The co-op sued Pullman in Supreme Court and sought an action for ejectment (i.e., possession of the apartment) as its first cause of action. The judge ruled that the co-op could not just rule that the tenancy was terminated absent judicial review of that determination. The co-op board argued that its determination was made by over 2/3rds of the shareholders and the "business judgment rule" from the Levandusky case permits a co-op to terminate a tenancy without judicial review. The co-op claimed that it would sell Pullman's shares and he would get all proceeds, less costs from litigation. The Supreme Court refused to allow the court to evict Pullman absent judicial review of the decision to terminate his tenancy due to his alleged objectionable conduct.

The co-op appealed the lower court's decision and won on appeal at the Appellate Division who ruled that a co-op board's good faith determination to evict a tenant for objectionable behavior does not require judicial inquiry as to the validity of that determination. Under Levandusky, a co-op board is not required to prove in court the reasonableness of its actions so long as the board acts in good faith, does not act in a manner other than to further the interests of the corporation and does not act beyond its scope of authority. The dissent in this case pointed out that up to this point Levandusky has applied to cases regarding shareholder challenges to management of the building or enactment and enforcement of house rules. It has not been used to evade and avoid the statutory requirements to follow when a landlord seeks to evict a tenant.

When any landlord seeks to evict a tenant, including a co-op board seeking to evict a proprietary tenant, the landlord's determination to terminate the tenancy must be subject to judicial review. In other words, the termination must be approved by a court of law. The Appellate Division has ruled in Pullman's case that so long as the co-op board shows good faith, a co-op board may bypass the judicial review process and go straight for eviction (where the board properly voted on terminating the tenancy). The dissent was alarmed by this prospect. Levandusky should not be allowed to permit a co-op to avoid statutory requirements. The majority opinion held that the board's 75% pro-termination vote was the functional equivalent of "competent evidence." Yet, the dissent noted that a single landlord makes the same sort of calculations when determining objectionable conduct, yet the law still insists that a judge oversee a landlord's choice to terminate the lease by proving the allegations in court.

Landlord George Malafis testified that he wanted his son to have his own apartment, that there were a total of seven people living in the family home where Nicholas resides, that his oldest daughter is pregnant so there would soon be eight people, that it takes Nicholas as much as 30 minutes to get to work now, and that it would only take him 5 minutes from the apartment. Nicholas testified that he wants to have his own apartment, that he has little privacy living in his parents' home, and that he wants the apartment as his residence because of its proximity to his work, Prospect Park, and to a subway stop. The tenant argued that the landlord does not have the good faith required by the exception to the right for a renewal lease for an owner who seeks to recover a rent stabilized apartment for occupancy as a primary residence. The tenant argued that the apartment was not likely to be as quiet as Nicholas expected, that the landlord had not offered to Nicholas any of the other three apartments in the landlord's building, and that the superintendent's apartment had been vacant since August, 2001 yet the landlord did not offer this apartment to Nicholas.

The court found that the testimony of George and Nicholas Malafis to be credible and sufficient to establish their good faith and genuine intention to recover the apartment. The court also found that the tenant's arguments did not establish that the landlord lacked the required good faith. The availability of the other apartments, even ignoring that three of them were renting for $1,600.00 to $2,000.00 per month while the tenant's apartment was renting for $433.70 per month, does not establish the landlord's lack of good faith. In conclusion, the court granted the landlord possession, but allowed the tenant to stay in the apartment through September 30, 2002 so that she may find another apartment.

In reviewing the DHCR's determination, the court is limited to reviewing whether the determination was made "in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" CPLR 7803(3). The Rent Stabilization Code 2522.4(a)(1) and 2522.4(a)(4) permits a landlord to recover the cost of improvements by raising the base rent by 1/40th of the cost. The DHCR was not arbitrary or capricious in not allowing a rent increase equal to 1/40th of the cost of painting and plastering performed in the tenant's apartment. The DHCR ruling was based on a rational distinction that the DHCR makes between improvements, for which rent increases are allowed, and for ordinary maintenance or repair work, for which rent increases are not allowed. The DHCR found that certain work done to the apartment was only normal maintenance and repair and thus was not eligible to be calculated in the rent increase. The court ruled that the DHCR had the expertise and the documentation in front of it to make this determination and, absent an irrational or unreasonable determination, was entitled to deference. The court also ruled that there was no due process violation. In conclusion, the court dismissed the landlord's Article 78 petition and upheld the DHCR's determination that the landlord had improperly collected overcharges.

