Opinion
L & T No. 57103/12.
2012-05-21
Carol TRUGLIO, Petitioner–Tenant v. VNO 11 EAST 68TH STREET LLC, and Vornado Realty Trust, Respondents–Landlord.
ROSENBERG & ESTIS, P.C., by Deborah Regal, Esq., New York, Attorneys for Respondents. Himmelstein, McConnell, Gribben, Donoghue & Joseph by David Hershey–Webb, Esq., New York, Attorneys for Petitioner.
ROSENBERG & ESTIS, P.C., by Deborah Regal, Esq., New York, Attorneys for Respondents. Himmelstein, McConnell, Gribben, Donoghue & Joseph by David Hershey–Webb, Esq., New York, Attorneys for Petitioner.
SABRINA B. KRAUS, J.
This summary proceeding was commenced by, CAROL TRUGLIO, also known as Carol Mann, (Petitioner) a rent-stabilized tenant of record of Apartment 4A at 11 East 68th Street, New York New York, 10065 (Apt 4A), who seeks to be restored to possession of Unit # E3 at 11 East 68th Street, New York, New York, 10065 (Subject Premises) which is a maid's room on the twelfth floor of the subject building. Petitioner asserts that in February 2012, agents acting on behalf of VNO 11 East 68th Street LLC (Respondent) and VORNADO REALTY TRUST, broke into the Subject Premises, removed all of Petitioner's belongings, relocated them to an area in the basement of the building, and proceeded to demolish the Subject Premises.
PROCEDURAL HISTORY
Petitioner commenced this proceeding by order to show cause, originally returnable in Part R on March 2, 2012. Respondents appeared by counsel, and filed opposition papers and an answer on March 19, 2012. The Court granted the motion to the extent of setting the matter down for a hearing, which hearing commenced on March 20, 2012, continued on March 29 and 30th, and concluded on April 4, 2012.Memoranda of law were submitted by counsel on May 7, 2012.
THE MOTION PAPERS AND PLEADINGS
Petitioner seeks an order: directing Respondents to restore Petitioner to the Subject Premises; ordering Respondents to reconstruct the Subject Premises and make it habitable; enjoining Respondents from denying Petitioner access to the Subject Premises; and enjoining Respondents from making any modification to the Subject Premises or re-renting the Subject Premises.
The petition asserts: that Petitioner is a rent stabilized tenant residing in Apartment 4A and the Subject Premises since 1992; that the Subject Premises is designated on the building's Certificate of Occupancy (CO) as a maid's room; that Petitioner has used the Subject Premises, which has a window and a shared bathroom since 1992; that Petitioner uses the Subject Premises as a guest room for her son and others, and for storage of personal belongings; and that Petitioner has paid $75.00 per month for the Subject Premises since 1992.
The petition further asserts: that in January 2012 Respondent asked Petitioner for permission to relocate her belongings from the Subject Premises to a storage bin in the basement of the building and Petitioner refused; that the request was made and refused a second time in mid February 2012, at which time Petitioner asserted that the Subject Premises was a part of her rent stabilized apartment; that on or about February 17, 2012, unidentified men broke into the Subject Premises and relocated Petitioner's belongings to the basement; that on February 18, 2012 Petitioner received a letter notifying her that her property had been relocated; that Respondents actions violate RPAPL § 713(10); that Petitioner is entitled to have the Subject Premises restored to a habitable condition pursuant to § 110 of the Civil Court Act; and that Respondents have wrongfully evicted her from a portion of her rent stabilized apartment.
Respondents' answer asserts inter alia: that the petition fails to state a cause of action; that the Subject Premises is not a dwelling unit as defined by § 26–521(a) of the New York City Administrative Code; that the maid's room is an ancillary service under the Rent Stabilization Code; that Petitioner's remedy is to file a decrease in services claim with DHCR; that Petitioner is not entitled to restoration, because the underlying use was illegal; that restoration to the Subject Premises is impossible, because the Subject Premises has been demolished; and that the petition should be dismissed as against Vornado Realty Trust.
THE HEARING
Petitioner has lived in the subject building since 1992, in Apt 4A, with her husband, Jospeh Truglio, and their children. Apt 4A is a large three bedroom, with a kitchen, a living room, a dining room, two additional maid's rooms and three bathrooms. The lease and renewals for Apt 4A make no reference to the Subject Premises. The Subject Premises is a maid's room, approximately eight by ten feet, on the twelfth floor of the same building as Apt 4A. The Subject Premises had a window, radiator, sink with running water, electricity and a door which locked.
Shortly after Petitioner moved into Apt 4A, she started to rent the Subject Premises, and was provided with a key. Petitioner and her family, primarily her son and husband, used the Subject Premises as a work room, and a hobby room. Petitioner bought a work bench, television, and shelves for the Subject Premises. Petitioner also used the Subject Premises to make center pieces for the dinner parties and as an area to wrap Christmas presents.
Petitioner testified that at some point the Subject Premises was used primarily by her son and became “Tommy's Room.” Tommy was born in 1987. Originally, Tommy was not allowed to sleep in the Subject Premises, but he often went there to played video games. Tommy attended boarding school for high school. In June of 2006, Tommy was 19, and a junior in high school.
