Opinion
051182-KLT -2015
08-23-2018
Frederick RUFRANO, Petitioner, v. Michael YOVINO, Respondent.
Alfred Amadio, Esq., Clark & Amadio, 230 Hilton Avenue, Suite 201, Hempstead, NY 11550, Attorney for Petitioner Gerald Slotnik, Esq., of Counsel to Joshua Bronstein, Esq., 1833 East 12th Street, Suite 6L, Brooklyn, NY 11229, Attorney for Respondent
Alfred Amadio, Esq., Clark & Amadio, 230 Hilton Avenue, Suite 201, Hempstead, NY 11550, Attorney for Petitioner
Gerald Slotnik, Esq., of Counsel to Joshua Bronstein, Esq., 1833 East 12th Street, Suite 6L, Brooklyn, NY 11229, Attorney for Respondent
Katherine A. Levine, J.
At issue is whether respondent Michael Yovino ("respondent," "tenant," or "Yovino") subsequently added material terms to a lease that had been signed by petitioner landlord Dr. Frederick Rufrano ("landlord" or "Rufrano"), and whether the three initials of "F.R." ( the alleged initials of Rufrano) affixed to these changes were forged. Rufrano claims that he never agreed to the additional material terms of the lease and never affixed his initials to those terms. Yovino claims that Rufrano agreed to these terms during a "second seating" of the lease where he affixed his initials to those terms. As will be described below, the court credits the testimony of Rufrano and his expert that the initials were forged and that Rufrano never agreed to the additional material terms. Since Rufrano never accepted the counteroffer, there was no meeting of the minds as to the final lease agreement and it was not valid or enforceable.
Rufrano testified that he met with Yovino on or about December 23, 2013 and presented him with a standard lease form. They agreed that the rent would stay at $1,000 which Yovino had previously been paying to Rufrano's aunt. Yovino had been a month to month tenant operating a gentlemen's social club at 498 Graham Street for about eight to nine years. Dr Rufrano obtained joint ownership of the property in 2002, and, over time, began to take over the responsibilities of collecting rent and paying bills. Over the years, the aunt had permitted Yovino and his social club to use the yard for barbecues and even had a table and barbecue equipment set up in the yard for that purpose. During their negotiations, Rufrano told Yovino he could continue using the yard for barbecuing and keeping some of his things there.
Rufrano wanted to establish a term of years lease with the social club after an elderly gentlemen from club fell on the property and sued for damages, resulting in Rufrano losing his insurance coverage. Dr. Rufrano testified that the only way his new insurance company agreed to cover him was to ensure that the tenants carried insurance on the one small commercial space of the building and that Rufrano be named as the secondary insuree under the policy. To that end, Rufrano wrote in all large block lettering on the lease including the lease term of seven years on the first page, and paragraph 28 on the third page which addressed the insurance issue. Rufrano also agreed to Yovino's request to add a provision concerning damages and changing light bulbs, which Yovino wrote and Rufrano initialed on the middle of the first page. This initial is the only one that Rufrano claims he put on the lease. This agreed upon provision and all the other small block writing on the lease were put in by Yovino.
Although not determinative of this action per se, Rufrano has maintained that he never received a document of bound insurance with him named as an additional insured from the tenant and doubts that they ever got the insurance, which, if true, constitutes a material breach of the lease. However, since Rufrano claims that the lease does not exist, then theoretically, Yovino had no obligation to obtain the insurance.
