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Out-Of-Possession Landlord Not Liable for Missing Light in Stairwell

The Second Department determined the out-of-possession landlord could not be liable for a missing light in a stairwell, the alleged cause of plaintiff’s fall:

“An out-of-possession landlord’s duty to repair a dangerous condition on leased premises is imposed by statute or regulation, by contract, or by a course of conduct”… . Here, the defendant established its entitlement to judgment as a matter of law by establishing that it was an out-of-possession landlord, that it was not contractually obligated to maintain the lighting at the premises or repair the alleged hazardous condition, that it did not endeavor to perform such maintenance, and that it did not violate any relevant statute or regulation… . Grimaldi v 221 Arlington Realty, LLC, 2013 NY Slip Op 03969, 2nd Dept, 6-5-13

SLIP AND FALL

 

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Notice Element of Lead-Paint Injury Cause of Action Explained

In affirming the denial of summary judgment in a lead-paint injury case, the Third Department explained the “notice” elements as follows:

With respect to notice, “[i]t is well settled that in order for a landlord to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time  that, in the exercise of reasonable  care, it should  have been corrected” …. In this context, constructive notice may  be demonstrated by a showing “that the landlord (1) retained a right of entry to the premises and  assumed  a duty to make  repairs, (2) knew  that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment” … . Derr v Fleming, 515399, 3rd Dept, 5-9-13

 

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Plaintiff Was Unable to Demonstrate Landlord Had Knowledge of Presence of Lead Paint​

Plaintiff’s inability to demonstrate the defendant had actual or constructive notice of the presence of lead paint in defendant’s building, in the face of defendant’s deposition testimony about his lack of knowledge, justified the dismissal of the lead-paint-injury complaint.  The Third Department explained:

“[I]n order for a landlord to be  held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected” ….To  establish constructive notice in the context of a lead paint case, the plaintiff must show “that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned,  (3) was aware  that paint was  peeling on  the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment” … . Hines v Double D and S Realty Management Corp, 515635, 3rd Dept, 5-2-13

 

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Criteria for Negligence on Part of Out-of-Possession Landlord with Limited Right of Reentry​

In dismissing a personal injury action stemming from plaintiff’s fall down a two-step interior stairway, the First Department explained the liability criteria for an out-of-possession landlord with limited right to reenter:

As out-of-possession landlords, with a limited right to reenter, they could only be liable for negligence “based on a significant structural or design defect that is contrary to a specific statutory safety provision” …. The only condition alleged on appeal to serve as a predicate for [defendant’s] potential liability involves the riser heights of the steps. Even if the alleged Building Code provision, which concerns uniformity, were applicable and had been violated, the same would not constitute a significant structural or design defect and could not serve as a basis for liability against [defendant]. Drotar v Sweet Thing, Inc, 2013 NY Slip Op 03180, 1st Dept, 5-2-13

SLIP AND FALL

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Class Certification Properly Granted; Rent Overcharge and Attorney’s-Fees Claims Did Not Seek “Penalties” In Violation of CPLR 901

The First Department affirmed the grant of class certification in a landlord-tenant action finding that plaintiff’s rent overcharge claim and attorney’s-fees claim did not seek “penalties” in violation of CPLR 901.  There was a dissent.  The First Department wrote:

Although plaintiff did not waive her right to reimbursement for alleged overcharges and interest, these claims did not render her action an action for a penalty for purposes of CPLR 901(b), even though such recovery is denominated a penalty by the RSL [Rent Stabilization Law], because they lack a punitive, deterrent and litigation-incentivizing purpose ….

Nor did the attorneys’ fees request seek a penalty, as the general right to attorneys’ fees in landlord-tenant proceedings (Real Property Law § 234) does not apply to administrative proceedings …, and the RSL provision should be understood as having the same nonpunitive purpose as the statute applicable to actions and summary proceedings. Notably, the reference in Rent Stabilization Code (9 NYCRR) § 2526.1(d) to attorneys’ fees as an “additional penalty,” while otherwise not dispositive, is absent from the attorney fee provision in the legislatively enacted RSL. Gudz v Jemrock Realty Co, LLC, 2013 NY SlipOp 02814, 1st Dept, 4-25-13

 

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Class Certification Should Have Been Granted; Plaintiffs Waived Statutory Treble Damages

The First Department reversed the dismissal of a putative class action by tenants against a landlord alleging the landlord deregulated the apartments while receiving tax incentive benefits from the city.  Because the tenants waived the statutory treble damages provision, the First Department determined that the case no longer involved “penalties” and was therefore not precluded by CPLR 901.  In a full-fledged opinion by Justice Andrias, the First Department wrote:

Pursuant to CPLR 901(b), “[u]nless a statute creating or imposing a penalty, or a minimum measure of recovery specifically authorizes the recovery thereof in a class action, an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained in a class action.” However, even where a statute creates or imposes a penalty, the restriction of CPLR 901(b) is inapplicable where the class representative seeks to recover only actual damages and waives the penalty on behalf of the class, and individual class members are allowed to opt out of the class to pursue their punitive damages. … . * * * Rent Stabilization Code (9 NYCRR) § 2520.13, which states that “[a]n agreement by the tenant to waive the benefit of any provision of the RSL or this Code is void,” does not require a different result. “[P]laintiffs are seeking to waive their entitlement to treble damages unilaterally, not through agreement. Thus, allowing the class action to proceed would not frustrate the RSC’s purpose of [avoiding] situations whereby the landlord attempts to circumvent the [RSC’s] benefits” … . Downing v First Lenox Terrace Assoc, 2013 NY Slip Op 02853, 1st Dept, 4-25-13

