Rochester Hous. Auth. v Ivey

[*1] Rochester Hous. Auth. v Ivey 2013 NY Slip Op 50920(U) Decided on June 7, 2013 City Court, Monroe County Sciortino, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 7, 2013
City Court, Monroe County

Rochester Housing Authority, Petitioner,

against

Tony Ivey, Respondent.



LT000273-13



APPEARANCES:

FOR THE PETITIONER:

Ernest D. Santoro, Esq.

ERNEST D. SANTORO, ESQ., P.C.

290 Linden Oaks, First Floor

Rochester, New York 14625

FOR THE RESPONDENT:

Tony Ivey, pro se

625 University Avenue No.1205

Rochester, New York 14607

Michael A. Sciortino, J.

The petitioner, Rochester Housing Authority (hereinafter referred to as "Petitioner"), by its counsel, Ernest D. Santoro, Esq., P.C., filed a Petition to Recover Real Property in a Hold-Over proceeding against respondent, Tony Ivey (hereinafter referred to as "Respondent"). Following the Court's initial scheduled appearance date before the Hon. Michael A. Sciortino, Acting Judge of the Rochester City Court, a hearing was held on February 7, 2013 and thereafter continued on February 20, 2013. The hearing was to determine whether the Petitioner should be granted a Warrant of Eviction to evict the Respondent as an objectionable tenant from his residence located at 625 University Avenue, Apartment #1205, Rochester, New York 14607 (hereinafter referred to as the "leased premises"), which is part of the University Tower of the Rochester Housing Authority, located at 625 University Avenue in the City of Rochester (hereinafter referred to as "University Tower"). The Court received five (5) pieces of evidence including the Lease Agreement (Plaintiff's Exhibit "1"), Background Check (Plaintiff's Exhibit "2"), Terms and Conditions of the Lease (Plaintiff's Exhibit "3"), Notice to Vacate (Plaintiff's Exhibit "4"), and Pet Policy (Defendant's Exhibit "A"). In addition, the Court heard from seventeen (17) witnesses for the Petitioner including Sin Mei-Ko, Rochester Police Officer [*2]Garcia, Rochester Police Officer Morelli, Robert Perry, Angelo Picardo, Robert Wheeler, William Battaglia, R. Allen, Carol Schwartz, Susan Brumley, Sarah Usher, Wanda Curry, Melanie Brown, Anthony Morgan, David Owens, Richard Jamalkowski, and Linda Kellogg. The Court heard from four (4) witnesses for the Respondent including Sammy D. Scott, Arline Finch-Johnson, Evelyn Rouse, and Tony Ivey, the Respondent himself. As the Court noted following closing arguments, the Court would require a significant amount of time to review the lengthy testimony of the twenty-one (21) witnesses who appeared and testified during the multiple day hearing, and issue a written decision based upon the facts presented and substantive law.

II.STATEMENT OF FACTS

The Petitioner contends that the Respondent's alleged objectionable and illegal conduct while a tenant at University Tower constitutes a substantial and material violation of his lease agreement (Petitioner's Exhibit "1") as well as the rules and regulations of the Petitioner, including those additional Terms and Conditions of the Lease (Petitioner's Exhibit "3"). The Petitioner alleges that the criminal activity and endangering the health, safety and right to peaceful enjoyment of tenants and staff, constitutes objectionable conduct. If the Court does so conclude that the Respondent is an objectionable tenant, then the Petitioner is entitled to terminate the Respondent's tenancy and have the Respondent removed as a holdover tenant following this proceeding. The Respondent opposed the Petition in full and argued that he is not an objectionable tenant but rather a caring and compassionate tenant that consistently had the best interests of the other residents of University Tower in mind.

