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."

CAN A LANDLORD BE "LOCKED OUT"?

Leagem Partners LLC v. Gallimore, Court: Civil Court, Queens, Judge: Judge Clifton Nembhard, Case Number: 301638/21:

 "Leagem Partners, LLC (“petitioner”) commenced this illegal lockout proceeding by order to show cause to be restored to possession of apartment #E1D3 located at 119-20 Union Turnpike, Kew Gardens (“subject premises”). The Civil Court declined to sign the order to show cause for among other reasons, petitioner did not allege that a residential occupancy was interfered with. The Appellate Term however signed the order to show cause upon petitioner’s CPLR 5704(b) application. This Court conducted a hearing on the matter on April 27, 2021. The following constitutes the Court’s findings of fact and conclusion of law following the hearing. Hearing
Petitioner called Jennifer Lora as its first witness. Lora is the Director of Resident Support at Rezi which was retained by petitioner to market and lease certain apartments in the subject building. Respondent Eva Gallimore (“Gallimore”) applied for the subject apartment on April 1, 2021. She signed a lease and paid a deposit which triggered Rezi’s due diligence process which includes verifying an applicant’s income. Soon thereafter Rezi informed Gallimore that it could not verify one of the three employers she listed on her application and requested additional information from her. Lora further testified that Gallimore made an appoint to see the apartment on April 6, 2021 and subsequently moved in with her family. When Rezi was not able to verify Gallimore’s employment it refunded her deposit and informed her that they were not moving forward with her application. Lora averred that Rezi never delivered possession of the subject premises to Gallimore, never countersigned the lease and never approved her moving in. Anish Mashettiwar is the general counsel for building’s property manager Advantage Property Management. He also testified the petitioner never entered into a lease agreement with respondents and didn’t authorize them to take possession of the subject apartment. Mashettiwar also stated that the apartment was last occupied by a tenant in May 2020 and had been in petitioner’s possession until Gallimore and her family moved in.

Petitioner then called Eva Gallimore who testified that she moved into the subject apartment on April 8, 2021 and is still in possession.

Keita deSouza, Rezi’s corporate counsel, then testified that the company never countersigned the lease and never delivered possession to Gallimore. On April 9, 2021 deSouza spoke with Gallimore and became aware that Gallimore, her sister Esther and possibly their mother are now occupying the apartment. During the phone call deSouza informed Gallimore that she was not approved for the apartment and gave her the option of moving out immediately or providing the information needed to approve her application. She then provided Gallimore with the number to Rezi’s support line. The next day deSouza called Gallimore who again told her she was not vacating the apartment. deSouza then went to the building and called the police. When the police arrived, she went with them to the subject apartment. Esther answered the door and told them that they were not moving out.

Eva Gallimore then testified on her own behalf and stated she paid the deposit and first month’s rent on April 1, 2021 after being approved for the apartment. However, a few days later Rezi started asking her for more information. On April 6, 2021, Lora called and asked for information regarding her income so she sent her a copy of her pay stub. That afternoon Esther spoke to Rezi’s agent Nicole and made an appointment to see the apartment. Nicole told her sister she could have the keys and referred to the apartment as theirs. On April 7, 2021, Alyson from the office called and asked for another image of the pay stub and her bank statement. Gallimore testified that she was confused by this request given that she was already approved for the apartment and refused to provide her bank statement. The following day she moved into the apartment with her sister and mother Gloria. Later that day she informed Lora that they’d moved in. She received a refund of her payments on April 8 or April 9, 2021 and immediately sent it back to petitioner. Gallimore spoke with Alyson and another agent Kay on April 10, 202. They told her that Lora wanted to approve her application but needed a guarantor because Rezi could not consider her sister’s income which she had included on her application. On April 12, 2021, Lora and Kay informed her that petitioner was not signing the lease and that she had to vacate the apartment. Gallimore also testified that she never received a countersigned copy of the lease and acknowledged that she never confirmed that the information she had provide on her application was accurate.
Esther Gallimore then testified that Rezi’s agent assured her that petitioner had rented the apartment to her family. On April 1, 2021 she made an appointment to see the apartment. On April 6, 2021, Nicole called her back and gave her the code to the lockbox which contained key to the apartment. During their conversation Nicole told her not to worry about putting the key back in the lockbox box because the apartment was theirs.
Rezi’s agent Nicole Parker testified on rebuttal that part of her duties include helping clients access the apartment keys from the lock box. She confirmed that Esther spoke with her on the morning of April 6, 2021 to schedule an appointment to see the apartment for the purpose of taking measurements. Parker denied telling Esther that she could keep the keys and averred that Esther assured her that she knew the process of returning it to the lockbox when she was done. She also explained that she referred to the apartment as respondents’ during her conversation with Esther because it was Rezi’s practice to remove an apartment from the market when it was conducting due diligence on a perspective tenant. Parker then introduced a recording of the conversation which supported her claim that she never told Esther to keep the keys.

