Zaidman v Babbage

[*1] Zaidman v Babbage 2004 NY Slip Op 51893(U) Decided on July 28, 2004 Civil Court Of The City Of New York, New York County Fiorella, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2004
Civil Court of the City of New York, New York County

Izak Zaidman, Petitioner,

against

Sadie Babbage, R, Respondent-Undertenant, 206-208 REALTY CORP., Respondent-Landlord.



L & T 15504/04

Anthony J. Fiorella, J.

In this alleged illegal lockout proceeding petitioner Zaidman seeks to be restored to the subject premises. The only issue before the court is whether petitioner was illegally locked out of his apartment. To this issue the court responds in the affirmative.

Salient Facts

Petitioner, the ousted tenant, has resided in apartment 1 located at 208 Avenue B, New York, as a rent stabilized tenant for more than ten (10) years. During these years it is undisputed that he periodically permitted others to occupy the apartment. It is not disputed that petitioner and undertenant, Sadie Babbage, were friends. Because petitioner is a professional musician who travels with different groups and participates in recording sessions at distant locations, he agreed to permit Ms. Babbage to occupy the premises for period of a few months.

Contrary to the opposing arguments set forth herein, there was no precise or definite arrangement between the parties as to their sharing of apartment expenses. There was no evidence of even an oral sublease agreement between the parties. Based on the testimony of Mr. Zaidman and Ms. Babbage the court concludes that express permission was given by Mr. Zaidman to allow Ms. Babbage to occupy the apartment for a limited period of time, with no specific sharing arrangement. Arguments relative to the amount of rent charged between the parties are irrelevant. As previously stated, the only issue is whether Mr. Zaidman was illegally locked out of his apartment.

Ms. Babbage, under examination by the Court, testified that she approached Mr. Joe Soudry the owner/agent, in December 2003 asking permission from him to occupy Zaidman's [*2]apartment. The landlord orally approved the idea. When queried by the Court as to whether she made any inquiry regarding Mr. Zaidman's status as a stabilized tenant, she responded in the negative. When further asked by the Court why such an inquiry was not made, she replied that she didn't think of it. Her testimony further revealed the characterization of her relationship with the owner/agent, Mr. Soudry: "I viewed him in a fatherly manner." Mr. Soudry told her that if she were to take over the apartment, he would charge her between $950 and $1,000 per month.

In January 2004, Mr. Zaidman, knowing that he would be absent from the apartment for thirty (30) days or more due to a musical commitment in different cities, advised Ms. Babbage that she could occupy the apartment for a few months. There was no testimony or indication that he waived or relinquished his rights in the apartment to Ms. Babbage, nor that he intended to do so. The parties agree that this was supposedly a friendly arrangement.

It is conceded that while he was away, on two (2) occasions Mr. Zaidman attempted to contact Ms. Babbage by written notes, since he had not heard from her. He was concerned about her, and about the rent payments for March and April 2004. Ms. Babbage never responded to his notes or telephone calls to the apartment. She had moved into apartment 1 on or about March 1, 2004.

According to Ms. Babbage's testimony she resided in apartment 5 in the same building for approximately five (5) years. Since she resided in a walk-up apartment with other roommates(s), she wanted to obtain an apartment for herself. She further testified that she was aware of the inimical relationship between Zaidman and the respondent-landlord.

On or about April 9, 2004, upon his return from his trip, Ms. Babbage refused to admit him. Mr. Zaidman called 911 to seek assistance in ascertaining what was transpiring in his apartment. Similarly, Ms. Babbage called 911. Two (2) police officers arrived and attempted to resolve the situation. Failing to reach a mutual accord, Mr. Zaidman left the apartment and was advised by the officers to bring the dispute to Housing Court.

On or about April 12, 2004, Ms. Babbage decided to invoke the protection of the landlord by asking him for assistance since she "viewed him as a father." Respondent-landlord responded by changing the locks to the apartment so as to illegally lock out and prevent petitioner from entering the apartment.

