Opinion
2003-809 K C.
Decided January 29, 2004.
Appeal by landlords from a final judgment of the Civil Court, Kings County (R. Birnbaum, J.), entered July 11, 2003, dismissing the petition.
Final judgment unanimously reversed without costs and matter remanded to the court below for the entry of a final judgment in favor of landlords for possession and for a hearing to determine the fair value of use and occupancy to be awarded to landlord.
PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
In this proceeding pursuant to RPAPL 713 seeking to remove occupants Jesus and Altagracia Rosado as squatters or licensees of the former tenants of record, Reynaldo and Minerva Espinal, whose license expired, the Housing Court's finding that occupants are not licensees or squatters is against the weight of the evidence. In this regard, we note that the testimony of landlord Abdus Shahid that the former tenants vacated the premises and surrendered the key to him on October 24, 1997 was supported by a DSS record showing that the former tenants and their three children moved from the subject premises to another address on that date. It was also supported by Minerva Espinal's admission, when she was confronted on cross-examination with this DSS document, that, contrary to occupants' claim that Reynaldo Espinal was in continuous occupancy in the apartment until his death on November 9, 2000, her husband had indeed moved out on October 24, 1997.
Moreover, occupant Altagracia Rosado's claim of continuous co-occupancy in the apartment since 1994 is contradicted not only by Shahid's testimony that the apartment was returned vacant on October 24, 1997 but also by Minerva Espinal's testimony showing that Rosado had married in 1997 and that Rosado's husband lived elsewhere. Espinal's further claim that Rosado sometimes stayed with them after her marriage (and sometimes with her husband) is not credible and, in any event does not establish a continuing occupancy. Therefore, we find as a fact that there was a surrender of the apartment on October 24, 1997 by the Espinals and that the occupants with the assistance of others, broke into the apartment on October 30, 1997 and have remained therein as squatters since then. Accordingly, we reverse the judgment, reinstate the petition, and direct the entry of a final judgment in favor of landlords for possession together with the fair value of use and occupancy, which shall be determined by the Housing Court upon remand.