CHILD WELFARE NOT IMMUNE FROM LIABILITY FOR PERSONAL INJURIES TO FOSTER CHILD

PD v. County of Suffolk, 2024 NY Slip Op 3405 - NY: Appellate Div., 2nd Dept. 2024:

"WOOTEN, J.

APPEAL by the defendant County of Suffolk, in an action to recover damages for personal injuries, etc., from an order of the Supreme Court (David T. Reilly, J.), dated April 6, 2023, and entered in Suffolk County. The order, insofar as appealed from, denied that branch of the motion of the defendant County of Suffolk which was for summary judgment dismissing the complaint insofar as asserted against it.

This appeal concerns the novel issue of whether a municipality is immune from liability for personal injuries allegedly sustained by a foster child during visitation supervised by a department of social services caseworker. We hold that under such circumstances, a municipality may assume a special duty to the foster child and be subject to liability.

I. Background

The plaintiff father (hereinafter the father) and nonparty mother (hereinafter the mother) have two children together, including the infant plaintiff, who was born in 2017. In 2017, the children were removed from their parents' custody and placed in kinship foster care with their paternal grandmother (hereinafter the foster parent).

On September 21, 2019, the foster parent drove the infant plaintiff, then two years old, and the infant plaintiff's four-year-old sister to Mashashimuet Park in Sag Harbor for a supervised visit with the mother. After leaving the children in the care of Kevin Byrne, the assigned caseworker for the Suffolk County Department of Social Services (hereinafter the DSS), the foster parent left the park to go to work. Byrne testified at his deposition that it was the policy and procedure of the DSS that no visit could start until an employee of the County was present to supervise. After the foster parent dropped off the children, Byrne walked them to the playground for the visit with the mother, who had brought a 10-year-old daughter who was in the mother's custody.

During the supervised visit, the infant plaintiff allegedly was injured when she fell on a slide while attempting to walk up the portion intended for children to slide down. The slide on which the accident occurred was in an area of the playground designated with a sign as intended for children 5 to 12 years old. The foster parent testified at her deposition that she believed that the slide was "[w]ay too big for [the infant plaintiff]." Byrne acknowledged that he did not observe the accident or the infant plaintiff walking up the slide prior to the accident, and that he learned of the accident shortly thereafter from the mother's 10-year-old daughter. Byrne estimated that the infant plaintiff was playing on the slide for approximately four to five minutes prior to the accident. According to Byrne, at the time of the accident, the mother was standing by the top of the slide. The mother testified at her deposition that after the accident, Byrne told her to "give [the infant plaintiff] a couple of minutes" because there was no visible redness or swelling.

The foster parent testified that when she arrived at the playground, she learned that Byrne had not called for an ambulance because he was "fumbled for words." She also indicated that Byrne was "not in good health" and, therefore, was "[p]hysically unable" to pick up the infant plaintiff, who was unable to walk following the accident.

Byrne testified that his role during the supervised visit was to "[b]asically observe," although he acknowledged that he could intervene if he observed anything during the visit that he believed "might be inappropriate or dangerous for the child" or if the mother permitted the infant plaintiff to engage in an activity that he felt was inappropriate.

In 2020, the infant plaintiff, by the father, and the father individually (hereinafter together the plaintiffs), commenced this action, inter alia, to recover damages for personal injuries against, among others, the County of Suffolk. The plaintiffs alleged, among other things, that the accident was caused by the negligent supervision of Byrne.

After joinder of issue, the County moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it. In support of the motion, the County argued, among other things, that it was immune from liability, since Byrne was performing a governmental function involving the exercise of discretion and did not owe a special duty to the infant plaintiff. The County asserted that Byrne's role was "simply to observe that the children in fact visit with their parent in an effort to maintain and strengthen the parental bond," and that the accident took place "under the direct supervision of [the infant plaintiff's] biological mother." The County also argued that there was no evidence that any action or inaction by Byrne proximately caused the accident.

In an order dated April 6, 2023, the Supreme Court, inter alia, denied that branch of the County's motion which was for summary judgment dismissing the complaint insofar as asserted against it. The court determined, among other things, that the County failed to establish, prima facie, that it was immune from liability based on discretionary conduct and that Byrne's alleged negligent supervision was not a proximate cause of the infant plaintiff's injuries. The County appeals.

On appeal, the County argues, inter alia, that it did not owe a special duty to the infant plaintiff. The County also contends that even assuming, arguendo, a special duty existed, it is immune from liability for the performance of a governmental function involving the exercise of discretion. In any event, the County argues that its alleged negligent supervision was not a proximate cause of the accident.

