Wainscott Tenant Fights Ejectment Proceeding Amid Eviction Moratorium
Updated: May 1, 2022
By Brendan J. O’Reilly
Despite New York State’s eviction moratorium remaining in place through August 31, a tenant in Wainscott faces an ejectment proceeding in State Supreme Court that seeks to immediately remove her and her family from the house she leased, so the landlord can close on its sale by Labor Day.
The landlord also is seeking more than $1 million in damages should the pending sale of the house fall through due to the tenant staying past the closing date.
However, the tenant may have every right to remain in the house for another 11 months, regardless of the eviction moratorium.
The tenant’s pro bono attorney says that the landlord only gave the tenant 60 days’ notice that the lease would not be renewed — but 90 days is required under the state’s Housing Stability and Tenant Protection Act of 2019. He says the inadequate notice means the lease, which expired on June 30, automatically renews for a year.
The attorney for the landlord disagrees.
The renter is Lina Loaiza, a bus driver for Springs School for the past 14 years who has lived in the East Hampton area since 2004. She’s rented the house for five years and lives there with her 81-year-old mother and her 12-year-old daughter, plus her sister and brother-in-law and their child.
Her mother has high blood pressure and her sister has a pacemaker and was in a coma last year, Ms. Loaiza said during a recent interview facilitated by a translator.
Ms. Loaiza said she has always been up to date on her rent, sometimes even paying early. She had been paying $3,500 monthly since moving there in 2016. But during the pandemic the monthly rate was raised to $4,000.
In April, her landlord, Frank Dalene, told her he planned to sell the house and offered her the first opportunity to buy it. She said it was too expensive — more than $1 million.
In text messages to Ms. Loaiza sent in April, Mr. Dalene was sympathetic to her situation and said he would not require her to move out during the summer, the most difficult time to find new housing. He said she would have until Labor Day, September 6.
Mr. Dalene sent a notice of nonrenewal on April 29, and on May 18 he asked Ms. Loaiza to sign a rider to her lease agreement that would extend her tenancy through September 6.
Ms. Loaiza had the agreement reviewed by OLA of Eastern Long Island, an advocacy nonprofit based in East Hampton, and an OLA social worker told her not to sign it. Ms. Loaiza learned that the agreement would have meant signing away her rights to defend herself from an eviction proceeding if she hadn’t found another place to live by September 6. She also would have been responsible to pay damages to Mr. Dalene if the sale of the house fell through, the rider states.
When they met in person on the last day of her lease, June 30, Ms. Loaiza said she gave Mr. Dalene a check for July’s rent and told him that she had every intention of moving out by September 6, but said she did not have the money to be on the hook for damages if she couldn’t find another place to live.
“When I told him that, he changed,” she said. “He got really mad.”
She said he threatened to damage her reputation in the community and that he would not give her good references. When she cried, he got even worse, she said.
Two days later, a “notice to quit” was taped to the front door, scaring her daughter, she said.
The notice to quit, prepared by Mr. Dalene’s attorney, Lee Mendelson, named the occupants of the house and said they were trespassing and would be responsible for all legal fees incurred by the landlord and for damages related to the inability to close on the sale of the house. The notice stated that “damages will be in excess of $1 million.”
In a letter returning the check for July rent, Mr. Mendelson wrote, “Your lease has been terminated. No rent will be accepted. You are in violation of the law.”
It was after the notice to quit was posted that Ms. Loaiza got in touch with Jack Lester, a tenant advocacy lawyer who does pro bono work through OLA, and sent Mr. Dalene a hardship declaration. Under the state eviction moratorium, a tenant can give a landlord a hardship declaration to stop eviction proceedings until the moratorium expires.
In a July 8 text responding to Ms. Loaiza’s hardship declaration, Mr. Dalene wrote: “I am shocked, shame on you for lying. You said you know your rights but this isn’t about rights, this is about lying. Lying on a court document is perjury, a criminal offense. Is this worth the risk of your entire household going to jail? Having a criminal record? You kept telling me you are not a bad person, no, you are very bad, very evil.” He also told her that she was trespassing and risking her reputation in the community.
