Ackerman v Berkowitz

[*1] Ackerman v Berkowitz 2016 NY Slip Op 26412 Decided on December 12, 2016 Civil Court Of The City Of New York, Kings County Avery, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 12, 2016
Civil Court of the City of New York, Kings County

David Ackerman, Petitioners,

against

Sarah Berkowitz, as Trustee of Haberman Family 1120 Guaranty Irrevocable Trust and the Department of Housing Preservation and Development ("DHPD"), Respondents.



David Ackerman, Petitioners,

against

Sarah Berkowitz, as Trustee of Haberman Family 1120 Guaranty Irrevocable Trust and the Department of Housing Preservation and Development ("DHPD"), Respondents.



HP 6422/2016



Gerald Slotnik, Esq.

1833 East 12 Street, 6E

Brooklyn, NY 11229

Law Office of Benjamin Z. Epstein PC

2394 Nostrand Ave

Brooklyn, NY 11210

DHPD

Brooklyn Housing Litigation Division

100 Gold Street, Sixth Floor

New York, NY 10038
Susan F. Avery, J.

CONSOLIDATION

The above captioned proceedings are consolidated solely for purposes of the instant decision/order.

PROCEDURAL HISTORY

Petitioner commenced the instant harassment proceedings, by filing an order to show cause, notice of petition and petition with numerous documents annexed to the application (in each action). In support of each petition, the petitioner claims the respondent-landlord[FN1] has harassed petitioner by unlawfully and forcibly evicting the petitioner from the subject premises without due process of law, preventing him and his guests from fully enjoying the premises and preventing him from receiving mail addressed to him at the subject premises. Mr. Ackerman, the petitioner, states that the respondent used force and removed him and his possessions from the subject premises. Mr. Ackerman claims that the subject premises is 1120 48th Street, Garden and Basement Apartments, Brooklyn, NY 11219. He alleges that the landlord refused to permit him reentry to the premises.

Respondent/landlord[FN2] opposed the petitions and filed a cross motion in each action, seeking to dismiss each proceeding and for the imposition of sanctions against the petitioner and for legal fees.

DISMISSAL OF DUPLICATE PROCEEDING

As the proceeding bearing index number HP 6429/2016, which was commenced subsequent to the commencement of the proceeding bearing index number HP 6422/2016, and seeks identical relief, the proceeding bearing index number HP 6429/2016, is dismissed as duplicative. Accordingly, this decision will address the issues as they are presented in the [*2]proceeding bearing index number HP 6422/2016.

SUMMARY DETERMINATION REQUIREMENT

This court has reviewed the submissions filed in the instant proceeding and heard argument on the parties' positions. Having heard argument from the attorneys for all parties and having reviewed the parties' submissions, and finding there are no issues of fact to be determined at trial, the Civil Practice Laws and Rules ("CPLR") §409 requires this court to issue a summary determination of the matter herein.[FN3]

CPLR §409

CPLR §409 (b) requires that in a summary proceeding the court search the record and issue judgment. Specifically, CPLR §409 reads as follows: "[t]he court shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised." Accordingly, upon a search of the record, this court finds that there are no triable issues of fact to be determined at trial, and denies each petition and dismisses the proceedings.[FN4]

FACTUAL BACKGROUND

The premises that is the subject of this (and other actions herein mentioned) is a two (2) family dwelling.[FN5] Sometime in the year 2004, Mr. Ackerman entered into possession of the subject premises[FN6] (1120 48th Street, First Floor Apartment, Brooklyn, NY 11219) as an incident to his employment[FN7] as the live-in home healthcare aid of Mr. Wilhelm Haberman[FN8] who is 94 years of age[FN9] and a holocaust survivor.[FN10] Mr. Haberman has resided on the first floor of the premises (1120 48th Street, Brooklyn, NY 11219)[FN11] for over fifty (50) years.[FN12] Ms. Sarah [*3]Berkowitz is Mr. Haberman's daughter and she assists in tending to his affairs.[FN13]

At some point, Mr. Haberman and his family became dissatisfied with Mr. Ackerman's services and terminated his employment as Mr. Haberman's live in home healthcare aid.[FN14] As occupancy at the subject premises was incident to his employment, upon his termination, Mr. Ackerman was required to vacate the premises, which he did not immediately do.

