Friday, April 29, 2005

Is the New York Times Afraid of the Lubavitch?

The Rabbi vs. the Tenant……The Rabbi loses!

After three years of litigation in Manhattan Housing Court, twenty four days at trial, and 25 witnesses presented by Rabbi Joshua Metzger of the Chabad Lubavitch of Midtown Manhattan, Judge Peter Wendt in a 23 page decision declared that the tenant had the right to stay in her home of 28 years. The decision is unlikely to be appealed as the Judge has declared credibility issues on both the part of Joshua Metzger and most of his congregants of his Chabad who testified on his behalf.

Ms Ross, represented by counsel, Bruce Wiener of Warshaw, Burstein, Cohen,Schlesinger ,& Kuh the tenant, proved that "The Rabbi" was not entitled to her rent stabilized apartment for the purported use as a religious library for his nearby Chabad. Ms Ross’s apartment is on the floor directly above the Rabbi’s newly refurbished apartment which he shares with his wife and his three children. When he bought the small brownstone in Murray Hill and reconfigured his triplex apartment he only built two bedrooms, thus the main question during the trial was did he really need a religious library or more bedrooms for his growing family.

During the course of the trial no documents were produced of this Rabbi’s graduation from any rabbinical school or any other official universities and no New York license was ever issued to perform marriages, which he claimed he did. No association of rabbis lists him among their memberships either. Next Mr. Metzger has raised millions of dollars through his many charitable companies that he runs and there has been no reporting to the IRS about any of these sums, and some are very large. Also there have been no receipts given to the donors or kept by the Chabad of these donations. Next the majority of these donations seem to have gone to support the lifestyle of this rabbi and his family and not spent on growing his small congregation.

When Mr. Metzger bought the building he purchased the building in a new non profit company that he formed just before the purchase. He was advised by real estate lawyers that he could clear the building of rent stabilized tenants as he was a religious/educational corporation and if he said he was going to use their apartments for those purposes then he could clear the building. He intimidated two tenants and the third left as she obtained a payoff for the law fees that she had incurred up to then. Thus there was one tenant left but she was the most important one as her floor though apartment was contiguous to his new living space, as seen in the NYT.
He spent a $1,900,000 to buy the building he did not pay the transfer tax as he was a non profit. He then hired a contractor to reconfigure his space .The cost was $900,000 cash. Well that contractor is now suing for the balance of his money. He joins a long list of liens on either the religious corps, all controlled by Metzger, or on Metzger personally. The Ruden Organization is also trying to collect $19,000 in back rent from this religious man who was a former tenant. Trying to collect is incredibly difficult as nothing is in Joshua Metzger’s name. His cable bill is in the name of a friend, another friend owns the car that he drives, and his American Express is in his wife’s name, so you can see that getting money from the rabbi is longtime pursuit.

So back to the eviction of the prime trouble tenant, she unfortunately had gone through this once before when an accountant named Paul Sessler bought this small brownstone and tried to get her apartment for his son. That trial was also lengthy but there too the court ruled in the tenants favor. The son was in junior high school in White Plains. Her law firm at that time was Fischbein, Badillo, Wagner & Harding and she went back to them to represent her this time. Bruce Wiener, her attorney was at Fischbein then, but during her case moved to another firm. She followed him and believed from the start that they did have the law on their side.
Many lawyers handled many motions and parts of this case and all knew and encouraged the rabbi to settle it and he ignored all the suggestions. He even appealed a hot water issue which is still pending.
The tenant has had one lawyer though the whole case but the rabbi has had three different firms represent him. As he does not believe in paying them they tend not to stay. Persuasion and guilt goes just so far.
His case was weak as all the things he said his organization did he could not prove they did do. Yes you can say you have a hospital program and it needs space in your brownstone to operate but you have to prove there is a person who actually goes to the hospital. Currently hospitals keep excellent records of volunteers and the time they spend in the hospitals and no hospital could confirm that this organization even came once. This is just one example of how each of their programs did not exist. There were five other programs that were all shams.

Speaking of shams the whole Chabad thing exists to give a person a roof over its head and his family and a continuing lifestyle. You will find most Chabads in residential areas as these areas have cheaper rents and then they buy them in a non profit corporation name and live rent free with no taxes ever paid. No real estate taxes and no personal taxes as most things are bargained for or paid for in cash. Just think if there are 8000 existing Chabads for the Lubavitch…. that is a lot of tax revenues not collected. Just in our area alone there are problems with Chabads in East Hampton, Florida and Southampton in residential areas over misrepresentation of the use of their houses.

