Weisent v Subaqua Corp.

[*1] Weisent v Subaqua Corp. 2007 NY Slip Op 51428(U) [16 Misc 3d 1115(A)] Decided on July 5, 2007 Supreme Court, New York County Kapnick, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 5, 2007
Supreme Court, New York County

Dawn Weisent, Plaintiff,

against

Subaqua Corp., Defendant.



102108/07

Barbara Kapnick, J.

In this action, plaintiff Dawn Weisent seeks a judgment declaring that she is entitled to succeed to the rent stabilized tenancy of her deceased life partner, Raft Cooper, at 334 West 17th Street, Apt. 5E, New York, New York, because she is a "non-traditional remaining family member" within the meaning of Rent Stabilization Code § 2523.5(b)(1).

In the alternative, plaintiff alleges that she is entitled to a lease in her own name because she signed at least three renewal leases as the co-tenant of Raft Cooper (i.e., in 1994, 1998 and 1999) and said renewals were accepted by the defendant-landlord Subaqua Corp.

Plaintiff now moves by Order to Show Cause for a preliminary injunction barring the defendant from commencing a summary eviction proceeding against her in the New York City Housing Court during the pendency of this action.

Although plaintiff does not dispute that the Housing Court is the preferred forum for resolving landlord-tenant disputes (see, Post v. 120 East End Ave. Corp., 62 NY2d 19 [1984], plaintiff argues that she will suffer irreparable harm if defendant is permitted to proceed against her in the Housing Court as a result of a routine, but little known practice by the Office of Court Administration ("OCA").

For some reason, it appears that OCA sells Housing Court eviction case data electronically to companies known as "tenant screening bureaus" ("TSBs"),[FN1] who, in turn, use this data to prepare tenant screening reports which they then sell to other companies and to prospective landlords.

In White, et ano. v. First American Registry, Inc., 2007 WL 703926 (S.D.NY), a class action [*2]brought against the nation's largest TSB, District Court Judge Lewis A. Kaplan observed that risk averse landlords are all too willing to use such consumer reports' as a blacklist', "refusing to rent to anyone whose name appears on it regardless of whether the existence of a litigation history in fact evidences characteristics that would make one an undesirable tenant."

The TSBs "have seized upon the ready and cheap availability of electronic records to create and market a product that can be, and probably is, used to victimize blameless individuals." Id. "The problem is compounded by the fact that the information available" from the Housing Court "is sketchy in the best of cases and inaccurate and incomplete in the worst." Id.; see also, Note, Tenant Screening Thirty Years Later: A Statutory Proposal to Protect Public Records, 116 Yale L.J. 1344 (April 2007).

Thus, regardless of whether or not a tenant prevails in the Housing Court, his or her name may appear on the blacklist', making "the finding of a rental apartment potentially very difficult if not impossible", particularly for a tenant of relatively modest means (Pultz v. Economakis, 8 Misc 3d 1022[A], *7 [Sup. Ct., NY Co. 2005][Feinman, J.], citing DeCastro v. Bhokari, 201 AD2d 382 [1st Dep't 1994]; see also, Ponce v. Sag Freshpond, LLC, Supreme Court, Queens Co., Index No. 15421/06, September 13, 2006 [Agate, J.]).

Therefore, based on the papers submitted and the oral argument held on the record on March 14, 2007, this Court finds that plaintiff has demonstrated she will suffer irreparable harm if the injunctive relief sought is not granted.[FN2]

This Court further finds that plaintiff has demonstrated a likelihood of success on the merits and that the balance of equities lies in her favor. See, W.T. Grant Co. v. Srogi, 52 NY2d 496 (1981).

Accordingly, the Order to Show Cause is granted, and defendant is hereby enjoined during the pendency of this action from commencing a summary eviction proceeding against the plaintiff in the Housing Court, on condition that plaintiff pay use and occupancy for the premises at the last rent stabilized amount of $523.38 per month, commencing on August 1, 2007 and continuing pendente lite without prejudice to either party.

Pursuant to the terms of the parties' Stipulation Extending Time to Answer dated May 15, 2007, defendant shall serve an Answer within 20 days of service of a copy of this order with notice [*3]of entry.

Counsel shall appear for a preliminary conference in IA Part 12, 60 Centre Street, Room 341 on August 29, 2007 at 9:30 a.m.

This constitutes the decision and order of this Court.

Date:July , 2007__________________________

Barbara R. Kapnick

J.S.C. Footnotes

Footnote 1:OCA does not provide court records to TSBs regarding cases pending in the Supreme Court.

Footnote 2:Defendant argues that plaintiff's request is moot because she was already named as a party to two prior proceedings and thus her name presumably already appears on the blacklist'.

However, it appears that the record of one case which dealt with a commercial premises, rather than a residential one, was or will be expunged pursuant to the terms of the settlement in the federal class action (White v. First American Registry, Inc., supra). In addition, it appears that plaintiff's name does not appear on the blacklist' as a result of the other proceeding because she was sued therein as an undertenant and OCA electronically transfers to the TSBs the names of the primary tenants only.