Opinion
Index Nos. 10125/2021, 10126/2021, 10127/2021, 10128/2021
09-17-2021
Roberto Espinoza MEDINA, Petitioner, v. ESSEX ESTATES, Respondent. Carol Cuarezma, Petitioner, v. Essex Estates, Respondent. Maria Vazquez, Petitioner, v. Essex Estates, Respondent. Jesus Minaya, Petitioner, v. Essex Estates, Respondent.
For Petitioners: Carl Muraco For Respondent: Michael Rosenthal
For Petitioners: Carl Muraco
For Respondent: Michael Rosenthal
Jack Stoller, J.
Roberto Espinoza Medina ("Petitioner No.1"), Carol Cuarezma ("Petitioner #2"), Maria Vazquez ("Petitioner #3"), and Jesus Minaya ("Petitioner #4"), the petitioners in these four proceedings (collectively, "Petitioners,") commenced these four summary proceedings against Essex Estates, the respondents in this four proceedings ("Respondent"), by petitions filed on August 9, 2021, seeking possession of 48 Essex Street, #2, Brooklyn, New York ("the subject premises") on the allegation that Respondent illegally locked Petitioners out of the subject premises. Respondent interposed affidavits sworn on August 11, 2021 ("the Agent's Affidavit") of Damian Junior, an agent of Respondent ("the Agent") as a responsive paper to the petitions which the Court deemed to be an answer and which essentially raised defenses of standing and abandonment. The Court held a trial of this matter on September 14, 2021.
The affidavits are similar enough in substance that they essentially constitute one affidavit. The Court therefore refers to the affidavits in the singular in this order.
The record at trial
Christina Bracco ("Petitioner #3's Partner") testified that she lives in Staten Island; that she has been Petitioner #3's partner for a little over two years; that Petitioner #3 has resided at the subject premises with all of Petitioners; that she went to the subject premises twice a week; that she slept in the subject premises on the night of August 2, 2021; that upon entering the building in which the subject premises is located ("the Building") one goes through a main door to a staircase going up; that she does not know about the first floor of the Building; that upon entering the second floor of the Building, the doors for the subject premises are on the left; that there is a bathroom next to that door and another bedroom next to that; that once you go into the subject premises there is a kitchen and a living area; that Petitioner #3 lives at the bedroom there; that there was a balcony with a grill there; that she never went into the other bedrooms; that a kitchen table, a chair, a bed, and a television were in the subject premises; that there was a normal bathroom with a toilet, a working shower, and a working sink in the subject premises; that kitchen had a white marble countertop, wood cabinets, a stove, and a refrigerator; that Petitioner #3's bedroom was in normal perfect condition, with a closet, a door, and a bed; that on August 3, they woke up around 7 or 7:30 a.m.; that they started getting ready to head to work; that she was going home; that they left the subject premises; and that Petitioner #3 works in New Jersey and had to go through Staten Island to get there.
Petitioner #3's Partner testified on cross-examination that she did not see anyone who works for Respondent on the last day that she was there and that the other tenants are Spanish-speaking and she does not speak Spanish well, so she just exchanged pleasantries with them.
Petitioner #1, Petitioner #2, and Petitioner #4 used the services of a Spanish interpreter during the trial.
Vianma Morel ("the Former First-Floor Occupant") testified that she lives elsewhere in Brooklyn; that Petitioner #2, Petitioner #3, and Petitioner #4 were living at the subject premises; that she knows Petitioners because she had been living on the first floor of the Building; that she has known the Petitioners since 2015; that since 2015, they have lived at the subject premises; that she moved into the Building in 2015 and they were all already living there at the time; that she was last there in January of 2020 because a person named Maria Calero ("the Former Occupant") signed something saying that she had to move.
The Former First-Floor Occupant testified on cross-examination that the Former Occupant told her that she had to leave; that she never appeared in Court; that she does not know that more than person appeared in Court; and that she is not aware that there was a licensee holdover proceeding.
