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."

NEW YORK - WRONGFUL EVICTION REARGUMENT FAILS

Cohen v. RESTUCCIA, 2022 NY Slip Op 30751 - NY: Supreme Court 2022:

"DECISION + ORDER ON MOTION

DAKOTA D. RAMSEUR, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135 were read on this motion to/for REARGUMENT/RECONSIDERATION.

This is an action to recover damages for wrongful eviction pursuant RPAPL 853. In a decision and order, dated April 8, 2021, this court (1) granted the motion of defendant Hertz Cherson & Rosenthal P.C (HC&R) for summary judgment dismissing the complaint insofar as asserted against it, (2) granted the cross motion of defendants New York City Department of Housing Preservation and Development (HPD), Louise Carroll, and Tammy Alston for summary judgment dismissing the complaint insofar as asserted against them, and (3) denied plaintiffs' motion for partial summary judgment on the issue of liability against all defendants except for HC&R. Plaintiffs now move pursuant to CPLR 2221 for leave to reargue and renew (1) their opposition to HC&R's motion and (2) their motion for partial summary judgment on the issue of liability. Plaintiff's motion is opposed. For the following reasons, plaintiff's motion is denied.

BACKGROUND

On November 27, 2019, non-party Jose Rojas Sr. (Rojas Sr.) died from a gastrointestinal hemorrhage while in the apartment where he resided, located at 456 West 37th Street in the borough of Manhattan (the Apartment). The nature of Rojas Sr.'s death resulted in an inordinate amount of blood, which caused the New York City Police Department (NYPD) to seal the Apartment for the purpose of investigating his death. The NYPD did not remove the seal until February 27, 2020. Upon removal of the seal, defendant Joseph Restuccia, an employee of the landlord, defendant Clinton Housing Development Company (CHDC), changed the lock on the entrance door of the Apartment.

On March 5, 2020, Rojas Sr.'s disabled son, plaintiff Jose Antonio Rojas (Rojas), and Rojas' mother plaintiff Andrea Cohen (together plaintiffs) commenced a proceeding against Restuccia and CHDC in the Civil Court of the City of New York under L&T Index No. 54643/2020 (the underlying Civil Court proceeding). In that proceeding, plaintiffs alleged that they were in possession of the Apartment in excess of thirty days prior to Rojas Sr.'s death and were entitled to be restored to possession pursuant to New York City Administrative Code § 26-521(a)(3).^[1] Plaintiffs also sought the imposition of civil penalties against Restuccia and CHDC pursuant to RPAPL 768.^[2]

After a hearing, the Civil Court (Evon M.. Asforis, J.) issued a decision and order, dated September 28, 2020, finding that plaintiffs were unlawfully evicted from the Apartment in violation of NYC Administrative Code § 26-521(a)(3) and were entitled to be restored to possession (NYSCEF Doc. No. 33). The court declined to award civil penalties under RPAPL 768.

The Instant Action

On September 30, 2020, plaintiffs commenced the instant action to recover damages for wrongful eviction pursuant to RPAPL 853, which 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."

The complaint names Restuccia, CHDC, and CHDC employee, Nancy Paz, as defendants. In addition, the complaint names HPD and two of its employees, Louise Carroll and Tammy Alston (collectively, the City defendants), as defendants, alleging that HPD owns the building in which the Apartment is located. Finally, the complaint names HC&R, the law firm that represented Restuccia and CHDC in the underlying Civil Court proceeding, as a defendant, alleging it made false representations to the court in that proceeding for the purpose of prolonging plaintiffs' unlawful lockout from the Apartment.

The City defendants submitted an answer denying the material allegations of the complaint and asserting cross claims against CHDC for indemnification and contribution (NYSCEF Doc. No. 5). CHDC, Restuccia, and Paz filed a separate answer denying the material allegations of the complaint and asserting a cross claim against HPD for indemnification (NYSCEF Doc. No. 6).

In lieu of answering, HC&R moved to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211(a)(1) and (7) (motion sequence no 001). Plaintiffs opposed the motion and moved for partial summary judgment on the issue of liability against all defendants except HC&R (motion sequence no 002). The City defendants opposed plaintiffs' motion and cross moved to dismiss the complaint insofar as asserted against them (motion sequence no 002). In a decision and order, dated April 8, 2021, this court: (1) granted HC&R's motion to dismiss; (2) denied plaintiffs' motion for partial summary judgment; (3) granted the City defendants' cross motion to dismiss on the ground that plaintiffs failed to comply with General Municipal Law 50-e and 50-i, and (4) ordered that the matter be transferred to a non-City part, as the City defendants were no longer parties to this action (the prior order) (Cohen v Restuccia, 2021 NY Slip Op 31215[U] [Sup Ct, NY County 2021] [NYSCEF Doc. No. 108]).

Plaintiffs now move pursuant to CPLR 2221 for leave to reargue and renew (1) their opposition to HC&R's motion to dismiss and (2) their motion for partial summary judgment on the issue of liability. For the purposes of the present motion, the court will assume familiarity with the prior order.

