The following is a list of decisions published in the New York Law Journal wherein Kenneth B. Hawco successfully represented the tenant in each lawsuit.

LANDLORD and TENANT LAW -- PUBLISHED DECISIONS

200-202 WEST 107th STREET, LLC v. BRAUN, NYLJ, May 1, 2002, p. 23, col. 2 (Civ. Ct., N.Y. Co., Schreiber, J.), reported in the New York Law Journal as a "Decision of Interest" with the heading: "Court finds rent demand was defective because [it was] not issued by landlord or its agent." Tenants successfully moved to dismiss a non-payment proceeding because the rent demand had been issued by a stranger to the tenants. The Petitioner [the company that sued the tenants] claimed that it was really the tenants landlord, having used various names while running its real estate empire. The case was dismissed because the Petitioner failed to prove its claim.

GRIMM v. DHCR, NYLJ, Jan. 9, 2002, p. 18, col. 3 (Sup. Ct., N.Y. Co., Friedman, J.), reported in the New York Law Journal as a "Decision of Interest" with the heading: "Rent overcharge liability exemption requires nonreceipt of sufficient rent records at [judicial] sale." Tenant successfully challenged DHCR which held that because the building had been purchased at a judicial sale, the new owner was exempt from rent overcharge liability. The interesting fact, however, was that the prior owner is now a defunct corporation; so the tenant could not collect on the judgment. The tenant successfully argued that a new owner is exempt from rent overcharge liability if it purchases a building at a judicial sale only if it also does not receive at that sale sufficient rent records, showing the rent history for the apartments, as mandated by RSC 2526.1(f)(2).

This is a good decision for tenants because it can be cited for the proposition that DHCR can no longer automatically exempt an owner from rent overcharge liability whenever an owner purchases a building at a judicial sale, which seems to have been DHCR's knee jerk response to judicial sale cases. Perhaps now DHCR will follow the law and require a new owner to meet its burden of proof of establishing that it did not receive the rent history records at a judicial sale, before it can be exempt from any rent overcharge liability.

NEGRON v. GOLDMAN, NYLJ, Jan. 2, 2002, p. 18, col. 6 (Civ. Ct., N.Y. Co., James, J.), reported in the New York Law Journal as a "Decision of Interest" with the heading: "Law of the case doctrine invoked by Court assessing rent overcharge." This is the third time this case has been reported. [see decisions below]. The Court denied the landlord's motion to dismiss, made during an assessment hearing, because rent overcharge liability had already been established, assessed damages of $56,000.00 (including the rent overcharge amount, plus sanctions [see decision below] and interest and scheduled the hearing to determine if triple damages should be imposed and the amount of attorney's fees due the tenants.

NEGRON v. GOLDMAN, NYLJ, Oct. 17, 2001, p. 18, col. 5 (Civ. Ct., N.Y. Co., Billings, J.), reported in the New York Law Journal as a "Decision of Interest" with the heading: "Landlord failed to bring meritorious defense justifying rent overcharge default vacatur." Tenants successfully defeated landlord's attempt to vacate their default in appearing for a scheduled assessment hearing and successfully moved for sanctions. The Court declared that the landlord's attempt to vacate their default (which was really a pretext to try and have the tenants rent overcharge claims dismissed, although rent overcharge liability had already been established [see decision below]) "was frivolous in completely lacking in merit, contemptuous in completely disregarding binding law of the case, dilatory in delaying resolution of the case through trial, and wasteful of resources that could have been devoted directly to the trial."

500 WEST END LLC v. PALEOLOGOS, NYLJ, June 29, 2001, p. 19, col. 3 (App. Term, 1st Dep't). Tenant successfully defeated landlord's non-primary residence proceeding, attempting to evict the tenant (an octogenarian) from her rent controlled apartment where she has lived for 50 years. Landlord claimed that the tenant did not use her apartment as her primary residence. The tenant was absent extensively from her apartment because she spent several days a month traveling to Boston so she could do volunteer work at a hospice for blind kids. The lower court held that the tenant did not relinquish her primary New York City residence and the Appellate Term agreed.