Petitioner #2 testified that she has been living at the subject premises since 2006; that she met the Former Occupant and let her know that she was looking for an apartment; that the Former Occupant let her know that the Former Occupant would inquire with the people in charge about renting an apartment on the second floor of the Building, i.e. the subject premises; that the Former Occupant then gave her permission to move in; that she paid the Former Occupant $600 in cash to live in the subject premises starting in February of 2006; that she knew that the Former Occupant was not the owner; that the Former Occupant would speak to the people in charge; that she once saw the Former Occupant speak to family of the owner, who was deceased; that she understood that she was to give the rent to the Former Occupant, who would collect it on behalf of the owners; that she stopped paying the monthly rent in December of 2019 because the Former Occupant said that the Former Occupant was going to move out and that there were going to be new owners; that her three young daughters lived with her; that Petitioner #1, Petitioner #3, and Petitioner #4 live in the subject premises with her; that Petitioner #4 moved into the Building in February of 2006; that Petitioner #1 moved into the subject premises in 2010; that Petitioner #3 moved into the subject premises in 2016; that they all lived there since they moved in; and that she was not aware of an eviction proceeding against the subject premises.
Petitioner #2 testified that she slept in the subject premises on the night of August 3; that around 9 or 10 in the morning of August 4, when she left for work, all of her belongings had been in the subject premises and the subject premises had been in very good condition; that the bathroom was in perfect condition at that time; that the toilet was working at that time; that the sink was working; that the kitchen cabinets were intact; that her belongings were in the bedroom; that on August 4, when she was out of the subject premises, Petitioner #4 called to tell her that everything was locked; that she returned to the subject premises on August 4 and saw that the door was locked with chains and locks; that she could not get in; that she called Petitioner #3 and Petitioner #1; that Petitioner #3 called the police; that police came; that Petitioner #1 broke the chain and the lock so they could get into the subject premises; that when they came in, they saw that the subject premises was destroyed; that the toilet and bathtub were broken; that doors and kitchen cabinets were broken; that all of her possessions had been removed; that there was no water service in the subject premises; that she does not know the Agent; that on August 1 she met a Dominican man who said that his name was "Jerry" and that he worked for the owners; that this person entered the premises; that he came in to talk to her, Petitioner #1, and Petitioner #4; that she said that she could either pay rent or that she needed time to move; that she did not speak to anyone associated with Respondent; that on August 4 she did not see anyone from the landlord's office; and that she is currently locked out of the subject premises.
Petitioners introduced into evidence undated photographs of Petitioner #2's daughters in the kitchen of the subject premises; a photograph of Petitioner #2 in her bedroom at the subject premises in 2012-13; and a photograph of Petitioner #2 on the front steps of the Building in 2011.
Petitioner #2 testified on cross-examination that the Former Occupant had been living at the Building for many years and she imagined that the Former Occupant had to have permission from the owners of the Building to be there; that she found out that the Former Occupant was evicted by a marshal when she saw a notice on a door; that she did not know about the case that the Former Occupant had with the landlord; that she knows people who live at 1483 St. John's Place ("the Other Address"); that she has been living at the Other Address once she was evicted from the subject premises; and that she was not living at the Other Address before August 4.
Petitioner #4 testified that he has been living in the subject premises from 2006 through August 4, 2021; that he got the room from the Former Occupant; that he paid money in cash every month up through January 3, 2019; that he never got a receipt; that he did not think that the Former Occupant was the owner of the Building; that he does not know anything about that; that he does not know who the owner is; that he lived at the until they took him out; that he slept in the subject premises on August 3; that the subject premises was fine when he left on the morning of August 4; that he was the last to leave the subject premises that morning; that later that day, the door was closed with a chain over it; that he called Petitioner #1, Petitioner #2, and Petitioner #3 to let them know what was going on; that Petitioner #3 called the police; that the police came; that Petitioner #1 broke open the door; that the subject premises was completely torn apart; that he observed broken cabinets and a door; that the toilet had been removed; that there was no water; that the doors were lacquered; that he was at the subject premises on August 1; that someone from the Dominican Republic who said he worked for the owner came over; that he forgot this person's name; that this person wanted to make an arrangement for him to move out; that he does not know the Agent; that he did not call Respondent on August 1; and that the other Petitioners all lived in the subject premises with him all lived there through August 4.