The tenant believes in the system even though this scenario started with an eviction notice on November 1 2001 and went to trial in Feb 2002 and ended in March 2005 with a settlement of repayment of all fees she incurred during the litigation. America justice is very expensive and most people would not have had the means or the stamina to follow though with this type of litigation. She also believed that her lawyer was top notch and made every witness of theirs a win for the tenant’s side. He "out lawyered" every lawyer that the Chabad brought in.
Justice was served but the case continues to remain under reported and secret. Most judges submit their decisions on their cases to "The Law Journal" for publication. Judge Wendt we assume did not publish his decision as he called Metzger a liar. I thought it was against the law to lie under oath and if you did there were consequences.

The New York Times in their follow up article (March 27, 2005) never mention that the landlord lost as he lied. But they are also the paper that gives this organization free full page ads for the Lubavitch to raise funds, two in the last month (4/8/05 and 4/22/05). I think the Times has a problem saying anything negative about the Orthodox community. Letters to the Editor have never been answered.

Everybody steps on eggs when treating this group…...

February 7,2005




Petitioner, Index No. L&T 66997?02




“JOHN DOE” and “ JANE DOE “ ,




Petitioner, Congregation B’nai Abraham Mordechai (“Congregation”), is a not-for- profit religious corporation, whose Rabbi and spiritual leader has been shown to be Joshua Metzger (“ Metzger”), who already resides in the first two levels of the subject building with his family. Petitioner commenced this holdover proceeding to evict respondent Vicki Ross (“Ross”), a rent-stabilized tenant of over 25 years at the time of the commenced of this proceeding in April 2002. The proceeding rests on petitioner’s claim that it wishes to recover respondent’s apartment for charitable and/or educational non-residential purposes pursuant to Rent Stabilization Code (“RSC”) #2524.4 (b) (1) (ii). The Notice of Non-Renewal states as grounds that,”(t)he Owner intends in good faith to not renew the lease of the tenant….in order to use the Apartment for non-residential use in connection with its charitable and/or educational purposes.” Of the various purposes stated in the Notice, the primary purpose listed for which petitioner’s witnesses testified it seeks respondent’s apartment is “ a study library”. Petitioner claims it seeks to largely use other parts of the subject building for other purposes stated by the Notice.

In order to qualify for exemption from the lease renewal requirement of the Rent
Stabilization Law pursuant to RCS # 2524.4 (b) (1), the owner must be a “hospital,
convent, monastery, asylum, public institution, college, school dormitory, or any
institution operated exclusively for charitable or educational purposes on a non-profit basis….” (emphasis added). Since respondent’s tenancy in the apartment
commenced prior to July 1, 1978, the petitioner cannot evict her for use of her apartment as a housing accommodation in connection with claimed charitable or educational purposes. RCS # 2524.4 (b)(1) (i) Thus, Ross’s apartment cannot be
recovered for an expansion of the Metzger’s family home which already
exists on the first two levels of the building. However, if petitioner satisfies the
requirements of RSC # 2524.4 (b) (1), it could seek to recover respondent’s apartment “ for non-residential use in connection with its charitable or educational purposes." RCS # 2524.4 (b) (1) (ii). Respondent’s counsel, citing Eaton v NYC Conciliation and Appeals Board, 56 NY2nd 340 (1982), argues that petitioner, a religious congregation, is not operated exclusively for charitable or educational purposes, but primarily for religious ones, and is therefore ineligible for the exemption from the renewal lease requirement in the Rent Stabilization Law. He asserts that petitioner must show that its operations are exclusively charitable or educational in order to refuse to renew respondent’s lease under RSC #2524.4 (b)(1)(ii) . Petitioner, in reliance on Association of the Bar of the City of New York v Lewisohn, 34 NY2d 143 (1974), argues that it only need show its purposes are “principally” or “primarily” charitable or educational in order to satisfy the requirement in RCS # 2524.4 (b)(1) that it be operated “exclusively” for charitable or educational purposes.