Rufrano recalls writing his signature on the lease twice in front of Yovino on or about December 13, 2013. He did not take the original when he left the premises because the copying machine was broken and Yovino wanted a copy, so he told Yovino to mail him the original with the next rent check. Rufrano explained that he signed the lease twice simply because "Mr. Yovino asked me to sign twice I don't know why and I just did." (2/11 at 39). At the time Rufrano signed the last page, there was no handwritten material around the signature line and he does not think that Yovino signed his name to the lease at that time. The court credits Rufrano's testimony that he never received a copy of the original lease from Yovino until 11 months passed and his attorney served Yovino with a notice of termination. This was the first time that Rufrano became aware that Yovino had altered the original agreement without his consent. Rufrano contends that other than the initials "F.R." that he placed next to Yovino's writing that the "landlord is responsible for all electrical plumbing and changing light bulbs," the other three initials "F.R." placed on the first page of the lease as well as the small handwritten terms were forgeries. Rufrano claims that the first forged initial was next to the name Michael Yovino, and that the second forged initial was next to the small print handwritten term that "Rent will be paid in two parts on third and second portion of rent on the 18th of the month," and that he never agreed to this provision, although he did accept the rent in two $500 parcels. (2/11 at 34-35). The third claimed forged initial was underneath the term "social club" (which Rufrano originally wrote) and by the small print handwritten terms "commercial use & business block 2720 Lot 1, lot 2;" and "connected to side building, usage of yard (lot 2) and 500 Graham Avenue entrance (Access to Yard lot 2)," all of which he never agreed to.
Rufrano testified that he wrote in paragraph 28 on the third page of the lease agreement pertaining to the insurance clause, but did not write in or agree to the clause "For 498 Graham Avenue, Brooklyn... RE: seven year lease for storefront Brooklyn (ground floor and lot 2 - yard)" next to paragraph 28. Rufrano explained that it would have been ludicrous for him to agree to this clause since both the storefront and lot two were zoned residential, and permitting commercial use to part of lot 1 and all of lot 2 would merely increase his insurance premiums and expose him to greater insurance liability and thus undermine his interests.
Page 2 of the lease was never put into evidence.
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Contrary to Rufrano's testimony, Yovino claims that the lease was signed on December 1, 2013, and that it gave him access to the entire first floor, including the back room, at 498 Graham Street and the commercial lot yard at 500 Graham. Yovino testified that the lease itself was signed in two separate sittings; the first occurred at approximately 12 pm. Thereafter, Rufrano left to collect rent and returned for the second sitting approximately three hours later. However, Yovino's explanations as to what was added into the lease and when it was added are incomprehensible. He first claims that at the conclusion of the first sitting, Rufrano signed and initialed the lease twice, and told Yovino that he could add stipulations. However, Yovino was unclear as to which two initials Rufrano affixed during the first sitting and which he affixed during the second sitting. Nor was he clear as to whether he handwrote the provisions about having access to the whole first floor as well as to the commercial space in the lot during the three hours when Rufrano was not in 498 Graham and supposedly collecting rent or during the second sitting.
To compound this juggernaut, Yovino then testified that it was Dr, Rufrano and not he who added certain terms during the three hours while he was collecting rent, since Rufrano left the first sitting with the two original copies, and returned with duplicates of the original, one of which had Rufrano's modifications. He claimed that Rufrano included the term "social club" in lease prior to the first sitting, and that the phrase "commercial use and business" were written by Yovino with no initial next to it. Yovino testified that two of the four initials placed by Rufrano were "floating initials" although he was not sure which two were the floaters. He further claims that during the two "sittings," "whatever we agreed to, he would tell me okay, he would write his initials," and that Rufrano gave Yovino permission to fill in the terms next to Rufrano's floating initials. Yovino believes that Rufrano's floating initials at the top of the first page of the lease revealed his "consent " to the entire lease, and that two of the four initials by Rufrano were left open for Yovino to fill in the terms that they had agreed upon. Upon returning for the second sitting, Yovino added that the "landlord is responsible for all electrical and plumbing" which Rufrano initialed. Yovino claims Rufrano granted him access to the whole first floor as well as the yard for barbecues, social club and storage for purposes of selling "general merchandise" (6/23 at 28), as evidenced by Rufrano affixing his initials to said clauses twice on the first page. Additionally, he claims that Rufrano agreed to allow him to use the backroom as an office, by affixing his initials to the terms "business and commercial use," as he was aware that Yovino intended to store and sell merchandise.
Yovino theorized that Rufrano wanted to remove him due to the increase in property value which would allow Rufrano to make more money on the lease. Yovino claims he was unaware that Rufrano did not have a copy of the lease and sent Rufrano a copy of the insurance paperwork for validation. Based upon his belief that the lease was valid, Yovino stored goods like air conditioners, canopies, freezers etc. and claimed to have had approximately 60 parties which Rufrano witnessed and did not object to. Yovino stored all of this merchandise in anticipation of hosting a massive flea market, which he does not have license to do.
