Criveau v Conlon

[*1] Criveau v Conlon 2005 NY Slip Op 50056(U) Decided on February 1, 2005 District Court, Nassau County Fairgrieve, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 1, 2005
District Court, Nassau County

Arlene Criveau, Plaintiff(s),

against

Jackie Conlon, Defendant(s).



SC 1619/04

Scott Fairgrieve, J.

ISSUES

Is plaintiff, landlord allowed to recover for rent when plaintiff, landlord rents her premises illegally in violation of the Town of Hempstead code?

Is the defendant, tenant entitled to the return of her security deposit when defendant, tenant knowingly rents an illegal apartment in violation of the Town of Hempstead code?

Should the plaintiff and defendant be able to recover any damages when they both knowingly submit a fraudulent application to the Town of Hempstead so that the plaintiff obtains a mother/daughter approval from the Town Board of Zoning and Appeals?

NATURE OF CLAIM

Plaintiff, who resides at 14 Byron Street, Bethpage, New York, and rents the upstairs portion of the premises at 19 Meridian Road, Levittown to the defendant, makes a claim against the defendant for rent for the months of May and June of 2004, totalling $3,000.00, plus utilities for oil and electric, and for damage to the premises.

Defendant counterclaims for the following: (1)Construction Eviction(2)Breach of Warranty of Habitability(3)Breach of Quiet Enjoyment(4)Illegal rental of an Apartment in a multiple dwelling without proper permits.Defendant seeks a refund of security in amount of 1,500.00, [*2]plus damages for moving, totalling $3,000.00.

FACTS

Plaintiff entered into a written Lease Agreement with defendant commencing September 1, 2000, with a yearly rent of $18,000.00 (monthly rent of $1,500.00) and with a security of $1,500.00. Defendant agreed to pay 1/3 of total electric bills for the subject premises, and 1/3 of total oil bills for the subject premises. Defendant also agreed to keep the premises in "good order and repair." For violation of this paragraph (8th), Landlord "has the right to make repairs and charge Tenant the cost."

The parties further agreed to paragraph 24: "If any part of this Lease is not legal, the rest of the Lease will be unaffected."

Landlord represented that Tenant had the right of quiet enjoyment: 26.Quiet enjoyment"Landlord agrees that if Tenant pays the rent and is not in default under this Lease, Tenant may peaceably and quietly have, hold and enjoy the Premises for the Term of this Lease."

DIRECT TESTIMONY OF PLAINTIFF LANDLORD, ARLENE CRIVEAU Plaintiff stated that she owns 19 Meridian Road, Levittown, New York.

Landlord testified that the said premises is a legal mother/daughter which was approved for this use by the Town of Hempstead Board of Appeals on February 4, 2004 for a period of three years until 2007. According to Town of Hempstead records, the mother/daughter use was originally approved on 11/1/95 under case No.903.

The premises is a Levitt house which sustained fire damage in 1994, and was rebuilt.

The defendant was referred by Century 21 Prevete Real Estate Brokers, and rented the upstairs apartment in 2000 with her two children. Plaintiff's son Fred Fountain (born 6-7-74) lived downstairs on the first floor when the defendant moved in. In 2000 the basement was not finished, and there was no basement apartment. [*3]

In or about 2002/2003, electrical and plumbing issues had to be taken care of before the mother/daughter use could be renewed by the Zoning Board of Appeals of the Town of Hempstead.

Defendant occupied the upstairs premises from 2000 through June of 2004. The monthly rent was $1,500.00 and tenant was responsible for 1/3 of the total electric bill and 1/3 of the total oil bill for the premises.

Plaintiff testified that defendant owes $1,500.00 for the months of May and June 2004, for a total of $3,000.00, and utilities, including oil and electric. The parties have stipulated that a total of $400.00 for oil and electric would be owed if plaintiff was entitled to recover.

Plaintiff claims damage was caused by defendant as follows: (A)Carpeting - The carpeting was relatively brand new in 2000 when the tenant moved in. The tenant's cat made a hole in the carpeting. The living room carpet had a burn mark and candle wax on the rug. The bedroom carpet had a large wax spot.(B)Walls - Landlord testified that there were holes in the walls from nails, drips from paint and dents in walls. Parts of the premises were improperly painted with the wrong colors.

CROSS EXAMINATION - LANDLORD ARLENE CRIVEAU

Prior to December 2003, the basement was never finished. Plaintiff had no knowledge of Frank Sparado and Tim Rice renting out the basement.

The basement had two entrances from the outside. There are 4 rooms in the basement with a shower, toilet and sink, and no bedrooms. The mother/daughter permit was approved in 1995 for a 3 year period. The mother/daughter permit was in effect in September 2000.