Lora then testified that she never told Gallimore that her application had been approved. She also introduced e-mails she exchanged with Gallimore on April 6, 2021. In the first, Lora informs Gallimore that “[Rezi] would need all the documents to complete our due diligence process before finalizing the lease. Note, you would not be able to move in prior to us finalizing the lease.” Gallimore responds that Rezi’s website does not specify this and states that “I have already paid the 1st months [sp] rent so I need to make sure I will be duly compensated for that if I need more time to add more documents.”

Alyson Vivattanapa is Rezi’s Residential Support Associate. She testified that Gallimore failed to qualify for the apartment because of insufficient income information. Specifically, she noted that Gallimore’s application included her sister’s income information. Vivattanapa testified that she spoke with Gallimore on April 6, 2021 and told her that she was having trouble verify her income information. She requested pay stubs and bank statements from her but Gallimore never provided them.

Discussion

RPAPL §713 provides for the maintenance of a special proceeding where there is no landlord-tenant relationship between the parties. Petitioner seeks restoration pursuant to subsection 10 of the statue which involves cases where “[t]he 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”.

Here the credible evidence and testimony shows that a landlord-tenant relationship does not exist between petitioner and the Gallimore. It is axiomatic that “[t]he relation of landlord and tenant is always created by contract, express or implied, and will not be implied where the acts and conduct of the parties negative its existence.” Stern v. Equit. Trust Co. of New York, 238 NY 267 [Ct App 1924]. Gallimore insists that she became the tenant of the subject premises by virtue of signing the lease and paying the deposit. However, petitioner’s actions show that there was not a meeting of the minds. Petitioner never countersigned the lease and made it clear to Gallimore from the outset that her tenancy was contingent on it verifying her income. Before taking possession of the apartment three of petitioner’s agents told her (and her sister) that her application was incomplete and that she need to provide the requisite income information. Gallimore does not dispute the fact that she never provided this information. Thus, when she moved in she knew that petitioner had not agreed to have her do so. Despite her claims to the contrary, she also knew why. Petitioner’s actions after finding out that Gallimore moved in also evinced its belief that she was not its tenant. Their corporate counsel immediately informed Gallimore that she would have to vacate or complete the application process. When she failed to comply deSouza called the police to attempt to oust her. Having not completed the application process, Gallimore’s argument that she and petitioner entered into a landlord-tenant relationship is unavailing. This argument is also belied by the fact that Gallimore did not receive the keys to the apartment or insist on getting them on April 1, 2021 when she claims to have become the tenant.

The facts here show that the relationship between the parties was that of invitor-invitee. See, e.g., Potter v. Furniture Mfrs. Bldg., Inc., 26 NY2d 269 [Ct 1970]. Gallimore entered the premises with petitioner’s permission for the purpose of conducting business- to wit renting the subject apartment. Upon her failure to do so, Gallimore’s continued presence in the premises and refusal to vacate constituted an unlawful detainer. Since petitioner was in constructive possession of the premises prior to Gallimore and her family’s entry and since RPAPL §713(10) does not expressly limit said possession to residential occupancy, the Court finds that petitioner has standing to maintain this proceeding.

Conclusion

Based on the foregoing the Court finds that respondent’s actions have unlawfully deprived petitioner of possession of the subject premises. Accordingly, petitioner is awarded a final judgment of possession as against Eva Gallimore, Esther Gallimore, John Doe and Jane Doe. The warrant may issue and execute forthwith."

DAMAGES IN SELF-HELP CASES

Hood v. KOZIEJ, 2016 NY Slip Op 4889 - NY: Appellate Div., 1st Dept. 2016:
 
"As to whether plaintiff is entitled to treble damages under Real Property Actions and Proceedings Law § 853, the statute provides:

"If a person is disseized, ejected, or put out of real property in a forcible or unlawful manner, or, after he has been put out, is held and kept out by force or by putting him in fear of personal violence or by unlawful means, he is entitled to recover treble damages in an action therefor against the wrong-doer."