As indicated above, the Court heard from 17 witnesses for the Petitioner. Among the proof during the first hearing date was the testimony of Sin Mei-Ko who testified that she did not feel safe and was very uncomfortable around the Respondent who was "always very mean." Rochester Police Officer Garcia, a police officer of twenty years and part-time security employee of Petitioner, testified that while on patrol at University Tower, he started questioning Respondent and during that time Respondent kicked out the windows in the patrol vehicle and was extremely belligerent with the Officer and in view of other residents and tenants of University Tower. Rochester Police Officer Morelli testified that although he never personally had an issue with the Respondent, he saw the Respondent very irate and use offensive and obscene language in view of other residents and tenants of University Tower. Robert Perry, a security officer for Petitioner and retired police officer, testified that he witnessed the Respondent being irate, profane, and threatening and thought the Respondent was attempting to come across a counter to attack him. Angelo Picardo, a security officer for Petitioner and retired police officer, testified that Respondent went into a Board of Commissioner's meeting at University Tower on October 26, 2011 in a vulgar fashion yelling, screaming, being disrespectful and disorderly, and using obscene language with the Board members. Both Robert Wheeler, a resident, and William Battaglia, a visitor, testified that the Respondent became very irate, offensive, and threatening when he learned of Mr. Battaglia, a guest and non-resident, doing laundry at University Tower. R. Allen, President of the Tenants' Association, advised that the Respondent tried to patrol the University Tower and make up his own rules by closing the Computer Room earlier than as indicated by University Tower in an effort to avoid any destruction of property. Ms. Allen testified that she had no knowledge that Respondent was given permission to do so by University Tower.

Among the proof during the second hearing date was the testimony of Carol Schwartz [*3]who testified that the Respondent was consistently belligerent, profane in swearing constantly, increasingly aggressive towards residents and guests, and that she felt frightened when he kept moving towards her in a threatening manner. Susan Brumley testified that she heard the respondent using racially motivated curse words such as "fucking white bitch" in a very angry and hateful manner. She also stated she felt like she was being harassed on another occasion when Respondent said he would kick her so hard. Notably and to Respondent's credit, Ms. Brumley did attend a breakfast that Respondent would periodically host at University Tower and a Superbowl Party. However, she stated that the aggressive and controlling behavior of Respondent was unacceptable. Sarah Usher testified that the Respondent called her a "stupid mother fucker" and a "stupid bitch" and this behavior hurt her feelings. Ms. Usher testified that although she finds the Respondent to be a charitable person and has attended some of his hosted activities at University Tower, the Respondent tries to be the boss of the building and likes a lot of control. Wanda Curry testified that she had an incident with Respondent and although he didn't use profanity, he tried telling her what to do and tried to enforce the rules. She also testified that Respondent telephoned her in a suspicious manner because she never gave him her telephone number and left her with the conclusion that he had to search for it prior to calling her. Melanie Brown stated that University Tower is her election polling place and she resides in another location. She testified that the Respondent made hand signals toward her and was getting really agitated. She felt harassed by Respondent when he was questioning this voter about her Pomeranian named "Shamrock" that she had with her at the polling place on that election day.

Anthony Morgan, who was employed by Petitioner as a Security Guard, said that although "Mr. Ivey is a good person" he can get on one's nerves and has seen Respondent become confrontational with other people on the property, particularly guests of the residents. David Morgan, another security guard and employee of Petitioner, testified that he asked Respondent not to smoke inside the building when he had exhaled smoke inside the structure and threw the cigarette outside, and was told by Respondent not to "mother fucking tell me what to do." On another occasion he testified that the Respondent had become very menacing towards another resident and was screaming very loud at the resident and at one point was only inches away from the resident's face. Richard Jamalkowski, another security guard and employee of Petitioner, testified that he received notice that Linda Kellogg received a very disturbing telephone call from Respondent. As a result of the telephone call, Rochester Police Department Officers were contacted and Respondent was escorted outside. Mr. Jamalkowski testified that he had numerous contact with Respondent on several incidents all with problems. In addition, Mr. Jamalkowski confirmed through his testimony that at a Board of Commissioners meeting, the Respondent barged in and became extremely aggressive towards the members. Mr. Jamalkowski said that he tried to give the Respondent an opportunity to calm down and be able to stay at the meeting in a civilized manner but the aggressive behavior continued and he couldn't calm down. Linda Kellogg, the Property Manager for Petitioner, testified that she oversees 1,000 units for Rochester Housing Authority. She testified that she has had multiple contact with Respondent and most of the contact was for behavioral related issues a result of complaints from other tenants. She testified that his attempts at policing the building were not welcomed and had a very negative affect on the residents of the building. On January 30, 2013, Ms. Kellogg advised that Respondent had an issue with a maintenance contractor in University Tower and had stated to her that he was going to "stab the mother fucker" and "he was going to take a knife and stab it [*4]so far up his ass that he would never find it." As a result of the threats, 911 was immediately contacted for dispatch to University Tower.Ms. Kellogg stated that Respondent had repeated problems with harassing other tenants, harassing staff, speaking in a verbally abusive manner towards people, behaving in an aggressive manner and being very disruptive to the peaceful enjoyment of the premises to other residents. Ms. Kellogg concluded with they were hopeful he would turn his behavior around, but it has only escalated. Petitioner closed its proof.