He also sent her a photo of her July rent check and wrote, “This is hard evidence you have no hardship. What will the judge say when he sees this check? Guilty!”
During her interview, Ms. Loaiza explained that her family’s hardship is not financial but health-related: namely, her mother’s and sister’s health problems. “And then, it’s very difficult to find another place to live,” she added.
She said she is in touch with real estate agents who are still looking for housing for her, and she checks the real estate pages daily, plus newspapers and local Facebook groups like Bonac Rentals, and she posted a notice at her job. “To every member of the community that I meet, I always ask them, if they know about something, please let me know,” she said.
While her current rent payments amount to $48,000 annually, she said the best price she can currently find for a two-bedroom home is $75,000 per year.
“I’ve been looking since the moment he told me he was planning on selling the house — all that time, I haven’t stopped,” Ms. Loaiza said.
New York State’s hardship declaration form has an option for tenants to check off a box for “difficulty I have securing alternative housing.” Regarding health-related hardship, the form gives the tenant the option to check a box that states, “Vacating the premises and moving into new permanent housing would pose a significant health risk because I or one or more members of my household have an increased risk for severe illness or death from COVID-19 due to being over the age of sixty-five, having a disability or having an underlying medical condition, which may include but is not limited to being immunocompromised.”
Ms. Loaiza may have a new place to live lined up for December, but she still is looking for a place to move to before the closing date in September
Mr. Lester believes she is not required to move out for quite some time, because the 60 days’ notice she received was insufficient. “Notice has to be 90 days before the lease terminates, and it has to be in writing,” he said. The notice is therefore defective and it cannot be corrected, he explained.
Even though Ms. Loaiza could remain until June 30, 2022, according to Mr. Lester, she is not planning to exercise that right. “She’s acting in good faith as a kind human being, while the landlord is acting like a monster,” Mr. Lester said.
He accused Ms. Dalene of violating the statutory provisions that protect tenants during the pandemic. “He was trying to bully his way into getting Lina to leave and didn’t anticipate that Lina would have the support of OLA and legal counsel,” he said. “And I think now that he’s seeing that there’s pushback, he may want to take a second look at what he’s doing.”
Mr. Mendelson maintained that Mr. Lester is mistaken regarding whether the notice of nonrenewal was adequate. “That’s why we have courts,” he added.
Mr. Dalene, the property owner, is the president and CEO and Telemark, a luxury home builder.
He said his client is suing because he has a contract for the sale of that house that is contingent on the tenant leaving that property, and the tenant not leaving puts the sale in jeopardy.
“My client’s been living out here for 35 years. He is not some big-time investor or anything like that,” Mr. Mendelson said. “He has a business out here, and as part of his retirement planning he needs to sell the house. It’s not that big a deal. And the tenant whose lease has expired refuses to leave. He’s the one who is suffering here, and he’s the one who is in jeopardy of losing a sale of the home.”
He added, “If the attorney or the tenants think they have such a good case, why are they trying to smear my client in the press by making these wild accusations against him? Why don’t they just respond to the legal papers?”
Mr. Lester said a response was filed on Tuesday.
Ms. Loaiza said she doesn’t want Mr. Dalene to feel attacked, but she has been treated unfairly and is looking for help and protection.
Minerva Perez, the executive director of OLA, said that before the pandemic, tenants who were threatened with having to pay legal fees and the like if they failed to move often ran off to go live someplace else. But now there is literally no place for them to run to.
She advised tenants to never sign anything if they feel pressured and to consult a lawyer or go to OLA.
Ms. Perez noted that OLA is contracted with Suffolk County to help tenants and landlords obtain federal Emergency Rental Assistance Program funds for up to 15 months of overdue rent. However, she said, many landlords will not participate because they don’t want to fill out a W-9 and pay taxes on the income.
“We don’t want to see landlords evicting people for nonpayment when they’re eligible to receive up to 15 months of rent,” Ms. Perez said. “That’s unconscionable.”