Scott E. Mollen
Scott E. Mollen ()

Landlord—Tenant—Holdover Proceeding—Tenants Do Not Forfeit Their Primary Residence Status Due to A Temporary Absence—Even Where Temporary Absence Is Attributable to A Definite Term of Incarceration In Prison

A landlord commenced a holdover proceeding against respondent (“A”), John Doe and Jane Doe, on the grounds that “A’s” license to occupy the subject apartment (apartment) had expired upon the death of the tenant of record (“B”), on or about May 15, 2012. After the landlord moved to conduct discovery of “A,” the parties entered into a stipulation pursuant to which “C” appeared and was substituted as “John Doe.” The proceeding was marked off the calendar pending their completion of discovery.

Thereafter, “D,” allegedly “B’s” daughter, brought an order to show cause asserting that when “B” died, “B” had “a two (2) year lease that did not expire until February 28, 2014.” “D” asserted that the lease was part of “B’s” estate and as such, she and “C” had the right to occupy the premises until Feb. 28, 2014. The court permitted the respondents to amend “the Answer to assert Respondents’ right to occupy the Premises pursuant to ['B''s] unexpired lease.” “D” and “E” further alleged that “C” had vacated the apartment.

The parties thereafter entered into a stipulation settling the proceeding (stipulation). The stipulation provided that the caption would be amended to reflect “D” and “E,” as respondents; a final judgment would be entered in favor of the landlord and issuance of the warrant of eviction forthwith, with execution stayed until Feb. 28, 2014, on the condition that the respondents pay use and occupancy. The respondents had warranted that “they and their two (2) children [were] the only occupants of the Premises and they had not and would not sublet, assign or otherwise encumber the Premises through the date of vacatur.”

On March 4, 2014, “F,” a son of “B,” brought an order to show cause seeking to stay execution of the warrant of eviction against him. “F” claimed that he is entitled to succeed to “B’s” tenancy. He asserted that the apartment had been “his…only primary residence since 1977, and that the only time period he did not reside in the Premises on a day to day basis was from October 2006 until May 2013, when he was in prison.” “F” alleged that he was incarcerated from October 2006 to May 2013 and had moved back into the apartment since his release from jail. “F” produced a letter from his parole officer dated Oct. 18, 2005, copies of DMV records dated Aug. 9, 2005, a copy of a summary report of “F’s” child support obligations dated Jan. 27, 2006, and a copy of an IRS notice dated Nov. 7, 2005, all listing the apartment as his address. “F” also argued that he had not been named as a party, had not been served with any process, and had not been informed of the stipulation. “F” asserted that he was denied due process, that “his time in jail cannot impede upon his succession rights” and “D” lacked authority to bind him to the stipulation.

The landlord argued that since “F” had been named as “John Doe” in this proceeding, “F” failed to properly move to vacate his default and since “F” was “not named as a co-occupant on his mother’s Section §8 HAP Contract, he is barred from claiming succession.” The landlord also argued that “D’s” representations in the stipulation bars “F’s” succession claim, the landlord cannot be prejudiced by “F’s” “delay in asserting a claim for succession as it was not made aware of ['F''s] claim for succession or his whereabouts” and “F” “concedes he was not contemporaneously occupying the Premises two years immediately prior to his mother’s death, and he fails to offer a valid exception to such requirement.”

The court explained that “[d]ue process requires only that, for a warrant to be effective against a subtenant, licensee or occupancy, he be made a party to the proceeding, either by naming him in and serving him with the petition and notice of petition or by joining him as a party during the pendency of the proceeding.” Here, “F” had neither been named nor served in the proceeding “and would be deprived of due process since he will not have the opportunity to assert his claim of succession….” Since “C” had been substituted as “John Doe,” the landlord could not utilize the already amended “John Doe” for “F.” The court further explained that:

a tenant does not forfeit his primary residence status with respect to a rent-regulated premises due to a temporary absence therefrom. This is true where the tenant’s temporary absence is attributable to a definite term of incarceration in prison…. A patient or inmate of an institution does not gain or lose a residence or domicile, but retains the domicile he had when he entered the institution” Matter of Corr. v. Westchester County Dept. of Social Servs,…; see also. NY Const., Art II, §4 (‘No person shall be deemed to have gained or lost a residence, by reason of his presence or absence…while confined to any public prison.’)

