Coleman v Murray
Annotate this CaseDecided on May 18, 2011
District Court of Suffolk County, Sixth District
Marianne Coleman, Petitioner,
against
Marilyn Murray, Respondent.
BRLT 1371-11
Stephen L. Ukeiley, J.
Petitioner commenced this summary proceeding pursuant to RPAPL § 713(10) by means of Order to Show Cause seeking to be restored to possession into a room on the second floor at 79 Smith Lane, Medford, New York (hereinafter, the "Subject Premises"), plus damages. Petitioner claims she was unlawfully evicted from the Subject Premises. Respondent, who claims to operate a sober home at the Subject Premises for homeless women and victims of abuse, denied the substantive allegations claiming that she lawfully "transferred" Petitioner's possessions to another property located at 38 Rockledge Drive, Shirley, New York.
The Court conducted a non-jury hearing on the merits on May 4, 2011, after which decision was reserved. The parties appeared pro se at the hearing and were the only witnesses at trial.
Initially, the Court denies Petitioner's request for damages without prejudice to commencing a plenary action for same because this Court lacks jurisdiction to award damages, including damages pursuant to RPAPL § 853, in a summary proceeding to restore to possession (See Rostant v. Swerksy, 79 AD3d 456, 912 N.Y.S.2d 200 (App. Div., 1st Dep't 2010) (citations omitted)). With regard to the claim to be restored to possession, the Court makes the following findings of facts and conclusions of law.
Based upon the credible testimony and documentary evidence presented at the hearing, Petitioner demonstrated by a fair preponderance of the evidence that she was unlawfully evicted from her single room on the second floor of the Subject Premises. The credible testimony established that Respondent has an agreement with Suffolk County Department of Social Services ("DSS") in which DSS pays Respondent $309 per month for Petitioner to occupy a room at the Subject Premises. This was corroborated by the DSS Housing Verification Form, dated October 13, 2010, which was introduced into evidence at the hearing (Petitioner's Exhibit 1). The Court notes that the Housing Verification Form does not identify a specific room or floor, but the undisputed testimony was that Petitioner possessed a single room on the second floor. [*2]
Although Respondent credibly testified that Petitioner had acted in violation of the "sober home's rules", she acknowledged that she did not commence a summary proceeding seeking lawful possession and a warrant to evict Petitioner. Instead, after giving Petitioner an unspecified notice, Respondent and/or her agents removed Petitioner's possessions to an alternative property located in another hamlet, specifically 38 Rockledge Drive, Shirley, New York. Significantly, there was no credible documentation or testimony corroborating Respondent's claim that Petitioner consented to the re-location. Moreover, the monthly rent at the Shirley location was $475, or $166 higher than at the Subject Premises.[FN1]
The Court rejects Respondent's testimony that she was within her right to "transfer" Petitioner to another location. While the Court is cognizant of the important services and shelter Respondent provides, and further the importance of the occupants adhering to the institution's rules, the Respondent is not above the law.
The credible evidence demonstrated that the re-location of Petitioner here was anything but a mere transfer of room assignment within the same location. Indeed, Respondent resorted to self-help in evicting an individual with whom Respondent agreed with DSS could occupy a single room at the Subject Premises. There was no documentation indicating that Petitioner consented to the re-location or that Respondent could unilaterally terminate and remove Petitioner from the Subject Premises for a default or breach on her part. Moreover, there was no corroborating evidence to Respondent's claim following exhaustive questioning by the Court that Petitioner "agreed" to the re-location.
Instead, the Housing Verification Form specifically states that Respondent is "renting the premises at 79 Smith Lane, Medford, New York" to Petitioner, amongst others (Petitioner's Exhibit 1). The Court considered but found neither conclusive nor probative the supplemental Housing Verification Forms introduced into evidence.
Based on the foregoing, Respondent is entitled to be restored to possession of a single room at the Subject Premises. The undisputed fact that Petitioner "slept" in the Shirley location between two (2) and four (4) nights following the unauthorized re-location is of no moment since that was the location where Respondent moved her possessions.
While the Court is of the mind that this situation could have been amicably resolved by Petitioner visiting DSS and applying for the transfer approval, particularly since Respondent credibly testified that a room has been and remains available at the Shirley location, Petitioner is under no obligation to accept such a re-location and absent any credible proof that the parties agreed otherwise, Petitioner has the right to be restored to possession at the Subject Premises.
Complicating matters is Respondent's testimony that another occupant is in the room [*3]previously occupied by Petitioner. Regardless, the fact that another occupant has entered the Subject Premises does not in any way diminish Petitioner's rights. However, there is no indication in the record that Petitioner agreed to rent a particular room at the Subject Premises, and, as such, it would appear that Respondent is merely required to provide Petitioner a compatible room at $309 per month within the Subject Premises. Of course, there may be additional documentation that specify a particular room was agreed to that was not presented at the hearing, and, as such, the parties should be guided accordingly going forward.
Moreover, the Court's findings in no way prohibit or prevent Respondent from seeking the lawful eviction of Petitioner upon proper notice and the commencement of a summary proceeding under RPAPL article 7. However, that is not before the Court at this time.
Based on the foregoing, it is hereby
ORDERED, that unless proof is submitted to the Court within five (5) calendar days of the mailing of this Order that Respondent has restored Petitioner and her possessions to a single room located at the Subject Premises — 79 Smith Lane, Medford, New York — the Sheriff of Suffolk County, at Respondent's expense, shall immediately restore Petitioner to possession of a single room at the Subject Premises known as and located at 79 Smith Lane, Medford, New York, and, if necessary, to break and enter into the Subject Premises, and remove and change the locks, in order to restore Petitioner to possession of the Subject Premises; and it is hereby further
ORDERED, that Petitioner's application for damages due to the unlawful eviction is denied without prejudice to renew in a plenary action.
This constitutes the Decision and Order of the Court.
Dated: May 18, 2011
__________________________________
STEPHEN L. UKEILEY, J.D.C. Footnotes
Footnote 1: The difference in dollar amounts appears to be attributable to the undisputed fact that meals were not included at the Subject Premises but were included at the Shirley residence.
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