II. Analysis

A. Governmental Immunity

"When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose" (Applewhite v Accuhealth, Inc., 21 NY3d 420, 425; see Marino v City of New York, 223 AD3d 888, 889). "If the municipality is engaged in a proprietary function, it is subject to suit under the ordinary rules of negligence" (Trenholm-Owens v City of Yonkers, 197 AD3d 521, 523; see Applewhite v Accuhealth, Inc., 21 NY3d at 425). "In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers" (Applewhite v Accuhealth, Inc., 21 NY3d at 425 [internal quotation marks omitted]).

"Once it is determined that a municipality was exercising a governmental function, the next inquiry focuses on the extent to which the municipality owed a duty to the injured party" (Santaiti v Town of Ramapo, 162 AD3d 921, 924; see Applewhite v Accuhealth, Inc., 21 NY3d at 426). "In order to sustain liability against a municipality engaged in a governmental function, `the duty breached must be more than that owed the public generally'" (Santaiti v Town of Ramapo, 162 AD3d at 924, quoting Lauer v City of New York, 95 NY2d 95, 100). "Indeed, `although a municipality owes a general duty to the public at large . . . this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created'" (Santaiti v Town of Ramapo, 162 AD3d at 924, quoting Valdez v City of New York, 18 NY3d 69, 75). The issue of whether a special duty exists "`is generally a question for the jury'" (Santaiti v Town of Ramapo, 162 AD3d at 924, quoting Coleson v City of New York, 24 NY3d 476, 483). A special duty can arise where, as relevant here, "`the [municipality] voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally'" (Koyko v City of New York, 189 AD3d 811, 812, quoting Applewhite v Accuhealth, Inc., 21 NY3d at 426). "A municipality will be held to have voluntarily assumed a special duty where there is: `(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking'" (Koyko v City of New York, 189 AD3d at 812, quoting Cuffy v City of New York, 69 NY2d 255, 260).

Further, "[u]nder the doctrine of governmental function immunity, government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general" (Kralkin v City of New York, 204 AD3d 772, 772; see McLean v City of New York, 12 NY3d 194, 203). "Discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results, whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result" (Kralkin v City of New York, 204 AD3d at 773; see Tango v Tulevech, 61 NY2d 34, 41). Additionally, a municipality is not immune from liability based upon the exercise of discretionary authority "`unless the municipal defendant establishes that the discretion possessed by its employees was in fact exercised in relation to the conduct on which liability is predicated'" (Ferreira v City of Binghamton, 38 NY3d 298, 311, quoting Valdez v City of New York, 18 NY3d at 76).

1. Governmental Function

Here, with regard to the threshold issue of whether the County acted in a proprietary or governmental function, the plaintiffs do not dispute that Byrne was engaged in a governmental function at the time of the accident. "The function of dealing with children in need of foster care is deemed best executed by government and is undertaken without thought of profit or revenue" (Kochanski v City of New York, 76 AD3d 1050, 1052). Since Byrne was supervising visitation as part of his duties for the DSS on behalf of a child in foster care at the time of the accident, he was engaged in a governmental function. Thus, the inquiry turns to whether the County owed a special duty to the infant plaintiff.

2. Special Duty

Contrary to the County's contention, it failed to establish, prima facie, that it did not owe a special duty to the infant plaintiff.

The issue of whether a municipality owes a special duty to children placed in foster care has generally arisen in the context of actions involving children who were subjected to sexual or physical abuse while in foster care. For instance, in Bartels v County of Westchester (76 AD2d 517, 522), this Court determined that a county may be liable for physical injuries suffered by an infant in a foster home, as the county "undertook to care for the infant plaintiff, and this duty, once assumed, had to be carried out with due regard for the child's safety."

Similarly, in G.F. v Westchester County (2024 NY Slip Op 30447[U] [Sup Ct, Westchester County]), which involved allegations that a child in foster care was sexually abused, the Supreme Court determined that a county assumed a special duty to the infant plaintiff. The court explained that "[i]n contrast to its general population, the [c]ounty seized responsibility for plaintiff's care and upbringing," as the county had custody of the child in foster care and "exercised its parens patriae function to safeguard the best interests of plaintiff and had control over him during the time of the abuse" (id. at *5).

By contrast, in Weisbrod-Moore v Cayuga County (216 AD3d 1459), the Appellate Division, Fourth Department, determined that a complaint alleging that the plaintiff was subjected to sexual and physical abuse while in foster care was insufficient to allege the existence of a special duty owed by a county to the plaintiff. The court explained that the allegations in the complaint pertained specifically to the county's failure to meet its obligations to foster children pursuant to the Social Services Law, and that "`[t]he failure to perform a statutory duty, or the negligent performance of that duty, cannot be equated with the breach of a duty voluntarily assumed'" (id. at 1462, quoting Estate of M.D. v State of New York, 199 AD3d 754, 757).