Plaintiff rented the upstairs to defendant with the understanding that defendant would represent that she was the girlfriend of the son, in order to obtain the mother/daughter permit approval from the Town of Hempstead.

Plaintiff testified as follows to the agreement:

Q.Ma'am, when the apartment was rented in September of 2000, do you have [*4]anything in writing that shows that the defendant agreed to claim to be the girlfriend of your son and in effect, lie to the town in order to get the apartment?

A.She lied to the real estate to get the apartment, because it was her mother.

Q.Ma'am, answer the question, yes or no; do you have anything in writing?

A.No, it was an agreement and she signed the papers when she signed the town. That was the agreement when she signed it to the town. That was the agreement in black and white.

Q.Ma'am, I'm just dealing with the time period of September, 2000, which is when the - -

A.I'm telling you, that's how it had to be or it wouldn't be at all.

Q.Okay. So, it's your testimony that in September of 2000, when she took the apartment through a broker, she signed something at that time to the town,claiming to be the girlfriend of your son; it that correct?

A.She was told that if she wanted the apartment and she would have to (be) related to Freddy in some way, otherwise, she could not have the apartment. That's what was agreed on.

Q.Was that agreement in writing or verbally?

A.That was verbally.

Q.Okay. And that was a verbal agreement between yourself and the defendant or your son and the defendant?

A.It was all three of us. My son knew all about it.

Q.Okay.

THE COURT:It was a verbal agreement - -

Plaintiff confirmed that this illegal arrangement was done to defraud the Town of Hempstead to obtain the mother/daughter permit approval:

THE COURT:I just want to clarify something. So, for her to get the apartment, she had to - - she had to represent herself as the girlfriend of your son?

MS. CRIVEAU:Yes. [*5]

THE COURT:And tell the town that?

MS. CRIVEAU:Yep.

THE COURT:Even though that wasn't true?

MS. CRIVEAU:Yes.

Plaintiff denied receiving rent for the rental of the basement to Frank Sparado or to Tim Rice or anybody. However, her son may have received rent from the rental of the basement.

Plaintiff acknowledged that she received violations from the Town of Hempstead for persons living in the basement and from having a kitchen in the basement.

TESTIMONY OF TOWN OF HEMPSTEAD -

MAUREEN GREENE - CODE ENFORCEMENT OFFICER

Maureen Greene has worked for the Town of Hempstead for 22 years, 15 years of which as a code enforcement officer. The Town of Hempstead first became aware in 1996 of a housing complaint concerning illegal occupancy in the basement. People were living in the basement on September 3, 1996; however, there was no kitchen. A summons for the illegal occupancy was issued on September 27, 1996. On October 18, 1996, the tenants had vacated.

The mother/daughter permit application was approved on January 3, 1996 and ran for 3 years until it expired on January 3, 1999. A new application was submitted in December 2003, for mother/daughter use. Between 1999 and January 2004, the premises was a single family house with an expired mother/daughter permit. It was illegal to rent the upstairs in September of 2000. In 1999, a violation was issued for an expired mother/daughter permit.

The Town Inspector introduced the Town of Hempstead building zone ordinance which defines a mother-daughter residence as follows: MOTHER-DAUGHTER RESIDENCE A one-family home or residence constructed or altered to include a second kitchen for the sole use by the children or parents of the fee resident owner of said one-family home or residence. [Effective 12-24-1973].

Ms. Greene testified, starting in 1973 to the present, it would be illegal for a resident [*6]to rent the upstairs of a house unless "it was her parents or a child," pursuant to a mother/daughter permit. In this case, plaintiff could only rent the house as a single family and not the upstairs.

In 2002, the Island Trees School District sent a letter to the Town reporting that three unrelated families lived at the premises. The Town issued violations for this situation.

On September 9, 2003, a full kitchen was discovered in the cellar of the house with a sink, stove, base cabinets, and refrigerator. Virginia Smith and her daughter were living in the basement. The tenants from the cellar apartment allowed Inspector Greene to inspect the apartment. Violations were issued for this illegal use.

The plaintiff submitted a notarized application for renewal of a mother/daughter permit on 12/19/03. The Town of Hempstead never spoke to the defendant about the application. The plaintiff told Inspector Greene that her son's girlfriend was pregnant and living upstairs in the mother/daughter apartment. The application for renewal of the mother/daughter permit would not have been renewed if there was no relationship between the plaintiff's son and the person living upstairs.

In May and June of 2004, there was no right by plaintiff to rent to the defendant. Plaintiff illegally rented the cellar because 3/4 of same was underground, which is contrary to Hempstead Zoning law.

In September of 2003, plaintiff told Inspector Greene that defendant was her son's girlfriend and she was pregnant with his child. This was not true.