The court further stated that, “[i]n New York, at least for apartments which are subject to rent control and rent stabilization, the prevailing law holds that imprisonment does not break the nexus an individual has with the subject premise as it relates to succession rights.” The court distinguished cases where tenants had still been “incarcerated at the commencement of the proceedings and serving a lengthy indeterminate sentence with no foreseeable release from jail” and where a tenant had not resided in an apartment for several years and had failed to show that he would “resume occupancy…in the foreseeable future.”

Here, “F” had been incarcerated for six and a half years and had been “conditionally released on May 31, 2013, and resumed occupancy of the [apartment] subsequent to his release.” “F” had provided documentation indicating that he resided at the apartment. The landlord, in rebuttal, had only submitted an affidavit asserting that the affiant “was unaware that ['F'] was in prison or claimed possession to the Premises, and a copy of ['B''s]…HAP contract failing to list ['F'] as an occupant of the Premises in 2001.”

The court found that “F” “was not bound by his mother’s failure to list him on the…HAP contract as an occupant,” that “F” had stated “a colorable claim of succession” and “should be provided an opportunity to be heard on said claim.” The court opined that “the prejudice allegedly suffered by [the landlord] due to ['F''s] delay in interposing his claim of succession [was] not enough to waive his due process right to assert this substantial defense to a licensee holdover proceeding.” Moreover, “D” and “E’s” representations in the stipulation were not binding on “F” since they lacked authority to enter into the agreement on his behalf, and “B’s” omission of “F’s” occupancy on the HAP contract “did not prohibit his right to assert his…defense of succession to a licensee holdover proceeding.”

The court held that “['F'], under the Fifth and Fourteenth Amendments to the U.S. Constitution, has a fundamental right to be afforded due process of law, i.e., the right to notice and opportunity to be heard before being deprived of the legal right to assert a substantial claim.” Here, “F” was never served with a notice of petition and petition, given no notice, was not named as a party to the litigation and had been given no opportunity to be heard. The court stated that “[t]hese…substantial rights…cannot be lightly dispensed with.” Accordingly, the court granted “F’s” motion and stayed the landlord from executing the warrant of eviction against “F.” This was “without prejudice to [the landlord's] right to commence a licensee holdover proceeding or any other appropriate legal action against ['F'].”

G&L Holding Corp. v. JR Gonzalez, 71920/2012, NYLJ 1202649981202, at *1 (Civ., NY, Decided April 1, 2014), Wendt, J.

Commercial Landlord—Tenant—Petition Failed to Comply With RPAPL §741(3)—Description of Premises Only Described the Ground Floor, But Did Not Identify the Second Floor

The petition alleged that the tenant funeral home operator, occupied the premises, without permission from the landlord, after the lease had expired. The tenant had moved for summary judgment, seeking dismissal of the petition based upon the landlord’s failure to comply with RPAPL §§731, 741(2) and (3). The tenant claimed, inter alia, that the landlord had unclean hands because it had engaged in illegal self-help by partially evicting the tenant from the second floor and by discarding the tenant’s belongings and that the landlord failed to properly describe the premises from which removal was sought, “because the petition failed to also mention the second floor.”

The landlord had cross-moved for a final judgment of possession, arguing that the petition complied with “RPAPL §741(3) because it only sought to recover the ground floor,” since that was the only part of the building that the tenant occupied. The landlord denied the allegations concerning constructive eviction on the second floor and contended that such issue was “not the subject of this action.” The landlord had not moved to amend the petition to include the second floor.

A prior court decision rejected the tenant’s claims that the landlord failed to comply with RPAPL §731 or 741(2). However, that decision found that there was a material issue of fact as to whether “the description in the petition accurately describes the premises from which removal is sought.” The prior decision also held that the counterclaims for “partial constructive eviction, property damage, and illegal partial actual eviction,…were not ‘inextricably linked’ to [the landlord's] main claim for possession and should be addressed in a separate action.”