THE LICENSEE HOLDOVER PROCEEDING

After Mr. Ackerman's home healthcare services were terminated, he did not vacate the premises when requested.[FN15] Thereafter, the landlord commenced a licensee holdover proceeding seeking to remove Mr. Ackerman from the premises.[FN16]

The holdover proceeding was originally returnable on March 19, 2015, the proceeding was adjourned on several occasions, and on some occasions, at the request of Mr. Ackerman due to health reasons. By notice of motion dated June 3, 2015 and returnable on June 16, 2015 counsel for Mr. Ackerman sought to dismiss the proceeding (CPLR §3211(a)). The file does not contain a disposition for the June 16, 2015 appearance, however, by a stipulation dated June 15, 2015, the proceeding was adjourned to June 23, 2015 for "trial/traverse" and the motion was deemed "settled." On June 23, 2015, the landlord appeared in court with witnesses, including the process server and over the landlord's objection, Mr. Ackerman's attorney's request for an adjournment was granted and the proceeding was adjourned to August 10, 2015. On August 10, 2015, at Mr. Ackerman's attorney's request, the proceeding was further adjourned until October 7, 2015 with a notation that the adjournment was "final!" (sic). On October 7, 2015 the matter was adjourned to October 29, 2015 with the notation "final for trial" (no exclamation point). The file does not contain a disposition for October 29, 2015. The matter proceeded to trial on November 5, 2015.

The matter was tried before Judge Sikowitz. Following the trial, Judge Sikowitz issued a decision dated November 5, 2015[FN17] finding that Mr. Ackerman's license to occupy the premise had been terminated and provided for the issuance of a final judgment of possession in favor of [*4]the landlord. Mr. Ackerman was evicted by City Marshal Ileana Rivera on April 28, 2016.[FN18]

Parenthetically, this court notes that unrebutted testimony at the trial included that: Mr. Ackerman was abusive to Mr. Haberman,[FN19] harassed and yelled at Mr. Haberman[FN20] threatened to destroy Mr. Haberman and threatened to put him "into the ground;"[FN21] that Mr. Haberman was afraid of Mr. Ackerman, and as a result locks were installed on the bedroom doors at the premises, in an attempt to keep Mr. Haberman and Ms. Berkowitz safe from Mr. Ackerman's tirades[FN22] and often, as a result of Mr. Ackerman's frightening behavior Ms. Berkowitz locked herself and her wheelchair bound father in his bedroom and sat with him until it seemed that they were no longer in danger of Mr. Ackerman.[FN23] Ms. Berkowitz's testimony was found to be credible.[FN24]

Additional unrebutted testimony at trial was that Mr. Ackerman "hit" Ms. Berkowitz[FN25] and he tormented replacement home care aides by entering the new aides' rooms at the premises and sat on their beds, prevented them from sleeping and criticized them.[FN26]

In her post trial decision, Judge Sikowitz noted that Mr. Ackerman failed to appear in court on scheduled court dates, claiming to the court, that he was too sick to attend the proceedings. The court notes that Mr. Ackerman appeared in court through his attorney, who only had authority to seek adjournments.[FN27] Mr. Ackerman's attorney attended, but did not [*5]participate in the trial.[FN28] Judge Sikowitz also noted in her decision that Mr. Haberman appeared "in the courtroom in a wheelchair."[FN29]

A notice of appeal of Judge Sikowitz's post trial decision was filed at the appellate term on December 11, 2015.