DISCUSSION

Pursuant to CPLR 2221(d), a motion for leave to reargue must "be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221[d][2]). Reargument is not available to argue a new question or theory of law not advanced on the prior motion (see People v D'Alessandro, 13 NY3d 216, 219 [2009]; Litton Loan. Servicing, L.P. v Wasserman, 202 AD3d1074 [2d Dept 2022]; DeSoignies v Cornasesk House Tenants' Corp., 21 AD3d 715, 718 [1st Dept 2005]) and "is never a vehicle for seeking new forms of relief' (Fox v Abe Schrader Corp., 36 AD2d 591, 591 [1st Dept 1971]).

Pursuant to CPLR 2221(c), a motion for leave to renew must "be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination." (CPLR 2221[e][2]). Where the movant offers new evidence in support of his or her motion to renew, the motion is properly denied without a reasonable explanation for failing to submit the new evidence in connection with the original motion (see Hernandez v St. Stephen of Hungary School, 72 AD3d 595, 595 [1st Dept 2010]; Kasem v Price-Rite Off & Home Furniture, 21 AD3d 799, 801 [1st Dept 2005]).

Reargument and Renewal of Plaintiffs' Opposition to HC&R's Motion

In seeking reargument of their opposition to HC&R's motion, plaintiffs assert that this court misapplied the Appellate Division, First Department's decision in Mayes v UVI Holdings (280 AD2d 153 [1st Dept 2001]) when it determined that under the circumstances, HC&R is not liable to plaintiffs for treble damages pursuant to RPAPL 853. In this regard, plaintiffs contend that the court failed to consider that Mayes sets forth multiple criteria for determining when a direct cause of action against a law firm is available to a non-client.

In Mayes, the lessees and occupants of an apartment commenced an action to recover damages for their eviction, which was previously found to have been wrongful because it was procured upon an invalid warrant. The court in Mayes held, among other things, that plaintiffs had a direct cause of action against not only the landlord, but also the landlord's attorney arising from the attorney's failure to obtain a valid warrant. In arguing that this court incorrectly applied Mayes, plaintiffs draw the court's attention to the following language from that decision:

"A direct cause of action by a nonclient against a law firm is not generally cognizable, except where injury is `sustained by a third party as a consequence of the attorney's wrongful or improper exercise of authority, or where the attorney has committed fraud or collusion or a malicious or tortious act' (Singer v Whitman & Ransom, 83 AD2d 862, 863 [2d Dept 1981]). The procurement of an eviction upon an invalid warrant is certainly an `improper exercise of authority,' and may be indicative of collusion between the landlord and its attorneys. Therefore, under the circumstances, a direct action against the law firm is available to plaintiffs"

(Mayes, 280 AD2d at 161-162).

Plaintiffs contend that this court interpreted Mayes too narrowly by deciding that it only applies when a law firm knowingly proceeds upon an invalid warrant for eviction. They contend that this court overlooked that liability may also be imposed where, as here, a law firm committed fraud or a malicious act. In this regard, plaintiffs assert that HC&R attorney Eliot Cherson knew when he represented Restuccia and CHDC in the underlying Civil Court proceeding that plaintiff Andrea Cohen was a tenant of the Apartment by virtue of Cherson's unsuccessful effort in a 2005 non-primary residence holdover proceeding in which he represented CHDC (L&T Index No. 75778/2005) (the 2005 proceeding). Plaintiffs assert that Cherson committed fraud or a malicious act on behalf of HC&R by arguing in the underlying Civil Court proceeding that Cohen was not a tenant of the Apartment, since he, in fact, knew based on the 2005 proceeding, that Cohen was a tenant of the Apartment.

Contrary to plaintiffs' contention, this court did not overlook or misapprehend the applicability of Mayes and did not hold or imply that it only applies when a law firm knowingly proceeds upon an invalid warrant for eviction. This court considered the argument raised by plaintiffs on this motion in deciding the underlying motion and rejected it by finding not only that HC&R played no role in changing the locks to the Apartment, but also that plaintiffs did not have a viable claim that HC&R "acted unlawfully in its representation of ... Restuccia and CHDC[] during the [underlying] Civil Court proceedings" (Cohen v Restuccia, 2021 NY Slip Op 31215[U], at **5).

HC&R's participation in a 2005 proceeding does not provide a basis upon which to hold HC&R liable for treble damages under RPAPL, 853. The result of a holdover proceeding that took place almost I 5 years prior is not dispositive of whether plaintiffs were tenants of the Apartment pursuant to a valid lease or Whether they occupied the premises for 30 days prior to November 27, 2019.

Upon renewal, plaintiffs also present various documents from the record of the 2005 proceeding to bolster their position that HC&R knew that Cohen was a tenant of the Apartment on November 27, 2019. "However, for the reason just discussed, plaintiffs' underlying argument in this regard is without merit, and therefore the newly submitted evidence would not have changed the court's prior determination on this issue.

Reargument and Renewal of Plaintiffs' Motion far Partial Summary Judgment

In moving for renewal and reargument of their motion for partial summary judgment, plaintiffs argue that the court also misapprehended Mayes when it failed to find that Restuccia, Paz, CHDC, and HC&R are barred by the doctrine of collateral estoppel from disputing their liability. Plaintiffs assert that these defendants already had a full and fair opportunity in the underlying Civil Court proceeding to litigate the issues of their wrongdoing.