In 2007, when Tommy came home from boarding school, he moved into the Subject Premises. Tommy used a common bathroom located on the twelfth floor. Tommy and his girlfriend stayed in the Subject Premises over the summer of 2007, until they left for college. Tommy painted and furnished the Subject Premises. In September 2007, Tommy left for college, and thereafter continuing through 2009, Tommy used the Subject Premises, when he was in Manhattan. During this period, Petitioner testified still used the room periodically, but less than she had in earlier years.
On or about February 18, 2012, the Subject Premises were broken into, the entire contents were removed. Later that day, Petitioner was advised, by Respondent's employees, that her belongings had been relocated to a storage room in the basement, and that the Subject Premises had been demolished. Petitioner tried to access the Subject Premises, but saw that the entrance to the twelfth floor was closed off. The elevator operator to Respondent the twelfth floor had been demolished, but provided Petitioner with a key to the storage bin in the basement, where Petitioner's belongings had been relocated. Petitioner then went to the storage bin in the basement, opened it, looked around and noticed some of her belongings were missing.
The rent for the Subject Premises is $75.00 a month and has not changed since Petitioner had started renting. Petitioner often sent one check for both the rent on Apartment 4A and the Subject Premises. The last time Petitioner was in the Subject Premises was in the fall of 2011. Petitioner has domestic help, but has never used the Subject Premises as a maid's room or to house domestic employees.
The next witness to testify was Joseph Truglio, who is also a tenant of record for Apt 4A. Mr. Truglio testified that the Super provided him and Petitioner with keys to the Subject Premises, shortly after they moved into Apt 4A. Mr. Truglio and Tommy used the Subject Premises for hobbies, like building toy rockets or cars. From approximately 1995 through 2000, Mr. Truglio and Tommy used the Subject Premises about four times per week. Once Tommy was in college, Mr. Truglio no longer used the Subject Premises. Mr. Truglio did not recall the last time he had been in the Subject Premises, but it may have been in 2008. The Court found Mr. Truglio to be a credible witness.
The next witness to testify was Stephen J. Morrison, a professional engineer. Mr. Morrison has been licensed in New York and New Jersey since 1971, and in Florida since 1990. Mr. Morrsison has a BA, MA, and MBA, and has worked as an engineer since 1961. Mr. Morrison has extensive experience inspecting buildings in New York City, and also in designing plans for submission to the Department of Buildings (DOB). Mr. Morrison was qualified by the Court as an expert in DOB filings. Mr. Morrison has been qualified as an expert by other courts, in relation to landlord tenant disputes. Mr. Morrison is almost always called as an expert by the tenant.
Mr. Morrison testified regarding documents filed by Respondent for work on the twelfth floor of the Subject Building (Exhibits 13A–L), including the area where the Subject Premises was located. Mr. Morrison testified that the plans filed by Respondent provided that the Subject Premises were not occupied, and that there were no rent stabilized tenants in the building. Respondent also represented in the filings that the scope of work was the removal and installation of partitions on the twelfth floor, and that no change in uses, egress or ingress would be made. The twelfth floor is defined as the penthouse floor, on the CO. Mr. Morrison knows of no building code definition for “maid's room”.
The next witness to testify Tommy Truglio. Tommy is 24 years old, and has a learning disability. Tommy and his father used to do building projects in the Subject Premises. In high school, Tommy went to the Subject Premises to relax, and sometimes to sleep. After high school, Petitioner gave Tommy the key to the Subject Premises and it became his room. Up until last year, when Tommy was in New York City, he used the Subject Premises, but Tommy was unable to specify any particular dates or the length of any such stay for any period after 2008. Tommy had a neighbor on the twelfth floor, Courtney Chandel, who lived in two other maid's rooms.
Dino Beqaj, the building Super, testified next. Mr. Beqaj has been the Super and lived in the subject building since 2008. Mr. Beqaj knows Petitioner and is aware Petitioner uses the Subject Premises. Since Mr. Beqaj has been the Super, he has never seen anyone go into the Subject Premises, including Tommy. Mr. Beqaj's office is in the basement, but he is on the twelfth floor at least once a week. Since 2008, Mr. Beqaj observed that other than Courtney Chandel, no one was living on the twelfth floor.
In January 2012 Respondent proposed Petitioner surrender possession of the Subject Premises, and relocate her belongings to a storage bin in the basement. Relocation papers for the Subject Premises were delivered to Petitioner. These papers offered Petitioner a one year abatement on the rent of the Subject Premises, in exchange for agreeing to the relocation. Respondent has received rent from Petitioner for both the Subject Premises and Apt 4A.
John Simonlacaj and Nir Meir are employed by HFC Capital Group, an entity that owns VNO 11 East 68th Street LLC. Both testified at the hearing, and both had met Petitioner in Apt 4A in January 2012. They introduced themselves to Petitioner, as the new landlord, and discussed the Subject Premises with her. Petitioner declined to commit to their relocation proposal and stated she had not been in the Subject Premises in three years, and had belongings she needed to sort through, before making a decision. Mr. Meir testified that this was the second meeting between the parties, that Mr. Truglio asserted, for the first time, that the Subject Premises was not being used solely as a storage room.