For purposes of this decision, the Court will adopt the test of “exclusively” urged by counsel for petitioner, that it only need prove that petitioner is operated “principally” or “primarily” for charitable or educational purposes, in order to qualify for the lease renewal exception under the Rent Stabilization Code sought by petitioner herein. However, the evidence at trial did not come close to showing that petitioner was operated principally or primarily for charitable or educational purposes. Metzger is actually the president of three organizations. Petitioner, Congregation B’nai Abraham Mordechai, is a religious corporation which, the evidence shows, primarily conducts services and other religious activities. Finally, there is Chabad Lubavitch of Midtown Manhattan” is an assumed name of Chai, because, as testified to by Metzger, “Chabad Lubavitch” is a name with world-wide recognition. It is therefore, according to Metzger’s testimony, an effective and useful trade name he adopted for Chai. The evidence clearly demonstrated that Metzger and his family control all three entities, and completely dominate the Boards of Directors of Chai and Congregation.

Petitioner was incorporated as a religious corporation under Article 10 of the Religious Corporation Law (see petitioner’s Certificate of Incorporation, its exhibit “10” at trial). In the Certification, it shows Joshua Metzger, Judy Metzger, and Rafael Konikov were elected trustees. The testimony and exhibits produced at trial show that any programs which are related to charitable or educational activities are conducted by Chai or Chabad, not petitioner Congregation. Metzger, on direct, described various programs, such as Torah study, marriage and bereavement counseling, a language program, music programs, a CLE program, crisis intervention, and study. However, his testimony and the literature submitted by petitioner as evidence all show that these programs are run by or on behalf of Chai Foundation, often under the name “Chabad Lubavitch of Midtown Manhattan”. Although Metzger attempted to blur the distinction between the three entities involved, the credible evidence overwhelming shows that such educational or charitable programs were indeed run not by the petitioner Congregation, but by Chai and/or Chabad, Petitioner’s name is not on the literature advertising or describing these programs, and the witnesses who testified to participation in anything but religious activities usually stated they were participating in a Chabad program or one run by Chai. Petitioner cannot, when it suits its purpose at trial, “piggyback” itself onto the Chabad or Chai programs by now attempting to blur the distinction between Chabad, Chai, and Congregation. The petitioner Congregation was shown to have principally engaged in religious activities, primarily prayer services. In its own application for tax exempt status (petitioner’s exhibit “17”), signed by Metzger, it states:

Prayer services, initiated by Rabbi Joshua Metzger in 1998,
Two years prior to the formal incorporation of the Congregation
B’nai Abraham Mordechai, are by far the most important
Activity of Congregation B’nai Abraham Mordechai.

Respondent’s exhibit “YYY” is a printout of the website of Chabad Lubavitch of Midtown Manhattan. Many educational as well as religious programs are shown. None of these programs even mentions petitioner Congregation B’nai Abraham Mordechai. Any of the other educational or charitable activities shown were demonstrated by the evidence to be almost entirely programs of Chabad or Chai.

Petitioner’s hospital visitation program was shown to be sporadic and only a tiny percentage of Congregation’s total activities. Rabbi David Rabham, of New York
University Hospital, testified as petitioner’s witness that he had never heard of
petitioner Congregation B’nai Abraham Mordechai until he spoke with one of the
respondent’s attorneys on the telephone before testifying. He believed Metzger was
the Rabbi of Chabad. He also testified he never saw Metzger at the hospital, nor was
Metzger a volunteer there. The testimony of Chaim Boyarsky, who allegedly made
hospital visits, utterly failed to show he did so on behalf of the petitioner. He claimed Metzger sponsored these visits, but could not recall which of the three entities reimbursed him for his expenses. In addition, his credibility was compromised by the fact that on cross examination he denied that he advised respondent’s attorney that he had no connection to the petitioner, and he did not know Metzger. He also denied leaving a voicemail message disavowing such connection with petitioner or Metzger. In fact, respondent’s “K” in evidence is a transcription of a voicemail message from Boyarsky to respondent’s counsel in response to a subpoena. He stated in that message that he had no connection to Metzger: “I have nothing to do with him”.The educational programs petitioner actually proved occurred were also a very small portion of its total activities, and only ancillary to its principal activities, which were primarily religious services. Indeed, most of the educational programs conducted at petitioner’s facility at 509 Fifth Avenue were done not by petitioner, but by Chabad (see respondent’s “YYY”). Its sabbath services were clearly extremely important, as were its daily religious minyans. Even the sabbath meals petitioner conducted were not shown to be primarily charitable or educational, but part of the important religious rituals surrounding the sabbath. It regularly conducts well-attended services at its facility at 509 Fifth Avenue, but this is a religious, not a charitable or educational function. The evidence submitted by petitioner showed it had very few charitable or educational
programs, and that largely religious activities formed the principal part of its operations. Thus, petitioner has failed to prove that it is an institution operated primarily or principally for charitable purposes. Rather it is evident petitioner is primarily a religious institution. Since it is not operated even primarily for charitable or educational purposes, it cannot avail itself of its claimed right to evict respondent, a rent stabilized tenant since before July 1, 1978, a non-residential purposes under the provisions of RSC # 2524.4 (b)(1)(ii), which apply to institutions operated “exclusively” ( or even “principally” under the Association of the Bar v Lewisoln test for “exclusively, at 34NY2d 143,153) for charitable or educational purposes. Eaton v NYC Conciliation and Appeals Board, 56 NY2d 340,346 (1982).