Throughout the hearing, Mr Yovino demonstrated a maniacal view of his "right" to use the yard and backroom/bathroom, for commercial purposes. In pursuit of the great plans that Yovino had for developing the lot, he might have actually convinced himself that he owned the property. Yovino testified that he was going to use the yard for the following commercial uses: "storage, flea market, selling merchandise, many different things...2015 was my biggest plan because I spent over $13,000 in merchandise." (Tr. 8/15 at 45). These plans never came to fruition. He also stored many refrigerators and well over 100 chairs and air conditioners in the yard, because "When I barbecued, I had outside air-conditioner blowing cool air on me,..." (Tr. 8/15 at 46). Yovino claims that he registered his company "House of Reptiles" with the government. He chose that name "because of the type of people that were in my club had trouble paying bills The reason I came up with that name because of the days of Moses, he called the people vipers, I called them vipers, that's how I came up with the name reptiles" (Tr. 6/23 at 27-28). Yovino admitted that he did not make any money on his major barbecues for which he retained a cook and that it in fact cost him money. Questioned as to whether he did this out of the goodness of his heart, Yovino responded that "I'm known in the neighborhood for that." However, Yovino admitted that he never specified to Dr, Rufrano that he planned to rent out the yard for parties or that he was going to hold a flea market; he just stated "general commercial use. (Tr. 6/23 at 67).
Based upon the above, this Court finds Rufrano's testimony to be much more credible than Yovino's. In addition to the glaring inconsistencies in Yovino's testimony about floating initials and when and who placed all the additional handwritten terms on the lease, this Court finds the entire scenario testified to by Yovino about the "two sittings" to be incredible. First, according to Yovino, Rufrano agreed without any resistance to his request to use the yard on lot 2 and the bathroom/backroom at 498 Graham for "commercial uses." If that were the case, why was the signing of the lease not consummated within one sitting and why would Rufrano leave in the middle of the signing of a rudimentary lease to collect rent for three hours? Furthermore, if Rufrano had actually agreed to this expanded use of the yard and of the backroom, why did he not write these clauses in with his own handwriting since the evidence is crystal clear that all of the large block handwritten items on the first page and paragraph 28 concerning insurance were written by Rufrano. It just begs all credulity for there to be two cloak and dagger sittings for the signing of a basic lease if in fact the parties agreed that the yard and backroom could be used for commercial purposes. Moreover, Rufrano credibly testified that it was against his interest to allow such a use as it would increase his insurance liability.
Yovino's fixation on developing the yard for his various commercial ventures were at odds with the limited use that Rufrano and his aunt had allowed; i.e., barbecues for the social club members. Given Yovino's fixation on expanding his usage of the yard on lot 2, it is logical that he devised a scheme to get Rufrano to sign the lease twice, inform him he would subsequently mail him the original and then, after Rufrano left, obsessively add numerous clauses granting him the right to use the yard for commercial use. Had the parties actually agreed upon the commercial use of the premises, it would have been written once in clear bold letters on the first page of the lease.
This finding is confirmed by the testimony of the expert witness presented by the petitioner - Mr. Picciochi. Picciochi testified that a "questioned document examiner" is a forensic scientist who specializes in examination of disputed handwriting and suspect documents. He has worked in that field for over 30 years. He first worked in the NYPD Crime and Laboratory Forensic Investigation division for 20 years and since then has been self-employed. He earned a Master of Science with a concentration in Forensic Science and then underwent three years of extensive training with the Police Department, and supplemented this training through FBI and Secret Service programs. In addition, Picciochi taught forensic science at Hofstra University, John Jay College, and City University of New York. He is a member of the American Academy of Forensic Sciences, the Midwest Assn. of Forensic Scientists, and three other societies. He is also certified by the American Board of Forensic Document Examiners in the field of questioned document examination; certification entails written, practical and oral testing accompanied by continued recertification. Picciochi testified that he has been retained as an expert on handwriting and expert in handwriting on over 100 other cases in various courts.
