Opinion
Index No. LT-323-21/CO
02-08-2022
Sofyan MOFLHI, Petitioner, v. Krystal WAGNER, Respondent
Thomas Gabriels Albany, for Petitioner-Landlord. Legal Aid Society of Northeastern New York (Amanda Paladino, Esq. of counsel), Albany for Respondent-Tenant.
Thomas Gabriels Albany, for Petitioner-Landlord.
Legal Aid Society of Northeastern New York (Amanda Paladino, Esq. of counsel), Albany for Respondent-Tenant.
Thomas Marcelle, J.
This case involves a confused tale. The witnesses’ testimonies diverged significantly. The court was not satisfied that any of the three main witnesses’ testimonies were completely accurate. Moreover, the parties presented fuzzy dates rather than exact ones. So, the recitation of the facts below implicitly resolves the numerous discrepancies in the testimony. These findings of facts are based upon the credible evidence and the fair inferences made therefrom.
Landlord Sofyan Moflhi ("landlord") entered into a lease with Robert Kelly Sr. ("Senior") to rent 86 Howard Street. When the lease expired the landlord and Senior maintained a month-to-month tenancy. Senior had a son, Robert Kelly, Jr. ("Junior"), and Junior had a fiancée—Crystal Wagner ("Wagner"). In May of 2021, Senior invited Junior and Wagner to live with him so the couple could save funds for their own apartment. Wagner resided at 86 Howard because Senior had given the couple permission to do so. By June, the landlord became aware that the couple was living in Senior's apartment and took no steps of any kind to halt the arrangement.
There were, however, problems. Junior was on parole and one of the conditions of his release was that he could not live with someone who had been previously convicted of a felony. Senior had been convicted of a felony which made co-habitation with his son not feasible. Since the arrangement with his son was temporary, Senior moved out and stayed with a friend.
Over the summer, the date is unclear, Junior became abusive to Wagner. Although murky, it appears that despite Junior's violence towards Wagner, Wagner and Junior still resided together at 86 Howard Street until sometime in late September. It was then that the Cohoes Police responded to a domestic violence call and arrested Junior. Wagner moved out of the apartment and into a temporary shelter (presumably for victims of domestic violence). When Junior was arrested and Wagner sought shelter elsewhere, the apartment was vacant, and someone (most likely the landlord) told the power company to shut off the power to the apartment.
On September 28, Wagner returned to 86 Howard Street with her possessions in tow. The landlord protested Wagner's moving in. The landlord could not find Senior to have him stop the process. Consequently, he called the Cohoes Police to prevent Wagner from occupying the apartment. When the police arrived, the officer remembered that Wagner had been living there with Junior at the time of his arrest. The officer told Wagner to call the power company and put the power in her name and to move in. This was done over the landlord's objection.
At the very beginning of October, the landlord appealed to a superior officer in the Cohoes Police Department. A lieutenant instructed the parties that Senior (now back in contact with the landlord) was a lawful tenant who had a right to live at 86 Howard Street. At some point in October, Senior moved in and Wagner filed an order of protection against Senior—Senior moved out.
On October 6, the landlord served Wagner with a ten-day notice to quit. On October 16, the landlord commenced this proceeding by service of a Notice of Petition and Petition seeking an eviction under RPAPL 713 (3). RPAPL 713 (3) provides that a special proceeding seeking an eviction can be maintained when "[a person] has intruded into or squatted upon the property without the permission of the person entitled to possession." In other words, RPAPL 713 (3) is the legal method to remove squatters.
Wagner insists that she is not a squatter; but that she is a lawful occupant and consequently, the landlord was required to commence this action under RPAPL 711. This argument has force.
RPAPL 711 provides that no "tenant or lawful occupant of a dwelling or housing accommodation shall be removed from possession except in a special proceeding" (emphasis added). The term lawful occupant is of recent vintage. This language was added to the statute as a part of the Housing Stability and Tenant Protection Act (HSTPA) (L 2019, ch 36).
The question is, of course, is Wagner a lawful occupant. Nowhere does RPAPL define lawful occupant. Courts have wrestled with this lack of statutory definition in the context of Emergency Eviction and Foreclosure Prevention Act, § 3, part A, § 1 (3) (L 2020 ch 381, as extended L 2021 ch 104, as amended L 2021 ch 417) ("EEFPA") (see Kalikow Fam. P'ship, L.P. v. Doe , 72 Misc 3d 1172 (Civ Ct, Queens County 2021) (interpreting the term lawful occupant "within the context and intent of the [EEFPA] statute itself"). However, that the temporary Covid-19 statutes have different and broader relief that applicable here.
In this context, the context of regular eviction proceeding, the best definition lies in the Real Property Law. RPL 235-f defines the term occupant. "Occupant means a person, other than a tenant or a member of a tenant's immediate family, occupying a premise with the consent of the tenant or tenants." The Legislature often uses the RPL as a tool to limit and define rights in eviction proceedings (see e.g. RPL 226-c [defining the required notice that a landlord must give a tenant to terminate lease before bringing a holdover proceeding]; RPL 223-b [preventing an eviction if done for retaliatory purposes]; RPL 235-b [nullifying any part of a lease agreement that waives a tenant's protections guaranteed by the warranty of habitability]; RPL § 226-b [making unenforceable any lease clause that limits the tenant's statutory ability to sublet his apartment]). Thus, the court will graft the meaning of RPL 235-f into RPAPL 711 to define the term occupant.