SUPREME COURT ACTION

During the pendency of the holdover proceeding, Mr. Ackerman filed an action against Ms. Berkowitz and others, in Supreme Court in Kings County[FN30] and obtained a stay of the housing court holdover proceeding.[FN31] In the Supreme Court action it was argued that the holdover proceeding was improper as the petitioner's in that proceeding, did not have title to the premises and therefore had no standing to maintain the action or be "restored" to possession. As the lack of standing defense could have been raised and litigated during the trial in the holdover proceeding, coupled with the issuance of the warrant of eviction, in a decision dated April 18, 2016, issued by Justice Paul Wooten, JSC, the Supreme Court stay was vacated and Mr. Ackerman's Supreme Court action was dismissed.[FN32]

APPEAL OF THE SUPREME COURT ACTION

In a decision dated June 7, 2016 the Appellate Division held that the:

"Motion by David Ackerman for leave to appeal to this Court from an order of the Supreme Court, Kings County..... and, inter alia, to restore him to possession of the subject premises, pending hearing and determination of the appeal[] is..."ORDERED that the branch of the motion which is for leave to appeal is denied; and it is further,"ORDERED that the motion is otherwise denied as academic."[FN33]

ALLEGED ILLEGAL LOCKOUT PROCEEDING

Several months following his eviction, Mr. Ackerman commenced an "Alleged Illegal Lock-Out" proceeding, against the landlord, in which he alleged that the respondent evicted him without legal process. That proceeding was dismissed by a decision/order issued by Judge Gonzales dated November 1, 2016.[FN34] In her decision, Judge Gonzales found that Mr. Ackerman was evicted from the subject premises pursuant to the execution of a warrant of eviction which was issued following a trial. Specifically, Judge Gonzales wrote: "Respondent's cross motion for an order dismissing the petition for an illegal lockout is granted... petitioner was evicted on April [*6]28, 2016... petitioner [Mr. Ackerman] was a licensee... and has no rights to possession."[FN35]

THE INSTANT HARASSMENT ACTION (ACTION #1)

Four (4) months after he was evicted from the subject premises, on April 28, 2016, Mr. Ackerman commenced the instant harassment proceeding, under Index number HP 6422/2016 claiming that the landlord has harassed him. As noted above, Mr. Ackerman alleges that the landlord has harassed him by unlawfully and forcibly evicting him from the subject premises without process of law, preventing him and his guests from fully enjoying the premises and preventing him from receiving mail addressed to him at the subject premises, including by use of force.

Parenthetically, this court observes that similar to Mr. Ackerman's failure to personally appear in court in the holdover proceeding, in the case at bar, Mr. Ackerman failed to appear on scheduled court dates and failed to appear for the scheduled trial. He appeared through his attorney, who only had the authority to request an adjournment.

HARASSMENT ACTION #2

Similar to the matter at bar (harassment action #1), Mr. Ackerman commenced harassment proceeding #2 under index number HP 6429/2016, subsequent to commencing harassment action #1. As stated above, since the allegations and relief sought in that proceeding are identical to those asserted in the proceeding in action commenced under index number HP 6422/2016 this court hereby dismisses the latter proceeding.

CROSS MOTION FOR SANCTIONS

Chapter 22 of the New York City Rules and Regulation s ("NYCRR") §130-1.1 (a) authorizes "[t]he court, in its discretion, [to] award to any party or attorney in any civil action or proceeding.... costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct.... In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct...."

Frivolous conduct is defined as conduct that "is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law"[FN36] or "it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another"[FN37] or it "asserts material factual statements that are false."[FN38]

ANALYSIS OF THE LAW AND THE FACTS

"Both RPAPL §711 and NYC Administrative Code §26—521 provide that an individual who has resided at a premises for thirty consecutive days or longer may not be removed from the [*7]premises without a special proceeding, warrant of eviction or court order."[FN39] Accordingly, having resided at the premises in excess of thirty (30) days, Mr. Ackerman obtained lawful occupancy rights,[FN40] and it was his legal right to refuse to vacate the premises upon the termination of his employment as the live in healthcare provider to a 94 year old wheelchair bound holocaust survivor, and it was his lawful right to demand legal process prior to his removal therefrom. And it was his right, when the family of the 94 year old wheelchair bound holocaust survivor commenced a licensee holdover proceeding against him, to appear in court through his counsel and seek adjournments.[FN41] And while the record shows that in a prior proceeding, Mr. Ackerman filed an "affidavit of unavailability" stating that "[my] intestine is protruding from my belly"[FN42] and records show that he "clocked in" to work on that same date, this court is not aware of the hours Mr. Ackerman worked and it is possible that he worked after court hours and by the time he was to report to work, the protrusion coming from his belly, decreased.