Metzger refers to his family’s residence in the building as his “parsonage”.
Naturally, had Metzger owned the building individually, he could have sought to recover Ross’s apartment for the primary residence of himself and his family (RCS#2524.4 [a]).However, if the Congregation or Chai had purchased the building for Metzger, the tax consequences would have been enormous, particularly for him. A significant real estate tax benefit is achieved by Congregation ownership. Also, if the building had been actually paid for by the Congregation or Chai but title put in Metzger’s name, he himself would have incurred a tremendous income tax obligation. The building is owned by petitioner Congregation, not Metzger individually. Therefore, it must meet the requirements of RSC # 2524.4 (b)(1)(ii), and prove it is a charitable or educational institution seeking to evict Ross from her rent stabilized apartment of over 25 years for non-residential purposes authorized by the Rent Stabilization Code. For the reasons stated above, petitioner has failed to sustain its burden of proving it is primarily a charitable or educational institution exempt from the lease renewal requirement. Rather, the evidence shows it is principally a religious organization ineligible to seek eviction of a rent stabilized tenant under RSC # 2524.4 (b)(1)(ii).Although the Notice of Non-Renewal states that petitioner intends “in good faith” not to renew the lease, petitioner’s attorney argued in summation and in her post-trial memorandum that petitioner need not meet the “good faith” standard applicable to personal use eviction proceedings commenced by individual owners, because petitioner is a religious not-for-profit corporation. The weight of authority in New York has overwhelmingly required an owner who seeks to evict a rent stabilized or rent controlled tenant for its own use to show good faith even though such language is not specifically contained in the statue or regulations (see, e.g., Rosenbluth v Finkelstein, 300 NY 402 [1950] and its progeny). Petitioner’s attorney argues that petitioner must merely show
that the landlord has a genuine, honest desire to recover the apartment. It seems to the Court that there is no reason to exempt a religious, charitable or educational
organization from the usual good faith requirement applicable to owner’s use
proceedings. For purposes of this decision, however, the Court shall employ the
standard sought by petitioner, that it only need show a genuine desire to recover the Ross apartment. Yet even adopting the less rigorous test sought by petitioner, that it only need show a genuine desire to recover the Ross apartment. Yet even adopting the less rigorous test sought by petitioner’s counsel, for reasons stated below, petitioner has failed to prove, by a preponderance of the evidence, that it has any genuine desire to use respondent’s apartment for a study library for the Congregation, or any of the other purposes claimed in the Notice of Non-Renewal.

