Opinion
L & T Index No. 10259-22/QU
11-16-2022
Erica S. Dunkin, Petitioner, v. New York City Housing Authority Managed by Hammel Houses, Respondent.
For Petitioners: Erica S. Dunkin, pro-se For Respondents: Alan Liskov, Esq for NYCHA
Unpublished Opinion
For Petitioners: Erica S. Dunkin, pro-se
For Respondents: Alan Liskov, Esq for NYCHA
Enedina Pilar Sanchez, J.
This is an alleged illegal lockout case. Petitioner alleges that she was locked out of the apartment located at 84-12 Rockaway Beach Street, Apartment 4C, Far Rockaway, NY 11693. The apartment is in the Hammel Houses, part of the New York City Housing Authority (NYCHA).
On October 14, 2022, the parties appeared in court and could not resolve their differences. The matter was adjourned for a hearing. Petitioner was granted immediate access to retrieve personal items for herself and her family. On the adjourned date, respondent refused to restore petitioner and the hearing ensued.
Testimony and Documents
Petitioner was sworn in and testified that her sister was the tenant of record. In April 2020, her sister passed away. Petitioner's niece, the daughter of the tenant of record, "got the lease." Petitioner stated that she lived with her sister for one year before her sister passed away. Then she lived with her niece and assisted her niece with the paperwork for her niece to be granted the lease.
In September 2020, petitioner was told by her niece that respondent had indicated that her niece had to "downsize." Petitioner testified that in October 2022, her niece was "downsized" by with an "emergency transfer." Petitioner's niece did not appear to testify on behalf of petitioner.
Petitioner testified that the apartment cylinder lock was changed although all her personal items, papers, medicine, laptop, children's bed, books, and clothes are inside the apartment. Petitioner states that respondent knew that petitioner was residing in the apartment.
Over respondent's objections, petitioner presented documentation connecting her to the apartment. Petitioner presented an Order of Protection issued on July 7, 2021 by the Queens County Criminal Court. The Order of Protection identifies petitioner's niece as the defendant. The Order of Protection expired on July 6, 2022, and it was a "refrain from" order. The Court was also provided with what appears to be a 90-day notice to vacate issued to petitioner by her niece. The 90-day notice is dated February 26, 2022.
Respondent questioned petitioner about the length of time that she was in the apartment.
Respondent called Donna Elliot as a witness. The witness was sworn in and testified that she is employed as a Housing Assistant at Hammel Houses. According to respondent's records, petitioner's niece was the last tenant of record. Respondent offered into evidence the "30-day notice to vacate" signed by petitioner's niece. The document is dated September 23, 2022. The vacate reason is described as an emergency transfer. Ms. Elliot testified that respondent does not have records indicating that petitioner resided in the apartment.
Discussion and Conclusion
The testimony and documents show that petitioner was residing in the apartment for more than 30 days. The evidence also shows a strained relationship between petitioner and her niece, the tenant of record. The tenant of record sought to remove her aunt, the petitioner. The niece, however, was granted a transfer to another New York City Housing Authority apartment and thus is no longer in need of pursuing an eviction case against her aunt.
The question is whether the respondent knew, actually or constructively, what was going on with the apartment, the petitioner, and the tenant of record. The Housing Authority is charged with the duty to maintain records and to the extent that the niece was granted an emergency transfer it is indicative of knowledge about the parties. This knowledge may not have resulted in the petitioner establishing succession rights to this apartment. It reflects, however, upon respondent's regard for the needs of families and children when it employs self-help. The reality is that a family residing in a New York City Housing Authority apartment for more than 30 days that is subject to a lockout without the benefit of legal process is bound to experience a major disruption, immediate homelessness, possible loss of employment, interrupted school time and possible medical upheaval if medical supplies were kept in the apartment.
Respondent argues that the doctrine of futility requires that the petitioner not be restored to possession. Indeed, this is the law as it applies to licensees. The futility doctrine may have nuances. There may be situations when the futility doctrine does not apply easily to every "licensee" in a lock-out case.