Petitioners introduced into evidence Petitioner #4's driver's license issued on June 18, 2015 with the subject premises as Petitioner #4's address.
Petitioner #4 testified on cross-examination that only four people lived in the subject premises, plus "her" three daughters, with whom he had a relationship similar to a parent/child relationship; that he knows the Other Address; that a woman other than Petitioner #2 that he knows lives at the Other Address; and that he has had his address written down as the Other Address for over ten years.
Petitioner #4 testified on redirect examination that the Other Address is where his mail arrives; that he does not reside there; that he was living at the subject premises; and that he sent his letters to the Other Address because his mail got lost at the subject premises.
Petitioner #1 testified that he has been living at the subject premises since 2010; that he paid rent to the Former Occupant; that he helped her by taking out the trash there, but he did not know about her relationship with the owner; that he lived in the subject premises until the 4th when he was locked out; that he had slept in the subject premises on August 3; that the subject premises was fine on August 3; that he had painted his room; that he had a cage for his pet; that his dog was inside; that he had to get in to get his dog; that Petitioner #3 called the police; that he explained that his dog was inside; that he could open the door with his key even if there was another lock on it; that he opened the one to the front and the door to get into the Building; that he could see a bar in the door; that when he came in he saw that the subject premises was destroyed; that the toilet was broken; that the stove was removed; that the sink was not working; that there was no water or gas service; that the doors and everything else inside the bedroom was broken; that his personal possessions were thrown in the garbage; that he had money in the his room that was no longer there; that he does not know the Agent but he knows someone who had been coming around and bothering him; that this person had offered him money, but he said that if the owner wants him out, the owner has to comply with the law and take the case to Court; that before August 1 he called this person to tell this person not to mess with his pet; that he did not call anyone on August 1 who works for the owner; that he never surrendered possession; that he is now sleeping in the street; and that before August 4, Petitioner #2, Petitioner #2's daughters, Petitioner #3, Petitioner #4, and his dog were in the subject premises.
Petitioner #1 testified on cross-examination that his brother lives at 559 50th Street; that he did not live there in 2019; that he works in the area around 3711 Fort Hamilton Parkway; that he lived at that address until he was divorced and got sick; and that he got divorced over thirteen years ago.
Petitioner #3 testified that she has been living at the subject premises since 2016; that she paid a monthly rent; that she last paid rent in December of 2019 to the Former Occupant; that she had paid the rent in cash monthly; that Petitioner #1, Petitioner #2, Petitioner #2's three girls, and Petitioner #4 lived at the Building while she was living there; that she does not know the Agent; that she did not call Respondent on August 1; that she did not tell Respondent that she vacated the subject premises; that on August 4, Petitioner #2 called her and said there were locks on the door; that they wanted her to come home to call the police because she is the only one who can speak English; that she came home at about 4 p.m. and called the police; that Petitioner #1 broke the locks; that there was a chain on the gate outside; that there were padlocks on the wooden door; that once they went upstairs they saw that the door to the bathroom had been removed; that the door to Petitioner #1's room was locked; that they took pictures; that the toilet had been destroyed in the bathroom; that nothing was there to shore up the cabinets; that the stove had been yanked off because the wires were all over; that the doors had marks all over them; that there were 20 bags of garbage on the front of the porch; that the 20 bags of garbage consisted of things from the subject premises; that she usually left the subject premises early in the morning because she works in New Jersey, so she left at about 7 or 7:30 a.m.; that the subject premises was in good condition when she left; that there were no bags on the porch and the toilet was intact when she left; that the refrigerator had been there; that the stove was there when she left; that she was at the subject premises on August 1; that she is now aware of a pending holdover proceeding concerning the subject premises; that she believes that the current owner is aware that she lives in the subject premises; that she never vacated or surrendered; that no one ever contacted her; that she knows who Respondent is; and that Respondent is the owner of the Building.
