVICTION (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/CONSTRUCTIVE EVICTION (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/HABITABILITY, WARRANTY OF (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (EVICTION,  (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/REAL PROPERTY LAW (EVICTION,  (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))

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BECAUSE ONLY A CORPORATE ENTITY FORMED BY PLAINTIFF TENANT WAS NAMED ON THE LEASE, PLAINTIFF WAS NOT ENTITLED TO RENT STABILIZATION PROTECTIONS (FIRST DEPT).

The First Department, reversing Supreme Court, over a dissent, ,determined plaintiff (Fox) was not entitled to the protections of rent stabilization because the lease was in the name of a corporate entitled formed by the plaintiff and plaintiff was not named in the lease:

In 2008, at Fox’s suggestion, a renewal lease was entered into by plaintiff MBE Ltd., an entity wholly owned by Fox, with the understanding that Fox would continue to occupy the apartment; MBE executed renewal leases for the apartment in 2010 and 2012. Fox has continued to live in the apartment since MBE became the tenant of record. In 2014, defendant 12 East 88th LLC purchased the building and informed Fox that the lease would not be renewed.

Because the 2008 lease, and the subsequent lease renewals, named MBE as the sole tenant and did not identify as the occupant of the apartment a particular individual with a right to demand a renewal lease, Fox is not entitled to the renewal of the lease … .

… [T]his Court [has] established that “a corporation is entitled to a renewal lease where the lease specifies a particular individual as the occupant and no perpetual tenancy is possible” … . Our … cases have construed the first requirement strictly, denying rent stabilization protections to individual occupants who are not actually identified in an entity’s rent stabilized lease … . Fox v 12 E. 88th LLC, 2018 NY Slip Op 02289, First Dept 4-3-18

​LANDLORD-TENANT (RENT STABILIZATION, BECAUSE ONLY A CORPORATE ENTITY FORMED BY PLAINTIFF TENANT WAS NAMED ON THE LEASE, PLAINTIFF WAS NOT ENTITLED TO RENT STABILIZATION PROTECTIONS (FIRST DEPT))/RENT STABILIZATION (BECAUSE ONLY A CORPORATE ENTITY FORMED BY PLAINTIFF TENANT WAS NAMED ON THE LEASE, PLAINTIFF WAS NOT ENTITLED TO RENT STABILIZATION PROTECTIONS (FIRST DEPT))/CORPORATION LAW (LANDLORD-TENANT, RENT STABILIZATION, BECAUSE ONLY A CORPORATE ENTITY FORMED BY PLAINTIFF TENANT WAS NAMED ON THE LEASE, PLAINTIFF WAS NOT ENTITLED TO RENT STABILIZATION PROTECTIONS (FIRST DEPT))

ALTHOUGH RESPONDENT WAS NOT MARRIED TO THE TENANT OF RECORD, THEIR RELATIONSHIP EXHIBITED THE CARE AND SELF-SACRIFICE OF A FAMILY RELATIONSHIP, HOUSING COURT SHOULD HAVE FOUND THAT RESPONDENT WAS A FAMILY MEMBER ENTITLED TO SUCCESSION RIGHTS IN THE RENT-STABILIZED APARTMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, reversing Housing Court, determined that the relationship between the tenant of record (Montgomery) in a rent-stabilized apartment and respondent (Zenker) justified the finding that Zenker was a “family member” entitled to succession rights. Although Zenker and Montgomery were not married, their relationship exhibited the care and sacrifice sufficient to meet the definition of a “family member” in this context:

The fact that Zenker moved back into the apartment in 2003 because of her own housing problems, and the couple’s lack of sexual intimacy, does not diminish their relationship to that of roommates. The unrefuted evidence establishes that this couple shared decades of dedication, caring and self-sacrifice. Consideration of the factual record in light of the factors listed in the Rent Stabilization Code demonstrates that Zenker was family to Montgomery. Matter of 530 Second Ave. Co., LLC v Zenker, 2018 NY Slip Op 02143, First Dept 3-27-18

