Lucas A. Ferrara in The New York Times Real Estate Section, TENANT LAW CAN VARY BY BOROUGH, November 11, 2001.
Most people know that different courts occasionally reach different conclusions when faced with the same basic facts. A person walking beside the road with a shotgun during hunting season would be treated quite differently in some rural parts of the state than he would be in New York City. In some cases, however, disparate judicial decisions result neither from differences in the facts nor the law, but from the way a particular court interprets a law at a given moment. While such disparities are troubling enough when they involve courts in different parts of the state, they are even more vexing when different courts in the same city apply the same law differently.
And that is just what has happened in recent years in a number of New York City cases. Among them are cases relating to the occupancy rights of tenants who rent in co-ops or condominiums after the building has been converted; cases involving legal defenses available to certain tenants in landlord-tenant actions; cases relating to requirements on a landlord when a residential tenant breaks a lease; and even cases dealing with a landlord's timetable for action when a tenant violates the New York City pet law.
"Almost everyone knows that New York City has five counties," said Joel E. Miller, a Queens real estate lawyer. "But not many people are aware that the courts in those counties are in four different judicial districts."
Mr. Miller explained that the state's court system is divided into Judicial Districts and Judicial Departments, with the Judicial Districts being made up of the state's trial courts and the Judicial Departments each consisting of two or more Judicial Districts. So, for example, Manhattan is designated as the First Judicial District and the Bronx designated as the 12th, and those two districts make up the First Judicial Department. And while Queens is the 11th Judicial District and Brooklyn and Staten Island make up the Second, those two districts are part of Second Judicial Department.
Mr. Miller explained further that appeals from State Supreme Court cases in a given department are decided by the Appellate Division in that department. An appeal of a Manhattan Supreme Court case, for example, would be decided by the Appellate Division, First Department, while an appeal from a Supreme Court case in Brooklyn would be decided by the Appellate Division, Second Department. Trial courts in a given department are bound by appellate court decisions rendered in that department, Mr. Miller said, but not by conflicting decisions issued by a court in another department. (In cases started in the Civil Court of the City of New York, Mr. Miller added, there are intermediate appeals tribunals--known as Appellate Terms--whose decisions may or may not receive Appellate Division review.)
Having different parts of the city within different judicial departments, however, sets the stage for courts to arrive at different interpretations of the same law.
In August 1998, for example, a Brooklyn Housing Court judge ruled in the case of Paikoff v. Harris that a tenant who rents an apartment in a New York City co-op or condominium from a sponsor--either before or after a conversion--is protected by the Martin Act. That law prohibits the eviction--except for cause--of nonpurchasing tenants in New York City buildings that have been changed from rentals to co-ops and condominiums.
According to Arthur I. Weinstein, vice president of the Council of New York Cooperatives and Condominiums, prior to that decision it had been widely understood that only those whose tenancy began before the conversion were protected by the Martin Act as it applies in New York City, while those who rented subsequent to the conversion, even from the sponsor, were not protected and could be evicted when their leases expired. That belief was buttressed in May 1999 when a Manhattan trial court judge ruled that the Martin Act does not protect New York City residents who first become tenants after the conversion.
Both cases were appealed and both appellate courts upheld the lower court decisions. As a result, civil courts in Queens, Brooklyn and Staten Island are required to apply the Martin Act to tenants who rent subsequent to the conversion, while courts in Manhattan and the Bronx are required to do just the opposite.
Another law that may be applied differently in the First and Second Departments is the so-called Spiegel defense, which prevents a landlord from evicting a tenant on public assistance for not paying rent if there were serious violations in the building.
In Notre Dame Leasing v. Rosario, decided last April by the Appellate Term, Second Department, the court ruled that a tenant may not assert the Spiegel defense unless the agency providing the assistance withholds its share of the rent.
Denise May, a lawyer in Rego Park, Queens, who represented the landlord in the case--which is now on appeal before the Appellate Division--said that under the Appellate Term ruling, the defense cannot be asserted if it is the tenant alone who is withholding the rent. Since it is rare for a social service agency to withhold its portion of a tenant's rent, this would seem to make it virtually impossible for a tenant in Brooklyn, Queens and Staten Island to assert the Spiegel defense.
Gerald Lebovits, a recently appointed Housing Court judge, said in an interview conducted before he was appointed to the bench that in a case decided last year by the Appellate Term, First Department, the court ruled that a tenant who was withholding rent could indeed use the Spiegel defense. And since, in that case, the social service agency had not withheld its portion of the rent, it would seem that tenants in Manhattan and the Bronx currently have broader protection under the Spiegel defense than tenants in Brooklyn, Queens and Staten Island.
Yet another instance in which tenants in different parts of the city may have different protections under the law relate to what is known as a landlord's duty to mitigate damages.
Lucas Ferrara, a Manhattan landlord-tenant lawyer, said that under appellate court rulings in the First Department a landlord does not have a duty to mitigate--or minimize--damages when a residential tenant breaks a lease. This means that the landlord has no obligation to attempt to re rent an apartment and can go after the tenant for rent due for as long as the apartment remains empty, up to the end of the lease term.
In the Second Department, however, where no similar appellate court decision has been rendered, trial courts may still require landlords of residential tenants to mitigate their damages by making a good-faith effort to re rent apartments.
Even the New York City Pet Law may be applied differently depending on where in the city an illegal pet and its owner reside. Bruce Cholst, a Manhattan real estate lawyer, said that under current law, landlords are required to take action against a tenant who is violating a no-pet rule within 90 days of discovering the violation.
Under current court rulings, however, Mr. Cholst said, landlords in Manhattan and the Bronx are required to issue a notice of termination and must have actually started the eviction proceeding against the shareholder within the 90-day period. In Queens, Brooklyn and Staten Island, on the other hand, while the notice of termination must be issued within the 90-day period, the actual eviction proceeding can begin after 90 days have elapsed.
Mr. Miller, the Queens lawyer, pointed out that while the state's highest court--the Court of Appeals--can, and often does, resolve divergent decisions between different departments, appeals to that court are expensive and time-consuming and, in many cases, can proceed only with the permission of the Court of Appeals itself.
"That means that conflicts between the different departments of the Appellate Division can last for many years before they are resolved," Mr. Miller said.