Landlord v. Tenant: March 2026

DOB VIOLATIONS

Paying OATH Penalty Doesn’t Waive Right to Challenge Violation

(Decision submitted by Alex Estis of the Manhattan law firm of Rosenberg & Estis, P.C., attorneys for the landlord.)

Landlord failed to appear at scheduled hearings before the NYC Office of Administrative Trials and Hearings (OATH) with respect to certain issued building violations. After the penalties were fully paid, landlord asked OATH to reopen the cases and allow the underlying violations to be heard on the merits. OATH refused, noting its position that payment of the summons constituted an admission of a violation and, consequently, a waiver of the right to a hearing. 

Landlord then brought an Article 78 court appeal of OATH’s decision after OATH denied landlord’s requests to vacate the default judgments. Alternatively, landlord sought a reduction in the amount of the OATH default penalties. The court ruled against landlord in 2023 (LVT #33077), finding that landlord hadn’t raised the issues raised here in an initial Article 78 proceeding commenced in response to OATH determinations concerning other building violations and therefore couldn’t do so in this Article 78 petition.

Landlord appealed, and the case was reopened. The First Dept. appeals court held that paying an OATH penalty doesn’t automatically waive an owner’s right to challenge an underlying violation. The court also faulted the lower court for blocking the case on procedural grounds that neither side had raised. And the prior litigation involved different violations and different issues, so the claims hadn’t previously been raised and res judicata didn’t apply. The violations were sent back to OATH for further consideration.

• Windermere Properties LLC v. City of New York: 2025 NY Slip Op 06798, Index No. 161016/22, App. No. 5293-5294, Case No. 2024-01732, 2024-02289 (App. Div. 1 Dept.; 12/4/25)[LVT #33960]

PROCEDURE—COURT 

Landlord’s Combined Rent Reminder and Rent Demand Notice Was Fatally Defective

A Mount Vernon landlord sued to evict tenants for nonpayment of rent. Tenants asked the court to dismiss the case, claiming that landlord’s predicate notice was defective. 

The court agreed with tenants. Landlord sent one notice, via certified mail and conspicuous place service by a process server, that was labeled a “5 day notice of past due rent” and which included a “written demand for past due rent.” The “demand” portion of the notice stated that tenants must pay the rent owed within 14 days of service or face an eviction case.

The court pointed out that RPL §235-e(d) requires delivery of the five-day “rent reminder” notice, while RPAPL §711(2) required service of a 14-day rent demand before commencing a nonpayment eviction case. The court found no Appellate authority either permitting or prohibiting the filing of a combined notice. But the court noted a 2021 NY State Bar Association publication that addressed the question and concluded that “the 14-day notice and five-day notice are separate and distinct, and both should be properly served prior to the commencement of a nonpayment eviction proceeding.” 

The court also stated that the purposes of the two notices were different, and found that a 14-day notice can’t be served until after the rent was considered late, which was after the five-day grace period had elapsed.

• Blue Rio LLC v. Mascary: Index No. 0589-25, 2026 NY Slip Op 50097(U)(City Ct. Mt. Vernon; 1/28/26)[LVT #34037]

RENT OVERCHARGE

Landlord Can’t Charge Rent-Stabilized Tenants a Fee for Water Usage

Rent-stabilized tenant filed a specific rent overcharge complaint with the DHCR concerning illegal fees for water usage. The DRA ruled for tenant. NYC owners are not allowed to charge tenants for water usage in rent-stabilized apartments. The DRA directed landlord to refund $1,540 for water fees from May 2021 through November 2023, assessed triple damages, and ordered landlord to cease billing for water usage.

Landlord appealed and lost. Landlord claimed that tenant signed a Water Usage Rider as part of her vacancy lease, that the apartment was sub-metered for water usage, and that tenant agreed to pay for the water. Landlord argued that RSC §2522.10 permits an owner to charge for utility services, and that this wasn’t limited to electricity, gas, cable, and telecommunications.

The DHCR disagreed. Under RSC §2520.6(r), hot and cold water are a required service to be provided by the owner. Under RSC §2502.13, a tenant may not waive a benefit afforded under the RSL. So tenant’s lease agreement provision to pay for water usage was void. A required service cost can’t be passed on to the tenant. There also was no proof that landlord applied to the DHCR for approval of a service decrease related to decreasing services based on submetering apartments for water usage or that the agency even permitted this. To the extent that landlord may have found a 2011 DHCR decision with a contrary result, the DHCR would no longer follow that decision. And since rent overcharge is presumed willful, triple damages were appropriate. 

The DHCR also noted that landlord had signed a Settlement Agreement with the DHCR’s Tenant Protection Unit (TPU) in October 2025 to cease billing for water charges in the future and to reimburse tenants for charges already billed. That agreement left it to tenants to seek any outstanding overcharge refunds in court or with the DHCR.

• Cadillac Leasing Limited Partnership: DHCR Adm. Rev. Docket No. NP110031RO (11/4/25)[LVT #34010]