The circumstances of the case at bar are distinguishable from the aforementioned cases, as the infant plaintiff did not sustain injuries while in a foster home, but rather during visitation with the mother at a public location under supervision by a caseworker for the DSS. It is an issue of first impression whether the municipality assumed a special duty to the foster child in such instance. We hold that under these circumstances, a municipality may owe a special duty to the foster child.

It is well settled that a school owes a special duty to provide its students with adequate supervision, which "derives from the fact that the school, in assuming physical custody and control of the students, takes the place of the parents or guardians, and therefore acts in loco parentis" (Hauburger v McMane, 211 AD3d 715, 716; see Pratt v Robinson, 39 NY2d 554, 560; Ferguson v City of New York, 118 AD3d 849, 849-850). This special duty of a school to its students is temporary in nature and ceases once a student "has passed out of the orbit of its authority" (Pratt v Robinson, 39 NY2d at 560).

Here, the infant plaintiff was injured under circumstances analogous to a child injured on a playground while at school. At the start of the visit, the foster parent surrendered physical custody and control of the infant plaintiff to Byrne and then left the park for the duration of the visit. While the mother was present during the visit, it is undisputed that she was not the custodial parent and, indeed, was not even permitted to interact with the infant plaintiff outside the presence of the assigned caseworker. Notably, Byrne acknowledged that it was the policy and procedure of the DSS that no visit could start until an employee of the County was present to supervise, and that he was empowered to intervene if he observed anything he believed "might be inappropriate or dangerous for the child" or if the mother permitted the infant plaintiff to engage in an inappropriate activity. Therefore, the mother did not possess an unfettered degree of control over the infant plaintiff such that she could be deemed the party in physical custody of the infant plaintiff during the supervised visit. Rather, by assuming physical control over the infant plaintiff in the parking lot when the foster parent dropped off the infant plaintiff for the visit, Byrne acted in loco parentis during the visit.

Thus, the County's contention that the mother was the individual responsible for supervising the infant plaintiff is not supported by the record. Moreover, the County cannot reasonably take the position that it was entitled to rely on the mother to ensure the safety of the infant plaintiff during visitation when the mother was not permitted to have unsupervised visitation with the infant plaintiff. If the presence of a caseworker was deemed necessary to ensure that the mother acted appropriately during visitation, then it necessarily follows that the caseworker was obligated to ensure that the mother did not permit the infant plaintiff to engage in any unsafe behavior.

Consequently, we hold that the County may assume a special duty to a foster child during the course of visitation supervised by a DSS caseworker. We also determine that the County's conclusory assertions regarding the lack of a special duty were insufficient to meet its burden of establishing, prima facie, that it did not owe a special duty to the infant plaintiff (see Stevens v Town of E. Fishkill Police Dept., 198 AD3d 832, 833; Morgan-Word v New York City Dept. of Educ., 96 AD3d 1025, 1026).

3. Discretionary Conduct

Although discretionary governmental action, as opposed to ministerial governmental action, may not be a basis for liability even if a special duty exists (see Ferreira v City of Binghamton, 38 NY3d at 311-312; Kralkin v City of New York, 204 AD3d at 772-773), the County's bare assertion that Byrne's conduct was discretionary was insufficient to meet its prima facie burden, as "`a municipality must do much more than merely allege that its employee was engaged in activities involving the exercise of discretion'" (Coleson v City of New York, 125 AD3d 436, 437, quoting Valdez v City of New York, 18 NY3d at 79).

To the extent the County contends that Byrne's conduct was discretionary because "New York State guidelines set forth by the Office of Children and Family Services" provide for "the least restrictive level of supervision necessary for children in foster care," the County's contention is improperly raised for the first time on appeal (see Shahid v City of New York, 144 AD3d 1127, 1129-1130).

Moreover, even assuming, arguendo, that the County established, prima facie, that Byrne's authority to supervise visitation was discretionary in nature, the County failed to demonstrate that such discretion "`was in fact exercised in relation to the conduct on which liability is predicated'" (Ferreira v City of Binghamton, 38 NY3d at 311, quoting Valdez v City of New York, 18 NY3d at 76). Since Byrne acknowledged that he did not observe the infant plaintiff walking up the portion of the slide intended for children to slide down prior to the accident, it cannot be said that he made a discretionary decision whether or not the infant plaintiff's behavior warranted his intervention. Thus, any exercise of discretion by Byrne during visitation bore no relation to the conduct on which liability is predicated.

Consequently, the County failed to establish, prima facie, that it was immune from liability for a claim of negligent supervision for the subject accident.

