Opinion
No. 2006–20355.
2010-10-4
Ben PERNELL, Plaintiff, v. 287 ALBANY AVENUE LLC, Defendant.
Michael M. Premisler, Carle Place, for Plaintiff. Thomas Weiss Esq., Hempstead, for Defendant.
Michael M. Premisler, Carle Place, for Plaintiff. Thomas Weiss Esq., Hempstead, for Defendant.
JEFFREY ARLEN SPINNER, J.
The Plaintiff commenced this action pursuant seeking to recover damages for an alleged wrongful eviction perpetrated by Defendant. Plaintiff claims damages in the amount of $30,000.00 representing the value of certain equipment and demands trebling thereof pursuant to Real Property Actions & Proceedings Law § 853. Following the customary civil discovery and motion practice, the matter was claimed for a bench trial which commenced on June 7, 2010 and concluded on June 14, 2010.
According to the evidence adduced, sometime in 1995 Plaintiff Ben Pernell Jr. took occupancy of commercial premises at 287 Albany Avenue, Amityville, Town of Babylon, New York. The premises consisted of three storefronts in a single building, in which Plaintiff occupied the center store. The owner, Erika Lawrence, had previously leased premises at 271 Albany Avenue to Plaintiff and she permitted him to relocate to 287 Albany Avenue. Plaintiff operated a delicatessen and convenience store at the premises. On or about January 31, 2000, Plaintiff executed a written lease in favor of Erika Lawrence, which was received into evidence as Exhibit 1. Although the term was stated to run from February 1, 2000 through January 31, 2003, it is undisputed that Plaintiff remained in possession until sometime in December of 2005 and the evidence admitted at trial establishes that he continued to make rental payments to Ms. Lawrence, through late 2005. Thus, pursuant to Real Property Law § 232–c, the lease was converted to a month to month obligation. Plaintiff continued to operate his business until sometime in 2003 when he allowed his cousin Geneva Lee to succeed him, utilizing his personal property. Even so, Plaintiff retained title to the trade fixtures and other chattels used in the business. Ms. Lee operated her business until August or September of 2005 at which point he re-entered the premises. While he did not re-open a business, he remained in possession of the premises, keeping all of his trade fixtures and chattels in the store. The premises were secured by padlocked gates over the two windows and the door. While Plaintiff had no written evidence regarding the sub-lease to his cousin, his testimony was unrefuted and not incredible on its face. Moreover, despite Defendant's claims to the contrary, Plaintiff produced handwritten receipts from Erika Lawrence evidencing payment of rent beyond January 31, 2003. Plaintiff stated that in December of 2005, he was driving past the premises (which he did on a daily basis) when he saw a dumpster in front of the premises and the security gates opened, his padlocks having been forcibly removed. Plaintiff stopped his vehicle, went inside the store where he spoke with a man there who told him that the building had been sold. Feeling at a loss, Plaintiff went to the First Precinct of the Suffolk County Police Department where he was advised to retain counsel. Plaintiff testified that at no time did he receive any notification that the premises had been conveyed nor had any action been commenced against him to obtain possession of the premises.
The Court received into evidence, as Exhibit 11, a listing of specified equipment, prepared by Sharon Davis. Ms. Davis testified in this proceeding, informing the Court that she met Plaintiff at Holy Trinity Baptist Church in 2001 where they both worshipped. In April of 2005, she and Plaintiff discussed the fact that he was, for all intents and purposes, out of business and that he was desirous of selling the equipment used therein. Ms. Davis engaged in various efforts and ultimately obtained an offer of $33,000.00 for the sale of Plaintiff's equipment. The offer was received in November of 2005 from Rev. Ronnie C. White Sr. of Martha Ministry in Georgia, who planned to utilize the equipment for the opening of a soup kitchen. The equipment was to be trucked to Georgia under arrangements to be made by Rev. White and Ms. Davis was to receive the sum of $3,000.00 for her brokerage services, leaving Plaintiff to realize $30,000.00 from the sale. Since possession of the premises were taken by the new owner, Plaintiff claimed that he was unable to obtain access to the equipment, thus preventing its delivery to Rev. White and its corresponding shipment to Georgia, effectively scuttling the proposed sale.
On behalf of Defendant, testimony was adduced from Chris Ferencsik, Henry Terranova and Eddie Maoirino, each of whom testified that they were members of the Defendant limited liability company. Mr. Maiorino was, coincidentally, the principal of Dependable Contracting & Demolition, the entity that cleaned out the premises on behalf of Defendant and is purported to have disposed of Plaintiff's property in the dumpster. It was determined that Mr. Terranova entered into a Contract of Sale for the purchase of the premises for $325,000.00 on or about August 6, 2004 (Exhibit E in evidence) which he thereafter assigned to Defendant. The premises were ultimately conveyed to Defendant by Deed recorded December 19, 2005 (Exhibit F in evidence). Testimony indicated that Plaintiff's store never appeared to be open to them. In addition, Paragraph 16(d) of the Contract of Sale guaranteed delivery of the premises free of tenancies and Defendant claimed that it did not receive any rents or leases from the seller nor any assignments thereof and no representation was made regarding month to month tenancies. Indeed, Defendant asserted that there was no tenancy and that the premises were vacant. These witnesses also stated that as of the date of trial, Plaintiff's equipment was still present at the premises and that he could reclaim it at any time.
