Appellate Advocacy

At Horing Welikson Rosen & Digrugilliers, P.C., our clients are represented by attorneys who are highly-educated and experienced in the art of drafting and arguing appellate briefs before the courts of New York State, as well as in Federal courts, with respect to each of the firm’s main practice areas.

The firm has successfully represented landlords in numerous precedent-setting appellate cases dealing with the rights of landlords in housing and administrative law. Significant cases handled with success by the attorneys of Horing Welikson Rosen & Digrugilliers, P.C. include, but are not limited to:

• Regina Metropolitan Co., LLC v. New York State Division of Housing and Community Renewal, 35 N.Y.3d 332, 130 N.Y.S.3d 759 (2020): In this landmark case, the Court of Appeals ruled against applying the recently enacted Housing Stability and Tenant Protection Act of 2019 (HSTPA) to pending rent overcharge complaints.
• Watkins v. Alpert, 180 F. Appx. 295 (2nd Cir. 2006): Bankruptcy court order lifted automatic stay thereby permitting landlord and creditors to enforce their rights through state-court proceedings to evict tenant. U.S. Federal District Court affirmed order of the bankruptcy court. Tenant appealed, and United States Court of Appeals, Second Circuit, affirmed the decision of the District Court.
• Sandlow v. 305 Riverside Corp., 2022 N.Y. Slip Op. 00023 (App. Div. 1st Dept. 2022): The Appellate Division, First Department, overruled the Supreme Court’s after trial judgment for rent overcharge, plus interest, of approximately $1,000,000.00.  The overcharge judgment was vacated on appeal in its entirety.
• Fairfield Beach 9^th LLC v. Shepard-Neely, 74 Misc.3d 14, 2021 N.Y. Slip Op. 21339 (App. Term 2nd Dept. 2021): Landlord awarded a final judgment of possession against a rent stabilized tenant who failed to renew her lease. Appellate Term, Second Department affirmed the judgment for landlord, determining that a rent-stabilized tenancy cannot be monthly after expiration of lease term because the rights and responsibilities under a month-to-month tenancy cannot be reconciled with the respective rights and responsibilities of a landlord and tenant of a rent-stabilized apartment.
• Fuentes v. Kwik Realty LLC, 186 A.D.3d 435, 130 N.Y.S.3d 16 (App. Div. 1st Dept. 2020): The Appellate Division, First Department, held that a landlord’s failure to retain records not required to be maintained indefinitely is not evidence of a fraudulent scheme to deregulate a rent stabilized apartment.
• Corcoran v. Narrows Bayview Company, LLC, 183 A.D.3d 511, 125 N.Y.S.3d 404 (App. Div. 1st Dept. 2020): The Appellate Division, First Department held that, in action for rent overcharge, rent was required to be calculated utilizing rent charged four years prior to filing of the tenant’s complaint, thus rejecting numerous allegations by tenants.
• Empire Erectors and Electrical Co., Inc. v. Mogul Media, Inc., 170 A.D.3d 586, 94 N.Y.S.3d 849 (App. Div. 1st Dept. 2019): The Appellate Division, First Department determined that a sole corporate officer was not individually liable for alleged contract between the Plaintiff and Defendant corporation.
• Alston v. Starrett City, Inc., et. al., 161 A.D.3d 37, 74 N.Y.S.3d 211 (App. Div. 1st Dept. 2018): Prospective tenants and housing advocacy group brought action against owner of apartment complex, alleging that refusal to accept rent vouchers was source of income discrimination under the NYC Human Rights Law. The Appellate Division, First Department, held that preliminary injunction requiring owner to accept tenants with rent vouchers under City program violated Urstadt Law’s proscription against expanding number of housing units subject to regulation.
• In re Austin, 161 A.D.3d 675, 78 N.Y.S.3d 308 (App. Div. 1st Dept. 2018): Tenants brought Article 78 proceeding, seeking writ of prohibition against enforcement of housing court order granting landlord’s motion to re-execute on warrant of eviction. The Appellate Division, First Department, affirmed the supreme court’s order ruling that the landlord was permitted to re-execute the warrant of eviction.
• Cunningham Associates, L.P. v. Peterson, 2 Misc.3d 686 N.Y.S.3d 369 (App. Term 2nd Dept. 2018): The Appellate Term, Second Department, reversed housing court’s incorrect dismissal of landlord’s eviction proceeding when it held that landlord was not required to serve tenant with a notice to cure her failure to renew her rent-stabilized lease before initiating holdover proceedings.
• Stoner v. Atlantic Realty Apts., LLC, et al., 154 A.D.3d 552, 61 N.Y.S.3d 899 (Mem) (App. Div. 1st Dept 2017): The Appellate Division, First Department, affirmed the dismissal of Plaintiff’s complaint due to his failure to exhaust administrative remedies.
• Stultz v. 305 Riverside Corp., 150 A.D.3d 558, 56 N.Y.S.3d 46 (App. Div. 1st Dept. 2017): Landlord properly relied on rent charged on the base date in refunding overcharge payment; overcharge was based on Roberts v. Tishman Speyer, L.P. ruling, thus legal fees were properly denied.