B. Proximate Causation

Generally, the adequacy of a defendant's supervision of children on a playground and whether inadequate supervision was a proximate cause of an accident are questions of fact for a jury (see L.S. v Massapequa Union Free Sch. Dist., 215 AD3d 708, 709-710). "However, where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the . . . defendant is warranted" (id. at 710; see R.B. v Sewanhaka Cent. High Sch. Dist., 207 AD3d 607, 610).

Contrary to the County's contention, it failed to establish, prima facie, that Byrne provided adequate supervision to the infant plaintiff, or that a lack of adequate supervision was not a proximate cause of the accident (see L.S. v Massapequa Union Free Sch. Dist., 215 AD3d at 710; B.T. v Bethpage Union Free Sch. Dist., 173 AD3d 806, 808). Viewing the evidence in the light most favorable to the plaintiffs (see Rodriguez v American Airlines, Inc., 219 AD3d 948), there were triable issues of fact as to whether the infant plaintiff was engaged for an extended period of time in a dangerous activity given her young age, which warranted more heightened supervision, and if so, whether such supervision would have prevented the accident (see SM v Plainedge Union Free Sch. Dist., 162 AD3d 814, 817; DiGiacomo v Town of Babylon, 124 AD3d 828, 829). The mother testified that the infant plaintiff and her sister were playing on the big slide where the accident occurred—which was intended for older children ages 5 to 12—for approximately 10 to 15 minutes prior to the accident, and Byrne estimated that they were playing on that slide for 4 to 5 minutes. Thus, the County's evidentiary submissions were insufficient to establish, prima facie, that the accident occurred in so short a span of time that even the most intense supervision could not have prevented it (see M.P. v Mineola Union Free Sch. Dist., 166 AD3d 953, 955).

III. Conclusion

In light of the foregoing, the County failed to establish its prima facie entitlement to judgment as a matter of law, and thus, we need not consider the sufficiency of the plaintiffs' submissions in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The parties' remaining contentions either were improperly raised for the first time in reply papers, and thus, are not properly before this Court, or are without merit.

Accordingly, the Supreme Court properly denied that branch of the County's motion which was for summary judgment dismissing the complaint insofar as asserted against it, and the order is affirmed insofar as appealed from.

BARROS, J.P., WARHIT and VENTURA, JJ., concur.

ORDERED that the order is affirmed insofar as appealed from, with costs."

TENANTS CANNOT WAIVE PUBLIC POLICY RIGHTS - FAIR MARKET RENT APPEAL

Liggett v Lew Realty LLC 2024 NY Slip Op 03378 Decided on June 20, 2024, New York Court of Appeals:

"It is well settled that an agreement waiving a benefit of the Rent Stabilization Laws is void as against public policy. This rule is not altered by the tenant's status. Accordingly, the stipulation at issue here, which required the tenant to waive his right to file a Fair Market Rent Appeal (FMRA), is void and did not provide a path to deregulation of the subject apartment.

Defendant Lew Realty owns and operates a Manhattan apartment building where plaintiff K.E. Liggett has resided since October 2020 pursuant to a market lease. Liggett commenced this action when Lew Realty attempted to raise her rent in 2021, seeking a declaration that the apartment is rent stabilized and she is entitled to a rent stabilized lease, overcharges, and attorneys' fees.

Liggett's claim is premised on events that occurred decades earlier. In 1984, an initial rent registration for the apartment was filed with the Division of Homes and Community Renewal (DHCR), identifying Edward Brown as the rent controlled tenant of record. When Brown died in 1998—the sole recorded tenant of the apartment—he paid $141.23 in rent per month. Upon Brown's death, Edward McKinney claimed to be Brown's successor to the rent controlled apartment under Braschi v Stahl Associates Co. (74 NY2d 201 [1989]). Lew Realty disputed McKinney's status and commenced a holdover proceeding to evict him

McKinney and Lew Realty settled that proceeding in 2000 through a so-ordered stipulation ("Stipulation"), which provided that McKinney would take tenancy as the first rent stabilized tenant of the apartment rather than maintaining the apartment as rent controlled. Rent control and rent stabilization are both statutory mechanisms intended to "put[ ] a brake upon run-away rent increases" in New York City, though they operate differently (8200 Realty Corp. v Lindsay, 27 NY2d 124, 136 [1970]; see also Braschi, 74 NY2d at 208). Rent control, which applies only to housing built before 1947, subjects rental units to "stringent controls," including strict limits on rent amounts and broad eviction protections (Sullivan v Brevard Assocs., 66 NY2d 489, 492-494 [1985]; 8200 Realty Corp., 27 NY2d at 129; Braschi, 74 NY2d at 209). Rent stabilization, by comparison, gives landlords more leeway to "increase rents within reasonable limits" (8200 Realty Corp., 27 NY2d at 136—137). When a rent controlled unit becomes vacant, it is "automatically . . . subject to the less rigorous provisions of rent stabilization" (Braschi, 74 NY2d at 209, citing 9 NYCRR 2520.11 [a], 2521.1 [a] [1]; see also Sullivan, 66 NY2d at 494 [rent control governs an "ever-decreasing number" of units]).