At the subject hearing, the landlord testified that the ground floor had “a commercial certificate of occupancy (‘C/O’) and was used as a funeral home” and “the second floor had a residential C/O.” The second floor had a primary means of entry “from a second door on the outside of the property.” The ground floor funeral home had a glass door entrance that was separate from the outside door to the second floor. The landlord had bought the property in a foreclosure sale and had changed the lock on the outside door leading to the second floor.

The landlord claimed that the tenant never objected to changing the locks. However, someone had subsequently placed a wooden stick on the inside part of the building which precluded the landlord from entering the second floor from the outside. The landlord had thereafter gained access to the second floor from the ground floor of the funeral home.

The landlord had begun to demolish the second floor to make renovations, but the tenant obtained a stop work order from the NYC Department of Buildings since the landlord lacked permits. The landlord claimed that the second floor was “inoperable” and had “deteriorated over time.” He alleged that there was “nothing up there that looked like an office—there were leaks and the whole roof was gone.” The Buildings Department thereafter rescinded the stop work order, but the landlord had stopped work.

The tenant asserted that it operated the funeral home on both floors. The tenant explained that the first floor contained chapels and a place for embalming work. He claimed that he maintained an office on the second floor where there was “a phone system, a computer, a desk and file cabinets” and that “[h]e also stored urns and ashes upstairs.” The tenant further claimed that the landlord’s demolition work had “caused sewage and water to fall into the ground floor” and that the tenant had to remedy such conditions.

The tenant also testified that after the demolition, he had his equipment rewired so that he could use it on the first floor and that his clients went up to the second floor to pay their bills. A prior owner of the funeral home testified that he always used “both the ground and second floors as a funeral home.” The landlord argued that there was no confusion under §741(3), since the petition clearly identified the ground floor and he was already in possession of the second floor at the time of the petition.

The court found that the funeral home operated on two floors and the condition of the second floor was irrelevant to the subject determination. RPAPL §741(3) requires that the petition “describe the ‘exact location of the premises’ in sufficient detail so that a marshal, when executing the warrant of eviction, may locate the premises and effect an eviction without additional information.”

The court acknowledged that the marshal would be able to locate the funeral home that was located on the ground floor and there was no risk that the marshal would “impermissibly evict another business or tenant as no such other entity exists.” However, by limiting its request to the ground floor, the landlord was “seeking to evict part of the [tenant's] commercial endeavor, as opposed to the whole of the enterprise, which defeats the whole purpose of a notice of eviction.”

The court opined that the landlord’s argument that the tenant had already been evicted from the second floor, so that there was “no need to effectuate an eviction from both floors begs the question.” The court explained that although the tenant’s “claims of constructive eviction and actual partial eviction have been severed, petitioner cannot engage in self-help and use that argument to circumvent its need to accurately describe all components of the premises from which eviction is sought. It would beg all reason to permit the marshal to evict [tenant] solely from the ground floor when [tenant] legally may still have the right to also operate its enterprise from the second floor.” Accordingly, the court dismissed the petition.

217 Malcolm X Blvd LLC v. Naughton Bros. Funeral Home, 70929/13, NYLJ 1202653912165, at *1 (Civ., KI, Decided April 4, 2014), Katherine A. Levine, J.

Residential Landlord—Tenant—NYC Housing Authority’s Termination of Tenancy Upheld—Penalty Did Not “Shock the Conscience”—Uncontrollable Children Had Brought Narcotics and Gun Into the Apartment

A trial court had vacated a determination by the NYC Housing Authority (NYCHA) terminating the subject tenancy and remanding the matter to NYCHA for imposition of a lesser penalty. The Appellate Division reversed and dismissed the subject Article 78 petition.

The petitioner tenant lives in a NYCHA apartment with five children, two of whom are minors. NYCHA commenced termination proceedings “after police recovered from the apartment a significant amount of marijuana, a bottle of oxycodone pills and a loaded and operable firearm.” The tenant was not present at the time of the search and there was “no evidence that she had specific knowledge of the presence of the weapon or the drugs, which apparently were brought into the apartment by her older children and their friends.”

