Commercial Landlord-Tenant—Former Council Member and Neighborhood Attorney Tenant Displayed A Sign Calling Landlord “Greedy”—Defamation Suit Dismissed

This decision involved a defamation case relating to commercial space rented by the defendant (tenant) from the plaintiff (landlord). Following a dispute involving the tenant's alleged illegal subleasing of the premises, the parties engaged in litigation in the Civil Court. When the litigation was still pending, the tenant put up two signs in his storefront windows which stated:

After more than 25 years serving our neighborhood at this location (First as a City Council Member, then for years as a neighborhood based attorney) I am being forced to move from this building due to the greed of the new landlord. I will be relocating to a new office across the street at 161 East 4th Street.

The tenant moved to dismiss on the grounds that the alleged “defamatory statement is an opinion and that [landlord's] reputation was not harmed.” The landlord asserted that the storefront is located on a busy street, many people see the sign and “every other tenant in the building knows that [tenant] is referring to [landlord] when he calls the 'landlord' greedy.” The landlord further argued that anyone with Internet access could learn the identity of the landlord. The landlord further asserted that the signs contain statements that are “a mix of opinion and fact, and therefore, is actionable.”

The court explained:

Defamation is “the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society”…. In order to prove a claim for defamation, the plaintiff must show: (1) a false statement that is (2) published to a third party (3) without privilege or authorization and that (4) plaintiff is caused harm, unless the statement is one of the types of publications actionable regardless of harm…. Further, the “words must be construed in the context of the entire statement…as a whole, tested against the understanding of the average reader, and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction”…. “Loose, figurative or hyperbolic statements, even if deprecating the plaintiff, are not actionable”…. “A false statement constitutes defamation per se when it charges another with a serious crime or tends to injure another in his or her trade, business or profession”…. “Expressions of opinion, as opposed to assertions of fact are deemed privileged and no matter how offensive, cannot be the subject of an action for defamation”…. When considering whether a statement is an opinion, “[t]he key inquiry is whether [the] challenged expression, however labeled by defendant, would reasonably appear to state or imply assertions of objective fact. In making this inquiry, courts cannot stop at literalism…. courts must additionally consider the impression created by the words used as well as the general tenor of the expression, from the point of view of the reasonable person….”

The court found that the subject statements “were clearly expressions of opinion and are not actionable.” The court reasoned that it could not “be objectively proven that someone is greedy—the very nature of this adjective implies a subjective analysis. What might constitute greed inevitably varies from person to person.” For example, a tenant might believe that a 15 percent rent increase demonstrates that a landlord is greedy while someone else might think that “any rent increase exhibits greed.” The court believed that there was “no way to conclusively establish whether plaintiff was greedy.”

Additionally, the court opined that “the overall context of the signs reinforces the conclusion that the statements express opinion.” The court stated that “[a] reasonable person reading the sign would think that a disgruntled tenant appears to be frustrated with his landlord.” Additionally, the court denied the tenant's request for sanctions based on the landlord's alleged “meritless conduct.” The court opined that the tenant could not exhibit “a sign with a negative characterization of his landlord, allegedly refuse to take it down after being asked by both the landlord and the police and be surprised when a defamation lawsuit is filed against him.” The court also denied the landlord's claim for “intentional infliction of emotional distress.”

That tort has four elements:

(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress….

The court found that the landlord failed to demonstrate that the tenant had “engaged in extreme or outrageous conduct.” The court explained that “[c]alling someone greedy does not demonstrate that [tenant] engaged in a campaign to harass [landlord] to cause her severe mental pain.” Moreover, the signs did “not even identify the landlord” and a person reading the signs would have to conduct an investigation to uncover the identity of the landlord. The court did not find that “putting up this sign constitutes an atrocious or intolerable act.” Although the court understood the landlord did not like the statements on the signs, that did not mean that the landlord had a cause of action for intentional infliction of emotional distress. The court concluded that what the tenant had said was “not nice—but it was clearly [tenant's] opinion.”

'Klaynberg v. Dibrienza,' Sup. Ct., N.Y. Co., Index No. 154252/2017, decided Dec. 5, 2017, Bluth, J.

Landlord-Tenant—Succession—Predicate Notice Defective—It Was Based On a
Void stipulation Which Waived Rent Stabilization Rights

An owner commenced a summary holdover proceeding, seeking to recover possession of an apartment on the ground that the respondent is a licensee who resides in the apartment without permission. The respondent moved to dismiss on the ground that the apartment is rent stabilized and he is entitled to succeed to the tenancy.

The respondent brother (brother) asserted that his sister was the original tenant of record and had resided in the apartment from 1996 to 2003. In 1998, the respondent's parents began to live in the apartment with the sister. In 2003, the sister vacated the apartment and the brother moved in with his parents. In 2005, the owner had commenced a holdover proceeding, alleging that the apartment was not the sister's primary residence. A settlement stipulation provided that the sister surrendered her right to the apartment and her parents were granted a “life estate” right to continue to live in the apartment, but not as rent stabilized tenants (stipulation). The father died in Aug. of 2014. The mother died in July of 2016. The owner then commenced the subject holdover proceeding.