Both Mr. Meir and Mr. Simonlacaj testified that they believed that Ms. Chandel was the only occupant using the twelfth floor for living purposes, and that all other units were being used for storage. Mr. Meir was aware that the CO described the Subject Premises as being designated as a Maid's Room, rather than storage, but Respondent's actions were based on the actual use of the space, rather than the designation on the CO. Mr. Meir testified that, Courtney Chandel had voluntarily relocated to the seventh floor of the building, was living on there at the time of the hearing.
Mr. Meir acknowledged that Petitioner has never consented to surrender possession of the Subject Premises, and that Respondent unilaterally took back possession of the Subject Premises by force, and without any legal process. Mr. Meir asserted his fifth amendment right not to respond to a question on whether it was necessary to commence court proceedings for a residential eviction.
Mr. Meir acknowledged that he had signed off on the plans filed with DOB for the demolition of the Subject Premises (Exhibit 13A), but he did not carefully review them before signing off. Mr. Meir testified that Respondent did not remove any structures, in demolishing the maid's rooms on the twelfth floor, only partitions. Mr. Meir acknowledged that Respondent had filed plans as to the existing structure on the twelfth floor, but denied that Respondent had filed plans as to what is going to be built. Mr. Meir recognized the certified plans shown him during cross-examination (Exhibits 14A–C), and testified that these plans were reviewed by his construction team. Exhibit 14B shows the twelfth floor before the demolition. Mr. Meir acknowledged that this plan did not show either the Subject Premises or the premises occupied by Courtney Chandel. Mr. Meir stated he did know if the plans were false.
Mr. Meir examined Exhibit 14C and stated he did not know if this plan purports to depict what is to be built on the twelfth floor. Mr. Meir stated he is not involved in construction plans, and denied knowledge of what Respondent intends to be build on the twelfth floor. The Court did not find Mr. Meir's testimony credible in this regard. Mr. Meir later testified that Respondent plans to convert the apartments in the subject building to condos or coops to make a profit. Mr. Meir testified, incredibly, that he does not know if the intended construction on the twelfth floor will generate greater revenue than the rentals of the maid's rooms previously there. Mr. Meir testified that Respondent demolished the maid's rooms on 12 because Respondent is contemplating putting new risers into the building. This testimony lacked credibility and was unsubstantiated in any manner.
Mr. Meir testified that when he learned that Ms. Chandel's use of two rooms on the twelfth floor was illegal, he commenced an action based on the illegal use in Supreme Court, under Index No. 54516/12. Ms. Chandel was temporarily relocated from the twelfth floor to the seventh floor, pursuant to an agreement between the parties. There is presently pending a holdover proceeding regarding the unit occupied by Ms. Chandel on the seventh floor. In response to a question regarding whether Ms. Chandel was paid a large sum to relocate, Mr. Meir asserted his fifth amendment rights.
Mr. Meir was not present in February 2012, when a company hired by Respondent broke into the Subject Premises and moved Petitioner's belongings to the basement. Mr. Meir denied he was involved in the decision making process, asserting the “relocation” was ordered by “executives.” Mr. Meir testified these executives had authority to proceed as they deemed appropriate and did not his need specific authorization, though he acknowledged that he has greater authority than his executives. Mr. Meir consulted with counsel regarding the relocation. To the extent that Mr. Meir denies responsibility for Respondent's actions regarding the demolition of the twelfth floor and the “relocation” of Petitioner's belongings the rooms from the twelfth floor to the basement, the Court does not credit his testimony.
The next witness to testify was David Wilson. Mr. Wilson was hired by Respondent to video tape the break in and the removal of the property from the Subject Premises and the other units on the twelfth floor. Mr. Wilson filmed Respondent's agents braking the lock to the Subject Premises, with a crow bar, and then removing all contents. Mr. Wilson observed a lot of personal property inside the Subject Premises, and said it looked like a closet with belongings piled six feet high. The door to the Subject Premises opened only partially. Once the door was open, there was little unoccupied space. The property in the Subject Premises included household goods, paintings, remote control cars, sleds, and folding chairs. Mr. Wilson observed the workers take the property out of the Subject Premises and load it onto the freight elevator. The Court found Mr. Wilson to be a very credible witness. Mr. Wilson recorded the process using a hand held video camera. A DVD (Exhibit D) to which the video had been downloaded was played during the hearing.
Exhibit D casts doubt on the credibility on Tommy, to the extent that his testimony suggested that in recent years he had slept in the Subject Premises.
