BBG News

BBG Secures Victorious Decisions at the Appellate Term, First Department

Jul 3, 2024

We are pleased to announce that Belkin Burden Goldman, LLP has recently secured two significant victories in the Appellate Term, First Department.  These wins demonstrate our commitment to achieving favorable outcomes for our clients in complex legal matters.  Below are summaries of the two decisions that highlight our legal expertise and successful advocacy.

Appellate Case 1: Reversal of Housing Court’s Stay Decision

BBG successfully appealed two orders issued in the Housing Court, which stayed a non-primary residence holdover proceeding.  The tenant filed a complaint with DHCR after service of a Golub Notice, alleging the landlord’s failure to offer a renewal lease.  After commencing the non-primary residence holdover proceeding, the tenant moved to stay the proceeding pending DHCR’s determination of her complaint.  Housing Court granted the tenant’s motion and stayed the proceeding.  The landlord moved to reargue the decision to stay the proceeding, but the motion was denied.  The landlord appealed both decisions to the Appellate Term.

The central issue was whether the tenant had an excusable absence for not residing in the apartment as her primary residence.  Tenant’s counsel argued that DHCR had primary jurisdiction to determine this defense.  BBG contended that the Housing Court is exclusively authorized to adjudicate non-primary residence claims.

The Appellate Term unanimously granted our appeal in its entirety and reversed both of the lower court decisions.  The Court found that “a stay of this nonprimary residence holdover proceeding pending DHCR’s determination was improper” and confirmed that the Housing Court could resolve the issue of tenant’s absence.

David SkallerMagda L. Cruz and Michael Nesheiwat handled the appeal.

A copy of the decision can be found here.

Appellate Case 2: Expansion of Non-Primary Residence Discovery Scope

In another favorable outcome, the Appellate Term unanimously reversed the lower court’s decision, which had limited non-primary residence discovery to the two-year period prior to the expiration of the last renewal lease.  The landlord sought broader discovery based on the tenant’s excuse for her absence, claiming she left New York City during the Covid-19 shutdowns for health reasons.

The tenant admitted to not residing in the apartment during the two-year period from 2020 to 2022, citing Covid-19 as her defense.  BBG argued for discovery for a period prior to the Covid-19 shutdown in order to establish whether the tenant’s absence predated the pandemic.  The Housing Court ruled against the landlord, holding that it is bound by the standard two-year period of review.

On appeal, the Appellate Term agreed with the landlord and held that non-primary residence discovery must allow a landlord to “effectively ascertain” the merits of the tenant’s defense.  Broader discovery than just the two year period of the last renewal lease term is appropriate.

This case is particularly notable due to the Covid-19 defense. It sets a precedent that a tenant’s claim of absence due to the pandemic, or for that matter any strict standard that discovery is only limited to the two year period prior to the lease expiration, is not the law.

Sherwin Belkin, David Skaller, Magda L. Cruz, and Daniel P. Phillips worked on the appeal.

A copy of the decision can be found here.

Contact Us

If you have any questions or would like to understand how these decisions might impact your cases, please do not hesitate to contact your BBG attorney of record.

Written by Michael Nesheiwat, Associate, Litigation Department

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