Petitioner’s counsel argues that petitioner has proven its case whichever of the two standards are employed. However, the testimony at trial provided by petitioners witnesses was inconsistent and almost incredible. Petitioner’s chief witness was Metzger, who already resides in the first two levels of the subject building with his growing family. He claims to be an Orthodox Chassidic Rabbi. Respondent disputes this, because petitioner produced no document to evidence this claim. However, even if Metzger were not actually a rabbi, this would not interfere with petitioner’s claim. What does destroy petitioner’s ability to prove any genuine desire to recover the premises for non-residential purposes outlined in the Notice of Anon-Renewal, is the complete lack of credibility of Metzger and other witnesses who directly (and sometimes indirectly) took part in petitioner’s operation. Also, the various documents that had been prepared by or on behalf of petitioner and were admitted as evidence during the trial were replete with falsehoods. Many of the various documents filed with public agencies, executed by petitioner’s principals, particularly Metzger, contain patently false statements. Although he claimed to be a legal scholar himself, when Metzger was confronted with an obvious falsehood or contradiction in one of his affirmed statements, he blamed it on his lawyer, explaining that he didn’t read the document carefully before he signed it. This
casual approach to the truth by petitioner was evidenced in all its activities, as well as the testimony presented at the trial by its witnesses. Metzger claimed he ran a hospital visitation program (although under which of the three entities, Chai, Chabad or Congregation remained unclear). Yet the testimony (referred to above) of Rabbi David Rabham, the resident Rabbi of New York University Hospital, showed otherwise. Metzger testified that most of the uses stated in the Notice of Non-Renewal other than a library shall be conducted in areas of the subject building other than respondent’s apartment. Although petitioner has already recovered the balance of the space in the building, it has not obtained the necessary permission from New York City agencies to use that space for such purposes, and has proven no actual use of such space for those purposes.The trial exhibits, such as the documents in which petitioner sought treatment as a tax-exempt organization (see, e.g., petitioner’s “17” in evidence), show a pattern of casual disregard for the truth. Even if petitioner only need prove herein that it has an honest genuine desire, as opposed to a “good faith” intention, to recover respondent’s
apartment for educational and/or charitable purposes, the Court finds it has utterly
failed to prove any such honest intention. Its witnesses’ statements at trial constantly contradicted each other, and it was shown to have repeatedly filed documents with public agencies containing proven falsehoods.

Most of the actual funds expended by petitioner on the building since its
purchase went to creating the home of Metzger and his family. The only plans for the
building ever prepared by the petitioner’s architect, Michael Just, were plans for the Metzgers’ residence (see respondent’s “M” in evidence). This indicates the actual reality of petitioner’s intention. No plans were prepared showing how respondent’s apartment would be converted to educational or charitable use. No plans were filed with the appropriate City agencies seeking permission to convert the subject premises to non-residential use, even though the current certificate of occupancy lists the space as residential (see petitioner’s exhibit “26” in evidence). In fact, petitioner made virtually no investigation before commencing this proceeding to determine whether it even has a right to use the subject premises for the purposes alleged. At trial, petitioner, not respondent, has the burden of proof. The testimony of petitioner’s witnesses was replete with contradictions, and documents prepared by or on behalf of petitioner contained obvious falsehoods. Metzger’s various explanations of why he signed documents containing these untruths were facile and incredible. These factors have strongly contributed to petitioner’s failure to sustain its burden of proving an actual honest intention to recover the subject apartment for the purposes stated.

Another serious deficiency in petitioner’s case is caused by the fact that it made no genuine inquiry, before commencement of this proceeding, into the legality or feasibility of the uses for which it claims it wants to evict respondent. Petitioner’s own expert witness, Raymond Irrera (“Irrera”), testified that under the present circumstances, including the subject building’s certificate of occupancy, it could not be used for the purposes stated in the Notice of Non-Renewal without first obtaining exceptions from various City agencies. Yes he also admitted that there was absolutely no assurance that such exceptions or variances could be obtained. No application for an amended certificate of occupancy has ever been made by or on behalf of petitioner. Even at this late date at the end of the trial, petitioner still does not actually know, and therefore cannot prove, that it can use respondent’s apartment for any of the purposes claimed in the Notice of Non-Renewal.