The next witness to testify was Harvey Clarke. Mr. Clarke's company, AJ Clark Real Estate Corporation, managed the subject building from 1976 through 2008. Mr. Clarke is familiar with the rooms on the twelfth floor of the building. Prior to 1976, the rooms on the twelfth floor had been used as maid's rooms, and incorporated into the residential leases of the regulated tenants, but since 1976 they had been rented for storage purposes, pursuant to separate agreements. Mr. Clarke has known Petitioner for many years, and worked with her in the past. Mr. Clarke testified that Petitioner approached him about renting the Subject Premises, and he agreed to rent it for storage purposes, but the agreement was made a long time ago. Mr. Clarke did not tell Petitioner she was precluded from using the Subject Premises for anything beyond storage. Mr. Clarke does not recall if he issued Petitioner a lease for the Subject Premises. Mr. Clarke testified that through 2008, there were storage units in the basement of the subject building that were being rented.
The next witness to testify was Daniel Gaglielmone. Mr. Gaglielmone is employed by Vornado Realty Trust. Vornado Realty Trust has an interest in the retail spaces in the building, but has no control over the residential portions of the building. Mr. Gaglielmone is a Senior Vice–President at Vornado Realty Trust. Vornado Realty Trust pays no fees to HFC.
Stephen J. Morrison was recalled by Petitioner. Mr. Morrison offered testimony regarding additional DOB plans filed by Respondent for the twelfth floor of the building (Exhibits 14A–C). Mr. Morrison testified that these plans were three drawings filed with the alterations documents (Exhibits 13A–L) he had previously testified about, and were filed in conjunction with plans to make alterations to the twelfth floor of the building. Exhibit 14B depicts Respondent's demolition plan for the twelfth floor of the building. The lines indicated on this plan indicate, by placement of a dash on the plan, the maid's rooms are to be removed.
Exhibit 14C is a new floor plan for the twelfth floor. The plans indicates that Respondent intends to construct thirteen maid's rooms. Respondent filed simultaneously with the demolition plans, what the intended construction would be.
DISCUSSION
PETITIONER HAS ESTABLISHED A CLAIM FOR UNLAWFUL EVICTION
RPAPL § 713(10) provides that a summary proceeding may be maintained when:
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;
In order to have standing to maintain this proceeding, Petitioner need only show that she was in actual or constructive possession of the premises and that Respondent's entry was either forcible or unlawful (Saacheri v. Cathedral Props. Corp, 184 Misc.2d 304, 708 N.Y.S.2d 805). It is clear to this Court that Petitioner herein meets both criteria. Petitioner was in peaceably in possession of the Subject Premises. “Generally any overt acts indicating dominion and a purpose to occupy and not to abandon the premises will satisfy the requirements as to possession [Town of Oyster Bay v. Jacob 109 A.D. 613, 96 N.Y.S. 620, 622(2nd Dept, 1905) ].” For the possession to be peaceable, entry into possession must have been uncontested (Runquist v. Koeppel 146 Misc.2d 569, 551).
It has been held that “(t)he obvious purpose of prohibiting eviction of a tenant by force is to prevent landlords from taking the law into their own hands and breaching the peace (Carter v. Andriani 84 A.D.2d 513, at 514, 443 N.Y.S.2d 157).” It is undisputed that Petitioner entered possession of the Subject Premises pursuant to an oral agreement with Respondent's predecessor in interest, and remained in possession pursuant to a tenancy evidenced by the payment and acceptance of rent. Rent was paid and accepted for the Subject Premises, through and including March 2012 (Exhibit 12).
RPAPL § 711 provides “(a) tenant shall include an occupant of one or more rooms in a rooming house or a resident ... of one or more rooms in a hotel who has been in possession for thirty consecutive days or longer; he shall not be removed from possession except in a special proceeding.” As Petitioner was the tenant of the Subject Premises, she was only subject to eviction through lawful proceedings (Paulino v. Wright 210 A.D.2d 171, 620 N.Y.S.2d 363).
....[T]he design of section 711 of the RPAPL is to provide that an occupant who has been in possession for 30 consecutive days or longer as a tenant has a substantive right to that room or apartment by prohibiting his or her eviction except upon Court order following a judicial proceeding.
(Mitchell v. City of New York 154 Misc.2d 222, at 223, 584 N.Y.S.2d 277;see also West Broadway Glass Company v. Namaskaar of Soho Inc. 7 Misc.3d 1021(A)( landlord may not attempt to evict a tenant without first bringing the tenant to court and obtaining a judgment of possession and a warrant of eviction ).
Respondent forcibly broke the lock, and removed all of Petitioner's belongings, and then demolished the Subject Premises. Therefore, Petitioner has established a prima facie case pursuant to RPAPL 713(10), in that she was peaceably in actual or constructive possession of the Subject Premises, Respondent used force and in an unlawful manner ousted her from same, and then prevented her reentry by demolishing the premises.
PETITIONER NEED NOT ESTABLISH THAT THE SUBJECT PREMISES IS A HOUSING ACCOMMODATION UNDER § 26–251(a) OF THE NEW YORK CITY ADMINISTRATIVE CODE
§ 26–251(a) of the New York City Administrative Code provides in pertinent part:
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 ... by:
...
(3) engaging ... in any other conduct which prevents or is intended to prevent such occupant from the lawful occupancy of such 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 ...