• Velasco v. 34-06 73^rd Street, LLC, 122 A.D.2d 724, 994 N.Y.S.2d 864 (App. Div. 1st Dept. 2014): The Appellate Division, First Department, affirmed after-trial ruling seller of co-op apartment was entitled to retention of down-payment.
• 445 East 80^th Street Tenants’ Association v. DHCR, 107 A.D.3d 467, 967 N.Y.S.2d 335 (App. Div. 1st Dept. 2013): The Appellate Division, First Department, affirmed DHCR’s award of a major capital increase (“MCI”) in favor of landlord for installation of new windows.
• 441 Convent LLC v. Stafford, 101 A.D.3d 479, 954 N.Y.S.2d 867 (App. Div. 1st Dept. 2012):  The Appellate Division, First Department, affirmed the landlord’s judgment of possession after trial; occupant failed to prove contemporaneous occupancy with tenant for at least two years as well as requisite familial type interdependence.
• Mayflower Development Corp. v. Deri, 36 Misc.3d 128(A), 953 N.Y.S.2d 550 (App. Term 1st Dept. 2012): The Appellate Term, First Department, determined tenant’s pre-answer motion to dismiss the landlord’s holdover petition should have been denied and the petition was lawful. Landlord demonstrated that tenants were given the requisite lease notice that the apartment would be deregulated upon the expiration of the J-51 tax abatement period.
• Cosmopolitan Associates, LLC v. DHPD, 37 Misc.3d 31, 952 N.Y.S.2d 864 (App. Term 2nd Dept. 2012): The Appellate Term, Second Department, held that a landlord was entitled to recover rent subsidy payments improperly recouped by the Department of Housing Preservation and Development (DHPD) acting as a public housing authority, after DHPD failed to provide proper notice that subsidy was being terminated.
• Clermont York Associates v. Feher, 31 Misc.3d 10, 919 N.Y.S.2d 265 (App. Term 1st Dept. 2011): Landlord commenced a holdover proceeding against a rent-stabilized tenant. Appellate Term, First Department affirmed the Civil Court, New York County’s order granting landlord a possessory judgment as well as use and occupancy based upon tenant’s lease violation.
• Marine Terrace Associates v. Kesoglides, 24 Misc. 3d 35, 884 N.Y.S.2d 552 (App. Term 2nd Dept. 2009): The Appellate Term, Second Department, determined that the deceased tenant’s estate was not a necessary party to landlord’s licensee proceeding against occupant.
• Atlantic Mutual Insurance Company v. Campaniello Enterprises, Inc., 41 A.D.3d 187, 838 N.Y.S.2d 502 (App. Div. 1st Dept. 2007): Factual issues warranted denying summary judgment to insurer as to amount of premium allegedly due.
• Board of Managers of 225 East 57^th Street Condominium v. Campaniello Real Estate, 41 A.D.3d 163, 837 N.Y.S.2d 644 (App. Div. 1st Dept. 2007): The Appellate Division, First Department, held that a party cannot be compelled to proceed to arbitration with respect to matters it has not agreed to arbitrate, and the arbitration award was properly vacated.
• 3657 Realty Co. v. Jones, 18 Misc.3d 82, 852 N.Y.S.2d 570 (App. Term 1st Dept. 2007): The Appellate Term, First Department upheld trial court’s ruling after trial that the premises was not tenant’s primary residence; final judgment of possession in favor of owner affirmed.
• Velazquez v. Equity LLC, 28 A.D.3d 473, 814 N.Y.S.2d 182 (App. Div. 2nd Dept. 2006): The Appellate Division, Second Department, determined that the Plaintiff was not entitled to specific performance on cooperative purchase contract where Plaintiff failed to show he was ready, willing, and able to close on the closing date.
• Smith v. Tenshore Realty, Ltd., 31 A.D.3d 741, 820 N.Y.S.2d 292 (App. Div. 2nd Dept. 2006): In an action to compel specific performance, the Appellate Division, Second Department, ruled that the plaintiff’s complaint should have been dismissed since a letter requesting the extension of mortgage contingency cancellation date under a real estate purchase contract, which also attempted to cancel the contract in the same letter if the extension is not granted, is an anticipatory breach of the contract of sale.
• Klein v. DHCR, 17 A.D.3d 186, 795 N.Y.S.2d 520 (App. Div. 1st Dept. 2005): Appellate Division, First Department, held that the Landlord provided adequate notice to tenants regarding the decontrol of tenant’s apartment, denying the tenant’s Article 78 Petition and dismissing the DHCR proceeding, which sought to remand the matter, finding in favor of Landlord.