Petitioner testified that respondent-landlord had previously attempted to seek his eviction from the premises by commencing at least two (2) holdover proceedings. Under L/T Index No. 69555/01, after months of contentious litigation, the petitioner-landlord settled that holdover proceeding by providing Zaidman with a rent stabilized lease and agreed to pay $25,000 in attorneys fees. Under L/T Index No. 100723/02, a nonprimary residence holdover, the petitioner-landlord agreed to mark the case off calendar in February 2003 pending discovery. Respondent-landlord's prior attempts to evict Mr. Zaidman from the apartment proved unsuccessful. A review of the trial record demonstrates that the landlord's changing the locks was a deliberate act on his part to seize the opportunity to bar Mr. Zaidman from the apartment since he could not prevail at law, and thus resorted to self-help. This self-help initiative was in total disregard for Mr. Zaidman's rights as a stabilized tenant and Ms Babbage was a willing participant in a concerted effort to remove Zaidman from the subject premises. Conspicuously absent from respondent-landlord's brief, and the brief submitted on behalf of respondent-[*3]undertenant Babbage, was any reference to the illegal lockout. While advancing a variety of irrelevant theories by which the respondents attempt to justify removal of Mr. Zaidman from his apartment, there was no mention of the changing of his locks.

Applicable Law

Initially, the court notes that respondent-landlord failed to testify or call any witness who would shed any light as to its involvement in this proceeding. "When a party fails to appear as a witness in a proceeding, the court may draw the strongest inference against him that the opposing evidence and the record permit. (Commissioner of Social Services v. Philip D.G., 59 NY2d 137, (1983); Noce v. Kaufman, 2 NY2d 347, 161 NYS2d 1 (1957). The inference that must be drawn from the respondent-landlord's absence is that the testimony would be unfavorable. "This negative inference also arises when the party fails to call a witness within its control who could be expected to have knowledge about material in the case and provide noncumulative testimony." (9554 NY Apartment Associates v. Hennessey, 184 Misc 2d 527, 533, 707 NYS2d 794 (2000). In view of the fact that respondent-landlord failed to call any witnesses on its behalf with actual knowledge of the lockout, the court must draw the inference that respondent-landlord and Ms. Babbage had an understanding that if the situation arose such as the one described above, the landlord and respondent-undertenant would act in concert to deprive Mr. Zaidman of his lawful rights to the subject premises as a rent stabilized tenant. Whatever misunderstandings existed between Mr. Zaidman and Ms. Babbage, there was no legal basis for the landlord to intervene and change the apartment locks at Ms. Babbage's request.

Her failure to respond to Mr. Zaidman's telephone calls and her direct call to the landlord/agent only demonstrates that she sought the landlord's intercession to bolster her unjustified position to deprive Mr. Zaidman of a truthful explanation as to what was actually transpiring and a concealed attempt to remove Mr. Zaidman unlawfully from his apartment. It is evident that Ms. Babbage knew that she had no legal right to possession of the apartment other than by Mr. Zaidman's permission. Her posture and conduct throughout remain untenable except to satisfy her own need, i.e. to have an apartment of her own. Ms. Babbage undertook a calculated risk to usurp Mr. Zaidman's rights to this rent stabilized apartment. Having relied solely on the landlord's consent to occupy the apartment, Ms. Babbage must also bear the consequences.

A further review of the prior summary holdovers and a non payment proceeding in this court reveals the intensity and the lengths to which the respondent-landlord will go to evict Mr. Zaidman from his apartment. In each instance, Mr. Zaidman was the prevailing party.

In L/T Case No. 64181/02 a non payment proceeding commenced by the landlord, the matter was settled pursuant to a December 2002 stipulation whereby the respondent was granted a 50% abatement of rent.

Arguments advanced by respondent under-tenant Babbage, and respondent-landlord that a sublease existed between petitioner and respondent-undertenant are unfounded in fact and law. There is no documentary evidence supporting this theory. The only theory which has merit is that the parties had a "roommate" or temporary apartment sharing arrangement. There was no more specific agreement between the parties.