In a matter such as this one, it is the province and indeed the obligation of the trial court to assess and determine matters of credibility, Morgan v. McCaffrey, 14 AD3d 670, 789 N.Y.S.2d 274 (2nd Dept.2005), Matter of Liccione v. Michael A., 65 N.Y.2d 826, 482 N.E.2d 917, 493 N.Y.S.2d 121 (1985). Here, in this civil matter, the burden is upon the Plaintiff to plead and prove his direct case by a fair preponderance of the credible, relevant and material evidence, Prince–Richardson On Evidence, § 3–210, Torem v. 564 Central Avenue Rest. Inc., 133 A.D.2d 25, 518 N.Y.S.2d 620 (1st Dept.1987). The Court notes that Plaintiff has the equivalent of a sixth grade education as well as attendant difficulties in reading and this factor is taken into consideration in evaluating his testimony as well as his overall veracity. The Court further notes that Mr. Terranova's testimony was effectively impeached by Plaintiff's counsel through the use of Defendant's documentary evidence. The Court finds that the evidence adduced does not support Defendant's claim of abandonment of the premises by Plaintiff. After careful consideration of all of the matters alleged, the quality of the evidence adduced and the credibility of all witnesses who testified, it is the determination of this Court that the Plaintiff has sustained his burden of proof by a fair preponderance of the relevant, credible and material evidence. The Court further finds that Defendant has failed to adduce sufficient evidence to sustain its five affirmative defenses.
The applicable law to this controversy can be found in both the Real Property Law (“RPL” and the Real Property Actions & Proceedings Law (“RPAPL”). As a threshold matter, on January 31, 2003, when the written lease expired by its express terms, Plaintiffs status became transformed to that of a holdover tenant. Upon acceptance of rent by the landlord after that date, Plaintiff became a month to month tenant, with his tenancy governed by the terms and conditions set forth in the written lease and further entitled to the protections of RPAPL Article 7, Bonner v. Nash 70 Misc.2d 752, 335 N.Y.S.2d 93 (N.Y.App. Term 1st Dept., 1972), Aronson v. Markulin 39 Misc.2d 273, 240 N.Y.S.2d 689 (Civil Ct., Bronx County, 1963). The entry upon the premises at issue by Defendant without giving statutory written notice and by failing to invoke the provisions of RPAPL § 711 et. seq. constituted both a wrongful eviction and a trespass, thereby entitling Plaintiff to recover damages from Defendant, Kepo Inc. v. Romano 85 A.D.2d 621, 445 N.Y.S.2d 23 (2nd Dept.1981), appeal denied 56 N.Y.2d 505, 451 N.Y.S.2d 1026, 436 N.E.2d 1345 (1982).
Ordinarily, the measure of compensatory damages for wrongful eviction would be the value to Plaintiff, above and beyond the rent, of the unexpired term of the leasehold interest plus the actual amount of damages that flow from the wrongful ejectment, North Main Street Bagel Corporation v. Duncan 37 AD3d 785, 831 N.Y.S.2d 239 (2nd Dept, 2007). Here, the evidence adduced leads this Court to conclude that Plaintiff's leasehold has no ascertainable value, hence Plaintiff's recovery must be limited to whatever actual damages he may have reasonably sustained as a result of Defendant's actions. It has been held that under such circumstances, the tenant is entitled to recover actual damages, including the cost of fixtures and equipment, Sam & Mary Housing Corp. v. Jo/Sal Market Corp. 106 A.D.2d 901, 474 N.Y.S.2d 786 (2nd Dept.1984). Plaintiff claims damages in the amount of $30,000.00, the value of the equipment on the premises which, he asserts, was wrongfully withheld from him. This figure is based neither upon the cost of acquisition nor upon an appraisal but rather upon the sum that a third party was willing to pay for the chattels in an arm's length transaction. The evidence presented by Plaintiff has established, to the satisfaction of the Court, that the value of the equipment, at the time of ouster, was $30,000.00. Defendant failed to adduce any evidence as to the value of the equipment at issue in this action. The Court finds that Plaintiff is entitled to recover actual damages in the sum of $30,000.00 from Defendant.
Turning to Plaintiff's claim for recovery of treble damages from Defendant, the Court must begin with an examination of RPAPL § 853. That statute reads as follows:
“ If a person is disseized, ejected or put out of real property in a forcible or unlawful manner, or, after he has been put out, is held and kept out by force or by putting him in fear of personal violence or by unlawful means, he is entitled to recover treble damages in an action therefor against the wrong-doer.”
This statute was originally found in the Revised Statutes Part 3, Chapter 5, Title 6, Section 4, later codified as Code of Civil Practice of 1876, § 1669, later becoming RPL § 535, pursuant to Chapter 930 of the Laws of 1920, New York's so-called “Forcible Entry and Detainer” statute. A fair reading of the plain language of the statute demonstrates that the ouster complained of may be either by force or other unlawful means or by the use of force or intimidation after ouster. Thus, unlike the old Forcible Entry and Detainer statute, there need not be the commission of actual violence nor intimidation in order for treble damages to lie.
Based upon the admissible evidence in this matter, the Court concludes that Plaintiff has established his entitlement to treble damages as permitted by RPAPL § 853, said damages determined to be fixed in the amount of $90,000.00, in addition to the actual damages hereinabove set forth.
It is, therefore,
ORDERED that the Plaintiff BEN PERNELL recover of the Defendant 287 ALBANY AVENUE LLC actual damages in the amount of $30,000.00 with interest thereon at the statutory rate from December 15, 2005 together with treble damages in the amount of $90,000.00 pursuant to RPAPL § 853, together with the costs and disbursements of this action and that Plaintiff have execution therefor.
Settle judgment on ten days' notice.