Additionally, this court notes, that following execution of the warrant of eviction in the licensee proceeding, Mr. Ackerman did not seek any post eviction stays in that proceeding.

As to the Supreme Court action, Mr. Ackerman had the legal right to file that case and seek a stay of the housing court licensee proceeding.[FN43] Indeed, the record in that proceeding shows that there was another action pending in that court which challenged ownership of the subject property.[FN44]

As to the alleged illegal lockout proceeding which was addressed in the moving papers, this court is disinclined to find Mr. Ackerman's actions to be frivolous and sanctionable. Initially, this court notes, that proceeding was heard before a different judge, and the instant court may not have jurisdiction to rule on the landlord's request. Additionally, it was Mr. Ackerman's [*8]contention that he resided in both the first floor garden apartment and the basement apartment and was only evicted from the first floor apartment and not the basement apartment. Although the judge in that proceeding disagreed with him, Mr. Ackerman had the right to assert such a claim, if he believed it to be true.

As to the instant harassment complaints, this court is also not inclined to find that Mr. Ackerman acted frivolously. As noted, the court file in the holdover proceeding has a marking of "illegal lock out, restored" which leads this court to conclude, that prior to the commencement of the licensee holdover proceeding, Mr. Ackerman commenced an alleged illegal lockout proceeding because he was removed from the premises without legal process, and was restored to possession following the commencement of that proceeding. As an illegal eviction may form the basis of a harassment claim against a landlord[FN45] this court cannot conclude that Mr. Ackerman's allegation in the instant proceeding is "completely without merit in law..."[FN46] or "it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another"[FN47] or that he "asserts material factual statements that are false."[FN48]

Additionally, in denying Mr. Ackerman's petition in the alleged illegal lockout proceeding that was commenced after execution of the warrant of eviction that was issued in the licensee holdover proceeding, Judge Gonzales, in her decision, stated that the denial is "without prejudice to any claim for damages that petitioner may have which cannot be heard in this court."Although the instant court, is not the proper forum to hear Mr. Ackerman's damages claims, the harassment cases were filed by Mr. Ackerman as a self-represented litigant, and this court cannot conclude that he knew that the instant court part was not the appropriate forum to hear his claims.

Additionally, the landlord argues that Mr. Ackerman failed to appear in court on scheduled court dates in the instant harassment proceedings as well as in other cases. It is the landlord's contention that the failing to appear in court on scheduled court dates, is conduct for which Mr. Ackerman should be sanctioned. However, while, Mr. Ackerman failed to personally appear in court on scheduled court dates, his attorney appeared in court on his behalf. It was Mr. Ackerman's right to waive his right to personally appear in court on scheduled court dates in this and other proceedings and appear through his attorney.

SEPARATION OF POWERS

In essence, the landlord requests that this court create an exception and permit a [*9]terminated live in home healthcare aid of a wheelchair bound 94 year old, to be evicted without legal process and impose sanctions upon the terminated employee for commencing and litigating cases stemming from his removal from the subject premises.

This court is mindful that Mr. Ackerman's failure to vacate the premises upon the termination of his employment, delayed Mr. Haberman, a wheelchair bound 94 year old senior citizen, from securing the full benefits of a new live in home healthcare aid, and caused additional pressure and discomfort to Ms. Berkowitz, Mr. Haberman and their family. Additionally, this court understands Ms. Berkowitz's frustration with a system of law that does not provide for the immediate ouster of the live in home healthcare aid of a wheelchair bound 94 year old, upon the termination of the live in healthcare provider's employment, nor prohibits the terminated employee from commencing actions against the former employer relating to occupancy of the premises, which was incidental to his employment.

However, this court is without authority to create the requested exception, even where, as here, there are credible allegations of elder abuse.[FN49] Indeed, it would be an abuse of discretion for this court to sanction Mr. Ackerman, for acting within his lawful rights, as doing so, would be legislating from the bench[FN50] which the separation of powers doctrine[FN51] prohibits.

