Opinion
070834/03.
Decided October 21, 2003.
Rodgers, Wughalter Kaufman by Eric Wughalter, Esq., for Petitioner.
Dwayne Gathers, pro se. for Respondent.
PROCEDURAL HISTORY
The underlying squatter holdover proceeding was first heard in Part I on 9/19/03 and again on 10/09/03. The matter was adjourned to 10/14/03 for trial. The trial was heard in Part D on 10/14/03 as scheduled.
TRIAL TESTIMONY
Petitioner Charmone Hodge testified that she holds the deed to the subject premises, a two family house located at 2238 Hermany Avenue in Bronx County. (Pet. Exhibit 1.) The petitioner stated that the respondent is known to her as "Dwayne" and she, for this reason, misspelled the respondent's last name as "Gaither" in the underlying holdover proceeding.
The petition describes the subject premises as a basement apartment. The petitioner testified that her garage was converted into a den apartment by the house's former owner, creating a third apartment in the two family house. At trial, the parties alternatively referred to the subject premises as a garage, den or basement apartment. For the purposes of this decision, the subject premises is called the "den" or "den apartment."
The parties agreed that Dwayne Gathers originally lived with the Campbell family in the second floor apartment. The petitioner does not live at the premises, and the identity of the first floor occupants was not disclosed. Ms. Hodge testified that her daughter lived in the den apartment through December 2002. After the daughter vacated the apartment, William, the petitioner's husband, hired the respondent to remove snow and garbage and gave him the den key.
Ms. Hodge testified that in March 2003 she found a mattress and containers in the den. She thereafter learned that the respondent moved into the den apartment. The petitioner categorically stated that neither she nor any agent accepted rent tendered by the respondent. She testified that she unsuccessfully tried to speak to the respondent for two months after initially discovering the mattress. In June, the petitioner turned to William, her husband, for help. During cross-examination, Ms. Hodge asserted that she didn't know whether her husband padlocked the den's entrance door on 6/28/03, three months after she allegedly found the mattress. The petitioner identified handwriting in a letter, addressed to the respondent and dated 7/30/03, as her husband's handwriting. (Resp. Exhibit C.) The letter reads:
To Dwayne: I no longer need your services. Please stay away from this property, or I will call 911 and have you arrested for trespassing.
7/30/03
Super and I also have a complaint out on you . . .
During cross-examination, Ms. Hodge acknowledged that the den door was padlocked when she visited the premises on either 8/09/03 or 8/10/03. The petitioner identified Respondent's Exhibit A as an accurate photograph of the den at the time that the door was padlocked. (Resp. Exhibit A). The photograph depicts a red brick facade with a horizontal white window and a white entrance door. The entrance door is protected by an attractive black security door. A long heavy metal chain and large padlock hang from the left side of the security door. Respondent Dwayne Gathers testified that the den apartment was padlocked twice during the week of July 29, 2003. The respondent stated that he "popped the lock" the first time and went to the police precinct when he was again locked out.
A police report dated and completed by the respondent on 7/29/03 describes the subject premises as 2238 Hermany Avenue, Bronx, New York 10472 but gives his mailing address as 2245 Randall Avenue, Apartment 9F, Bronx, New York 10473. (Pet. Exhibit 2.) The parties agreed that 1) there are three mailboxes at the premises, 2) the petitioner's daughter previously occupied the den apartment and 3) the den mailbox currently receives mail sent to the petitioner, her daughter, and the respondent. Given the nature of a lockout, the respondent's use of a different mailing address in the police report is not dispositive since the petitioner, her daughter and the respondent all share the same mailbox at the subject premises.
The respondent testified that he moved into the den apartment in either May or June 2002. Mr. Gathers testified that he requested a lease and agreed to pay $500 a month until unspecified repairs were completed. The rent, paid in cash at the petitioner's request, was placed each month in an envelope under the TV set. The petitioner and her husband used their keys to the den to collect the rent. A NYS non-driver identification card issued on 3/31/99 lists the respondent's home address as 2245 Randall Avenue, Apartment 12D, Bronx, New York 10473. (Pet. Exhibit 3.) This evidence on its own, however, is not dispositive in establishing that the respondent is a squatter.
LEGAL DISCUSSION
The Multiple Dwelling Law defines a multiple dwelling as "the residence or home of three or more families living independently of each other." MDL § 7. In her testimony, the petitioner conceded that the premises is a two family house with an third illegal basement apartment occupied by the respondent. The petitioner was cautioned at the outset that the underlying summary proceeding would be dismissed in the event that the Court determined that the petitioner created the illegal multiple dwelling. The petitioner argued that an exception exists where a squatter occupies an illegal apartment without the owner's knowledge or permission.
A squatter proceeding may be maintained where a person intrudes into a property, without the permission of the person entitled to possession, and the occupancy continues without permission.
(RPAPL § 713.) By contrast, a licensee proceeding may be maintained where a person entitled to possession of the property continues in possession after permission has been revoked, the license has expired, or the licensee is no longer entitled to possession. (RPAPL § 713.) In the First Department, a holdover petition may state alternative theories in describing the respondent as either a squatter or a licensee whose license has expired. (349 East 49th Street Equities v. Vought, NYLJ 5/27/82 at 5:4 [AT 1st Dept, Sparks, J.]; Newman v. Sirkin, 153 Misc2d 864 [NY County Civ Court, Omansky, J. 1992]; City of New York v. Various Named Occupants, NYLJ 12/22/93 at 24:4 [NY County Civ Ct, Malatzky, J.].) This view is not always followed in the Second Department. ( See e.g. City of New York v. Bullock, 159 Misc 2d 716 [Kings County Civ Ct 1993, Johnson, J.].)
The holdover petition in issue describes the respondent as a squatter: There is no alternative theory describing the respondent as a licensee. Here, the petitioner acknowledged that her husband gave the respondent the key to the den apartment after hiring him to remove snow and garbage from the property. Curiously, there is nothing in the record to indicate that the den apartment, previously used by the petitioner's daughter for residential purposes, reverted to a lawful non-residential use such as a garage, workspace, or storage area for tools or garbage. Rather, the single photograph in evidence shows an apartment dwelling with a brick facade, lovely entrance and security doors, and a wide picture window. (Resp. Exhibit A.) Significantly, there was no testimony about the compensation paid to the respondent for his work. Rather, the respondent was given a key to the den apartment.
CONCLUSION
The petitioner failed to prove by a preponderance of the evidence that the respondent is a squatter. The petitioner's testimony establishes that the respondent is a licensee who received permission to occupy the subject premises, an illegal basement apartment, in January 2003 as consideration for work. That permission was revoked when the petitioner's husband terminated the respondent's services, by letter dated 7/30/03, and cautioned him to "stay away from the property." (Resp. Exhibit C.)
This Court finds that the petitioner has unclean hands in creating an illegal multiple dwelling by permitting the respondent to live in the den apartment. The underlying holdover proceeding is dismissed without prejudice to the commencement of an ejectment action in Civil or Supreme Court.
This constitutes the decision and order of the Court.
So ordered.