On appeal, the Appellate Division ruled that the Supreme Court exceeded the scope of its review. The lower court should have only voided the administrative decision if HPD had acted arbitrarily or that its decision was capricious, the proper standard that should have applied. The court ruled that there was sufficient evidence to provide a rational basis for the HPD decision that the apartment was not the tenant's primary residence and that she had sublet the apartment in violation of both the occupancy agreement and the Regulatory Agreement. Thus, the court ruled that the Certificate of Eviction was properly issued.

In an affidavit, the landlord's agent stated he went to the premises at issue to find out whether or not the tenant was in the military, but the store was consistently closed. The affidavit further stated the tenant had told the agent that he was self-employed and did not state whether he was in the military; the agent never saw the tenant in a military uniform; and it does not state whether the tenant had ever filled out a written application which would have additional information such as his age, references, home address, banking references, alternative telephone numbers or other means by which the tenant may be reached. Finally, the court noted that it is possible to obtain an individual's military status by contacting the military service directly. This apparently was not done.

The court ruled that the landlord's motion to dispense with the filing of the non-military affidavit must be denied without prejudice to renew upon submission of a supplemental affidavit that includes proof of further investigation, including at least another visit to the premises during the business hours posted on the storefront or during customary business hours if no such hours are posted. In addition the landlord shall attach a copy of any written lease or rental application, as well as an affidavit explaining what efforts it has taken to ascertain the tenant's military status from the military.

The landlord argued that the court could not grant a delay in the eviction under current statutory law. RPAPL 751(4), which provides for a delay of eviction, was in effect until September 1, 1967, and thus the court no longer has the power to delay an eviction. The court rejected this argument and said CPLR 2201 gave the court the power to delay an eviction of a tenant. The court then examined whether it was appropriate to grant the tenants the requested delay in the eviction. Noting that the tenants were on a fixed income and having difficulties finding affordable housing, and these difficulties were compounded by tenants' advanced age and illness, the court decided that a delay in the eviction until May 31, 2002 was just and reasonable under the circumstances, so long as the tenants paid the rent.

Defendants argue that the surrounding circumstances under which Johnny Winter signed the lease shows that he was the identifiable individual for whose benefit the corporate lease was executed and therefore, he should be deemed the tenant. The surrounding circumstances he points to include: he had previously rented the apartment for three years prior to his corporation Ole Pa; of the ten renewals seven were signed "Johnny Winter" above a signature line that designated him as tenant, without Ole Pa appearing adjacent to his signature; he had paid the rent with checks drawn on his "Special" account with no mention of Ole Pa, thus it was understood by the plaintiffs that the lease was intended to benefit Johnny Winter as an identifiable individual. The court rejected this argument, saying the determination of who was the tenant must be derived from the lease and the first page of the lease and its renewals have typewritten that Ole Pa is the tenant. Thus, the court concluded that Johnny Winter was not the tenant and Ole Pa was the tenant.

The defendants also argued that the corporate lease is invalid as violating the Rent Stabilization Law 2520.13 which renders void any agreement by a tenant that waives the benefit of any provision of the RSL or the Code. The defendants argue that the plaintiffs substituting Ole Pa as the tenant in place of Johnny Winter in the lease renewal signed November 30, 1977, in which Johnny Winter should have been the named tenant, constituted an unlawful waiver of his rights to a renewal lease. Therefore, the lease in the name of Ole Pa must be declared void. The court stated that this issue was not one of waiver, but whether Johnny Winter voluntarily relinquished his original rent stabilized lease. The court concluded that the absence of any evidence that the plaintiffs offered any inducement for the change, the lease must be deemed to have been changed voluntarily at the behest of Johnny Winter.