The separation of powers "doctrine... assumes that each branch of government will fulfill its duties"[FN52] and "[u]nder the New York Constitution, article VI, §30, the authority to regulate practice and procedure in the courts is delegated primarily to the Legislature."[FN53] Indeed, "[u]nder th[e] principle of separation of powers, it is fundamental that courts may not... restrict the scope of legislation... or engraft exceptions where none exist."[FN54]

As it is within the sole province of the legislature to enact legislation which would permit a wheelchair bound 94 year old to evict, without leave of court, a terminated abusive former live [*10]in home healthcare aid, immediately upon the termination of his employment, and prohibit the terminated employee from commencing actions against the former employer, this court is without authority to impose sanctions upon Mr. Ackerman for exercising his legal rights.

DECISION

Based upon the foregoing, the respondent's cross motions are granted to the extent that each proceeding is dismissed, and denied to the extent the cross motions seek sanctions and legal fees. The foregoing constitutes the decision and order of the court.

Dated: Brooklyn, NY

December 12, 2016

Hon. Susan F. Avery Footnotes

Footnote 1: Respondent DHPD appeared in this proceeding, however given the sensitive nature of the issues raised in this proceeding, coupled with the fact that it is the petitioner and the respondent Berkowitz that can provide personal knowledge of the facts relevant to the case at bar, when this court refers to respondent, it will be referring to the Berkowitz respondent and not DHPD.

Footnote 2: The Haberman Family 1120 Guaranty Irrevocable Trust is the owner of the premises and Ms. Sarah Berkowitz is the trustee of the trust (see respondent's opposition, exhibit D, at page 22 lines 15-20). The trust is the landlord of the premises (Sarah Berkowitz as trustee of the Haberman Family 1120 Guaranty Irrevocable Trust v Ackerman, Civil Court Kings County, Index # L & T 59913/15 at verified petition ¶2 and respondent's cross motion at exhibit C). Accordingly, when this decision/order refers to the landlord or owner, it refers to Ms. Berkowitz or someone acting on her behalf or as a representative of the property owner (the trust).

Footnote 3: See Town of Oyster Bay Housing Authority v Kohler, 34 Misc 3d 1243(A) (Dist Ct Nassau County [Fairgrieve, J.] 2012) "CPLR [§]409[b] which governs hearings in special proceedings, requires that the Court make a summary determination upon the pleadings, papers and admissions... [by applying] the standards governing motions for summary judgment... [which is] applicable to... summary proceeding[s] to recover possession of real property...."

Footnote 4: Pena v Penny Lane Realty Inc., 129 AD3d 441 (1st Dept [2015]).

Footnote 5: Respondent's opposition at exhibit D page 22 line 4, Sarah Berkowitz as trustee of the Haberman Family 1120 Guaranty Irrevocable Trust v Ackerman, Civil Court Kings County, Index # L & T 59913/15 November 5, 2015 trial transcript at page 12 lines 1 and 2.

Footnote 6: Petition at exhibit D.

Footnote 7: Respondent's opposition at exhibit B and exhibit D page 22 lines 4 through 7.

Footnote 8: Respondent's opposition at exhibit B and exhibit D page 22 lines 4 through 7.

Footnote 9: Respondent's opposition at exhibit D page 22 lines l, 6, 17, 25 and page 23 lines 4 and 9.

Footnote 10: Respondent's opposition at exhibit B, and Sarah Berkowitz as trustee of the Haberman Family 1120 Guaranty Irrevocable Trust v Ackerman, Civil Court Kings County, Index # L & T 59913/15 November 5, 2015 trial transcript at page 13 line 22.

Footnote 11: Following a review of the court files in the instant proceeding as well as other actions that have been litigated between the parties (which are discussed below), it appears that Mr. Ackerman resided on the first floor at the premises and was permitted to store some of his belongings in the basement. However, Mr. Ackerman did not separate the living quarters from the storage facilities and has asserted that he resides in both.

