Landlord v. Tenant: July 2015

Eviction: Tenant Didn’t Comply with Requirements for New Keycard

Tenant sued landlord for illegal lockout. She claimed that landlord didn’t give her keycards to the new locks that had been installed on the entry doors solely because she had refused to provide landlord with a photograph of herself. Landlord presented a 2012 DHCR order that permitted landlord to issue the electronic keycards and stated that if tenants were locked out, the lobby front door attendant must contact security, and after security verified the identity of the person, entry would be permitted. The order also stated that each person receiving a keycard must sit for a photo to be electronically associated with the keycard. The court ruled for tenant and found that tenant had been unlawfully evicted.

Landlord appealed and won. To prove unlawful eviction under Real Property Actions and Proceedings Law Section 713(10), tenant must show that landlord had entered the apartment or remained in possession by force or unlawful means. Landlord didn’t change the keys to tenant’s apartment, and landlord acted well within its rights when it didn’t provide tenant with keycards because she had refused to comply with the photograph requirement contained in the DHCR order. Tenant didn’t show that she had identified herself to anyone or that, if she had, she wasn’t permitted to enter the building. The case was dismissed.

• Clarke v. Copenhagen Leasing, LP: 2015 NY Slip Op 25163, 2015 WL 3367871 (App. T. 2 Dept.; 5/6/15)

Rent Overcharge: Default Formula Applied to Rent Overcharge Proceeding

The DHCR’s Tenant Protection Unit (TPU) conducted an Individual Apartment Improvement (IAI) audit for tenant’s apartment in 2013 based on review of the registered rents. TPU asked landlord to submit proof of the IAI costs that substantially increased the apartment’s rent between 2010 and 2011. Landlord’s new managing agent responded but didn’t submit the documents requested by TPU. TPU referred the case to the DRA in 2014. The DRA commenced a rent overcharge proceeding and set the base rent date as June 25, 2010. The DRA found there was a rent overcharge after landlord failed to submit any rent history records and ordered landlord to refund $28,556, including triple damages.

Landlord appealed and lost. Landlord claimed that it didn’t receive notice of the DRA’s overcharge proceeding, that the default formula shouldn’t be applied because landlord now submitted rent history records, and that there was no overcharge because no rent had been paid during the claimed overcharge period. The DRA mailed several notices to landlord and delivery was presumed absent any proof of irregularities. The DHCR wouldn’t consider new evidence submitted for the first time with landlord’s PAR. And the fact that tenant moved out in August 2012 and the apartment remained vacant since then had no bearing on the DRA’s order. But the DHCR acknowledged that it couldn’t compel payment to a tenant who never paid any rent, was no longer in occupancy, and had left no forwarding address.

• 145 Avenue C, LLC: DHCR Adm. Rev. Docket No. CV410052RO (4/8/15)

Security Deposits: Landlord Can’t Deduct Extermination Costs from Security Deposit

Former tenant sued landlord in small claims court, seeking a refund of her security deposit. The court ruled against tenant, who appealed and won in part. Landlord was entitled to a $15 set-off for bank charges resulting from tenant’s stop-payment on a check to landlord. Landlord also was entitled to a set-off for repairs made to the stove damaged by tenant. But landlord failed to produce paid invoices or estimates for damages to the flooring and door he claimed were damaged by tenant and her children. And landlord wasn’t entitled to a set-off for the cost of an extermination contract since this was an essential service that landlord was required to provide. So tenant was entitled to a $1,340 refund from landlord for part of her security deposit.

• Ankhbara v. Sharplis-Esprit: Index No. 2014-521 NC, NYLJ No. 1202727375327 (App. T. 2 Dept.; 5/1/15)