The Stipulation between McKinney and the landlord provided that McKinney "agrees to accept and the landlord agrees to offer a rent stabilized lease" in McKinney's name at a rate of "$650 per month." It also stated that "$1,650 per month is a fair rent for [the] apartment being removed from Rent Control," a proviso apparently intended to set the initial legal regulated rent under the Rent Stabilization Laws (RSL). The Stipulation further provided that "[f]or as long as Ed McKinney is the tenant, his rent shall be $650 per month plus allowable rental increases." The effect of that provision, which neither party disputes, was to ensure that McKinney would pay a preferential rate of $650, with subsequent increases tied to this number for the duration of his tenancy. McKinney also agreed "not to challenge the rent," thereby waiving his right to challenge the amount of the initial rent through a Fair Market Rent Appeal (FMRA) proceeding. Lew Realty filed the lease with DHCR, registered $1,650 as the "legal regulated rent" and $650 as the "actual rent paid," and mailed McKinney notice of his right to file a FMRA as required by statute, notwithstanding that McKinney had already agreed not to avail himself of the process (see 9 NYCRR 2522.3 [a]).[FN1]

After McKinney vacated the apartment in 2001, Lew Realty renovated it. Lew Realty then took the $1,650 that McKinney had agreed to in the Stipulation (but did not pay) as the initial legal regulated rent and applied increases tied to the vacancy and renovation, as authorized under the RSL. It calculated that with these increases, the legal rent would exceed $2,000, and determined that the apartment was thus subject to luxury decontrol. Lew Realty reported the apartment to DHCR as deregulated, and the next tenant took occupancy of the apartment at an open market rate of $1,650 per month. The apartment has been on the open market since.

In November 2021, Liggett brought a lawsuit alleging that the Stipulation is void as against public policy, and that because the Stipulation led in short order to the deregulation of the apartment, the deregulation was invalid and the apartment remains rent stabilized. Lew Realty moved to dismiss, contending that the Stipulation is enforceable and the deregulation proper. Supreme Court denied the motion, holding that the Stipulation is unenforceable to the extent that it waives the protections of the rent laws.

The Appellate Division reversed and dismissed the complaint (211 AD3d 473 [1st Dept 2022]). Relying on Kent v Bedford Apartments Co. (237 AD2d 140 [1st Dept 1997]), the court concluded that although an agreement by a tenant to waive the benefit of any provision of the rent control law is void, this protection did not apply to McKinney because he was not an established tenant when he signed the Stipulation. The Appellate Division also concluded that because Liggett's claim implicates how rents are set, it is akin to an FMRA and therefore barred by the statute of limitations (see 9 NYCRR 2522.3 [c]). Two Justices dissented, concluding that the Stipulation is void because it undermines the statutory process for setting initial regulated rents by ensuring McKinney would have no incentive to challenge the higher legal rent, and by requiring him to affirmatively waive his right to file an FMRA.

We now reverse.

ew York's Administrative Code provides a specific process for setting the initial rent of an apartment leaving rent control and entering rent stabilization. Under 9 NYCRR 2521.1 (a), the initial regulated rent "shall be the rent agreed to by the owner and the tenant and reserved in a lease or provided for in a rental agreement subject to [*2]the provisions of this Code, and subject to a tenant's right to a Fair Market Rent Appeal to adjust such rent pursuant to section 2522.3 of this Title." The right to file an FMRA is held only by the first tenant of a rent stabilized apartment, so long as that tenant received mailed notice of this right (see 9 NYCRR 2522.3 [a]).

The Code does not allow for waiver of its statutory protections. It expressly provides that "[a]n agreement by the tenant to waive the benefit of any provision of the RSL or this Code is void" (9 NYCRR 2520.13; see also 9 NYCRR 2200.15 ["An agreement by the tenant to waive the benefit of any provision of the Rent Law or these regulations is void"]).

The right to file an FMRA is one such "benefit . . . of the RSL." As with all of the RSL's protections, this right is meant "not to protect just a tenant, but to ensure the viability of the rent regulation system which protects tenancies in general, provides predictability to landlords, and significantly enhances the social, economic and demographic stability of New York City" (390 W. End Assocs. v Harel, 298 AD2d 11, 16 [1st Dept 2002]). The availability of an FMRA provides a crucial check on the initial rent for a rent stabilized apartment. Because that amount serves as the baseline against which subsequent rent increases are calculated, it can affect the apartment's subsequent status and in turn, the overall stock of rent stabilized apartments in New York City.

