OLR LBCE LP v Trottman

[*1] OLR LBCE LP v Trottman 2014 NY Slip Op 50238(U) Decided on February 11, 2014 Civil Court Of The City Of Ny, Bronx County Lehrer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 11, 2014
Civil Court of the City of NY, Bronx County

OLR LBCE LP, Petitioner-Landlord,

against

James Trottman, Respondent, MAGGIE SANTIAGO and "JOHN DOE," Respondents-Undertenants.



50237/13

Andrew Lehrer, J.

Background

Petitioner OLR LBCE LP commenced this holdover proceeding against respondent James Trottman and respondents-undertenants "John Doe" and "Jane Doe" in September 2013. Subsequently, Maggie Santiago was substituted as a respondent, in place of "Jane Doe."

The petition alleges that Mr. Trottman occupies Apartment A in the subject building pursuant to an employment agreement with petitioner, whereby he was hired to perform superintendent duties; that under the employment agreement, he was permitted to occupy that apartment rent-free as an incident of his employment; that his employment was terminated on May 10, 2013; and that under the employment agreement, he was required to vacate Apartment A by June 9, 2013. The petition further alleges that although the apartment is subject to the Rent Stabilization Law, it is exempt during Mr. Trottman's occupancy.

Mr. Trottman, who is not represented by counsel, did not file an answer. However, at a pre-trial conference, he claimed that he moved into Apartment 4C in the building as a tenant in January 2008; that he became superintendent that same year; and that several years later, after petitioner bought the building, "management" moved him to Apartment A. Based on those allegations, the Court deems his answer to be that he has tenancy rights to Apartment A.

Maggie Santiago, who is not represented by counsel, did not file an answer. The Court deems her answer to be a general denial.

"John Doe" did not file an answer or appear in this case.

The Trial[*2]

The trial of this case took place on December 2 and 16, 2013.[FN1]

Petitioner's Evidence

Petitioner's regional property manager testified that petitioner owned the subject building; that Mr. Trottman was the superintendent for the building and three others; that he was Mr. Trottman's supervisor for a period of time; that Mr. Trottman's employment was terminated on May 10, 2013; and that while Mr. Trottman's employment agreement required him to vacate his apartment within 30 days, he failed to do so. He supported his testimony with, among other things, a copy of a deed, dated November 24, 2010, from Arnold Spiegel, Esq. as referee to OLR LBCE Housing Development Fund Company, Inc., as Nominee for OLR LBCE, L.P., and an employment termination letter, dated May 15, 2013 and addressed to Mr. Trottman at Apartment 4C of the building.

Respondents' Evidence

Anthony Maldonado testified that he has lived in the building for about nine years; that

Mr. Trottman initially moved into Apartment 4C; and that he (Mr. Trottman) became the superintendent one or two years later. On cross-examination, he stated that Mr. Trottman moved into the building six or seven years ago.

Mr. Trottman testified that he moved into Apartment 4C in January 2008; that Edwin Ramos was the managing agent at that time; that in late April or early May 2008, Mr. Ramos offered him a job as superintendent, and he accepted the offer; that at the time petitioner took title to the building in 2010, he was residing in Apartment 4C; that he moved to a hotel for three weeks in July 2011 so that his apartment could be renovated; that he moved back to Apartment 4C in August 2011; that in 2012, petitioner's managing agent told him to move to Apartment A; and that on May 10, 2013 his employment was terminated. He supported his testimony with, among other things, an employment termination package sent to him by petitioner and addressed to him at Apartment 4C. That package included a copy of the same employment termination letter that was offered in evidence by petitioner. Although Mr. Trottman also offered in evidence what he claimed to be his lease for Apartment 4C, it was not admitted during his testimony due to his failure to properly identify the purported lessor's signature.

On cross-examination, Mr. Trottman identified an employment agreement with petitioner, dated December 2, 2010, which was admitted in evidence. The agreement provides, among other things, that Mr. Trottman was permitted to occupy Apartment 4C without paying rent in order to perform his superintendent duties, and that in the event his employment was terminated, he would vacate that apartment within 30 days.

On cross-examination, Mr. Trottman further testified that he had no rent receipts for Apartment 4C; that he was moved to Apartment A as the superintendent; that he was not given a lease for Apartment A; and that he signed no agreements in addition to the one he had signed in 2010. During cross-examination, petitioner offered in evidence a certified copy of the Registration Apartment Information for Apartment 4C from the New York State Division of Housing and Community Renewal. Those records show that the apartment was not registered from 2008 through 2010, and was registered as exempt in 2011. [*3]

Edwin Ramos testified that he was the building's managing agent for several years, including 2008, when he rented an apartment there to Mr. Trottman. When shown the purported lease for Apartment 4C, he stated that he recognized it and that his secretary had signed his name to it. Mr. Ramos further testified that he previously collected rent from Mr. Trottman and that in 2008, when he had problems with the building's superintendent, he asked Mr. Trottman if he would like to become the superintendent.