However, the tenant acknowledged that “one of her older sons is a habitual marijuana user,” that “she had encouraged him to seek treatment” and that “she could only control activities in the apartment when she was physically there.”

Since the tenant had “dominion and control over her apartment and was responsible for the activities therein whether she was present or not,” a NYCHA hearing officer “sustained the charges of nondesirability and breach of rules.” The hearing officer noted that the tenant had not offered “any assurance that narcotics and guns would never again be found in the apartment, and concluded that NYCHA ‘has an obligation to its residents to terminate tenancies which permit such possession.’” NYCHA approved the hearing officer’s finding and determination and terminated the tenant’s lease as the sanction.

The tenant thereafter commenced an Article 78 proceeding, arguing, inter alia, that “the penalty of termination shocks the conscience because she had lived in the apartment for 23 years and served on the Tenants’ Association Board for the past 5 years; she is a single mother and it would be unfair for her younger children to be evicted based on their older siblings’ conduct; she was not home at the time of the search; and she was trying to encourage her older children to move out at the time of the incident.” The trial court had granted the petition, based on the tenant’s “unblemished record, long-time residency” and “her minor children,” and opined that NYCHA’s decision “shocks the conscience and must be vacated.”

The Appellate Division (court) essentially acknowledged that the loss of public housing accommodations is a “drastic penalty.” In a prior unrelated decision, it had stated that the loss of public housing is particularly drastic because “for many of its residents, it constitutes a tenancy of last resort.” However, that Court of Appeals subsequently took exception with the court’s statement that “public housing” is “a tenancy of last resort,” for fear that such statement would create “a presumption that public housing tenants could never be evicted….” The Court of Appeals emphasized that “reviewing courts must consider each petition on its own merit….”

The court then explained that a penalty is “unsustainable as ‘shocking to one’s sense of fairness’ as one which ‘is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly [situated]‘….”

Applying such standard, the court found that the facts supported the tenant’s eviction. The court reasoned that although “[e]viction is undoubtedly a ‘grave’ sanction,” by “permitting drugs and a lethal weapon to be present in her apartment, [tenant] committed a serious breach of the code of conduct that is critical to any multiple dwelling community, and which warrants the ultimate penalty….” The court emphasized that the tenant’s “neighbors have a right to live in a safe and drug-free environment, and [tenant] significantly compromised their ability to do so, her alleged ignorance of the activities in her apartment notwithstanding….”

Moreover, the tenant had provided no evidence that she and her younger children lacked the means to find other housing. Thus, the court lacked the “factual basis to conclude that eviction will actually lead to” homelessness. Accordingly, the court held that NYCHA had “acted within the bounds of its discretion in terminating [the tenancy]” and the Article 78 Court had “ improperly substituted its judgment for that of NYCHA.”

Comment: These kinds of cases, where there is no direct participation by the tenant-of-record and eviction would impact innocent children, are often “difficult.” As the court explained, NYCHA has a responsibility to protect the neighbors’ “right to live in a safe and drug free environment.” In most of these cases, the evidence includes such a large amount of drug related paraphernalia that the tenant-of-record cannot credibly argue that he or she did not know that the apartment was being used for an illegal activity.

Here, NYCHA believed that since the tenant acknowledged that the apartment was being used for illegal activities, she knew there were problems with her older children’s behavior and she was incapable of controlling such behavior, termination of the lease was necessary in order to protect the well-being of the neighbors. Under these circumstances, the court did not believe that the penalty “shocked the conscience” and NYCHA had abused its discretion.

In re Mary Encarnacion Grant v. The New York City Housing Authority, 106199/11, NYLJ 1202651313180, at *1 (App. Div., 1st, Decided April 15, 2014) Before: Mazzarelli, J.P., Friedman, Renwick, DeGrasse, Gische, JJ.

Scott E. Mollen is a partner at Herrick, Feinstein and an adjunct professor at St. John’s University School of Law.