By securing McKinney's explicit agreement "not to challenge the rent," the Stipulation waived his right to file an FMRA. That bargain circumvented the statutory process, and consequently the Stipulation is void in its entirety as a matter of law (9 NYCRR 2520.13; see also Jazilek v Abart Holdings LLC, 10 NY3d 943, 944 [2008]; Riverside Syndicate, Inc. v Munroe, 10 NY3d 18, 22 [2008]). Because the Stipulation is void, Lew Realty's registration statement based on the Stipulation is as well, and therefore "neither party is entitled to rely on it" (id. at 24) and it cannot serve as the basis for deregulation. It remains to be determined whether the apartment was properly deregulated on some other ground.

In concluding otherwise, the Appellate Division majority relied on Kent v Bedford Apartments Co., which held that the RSL's prohibition of a waiver of rights did not apply to a plaintiff not yet established as a rent stabilized tenant (237 AD2d at 140). Kent, however, is inconsistent with our subsequent case law. In Riverside Syndicate, we examined an agreement whereby tenants "waive[d] all right to challenge the legality of the rent" and agreed to pay more than the allowable amount, in exchange for impermissibly retaining a rent stabilized apartment under circumstances barred by the RSL (10 NY3d at 21). We held the agreement was "on its face" a pact to " 'waive the benefit' of rent stabilization," and "therefore void" (id. at 22). Notably, the tenants in Riverside were not tenants of record, and their settlement, which was so-ordered by the court, resolved a holdover proceeding (id. at 23). We confirmed this point in Jazilek, overturning an Appellate Division decision that relied on Kent and holding that "[a]lthough tenant was not 'of-record' upon entering . . . the so-ordered stipulation violat[ing] the Rent Stabilization Code," nonetheless the agreement was "void as against public policy" (10 NY3d at 944; see also 390 W. End Assocs., 298 AD2d at 14 [enforcing settlements that contravene the RSL "would essentially allow any landlord to evade rent regulations by the mere expedient of a private agreement"]).

Kent is in direct tension with our holdings in Jazilek and Riverside, and we clarify that it is no longer authoritative. Contrary to Kent's conclusion, McKinney's status vis-à-vis the apartment has no bearing on whether the Stipulation was void. Rather, the Stipulation is void because it purports to waive a benefit of the rent laws. Accordingly, Kent provides no basis to dismiss Liggett's claims here. For the same reasons, the Stipulation is not enforceable simply because it resolved a dispute between McKinney and Lew Realty and may have inured to McKinney's benefit (see e.g. Riverside, 10 NY3d at 21-22; Drucker v Mauro, 30 AD3d 37, 38 [1st Dept 2006] ["an agreement in purported or actual settlement of a landlord-tenant dispute which waives the benefit of a statutory protection is unenforceable as a matter of public policy, even if it benefits the tenant"]).[FN2]

Nor does the statute of limitations require dismissal of this action. Such a bar "does not make an agreement that was void at its inception valid by the mere passage of time" (Riverside, 10 NY3d at 24; see also Thornton v [*3]Baron, 5 NY3d 175, 181 [2005] [lease "(r)eflecting an attempt to circumvent the Rent Stabilization Law in violation of the public policy of New York . . . was void at its inception"]).

In sum, despite concerns about the substantial delay between the Stipulation's execution and this litigation's commencement, no statute of limitations bars plaintiff's claim that the apartment is subject to rent stabilization. We hold that the Appellate Division erred in concluding otherwise and in deeming Liggett's complaint untimely. On remand, Lew Realty may rely on other reasons, apart from the Stipulation, to establish that the apartment was not rent stabilized when Liggett took tenancy, such as by establishing the fair rent of the apartment when it first entered rent stabilization in 2000 and applying subsequent allowable increases pursuant to the rent history (see e.g. 9 NYCRR 2522.4; 2522.8). We do not address any issue related to Liggett's rent overcharge claims, as those issues are not before us (see Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 35 NY3d 332, 351 n 4 [2020]).

Accordingly, the judgment appealed from and the Appellate Division order brought up for review should be reversed, with costs, and defendant's motion to dismiss the complaint denied.

Judgment appealed from and Appellate Division order brought up for review reversed, with costs, and defendant's motion to dismiss the complaint denied. Opinion by Judge Halligan. Chief Judge Wilson and Judges Rivera, Garcia, Singas, Cannataro and Troutman concur.