On cross-examination, Mr. Ramos testified that in 2007, before Mr. Trottman moved into the building, there had been a fire in the "C" line; that after the fire, the former tenants in the "C" line did not return; and that Apartment 4C was renovated before Mr. Trottman moved in. He also testified that after petitioner bought the building, it hired him to supervise the superintendents and porters for 14 buildings, and that he eventually resigned. According to documents offered in evidence by petitioner, Mr. Ramos resigned in July 2013 after petitioner informed him that he was required by law to pass certain examinations, and he failed to do so.

Petitioner's Rebuttal Evidence

Petitioner's regional property manager testified that when he met Edwin Ramos in 2010, Mr. Ramos told him that he had been a superintendent for 17 years and never mentioned that he used to manage the building. He further testified that he was not aware that Mr. Trottman had a lease for Apartment 4C; that no such lease was in Mr. Trottman's file; that when he met Mr. Trottman in 2010, Mr. Trottman introduced himself as the superintendent; and that when he gave Mr. Trottman his termination notice, he (Mr. Trottman) never mentioned that he had a lease.

Discussion

Mr. Trottman credibly testified that he moved into Apartment 4C of the building as a tenant, testimony which was supported by the January 2008 lease for that apartment as well as the testimony of two other witnesses. Accordingly, the Court finds that he was a tenant for several months before becoming the superintendent in April or May 2008.

Had Mr. Trottman continued to reside in Apartment 4C at the time his employment as superintendent was terminated, he would have been entitled to remain there as a tenant. (See Clearview Apt. Assoc. LP v. Ocasio, 17 Misc 3d 23 [App Term, 2d and 11th Jud Dists]; Gottlieb v. Adames, NYLJ, Sept. 23, 1994, at 21, col 2 [App Term, 1st Dept]; Yui Woon Kwong v. Guido, 129 Misc 2d 211 [Civ Ct, New York County 1985]).[FN2] The question then becomes whether he sacrificed his tenancy rights when he moved to Apartment A.

In GENC Realty LLC v. Nezaj, 52 AD3d 415 [1st Dept 2008], the First Department held that [a]lthough respondent, as the husband of the tenant of record ofanother apartment in the building, was previously protected underthe Rent Stabilization Law . . . , when he accepted employment as[*4]the superintendent, and moved into the separate superintendent'sapartment, he "exchanged his status of tenant for that of employeeand the landlord-tenant relationship ceased to exist."

(Id., quoting Marsar Gardens v. Guevara, 108 Misc 2d 817, 819 [Civ Ct, Queens County 1981]). Assuming, without deciding, that GENC Realty stands for the proposition that a tenant who moves from one apartment to a "separate superintendent's apartment" after becoming a superintendent automatically sacrifices his tenancy rights, that does not compel a finding that Mr. Trottman gave up his tenancy rights when he moved to Apartment A, since petitioner offered no proof that Apartment A was a "superintendent's apartment." Indeed, petitioner offered no testimony regarding that apartment or why Mr. Trottman moved there from Apartment 4C. The only testimony regarding the move to Apartment A was that of Mr. Trottman, who simply stated that he moved there in 2012 when petitioner's managing agent told him to do so.

Although GENC Realty does not compel a finding in petitioner's favor, the Court still must determine whether Mr. Trottman sacrificed his tenancy rights by moving to Apartment A. A review of the pertinent case law suggests several factors to consider.

In Marsar Gardens v. Guevara, 108 Misc 2d 817, supra, a case cited in GENC Realty, the respondent had moved into an apartment pursuant to a one-year lease. Within a month after moving in, he was hired as the superintendent and, at his request, was moved to a larger apartment farther away from the boiler room. The court found that when the respondent vacated the first apartment and moved to the second one, "the parties mutually and effectively cancelled the lease pertaining to the tenant's former apartment" and that "in accepting [the new apartment] as part of his employment agreement and as part of his compensation thereunder, the respondent exchanged his status of tenant for that of employee and the landlord-tenant relationship ceased to exist." (Id. at 818 - 819).

