Miller v Brown

[*1] Miller v Brown 2016 NY Slip Op 51755(U) Decided on December 9, 2016 District Court Of Nassau County, First District 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 9, 2016
District Court of Nassau County, First District

Debra Miller, Debra Miller DBA Psychic Readings by Armana, Petitioner(s)

against

Paul Brown, Sam Lee, Respondent(s)



LT-003416-16



David I. Witkon, Esq., attorney for Petitioner, 600 Old Country Road, Suite 300, Garden City, New York 11530, 516-699-8400

Martin Katzman, Esq., attorney for Respondent Sam Lee, 1103 Stewart Avenue, Suite 200, Garden City, New York 11530, 516-832-8070

Paul Brown, Respondent pro se, xxxxx, Glen Head, New York 11545
Scott Fairgrieve, J.

The following named papers numbered 1 to 4 submitted on this Motion on November 10, 2016

Papers Numbered

Order to Show Cause and Supporting Documents 1

Additional Affidavit in Support of Motion to Restore 2

Affirmation in Opposition 3

Affirmation in Reply 4

Petitioners Debra Miller and Debra Miller DBA Psychic Readings by Armana move, by order to show cause in lieu of notice of petition, to be restored to possession of the premises located at 55 Glen Cove Road, 2nd Floor, Greenvale, New York.

The verified petition in support, sworn to on July 7, 2016, contains the following allegations:

"1. The petitioners, Debra Miller, Debra Miller DBA Psychic Readings by Armana, are the lawful occupant and the tenant of the above indicated premises same being within the territorial jurisdiction of this Court and has resided there since prior to 2012;2. The respondents are Paul Brown, cotenant and Paul Brown, landlord of the subject premises and are currently in possession;3. Petitioner requests that an Order be entered placing the case on the calendar for trial on a day certain on the issues of whether or not a Judgment should be rendered awarding and restoring the petitioner to possession of the subject premises.4. The date of the alleged illegal lockout was June 10, 2016.5. No prior application has been made for the relief sought herein."

Debra Miller (hereinafter referred to as Miller) submits her affidavit, sworn to on July 7, 2016. Miller states that she is a battered woman resulting from her relationship with respondent Sam Lee (hereinafter referred to as Lee). Miller also states that on June 5, 2016, she and Lee [*2]were involved in an altercation, which led to Lee's arrest and an order of protection being issued to Miller against Lee. Miller alleges further that on June 9, 2016, she obtained a temporary order of protection against Lee from the Nassau County Family Court. On June 10, 2016, Miller obtained an order of protection from the Family Court against Lee. Miller also obtained an order of protection against Lee on June 10, 2016 from the Nassau County District Court.

Miller claims that on June 10, 2016, Lee went to 55 Glen Cove Road, 2nd Floor, Greenvale, New York, and changed the locks and took possession resulting in Miller being excluded. Lee claims to have obtained an order of protection against Miller from the Nassau County Family Court on June 14, 2016.

Miller alleges that she and Lee were equal partners at the subject premises for over 8 years doing Tarot card readings, palm readings, and spiritual readings. Miller also claims that she and Lee were co-tenants at said premises. Miller provides a number of rent checks payable to landlord Paul Brown from her account.

Miller maintains that in January 2016, Lee colluded with defendant/landlord Paul Brown "to make a 'lease' solely in Lee's name in order to deprive me of the premises." Lee supposedly told Miller that Brown would no longer accept her checks but only money orders or cash. Miller claims that she called Brown, who confirmed her tenancy.

Miller also submits bills from PSEG in the names of Debra Miller and Sam Lee, and from Optimum in the name of Debra Miller for said premises. The foregoing are submitted to prove her tenancy at the subject premises.

Miller indicates that she was locked out on June 10, 2016, when she couldn't enter the premises because the locks were changed. According to Miller, Dana Grossblatt, Lee's attorney, sent a letter dated June 10, 2016, warning that Miller should not enter the premises or she would be arrested.

David I. Witkon, Esq., submits his affirmation in support of Miller's application to be restored. He basically repeats the allegations in Miller's affidavit. Mr. Witkon reposits that Miller and Lee are members of the "Roma" community ("gypsy culture") and "have held themselves out to be married in their culture, however no marriage is alleged under New York State Law."

