Vivian M. Williams & Associates, P.C.

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A landlord cannot maintain a holdover proceeding if, during the pendency of that proceeding, the landlord commences a second summary proceeding based on the tenant's non-payment of rent, since the non-payment petition evinces a continuing tenancy for which a holdover action is inappropriate. Ansonia Assocs. v. Pearlstein, 122 Misc. 2d 566, 471 N.Y.S.2d 527 (N.Y.C. Civ. Ct. 1984)

Fraudulent Real Estate Conveyances

A constructive trust over real property can be imposed even where an underlying agreement is not in writing, but where there is a confidential relationship between the parties. See Thomas v. Thomas, 2010 NY Slip Op 01586 (N.Y. App. Div. Feb. 25, 2010)


Damages in Landlord/Tenant Proceedings

When a tenant abandons the premises prior to the expiration of the lease, the landlord may notify the tenant that it was entering and reletting the premises for the tenant's benefit such that any excess above the landlord's costs and the tenant's rent liability would be payable to the tenant and the tenant would remain liable for any deficiency. Centurian Development Ltd. v. Kenford Co., 60 A.D.2d 96, 400 N.Y.S.2d 263 (App. Div. 1977)

A landlord is under no duty to his tenant to mitigate rent damages by reletting the abandoned premises. Becar v. Flues, 64 N.Y. 518 (1876)

In a default of lease case, while the landlord must use due diligence to relet the premises, this obligation may be satisfied in any of several ways, such as newspaper advertising, listings with real estate brokers, personal efforts to find new tenants, or, by posting signs.

To effect compliance with housing codes and to promote the public interest, a court may award punitive damages against a landlord when the landlord's conduct is malicious, wanton, or reckless. Davis v. Williams, 92 Misc. 2d 1051, 402 N.Y.S.2d 92 (N.Y.C. Civ. Ct. 1977)

Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm,' including a third party's foreseeable criminal conduct" (Burgos v Aqueduct Realty Corp., 92 NY2d 544 , 548 [1998], quoting Jacqueline S. v City of New York, 81 NY2d 288, 293-294 [1993]). However, an injured tenant may recover damages "only on a showing that the landlord's negligent conduct was a proximate cause of the injury" (Burgos, 92 NY2d at 548). Where the assailant remains unidentified, a plaintiff may meet his proximate cause burden "if the evidence renders it more likely or more reasonable than not that the assailant was an intruder who gained access to the premises through a negligently maintained entrance".  Romero v. Twin Parks Southeast Houses, Inc., 2010 NY Slip Op 01358 (N.Y. App. Div. Feb. 16, 2010)

Discovery in Summary Proceedings

In order to determine whether a landlord or tenant has demonstrated ample need for discovery or disclosure in a summary holdover proceeding the court must consider whether 1) the petitioner has asserted facts to establish a cause of action; 2) the movant has demonstrated a need to determine information directly related to the cause of action; 3) the information requested is carefully tailored and is likely to clarify the disputed facts; 4) granting disclosure would lead to prejudice; 5) the court can alleviate the prejudice; and 6) whether the court can structure discovery to protect pro se tenants against any adverse effects of a landlord's discovery requests. New York Univ. v. Farkas, 121 Misc. 2d 643, 468 N.Y.S.2d 808 (N.Y.C. Civ. Ct. 1983)

Discovery is available in summary proceedings only upon a showing of ample need. Antillean Holding Co. v. Lindley, 76 Misc. 2d 1044, 352 N.Y.S.2d 557 (N.Y.C. Civ. Ct. 1973)

Discovery is not inherently hostile to the nature of a summary proceeding. 42 W. 15th St. Corp. v. Friedman, 208 Misc. 123, 143 N.Y.S.2d 159 (App. Term 1955)

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