§ 26–522 of the Code defines dwelling unit, by referencing § 27–2004 of the Housing Maintenance Code, as “... any residential accommodation in a multiple dwelling or private dwelling (§ 27–2004[13] ).” This Court is unpersuaded by Respondent's argument that the Subject Premises is not a “dwelling unit” as defined by the Administrative Code, however the Court need not reach that issue as that argument presents no defense to a proceeding seeking restoration pursuant to RPAPL 713(10).
In enacting the New York City Unlawful Eviction Law the “... City Council found that ... some landlords attempted to evict tenants improperly and without required judicial proceedings so as to convert their buildings to more profitable uses. Finding that existing remedies failed to afford tenants with adequate protection from such forcible evictions, the Council made these practices subject to criminal, as well as civil penalties (People v. 850 West End Avenue Corp. 138 Misc.2d 998, at 1000, 525 N.Y.S.2d 994 citing Proceedings of the Council of the City of New York L.L. 56–1982).”
These provisions of the Administrative Code are intended to expand the available remedies in the case of unlawful eviction, not to restrict the class of individuals who can bring a proceeding under RPAPL 713(10). The Administrative Code is not the basis for the cause of action before this Court. This proceeding is based on RPAPL 713(10). The Administrative Code adds civil penalties and criminal penalties (§ 26–253), which can only be enforced by the Corporation Counsel on behalf of the City of New York (§ 26–524) and Housing Court would not appear to have jurisdiction over such a cause of action, nor does the Administrative Code provide for restoration as a remedy. Thus, Respondent's argument that this proceeding must be dismissed because the Subject Premises is not a “housing accommodation” under the Administrative Code is misplaced.
THERE IS NO LEGAL AUTHORITY TO SUPPORT RESPONDENT'S USE OF FORCE TO TAKE BACK POSSESSION OF A MAID'S ROOM
While there are many cases addressing the rights to possession of maid's rooms, there is legal authority which would legitimize Respondent's actions in this case. There is no legal authority that provides a landlord may unilaterally break into a maid's room rented by a tenant for twenty years, empty it of belongings and then demolish the premises. All of the cases presume that legal process must be used to retake possession, and focus on the status of said rooms and the right to terminate the tenancies.
For example, in Cohen v. Brown Harris Stevens Inc (132 Misc.2d 85, 502 N.Y.S.2d 941), the landlord served a notice of termination seeking to retake possession of a maid's rooms. While there was much litigation about the rights of the parties, and the status of the premises, no one asserted the landlord could use self help to take back possession of the premises, without resort to legal process. In 128 Central park South Associates v. Cooney (119 Misc.2d 1045, 464 N.Y.S.2d 971), the court held that a maid's room, previously rented for storage, and subsequently rented for living purposes was a dwelling unit subject to Rent Stabilization, irrespective of any illegality in the use or occupancy of the premises. While the landlord in that case disputed the regulatory status, there was no claim made by any party that the landlord could simply use self help to take back the maid's room, without the benefit of bringing an eviction proceeding. In 10 West 66th Street Corp. v. DHCR 184 A.D.2d 143, 591 N.Y.S.2d 148, the court held a tenant could not be a coop owner in his prime apartment, while maintaining the status of a rent regulated tenant with respect to a noncontiguous maid's room, but again no claim was made that the landlord could repossess the apartment without legal process [ see also Olsen v. 432 E 57th St. Corp. 145 Misc.2d 970, 548 N.Y.S.2d 864 ( maid's room used only for storage purposes comes within the ambit of RPAPL 853 which does not distinguish between maid's room and dwelling units' ); 650 Park Ave. Corp. v. McRae 665 F.Supp. 228 ( referencing eviction proceeding necessary to take back possession of a maid's room ); In re 10 West 66th Street Corp, Admin Rev Docket No BL 410306 RO ( room designated as maid's room on CO subject to Rent Stabilization ).
Even rooms acknowledged to be used exclusively for storage are not subject to being repossessed by breaking and entering. For example, in 420 Riverside Owners Corp. v. Ettinger 2002 N.Y. Slip Op 50414(U), the landlord commenced a commercial holdover proceeding to recover two basement storage rooms. While the Court rejected the tenant's claim that the rooms were subject to rent regulation, it was conceded by all that the landlord had to bring a proceeding to resolve the issue, and had no right to simply break into the rooms and unlawfully evict the tenant. Here, Petitioner was intentionally deprived of her day in court, she never got a chance to argue to Civil Court or DHCR as to her rights in the Subject Premises or the status of the Subject Premises, because Respondent decided to skip the legalities and move right to breaking and entering. As indicated by the holding in Ettinger, assuming arguendo, that the rooms were used exclusively for storage, and not subject to any rent regulation, Petitioner herein was at a minimum a month to month tenant, and entitled to due process. In Kahn & Rolnick Inc. v. Interborough Fur Storage Co. (196 Misc. 749, 92 N.Y.S.2d 894), the Court held that the rental of a room in a storage warehouse, secured by a lock, to a person who had exclusive possession of the key, established a landlord tenant relationship, and that termination of the relationship and reclaiming of possession must be accomplished through legal process. Similarly, in this proceeding, the rental of the Subject Premises constituted a tenancy that Respondent was required to terminate in accordance with the law, rather than force.