Martin Katzman submits his affirmation in opposition, dated October 27, 2016, to Miller's order to show cause. Mr. Katzman states that "this Court does not have jurisdiction" over this matter because:

"5. The jurisdiction of the Landlord/Tenant Court is limited to those proceedings set forth in Article 7 of the RPAPL. Therefore, this Court does not have jurisdiction to grant any relief pursuant to RPAPL Section 853."

Mr. Katzman further contends that the District Court cannot grant the equitable relief of restoring petitioner to possession.

In reply, David Witkon states that Miller and Lee file joint tax returns as spouses, own other property as "husband and wife," and own a partnership conducting psychic readings at the subject premises.

Mr. Witkon further posits that Lee violated the stay away order signed by Hon. Scott H. Siller, which ordered Lee to stay away from Miller's home and work, by locking her out and terminating her employment.

Mr. Witkon also provides that this proceeding is based upon RPAPL 721(4), to obtain the restoration of possession, and thus the District Court has subject matter jurisdiction.

Miller submits her additional affidavit, sworn to on July 13, 2016. Therein, she claims that co-defendants Lee and Brown (Landlord), acted in concert to remove her from the premises. Miller also states, that she and Lee operated "our Psychic business as an equal partnership at this location for over 8 years, and have been filing tax returns indicating same." Miller claims that she is unable to produce business records and leases supporting same because these documents are at the said premises, which she can't access.

Issues

Does this court have jurisdiction over proceedings brought pursuant to RPAPL 721(4)?

What effect, if any, do the orders of protection have on this court's authority to restore Miller to possession?

Decision

The Uniform District Court Act Section 204 grants subject matter jurisdiction to the District Court to adjudicate summary proceedings under RPAPL Article 7. RPAPL Section 721 specifically includes:

"4. The person forcibly put out or kept out."

In Knower v. Atkins, 273 AD 356, 77 NYS2d 559, (1st Dept 1948), the Court held that the plaintiff/dentist, wrongfully ousted from a dental office which he was entitled to share with defendant pursuant to agreement, would be entitled to remedy at law by making application via summary proceedings to recover possession as a person forcibly kept out or put out by defendant.

In Markun v. Weckstein, 100 Misc 668, 166 NYS 736 (App Term, 1st Dept 1917), the Court held that where premises were leased to petitioner and defendants jointly for joint use, petitioner was in actual possession, defendants illegally evicted petitioner and defendants continued to occupy the premises, petitioner was entitled to recover his joint possession through summary proceedings. See also, Landlord and Tenant Practice in New York, Finkelstein and Ferrara, Section 16:397; Western Estates, LLC v. Roberts, NYLJ 8/12/04, p 29, col 6 (App Term, 2 & 11 Jud Dists).

Respondent insists that the District Court does not have jurisdiction to restore possession to Miller pursuant to RPAPL Section 853. RPAPL Section 853 provides for damages for an illegal eviction; it does not provide a remedy for restoration to possession in the event of an illegal eviction. Clearly, this court (Landlord/Tenant Part) does not have jurisdiction to award damages for a violation of RPAPL Section 853 in a summary proceeding. See Rostant v. Swersky, 79 AD3d 456, 912 NYS2d 200 (1st Dept 2010). Regardless, the District Court does have jurisdiction to restore petitioner to possession under RPAPL Section 721(4).

Do the orders of protection prevent this court from restoring petitioner to possession?

The pertinent part, the order of protection dated June 10, 2016, and signed by Judge Siller, orders Lee to keep away from the business of Miller and her place of employment. Likewise, the Family Court orders of protection, dated June 9, 2016 and June 10, 2016, and signed by Hon. Edmund M. Dane and Hon. Felice J. Muraca, respectively, both direct Lee to stay away from Miller's place of employment. Finally, this court has not been provided with a copy of the order of protection that Lee allegedly obtained against Miller. As such, this court can't reconcile what effect, if any, the orders of protection may have on the instant application.

Based upon the above, this matter is set down for trial/hearing on December 28, 2016 at 9:30 a.m.

So Ordered:

Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:December 9, 2016