The court concluded that, because the corporate lease failed to designate an identifiable individual as the intended occupant of the apartment and thus, defendants were not primary residents under the Rent Stabilization Law, defendants were not entitled to a renewal lease. Thus, defendant Johnny Winter is liable to the plaintiffs for he difference between the rent stabilized amount defendants paid ($1,972.64) and the fair market value ($4,600.00) for each of the ten months defendants used and occupied PHD after the expiration of the lease on November 30, 1998 or $26,273.60 total.

Tenants had the option, under the then extant Rent Stabilization Code 2523.5(c), of having the renewal lease term commence on the date a renewal lease would have commenced had a timely offer been made (October 1, 1999) or on the first payment date occurring no less than 120 days after the date of the October 10, 2000 renewal offer (March 1, 2001). The code does not call for an examination of "the equities" in each case in order to determine the commencement date of the renewal lease. Because the landlord's holdover proceeding was based on tenants' refusal to sign the retroactive renewal and the landlord failed to offer a prospective lease, the court dismissed the holdover proceeding.

The trial court granted the petition. The court reasoned that the agreement was temporary and unenforceable because of its indefinite duration. The court concluded that respondent's "license" to occupy the premises ended upon the death of Goodman. The court also relied on the alleged illegality of the basement apartment as a basis for eviction.

On appeal, the court reversed the eviction and found the written agreement to confer an enforceable tenancy interest. The court said that while the duration of the agreement was not date specific it was dependent upon conditions that were readily ascertainable by objective means. Thus, the agreement was a lease and could not be summarily terminated upon service of a ten day notice to quit the premises. The court also said the lower court was wrong when it relied on the alleged illegality of the apartment as a basis for eviction. Respondent had resided in the premises for a number of years, the premises were registered with DHCR, the premises were subject to the Rent Stabilization Law, the proceedings were not brought on the basis of illegality, and there was no showing that the apartment could not be legalized. The court concluded that the judgment for landlord was improperly granted and thus, denied the petition to evict.

Tenant, at owner's request, opened a Con Edison account, although she always understood gas and electricity were included in the rent. In October 2001, tenant's electricity was cut off by Con Edison for non-payment. The owner restored the electricity by unlawfully sharing her own meter with tenant. This unlawful meter sharing ended upon the advice of respondent's counsel on 1-23-02 when the owner removed the hook-up, effectively terminating the tenant's electricity. Tenant commenced this HP action to restore her electricity to the apartment.

Landlord refused to show up for trial, and the judge refused to allow landlord's counsel to be relieved. A NYCHA employee was subpoenaed and testified that she marked out the word "not" appearing in brackets in the sentence "The above rent does [] include gas and electric." She initialed the sentence on June 1, 2000. The tenant signed the lease on May 5, 2000. The owner's signature is undated. The tenant testified that she opened a ConEdison account at the owner's request, although she always understood that gas and electricity were include dint he rent. The owner failed to appear in court to rebut the tenant's or NYCHA's testimony which indicated that the utilities were included in the rent and therefore the landlord was obligated to provide for same. The court ordered the landlord to restore gas and electric within 48 hours by legal means and not by sharing meters.

In litigation involving the boiler, the court ruled that the tenant was obligated to have a maintenance contract with the boiler company and having failed to do so, the landlord was entitled to the rent for the full month of December. In December tenant announced that she was leaving. By remaining in occupancy into the month of March, the tenant became liable for use and occupancy for that entire month. The court, however, ruled that the landlord's padlocking of the basement door where the tenant had possessions entitled the tenant to treble damages. The amount of such damages equaled the amount of rent due.

There has been other litigation involving this building and claims of stabilization status. In one Appellate Term case the court ruled that the landlord knew and acquiesced to tenants' residency in the building even though commercial leases were given. Nonetheless, this tenant entered into an agreement with the landlord to cancel the commercial lease and remain in the apartment until March 31, 2003. In exchange he surrendered all rights and interest in the premises and agreed to a final judgment and warrant, with a stay until March, 2003. The agreement also provided that a holdover would be commenced and a settlement would incorporate the terms of their agreement. In the interim, the tenant agreed to pay use and occupancy.

The landlord brought a nonpayment proceeding when the tenant ceased paying use and occupancy. The court noted that every petition must allege whether the premises is a multiple dwelling or not and if there is a registration statement on file. The landlord is required to establish compliance with the registration requirements. The failure to plead compliance can result in the petition's dismissal. Although this failure is amendable, the landlord must prove compliance at trial that there is a current registration on file or that the building is not a multiple dwelling. Failure to prove registration or exemption will result in the petition's dismissal.