Petitioner argues that it does not wish to spend the money for an architect to draft plans and submit them to the Department of Buildings (“DOB”) for approval
before it is actually awarded possession of respondent’s apartment. Thus, petitioner
apparently wishes this Court to first evict respondent from her rent stabilized apartment of over 25 years (at commencement of this proceeding) so that the landlord can then begin to genuinely investigate whether the DOB and, failing that, the Board of Standards and Appeals will allow it to obtain the necessary exceptions to various building regulations and zoning requirements to enable it to use the tenant’s apartment for the purposes stated. Petitioner’s own expert Raymond Irrera, testified that petitioner could not employ the premises for the claimed uses of right, and that it would be necessary to obtain exceptions to building regulations and variance from zoning resolution. However, he could not state with any confidence that such exemptions would be obtained. Irrera testified that the uses sought by petitioner for the subject premises would currently violate the zoning resolution applicable to the building. He stated that an exception or variance might be obtained from the Board of Standards and Appeals, although again he could not be sure that such variance would actually be granted. It seems inappropriate to allow petitioner to first evict respondent from her rent-stabilized apartment of over 25 years and only then, after it obtains possession, make initial inquiry into its right to use her apartment for the purposes it claims.Irrera also testified that since the alleged religious study library would be considered a community facility, the stairway from the tenants’ entrance to the second floor would have to be at least 44 inches wide. Based upon his memory from having visited the building two times, he testified that the stairway was indeed 44 inches in width. However, the plans for the building prepared by petitioner’s architect, Michael Just (respondent’s “M”), show that such stairway is only three feet (36 inches) wide, thus too narrow to comply with New York City requirements for alleged “library” use sought by petitioner. When the Court inquired about possible egress problems regarding the stairways and other difficulties the current configuration of the building might present to the uses for which the subject premises are sought, Irrera stated that Metzger told him there were no plans to change it. Irrera also recognized that the subject building’s non-compliance with the Americans with Disabilities Act (ADA) and the sharp turn in the stairway from the second level upward could also present problems for the uses to which petitioner claims it intends to put the space comprising respondent’s
apartment. (Respondent resides on the third level of the building, sometimes
denominated the “second floor”). When asked if petitioner could obtain the necessary
exceptions and variances to overcome these problems, in spite of the narrowness of
the stairway and the sharp turn it contains, Irrera again could do no better than to say it was conceivably possible. However, he could not state with any assurance that such permission could ultimately be obtained. When asked if in his own experience he knew of any such particular exception that had ever been granted, he could not remember any such instance.

The Court cannot countenance petitioner thus first evicting respondent for a
purpose whose very legality, and therefore feasibility, is speculative at best, and
afterward learning if it may even use the premises for the purposes claimed. The fact
that petitioner made no genuine inquiry into its actual ability to use respondent’s
apartment for the uses claimed before it sought to evict her from her apartment of over 25 years leads the Court to believe that petitioner never had any genuine interest in using the subject premises for any stated purposes in the Notice of Non-Renewal. The only money actually spent on architect’s plans was to design the Metzger residence. The only funds so far spent in renovating the building were applicable exclusively towards creating an attractive home for the Metzgers. Hardly a modicum of effort has been directed towards preparing plans or making reliable determination regarding whether or not the non-residential uses sought in the Notice of Non-Renewal would even be allowed by the various agencies of the City of New York. If anything the evidence shows that Metzger, who with his family member controls petitioner’s Board of Directors, finds Ross’s apartment, located immediately above his current residence, a convenient space in which to expand his family home. This is not a purpose for which petitioner may seek to evict Ross.

For all of the above reasons, petitioner completely failed to sustain its burden of proof, (1) that it is an entity entitled under RSC # 2524.4 (b)(!)(ii) to recover respondent’s rent stabilized apartment for the purposes sought 920 that it has any genuine desire to actually use the subject premises for the purposes stated in the Notice of Non-Renewal, or (3) that if it did succeed in evicting Ross from her apartment, it would actually be legally allowed to use it for the purposes it claims. This determination is based upon careful consideration of all the facts presented, the documents admitted into evidence, and the credibility, or lack thereof, of the witnesses’ testimony.Accordingly, after trial the petition is dismissed on the merits.