THIS COURT NEED NOT REACH THE ISSUE OF WHETHER THE SUBJECT PREMISES ARE GOVERNED BY RENT REGULATION OR WHETHER THE RENTAL OF THE SUBJECT PREMISES CONSTITUTES AN ANCILLARY SERVICE
In determining whether Respondent's actions constituted an unlawful eviction, the Court need not, and therefore will not, reach the issues of whether the Subject Premises is a housing accommodation subject to Rent Stabilization; or whether the rental of the Subject Premises constitutes an ancillary service. Standing to maintain an illegal lockout proceeding depends neither on the status of the person in possession, nor on the existence of a landlord tenant relationship ( Saacheri supra at 305; Banks v. 508 Columbus Properties 8 Misc.3d 135(A); Dixon v. Grunberg 2004 N.Y. Slip Op 50943[U][ the existence of a landlord and tenant relationship is not the sine qua non to the maintenance of a forcible entry and detainer summary proceeding under RPAPL 713(10) ] ).
The Court finds that, at times, Petitioner and her family used the Subject Premises as a bedroom or studio apartment for her son Tommy, and finds in particular that Tommy lived there with his girlfriend during the summer of 2007. The Court finds that at other times, and in particular during the years 2009 through the time of the eviction, Petitioner primarily used the Subject Premises for storage. The Court finds that Petitioner was in occupancy of the Subject Premises for over twenty years, and that she and her family had exclusive access to the Subject Premises during this period. Respondent was aware at the time it broke into the Subject Premises and removed Petitioner's belongings, that Petitioner did not consent to any “relocation” and that Petitioner had asserted that the Subject Premises was being used for more than just storage, and constituted a part of her primary residence in the building.
Respondent's argument that Petitioner's twenty year rental and occupancy of the Subject Premises was only an ancillary service is not asserted in good faith. § 2520.6(r)(3) of the Rent Stabilization Code defines ancillary services as “... [t]hat space and those required services not contained within the individual housing accommodations, which the owner was providing on the applicable base dates ... and any additional space and services provided or required to be provided thereafter by applicable law. These may include, but are not limited to, garage facilities, laundry facilities, recreational facilities, and security.”
The lease agreement and riders governing Apt 4A (Exhibits 1A–C) address the issue of ancillary services. Paragraph 13(f) of the lease (Exhibit 1A) covers services for storage and provides “(i)f Owner permits You to use any storeroom ... or other facility located in the building but outside of the Apartment, the use of this storeroom of facility will be furnished to You free of charge ...”. Paragraph 8 of the Rider (Exhibit 1B) also addresses ancillary services and provides the “... Owner may not decrease services which were provided or required on the based-date' applicable or which were added ... after that date, without the approval of DHCR” and “(w)here the charge for the service is separate from the rent, and the service is provided by the owner ... the service may not be decreased and any rental increase other than the charge provided in the initial agreement, is subject to guideline limitations.”
If Respondent truly believed that the rental of the Subject Premises was an ancillary service, then Respondent was prohibited by law from discontinuing it or modifying it without prior approval from DHCR (RSC § 2522.4 [d], 2522.4[e] ). Respondent freely acknowledges no such application was made. Thus, Respondent's argument is simply that it intentionally violated the provisions of the Rent Stabilization Code, but that this Court lacks authority to address its' intentionally unlawful acts.
The authority cited by Respondent does not support its position. Respondent cites DHCR decisions where the tenant asserted that the maid's room was an ancillary service in the context of a rent overcharge complaint. Not surprisingly, Respondent can point to no decision regarding the Owner's use of force to evict a tenant from a maid's rooms. The DHCR orders relied upon by Respondent actually underscore the illegality of Respondent's actions. For example, In re Franklin, Admin Rev Docket No NC 410048 RT (April 6, 2001) ( annexed to Respondent's post trial memo ) held that the Rent Stabilization Code “... does not authorize an owner to unilaterally discontinue the ancillary service. The Commissioner rejects the Owner's argument that Maid's Room 15 was not subject to rent stabilization because it was rented for .... storage.” In fact the Commissioner directed that the owner provide the tenant with a renewal lease for the maid's room in question, underscoring the tenant's continued right to possession under Rent Stabilization.
Similarly, In re Madison–68 Corp Admin Rev Docket No. NJ 410048 RO (October 18, 2001), also relied upon by Respondent, DHCR addressed the issue of maid's rooms in the same building as the Subject Premises. The Commissioner found that some maid's rooms in the building could be month to month tenancies, while the maid's room in that particular case was an ancillary service. The order underscores that the determination is factually intensive, and can not be applied to all maid's rooms in the building. Again the Commissioner ruled in favor of the tenant, finding the landlord was overcharging the tenant for the rental of the maid's room, and certainly the order provides no basis to find that Respondent's actions in this proceeding were lawful.
Even if one presumes Respondent would have been successful in an application to DHCR to modify the alleged ancillary service “... it would not avail (landlord) in this proceeding; for (landlord) could not first take the law into his own hands to gain possession and then invoke the law to keep it (Town of Oyster Bay v. Jacob 109 A.D. 613, 96 N.Y.S. 620, 623).”