Defendant's expert, Mr. Curtis Baggett, identifies himself as a "forensic document examiner handwriting expert" (10/27/16 at 67) and claims to have testified in every state in the country in both state and federal court. In addition, he lectures at the "School of Forensic Document Examination at Handwriting University" which is owned by his son. Mr. Baggett studied for two years in Dallas under Dr. Ray Walker to obtain a certificate in document examination; this is his only formal training in this area. However, it is unrefuted that Ray Walker was also disqualified as an expert. Baggett supplements his CV with book publications and appearances on television court programs. While Mr Baggett claims to have testified in both state and federal court, five federal courts found him unqualified because his methodology could not be substantiated On cross examination, upon being presented with these decisions, he responded that they were "a lie" as he was not paid or retained to appear in them. (10/17 at 73). In addition, Mr. Baggett has not been certified by any of the 20 organizations in his field, as noted by a federal district court in Georgia as one of the reason it found his credentials to be paltry in comparison to the other expert. Baggett was dismissive and argumentative when questioned as to whether the American Board of Forensic Document Examiners was the gold standard for handwriting experts in the U.S., stating that it was not for the "6900 people who are not members..." (Tr. 10/17 at 69).He also did not refute assertions made by counsel for petitioner during cross-examination, that his work has never been peer reviewed and that he has never published in a scientific journal, although he does not think that any of these factors would disqualify him from being a member of any of the recognized document examiner associations.
This court understands that years of experience can be sufficient to qualify an individual as an expert and so qualified Baggett for that reason. However, in assessing how much weight and credibility to give to the testimony of an expert, one must also consider the expert's credentials in his field which is measured by membership in and adherence to guidelines proscribed by respected professional associations. This court finds that Mr. Picciochi's background and credentials as a "Questioned Document Examiner" are much more substantive and venerable than those of Mr. Baggett. While Picciochi was a member of the "Gold Standard" association, had years of forensic experience in governmental agencies, and kept abreast of the latest trends in the area of expertise, Mr. Baggett seems to have had little formal training and exhibited a cavalier and dismissive attitude towards any and all professional associations in his field.
Furthermore, this Court finds that the methodology and analysis used by Picciochi was much more reliable than that employed by Baggett. Picciochi testified that handwriting identification requires examination of individualistic characteristics of the writing through identifying marks and properties in letter designs, formations, and analysis of the relationship between one letter and another in the movement or manner of execution. This combination of characteristics, which recurs in the writing of any individual, allows document examiners to distinguish between the handwriting of different people. There are three phases to this identification: Mr. Picciochi starts with an independent analysis of the questioned writing by looking for individual characteristics, then separately examines other known writing exemplars, and then compares them side by side to find significant similarities or differences between the two as well as for any limitations in the analysis.
Here, Picciochi first surveyed the original lease and conducted a thorough examination of the four initials in dispute. He then studied Rufrano's "known writings" which consisted of 41 samples of his initials, some of which were samples witnessed and notarized by Rufrano's attorney, such as check ledgers, canceled checks and lease agreements, and finally compared the four initials in question with the known writings. Mr. Picciochi prepared a series of charts to demonstrate the different features between the first three "F.R" initials on the lease which he denominated (Q1, Q2, Q3) and the last one (Q4). He first studied the movements of the characters in the four initials by using a microscope to look at the ink lines of the initials. He then compared the individualized characteristics of the four initials on the lease with the initials from the known samples (denominated K-34), side by side, looking at the style of writing (script versus print), direction and sequence of strokes, manner of the connection between the lines, the curvature of the horizontal strokes in the F, and the balance of the cross stroke of the F (3/11 at 8). He testified with a "high degree of confidence" that initials Q 1-3 were "unlikely written by the true signatory" but that Q4 was written by Rufrano (3/11 at 28).