 

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Jury Verdict Finding No Negligence Reversed on Appeal/Article 16 Defenses Re: Negligence of Non-Party Allowed

A mechanic working in the basement of a two-family house left a trap door, which was directly outside the side door of plaintiff’s apartment, open.  Plaintiff fell through the open trap door.  In setting aside the jury verdict finding the mechanic was not negligent, the Second Department wrote:

A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence … . In exercising our authority to review the weight of the evidence …, we find that the jury’s verdict was contrary to the weight of the evidence. “Negligence involves the failure to exercise the degree of care that a reasonably prudent person would exercise in the same circumstances” …. Applying this standard, we conclude that the jury’s determination that the defendant was not negligent was not based on a fair interpretation of the evidence, since a reasonable person should have been aware that leaving the trapdoor open created an unsafe condition …. Accordingly, we reverse the amended judgment, reinstate the complaint, and remit the matter … for a new trial.

The Second Department also made the following findings, pursuant to CPLR article 16, about defenses based upon the liability of the non-party out-of-possession landlord:

…[T]he Supreme Court did not err in denying that branch of the plaintiff’s motion which was to preclude the defendant from offering evidence as to the liability of a nonparty, the out-of-possession landlord, for the purpose of limiting the defendant’s liability for noneconomic damages pursuant to CPLR article 16. Contrary to the plaintiff’s contention, a defendant is not required to plead that defense as an affirmative defense (see CPLR 1601[1]…).

…[T]he Supreme Court properly denied the plaintiff’s motion to dismiss the defendant’s affirmative defense pursuant to CPLR article 16, as the defendant presented evidence demonstrating that a question of fact existed as to the negligence of the nonparty landlord (see CPLR 1603…).  Cooper v Burt’s Reliable, Inc, 2013 NY Slip Op 02529, 2012-00098, Index No 6053/07, 2nd Dept 4-17-13

 

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Resident in Hotel Under Contract to Provide Rooms to Homeless Persons Entitled to Rent Stabilization Protection

In finding that the respondent (Pitt) was a “permanent tenant” of a hotel which rented rooms to homeless persons under an agreement with the NYC Human Resources Administration (thereby entitling the respondent to the protections of the Rent Stabilization Code), the First Department explained the “exception to mootness” doctrine:”

As a threshold matter, we find that this appeal is not rendered moot by the fact that Pitt voluntarily vacated the premises before the appeal was perfected. Although, as a general principle, courts are precluded from considering questions which have become moot by a change in circumstances, an exception to the mootness doctrine exists in situations that present the following: “(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues” … . This matter presents an issue of substantial public interest that is likely to recur and evade review. Specifically, this Court must address the question of what constitutes a legal tenancy under the Rent Stabilization Code, and what rights are vested in a person occupying premises under the contract between a landlord and a social service agency. This is an issue that affects a large number of New Yorkers who declare permanent tenancy in a SRO [single room occupancy facility]. Thus, it presents an exception to the mootness doctrine … . Branic Intl Realty Corp v Pitt, 2013 NY Slip Op 02522, 9453 & 57024/10, 363, 1st Dept, 4-16-13

 

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Son Entitled to Remain in Deceased Mother’s Apartment​

In annulling the ruling that petitioner (Carlos) was not entitled to “remaining family member (RFM)” status for the succession of his deceased mother’s apartment, the First Department wrote:

We annul NYCHA’s [New York Housing Authority’s] determination on the ground that it is not supported by substantial evidence. While the agency correctly asserts that Carlos’s RFM status is jeopardized by the fact that he never received written permission to be added to his mother’s lease while she was alive, the record is plain that Amparo [Carlos’ mother] took every step to have her son added to her lease, as required by 24 CFR 966.4(a)(1)(v), and it is undisputed that NYCHA violated a number of its own internal rules by determining that Carlos’s 1996 conviction precluded him from joining Amparo’s tenancy until May of 2008, without notifying Amparo or Carlos, and without giving them the opportunity to present evidence of Carlos’s rehabilitation. … .

…[W]hile estoppel is not available against a government agency engaging in the exercise of its governmental functions …, we have held that NYCHA’s knowledge that a tenant was living in an apartment for a substantial period of time can be an important component of the determination of a subsequent RFM application … . In re Gutierrez v Rhea, et al, 2013 NY Slip Op 02453, 8494 402789/10, 1st Dept, 4-11-13

 

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Failure to Comply With Lease Option Can Be Forgiven if Certain Criteria Met 

The Second Department explained that the failure to strictly comply with the terms of a lease option (here involving notice to the landlord of the exercise of an option to terminate the lease) can be forgiven if certain criteria are met:

An optionee must exercise the option in accordance with its terms, within the time and in the manner specified in the option …. The defendant failed to strictly comply with the language in the option in purporting to exercise it. However, equity will intervene to relieve an optionee of the consequences of a failure to exercise an option in accordance with its terms where (1) the optionee’s failure to properly exercise the option resulted from an honest mistake or inadvertence, (2) refusal to recognize the exercise of the option would result in a substantial forfeiture by the optionee, and (3) the optionor would not suffer prejudice as a result … .  Pacific Dean Realty, LLC v Specific St, LLC, 2013 NY Slip Op 02385, 2011-10324, Index No 21508/10, 2nd Dept 4-10-13

 

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