Footnote 12: Respondent's opposition at exhibit D page 23 line l and Sarah Berkowitz as trustee of the Haberman Family 1120 Guaranty Irrevocable Trust v Ackerman, Civil Court Kings County, Index # L & T 59913/15 trial transcript at page 13 lines 14 and 15.

Footnote 13: Respondent's opposition at exhibit D and Sarah Berkowitz as trustee of the Haberman Family 1120 Guaranty Irrevocable Trust v Ackerman, Civil Court Kings County, Index # L & T 59913/15 November 5, 2015 trial transcript.

Footnote 14: Affidavit of Ms. Sarah Berkowitz dated October 20, 2016 at ¶5.

Footnote 15: Respondent's opposition at exhibit D page 22 lines 15 and 16.

Footnote 16: Respondent's opposition at exhibit D page 22 lines 13 and 20.

Footnote 17: Respondent's opposition at exhibit B.

Footnote 18: Respondent's cross motion and opposition at exhibit A.

Footnote 19: Sarah Berkowitz as trustee of the Haberman Family 1120 Guaranty Irrevocable Trust v Ackerman, Civil Court Kings County, Index # L & T 59913/15 November 5, 2015 trial transcript at page 13 line 15.

Footnote 20: Sarah Berkowitz as trustee of the Haberman Family 1120 Guaranty Irrevocable Trust v Ackerman, Civil Court Kings County, Index # L & T 59913/15 November 5, 2015 trial transcript at page 13 lines 23 and 24.

Footnote 21: Sarah Berkowitz as trustee of the Haberman Family 1120 Guaranty Irrevocable Trust v Ackerman, Civil Court Kings County, Index # L & T 59913/15 November 5, 2015 trial transcript at page 13 line 24.

Footnote 22: Sarah Berkowitz as trustee of the Haberman Family 1120 Guaranty Irrevocable Trust v Ackerman, Civil Court Kings County, Index # L & T 59913/15 November 5, 2015 trial transcript at page 13 line 25 and page 14 line 11.

Footnote 23: Sarah Berkowitz as trustee of the Haberman Family 1120 Guaranty Irrevocable Trust v Ackerman, Civil Court Kings County, Index # L & T 59913/15 November 5, 2015 trial transcript at page 14 line 4.

Footnote 24:Sarah Berkowitz as trustee of the Haberman Family 1120 Guaranty Irrevocable Trust v Ackerman, Civil Court Kings County, Index # L & T 59913/15 November 5, 2015, at page 1 ¶2.

Footnote 25: Sarah Berkowitz as trustee of the Haberman Family 1120 Guaranty Irrevocable Trust v Ackerman, Civil Court Kings County, Index # L & T 59913/15 November 5, 2015 trial transcript at page 14 lines 12 and 13.

Footnote 26: Sarah Berkowitz as trustee of the Haberman Family 1120 Guaranty Irrevocable Trust v Ackerman, Civil Court Kings County, Index # L & T 59913/15 November 5, 2015 trial transcript at page 14 lines 13 through 16.

Footnote 27: Sarah Berkowitz as trustee of the Haberman Family 1120 Guaranty Irrevocable Trust v Ackerman, Civil Court Kings County, Index # L & T 59913/15 November 5, 2015 trial transcript at pages 2 through 9, 16 and 17.

Footnote 28: Reply Affirmation dated September 20, 2016 at paragraph 6.

Footnote 29: See Decision dated November 5, 2015, supra.

Footnote 30: Ackerman v Berkowitz, et al., Supreme Court of the State of New York, County of Kings, Index # 14997/2015.

Footnote 31: See respondent's opposition at exhibit D.

Footnote 32: See respondent's opposition at exhibit D and cross motion at exhibit D.

Footnote 33: Ackerman v Berkowitz, 2016 NY Slip Op 75766(U) ([2nd Dept]).

Footnote 34: Petitioner's opposition to cross motion at exhibit 2.

Footnote 35: Id., citing, Wagman v Smith, 161 AD2d 704 (2nd Dept [1990]).

Footnote 36: NYCRR §130-1.1 (a)(1).

Footnote 37: NYCRR §130-1.1 (a)(2).