In Watson v NYCHA-Brevoort Houses, 70 Misc.3d 900 (Civ. Ct. Kings Co. 2020), the court found that" equity favors restoring Petitioner to possession." (at 904). Petitioner was locked out by NYCHA because he was not the tenant of record. He had lived with his mother for years. His mother had made efforts to add him to the household composition, but his mother got sick and passed away in 2014. In November 2020, there was a fire in the apartment and the petitioner was unable to return to the apartment because there was an additional latch on the door. NYCHA had a key to the additional latch, and it would not give it to the petitioner.
" While there is law standing for the proposition that restoration is not an appropriate remedy even when there has been a wrongful eviction where restoration would only forestall the inevitable eviction, Soukouna v. 365 Canal Corp., 48 A.D.3d 359, 853 N.Y.S.2d 39 (1st Dept. 2008), Pied-A-Terre Networks Corp. v. Porto Resources, LLC, 33 Misc.3d 126 [A], 938 N.Y.S.2d 229, 2011 NY Slip Op 51757[U] (App. Term 1st Dept. 2011), Friends of Yelverton, Inc. v. 163rd Street Improv. Council, Inc., 135 Misc.2d 275, 281-282, 514 N.Y.S.2d 841 (Civ. Ct. Bronx Co. 1986), in this instance the Court finds credible Petitioner's testimony, corroborated by his state identification card, that he has been living in the subject premises for more than a decade. To lose one's home of that duration with no notice or opportunity to plan for an orderly relocation in the midst of a pandemic weighs against holding any futility of restoration against Petitioner." At 904.
The court eloquently addressed why an automatic denial of the restoration of a licensee is not the end of the inquiry. There may be circumstances that call for granting restoration.
Respondent's argument that it is automatically entitled to change the locks because petitioner is a licensee, and it does not have to restore the licensee/occupant is not in sync with Watson v NYCHA-Brevoort Houses. See also, Byas v. N.Y.C. Housing Auth., 2020 NY Slip Op 32668(U) (Civ. Ct. Bronx Co.) The perils of using self-help just because someone is a "licensee" are demonstrated in the Article 78 petition filed in Byas (supra). After the lockout case he asserted protection from eviction as a remaining family member. His grievance was denied, and he filed an Article 78 petition. Byas v. New York City Housing Authority, 2021 NY Slip Op 31983(U) (Sup. Ct. Bronx Co. July 21, 2021) Supreme Court vacated NYCHA's denial of protected status and ordered a formal hearing before an impartial hearing officer.
Petitioner shows that she was an occupant for more than 30 days and that she was removed without the benefit of legal process. Petitioner, however, is a licensee in the context of a public housing authority. Respondent relies upon the "licensee" classification to support its use of self-help, that the tenant of record was granted an emergency transfer to another apartment, and that the futility doctrine must be applied.
The court finds that petitioner was the licensee of her niece. Their relationship was and may continue to be strained. The niece did not appear to offer testimony. Under these facts and circumstances, the petitioner will not be restored to possession. The tenant of record has moved out and as a licensee she cannot be restored to possession. The restoration of petitioner would mean that two apartments would be occupied, one by the tenant of record who was transferred and the second by the petitioner who remained behind.
The petitioner is granted reasonable access through November 30, 2022 to remove her belongings from the apartment. As per the October 17, 2022 Interim Order, access to the apartment should have already commenced. The Interim Order provides for a time frame and the parties may agree to different and additional access dates.
Accordingly, it is
ORDERED that the Order to Show Cause in Lieu of Notice of Petition to Restore to Possession is dismissed, and it is
ORDERED that petitioner shall have reasonable access through November 30, 2022 to complete removing her possessions from the apartment, and it is
ORDERED that petitioner may seek all available remedies in a plenary action pursuant to RPAPL§853, RPAPL§768 and NYC Admin Code §521 and must do so within the statutory timeframe required, and such claim(s), if any, are severed for a plenary action.
This Decision and Order is being emailed to petitioner and respondent's counsel.
This constitutes the Decision and Order of the Court.