As an initial matter, to the extent plaintiffs may be understood as arguing they are entitled to summary judgment on the issues of liability against HC&R, this request for relief is inappropriate in the context of the instant motion. Plaintiffs did not move for summary judgment against HC&R in connection with their prior motion and reargument is not a vehicle for seeking new forms of relief.

As to Restuccia, Paz, and CHDC, this court found in the prior order that under the circumstances of this case, issues of fact exist as to whether plaintiffs are entitled to treble damages pursuant to RPAPL 853 including, among other things "whether the `unlawful lockout' was intentional, and, if so, whether the court's exercise of its discretion in awarding statutory treble damages under RPAPL 853 is warranted" (Cohen v Restuccia, 2021 NY Slip Op 31215[U], at **5). Contrary to plaintiffs' contention, the doctrine of collateral estoppel does not require a different result.

"The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same. The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in an earlier action"

(Martinez v New York City Tr. Auth., 203 AD3d 87, 91 [1st Dept 2022] [internal quotation marks and citation omitted]).

In the underlying Civil Court proceeding, it was established that plaintiffs were wrongfully evicted from the subject apartment and were entitled to be restored to possession of the Apartment. Restuccia and CHDC cannot relitigate that issue because they had a full and fair opportunity to litigate it before the housing court judge. However, the issue raised by plaintiffs' motion for summary judgment in this action — i.e., whether they are entitled to treble damages under RPAPL 853 — was not before the housing court judge in the underlying Civil Court proceeding. As such, collateral estoppel is inapplicable.

Plaintiffs' argument that Mayes requires the application of collateral estoppel as to the propriety of the imposition of treble damages under RPAPL 853 is raised for the first time on reargument. A motion for reargument cannot be premised on grounds that were apparent at the time of the prior motion, but not asserted therein (see Litton Loan Servicing, L.P. v Wasserman, 202 AD3d 1074). Therefore, the argument is not properly before the court on this motion.

In any event, plaintiffs' reliance on Mayes for this proposition is misplaced. The court in Mayes did not suggest that a successful "unlawful eviction" claim automatically establishes entitlement to treble damages under RPAPL 853. In fact, the court stated in Mayes that "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" (Mayes, 280 AD2d at 161; see also Rental & Mgt. Assoc. v Hartford Ins. Co., 206 AD2d 288, 288 [1st Dept 1994] [treble damages under RPAPL 853 are "not automatic but discretionary"]; Lyke v Anderson, 147 AD2d 18, 28 [2d Dept 1989] ["awarding of treble damages pursuant to RPAPL 853 is discretionary"]).

Plaintiffs further argue that the court "failed to apprehend the compelling public policy preventing and punishing illegal lockout" "especially under the cruel circumstances of the pandemic" (Attorney Affirmation at ¶ 42 [NYSCEF Doc. No. 107]). In so arguing, they rely on a Memorandum issued by the State of New York Office of the Attorney General on May 4, 2020, intending to provide guidance to law enforcement in handling claims for unlawful evictions under RPAPL 768 (Memorandum, NYSCEF Doc. No. 115). However, this document was not submitted in support of plaintiffs' motion for summary judgment and cannot form a basis for renewal in that plaintiffs offer no excuse for not presenting it on the prior motion. Moreover, consideration of this document would not have changed this court's prior determination.

Plaintiff also recounts certain events that occurred after this court issued the prior order on April 8, 2021 and assert that these events prove "[t]hat this Court declining to award judgment on the issue of liability has had the invidious effect of emboldening these horrific wrong-doers" (Attorney Affirmation at & 43 [NYSCEF Doc. No. 107]). These subsequent events cannot form a basis for reargument inasmuch as it is improper for such a motion to "include any matters of fact not offered on the prior motion" (CPLR 2221[d][2]). To the extent plaintiffs are offering these events as a basis for renewal, their reliance is also misplaced. On a motion for leave to renew, it is improper for the moving party to rely on facts that were not in existence at the time of the original motion (see Farahmand v Dalhousie Univ., 96 AD3d 618, 619 [1st Dept 2012]; Johnson v Marquez, 2 AD3d 786, 789 [2d Dept 2003]).

Accordingly, it is hereby

ORDERED that plaintiffs' motion for reargument and renewal is denied; and it is further

ORDERED that plaintiffs shall serve a copy of this decision and order on all parties, with notice of entry, within ten (10) days of entry.

This constitutes the decision and order of the Court.

[1] NYC Administrative Code § 26-521(a)(3) states that is unlawful,

"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 unit or has made a request for a lease for such dwelling unit pursuant to the hotel stabilization provisions of the rent stabilization law ... by ... 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, hut not limited to ... changing the lock on such entrance door without supplying the occupant with a key."

[2] RPAPL 768 includes substantially the same language quoted above from NYC Administrative Code § 26-521(a)(3), but also contains a provision providing that any person who violates or assists in the violation of the statute is subject to criminal and civil penalties."