LANDLORD-TENANT (RENT STABILIZED APARTMENT, SUCCESSION RIGHTS, ALTHOUGH RESPONDENT WAS NOT MARRIED TO THE TENANT OF RECORD, THEIR RELATIONSHIP EXHIBITED THE CARE AND SELF-SACRIFICE OF A FAMILY RELATIONSHIP, HOUSING COURT SHOULD HAVE FOUND THAT RESPONDENT WAS A FAMILY MEMBER ENTITLED TO SUCCESSION RIGHTS IN THE RENT-STABILIZED APARTMENT (FIRST DEPT))/RENT STABILIZED APARTMENT (SUCCESSION RIGHTS, ALTHOUGH RESPONDENT WAS NOT MARRIED TO THE TENANT OF RECORD, THEIR RELATIONSHIP EXHIBITED THE CARE AND SELF-SACRIFICE OF A FAMILY RELATIONSHIP, HOUSING COURT SHOULD HAVE FOUND THAT RESPONDENT WAS A FAMILY MEMBER ENTITLED TO SUCCESSION RIGHTS IN THE RENT-STABILIZED APARTMENT (FIRST DEPT))/SUCCESSION RIGHTS (RENT STABILIZED APARTMENT, ALTHOUGH RESPONDENT WAS NOT MARRIED TO THE TENANT OF RECORD, THEIR RELATIONSHIP EXHIBITED THE CARE AND SELF-SACRIFICE OF A FAMILY RELATIONSHIP, HOUSING COURT SHOULD HAVE FOUND THAT RESPONDENT WAS A FAMILY MEMBER ENTITLED TO SUCCESSION RIGHTS IN THE RENT-STABILIZED APARTMENT (FIRST DEPT))/FAMILY MEMBER (LANDLORD-TENANT, RENT STABILIZED APARTMENT, SUCCESSION RIGHTS, ALTHOUGH RESPONDENT WAS NOT MARRIED TO THE TENANT OF RECORD, THEIR RELATIONSHIP EXHIBITED THE CARE AND SELF-SACRIFICE OF A FAMILY RELATIONSHIP, HOUSING COURT SHOULD HAVE FOUND THAT RESPONDENT WAS A FAMILY MEMBER ENTITLED TO SUCCESSION RIGHTS IN THE RENT-STABILIZED APARTMENT (FIRST DEPT))

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EXTENSION OF A LEASE WITH A MUNICIPALITY WAS RATIFIED BY THE MUNICIPALITY’S ACCEPTANCE OF RENT PAYMENTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a cell phone tower lease with a municipality did not expire. An extension of the lease was ratified by the municipality when it continued to accept lease payments after the expiration of the first five-year term:

… [I]n seeking a declaration that the lease expired … , the plaintiffs alleged that the Village’s Board of Trustees … only authorized the lease for a term of five years. Indeed, the resolution provided that “the term of the leases [sic] shall not exceed a period of five (5) years from the date upon which it is executed.” The lease, however, provided that the initial term of the lease “will be five (5) years from the Commencement Date'” … , “and shall automatically renew for up to ten (10) additional terms of five (5) years each.

Verizon and AG separately moved for summary judgment, arguing that the lease did not expire … , because the Village ratified the lease by accepting rental payments, issuing building permits, and granting variance applications in connection with the construction of the cell tower. …

“A contract that is not approved by a relevant municipal or governmental body, as required by law, rule, or regulation, may be ratified by the municipality or government body by subsequent conduct, such as by making payments pursuant to the contract” … . Giunta v AG Towers, Inc., 2018 NY Slip Op 01905, Second Dept 3-21-18