Petitioners introduced into evidence Petitioner #3's bank statements with the subject premises listed as her address, for months ending December 3, 2018, December 3, 2019, and December 31, 2020.
The Court took judicial notice of Essex Estates LLC v. Doe , Index #58477/20 (Civ. Ct. Kings Co.), a licensee holdover commenced by Respondent seeking possession of the subject premises on the allegation that the occupants therein were licensees whose licenses had been terminated. After the petition had been noticed to be heard, it had been adjourned a number of times but there had been no determination as of yet from the Court.
The Agent testified that he is a property manager for Respondent; that he goes to the Building at least once a week; that he makes sure that the subject premises is secure and that is about it; that in August he noticed a large accumulation of garbage; that there was a security gate before you enter the property; that there was a secondary door; that both doors were unlocked; that he experienced a strong smell of urine; that he tried to secure that door; that he continued upstairs; that the urine smell got stronger; that once he reached the top he saw that the bathroom was in complete disarray; that all the apartment doors were off and on the ground; and that there was human feces on the ground.
Respondent introduced into evidence photographs and a video recording of the subject premises taken on August 9, which depicts an empty apartment with interior doors removed, the sinks and toilet smashed into bits, and a number of garbage bags in the front yard.
The Agent testified that he had nothing to do with making the subject premises look like that; that no one for Respondent made the subject premises look like that; that once he noticed that the subject premises had been vandalized, he took action to secure the subject premises; that he welded a security door shut; that there is a three-foot gate in the front; and that he corrected ironwork in the front just to make sure that the subject premises was secure.
The Agent testified on cross-examination that he went by the Building once a week; that he was there on August 9; that before that he was there at 9 a.m. on August 2 and the door was locked; that on August 2, he did not see the garbage out front; that the kitchen was normal that day as usual; that he came back down; that it did not appear that anyone had broken in on August 2; that he knocked on the door and no one was there; and that the condition had always been the same as he saw that day. When asked if he had ever seen the occupants of the subject premises or knew that anyone lived in the subject premises, the Agent only testified that he never made any contact with them.
The Agent averred, in Paragraph 2 of the Agent's Affidavit, that on August 1, he "fielded" a call from "an individual" representing "themselves" to be "the tenants" of the subject premises, that "they" indicated that "they" had moved out "some time ago," that the doors were unlocked, and that "they" had removed "their" personal property. The Agent testified on cross-examination that the call he averred that he "fielded" actually was a message he received at his office and that by "fielded a call" he meant that he received a call even though he was not there.
The Agent averred, in Paragraph 3 of the Agent's Affidavit, that he "subsequently" went to the subject premises and found that the subject premises was not only "completely empty" but had been "totally trashed." The Agent averred, in Paragraph 5 of the Agent's Affidavit, that "[a] few days later" he learned that someone was trying to break into the subject premises and that people whom he believed to be Petitioners demanded a payment from him. The Agent averred, in Paragraph 6 of the Agent's Affidavit that "[t]his" happened on at least one additional occasion, that he secured the front door, that "these people" have been coming back to the subject premises "every night" and breaking the front door, and that police have been monitoring the subject premises "ever since." The Agent averred, in Paragraph 7 of the Agent's Affidavit, that Petitioners commenced these proceedings "[s]ubsequently." The Agent testified on cross-examination that the date he had indicated in his testimony was not correct; that the date that the subject premises was in disarray was incorrect; that August 2 is when the subject premises was normal; that August 9 is when the subject premises was in disarray; that he did not put locks on the door; that there were no doors to put locks on; that he put locks on the front patio door; that, about 12 noon on August 9, he welded the door together; that he did not put chains on the doors; and that he did not put any locks on the doors on August 4.