The possibility of a subsequent DHCR finding that the rental of the Subject Premises constitutes an ancillary service, does not preclude a finding in this proceeding that Respondent's actions constituted an unlawful eviction. If Respondent had applied to DHCR, the agency had ruled the rental an ancillary service, and Respondent received approval to modify the service, that might constitute an affirmative defense, but Respondent intentionally chose to take action without resort to any kind of process, either through the Courts or through the agency. Respondent's assumption as to how DHCR would rule had Respondent filed for permission to modify the alleged ancillary service, is irrelevant, since Respondent made no such application and chose instead to take the law into its own hands.
PETITIONER'S REQUEST FOR RESTORATION AND INJUNCTIVE RELIEF
Petitioner requests to be restored to possession of the Subject Premises, and asks that the Court direct Respondent to rebuild the Subject Premises.
§ 110 of the New York City Civil Court Act addresses the Housing Part of the Civil Court. § 110(a) provides “(a) part of the court shall be devoted to actions and proceedings involving the enforcement of state and local laws for the establishment and maintenance of housing standards, including but not limited to, the multiple dwelling law and the housing maintenance code, building code and health code of the administrative code of the city of New York ...”. § 110(a)(4) provides for “(p)roceedings for the issuance of injunctions and restraining orders or other orders for the enforcement of housing standards under such laws.” § 110(c) provides “regardless of the relief originally sought by a party the court may recommend or employ any remedy, program, procedure or sanction authorized by law for the enforcement of housing standards, if it believes they will be more effective to accomplish compliance or to protect and promote the public interest....”. § 110(e) provides that Housing Court judges are “... empowered to hear, determine and grant any relief within the powers of the housing part in any action or proceeding except those to be tried by jury.”
L.1972, c. 982, § 1, as amended by L.1978, c. 310, § 4, eff. June 19, 1978, provided:
Legislative findings and statement of policy; establishment of a housing part in the New York city civil court.
The legislature further finds that the dispersion of jurisdiction of prosecutions and proceedings to compel compliance with housing standards among a number of courts and the past reliance on criminal prosecution have provided an opportunity for some building owners to resist proper enforcement of housing standards by abuse of procedural devices for dilatory purposes ... The legislature further finds that the establishment of adequate judicial procedures and machinery for the effective enforcement of building standards in the city of New York is a necessity of public interest.
.... (T)he effective enforcement of proper housing standards in the city of New York with jurisdiction of sufficient scope ... to recommend or employ any and all of the remedies, programs, procedures or sanctions will be more effective to accomplish and protect and promote the public interest and compliance;
In addressing the authority of Housing Court in the context of unlawful eviction claims pursuant to RPAPL 713(10) the Appellate Division, First Department has held:
If the Legislature were prepared to deal with the situation outside of the Housing Court, they could have enacted additional legislation to cover it.
The Housing Court Act of 1972, N.Y.C. Civil Ct. Act § 110 (McKinney's Supp.1981), Ch. 982 [1972] N.Y. Laws 3099, was to accomplish two major objectives. The first was to create a comprehensive forum for the adjudication of all matters relating to housing standards, and the second being to provide a new method of enforcement and prevention of code violations.
....
The sweeping grant of remedial powers coupled with the liberal joinder provisions, is designed to give the Housing Court the flexibility it needs to be effective.
(Carter v. Andriani 84 A.D.2d 513, at 514, 443 N.Y.S.2d 157)( emphasis added ).
It is well settled that where the Housing Court finds that an unlawful eviction has occurred, restoration is an appropriate remedy and well within the Court's authority to order [ See eg Banks v. 508 Columbus Properties 8 Misc.3d 135(A)(App Term, 1st Dept, 2005)( order restoring occupant to premises after finding of illegal lockout affirmed ); Rostant v. 700 RSD Acquisition LLC 21 Misc.3d 138(A)(App Term, 1st Dept, 2008)( affirming restoration to possession of step daughter of deceased tenant of record after illegal lockout ); Saccheri v. Cathedral Properties Corp. 16 Misc.3d 111, 842 N.Y.S.2d 676(App Term, 9th & 10th Jud Dist, 2007)( reversing lower court's failure to restore tenant to possession after illegal lockout ).
The issue here is whether, in order to effectuate Petitioner's right to restoration, the injunctive powers of Housing Court afford this court jurisdiction to direct Respondent to rebuild the maid's room, after Respondent intentionally demolished the premises.
“... (T)he term housing standards' as used in the New York City Civil Court Act should be given as broad a meaning as possible ... (Tenants of 515 East 12th Street v. 515 East 12th Street Inc 128 Misc.2d 235, at 236, 489 N.Y.S.2d 830 (Civ Ct, N.Y. Co, Friedman, J)”. In directing a landlord to restore a premises that had been destroyed by fire, Judge Lewis R. Friedman noted:
This court has been confronted with numerous cases where the petitioning tenants assert that the owner has, whether through design or inadvertence, caused injury to its own property in order to vacate the premises. The allegations here fit that pattern. The economic realities may well encourage an owner to vacate premises in order to substantially renovate and rerent the premises. .... Clearly, if the owner intentionally damages his own building, he cannot be allowed to reap financial rewards from that conduct at the expense of the tenants.
