Opinion
803330/18
06-15-2018
Damien WILSON, Petitioner, v. RAPUT LLC, John Doe and Jane Doe, Respondents.
Bronx Legal Services, Petitioner's Attorney, 349 E. 149th Street, 10th Floor, Bronx, New York 10451 Novick, Edelstein, Lubell, Reisman, Wasserman & Leventhal, PC, Respondent's Attorney, 733 Yonkers, New York 10704 Julia Medina Santana, Third Party Respondent, 2683 Morris Avenue, Apartment B, Bronx, New York 10468 John Doe, Third Party Respondent, 2683 Morris Avenue, Apartment B, Bronx, New York 10468
Bronx Legal Services, Petitioner's Attorney, 349 E. 149th Street, 10th Floor, Bronx, New York 10451
Novick, Edelstein, Lubell, Reisman, Wasserman & Leventhal, PC, Respondent's Attorney, 733 Yonkers, New York 10704
Julia Medina Santana, Third Party Respondent, 2683 Morris Avenue, Apartment B, Bronx, New York 10468
John Doe, Third Party Respondent, 2683 Morris Avenue, Apartment B, Bronx, New York 10468
Enedina Pilar Sanchez, J.
Procedural History Prior to the Hearing.
Petitioner commenced this proceeding by Order to Show Cause in Lieu of Petition and Notice of Petition seeking to be restored to possession of the premises located at 2683 Morris Avenue, Apartment B, the Bronx, New York.
On March 23, 2018, respondent's counsel informed the court that the apartment was rented. The case was adjourned to serve "John Doe" and "Jane Doe." Julia Medina Santana appeared as "Jane Doe." "John Doe" did not appear. Ms. Santana is in possession of Apartment B.
The Hearing .
Petitioner's Case:
On May 8, 2018, petitioner was sworn in and testified. Petitioner's testimony was credible.
Petitioner testified that he moved in with his great-grandfather and uncle. After his great-grandfather passed away, Mahmood Tariq, acting as a member of the respondent LLC, came over to the apartment. Petitioner stated that Mahmood Tariq wanted petitioner to leave the apartment so that repairs could be done. Petitioner acquiesced so that the repairs could be done. Petitioner testified that Mr. Mahmood insisted that the furniture had to be removed to do the needed repairs.
On December 11, 2017, with the assistance of the Mahmood Tariq, petitioner moved his belongings to his mother's home. Mr. Mahmood drove his pickup truck, helped petitioner load the belongings onto the vehicle, drove the vehicle and helped unload the items onto the street. On December 11, 2018, while the move was taking place, respondent asked petitioner for his identification. Petitioner provided his identification. Respondent copied the identification. Petitioner signed his name on the page. Petitioner stated that he also signed a blank piece of paper. He was not given a copy of the papers he signed. When he signed the papers, Mahmood Tariq and his son, Daniyal Tariq, were the only persons present.
Petitioner stated that about once a week he and his mother would go by the office to ask about the papers. Petitioner stated that he was seeking the lease. He was told that the documents were not ready. Petitioner testified that when he visited the office, Daniyal stated that he could move into the apartment in 2 to 3 days.
Petitioner's witness, Mitchell Wilson was sworn in. Ms. Wilson is petitioner's mother.
Ms. Wilson testified that her grandfather lived in the apartment for 30 years. After her grandfather passed, she spoke to Mr. Mahmood Tariq about the apartment. It was her understanding that the apartment would be renovated and her son would live in the apartment. There was no discussion that the apartment would be surrendered. Ms. Wilson testified that she would text Mr. Mahmood Tariq and he would call her back. Ms. Wilson stated that on December 2, 2017, Mr. Mahmood Tariq called back and said that he was still waiting for the permits. Ms. Wilson testified that Mr. Mahmood Tariq said that it was not safe to stay in the apartment because there would be asbestos removal. After December 11, 2017, Ms. Wilson testified that she kept calling Mr. Mahmood Tariq and he told her that she did not have to call every day. The printed text messages were entered into evidence.
Ms. Wilson visited the management office several times. Mr. Daniyal Tariq would be in the office and he would tell Ms. Wilson, that she just missed his father or that his father had the file with him. Ms. Wilson was shown the apartment four times by Mr. Daniyal Tariq.
Respondent's Case:
Mr. Tariq Mahmood was sworn in and testified. He is a member of the respondent LLC. He testified that after the tenant of record passed away, he was told that no one was interested in the apartment. He testified that the first time he saw petitioner was on December 11, 2017, the same day that he helped petitioner move out and had petitioner sign papers. Mr. Mahmood testified that the tenant of record owed some rent and that petitioner had no money to pay — and so he helped him move out. Mr. Mahmood denied telling petitioner to move out so that repairs could be done.
The renovations were finished and the apartment was listed with a broker. A lease was given to Julia Medina Santana, the new tenant and 3rd party respondent. The lease was offered into evidence. The lease is for a one-year term commencing February 15, 2018 to February 14, 2019. Mr. Mahmood stated that the new rent is $2,000 because of the renovations that were done.
The Court notes that the lease offered into evidence states on the top that it is a "Plain Language Standard Apartment Lease." The rent is $2000 per month. The lease states that the apartment is rent stabilized but it does not contain the required riders pursuant to the Rent Stabilization Code and DHCR Rules and Regulations.
--------
Mr. Mahmood testified that the apartment was not in such bad condition and as such one could continue to live in it. Mr. Mahmood stated that he did not see the text messages sent to him by Ms. Wilson. During cross examination Mr. Mahmood stated that the telephone number on the text messages sent by Ms. Wilson is his telephone number.