"RPAPL § 853 and its predecessor. . . were enacted to discourage undue intimidation and violence in the ejection of persons from real property by providing for treble damages under certain circumstances" (Rudolph de Winter and Larry M. Loeb, Practice Commentaries, McKinney's Cons Laws of NY, Book 49½, RPAPL 853). The statute was amended in 1981 to include the references to "unlawful manner" and "unlawful means" (see Lyke v Anderson, 147 AD2d 18, 24 [2d Dept 1989]; see also Mannion v Bayfield Dev. Co., 134 Misc 2d 1060 [Sup Ct, NY County 1987]) and was "intended to remedy such actions as removing the tenant's possessions while he or she is out, or by. . . changing the door lock &Adie; actions beyond the narrow legal definition of force'" (Mayes v UVI Holdings, 280 AD2d 153, 160 [1st Dept 2001], quoting 1981 NY Legis Ann at 256).

In Mayes, this Court, without ultimately reaching the issue, acknowledged that "[t]he [1981] amendment to the statute has resulted in some variation in the criteria applied in assessing treble damages against a wrongdoer" (280 AD2d at 160). Since 1981, courts have framed the issue as whether, under RPAPL 853, an award of treble damages is discretionary or mandatory in cases where the record establishes forcible or unlawful entry into real property. Although this Court has not decided the issue, the Appellate Division, Second Department, and the Supreme Court, New York County, have determined that the legislature intended to leave the question of whether treble damages should be awarded, pursuant to RPAPL 853, to the discretion of the court (Lyke, 147 AD2d at 28; Mannion, 134 Misc 2d at 1064)^[1]. In fact, plaintiff here does not advocate that he is automatically entitled to recovery under RPAPL 853, simply because he prevailed on his wrongful eviction claim, but rather takes the position that the decision to award treble damages is a matter left to the Court's discretion. Therefore, the issue of whether the statute mandates treble damages is not specifically before us and we need not reach it^[2] . In any event, plaintiff should prevail here under either interpretation of the statute.

Plaintiff cites to this Court's decision in Rocke v 1041 Bushwick Ave. Assoc. (169 AD2d 525 [1st Dept 1991]), affirming the trial court's award of treble damages pursuant to RPAPL 853 where the record showed that while the plaintiff was out of her apartment, the building superintendent moved her belongings to the basement and changed her apartment door lock. The record there also contained evidence sufficient to allow a jury to conclude that the building superintendent did this on instructions from the building's manager, who was a friend of the plaintiff's ex-husband, with whom the plaintiff had recently had an argument. Here, defendants did not dispute plaintiff's allegations that after executing a lease extension, which defendants wanted to rescind, he returned home and found defendants in the process of changing the dead bolt lock on his front door, despite the fact that they had not commenced legal proceedings to evict him and did not have permission to enter the apartment. Plaintiff also alleged, and provided an affidavit supporting his claim, that all of his personal effects, clothing, valuable jewelry, electronics and other possessions were removed from the apartment, and his demands for the location and return of his property were refused by defendants for at least a month.

Defendants do not oppose plaintiff's request for treble damages on the merits. Instead, defendants argue that it is premature to reach the issue because there are conflicting facts and a trial is needed. Since we have already found, infra, that plaintiff was properly awarded summary judgment on liability and there has been a hearing on actual damages, the record is sufficiently developed to determine treble damages (cf. Mayes, 280 AD2d at 161 [declining to reach the issue of treble damages where "no damages have been assessed, and the propriety of the imposition of treble damages against any defendant remains to be evaluated upon a full record after trial"]). Accordingly, under the circumstances presented here, we find that the trial court's denial of treble damages under RPAPL 853 was improvident and plaintiff is entitled to treble damages on his damages award of $6,700 (Rocke, 169 AD2d at 525; see also Clinkscale v Sampson, 48 AD3d 730, 731 [2d Dept 2008]; Moran v Orth, 36 AD3d 771, 773 [2d Dept 2007]).

ON THAT 5 MONTH/10 BEDROOM EVICTION

The story can be found here:

http://pix11.com/2016/03/28/landlord-finally-evicts-tenants-who-turned-three-bedroom-queens-apartment-into-10-bedrooms/

The lesson: probably could have been quicker if the landlord did not illegally lock them out during the eviction process. For more information on illegal lock outs in NYC, see:

http://nycourts.gov/courts/nyc/housing/lockouts.shtml