Since the petition has been dismissed on the merits for the above stated
reasons, the Court need not and shall not deal with the First and Second and Fourth
through Eighth Affirmative Defenses raised in respondent’s answer. Insofar as the Third Affirmative Defense is concerned, petitioner, as explained above, has failed to sustain its burden of proving it is an institution operated “exclusively”, or even primarily, for charitable or educational purposes as required by RSC # 2524.4 (b)(1)(ii). Nor has it shown it will even be able to use Ross’s apartment for the purposes stated in the Notice of Non-Renewal. However, even if the burden were on respondent regarding this issue, the evidence at trial overwhelmingly showed that petitioner is an institution operated primarily for religious, rather than charitable or educational purposes. Thus, it cannot qualify for the exemption from the renewal lease requirement contained in RCS # 2524.4 (b)(1)(ii). To the extent the petition has been dismissed on the merits for this reason as well as the other grounds stated above, respondent has sustained her Third Affirmative Defense.
Respondent has failed to prove her Ninth and Tenth Affirmative Defenses and
First and Second Counterclaims based on retaliatory eviction (#223-b of the Real Property Law). Although petitioner failed to prove it actually intended to use the Ross apartment for the purposes for which it sought to evict her, respondent failed to prove petitioner seeks to evict her because she complained to the landlord, New York City agencies and this Court (in prior HP proceeding) regarding conditions in her apartment. The Notice of Non-Renewal herein served on or about November 29,2001, prior to commencement by respondent of her HP proceeding on or about January 28, 2002 (see petitioner’s exhibit “34”). Therefore, the notice could not have been served by petitioner in retaliation for respondent’s HP proceeding, the presumption of retaliation contained in the Real property Law # 223-b (5)(b) does not apply. It is true that petitioner showed respondent and other tenants in the3 building less than appropriate consideration from the time it purchased the building to the time this proceeding was commenced. Respondent certainly complained, and made an issue of the petitioner’s less than adequate maintenance of the premises. However, that alone does not show that petitioner commenced this proceeding in retaliation for these complaints.Thus, respondent failed to sustain her burden of proof regarding her affirmative defense and counterclaim that petitioner” has intentionally and maliciously commenced this proceeding for the purpose of retaliating against Tenant for asserting her rights as a rent-stabilized tenant….” (Answer 41).
Respondent has proven her Eleventh Affirmative Defense and Third
Counterclaim based on petitioner’s breach of the warranty of habitability (Real Property Law #235-b). Petitioner purchased the building by deed dated September 15, 2000 and recorded October 11,2000 (see petitioner’s “21” in evidence). Starting on or about December 30,2000 though November 2003, Ross wrote numerous letters to petitioner complaining of various conditions in the building and her apartment, including all of those for which respondent sought a rent abatement at trial.

Respondent proved a lack of sufficient heat and hot water. However, Ross has
settled her claim regarding insufficient heat and hot water though January 2,2003. On that date, respondent and petitioner, both sides represented by counsel, settled Ross’s “…breach of warranty of habitability claims, relating to heat & hot water, though January 2,2003 only.” In that settlement, Ross received “…a one (1) month
abatement…in the sum of $1090.55 representing the use & occupancy, without
prejudice, for February 2003."”(See respondent’s “BBB” in evidence). Ross did not prove sufficient specifics to sustain a claim of inadequate heat after January 2, 2003, the date of the agreement.

This stipulation also contained an order that landlord provide Ross with an
After holding a hearing on Ross’s motion to hold the landlord in contempt of this
stipulation, and conducting an inspection of the apartment, Judge Jerald R. Klein of this Court held the Congregation in contempt for failure to provide an adequate supply of hot water to the subject premises. (See respondent’s “CCC”). The burden of proof in a civil contempt hearing is more stringent than in an ordinary civil trial, because possible fines and penalties are involved. Thus, respondent has proven that petitioner has failed to provide an adequate supply of hot water from the date of the stipulation (January 3,2003) through the date of Judge Klein’s Order (October 31,2003, respondent’s “CCC”). Respondent did not prove that landlord continued failing to provide adequate hot water after Judge Klein held it in contempt for such failure. Ross admitted she did have some hot water, but that it was often not hot enough, and she had to wait an unreasonably long time for it to actually come out of her taps (see Judge Klein’s Order). Accordingly, based on Ross’s testimony about the effect of inadequate hot water on her daily life, as well as the fact that the supply was insufficient and slow to arrive, rather than non-existent, respondent is awarded a fifteen per cent abatement for the period January 3, 2003, through October 31,2003 for lack of legally adequate hot water. Respondent has already obtained a DHCR rent reduction order (#RE410004 HW) issued May 23,2003 and effective June 1,2003, reducing her rent for landlord’s failure to maintain adequate hot water (respondent’s “EEEE 2”).Therefore, pursuant to Real Property Law #235-b (3)(c ), her recovery for the period from October 22, 2003, was made effective May 1, 2003. Respondent’s “EEEE 4”, issued March 15, 2004, was made effective June 1, 2003. Thus, this twelve percent rent abatement must be reduced commencing May 1,2003 by the total rent reduction for the period from May 1,2003 to August 31,2004 awarded to respondent in DHCR Order # RD 410076S (Ross exhibit “EEEE3”). If Ross’s rent was further reduced for the period from June 1,2003 to August 31,2004 as a result of DHCR Order #RE410008 B (Ross exhibit “EEEE 4”) the rent abatement awarded must be additionally reduced for this time period by the total additional DHCR rent reduction, if any. See, Real Property Law #235-b(3)(c).