The Agent testified on cross-examination that Respondents have employed him for four years; that he has been responsible for the Building since the beginning of 2021; that after the eviction of the Former Occupant, which may have been around the beginning of 2021, he would come to the Building every week, sometimes in the morning or the late afternoon; that he may have gone at 6 p.m. or later; that there was always a knock on the door and no answer; that he never heard anything, such as a dog barking or children; that there was no accumulation of garbage in the front; that he does not know who locked the doors on August 4; that he is the only property manager for the Building; that he has heard of "Jerry;" that Jerry works for Respondent; that Jerry is either a principal or a normal employee; that Jerry may be a liaison to the tenants; and that he never communicated with Jerry about the Building.
The Court took judicial notice of the matter of Essex Estates LLC v. Doe , Index # 67978/2019 (Civ. Ct. Kings Co.), a licensee holdover proceeding commenced against the Former Occupant. The Court's database showed that two warrants of eviction had issued, one on December 17, 2019 and one on December 19, 2019, that the Court denied a motion for a stay on February 5, 2020, and that the Court declined to sign an order to show cause seeking a stay on February 27, 2020.
Discussion
A cause of action sounding in an illegal lockout pursuant to RPAPL § 713(10) has two elements: that the petitioner therein has been in possession of the subject premises, Andrews v. Acacia Network , 59 Misc 3d 10, 12 (App. Term 2nd Dept. 2018), Brown v. 165 Conover Assoc. , 5 Misc 3d 128(A)(, 798 N.Y.S.2d 707 App. Term 2nd Dept. 2004), and that the respondent therein forcibly removed the petitioner therein from the premises in question. 3855 Broadway Laundromat, Inc. v. 600 West 161st Street Corp. , 156 A.D.2d 202, 203, 548 N.Y.S.2d 461 (1st Dept. 1989), Cetin v. Sung Jin Choe , 2019 N.Y. Slip Op. 30526(U)( S. Ct. NY Co.), Morgan v. 440 St. Marks Realty LLC , 2020 N.Y.L.J. LEXIS 1025 (Civ. Ct. Richmond Co.). The particular facts of this case render the second element, forcible removal, the appropriate place to commence with the analysis of Petitioners’ case.
All four Petitioners and Petitioner #3's Partner testified consistently and unremarkably that, when they left the subject premises on the morning of August 4, 2021, the subject premises was in the same state it had been when they had been living there before, testimony that is consistent with the Agent's testimony that on August 2, 2021, the Building looked the same as it had in his prior weekly visits. All four Petitioners testified consistently and unremarkably that, when they returned to the subject premises by the late afternoon of August 4, 2021, the locks of the subject premises had been changed. Petitioners’ testimony also consistently showed that by the late afternoon of August 4, 2021 the interior doors had been removed, the kitchen cabinets were destroyed, the stove had been pulled out, the water service had been discontinued, and their possessions had been removed, at least in part to the garbage, testimony that the Agent's video recording and photographs corroborate in large part. As a prima facie matter, then, Petitioners show that they had been forcibly removed.
The Agent testified that the neither he nor anyone who worked for Respondent caused the subject premises to be in the state it was. The Agent testified on that the subject premises was actually unlocked on August 9, 2021, five days after Petitioners testified that they had been locked out. The Agent's testimony raises the question of who, if not Respondent, may have attacked the subject premises.
In evaluating testimony, the Court should not discard common sense. People v. Garafolo , 44 A.D.2d 86, 88, 353 N.Y.S.2d 500 (2nd Dept. 1974). See Also People v. Jones , 19 Misc 3d 1143(A)(, 867 N.Y.S.2d 19 S. Ct. NY Co. 2008) (common sense and the lessons of human experience should not be strangers to the decision-making process). Respondent introduced into evidence photographs of a number of garbage bags in the front yard, which is consistent with the garbage bags that Petitioners and the Agent testified to. Using common sense, this evidence does not support the proposition that random burglars or vandals were the ones who ransacked the subject premises, as the Court draws the inference that burglars or vandals would not dispose of the remains of their plunder into garbage bags and put them into the front yard.