Footnote 38: NYCRR §130-1.1 (a)(3).

Footnote 39: McCormick v Resurrection Homes, 38 Misc 3d 847 (Civ Ct Kings County [2012] Scheckowitz, J.].

Footnote 40: RPAPL §711 provides that an occupant "of one or more rooms... [at a premises] who has been in possession for thirty consecutive days or longer... shall not be removed from possession except in a special proceeding...."; and the NYC Administrative Code §26-521 (a) and "[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 [without legal process]..." additionally, harassment is defined as "[a]ny act or omission by or on behalf of an owner that (1) causes or is intended to cause any person lawfully entitled to occupancy of a dwelling unit to vacate such dwelling..."

Footnote 41: See, 75 Fort Wash., LLC v Polanco, 2016 NY Slip Op 51695(U) (App Term 1st Dept) "[t]he record simply does not support respondents' claim that petitioner's failure to appear was willful or part of a pattern of delay."

Footnote 42: See affidavit sworn to on March 17, 2015.

Footnote 43: "If the tenant is unable to obtain complete relief in Civil Court, then the jurisdiction of Supreme Court is still available" Roger Morris Apt. Corp. v Varela, 2016 NY Slip Op 51697(U) (App Term 1st Dept) citing to Post v 120 E End Ave. Corp., 62 NY2d 19 ([1984]); Kanter v East 62nd St. Assoc., 111 AD2d 26 (1st Dept [1985]); and Wilen v Harridge House Assoc., 94 AD2d 123 (1st Dept [1983]).

Footnote 44: See respondent's affirmation in opposition exhibit E page 13, lines 3 through 7, identified only as Kupferstein v Berkowitz.

Footnote 45: NYC Administrative Code §26-521 (a) "[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 [without legal process]..." additionally, harassment is defined as "[a]ny act or omission by or on behalf of an owner that (1) causes or is intended to cause any person lawfully entitled to occupancy of a dwelling unit to vacate such dwelling..." Administrative Code of the City of New York §27-27-2004 and "[t]he owner of a dwelling shall not harass any tenants or persons lawfully entitled to occupancy of such dwelling..." Administrative Code of the City of New York §27-27-2005(2)(d).

Footnote 46: NYCRR §130-1.1 (a)(1).

Footnote 47: NYCRR §130-1.1 (a)(2).

Footnote 48: NYCRR §130-1.1 (a)(3).

Footnote 49: Ms. Berkowitz's "credible" trial testimony (see decision dated November 5, 2015 supra., which included statements that Mr. Ackerman was abusive to Mr. Haberman (trial transcript at page 13 line 15), harassed and yelled at Mr. Haberman (trial transcript at page 13 lines 23 and 24), threatened to destroy Mr. Haberman and to put him "into the ground" (trial transcript at page 13 line 24), tormented replacement home care aids by entering the new aides' room at the premises and sat on their beds and criticized them (trial transcript at page 14 lines 13 through 16), and as a result of their fear of Mr. Ackerman, Ms. Berkowitz locked herself and her father in the bedroom until they felt they were safe (trial transcript at pages 13 line 25 and page 14 lines 4 though 13).

Footnote 50: Heimbach v State of New York, 59 NY2d 891, 893 [1983] appeal dismissed 464 US 956 ([1983]) "[t]he statute, therefore, precludes judicial review of [it's] propriety... In any event, based upon our respect for the basic polity of separation of powers and the proper exercise of judicial restraint, we will not intrude into the wholly internal affairs of the Legislature."

Footnote 51: "The concept of the separation of powers is the bedrock of the system of government adopted by this State in establishing three coordinate and coequal branches of government, each charged with performing particular functions" Maron v Silver, 14 NY3d 230 ([2010]).

Footnote 52: See generally, In re Richardson, 247 NY 401 ([1928]).

Footnote 53: Lang v Pataki, 271 AD2d 375 (1st Dept [2000]) appeal dismissed, 95 NY2d 886 ([2000]).

Footnote 54: Patrolmen's Benev. Ass'n of City of New York v City of New York, 41 NY2d 205([1976]).