Decided June 20, 2024

Footnotes

Footnote 1: Though Lew Realty filed the initial rent as required, there was no litigated proceeding before DHCR, and Lew Realty does not invoke collateral estoppel here (cf. Gersten v 56 7th Ave. LLC, 88 AD3d 189, 201 [1st Dept 2011]).

Footnote 2: While the Rent Stabilization Code authorizes a tenant to withdraw a complaint where there is "a negotiated settlement between the parties and with the approval of the DHCR, or a court of competent jurisdiction, or where a tenant is represented by counsel" (9 NYCRR 2520.13), McKinney did not file a complaint with DHCR." 

ON ELDER ABUSE AND GUARDIANSHIPS

 

 

The Weinberg Center for Elder Justice, in partnership with Project Guardianship, is excited to announce our third-edition of “Elder Abuse in Guardianship Cases: A Legal Resource Guide.” Intended for professionals and judges working with older adults in the context of Mental Hygiene Law Article 81 guardianship proceedings, this updated guide provides detailed and comprehensive information to ensure guardianship proceedings are informed by an understanding of the dynamics of elder abuse and to maximize their effectiveness as an intervention to prevent and address harm.   For more information on The Weinberg Center’s work or inquiries related to this publication, please contact malya.levin@theweinbergcenter.org.

 

Sincerely,   The Weinberg Center for Elder Justice theweinbergcenter.org

NEW YORK LANDLORD TENANT LAW - THE GOOD CAUSE LAW

Enacted in April, Article 6-A of the Real Property Law has limited applicability right now in New York City. Other towns, cities, villages can opt-in (RPP 213) and when the statute applies, Section 216 provides:

"216. Grounds for removal of tenants. 1. No landlord shall remove a

Tenant from any housing accommodation covered by section two hundred

fourteen of this article, or attempt such removal or exclusion from
possession, notwithstanding that the tenant has no written lease or that
the lease or other rental agreement has expired or otherwise terminated,
except upon order of a court of competent jurisdiction entered in an
appropriate judicial action or proceeding in which the petitioner or
plaintiff has established one of the following grounds as good cause for
removal or eviction:

(a) (i) The tenant has failed to pay rent due and owing, provided
however that the rent due and owing, or any part thereof, did not result
from a rent increase which is unreasonable. In determining whether all
or part of the rent due and owing is the result of an unreasonable rent
increase, it shall be a rebuttable presumption that the rent for a
dwelling not protected by rent regulation is unreasonable if said rent
has been increased in any calendar year, after the effective date of
this article, or after the effective date of the local law in any
village, town, or city that enacts such local law to apply this article
to such village, town, or city pursuant to subdivision one of section
two hundred thirteen of this article, by an amount greater than the
local rent standard, provided further that no rent increase less than or
equal to the local rent standard shall be deemed unreasonable.

(ii) Whenever a court considers whether a rent increase is
unreasonable, the court may consider all relevant facts, including but
not limited to a landlord's costs for fuel and other utilities,
insurance, and maintenance; but in all cases, the court shall consider
the landlord's property tax expenses and any recent increases thereto;
such relevant facts also shall include whether the landlord, other than
in circumstances governed by paragraph (d) of this subdivision, seeks in
good faith to raise the rent upon a renewal lease to reflect completed
significant repairs to the housing accommodation, or to any other part
of the building or real property in which the housing accommodation is
located, provided that the landlord can establish that the repairs
constituted significant repairs and that such repairs did not result
from the landlord's failure to properly maintain the building or housing
accommodation, and provided further that for the purposes of this
subparagraph, "significantly repair" means the replacement or
substantial modification of any structural, electrical, plumbing, or
mechanical system that requires a permit from a governmental agency, or
abatement of hazardous materials, including lead-based paint, mold, or
asbestos in accordance with applicable federal, state, and local laws,
and provided further cosmetic improvements alone, including painting,
decorating, and minor repairs, do not qualify as significant repairs;

(b) The tenant is violating a substantial obligation of their tenancy
or breaching any of the landlord's rules and regulations governing said
premises, other than the obligation to surrender possession, and has
failed to cure such violation after written notice that the violation
cease within ten days of receipt of such written notice, provided
however, that the obligation of tenancy for which violation is claimed
was not imposed for the purpose of circumventing the intent of this
article and provided such rules or regulations are reasonable and have
been accepted in writing by the tenant or made a part of the lease at
the beginning of the lease term;

(c) The tenant is committing or permitting a nuisance in such housing
accommodation, or elsewhere in the building or on the real property in
which the housing accommodation is located, or is maliciously or by
reason of gross negligence substantially damaging the housing
accommodation, or causing substantial damage elsewhere in the building
or on the real property in which the housing accommodation is located;
or the tenant's conduct is such as to interfere with the comfort and
safety of the landlord or other tenants or occupants of the same or
another adjacent building or structure;

