WAIVING THE RIGHT TO BE RESTORED TO PREMISES AFTER ILLEGAL LOCKOUT

Vatel v. Wills, 74 Misc. 3d 566 - NY: City Court, Civil Court 2022:

"The relevant statutes considered in an illegal lockout are RPAPL 713(10), RPAPL 768, RPAPL 711, and Administrative Code of the City of New York § 26-521.

Under RPAPL 713(10), a special proceeding may be maintained where:

"The person in possession has entered the property or remains in possession by force or unlawful means and he or his predecessor in interest was not in quiet possession for three years before the time of the forcible or unlawful entry or detainer and the petitioner was peaceably in actual possession at the time of the forcible or unlawful entry or in constructive possession at the time of the forcible or unlawful detainer; no notice to quit shall be required in order to maintain a proceeding under this subdivision."

Further RPAPL 768(1)(a) indicates that

"[i]t shall be unlawful for any person to evict or attempt to evict an occupant of a dwelling unit who has lawfully occupied the dwelling unit for thirty consecutive days or longer or who has entered into a lease with respect to such dwelling except to the extent permitted by law pursuant to a warrant of eviction or other order of a court of competent jurisdiction or a governmental vacate order."

Similarly, Administrative Code § 26-521 provides:

"a. It shall be unlawful for any person to evict or attempt to evict an occupant of a dwelling unit who has lawfully occupied the dwelling unit for thirty consecutive days or longer ... except to the extent permitted by law pursuant to a warrant of eviction or other order of a court of competent jurisdiction or a governmental vacate order by:

"(1) using or threatening the use of force to induce the occupant to vacate the dwelling unit; or

"(2) engaging in a course of conduct which interferes with or is intended to interfere with or disturb the comfort, repose, peace or quiet of such occupant in the use or occupancy of the dwelling unit, to induce the occupant to vacate the dwelling unit including, 570*570 but not limited to, the interruption or discontinuance of essential services; or

"(3) 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 including, but not limited to, removing the occupant's possessions from the dwelling unit, removing the door at the entrance to the dwelling unit; removing, plugging or otherwise rendering the lock on such entrance door inoperable; or changing the lock on such entrance door without supplying the occupant with a key." (Emphasis added.)

Additionally, RPAPL 711 provides that "[n]o tenant or lawful occupant of a ... housing accommodation shall be removed from possession except in a special proceeding," if he or she has been in possession for 30 consecutive days or longer.

Here, the petitioner has been in possession of the subject premises pursuant to a subtenancy arrangement with respondent that began in late 2016/early 2017. He had exclusive possession of the subject premises and paid monthly rent to respondent for either $1,100 or $1,300. This amount exceeded respondent's monthly rent to NYCHA by eight times. Based on these events, petitioner has been in lawful possession for 30 consecutive days or longer, namely over four years, at the subject premises. This was further supported by the disinterested and credible testimony of Janice Brooks who told this court that for at least four years of her living next door to petitioner, she thought petitioner was the tenant of record for the subject premises. She had not seen respondent until early 2021. Lastly, she testified that respondent told her that she was subletting the premises to petitioner.

Further, this court found incredible respondent's testimony that she did not have an agreement with petitioner to live at the subject premises but merely provided a key for him to provide access to NYCHA workers while she was away on her mission work, and that the PayPal and Venmo payments made by petitioner of $1,100 or $1,300 were donations to YogaStenics and Culcha Society for health and wellness services she provided to petitioner.

Moreover, the credible testimony of petitioner and evidence demonstrates that respondent on or about November 23, 2021, forcibly removed petitioner from the subject premises (RPAPL 571*571 713[10]). Respondent broke into the subject premises by drilling a hole into the entrance door lock. She placed a door chain to prevent petitioner from entering and barricaded herself inside. She only opened the door once the police interfered (Administrative Code § 26-521).

Accordingly, up until these above events of November 23, 2021, petitioner showed the elements of an illegal lockout pursuant to RPAPL 713(10), RPAPL 768 and Administrative Code § 26-521. However, the turning point occurred when petitioner told the police that "enough is enough" and "this has gone way too far," "I'm gonna leave," and "I am going to grab my stuff" (respondent's exhibit F in evidence—audio). Petitioner admitted that on that same day he went and got his laptop, Social Security card, and passport and left. However, he returned days later to remove his personal property from the premises. In fact, he made two trips on the same day to remove his property. On that same day, he spent hours packing and got his own U-Haul.

Waiver is a voluntary and intentional relinquishment of a known right (Albert J. Schiff Assoc. v Flack, 51 NY2d 692, 698 [1980]). "The doctrine of waiver, by its nature, ordinarily applies to all rights or privileges to which a person is legally entitled, provided such rights or privileges belong to the individual and are intended solely for that individual's benefit" (Hudsonview Co. v Jenkins, 169 Misc 2d 389, 392 [Civ Ct, NY County 1996]). Here, petitioner had a legal right to be restored to possession but voluntarily relinquished that known right when he indicated to the police and respondent that he was leaving, packed some of his belongings on November 23, 2021, then returned days later, after a cooldown period to voluntarily pack his own belongings.

Since petitioner waived his rights to maintain this proceeding, this court has no other option but to dismiss the petition without prejudice to petitioner's rights, if any, pursuant to RPAPL 768, RPAPL 853, and/or Administrative Code § 26-521, and subject to any defenses respondent may raise therein.

Respondent should in no way interpret the dismissal of this proceeding as an endorsement or approval of her actions in this matter. The credible testimony and evidence showed that respondent sublet her NYCHA apartment to petitioner for eight times what she was paying NYCHA. She disguised these payments as income by having petitioner make rent payments to a nonprofit organization and characterize it as a donation. Then, 572*572 instead of using court process and the rule of law to evict her subtenant, respondent illegally locked petitioner out of his apartment on several prior occasions. During the times when he regained possession of the premises with the assistance of the police, respondent would subsequently retaliate with violence and further break-ins. Respondent's behavior throughout has been shameful and despicable."