The brother argued that he lived in the apartment from 2003 to the present, “except for a period of incarceration during 2012-2014” and that since the owner cannot deregulate the apartment based on the stipulation, the apartment is rent stabilized and he has succession rights.

The owner argued that the sister was the last rent stabilized tenant, pursuant to the stipulation, the sister surrendered “all rights,…to the subject premises” and a life estate was given to her parents, “not succession rights.” The owner also asserted that the sister and her father “were occupants, not tenants and…only a tenant can obtain succession.” Additionally, the owner contended that the brother did not live with the sister for at least two years before the last lease renewal expired and the evidence failed “to establish succession” since the information was “conflicting and self-serving.”

Pursuant to Rent Stabilization Code 9 NYCRR §2520.13, “agreements or stipulations waiving the rights provided for in the Rent Stabilization Code are void.” In Second Lenox Terrace Assoc v. Cuevas, 2009 NY Slip Op 51507[U] [Civ Ct, New York County 2009] (Cuevas), the court “vacated a two-attorney stipulation under which the tenant forfeited any succession rights she may have had to a rent-stabilized apartment, finding the agreement to be void as against public policy.” The court noted that notwithstanding Cuevas, the subject petitioner, who is also the Cuevas petitioner, entered into such agreement in this instance as well. The court held that the stipulation which created a “life estate” for the parents and waived the rent-stabilized status, “is void as it resulted in a forfeiture of the [parents'] rights to succession.”

Although “the facts in Cuevas are different from the instant case, as the tenant in Cuevas was asked to vacate temporarily and then reoccupy as a non-regulated tenant,” the court stated that “a stipulation wherein rent stabilized status is waived, is void.” Since the stipulation was void, the apartment remained rent stabilized and “no license was created.” Rather, it appeared that “at the very least a month-to-month tenancy was created when petitioner accepted rent payments from the [parents].” Therefore, “the last tenants of record were the [parents] and as their son, [brother] has a potential right to succession.”

Accordingly, the court found that the predicate notice was defective since it was based upon the void stipulation. The court explained that a notice to vacate “shall state the ground under section 2524.3 or 2524.4 of this Part, upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground.” See also Real Properly and Proceedings Law §741 (4). Here, since the licensee 10-day Notice to Quit which was the predicate for the commencement of the summary holdover proceeding, was deficient, since it was based upon a void stipulation and contradicts the petition, the court dismissed the petition.

'Second Lenox Terr. Assn v. Washington,' Civ. Ct., N.Y. Co., Index No. 252224-16, decided Nov. 30, 2017, Saunders, J.

Landlord-Tenant—Rent Stabilization—If Cubicle Units Could Be Considered “Housing Accommodations” for Rent Stabilization Purposes, Then Each of Five Rooms Within One First-Floor Apartment, Must Also Be Considered Separate “Housing Accommodations”—
Since the Building Contained Seven Residential Units, It Was Subject to Rent Stabilization

A landlord commenced five holdover proceedings to recover possession of “five units” on the first floor of a “three-family multiple dwelling.” The tenants asserted that the premises were subject to rent stabilization, since there were six or more units in the building before 1974.

The landlord had served “individual thirty day termination notices and petitions alleging that the rooms were not subject to rent stabilization.” The respondents asserted “defenses of de facto rent stabilization status and failure to serve termination notices” pursuant to the Rent Stabilization Law and moved to dismiss the petitions.

The court noted that a certified deed for the building described the building as a “three-family dwelling.” A Multiple Dwelling Registration for the three-story three unit building had been entered into evidence. The landlord testified that he had not received rent or use and occupancy from the respondents and that they did not have leases. The court found that the five respondents had “all been living for several years in separate locked rooms in the first floor apartment. They each have a key to the locked room in which they reside and to which they have exclusive access and possession. They share the kitchen and bathroom in the first floor apartment, but nothing else. The respondents paid rent in cash to [landlord] for their individual rooms…. The utilities were paid from the rent respondents paid to [landlord].”

The salient issue was whether the building had at least six residential units on July 1, 1974 or thereafter, and is subject to rent stabilization. The court explained that a building built before January 1, 1974, which contained six or more residential units, is subject to rent stabilization coverage. The subject building had been built in 1936. Prior judicial precedent held that “a cubicle unit in a lodging house was subject to rent stabilization, as it was a 'housing accommodation' for rent stabilization purposes.” The court reasoned that “[i]f a cubicle unit can be considered a 'housing accommodation' for rent stabilization purposes, then each room in the first floor apartment in this building must be also considered a separate 'housing accommodation' for rent stabilization.”

Since the landlord and another tenant lived on the third floor, the court found that there were seven residential units in the building and the building was subject to rent stabilization. Accordingly, the court held that the predicate notices were defective and the court dismissed the petition for failure to plead the proper regulatory status of the housing accommodations in the first floor apartment. The court explained that such accommodations were subject to rent stabilization, since they are contained in a building that was built prior to Jan. 1, 1974 and contained six or more residential units. The court denied a counterclaim for legal fees under RPL §234, since no leases exist between the parties. A rent overcharge counterclaim was also dismissed for failure of proof.

'Feldheim v. Stuckey,' Civ. Ct., Bronx Co., Index No. 33615/16, decided Dec. 5, 2017, Breier, J.

Scott E. Mollen is a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law.