MUNICIPAL LAW (EXTENSION OF A LEASE WITH A MUNICIPALITY WAS RATIFIED BY THE MUNICIPALITY’S ACCEPTANCE OF RENT PAYMENTS (SECOND DEPT))/CONTRACT LAW (RATIFICATION, MUNICIPAL LAW, EXTENSION OF A LEASE WITH A MUNICIPALITY WAS RATIFIED BY THE MUNICIPALITY’S ACCEPTANCE OF RENT PAYMENTS (SECOND DEPT))/RATIFICATION (CONTRACT LAW, MUNICIPAL LAW, EXTENSION OF A LEASE WITH A MUNICIPALITY WAS RATIFIED BY THE MUNICIPALITY’S ACCEPTANCE OF RENT PAYMENTS (SECOND DEPT))/LANDLORD-TENANT (CONTRACT LAW, MUNICIPAL LAW, EXTENSION OF A LEASE WITH A MUNICIPALITY WAS RATIFIED BY THE MUNICIPALITY’S ACCEPTANCE OF RENT PAYMENTS (SECOND DEPT))

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PLAINTIFF WAS INJURED IN A WORK AREA ON THE 16TH FLOOR USED FOR RENOVATION WORK ON THE 41ST FLOOR, QUESTION OF FACT WHETHER THE 16TH FLOOR WAS A CONSTRUCTION AREA WITHIN THE MEANING OF LABOR LAW 241 (6), THE COURT NOTED A LESSEE IS AN OWNER WITHIN THE MEANING OF LABOR LAW 241 (6) (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, reversing Supreme Court, determined plaintiff’s Labor Law 241 (6) action should not have been dismissed. Plaintiff worked for a company hired to renovate building space leased by defendant (Cayre). Cayre’s space was on the 41st and 42nd floors. The space where plaintiff was injured was on the 16th floor in an area used by plaintiff’s employer for work related to the renovation of Cayre’s space. Plaintiff’s thumb was injured when he was using an unguarded saw on the 16th floor. The court noted that a lessee is deemed an owner within the meaning of Labor Law 241 (6):

We find that there are disputed issues of fact concerning whether the 16th floor space qualifies as a construction area. … . …”[G]enerally, the scope of a work site must be reviewed as a flexible concept, defined not only by the place but by the circumstances of the work to be done. Thus, Labor Law § 241(6) extends to areas where materials or equipment are being readied for use, as opposed to areas where they are merely stored for future use” … . Here, although defendants contend that the 16th floor space is [plaintiff’s employer’s] permanent workshop, in fact, the 16th floor work space where the accident occurred belonged to 1407 Broadway [the net operating lessee], and the 41st floor location of the executive bathroom being renovated was owned by 1407 Broadway, and leased to Cayre. * * *

We … reject Cayre’s argument that … plaintiff’s accident does not come within the ambit of Labor Law § 241(6) because he was engaged in the fabrication and transportation of materials to be used in connection with construction. As stated by the Court of Appeals, Labor Law § 241(6) covers industrial accidents that occur in the context of construction (Nagel v D & R Realty Corp., 99 NY2d 98). Indeed, Shields v General Elec. Co. (3 AD3d 715 [3d Dept 2004]) is instructive. There, the Court noted that “work that is an integral part of the construction contract’ and is necessitated by and incidental to the construction . . . and involve[s] materials being readied for use in connection therewith’ is construction work” … . Karwowski v 1407 Broadway Real Estate, LLC, 2018 NY Slip Op 01422, First Dept 3-2-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF WAS INJURED IN A WORK AREA ON THE 16TH FLOOR USED FOR RENOVATION WORK ON THE 41ST FLOOR, QUESTION OF FACT WHETHER THE 16TH FLOOR WAS A CONSTRUCTION AREA WITHIN THE MEANING OF LABOR LAW 241 (6), THE COURT NOTED A LESSEE IS AN OWNER WITHIN THE MEANING OF LABOR LAW 241 (6) (FIRST DEPT))/LANDLORD-TENANT (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF WAS INJURED IN A WORK AREA ON THE 16TH FLOOR USED FOR RENOVATION WORK ON THE 41ST FLOOR, QUESTION OF FACT WHETHER THE 16TH FLOOR WAS A CONSTRUCTION AREA WITHIN THE MEANING OF LABOR LAW 241 (6), THE COURT NOTED A LESSEE IS AN OWNER WITHIN THE MEANING OF LABOR LAW 241 (6) (FIRST DEPT))/CONSTRUCTION AREA (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF WAS INJURED IN A WORK AREA ON THE 16TH FLOOR USED FOR RENOVATION WORK ON THE 41ST FLOOR, QUESTION OF FACT WHETHER THE 16TH FLOOR WAS A CONSTRUCTION AREA WITHIN THE MEANING OF LABOR LAW 241 (6), THE COURT NOTED A LESSEE IS AN OWNER WITHIN THE MEANING OF LABOR LAW 241 (6) (FIRST DEPT))