Contrary to the arguments raised at the hearing, petitioner was the lawful tenant of the premises and prior to Ms. Babbage's occupancy, some items of personal property remained [*4]during his absence. Notwithstanding her occupancy, petitioner never surrendered or abandoned the premises. Even if there was a sublease agreement in effect, clearly petitioner's intent was to return to the premises at its conclusion. It is clear from the testimony at the hearing that it was never petitioner's intent to assign or relinquish his legal rights to the premises. (See Lyke v. Anderson, 147 AD2d 18; Rocke v. 1041 Bushwick Ave. Assocs., Inc., 169 AD2d 525).

It is also clear that Sadie Babbage acted without legal authority to request or direct Joseph Soudry, respondent-landlord's agent to change the locks. Her defense that she was fearful of petitioner Zaidman is severely lacking in merit. Respondent-landlord acted without due process of law by changing the locks. (Zappa v. Polisinor, NYLJ 5/15/02, p 22. col. 5; First v. Cooper Square Realty, NYLJ, 9/18/91 p 23 col 1; Romanello v. Hirschfield, 98 AD2d 657 (1st Dept 1983) rev'd on dissent below, 63 NY2d 613; Shaikh v. B-U Realty Corp, NYLJ, 7/14/99 P. 27 col. 6). It is apparent that the owner and Ms. Babbage acted jointly in locking out the petitioner, Mr. Zaidman. A roommate is a co-occupant of the apartment with the leaseholder who shares the living area. (Peck v. Lily Lodge, NYLJ, November 12, 2003 P. 18 col. 1).

Even assuming that petitioner had breached a substantial obligation of his tenancy by illegally subletting and/or profiteering, a landlord is obligated under law to properly commence a summary holdover proceeding rather than resort to self-help by changing the locks to the demised premises. (Kienan v. Perrault, NYLJ, 10/22/98 P. 28 col. 5).

Witnesses produced by respondent-landlord failed to address the paramount issue in this proceeding: whether they possessed any personal knowledge of the events surrounding this wrongful eviction. Their cumulative testimony lacked merit and/or was irrelevant.

Pursuant to RPAPL § 853, a wrongful eviction permits petitioner to seek an award of attorneys fees, costs and damages (See Rocke v. 1041 Bushwick Ave. Assoc. supra; Lemish v. East-West Renovating Company, 156 AD2d 313, 314; Marciana v. Shirrmeister, 105 AD2d 672, 673). "The courts of this state will not condone litigants who take the law into their own hands and act without due process of law." First v. Cooper Square Realty, NYLJ, 9/18/91, p.23 col.1 (Civ NY). The law is clear and well established that a landlord cannot simply change the locks on a tenant's premises, and deprive the tenant of access to the tenant's property, no matter how justified the landlord believes his actions to be. (Romanello v. Hirschfield, supra; Shaikh v. B-U Realty Corp., supra). The instant landlord having done just that, he comes away from these proceedings knowing the consequences of the illegal act and shares joint liability with the respondent-undertenant, Sadie Babbage.

On balance (Fusco v. Kraumlap Realty Corp., 1 AD3d 189; Chester Mamaroneck Gardens v. Riggsbee, 189 Misc 2d 439, 441), it is clear that the equities weigh heavily in favor of the petitioner who has resided in this rent stabilized unit in excess of 10 years. In the absence of a credible explanation and/or defense the court concludes that the actions of the undertenant-respondent and respondent-landlord involve conduct that was completely without merit in fact and law. Petitioner may seek sanctions of up to $10,000 against the landlord and its agent Joseph Soudry pursuant to New York City Local Laws § 26-523(a) and 26-523(b). In addition, petitioner may pursue whatever other remedy(ies) he deems appropriate (e.g. RPAPL § 853; Rent Stabilization Code [9 NYCRR] § 2525.5, 2526.2(c)2. (See Hegeman Asset LLC v. Smith, NYLJ 7/6/04 P. 28 col. 4-6, AT2nd).

Conclusion[*5]

Based upon the foregoing discussion and analysis, the court directs that petitioner be restored to the premises forthwith; that petitioner may pursue any civil remedies as set forth above against respondent-landlord and respondent-undertenant. As prevailing party in this proceeding, petitioner may make application before the court for a hearing on attorneys fees.

This constitutes the decision and order of the court.

DATED:New York, New York______________________________

July 28, 2004 Anthony J. Fiorella, Jr., J.H.C.