In Mohr v. Gomez, 173 Misc 2d 553 (App Term, 1st Dept 1997), another case cited in GENC Realty, the respondent had been the tenant of an apartment for 18 months prior to being hired as superintendent, at which time he moved to the superintendent's apartment. The Appellate Term affirmed the Civil Court's judgment in favor of the petitioner, stating that "the record does not support a finding that respondent occupied [the superintendent's apartment] in the dual capacity of an employee as well as a tenant or that he should now be accorded stabilized status." (Id. at 554). It distinguished its decision in a similar case, Gottlieb v. Adames, supra, NYLJ, Sept. 23, 1994, at 21, col 2, noting that in Gottlieb, the tenant did not relocate to a superintendent's apartment when employed by the landlord and continued to pay rent for many years.

In Gottlieb, the respondent had been hired as the superintendent within a year after renting his apartment. He continued to pay rent for that apartment for about six years, at which time he moved to a larger apartment in the building. After moving to that apartment, he paid a higher rent for about nine years, at which time the building was sold to a new owner. He then lived rent-free as additional compensation for his work as a superintendent for seven years, until his employment was terminated. In reversing the Civil Court's judgment for the petitioner, the Appellate Term found that the respondent's tenancy was not interrupted by the change of apartments because, among other reasons, the move was not necessary for the performance of his [*5]superintendent duties and there was no credible evidence that he had exchanged his status as tenant for that of employee.

In York Sham Wong Yee v. Indelicato, 67 Misc 2d 634 [Civ Ct, New York County 1971], a case that was cited by the Appellate Term in Gottlieb, the respondent had been a tenant in one rent-regulated apartment for 10 years, at which time she was hired to perform janitorial services for three buildings, including the one in which she lived. As compensation, she was paid $116 per month and was given a rent-free apartment in another of the three buildings. Twenty-four years later, a new owner terminated her employment and sought possession of her apartment.

Finding that if the respondent had remained in her first apartment her tenancy would have continued, and that there was no proof that her move to the new apartment was required by her employer "for the necessary or better performance" of her duties (id. At 636), the court held that the respondent retained her tenancy rights to the second apartment.

The factors considered by the courts in the above-described cases to determine whether a tenant who becomes a superintendent loses his tenancy rights if he moves to a new apartment include (1) whether the new apartment was a "superintendent's apartment"; (2) whether the move to the new apartment was necessary for the performance of the superintendent's duties; (3) whether it was the respondent who requested the move;[FN3] (4) whether there is evidence that the respondent exchanged his status as tenant for that of employee; and (5) whether the respondent paid rent for the new apartment. Positive answers for factors 1, 2, 3, and 4, and a negative answer for factor 5 support a finding that any tenancy rights were sacrificed upon moving to the new apartment.

Here, petitioner failed to establish that Apartment A is a superintendent's apartment and that the move was necessary for Mr. Trottman to perform his duties. As noted above, petitioner offered no evidence of why Mr. Trottman changed apartments and, according to Mr. Trottman, it was petitioner, and not he, who requested the move. Further, there is no proof that Mr. Trottman exchanged his status as a tenant for that of an employee. Certainly, there is no evidence that Mr. Trottman agreed with petitioner or its predecessor to give up his tenancy rights in exchange for becoming the superintendent or for moving to Apartment A. With respect to factor 5, however, it is undisputed that Mr. Trottman paid no rent after moving to Apartment A.

Given that consideration of the above factors militates decidedly in favor of Mr. Trottman, the Court finds that he retained his tenancy rights when he moved to Apartment A. Accordingly, the petition is dismissed and the Clerk of the Court is directed to enter a judgment of possession in favor of Mr. Trottman and against petitioner.

This constitutes the decision and order of the Court.

The parties are requested to pick up their exhibits from Part T by March 11, 2014.

Dated:February 11, 2014

Bronx, New York

________________________________________

Hon. Andrew Lehrer

OCA e-submission: no Judge E-Mail Footnotes

Footnote 1:At the conclusion of the trial, the parties were given until December 30, 2013 to submit relevant case law to the Court.

Footnote 2:Mr. Trottman would have retained his Rent Stabilized tenancy of Apartment 4C despite the language in his employment agreement (which, the Court notes, was not signed by petitioner) requiring him to vacate that apartment within 30 days of the date that his employment was terminated, since that portion of the agreement constitutes an impermissible waiver of his rights under the Rent Stabilization Law. (See Rent Stabilization Code [9 NYCRR] § 2520.13).

Footnote 3:Who initiated the request to move is an important factor in a related context as well. Where a landlord asks a tenant to move from a regulated apartment to one that is not, and does so for its own convenience, the tenant's rent regulated status transfers to the new apartment. (See Matter of Capone v. Weaver, 6 NY2d 307 [1959]; Saad v. Elmuza, 12 Misc 3d 57 [App Term, 2d and 11th Jud Dists 2006]).