Respondent sought to introduce a "surrender of residential space." On voir-dire , it was revealed that the notary, who is alleged to have witnessed the signature, is the daughter of Mr. Mahmood. It was unrebutted that she was not present to witness the signing of the papers. The document was not an original and not admitted into evidence.
The 3rd party respondent, Julian Medina Santana was present during the trial. She was granted the opportunity to participate. She did not ask questions or testify on her own behalf.
Discussion
An illegal lockout case may be found where the petitioner was in actual or constructive possession of the premises and the respondent's entry was either forcible or unlawful. Romanello v. Hirschfield, 98 AD2d 657, (1st Dept., 1983), aff'd as modified 63 NY2d 613 (1984) ; Mondrow v. Days Inns Worldwide, Inc. , 53 Misc 3d 85 (App. Term, 1st Dept. 2016) ; Truglio v. VNO 11 East 68th Street, LLC., 35 Misc 3d 1227(A) (NY Civ Ct., New York County 2012) ; Dixon v. Fanny Grunberg & Associates LLC, 4 Misc 3d 139[A], (App. Term 1st Dept., 2004) "a landlord-tenant relationship is not a sine qua non to the maintenance of a forcible entry and detainer proceeding." 3855 Broadway Laundromat, Inc. v. 600 West 161 Street Corp ., 156 AD2d 202 (1st Dept., 1989) .
Surrender of an apartment may be by written document, by operation of law or by abandonment. Surrender of apartment is defined as "a tenant's relinquishment of possession before the lease has expired, allowing the landlord to take possession and treat the lease as terminated." Coleman v. Onsite Property Management, Inc., 805127/14, NYLJ, 1202664230667 (Civ. Ct. Bronx Co., 2014). Respondent asserts that petitioner surrendered the apartment and bears the burden of proving this defense. (see Sam & Mary Housing Corp. v. Jo/Sal Market Corp., 121 Misc 2d 434 (Sup. Ct. 1983) ).
It is undisputed that petitioner, with the assistance of Mr. Mahmood, removed his belongings from the apartment. These circumstances, as described, do not constitute a surrender or an abandonment. Respondent did not meet the burden to establish surrender or abandonment.
The Court finds under the facts presented and the credible testimony, that petitioner was in possession of the apartment for more than 30 days. Petitioner credibly testified that he relocated to allow respondent to do repairs in the apartment. Petitioner and Ms. Wilson credibly testified that there were ongoing communications with Danyil Tarqic and text messages to Mr. Mahmood regarding the apartment. Petitioner's credible testimony was not rebutted.
The Court finds that Mr. Mahmood was not credible. Mr. Mahmood stated that he did not see or know petitioner before December 11, 2017, and yet he was ready, willing, and able to transport petitioner's belongings to the home of Ms. Wilson. Respondent's testimony regarding the alleged surrender of the residential space was not supported by any admissible evidence.
Petitioner relied upon the statement of Mr. Danyil Tariq, the registered agent for the subject property. Petitioner's testimony that Danyil Tariq repeatedly affirmed that petitioner would be moving in upon completion of the repairs.
The Court finds that petitioner was effectively removed from the apartment without the benefit of legal process and as such a wrongful eviction occurred under the law. The N.Y.C. Administrative Code at Section 26-521(3) provides that "engaging or threatening to engage in any other conduct which prevents or is intended to prevent such occupant from the lawful occupancy of such dwelling unit or to induce the occupant to vacate the dwelling unit " constitutes an unlawful eviction. The installations of new locks, denial of access, forcible entry and deprivation of personal property without benefit of any legal process constitutes wrongful eviction. Petitioner did not surrender or abandoned the premises. The conflicting information and lack of rebuttal evidence confirms that petitioner was removed under a pretext. Mr. Mahmood's conduct induced the occupant to vacate the dwelling unit. Whether the premises needed to be free of occupants to perform repairs or renovations is not dispositive. Respondent created and participated in a scheme to remove petitioner from the premises without the benefit of legal process.
Possession of the Premises
The 3rd party respondent, Ms. Julia Medina Santana entered into a lease agreement with the respondent. The lease agreement is dated February 15, 2018. Ms. Santana was sworn in and given an opportunity to testify. Ms. Santana stated that she lives in the apartment with her family and pays the rent. She did not ask questions.
In balancing of the equities between petitioner and Ms. Santana, the Court heard the testimony of the parties. Based upon the credible testimony, the Court finds that the equities weigh in favor the petitioner. Respondent employed a scheme to secure the apartment under a pretext that the premises must be emptied to perform renovations or repairs. While the apartment was vacant for renovations/repairs Mr. Mahmood rented the apartment to a third party. The court has discretionary authority in restoring petitioner to possession even when a 3rd party respondent has a lease. The equities weigh in favor of restoring petitioner to possession. See, Emerald 115 Mosholu, LLC v. Smith, 57 Misc 3d 155(A) (App. Term, 1st Dept. 2017; Pomeroy Company v. Thompson 5 Misc 3d 51 (App. Term 1st Dept. 2004) ; BFT Realty v. Medina, 28 Misc 3d 1221(A) (Civ. Ct. Bronx County 2010) ; Fish v. Simpson, 124 Misc 2d 496 (NY Co. Civ. Court 1984).
It is ORDERED that petitioner is restored to possession forthwith and granted a judgment of possession against respondent and the 3rd party respondents. The execution of the warrant of eviction is stayed through August 15, 2018, for the 3rd party respondents to vacate.
It is FURTHER ORDERED that petitioner is awarded treble damages, pursuant to RPAPL § 853. Petitioner's claim for damages is severed for a plenary action consistent with this Decision/Order.
This Decision and Order is being mailed to all parties. Parties may retrieve their documents from Part A, Room B-129.
This constitutes the Decision and Order of the Court.
So ordered.