• Benroal Realty Associates, L.P. v. Lowe, 9 Misc.3d 4, 801 N.Y.S.2d 114 (App. Term 2nd Dept. 2005): The Appellate Term, Second Department, affirmed landlord’s possessory judgment after trial when it determined the tenant’s apartment was not rent stabilized despite landlord mistakenly registering as such since rent regulation cannot be created by waiver or estoppel.
• Station Square Inn Apartments Corp. v. Reiner & Kaiser Associates, 8 A.D.3d 258, 777 N.Y.S.2d 675 (App. Div. 2nd Dept. 2004): The Appellate Division, Second Department, held that where landlord was the successful party, it was entitled to recover reasonable attorneys’ fees.
• Brea v. Jackson Heights Properties, et. al., 281 A.D.2d 579, 723 N.Y.S.2d 49 (App. Div. 2nd Dept. 2001): The Appellate Division, Second Department, held that where the new owner did not take title until all proceedings pertaining to a rent overcharge were completed, it was not liable for DHCR’s finding of a rent overcharge.
• 88-09 Realty LLC v. Hill, 190 Misc.2d 286, 737 N.Y.S.2d 227 (App. Term 2nd Dept. 2001): The Appellate Term, Second Department determined that the landlord was entitled to final judgment of possession based on apartment’s use for sale of narcotics; inference was that tenant acquiesced in or had knowledge of the situation.
• Rox River 83 Partners v. Ettinger, 276 A.D.2d 782, 715 N.Y.S.2d 424 (App. Div. 2nd Dept. 2000): The Appellate Division, Second Department held that, in a dispute over proper service of process, the process server’s testimony was not necessary, his affidavit of service was admissible and service was proper.
• Sendowski v. DHCR, 227 A.D.2d 55, 651 N.Y.S.2d 448 (App. Div. 1st Dept. 1996): Landlord brought Article 78 petition challenging DHCR’s award of overcharge and treble damages to tenant for landlord’s failure to register rent-controlled apartment. The Appellate Division, First Department, held that the imposition of treble damages was arbitrary, capricious and an abuse of discretion.
• 32-05 Newton Avenue Associates v. Hailazopolous, 168 Misc.2d 125, 645 N.Y.S.2d 260 (App. Term 2nd Dept. 1996): The Appellate Term, Second Department, held payment of rental arrears alone did not constitute good cause to vacate warrant of eviction.
• Sherry House Associates v. Kaye, 167 Misc.2d 729, 643 N.Y.S.2d 881 (App. Term 1st Dept. 1996): Landlord commenced a holdover proceeding against rent-stabilized tenant based on illegal subletting. Civil Court, New York County erred when it dismissed the proceeding upon the ground that tenants’ original lease did not contain a clause restricting subletting. Supreme Court, Appellate Term, ultimately held for landlord, finding the rent stabilization statute governed subletting in absence of clause restricting subletting in original lease.
• Loira v. Anagnastopolous, 204 A.D.2d 608, 612 N.Y.S.2d 189 (App. Div. 2nd Dept. 1994): Appellate Division, Second Department, held that the daughter of the tenant could be removed from possession via a judgment issued in a summary proceeding, even though she was not a party.
• Otiniano v. Magier, 181 A.D.2d 438, 580 N.Y.S.2d (App. Div. 1st Dept. 1992): In affirming dismissal of tenant’s complaint, the Appellate Division, First Department held that an oral agreement for a five-year commercial lease was unenforceable due to the Statute of Frauds.
• JRD Management Corp. v. Eimicke, 148 A.D.2d 610, 539 N.Y.S.2d 667 (App. Div. 2nd Dept. 1989): DHCR awarded a tenant a rent rollback after the landlord failed to submit leases revealing the rent history of a particular apartment. Landlord demonstrated that DHCR failed to act consistently with prior determinations in not deciding the underlying proceeding in accordance with the law in effect at the time of the determination of the case, but rather applying the law as it existed at the time the initial rent overcharge complaint was filed without offering a rational reason for the lack of consistency. The Appellate Division, Second Department, determined the inconsistent application of the law was arbitrary and capricious, and must be reversed and remitted for a new determination.