SCHAPER v. DHCR, NYLJ, June 5, 2001, p. 18, col. 2 (Sup. Ct., N.Y. Co., DeGrasse, J.), reported in the New York Law Journal as (1) a "Decision of Interest" with the heading: "Division of Housing and Community Renewal improperly interprets Special Guideline 26," and (2) a story on page 1 of the New York Law Journal (May 30, 2001) with the heading: " Landlords seeking rent hike must meet previous standard." Tenants successfully challenged a DHCR determination which denied their administrative appeal, in the context of a Fair Market Rent Appeal. DHCR relied on Special Guideline 26 and automatically assumed that the landlord had been entitled to raise the base rent for the rent stabilized apartment, by using imaginary MBR rent amounts, even though the landlord had never applied for periodic rent increases. The Supreme Court agreed with the tenants that Special Guideline 26, which states that initialized stabilized rents should be set by reference to the actual rent in existence "or [that] would have existed," was not in accordance with the Rent Stabilization Law and remanded the case back to DHCR to allow the landlord the opportunity to retroactively apply for rent increases.

Although the Court substantially agreed with the tenants, by holding that Special Guideline 26 was not in compliance with the law, they have appealed (as did DHCR and the landlord, which appeal is pending) because the Court gave the landlord the belated opportunity to retroactively apply for MBR increases, which opportunity the tenants believe, still runs afoul of the rent control laws which do not permit a landlord to retroactively apply for MBR increases.

500 WEST END LLC v. MERKIN, NYLJ, April 26, 2000, p. 28, col. 4 (Civ. Ct., N.Y. Co., Fitzpatrick, J.), reported in the New York Law Journal as a "Decision of Interest" with the heading: "Jury waiver in 1969 lease is unenforceable in non-primary residence holdover suit." Tenant successfully defeated landlord's motion to strike jury demand, in a holdover proceeding based upon non-primary residence, even though both sides had agreed in a lease to waive a trial by jury in any proceeding, because "the lease predates a judicial cause of action for eviction of rent-controlled tenants based upon non-primary residence."

This case is cited in Scherer, Residential Landlord-Tenant Law in New York, section 10:33 (2001).

AAROS REALTY LLC v. CLEMENTS, NYLJ, Feb. 14, 1998, p. 28, col. 5 (Civ. Ct., N.Y. Co., Acosta, J.), reported in the New York Law Journal as a "Decision of Interest" with the heading: "Petition dismissed without prejudice; rent was accepted after 'violation.'" Tenant successfully moved to dismiss holdover proceeding because the landlord's acceptance of rent after the tenancy was purportedly terminated (due to an alleged illegal sublet) and before the commencement of the holdover proceeding, vitiated the Notice of Termination, thus eliminating the required predicate to maintain the proceeding.

NEGRON v. GOLDMAN, NYLJ, Feb. 4, 1998, p. 26, col. 2 (Civ. Ct., N.Y. Co., Ling-Kohan, J.), reported as a "Decision of Interest" with heading: "Residential base rent cannot derive from earlier commercial rent." Tenants successfully moved for the following relief: (1) striking the landlord's affirmative defense of the Statute of Limitations, with the court declaring that: "the statute of limitations on a tenant's challenge to the rent does not begin to run until the landlord files the initial legal regulated rent notice;" (2) having the rent charged to the tenants declared to be illegal, with the court declaring that: "the rent charged a commercial tenant may not be used to calculate the base rent for the apartment;" and (3) awarding the tenants attorney's fees, with the court declaring that because the Court found a rent overcharge to exist the tenants were entitled to an award of attorney's fees, pursuant to Rent Stabilization Code section 2526.1.

The landlord unsuccessfully appealed because the Appellate Term affirmed the Civil Court. NYLJ, May 4, 1999, p. 26, col. 2 (App. Term, 1st Dep't).

This case is cited in Scherer, Residential Landlord-Tenant Law in New York, section 4:250 (2001).