LANDLORDS SUE RENT-STRIKING TENANTS New York Law Journal, November 26, 2001 by Tom Perrotta

Landlords in lower Manhattan are suing tenants who have refused to pay rent since the attacks on the World Trade Center wreaked havoc on their neighborhood.

More than a dozen suits seeking eviction and overdue rent have been filed in New York City Housing Court over the last few weeks, mostly against tenants who remain in their apartments but have called rent strikes or withheld payment. A few suits involve tenants who have simply left their homes behind.

On Monday, an attorney for some of these tenants filed eight countersuits against the owners of 88 Greenwich St., 32 Pearl St. and 100 John St. The suits allege that the apartments are uninhabitable and cite numerous lingering hazards related to the Sept. 11 attack, such as rodent infestation, asbestos and other toxic substances, dirt and dust, noise, and loss of heat and hot water. The suits seek a jury award on the warranty of habitability claims as well as court costs and legal fees.

"There's going to be hundreds of these over the next several weeks," said Jack L. Lester, who is representing tenants at 88 Greenwich, 100 John St., 32 Pearl St., 50 Battery Park Place, Gateway Plaza and 75 Nassau St. He said the parties are scheduled to appear in court Nov. 29 for one of the countersuits against 88 Greenwich LLC.

Tension between landlords and tenants has been building since residents were evacuated from the area after the twin towers fell, engulfing block after block in debris and dust. Landlords have uniformly agreed not to charge residents for any time they were prevented from entering their apartments. Many buildings in and around Battery Park have offered reduced rents for the remainder of leases or subsequent leases, and some have allowed tenants to break leases without penalty or for the price of a month's rent.

To many tenants, though, the offers have not been good enough. Some have insisted on the option to break leases without penalty if they give 30 days' notice. Others want landlords to pay for more environmental tests as conflicting reports about air safety pile up. Some are seeking abatements of up to 50 percent, and many offer tales of apartments that have been hastily or improperly cleaned and repaired since the attacks (NYLJ Oct. 22).

Joseph Burden of Belkin Burden Wenig & Goldman, who is representing 88 Greenwich LLC, the owner of 88 Greenwich St., said he had not yet seen the countersuit. He said his clients have authorized actions against 25 to 30 tenants, and so far he has filed about a dozen suits.

A fellow attorney at his firm, Martin T. Meltzer, is working with Mr. Burden on possible suits at 32 Park Row. According to court documents, Mr. Meltzer filed a suit against a tenant late last month on behalf of William & Pearl Partners LLC, the owner of 32 Pearl St. Mr. Meltzer said he has filed several suits for clients and has about 30 others pending.

"I think the landlord has been very reasonable in offering a 20 percent abatement," Mr. Burden said of 88 Greenwich LLC. The owner has also as offered to allow tenants out of their leases in exchange for losing their security deposit. "Landlords can't understand why tenants are going forward with this," he said of the strikes and suits. He said tenants could win suits based on warranty of habitability claims and still end up with lesser offers than they have now.

Litigation Surge

The prospect of post-attack housing litigation being filed in bulk has caught the attention of court officials. Ernest J. Cavallo, the deputy administrative judge for housing, said the Housing Court two weeks ago began distributing a 47-page booklet for non-lawyers that addresses questions related to the attacks, such as what to do if a tenant cannot be found or if a relative of a deceased tenant needs to get into an apartment to collect samples for DNA testing.

Fern Fisher-Brandveen, the administrative judge for civil courts citywide, said she was expecting a surge in this type of litigation, and not just in Manhattan. She said the cases would likely be more complicated than similar disputes not related to the attacks and would present novel legal issues.

Judge Fisher-Brandveen said a special housing part has been set up for people called up to military duty, but there are no plans as of yet to consolidate all World Trade Center cases related to housing under one judge. She said one of the court's present judges, rather than an additional one, will preside over the military part.

"We will make a special part if necessary," Judge Fisher-Brandveen said. "That could have positives and negatives for both sides. It could be overwhelming."

Mr. Lester and Mr. Burden both agree that the Housing Court most likely will group together suits by building, but Mr. Lester said he believes it would be best to consolidate all warranty of habitability suits related to the attacks.

"There are thousands of tenants affected by this and it's all the same issue," Mr. Lester said. Without a system in place to streamline the proceedings, he said, decisions could be inconsistent and eventually bog down the Appellate Term, First Department.

Mr. Burden disagreed. "I think consolidating all the cases downtown would be somewhat difficult because each building is unique," he said. Some, for example, are rent-stabilized; others have more damage than others. Also, he said, disputes could arise over which judge was selected to hear the cases.

Asked to assess the fate of most of these disputes, Daniel Finkelstein of Finkelstein Newman, a tenant lawyer and the author of Landlord and Tenant Practice in New York (West Group, 1997), said he believes most of them will be settled. But he also thinks sympathy for victims of the attacks may bring changes to landlord-tenant law.

"The law is going to evolve," he said. "Warranty of habitability is going to be affected and probably broadened a little bit."