Moreover, the Agent did not rebut the Petitioners’ testimony that water service in the subject premises had been shut off. No evidence in the record shows that anyone other than an owner of the Building had access to any water shut-off valve in the Building. Not only does the discontinuation of water at the subject premises thus complicate any proposition that third-parties destroyed the subject premises but it complicates the proposition that Petitioners did so as well. The most likely entity to have shut off the water service would be Respondent. See Swierupski v. Korn , 69 A.D.2d 632, 638, 419 N.Y.S.2d 87 (2nd Dept. 1979) ("the dictum ‘essentialia non sunt multiplicanda praeter necessitate ’ (known as ‘Occam's Razor’) should be applied—that the simplest of competing theories be preferred to the more complex and subtle.)"
The Agent's testimony that Respondent did not attack the subject premises does not necessarily preclude a finding to the contrary. First of all, the Agent can only testify to what he had personal knowledge of. The Agent testified that he had heard of another employee of Respondent but did not seem to be very familiar with this other employee. If Respondent is a part of an entity big enough to employ colleagues that the Agent would not know personally, then it is also possible that Respondent has the wherewithal to engage in conduct that the Agent would not have personal knowledge of.
Second, the Agent's various averments had inconsistencies and evasions that implicated the Agent's credibility. The Agent repeatedly testified that he never "made contact" with any occupant of the subject premises, even when that answer was non-responsive to questions about whether he had ever seen the occupants of the subject premises or knew that anyone lived in the subject premises. The Agent's insistence on answering questions in that fashion revealed a desire to prioritize a particular narrative as opposed to just straightforwardly giving truthful testimony.
Moreover, the Agent could not reconcile his testimony with his Affidavit. Even though the Agent testified that he never "made contact" with any occupant of the subject premises, the Agent averred in the Agent's Affidavit that he had "fielded" a call from an occupant or occupants of the subject premises — the Agent's Affidavit is ambiguous about whether this communication was with one person or a plural number of people — who said that they or she or he moved out some time ago, removed their or her or his property, and left the doors unlocked. The Agent tried to explain this inconsistency by testifying that by "fielding" a call he meant that he merely received a message from a colleague at his office to that effect. Aside from this unnatural use of the phrase "fielding a call" to really mean "receiving a message from a colleague," the contents of the ostensible message are detailed enough to raise the question as to why the Agent's colleague who had personal knowledge of the communication with Petitioners was not a witness or an affiant rather than the Agent.
Furthermore, a representation of an occupant or occupants on August 1, 2021 that they had moved out, removed all of their possessions, and left the doors unlocked is inconsistent with the Agent's testimony that the subject premises was locked when he visited on August 2, 2021. Taken alone, this discrepancy is minor. However, the Agent's Affidavit goes on to say that he "subsequently" visited the subject premises, found that the subject premises was "totally trashed," that "[a] few days later" someone was trying to break into the subject premises and Petitioners demanded money, that "[t]his" happened on at least one additional time, that he secured the front door, that "these people" have been coming back to the subject premises "every night" and breaking the front door, that police have been monitoring the subject premises "ever since", and that Petitioners commenced these proceedings "[s]ubsequently." The Agent's Affidavit is dated August 11, 2021. Not only did the Agent testify on direct examination that he first saw the subject premises in a state of disarray on August 9, 2021, he twice reaffirmed that date on cross-examination. The Agent however, could not have first seen the destroyed state of the subject premises on August 9, 2021, noticed people breaking in "a few days later," and become aware that Petitioners commenced these proceeding subsequently, all before August 11, 2021, the date of the Agent's Affidavit. Either the Agent's testimony that August 9, 2021 was the first date he saw the subject premises in disarray was incorrect or the sequence of events the Agent averred to in the Agent's Affidavit was incorrect.
