Tenant Claims Habitability Breach Amounts to Harassment

Copyright by, and republished with permission of, Apartment Law Insider.

When landlords take tenants to court over nonpayment of rent, tenants often claim as a defense that the landlord breached the warranty of habitability. But, as a recent case illustrates, a tenant may preemptively claim such a breach before a landlord acts to evict—and argue not only that that the breach was aggravated by the pandemic, but that it amounted to harassment for which the tenant should be awarded a civil penalty.

In evaluating the merits of the breach of warranty claim, the court in this case considered the inconvenience to the tenant due to the pandemic as an aggravating factor. And then it conducted a detailed analysis in determining whether a civil penalty was in order.

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Co-op Board Learns That Emails Can Bite Back

Copyright by, and republished with permission of, Habitat Magazine.

The brawl begins. Back in 2017, the actors Justin Theroux and his then-wife Jennifer Aniston got approval from their Greenwich Village co-op board to combine their apartment with the newly acquired apartment next door, then embark on a $1 million renovation of the expanded space. But the downstairs neighbors, Norman and Barbara Rescinow, complained about excessive noise from the renovation work. A war of words erupted – including charges of harassment, voyeurism, and animal and spousal cruelty, plus a dispute over access to the shared roof deck. Eventually the brawl wound up in court, where a judge placed a restraining order on Norman Rescinow, forbidding him from trespassing on Theroux’s property or from using “abusive language” when addressing the co-op board or potential witnesses in the mushrooming litigation.

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Hit by Falling Towel Dispenser – Res Ipsa Loquitur: “The Thing Speaks for Itself”

This was originally published on the SGR Blog.

Res ipsa loquitur is the Latin phrase describing a legal doctrine that infers negligence from the very nature of an accident or injury in the absence of any behavior or activity by the aggrieved person.

In most negligence cases, the plaintiff must establish a duty of care, breach of that duty, causation, and injury. But under res ipsa loquitur, the first three elements are inferred from an injury that does not ordinarily occur without negligence. 

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Bad Faith in Rejecting Sale of Unit Leads to Damages: Board Breached Fiduciary Duty to Apartment Owner

This was originally posted on the SGR Blog.

The Business Judgment Rule was put to the test in a recent case where Sharie Graham, the owner of a co-op apartment on the Upper East Side, charged the Board with bad faith in refusing to approve the sale of her unit to the Soffens, two physicians from New Jersey, for use as a pied a terre.

Graham sued her 420 East 72nd Street residential cooperative apartment building’s Board of Directors for refusing to approve proposed buyers of her unit. The main issue for trial was whether the Board acted in bad faith– because the proprietary lease for the coop provided that the Board could refuse to approve a sale for “any reason and no reason”. Both sides conceded, however, that the clause could not insulate the Board from decisions involving bad faith. After a trial, the Court found that Graham proved, by a preponderance of the evidence, that the Board acted in bad faith.

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“Red Shoe” Stubs a (Legal) Toe on East 75th Street: No Pandemic Caused Frustration/Impossibility of Performance

This was originally posted on the SGR Blog.

In a recent case, an iconic Upper East Side luxury retailer sought to escape the obligation to pay $1.68m in  rent because the pandemic destroyed the efficacy of the high-end/tourist/walk-in-and-buy business model for its branded shoes.

35 E.  E. 75th St. Corp. claimed that Christian Louboutin LLC (the tenant in a building owned by E. 75th) had not paid rent since March 3, 2020. And argued that the amount due was comprised of the monthly payments of rent and real estate tax escalation charges for 2020/21.

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“Reasonable Expectations” Meets “Res Ipsa Loquitur” at the Boqueria Soho: Bone of Legal Contention–Tapas Dish with Steak & Piquillo Pepper Confit

This was originally posted on the SGR Blog.

On September 23, 2016, Yassaman Kazemi was dining at Boqueria Soho, LLC. She ordered a tapas dish with sirloin steak and piquillo pepper confit. Yassaman claimed that when she bit into the piquillo pepper, she bit into a concealed piece of a sharp bone which caused severe injuries. She claimed that she was entitled to summary judgment under the doctrine of res ipsa loquitur and implied warranty. And asserted that the failure to remove the sharp bone from the pepper constituted negligence as a matter of law.

