Publication Date: Autumn 2000
CNYC president Marc J. Luxemburg, Esq. is an attorney
specializing in cooperative and condominium law. In each
issue of the CNYC Newsletter he reviews recent court cases
that have the potential to answer questions commonly faced
by boards of directors as part of their responsibilities.
At CNYC's November 12th Housing Conference, Mr. Luxemburg
will present his annual review of the year's Significant
COURT INVALIDATES CITY LEAD
A judge of the Supreme Court, New York County, has just invalidated
New York City's Lead Paint Law, Local Law 38 of 1999, on the
grounds that legislation affecting lead paint is an environmental
action which requires the filing of an environmental impact
statement. Thus, the Court held that the Lead Paint Law was
in violation of the State Environmental Quality Review Act
as well as the City Environmental Quality Review requirements.
New York City Coalition to End Lead Poisoning v Vallone,
NYLJ, 10/16/2000, p. 26, c.1 (Sup Ct, NY County, York, J.).
The Lead Paint law had substantially revised the obligation of building
owners (which included the City itself) to make repairs to the paint and
decorated surfaces of apartments. It essentially required an annual notice
to every tenant, and an annual inspection of units with small children,
as well as an inspection and repair obligation every time an apartment
was sold or re-rented.
Although the law was intended to strike a balance between the rights
and obligations of owners and tenants, the court examined the legislative
process by which it had been passed. The court believed that the legislation
had been rushed to passage with only a perfunctory analysis of the underlying
issues. The court engaged in an extensive analysis of the timing of the
various drafts of the bill, the hearings on the bill, the notice to the
various petitioners, the extent to which they were afforded an opportunity
to testify at hearings, and the amount of time that elapsed between the
printing of bills and their consideration by the City Council. The court
found the analysis by the City Council of the issues was inadequate.
Although it has previously been held that lead paint did not constitute
an environmental issue, the court found that it posed a sufficient environmental
hazard that the law required an environmental impact statement The court
held the State Environmental Quality Review Act, which regulates actions
by "agencies", to apply to the City Council in connection with the passage
CNYC was an active participant in the negotiations and discussions with
the staff of the City Council which led to the passage of this statute.
While the statute was not perfect, it represented a balanced approach.
We would expect that the City would promptly appeal this decision to an
PAIKOFF CONTINUES TO CONFUSE
In Paikoff v. Harris, NYLJ,10/20/99, P 32, C 2 (App T 2nd Dept),
the court held that a tenant that takes possession of an "unsold" apartment
in a cooperative subsequent to the building being converted to cooperative
status is a non-purchasing tenant entitled to renewal rights as against
a sponsor who continues as the owner of such apartment. The courts in
the 1st Department have not followed this decision, and recent decisions
continued the dichotomy between the two departments.
In Jonas Equities, Inc v. McLawrence, NYLJ, 8/31/2000, P 28, C
3 (Civil Court Kings Co.) the tenant had occupied the apartment prior
to conversion. The sponsor brought an action to remove the tenant, and
the parties entered into a stipulation of settlement whereby the tenant
agreed to vacate the apartment. The tenant was not represented by counsel.
Subsequently, after the time to vacate expired, the tenant brought an
order to show cause seeking to set aside the stipulation stating that
she had been ignorant of her rights when she entered into the stipulation.
The fact that the tenant was ignorant of her rights was held to be good
cause to allow her to avoid the stipulation. As determined by this judge,
it is the public policy of the State according to the Paikoff case, to
prohibit non purchasing tenants from bring evicted.
In contrast, in Parkchester Preservation Co., LLP. v Hanks et. al,
2000 WL 1511310 (Civil Court, Bronx Co., July 13, 2000) the court was
faced with a motion to dismiss a number of hold over proceedings brought
to evict non purchasing occupants of condominium apartments in Parkchester.
It appeared that the petitioner was not the condominium sponsor, since
it had purchased a large number of units from the sponsor, and that none
of the tenants were in physical occupancy at the time that the building
had converted to condominium status. Accordingly the court found dismissal
of the petitions would endow the tenants with a perpetual tenancy exempt
from the limitations set forth in their leases, and that the tenants did
not come within the definition of the statute. Accordingly the court refused
to apply the Paikoff decision, and granted judgment of possession of the
apartments to the petitioner.
Thus the dichotomy between the first department and the second department
as to the interpretation of the Martin Act continues. We await further
legislative or judicial clarification of this issue.