Where a witness has given testimony that is demonstrably false, the Court may, in accordance with the maxim falsus in uno falsus in omnibus , choose to discredit or disbelieve other testimony given by that witness. Washington Mut. Bank v. Holt , 113 A.D.3d 755, 756-757, 979 N.Y.S.2d 612 (2nd Dept. 2014). Even assuming arguendo that the Agent's compromised testimony did not result from bad faith or worse, the Agent was not a reliable witness and the Court does not accord weight to his testimony.
The Court has the discretion to make a fact-finding by a process of elimination. Melodee Lane Lingerie Co. v. Am. Dist. Tel. Co. , 18 N.Y.2d 57, 63, 271 N.Y.S.2d 937, 218 N.E.2d 661 (1966). As the Court discounts the probative value of the Agent's testimony and finds that neither Petitioners nor third parties wrecked the subject premises, Respondent is the only candidate who could have so damaged the subject premises. The Court finds that Respondent caused these events to occur sometime mid-day August 4, 2021. Petitioners have therefore proven that element of their cause of action.
Even if Petitioners proved that Respondent forcibly removed them from the subject premises, Petitioners still must prove that they had been in possession of the subject premises, RPAPL § 713(10), essentially meaning that Petitioners must prove that they have been tenants of the subject premises. Zhu v. Li , 70 Misc 3d 139(A)( App. Term 2nd Dept. 2021). Respondent argues that the record shows that Petitioners were licensees of the Former Occupant, herself a licensee, who had since been evicted and that the nature of Petitioners’ occupancy therefore would not protect them from eviction by self-help.
As noted above, however, the Court took judicial notice that of the pendency of Respondent's holdover proceeding against Petitioners. Respondent's election of a remedy by a summary proceeding against Petitioners waives a claim that Respondent could regain possession of the subject premises by self-help. Rodriguez v. 1414-1422 Ogden Ave. Realty Corp. , N.Y.L.J. January 7, 1993 at 23:2 (App. Term 1st Dept.).
This case is also reported at 1993 NY Misc. LEXIS 666.
The facts of this case illustrate how a waiver of an ability to use self-help is more than a technical nicety. For example, Petitioners’ long-term exclusive occupancy of one unit as roommates, combined with the easy ability to ascertain their occupancy given that the subject premises is one unit in a two-family house raises questions about their status as licensees.
See , e.g. , Drost v. Hookey , 25 Misc 3d 210, 212, 881 N.Y.S.2d 839 (Dist. Ct. Suffolk Co. 2009), Rich v. Poole , 24 Misc 3d 1229(A)(, 901 N.Y.S.2d 902 Dist. Ct. Suffolk Co. 2009). See Also Carbonella v. Carbonella, 52 Misc 3d 141(A)( App. Term 2nd Dept. 2016), Hok Kwan Chu v. Lee , 39 Misc 3d 147(A)(, 972 N.Y.S.2d 143 App. Term 2nd Dept. 2013), Rodriguez v. Greco , 31 Misc 3d 136(A)(, 927 N.Y.S.2d 819 App. Term 2nd Dept. 2011).