Amicus Curiae was submitted by the firm in the following landmark appellate cases:

• Brookford, LLC v. DHCR, 142 A.D.3d 433, 36 N.Y.S.3d 39 (App. Div. 1st Dept. 2016): appeared amicus curiae for Rent Stabilization Association of N.Y.C., Inc. (RSA) and Community Housing Improvement Program (CHIP).
• SP 141 E 33 LLC v. DHCR, 91 A.D.3d 575, 937 N.Y.S.2d 220 (App. Div. 1st Dept. 2012): appeared amicus curiae for Community Housing and Improvement Program (“CHIP”).
• Grimm v. New York State Division of Housing & Community Renewal Office of Rent Admin., 15 N.Y.3d 358, 912 N.Y.S.2d 491 (2010): submitted amicus curiae brief to Court of Appeals on behalf of the Community Housing Improvement Program (CHIP), which was integral in modifying the language utilized by the Appellate Division.
• Brusco v. Braun, 84 N.Y.2d 674, 621 N.Y.S.2d 291 (1994): submitted amicus curiae brief for The Black and Latino Property Owners Coalition and also for the Small Property Owners of New York (SPONY) and helped create the precedent that no inquest is required in a summary proceeding for non-payment prior to the court issuing a default judgment in landlord’s favor.
• Rent Stabilization Association of New York, Inc. v. Higgins, 164 A.D.2d 283, 562 N.Y.S.2d 962 (App. Div. 1st Dept. 1990): counsel for amicus curiae on behalf of the Community Housing Improvement Program (CHIP).

We have been advocating for our clients’ rights before the appellate courts for decades, and there is no issue too complicated or substantial that our attorneys can’t handle.

Contact us for a consultation about your appellate case today.