This conclusion was based upon the "fundamental differences in the individualizing characteristics" of the initials Q1-3 and no significant similarities to the compared initials. (2/11 at 94). Picciochi used a procedure entitled Scientific Working Group for Document Examiners SWGDOC (3/11 at 14) in comparing the initials on the lease to Rufrano's initials on other documents so that the initials could be viewed side to side. Specifically, Picciochi found that the letter "F" in Q1, 2, and 3 were all in print form, whereas Q 4 was cursive, as was the case of all the known initials set forth in K-34 (3/11 at 22-24). He then looked at the formation of the staff (vertical stroke of the letter F) and cap (top horizontal stroke of the letter F). Picciochi found that in Q 1-3 that the first stroke was the staff written from top to bottom, followed by the cap and then the cross stroke, whereas in Q 4 and K34 the writer's first stroke was the cap going from left to right with a small loop and the second stroke went downward forming the staff (3/11 at 18). He again concluded that horizontal stroke and shape of the initials in Q1, 2, and 3 were different from the initials in Q4 and the known exemplars. (3/11 at 24). Picciochi then looked at the connecting stroke between the F and the R. While in Q 1-3, the middle horizontal stroke went from left to right and then downward to form the staff of the R, in Q-4 and K-34, the middle stroke of the F went from left to right upward and then downward to form the staff of the R (3/11 at 21). He also noted that the horizontal stroke of the F was basically straight in Q1-3 whereas in Q-4 and K 34 there was a "very curved like formation to both the cap and the horizontal stroke of the F." (2/11 at 113, 119)(Pl. Ech. "8"). Finally, he found that in Q 1-3 the cross stroke was longer on the rights side and shorter on the left side of the staff, whereas in Q-4, there was a "balance", meaning that the cross stroke was about even on both sides of the vertical portion of the staff (Tr. 2/11 at 118-19). Based on all of these differences, Picciochi concluded "to a high degree of probability" that Q1-3 were written by someone other than Rufrano. He also claims that number of compared initials (40) was sufficient in reaching his conclusion.
Baggett testified that the four initials on the lease were almost certainly written by Rufrano. Baggett reached this conclusion, as set forth in his March 2016 letter to Yovino, by viewing a copy of the lease agreement and comparing it to four "known writings" of Rufrano which consisted of copies of four cancelled checks that Dr Rufrano has signed on the back (7/31/2017 at 6). Baggett enlarged the questioned and known documents by 200% with a copy machine instead of putting each document under a microscope. He used a ruler for measuring the spacing, height, and width of the letters. Unlike Mr. Picciochi, Baggett does not believe that a microscope should be used as a primary tool for document examiners; in most cases enlarging the image 200% is adequate to make an accurate determination, because using a microscope is "very tedious" ( Tr. 7/31/2017 at 7). Baggett also compared the initials on the front page of the lease to Rufrano's printed handwriting on paragraph 28 of the lease to "match" the initials (7/31/2017 at 33). He reasoned that the four exemplars of Rufrano's signatures were enough to make a determination because the questioned initials match "almost perfectly" to paragraph 28 (Rufrano's confirmed writing). However, he did admit during cross examination that he usually prefers to have between six to ten exemplars. When confronted with more examples of Rufrano's initials, Baggett maintained that this only verified his conclusion (7/31/2017 at 30), that the four exemplars were sufficient because he is the "best handwriting examiner in the United States." (7/31/2017 at 36).
Mr. Baggett relied "heavily on the book "Handwriting Identification: Facts and Fundamentals" by Huber and Headrick, which states that "whatever features two specimens of handwriting may have in common, they cannot be considered to be of common authorship if they display but one single consistent dissimilarity whose presence is not capable of reasonable explanation." (Tr. 10/27 at 84-87). Yet, in contradiction to these principles, Baggett justified his conclusion that Q 1-4 were the same, despite the differences between these four sets of initials, because in these differences, there are similarities like angles, shape, and form which make the writing verifiable (12/06 at 65-67). In addition, Baggett maintained that it was not unusual for Rufrano to print his initials three times on the lease and only use cursive once for his initials, because most of the writing in the rest of the lease was in print (12/06/16 at 56).