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ELEVATOR MALFUNCTION WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S DEATH, PLAINTIFF’S DECEDENT HAD SUFFERED CARDIAC ARREST BEFORE SHE WAS TRANSFERRED TO THE ELEVATOR, HOUSING AUTHORITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department determined the New York City Housing Authority’s (NYCHA’s) motion for summary judgment in this negligent elevator-maintenance case should have been granted. Plaintiff’s decedent had an asthma attack and suffered cardiac arrest in her apartment. When moving plaintiff’s decedent to an ambulance, the building elevator malfunctioned and stopped for at least several minutes. The NYCHA did not demonstrate that the elevator was in good working order or that the NYCHA had no notice the elevator malfunctioned. However, the NYCHA was able to demonstrate the elevator malfunction was not the proximate cause of plaintiff’s decedent’s death. The evidence supported the conclusion death occurred in the apartment:

… NYCHA presented unrefuted evidence demonstrating that the decedent’s cardiac rhythm was asystole, a dire form of cardiac arrest in which the heart stops beating and there is no electrical activity in the heart, and that she showed no signs of life in the hour between the arrival of emergency personnel and her transfer into the elevator, despite the emergency responders’ continuous resuscitative efforts. Furthermore, NYCHA’s medical expert stated that “[t]he prolonged and unsuccessful resuscitative course in an asystolic patient is associated with an extremely poor outcome” and that “the decedent’s obesity made resuscitative efforts more difficult and further reduced [her] likelihood of survival.” Thus, he opined, “within a reasonable degree of medical certainty[,]. .. the outcome for the decedent would [not] have changed had the transport time within the elevator been shorter.”

By these facts and its expert’s opinion, NYCHA demonstrated its prima facie entitlement to judgment as a matter of law by showing that the stoppage of its elevator, and resulting delay of the decedent’s arrival at the hospital, were not a proximate cause of the decedent’s death. Lebron v New York City Hous. Auth., 2018 NY Slip Op 01116, First Dept 2-15-18

NEGLIGENCE (ELEVATOR MAINTENANCE, LANDLORD-TENANT, ELEVATOR MALFUNCTION WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S DEATH, PLAINTIFF’S DECEDENT HAD SUFFERED CARDIAC ARREST BEFORE SHE WAS TRANSFERRED TO THE ELEVATOR, HOUSING AUTHORITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/ELEVATORS (NEGLIGENCE, LANDLORD-TENANT, ELEVATOR MALFUNCTION WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S DEATH, PLAINTIFF’S DECEDENT HAD SUFFERED CARDIAC ARREST BEFORE SHE WAS TRANSFERRED TO THE ELEVATOR, HOUSING AUTHORITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/LANDLORD-TENANT (ELEVATORS, NEGLIGENCE, ELEVATOR MALFUNCTION WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S DEATH, PLAINTIFF’S DECEDENT HAD SUFFERED CARDIAC ARREST BEFORE SHE WAS TRANSFERRED TO THE ELEVATOR, HOUSING AUTHORITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/PROXIMATE CAUSE (ELEVATOR MALFUNCTION, LANDLORD-TENANT,  ELEVATOR MALFUNCTION WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S DEATH, PLAINTIFF’S DECEDENT HAD SUFFERED CARDIAC ARREST BEFORE SHE WAS TRANSFERRED TO THE ELEVATOR, HOUSING AUTHORITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))

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