Respondent also seeks a rent abatement for deprivation of water to her terrace. She already has received another Order from DHCR (#RE 410062S, respondent’s
“EEEE 1”) reducing her rent effective June 1, 2003 for deprivation of this service. This is not an issue that impacts on respondent’s life, health or safety, or the habitability of her apartment. Water service to her terrace is an amenity, the deprivation of which does not cause a breach of the warranty of habitability or prevent the apartment from serving its intended function of the residential occupation. Solow v Wellner, 86s NY2d 582 (1995). For this reason, the Court denies an additional rent abatement to Ross based on petitioner’s failure to maintain water service to her outside terrace for any period of time.

Respondent has completely failed to prove her right to an award of “punitive
damages”, and this demand in the ad damnum clause of her answer and counterclaims
is dismissed. As explained above, respondent has failed to prove her claim of retaliatory eviction under Real Property Law # 223-b, and her First and Second Counterclaims are therefore dismissed after trial.

Respondent’s Fourth Counterclaim seeks an award of the attorneys’ fees she
expended in defending this proceeding. Under #234 of the Real Property Law, where a
residential lease provided that a landlord my recover attorney’s fees and/or expenses in a summary eviction proceeding, “…there shall be implied in such lease a covenant by the landlord to pay to the tenant the reasonable attorneys’ fees and/or expenses incurred by the tenant….in the successful defense of the any action or summary proceeding commenced by the landlord against the tenant…..” (RPL # 234).
Respondent’s lease contains a clause allowing landlord to recover reasonable legal fees in an action to enforce landlord’s rights under the rental agreement, including
commencement of an eviction proceeding. Paragraph “16D(3)” of a recent lease
between petitioner’s predecessor and respondent allows landlord to collect reasonable legal fees for “the costs of getting possession”. (See petitioner’s “23” in evidence). In such a situation, respondent, if successful in defending a summary eviction proceeding, is entitled to recover her legal fees. In Bunny Realty v Miller, 18o AD2d 460,462-463(1st Dept 1992), the Appellate Division interpreted a virtually identical clause in a residential lease to entitle tenant to recover legal fees pursuant to Real Property Law #234 after prevailing in a summary proceeding. Additionally, since the landlord herein demanded an award of legal fees in the petition, it is judicially estopped from denying the tenant’s
right to recover attorney’s fees if she is the prevailing party. See, e.g. , Karasik v Bird, 104 AD2d 758 (1st Dept 1984).

This proceeding was commenced by a summary holdover petition in which
petitioner attempted to evict respondent, a rent-stabilized tenant of over 25 years at the time of commencement of the proceeding. Respondent successfully defended her right to remain in her apartment as a rent-stabilized tenant and the petition was dismissed on the merits after trial. For this reason, Ross is clearly the prevailing party herein, and therefore entitled to an award of the reasonable attorney’s fee’s she incurred in defending this proceeding. The fact that she did not prevail on all her counterclaims does not prevent her from achieving prevailing party status. On the main issue, the Congregation’s claim in the Notice of Non-Renewal and the petition seeking to evict Ross for non-residential use pursuant to Rent Stabilization Code # 2524, 4 (b)(1)(ii), she has clearly prevailed. Respondent’s Fourth Counterclaim seeking an award of attorney’s fees she incurred in defending this eviction proceeding is therefore sustained to the extent that this matter shall be set down for a hearing in which respondent is granted leave to prove, and if proven recover her reasonable attorney’s fees herein.

For all the foregoing reasons, the petition is dismissed on the merits after trial. Respondent is awarded a rent abatement as above described on her Third Counterclaim for breach of the warranty of habitability. Respondent’s counsel is directed to settle judgment on notice regarding respondent’s breach of warranty counterclaim, stating the precise dollar amount involved in the specific rent abatements awarded as above directed in this Decision and Order. Respondent’s rent abatement should be calculated by taking the total amount of abatement awarded for a particular time period, and from this amount deducting the total rent reduction awarded by DHCR for precisely the same time period.See, RPL # 235-b (3)(c). The matter is set down for a hearing regarding respondent’s Fourth Counterclaim on March 2, 2005, at 9:30 a.m. in Part R to determine the amount of reasonable attorney’s fees incurred by respondent in defending this proceeding.

This constitutes the Decision and Order of the Court. Settle judgment on notice as directed.

Dated: New York, New York PETER M.WENDT, J.H.C.
February 7, 2005


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