The court credits Picciochi's opinion that comparing initials to initials is the only proper way to conduct such examination. Comparing initials with full written signatures would taint the results of the examination because of the reflective and subconscious nature in which signatures are written (3/11 at 26). Picciochi also disapproved of this comparison because he needs "comparability;" meaning initials to initials or signatures to signatures. He needed to look at relationships between two letters, and the first and last name in a signature are not juxtaposed in the same way that two initials placed side by side would be. He elaborated on cross examination that the capital letters F and R are connected as initials but are not connected in Rufrano's signature which obviously has letters between the F and R. Finally, Mr. Picciochi testified that comparing the questioned initials with only four signatures would not be a sufficient basis for a document examiner to conclude with a "high degree of probability" who the author of the initials was. Looking at 41 known writings, on the other hand, was sufficient to identify both variations in writing which exist for any given individual and consistent writing patterns.
Based upon the above, this Court finds that three of the four initials on the first page of the lease were forged and that the handwriting next to these initials was not Rufrano's. This, combined with the Court's crediting of Rufrano's testimony over Yovino's testimony, leads to the inexorable conclusion that Rufrano never agreed to give Yovino control and use of the yard at 500 Graham Street or of the hallway/bathroom adjacent to the social club, and that he never authorized Yovino to use these spaces for commercial uses.
It is clear that "a lease is to be interpreted as a whole and construed to carry out the parties' intent, gathered, if possible, from the language of the lease." Arista Real Estate Holdings, Inc. V. Kemalettin , 133 AD3d 696, 697 (2d Dept. 2015). See, Himmelberger v. 40-50 Brighton First Rd. Apts. Corp. , 94 AD3d 817, 818 (2d Dept. 2012). A unilateral modification of a proposed contract of sale by a prospective purchaser constitutes a counter offer which the seller may unilaterally reject. If there is no meeting of the minds as to the essential terms of the agreement, the agreement is of no effect. See, Kling Real Estate, ltd. v. Palmer, 306 AD2d 445 (2d Dept. 2003). See also , Opals on Ice Lingerie v. Bodylines Inc., 320 F.3d 362, 372 (2d Cir. 2003) (parties did not have meeting of the minds with respect to an agreement to arbitrate where manufacturer did not sign addendum). Where one party signs a contract and then proposes several material modifications, which constitute a rejection of the proposed contract and a counteroffer, no contract exists unless the other party accepts the counteroffer. ADCO Elec. Corp. V. HRH Constr., 63 AD3d 653 (2d Dept. 2009).
The same rules of construction as are applicable to contracts apply to the interpretation of leases. Himmelberger, supra, 94 AD3d at 818. See, Backer Mgt. Corp. V. Acme Quilting Co. , 46 NY2d 211, 217 (1978). Therefore, a tenant's material modifications to a landlord's proposed lease extension agreement constitutes a rejection of the proposed agreement and a counteroffer. Where the landlord refuses to accept the terms of the tenant's counteroffer and does not initial or approve the changes, the lease extension agreement never becomes binding. Bahamonde v. Grabel , 34 Misc 3d 58,61 (App. Term, 2d Dept. 2011). Finally, where a signature on a contract (or lease) is forged, and no evidence is presented that the forger was authorized to execute the contract on a party's behalf, the contract or lease is void ab initio. Kwang Hee Lee, v. ADJMI 936 Realty Assoc. , 46 AD3d 629, 631 (2d Dept. 2007) ; Orlofsky v. Empire Sec. Sys. , 230 AD2d 401, 403 (2d Dept. 1997).
This Court has already found that Yovino made material modifications to the original lease by adding in the terms "commercial and organization lease," and "commercial use & business" under the words "social club;" and "connected to side building, usage of yard and 500 Graham Avenue entrance access to Yard lot 2." This constitutes a counter offer which Rufrano never agreed to or accepted, and never initialed, thus negating the validity or effect of the lease agreement that was signed by Yovino and Rufrano before the changes were made. Since no lease exists, this Court grants petitioner Rufrano's request for a warrant of eviction and judgment of possession. Should there be any extant issues that arise from this Order, the parties are directed to contact the court within 30 days of receipt of this decision.
This constitutes the Decision and Order of the Court.