Boqueria argued that there were numerous issues of fact that preclude summary judgment. Kazemi could not show whether the bone came from the steak; whether she bit into it while eating the steak; whether her companion cut the bone out of the steak and left it in a small plate of tapas before biting into the bone; whether Kazemi ordered a boneless steak entrée; and whether she should have reasonably anticipated finding a small bone shard in her steak.

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Court Answers an Existential Question: How Clean is “Broom Clean”?

This was originally published on the SGR Blog.

Contracts for the sale of residential real property often require the seller to deliver the premises “broom clean”. And leases for residential apartments almost always require a tenant to surrender the unit “in broom clean condition” at the end of the lease term.  A recent dispute, concerning the condition of a home at the time of delivery, is equally applicable to the condition of an apartment at the end of a lease.

Phillip and Janet Witter sold their house to Daniel and Erin Nitschke but remained on the premises pursuant to a post-closing occupancy agreement. The Witters claimed that they surrendered the property in broom-clean condition, and are entitled to release of a $2,000 escrow deposit. The Nitschkes sought $400 of the escrow deposit to reimburse them for the cost of having the premises professionally cleaned.  A hearing to consider the claim and counterclaim was held to determine  the competing “small claims” in the Penfield Town Justice Court. Both sides appeared without counsel.

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New York Court of Appeals Update (December 2020)

This was originally posted on the SGR blog.

Court Nixes Grossly Disproportionate Liquidated Damages:

Landlord Not Entitled to $1M+ for Tenant Default of $175K

The Court of Appeals recently considered the enforceability of a liquidated damages provision in a commercial lease Surrender Agreement between  Columbia University, one of the City’s premier universities, and D’Agostino Supermarkets, a family-owned food market chain founded in 1932. As a general matter, parties are free to agree to a liquidated damages clause provided that the clause is neither unconscionable nor contrary to public policy.

But were the damages sought by Columbia grossly disproportionate to the amount due from D’Agostino upon full performance of the Surrender Agreement? Supreme Court and the Appellate Division struck the provision as an unenforceable penalty in contravention of public policy. D’Agostino appealed.

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The Long Arm of the Business Judgment Rule at a Queens Condo

Copyright by, and republished with permission of, Habitat Magazine.

The Village Mall at Hillcrest Condominium, a pair of 15-story towers built in Kew Gardens Hills, Queens, in the 1970s, bills itself as a place “Where Neighbors Become Friends.” But a recent court case shows that it’s also a place where friends can become enemies – thanks to the ironclad protections and long life of the Business Judgment Rule.

Way back in 1979, unit-owners Sunil and Sabita Banerjee claim they received permission from the condo’s managing agent to enclose the balcony on their apartment, creating a new room. Almost three decades later, a successor condo board revoked the permission, claiming access to the balcony was required to complete work on the facade mandated by the city’s Facade Inspection and Safety Program (FISP), formerly known as Local Law 11. The Banerjees refused to remove their enclosure.

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New York Court of Appeals (Dec. 2020)

This was originally posted on the SGR Blog.

“Murder (He) Wrote”

Did that Suffice for a Conviction?

An incarcerated felon asked an inmate in an adjacent cell (whose was days away from release and whose girlfriend faced eviction from her apartment) to kill his wife and mother-in-law and kidnap his children (after he left prison)– in return for which he would be given a house. Detailed written and verbal  information and instructions followed; but the neighboring cellmate informed the authorities and the crime never took place.  Was the felon guilty of attempted murder?

Feinman, J. (for the Court)

A person is guilty of an attempt to commit a crime if the person’s conduct comes “dangerously close” to committing the intended crime. In a recent case, the Court of Appeals examined whether the evidence in a case was in/sufficient to support convictions for attempted murder in the first and second degrees. Did the defendant and his feigned confederate take any actual step toward accomplishing defendant’s plan to kill his wife and mother-in-law beyond mere conversations and planning?. irm.

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