The pendency of the licensee holdover further casts into relief the most problematic aspect of self-help: violence. Respondent may only use self-help so long as it can be done without violence. Tantaro v. Common Ground Cmty. Hous. Dev. Fund, Inc. , 2015 N.Y. Slip Op. 31379(U), ¶ 4 (S. Ct. NY Co.), aff'd, 147 A.D.3d 684 (1st Dept.), leave to appeal dismissed , 30 N.Y.3d 1016, 88 N.E.3d 387 (2017), citing P & A Bros, v. City of NY Dept. of Parks & Recreation , 184 A.D.2d 267, 268-269, 585 N.Y.S.2d 335 (1st Dept. 1992). Cf. Almonte v. City of NY , 166 Misc 2d 376, 377, 636 N.Y.S.2d 261 (App. Term 2nd Dept. 1995) (the common-law remedy of self-help could be used peacefully since no force was used), Espositio v. 60 Beach LLC , 50 Misc 3d 1207(A)( Civ. Ct. NY Co. 2016) (a petitioner in a lockout case failed to state a claim for relief where, inter alia , the respondent "used no force" to regain possession). As noted above, the Court finds herein not only that Respondent locked Petitioners out, but also caused destruction in the subject premises, including smashing the appliances in the bathroom and the kitchen apart, a use of force beyond what is necessary to deprive Petitioners of possession by self-help, a use of force consistent with a course of conduct designed to threaten, and a use of force susceptible to escalation. Violence of this type, even when directed against property and not against people, underscores the reason for the extent that the law proscribes self-help in the first place. Truglio v. VNO 11 E. 68th St. LLC , 35 Misc 3d 1227(A)(, 953 N.Y.S.2d 554 Civ. Ct. NY Co 2012).
The context in which this lockout has taken place is a public health crisis occasioned by the COVID-19 pandemic. In response to the pandemic, the New York State Legislature has passed statutes that affect the progress of eviction proceedings. See COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020, as amended, L. 2021, c. 417. Section 2 of the Act, entitled "Legislative intent," states that "[t]he evidence that residential eviction protections are effective public health measures is especially strong." If the Court were to countenance Respondent's evasion of the proceeding it started by engaging in violent self-help, the precedent that would establish would undermine the public health goals that the Legislature sought to protect and incentivize anyone seeking possession of real property to engage in similarly destructive behavior.
The appropriate means by which to resolve the dispute about possession of the subject premises, therefore, is Respondent's prosecution of the holdover proceeding that is already pending. Accordingly, the Court shall award Petitioners final judgments of possession and direct Respondent to restore Petitioners to possession of the subject premises forthwith. In addition to ordering that Respondent restore Petitioners to the subject premises, when a landlord uses self-help against an occupant and, in the process, seeks to preclude restoration by engaging in destruction of the premises, New York City Civil Court Act § 110(c) empowers this Court to direct that the landlord restore the premises to a habitable condition. Truglio, supra , 35 Misc 3d at 1227(A), 953 N.Y.S.2d 554.
Accordingly, it is
ORDERED that the Court awards a final judgment in favor of Petitioner #1 as against Respondent, with a forthwith issuance of a warrant of eviction permitted against Respondent and no stay on execution, and it is further
ORDERED that the Court awards a final judgment in favor of Petitioner #2 as against Respondent, with a forthwith issuance of a warrant of eviction permitted against Respondent and no stay on execution, and it is further
ORDERED that the Court awards a final judgment in favor of Petitioner #3 as against Respondent, with a forthwith issuance of a warrant of eviction permitted against Respondent and no stay on execution, and it is further
ORDERED that the Court awards a final judgment in favor of Petitioner #4 as against Respondent, with a forthwith issuance of a warrant of eviction permitted against Respondent and no stay on execution, and it is further
ORDERED that the Court directs Respondent to restore Petitioners to possession of the subject premises by providing them with keys to the subject premises forthwith, and it is further
ORDERED that Petitioners may seek the assistance of the New York Police Department in the enforcement of this order, and it is further
ORDERED that the Court directs Respondent to restore water services to the subject premises and restore the toilet, bathtub, stove, interior doors, kitchen cabinets, and refrigerator to the state they were in prior to their demolition, on or before September 24, 2021, with access to be arranged by the parties to the extent that Respondent requires that Petitioners give access for these purposes, and it is further
ORDERED that on default of any aspect of this Court order, in addition to Petitioners’ other remedies, Petitioners may move to hold Respondent in contempt of Court, and it is further
ORDERED this order is without prejudice to any other causes of action and/or defenses related to possession of the subject premises that any party to this proceeding has against one another.
This constitutes the decision and order of the Court.