TESTIMONY OF DEFENDANT - JACQUELINE CONLON

Defendant, Jacqueline Conlon moved into the upstairs apartment on September 15, 2000 with her two daughters, Michelle and Brooke. Plaintiff was looking for an apartment in the Island Trees School District. The real estate agent to which she went, found her the apartment. A lease was signed with plaintiff. As part of the rental agreement, defendant agreed to represent herself as Fred Fountain's (plaintiff's son) girlfriend to the Town, as necessary.

In February or March of 2001, Virginia Smith and her daughter moved into the basement apartment. The basement had two bedrooms with a kitchen and bathroom. Virginia Smith moved out in December of 2003. The basement was re-rented to Frank Sparado and Tim Rice in February of 2004.

Defendant, Jacqueline Conlon's apartment upstairs didn't have a door separating it from the rest of the house. [*7]

Defendant claims that her apartment was burglarized in February of 2004 and cash was taken from her apartment. Another break in occurred May 10, 2004 where her belongings and her apartment were ransacked. Counsel for defendant claims that a constructive eviction took place which supports the counterclaims. Her rent money of $1,500.00 and her jewelry (movado watch) were taken in the May burglary.

After the May 10, 2004 incident, the following happened:

Q.So, you found your apartment through a real estate broker?

A.Yes.

Q.Following the break in, in May of 2004, um, was a request made to install a door either at the top or bottom of the stairs?

A.Yes, my father came over and spoke to Freddy the next day and asked why couldn't there be a door put up and he was very concerned for me and my children at that point. How come there was never a door and, you know, Freddy explained to my father about the mother-daughter, it would be illegal to have a door put in the apartment.

Q.Would it be safe to say that they denied your request to install a door?

A.Yes.

Also, there were two occasions when defendant and her daughters smelled marijuana from the downstairs apartments.

The refusal to install a door and the prior incidents caused defendant to find a new apartment at a cost of a brokerage fee of $1,400.00 and moving expenses of $300.00.

Defendant admitted that she hand wrote that she was the girlfriend of Frederick Fountain on the mother/daughter permit application submitted to the Town of Hempstead in 2003.

DECISION

This Court is faced with a classic situation of both parties to an illegal transaction using the courts to further their respective interests. Parties to an illegal contract cannot use courts to help them carry out their illegal objects and schemes. See, McConnell v. Commonwealth Pictures Corp., 7 NY2d 465; Stone v. Freeman, 298 NY 268; Sachs v. Saloshin, 138 AD2d 586, 526 N.Y.S.2d 168 [2nd Dep't, 1988]; Ford v. Henry, 155 Misc 2d 192, 598 N.Y.S.2d 660 [Sup. Ct., App. Term 2nd Dep't 1993]; Cater v. Saunders, 2002 WL [*8]31207219, 2002 NY Slip Op. 50400 [NY Dist. Ct., Nassau Ct. 2002].

Plaintiff seeks to recover rent and utility costs from the defendant for May and June of 2004. It is undisputed that both parties submitted the fraudulent information to the Town of Hempstead that defendant was the girlfriend of plaintiff's son in order to obtain the renewal of the mother/daughter permit in January of 2004. Inspector Greene testified that it was illegal to rent to defendant because the zoning laws prohibited this use.

This Court refuses to award plaintiff any rent or any other damages caused by defendants to the premises. The plaintiff set up the illegal situation by willfully violating the Town of Hempstead zoning code and lying to the Town about the mother/daughter status of the premises. This Court refuses to grant rent or use and occupancy to landlords who openly and notoriously violate laws.

Likewise, defendant is not awarded the return of her security deposit nor her damages for moving, because defendant knew that the premises were being rented illegally and she participated in the fraud perpetrated upon the Town of Hempstead and the Island Trees School District. Both parties are relegated to their present positions without any damages being awarded. See, Cater v. Saunders, supra; Realty Group of Long Island Inc. v. Acosta, 2004 WL 2059426, 2004 Slip Op. 50996 [NY Dist. Ct., Nassau Ct. 2004] Fazio v. Kelly, 2003 WL 22227363, 2003 NY Slip Op. 51276 [NY Civ. Ct., 2003]; Bartolomeo v. Runco, 162 Misc 2d 485, 616 N.Y.S.2d 695 [NY City Ct., 1994].

CONCLUSION

Plaintiff and defendant are denied recovery concerning their respective claims, because of their complicity in an illegal and fraudulent scheme. This Court will not award a landlord and tenant any damages where their own willful conduct caused their plight.

So Ordered:

DISTRICT COURT JUDGE

Dated: February 1, 2005

CC:Arlene Criveau, pro se

Scott A. Conlon, Esq.

SF/mp