A multiple dwelling is a building occupied by three or more residential units. The affidavits of tenant and his neighbors indicate that the apartment is a multiple dwelling. The court granted the tenant's motion to dismiss the action on ground that the landlord failed to plead or prove that the building is registered as a multiple dwelling. The landlord failed to dispute the tenants' affidavits that it knew or acquiesced in the residences of three or more tenants. The court deemed the premises a multiple dwelling. The landlord failed to prove registration compliance. For this reason the court dismissed the petition. The court denied tenant's request to vacate or set aside the agreement that he must leave by March, 2003.

Tenant claimed that she spoke to the landlord two days before the eviction and was told that she could pay the arrears 12 days later. And yet, before 12 days elapsed, she was instead evicted. If this is true, it may constitute a ground to vacate the warrant as "fraud or misconduct by a landlord in facilitating execution of the warrant constitutes a ground for invalidating the warrant and restoring tenant to possession." The Appellate Term remanded the case to the trial judge to enable the landlord an opportunity to rebut tenant's allegation because tenant's claim was raised, without notice, during the traverse hearing.

Justice Patterson dissented from the majority's opinion. He found that if there was no reasonable excuse or meritorious defense presented, as the lower court in fact concluded, then the judge was wrong to restore the tenant to possession of the premises. Furthermore, Justice Patterson dismissed the tenant's testimony as not credible because on the one hand she said that she never received any legal papers and that's why she did not appear in court, and on the other hand, she asked the landlord for 12 more days to pay the rent and therefore must have known about the pending proceeding.

In November, 1997, tenant's lawyer advised the landlord in a letter that due to her health tenant needs to spend winter months in Florida. The lawyer requested the landlord to accommodate the needs of the tenant pursuant to the American for Disabilities Act by permitting her to be absent from the apartment during winter months without jeopardizing her tenancy by allowing her to continue to have a roommate during those months. The letter included a statement from the tenant's doctor stating that it would be beneficial for tenant to be in warm climate in winter months.

The landlord's attorney advised tenant's attorney that she would be going to Florida at her own risk. The tenant continued to go to Florida and to have a roommate. In May, 1999, the landlord served notices on tenant and thereafter commenced an eviction proceeding, at which time tenant commenced this federal case, the second against the owner. The jury found that the owner's failure to allow her to have a roommate when she went to Florida violated the Fair Housing Act because it was a denial of an accommodation of her handicap and was a retaliation of her previous lawsuit. The landlord asked the court to set aside the jury's verdict.

The court held that although a landlord is required to incur reasonable costs to accommodate a tenant's handicap, a landlord is not required to provide any accommodation that poses "an undue hardship or a substantial burden." The landlord argued that tenant did not need a roommate when she went to Florida, that in fact this is nothing more than an economic accommodation and not an accommodation for tenant's handicap. Tenant argued that so long as she occupied the apartment as her primary residence, she is entitled to a roommate. Since her disability requires her to be in Florida, if landlord deprives her of a roommate, then tenant reasoned, she was not equally treated. The court referred to a recent decision which held that the law addresses the accommodation of handicaps, not the alleviation of economic disadvantages that may be correlated with having handicaps. The court referred to other cases which stand for the principle that an accommodation is not necessary to afford a disabled person access to equal housing opportunity when the accommodation sought does not directly ameliorate an effect of the disability. The court ruled that there is no evidence that having a roommate while tenant was in Florida was necessary in any way to assist her in dealing with her AIDS condition or mitigated the difficulties associated with the illness.

With respect to tenant's retaliation claim, the landlord argued that since landlord was not obliged to accommodate tenant with respect to a roommate, then there can be no retaliation of a meritless claim. Tenant's lawsuit constituted protected activity since the Fair Housing Act forbids retaliation because a party has made a complaint under the FHA. Simply because tenant failed to establish a violation of a right does not immunize the landlord from liability. The jury, however, saw enough evidence to hold the landlord's act as retaliatory, including a letter form the landlord's attorney denying the request for a roommate while the tenant was in Florida, stating in part that the tenant had caused the landlord much expense in the first case. The evidence also showed that the landlord in fact had a policy of allowing other ill tenants in the building to have roommates if such tenant had to be gone for an extended period due to their illness. The jury could have reasonably concluded that the landlord excluded this tenant from this policy out of retaliation for her disability complaints.