[Id at 238, 489 N.Y.S.2d 830;see also Chan v. 60 Eldridge Corp 129 Misc.2d 787, 494 N.Y.S.2d 284 ( Housing Court had jurisdiction to order landlord to rebuild building partially destroyed by fire ); Atco–Midwood Associates v. Benitez 106 A.D.2d 501, 482 N.Y.S.2d 839 (App.Div., 2nd Dept, 1984)( if landlord was responsible for creating the conditions which required the building to be vacated and gutted appropriate equitable relief should be fashioned for the tenants ).
This Court finds that Respondent intentionally unlawfully forced Petitioner out of the Subject Premises and then proceeded to immediately demolish it, because Respondent found it more to its economic advantage to do so, then to proceed in a lawful manner. The Court finds that by intentionally demolishing the Subject Premises, immediately after the unlawful eviction, Respondent believed it could prevent Petitioner from invoking her right to restoration. The Court notes that Respondent carefully considered its actions over a long term period, and employed the advice of a team of professionals, including attorneys, as to the implications of its actions.
§ 27–2002 of the Housing Maintenance Code provides:
It is hereby found that the enforcement of minimum standards of health and safety ... repair and maintenance, and occupancy in dwellings is necessary to protect the people of the city against the consequences or urban blight. The sound enforcement of minimum housing standards is essential
1. to preserve decent housing;
2. to prevent adequate or salvageable housing from deteriorating to the point where it can no longer be reclaimed; and
3. ... the enactment of a comprehensive code of standards for decent housing maintenance, imposing duties and responsibilities for the preservation of the dwellings in the city upon owners and tenants, as well as on the municipality itself, enforceable by a broad range of legal, equitable and administrative powers, is appropriate for the protection of the health, safety and welfare of the people of the city.
The HMC is intended to prevent owners from allowing intentionally or otherwise an occupied premises to slip into disrepair. Therefore, when an owner seeks to accelerate that process, not simply by allowing a premises to slip into disrepair, but by outright demolishing it, that owner is in blatant violation of the most basic obligations of a landlord under the HMC.
If it was previously unclear whether the above statutes were broad enough to vest Housing Court with jurisdiction to order injunctive relief beyond just correcting violations, or just how broad the definition of housing standards' ought to be, the Appellate Division, First Department eliminated any doubt in its decision in Prometheus Realty Corp. v. City of New York 80 A.D.3d 206, 911 N.Y.S.2d 299 (2010). In Prometheus, the Appellate Division discussed at length the equitable jurisdiction of Housing Court under § 110 of the Civil Court Act and the definition of the term Housing Standards .' The conduct prohibited by the statutory provision examined by the Appellate Division, in Prometheus is quite similar to the conduct the Respondent engaged in by unlawfully evicting Petitioner. The Court considered Sections 27–2005 and 27–2004 of the Administrative Code, which provide an owner will not harass a tenant by doing any act intended to cause the tenant to vacate a premises.
The Court held:
CCA 110(a)(4) authorizes the Housing Part to issue equitable relief such as restraining orders and injunctions in order to enforce housing standards.' This authority is no more limited to proceedings involving the physical condition of buildings than the remainder of the authority granted by section 110(a) to hear actions in order to enforce housing standards.
...
... (I)t is demonstrably untrue that the Housing Maintenance Code has been until now, strictly limited to governing matters of building structure....(T)he legislative declaration in the Housing Maintenance Code indicates an intent to protect tenants' actual occupancy, as well as the physical condition of the premises....”.
Id at 212, 911 N.Y.S.2d 299.
Moreover, the evidence offered at the hearing established that Respondent has already filed plans with DOB for the reconstruction of the maid's rooms on the twelfth floor (Exhibit 14C), so the legalities of reconstruction have been addressed.
Finally, by ordering Respondent to rebuild the maid's room, the Court is only directing Respondent to comply with its' existing legal obligations and restoring the parties to the status quo that existed prior to Respondent's unlawful acts.
§ 26–512(3)(b) provides “(i)t shall be unlawful for an owner of a dwelling unit to fail to take all reasonable and necessary action to restore to occupancy an occupant of a dwelling unit who ... has been removed from ... a dwelling unit as the result of any acts ... prescribed in subdivision a of this section ...”.
REQUEST FOR DISMISSAL AS AGAINST VORNADO REALTY TRUST
This proceeding is dismissed as against Vornado Realty Trust. Vornado Realty Trust is neither an owner of the building nor Petitioner's landlord, and no evidence was offered by Petitioner at the hearing to establish that said entity took part in the unlawful eviction.
CONCLUSION
Based on the forgoing, Petitioner's motion is granted. The Court finds Petitioner was unlawfully evicted and is entitled to be restored to possession of the Subject Premises. Petitioner is awarded a judgment of possession for the Subject Premises as against Respondent. Respondent is directed to rebuild the Subject Premises and restore Petitioner to possession forthwith.
This constitutes the decision and order of this Court.