In support of the Respondent's position that he is not an objectionable tenant but rather a caring and compassionate tenant that consistently had the best interests of the other residents of University Tower in mind, the Court heard from Sammy D. Scott, who testified that he is a resident of University Tower and lives on the 12th Floor in Apartment 1210, which is near the Respondent's residence located at Apartment 1205. Mr. Scott testified that he knows Respondent to be part of trying to help people and also trying to help enforce Rochester Housing's rules. Respondent's own witness however testified that "I've said to you more times than one that you are taking too much up on your own shoulders you can't do their job and be respected or even enforce it because if something goes wrong You're an island all by yourself." Respondent's witness further stated that "when you push to the angry spot, it's hard to get you to calm down." Respondent next called Arline Finch-Johnson, the University Tower resident counsel, to testify and she stated that she had lived at the University Tower for approximately 12 years and has no bad feelings toward the Respondent. "You are a very nice person. You always try to help someone. And do things, you know, around the building. Trying to keep it safe around there for us until the security man come." The Respondent also called Evelyn Rouse to testify who stated that she has not seen any physical altercations involving Respondent and that he offers help to the residents of University Tower. She stated that he lives on the sixth floor of University Tower and not on the same floor as Respondent. Lastly, the Respondent testified himself indicating that since he has been living there he has seen other tenants having a complete disregard for the elderly and he feels as though he has a duty to the other tenants because the Petitioner doesn't provide any care for the elderly nor enforce any of the policies for the elderly. Respondent also testified that he does have a disability and that is why he is eligible to live in University Tower. He cannot maintain a focus he stated and gets "irritated real quickly." Respondent also testified that he does not file any complaints to the management of University Tower because "they don't do nothing about it." Respondent testified that "I stand up to visitors, or whoever is in violation of anything that I perceive. . .I try and share the love. . . that management [is] negligent in their duties." During the cross examination of Respondent by Petitioner's counsel, Respondent stated "Like I said, I go to whatever extreme to get my point be heard." The Respondent also admitted to using profanity against other numerous tenants and guests as stated and detailed above in the examples Petitioner provided. With regard to one of Petitioner's allegations, Respondent testified that "She pissed me off to that point I'm going to call her whatever it takes to get it to sink in." Respondent also stated that "I don't make threats. I make promises." Respondent closed his proof.

III.ANALYSIS AND CONCLUSIONS OF LAW:

As stated above, the purpose of this summary proceeding is to determine whether Respondent's alleged objectionable conduct while a tenant at University Tower constitutes a violation of his lease agreement such that the Petitioner is entitled to terminate the Respondent's tenancy and have the Respondent removed as a holdover tenant. According to section 711(1) of the New York Real Property Actions and Proceedings Law, and case law interpreting that [*5]relevant section, the Petitioner has the burden of proof to establish by competent evidence that the Respondent is an objectionable tenant to the satisfaction of the Court. See, Elliman and Co., Inc. v. Karlsen, 59 Misc 2d 243 (Civ. Ct. New York County 1969). The courts have generally held that the objectionable conduct must be a recurring event and not merely an isolated incident. See, Kaufman v. Hammer, 49 Misc 2d 773 (Nassau Co. Dist. Ct. 1966). An exception to this general principle is where the Court finds that a one-time incident is of such a serious and egregious nature as to constitute objectionable conduct, such as, for example, where a tenant shot another person at an apartment complex. See, 160 W. 118th St. Corp. v. Gray, 7 Misc 3d 1016(A) (Civ. Ct. New York County 2004). Implicit in the commencement of a holdover proceeding under section 711(1) of the New York Real Property Actions and Proceedings Law, however, is the service of a notice setting forth the reasons for termination and a termination date, since one obviously cannot hold over without some notice terminating the tenancy. See, Elliman, supra; see also, Valley Courts v. Newton, 47 Misc 2d 1028 (Civ. Ct., New York 1965). It is initially noted that the Petitioner did in fact serve a Notice to Vacate and introduced said Notice to Vacate as Plaintiff's Exhibit "4". As this jurisdictional requirement was satisfied, the Court may now turn to whether the Petitioner was able to meet its burden of proof to submit competent evidence that Respondent is an objectionable tenant warranting removal after the hold over date in the Notice to Vacate.

As indicated above, in this summary proceeding, the parties participated in a fair and impartial hearing on multiple dates and submitted multiple evidence in their behalf and in support of their respective positions and allegations. The sworn and credible testimony of the witnesses all support the conclusion that Petitioner has met its burden of proof in demonstrating by competent evidence that the respondent is an objectionable tenant and that respondent's conduct is reoccurring conduct and not an isolated incident. The competent evidence and multiple examples of hostile, violent, aggressive, dangerous, threatening, unsafe, inappropriate, demeaning, and unprofessional conduct was introduced to the Court's satisfaction to conclude that Respondent is an objectionable tenant. Although Respondent may have felt he had good intentions to act on behalf of University Tower, the means by which he proceeded were objectionable and the tenants and visitors of University Tower should not be subjected to such conduct which disturbs their peaceful enjoyment. In addition, the Respondent has repeatedly attempted to enforce the Housing Authority Rules for which he cannot enforce as an agent on behalf of the Petitioner. This policing by Respondent has led and contributed to very dangerous and unsafe situations for residents and guests. Said reoccurring conduct is in violation of the lease agreement (Petitioner's Exhibit "1") as well as the rules and regulations of the Petitioner, including those additional Terms and Conditions of the Lease (Petitioner's Exhibit "3"). Accordingly, as the Petitioner properly noticed the Respondent to vacate the leased Premises (Petitioner's Exhibit "4"), and the Respondent has not vacated the leased Premises and is in holdover, the Petition is granted and the Petitioner is entitled to the relief requested including possession of the leased premises and a Warrant of Eviction shall issue effective immediately.

IT IS HEREBY ORDERED, DECREED, AND ADJUDGED THAT the Petition filed by Petitioner, Rochester Housing Authority is GRANTED and the Petitioner is entitled to possession of the leased Premises located at 625 University Avenue, Apartment #1205, Rochester, New York 14607; and,

IT IS HEREBY FURTHER ORDERED, DECREED, AND ADJUDGED THAT a Warrant of Eviction is also GRANTED and shall issue effective immediately; and

[*6]IT IS HEREBY FURTHER ORDERED, DECREED, AND ADJUDGED THAT the remaining request in the Petition for an award of prorated rent, to the extent that the request was not previously withdrawn by counsel for Petitioner when it withdrew its request for late fees and acknowledged no rent was being collected, is hereby DENIED.

This constitutes the Decision, Order, and Final Judgment of the City Court in the City of Rochester, County of Monroe, State of New York.

DATED: June 7, 2013Michael A. Sciortino

HON. MICHAEL A. SCIORTINO**

Acting City Court Judge

Rochester City Court

** Hon. Michael A. Sciortino, Town Justice in the Town of Parma, is serving as Acting City Court Judge in the City of Rochester pursuant to designation of the Hon. Craig J. Doran, Administrative Judge of the Seventh Judicial District.