However, this tenant could show no adverse impact by the landlord's decision. Her testimony revealed that she was barely aware that the landlord denied the request made by her attorney and that she went to Florida anyway after the denial and she continued to have a roommate. Hence, she suffered no intimidating or chilling affect or any injury. In the absence of injury, the court ruled that there could be no finding that the landlord had retaliated against the tenant. The court set aside the jury's award in favor of the tenant and dismissed the tenant's complaint.

Tenants seeks discovery on the circumstances of the change of ownership in the building because it was previously owned by a partnership which may not maintain an owner occupancy case. Now the building is owned by an individual, but tenants claim this was a sham transfer designed solely to facilitate this eviction proceeding. Tenants also seek information with respect to landlord's claim that their lease expired on June 30, 2001 because tenants claim their lease expired no March 31, 2001. The issue is relevant to whether or not the notice of nonrenewal was timely served. Finally the tenants seek discovery on landlord's good faith intention to use the apartment as alleged, an issue which the landlord does not oppose.

Landlord opposes discovery on the ownership issue on grounds that it is just a fishing expedition. Landlord also opposes discovery on the lease issue because many documents have been exchanged on this issue before the DHCR. The court ruled that the tenants have alleged facts sufficient to establish good faith claims with respect to all three of the issues on which they seek discovery. The court ruled that all three issues are relevant and all involve matters exclusively within the knowledge and control of the landlord.

The court further ruled that the landlord must appear before a deposition. He chose to own property in New York City and it is his good faith intentions that are at issue. Further, there is no proof that he suffers severe health problems and he is not of advanced age. Additionally, he regularly travels to New York. The court held that the landlord's inconvenience is not a sufficient reason to excuse him from appearing for a deposition. The court denied the tenants' request to depose the minor son.

The court ruled that the commencement of a holdover is defined as service of the notice of petition and petition. In this case the petition is dated November 27, 2001. The thirty day notice to cure and five day notice of termination both recite that the landlord knew about the presence of the dog in the apartment on August 21, 2001. Applying the 90 day rule means that the proceeding should have been commenced on or before November 21, 2001. Since the proceeding was commenced six days after the 90 day period, landlord cannot maintain the proceeding and tenant is allowed to keep her dog. The court held that there is no provision in the Pet Law for tolling the 90 day period.

The landlord argued that the default judgment should not be vacated just on the tenant's mere word that he was not served the petition. The landlord wanted a traverse hearing (i.e., the process server testifies as to how the tenant was served). The Appellate Term agreed and remanded the case so that there could be a traverse hearing. This means that if the court concludes that the tenant was properly served, landlord can proceed to evict the tenant. The Appellate Term ruled that the lower court had no authority to compel the landlord to choose between accepting the rent or having the petition dismissed. The Appellate Term, however, did rule that the tenant's motion to vacate the warrant should be granted regardless of the outcome of the traverse hearing because he satisfied the "good cause" factor by paying the rent.

The landlord did not rebut tenant's claim that she has had the dog for 7 years and walks the dog three times daily. The landlord argues that since they have no agents at the building, they are not liable for any open and notorious possession of the dog by the tenant. Arco is not their agent, so even if Arco knew about the dog, Arco's knowledge cannot be imputed to the landlord or landlord's agents. The court noted that the proceeding was commenced in July, 2001 based on a letter Arco wrote to the landlord stating that Arco's super observed the tenant with a dog in late February or early March, 2001. The court noted the contradiction in the landlord's position: that the landlord relied on Arco's super's observation of the dog to commence the proceeding but now the landlord wants to disavow a connection to Arco.

The court rejected the landlord's position that Arco has no agency relationship to it. The court held: "To accept the petitioner's defense would allow them to easily disassociate themselves from any liability in regard to the units that they own. It would provide an easy shield against responsibility." The court dismissed the petition.