Andrew J. Wagner, Partner

PREVIOUS EXPERIENCE

• London Paint & Wallpaper Co., Inc. v. Kesselman, ___AD3d___, 2018 NY Slip Op 00622, *1 [2018] (Successfully dismissed a claim of ownership and commercial tenancy rights in a valuable Chelsea building. Plaintiff claimed that his commercial monthly tenancy could not be terminated by the owner (his father) based on alleged verbal "Family Agreements," which purportedly gave him a leasehold and ownership interest in the building. He further alleged that his parents lacked mental capacity, and that his sister wielded undue influence over them. His complaint was dismissed on summary judgment, because his claims were factually and legally deficient, and were barred under the Statute of Frauds. The dismissal of the complaint was affirmed by the Appellate Division.)
• 811 Walton Rescue LLC v. 811 Walton Tenants Corp., 20578-17E, NYLJ 1202794949290, p.1 (Bronx Sup., August 3, 2017), (Successfully defeated a cooperative shareholder-tenant’s attempt to consolidate a nuisance holdover proceeding with a Supreme Court action.  The Supreme Court held that consolidation is not appropriate when the claims asserted in a Supreme Court action [i.e., termination of a shareholder-tenant’s lease based on nuisance claims required a notice to cure] may be interposed as defenses in a summary holdover proceeding.  Therefore, Civil Court is the preferred forum for this dispute.)
• Hamilton 65th Partners v. Smallbone, 652414/2015, NYLJ 1202770648871, at *1 (Sup., NY, Decided Oct. 11, 2016), Scarpulla, J. (Successfully defended a multimillion dollar claim for holdover rent against a commercial tenant.  Despite the existence of a holdover rent provision of 2 ½ times the rent reserved in the lease, the court concluded that the landlord’s claim was barred under the doctrines of waiver and estoppel based upon its failure to assert it in prior litigation between the parties and acceptance of rent for an extended period of time after the lease expired.).
• LAL Little Italy Mgmt. Co., LLC v. DeCorcho, 51688/14, N.Y.L.J. 202737081842, at *1 (Civ., Bx., Decided December 15, 2015) (Case established that a “Discount Rent Rider,” which states that a higher rent will be imposed if the rent is not paid on time, is legally unenforceable, since it is a scheme to establish an unconscionable late charge.).
• Clearview Gardens First Corporation v. Wicelinski, 702486/15, N.Y.L.J. 1202745899709, at *1 (Sup., Qu, Decided December 3, 2015) (Supreme Court action seeking to terminate a cooperative shareholder’s [a New York City police officer] proprietary lease, based upon his harboring his assigned K-9 Unit dog in his apartment, was dismissed).  As a result of the dismissal of the complaint, and his successful defense of the litigation, the shareholder was also awarded attorneys’ fees).
• RSP 86 Property LLC v. Sylvester, 47 Misc.3d 137(A), (App. Tm., 1st Dep't 2015) (Successfully defended a nonprimary residence holdover proceeding where tenant maintained two vacation homes. Since the tenant never sublet the apartment, received all of his mail there, voted from there, and received all of his medical treatment in New York, the court concluded that the tenant maintained the requisite ongoing physical nexus with the subject premises for living purposes, and dismissed the petition).
• 300 East 85th Housing Corp. v. Dropkin, 66597/2013, N.Y.L.J. 1202674471713, at *1 (Civ., NY, Decided October 9, 2014) (Shareholder-tenant’s motion for attorneys’ fees granted based upon co-op’s failure to restore holdover proceeding that was deemed dismissed if not restored within 45 days).
• 300 East 85th Housing Corp. v. Dropkin, 84231/2013, N.Y.L.J. 1202664851759, at *1 (Civ., NY, Decided July 24, 2014) (Nonpayment proceeding dismissed based upon the co-op’s failure to prove its prima facie case regarding charges for base maintenance, late charges, electricity charges, attorney’ fees and architectural fees).
• Lenox Gardens Apartment Corp v. Sandville, 58037/2012, N.Y.L.J. 1202657553838, at *1 (Civ., NY, Decided May 28, 2014) (94% attorney fee award obtained for successfully prosecuting an illegal use holdover proceeding in a co-op).
• Simens v. Darwish, 105 A.D.3d 686, 964 N.Y.S.2d 140 (1st Dep’t 2013) (Successfully defeated a Landlord’s attempt to consolidate a holdover proceeding he commenced with an unrelated Supreme Court action).
• Bellis v. Eisenberg, 65262/09, N.Y.L.J. 1202575096160, at *1 (Civ. NY, Decided September 21, 2012) (Successfully established succession rights to a rent-controlled apartment. In addition to documentary evidence typically used in these types of proceedings (e.g., tax returns, bank records, etc.), the Civil Court based its decision upon the testimony of members of Alcoholics Anonymous, who testified that the tenant was present at AA meetings near his apartment during the relevant time period).
• Fellenbaum v. Smallbone, Inc., L&T 87744/11, N.Y.L.J. 1202548406684, at *1 (Civ. NY, Decided March 28, 2012) (Successfully defended a commercial nonpayment proceeding. The proceeding was dismissed because a summary nonpayment proceeding cannot be maintained against a month-to-month tenant).
• 1974-76 Lafontaine Ave. Terrace Corp. v. Rogers, 29 Misc.3d 137(A), App. Tm., 1st Dep’t 2010. (Landlord entitled to attorneys’ fees as the prevailing party when it recovered 100% of rent arrears owed in a stipulation of settlement without any set-off or abatement).
• Amalgamated Dwellings, Inc. v. Blutreich, 28 Misc.3d 135(A), 957 N.Y.S.2d 634 (App.Tm. 1st Dep’t 2010) (The first appellate decision that determined that “objectionable conduct” is a noncurable lease default, and, therefore, no notice to cure is required to be served).
• Hampshire Owners Corp. v. Sullivan, N.Y.L.J. Feb. 24, 2009, p. 28., col. 3 (Civ. Ct., Queens Co.) (Cooperative shareholder-tenant entitled to legal fees incurred in successfully defending a nonpayment proceeding by establishing a breach of the warranty of habitability. The award included fees incurred pre-litigation as well).
• 1410 Ave. S Owners Corp. v. Chimarev, 27 Misc.3d 144(A), 911 N.Y.S.2d 694 (App. Tm., 2nd Dep’t 2008) (93% attorney fee award obtained for successfully prosecuting an illegal sublet holdover proceeding).
• Blutreich v. Amalgamated Dwellings, Inc., 46 A.D.3d 352, 847 N.Y.S.2d 557 (1st Dep’t 2007) (Successfully defeated shareholder-tenants’ attempt to consolidate a “Pullman” holdover proceeding with a Supreme Court action. The Appellate Division held that consolidation is not appropriate when the claims asserted in a Supreme Court action (i.e., termination of shareholder-tenants’ lease was in bad faith and not in accordance with the cooperative corporation’s governing documents), may be interposed as defenses in a summary holdover proceeding. Therefore, Civil Court is the preferred forum for this dispute.)