(d) Occupancy of the housing accommodation by the tenant is in
violation of or causes a violation of law and the landlord is subject to
civil or criminal penalties therefor; provided however that an agency of
the state or municipality having jurisdiction has issued an order
requiring the tenant to vacate the housing accommodation. No tenant
shall be removed from possession of a housing accommodation on such
ground unless the court finds that the cure of the violation of law
requires the removal of the tenant and that the landlord did not through
neglect or deliberate action or failure to act create the condition
necessitating the vacate order. In instances where the landlord does not
undertake to cure conditions of the housing accommodation causing such
violation of the law, the tenant shall have the right to pay or secure
payment in a manner satisfactory to the court, to cure such violation
provided that any tenant expenditures shall be applied against rent to
which the landlord is entitled. In instances where removal of a tenant
is absolutely essential to such tenant's health and safety, the removal
of the tenant shall be without prejudice to any leasehold interest or
other right of occupancy the tenant may have and the tenant shall be
entitled to resume possession at such time as the dangerous conditions
have been removed. Nothing herein shall abrogate or otherwise limit the
right of a tenant to bring an action for monetary damages against the
landlord or to otherwise compel compliance by the landlord with all
applicable state or municipal housing codes;

(e) The tenant is using or permitting the housing accommodation, or
elsewhere in the building or on the real property in which the housing
accommodation is located, to be used for an illegal purpose;

(f) The tenant has unreasonably refused the landlord access to the
housing accommodation for the purpose of making necessary repairs or
improvements required by law or for the purpose of showing the housing
accommodation to a prospective purchaser, mortgagee or other person
having a legitimate interest therein;

(g) The landlord seeks in good faith to recover possession of a
housing accommodation for the landlord's own personal use and occupancy
as the landlord's principal residence, or the personal use and occupancy
as principal residence of the landlord's spouse, domestic partner,
child, stepchild, parent, step-parent, sibling, grandparent, grandchild,
parent-in-law or sibling-in-law, when no other suitable housing
accommodation in such building is available, provided that no judgment
in favor of the landlord may be granted pursuant to this paragraph
unless the landlord establishes good faith to recover possession of a
housing accommodation for the landlord's own personal use and occupancy
as the landlord's principal residence, or the personal use and occupancy
as a principal residence of the landlord's spouse, domestic partner,
child, stepchild, parent, step-parent, sibling, grandparent, grandchild,
parent-in-law or sibling-in-law, by clear and convincing evidence. This
paragraph shall not apply to a housing accommodation occupied by a
tenant who is sixty-five years of age or older or who is a disabled
person;

(h) The landlord in good faith seeks to demolish the housing
accommodation, provided that no judgment in favor of the landlord may be
granted pursuant to this paragraph unless the landlord establishes good
faith to demolish the housing accommodation by clear and convincing
evidence;

(i) The landlord seeks in good faith to withdraw a housing
accommodation from the housing rental market, provided that no judgment
in favor of the landlord may be granted pursuant to this paragraph
unless the landlord establishes good faith to withdraw the housing
accommodation from the housing rental market by clear and convincing
evidence; or

(j) The tenant fails to agree to reasonable changes to a lease at
renewal, including increases in rent that are not unreasonable as
defined in paragraph (a) of this subdivision, as long as written notice
of the changes to the lease were provided to the tenant at least thirty
days, but no more than ninety days, prior to the expiration of the
current lease.

2. A tenant required to surrender a housing accommodation by virtue of
the operation of paragraph (g), (h), or (i) of subdivision one of this
section shall have a cause of action in any court of competent
jurisdiction for damages, declaratory, and injunctive relief against a
landlord or purchaser of the premises who makes a fraudulent statement
regarding a proposed use, removal from the rental housing market, or
demolition of the housing accommodation. In any action or proceeding
brought pursuant to this subdivision a prevailing tenant shall be
entitled to recovery of actual damages, and reasonable attorneys' fees.
Except as provided in this subdivision, nothing in this article shall
create a civil claim or cause of action by a tenant against a landlord.

3. Nothing in this section shall abrogate or limit the tenant's right
pursuant to section seven hundred fifty-one of the real property actions
and proceedings law to permanently stay the issuance or execution of a
warrant or eviction in a summary proceeding, whether characterized as a
nonpayment, objectionable tenancy, or holdover proceeding, the
underlying basis of which is the nonpayment of rent, so long as the
tenant complies with the procedural requirements of section seven
hundred fifty-one of the real property actions and proceedings law where
applicable."