With the guide of RPL 235-f, the court will address Wagner's argument that she was a lawful occupant under RPAPL 711 and not a squatter under RPAPL 711 (3). This much of Ms. Wagner's argument is unassailable—the court finds that when Wagner moved into the apartment, she did so with the implied permission of Senior—she was after all going to marry his son and wanted to give the couple an opportunity to save money for a place of their own. Therefore, at the point she moved in she was a lawful occupant, a licensee, and not a squatter. "A licensee is one who enters upon or occupies lands by permission, express or implied, of the owner, or under a personal, revocable, nonassignable privilege from the owner, without possessing any interest in the property" ( 100 Wagner v. 72nd St. Assocs. v. Murphy , 144 Misc 2d 1036, 1038 [Civ Ct, NY County 1989] ). But her status is not frozen in time, a license can be revoked. The question is whether she is still lawful occupant (i.e., still a licensee) on October 6—the day that the landlord served his ten-day notice.
Two prerequisite arguments raised by Wagner need to be addressed before the court decides whether Wagner was a lawful occupant on October 6. Both arguments seek to elevate her status from licensee to tenant.
First, Wagner testified that she paid $100 weekly rent to Senior, which could arguably confer rights as a subtenant. The problem is that Senior denies that he was paid rent. It is Wagner's burden to prove that she gave rent to Senior. Without collateral proof of rent payments or confirmation of a rental agreement, the court finds that Wagner failed to meet her burden of persuasion on this issue. Thus, the court concludes that Wagner was not a subtenant.
Second, Wagner argues that she is a tenant because she occupied 86 Howard Street for more than thirty consecutive days; and that RPAPL 711 defines a tenant as including "an occupant of one or more rooms in a rooming house [ ] for thirty consecutive days or longer." A rooming house is a "multiple dwelling, in which there are less than thirty sleeping rooms occupied primarily by transients, and in which there are provided such services as are incidental to its use as a temporary residence" ( MRL 4 [4] ). That is not an accurate description of the apartment at 86 Howard Street. Rather, the apartment is a dwelling (MLR 4 [13]). Thus, RPAPL § 711 thirty-day provision is inapplicable to Wagner.
This returns the case back to whether Wagner was a lawful occupant (i.e., a valid licensee) on October 6, the date the landlord served her with the ten-day notice to vacate. That question devolves to whether her license had been revoked prior to October 6. There are two ways a license can be canceled—by operation of law or by an expressed or implied revocation by the licensor.
First, the Legislature has deemed that a license can be revoked by operation of law even in the absence of an expressed revocation. RPL 235-f decrees that "[n]o occupant shall, without express written permission of the landlord, acquire any right to continued occupancy in the event that the tenant vacates the premises or acquire any other rights of tenancy" (emphasis added). Thus, Wagner's license would have expired under the law if Senior had surrendered possession of the apartment on or before October 6. There was no proof of this. There was no relinquishment of keys or anything else that would evince a surrender of possession of the premises. To the contrary, sometime in October (potentially around October 23), Senior returned to the apartment at the behest of and with the consent of the landlord and briefly occupied the apartment. This action is inconsistent with Senior surrendering possession. Therefore, Wagner's license to occupy 86 Howard Street did not end by operation of law.
This brings the court to the last question: was the license implicitly revoked. Senior permitted his son and his fiancée to occupy his apartment to help the young couple progress towards marriage and independent living. At the end of September, when Junior went to jail for domestic violence and Wagner sought temporary shelter elsewhere, the relationship and the promise of betrothal ended—and so did the license. In essence, there was an implied condition on the license—that Wagner and Junior were progressing towards marriage and independent living. Thus, when the reason for granting the license ended, the license ended by implication. So, on October 6, after the termination of the relationship, Wagner was no longer a licensee and therefore, no longer a lawful occupant.
Petitioner does have a problem. It pled its case under RPAPL 713 (3) —alleging that Wagner was a squatter. Wagner was decidedly not a squatter; she was a lawful occupant whose occupation became unlawful when her license to occupy the apartment was revoked. There is a section of the law that deals with such situations. RPAPL 713 (7) provides, in pertinent part, a petitioner may seek the eviction of a licensee when "(a) [her] license has expired, or (b) [her] license has been revoked by the licensor, or (c) the licensor is no longer entitled to possession of the property." Therefore, the landlord should have commenced this proceeding under RPAPL 713 (7) and not RPAPL 713 (10).
The question is whether this defect is fatal. The court retains the discretion to sua sponte amend the pleadings to conform to the proof in the absence of prejudice to the party who would oppose the amendment ( Murray v. New York , 43 NY2d 400, 405 [1977] ; Groves v. State Univ. of NY , 265 AD2d 141, 145 [3d Dept 2000] ). Since the notice provision to the tenant to commence a special proceeding under RPAPL 713 (7) and RPAPL § 713 (10) are identical and that the tenant had a full and fair opportunity to present her defenses and in fact mounted a vigorous defense on the issues that were relevant to RPAPL 713 (7), the court will sua sponte amend the pleadings to conform to the proof because respondent is not prejudiced by such an amendment.
Therefore, the court will issue a judgment of possession to petitioner. The HSTPA 2019 altered process of issues warrant of eviction. RPAPL 753, which previously applied only to New York City, requires a court to consider various factors before determining whether a warrant of eviction should be issued immediately or should it be stayed "for a period of not more than one year." The court will hold a hearing pursuant to RPAPL 753 to determine the timing of the warrant. The parties are directed to appear on February 14, 2022 at 10 a.m. for further proceedings.
The foregoing constitutes the Decision and Order of the Court.