Ditmas Flats, LLC v Orlando Pantoja

[*1] Ditmas Flats, LLC v Orlando Pantoja 2015 NY Slip Op 51284(U) Decided on August 31, 2015 Civil Court Of The City Of New York, Kings County Montelione, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 2, 2015
Civil Court of the City of New York, Kings County

Ditmas Flats, LLC, Petitioner-Landlord,

against

Orlando Pantoja,Respondent-Licensee.



L & T071904/15



Appearances (also within Decision and Order): Sidrane & Schwartz-Sidrane, LLP, by Steven D. Sidrane, Esq., 119 N. Park Avenue-Suite 201, Rockville Centre, NY 11570, on behalf of Ditmas Flats, LLC, Petitioner-Landlord; Orlando, Pantoja, pro se, Respondent-Licensee..
Richard J. Montelione, J.

Appearances: Sidrane & Schwartz-Sidrane, LLP, by Steven D. Sidrane, Esq., 119 N. Park Avenue-Suite 201, Rockville Centre, NY 11570, on behalf of Ditmas Flats, LLC, Petitioner-Landlord (hereinafter, "Petitioner"); Orlando, Pantoja, pro se, Respondent-Licensee (hereinafter, "Respondent").

A bench trial commenced and concluded on August 10, 2015. The Court heard testimony from two witnesses: Simon Felsenburg, an individual employed by Ditmas Flats, LLC, Petitioner, who was involved with the management of the demised premises, and Orlando Pantoja, the Respondent. The Court allowed legal memorandums to be submitted post trial and the Court has considered such a memorandum from the Petitioner in the form of a letter dated August 10, 2015 which is designated as Court Exhibit "1."

There is no dispute that the premises for which recovery is sought by Petitioner includes two parking spaces, parking space nos. 29 and 30, which are located within a garage of a residential building. The Court granted Petitioner's motion to amend the petition to include additional space allegedly used within the parking lot by the Respondent.

Simon Felsenburg testified that the Respondent permanently parks his van in space number 30 of the garage and that he has kept a grill and propane tank for cooking in the parking garage. It is undisputed that at some point the Respondent used a propane grill in the garage and utilized one or two of the rooms located in the garage for personal use.

The parties agreed in a prior stipulation, inter alia, to the jurisdiction of the court and for the Respondent to remove the propane tank and grill from the parking garage. The witnesses testified that the propane tank and grill were moved to another part of the garage and there is no evidence that it was thereafter used, but it was not removed from the premises.

Mr. Felsenburg identified through photographs personal items of Respondent which were located within a room at the garage which includes a chair, flags and other miscellaneous items. Mr. Felsenburg testified that he suspects that the Respondent lives in his van.

Mr. Orlando Pantoja testified that he utilized the space for the last 20 years because he had an agreement with the prior owner that he would maintain the garage in return for use of the space.

There is no evidence that a commercial lease ever existed or that the space utilized by the Respondent was ever used as a commercial space or for a commercial purpose. In fact, within the petition itself is an allegation that "Respondent illegally occupies parking spaces with his van which he lives in and remains in occupancy without permission of the landlord" (emphasis added). Moreover, a bathroom is used by the Respondent near the opening to the garage. In essence, the Court credits the testimony of both witnesses and virtually all the evidence at trial points to Respondent using his van and the space for living purposes only.

DOES THE COURT HAVE JURISDICTION IN THE COMMERCIAL

PART OF THE CIVIL COURT TO PRESIDE OVER A MATTER INVOLVING A PARKED VAN IN A GARAGE USED AS LIVING SPACE WHERE THE PRIOR OWNER AND PETITIONER ACQUIECED TO SUCH USE?

The Respondent's testimony that he had an agreement with the prior landlord regarding the use of the space in exchange for maintaining the garage is not at [*2]variance with the Petitioner's allegation that the Respondent is a licensee because he had the permission to use the space (" a license connotes use or occupancy of the grantor's premises, a lease grants exclusive possession of designated space to a tenant, subject to rights specifically reserved by the lessor" [American Jewish Theatre v. Roundabout Theatre Co., 203 AD2d 155, 156, 610 N.Y.S.2d 256 [1994]).

See, also Garza v. 508 West 112th Street, Inc., 22 Misc 3d 920, 924-925, 869 N.Y.S.2d 756, 760 [Supt. Ct., NY County 2008], If an owner allows a tenant to use a portion of the owner's property that is not part of the demised premises, such use is recognized as a license which is cancelable at will and without cause. Acquiescence in use does not create a right, since the law does not penalize good nature, nor does indifference ripen into a right. Kohman v. Rochambeau Realty and Development Corp., 17 AD3d 151, 792 N.Y.S.2d 458 (1st dept.2005). The nature of the transfer of absolute control and possession is what differentiates a lease from a license. American Jewish Theatre, Inc. v. Roundabout Theatre Co., Inc, (citation omitted).

Under RPAPL § 713 (7), summary proceedings may be commenced where no landlord-tenant relationship exists such as when,

He is a licensee of the person entitled to possession of the property at the time of the license, and (a) his license has expired, or (b) his license has been revoked by the licensor, or (c) the licensor is no longer entitled to possession of the property; provided, however, that a mortgagee or vendee in possession shall not be deemed to be a licensee within the meaning of this subdivision.

The seminal case regarding the issue of whether or not the commercial part of the Civil Court has jurisdiction in this matter is found in U.B.O. Realty Corp. v. Santo Mollica, 257 AD2d 460; 683 N.Y.S.2d 532 (App. Div. 1st Dept. 1999). If there is sufficient evidence in the record, in the context of a commercial relationship, that the landlord knew the premises were used for living purposes, and acquiesced to such use, the petition in the commercial part of the Court should be dismissed (see, U.B.O. Realty Corp. v. Santo Mollica, supra.).

This Court finds there is no commercial use of the space whatsoever, and the prior owner, as well as the Petitioner, until service of the notice to quite, acquiesced to the residential use of the space by the Respondent.

The appellate court in Elena Artykova v. Marina Avramenko and Group Family Day Care, Yunga Day Care Center, et al., 37 Misc 3d 42; 953 N.Y.S.2d [*3]811 (App. Term. 2nd Dept. 2012) reversed the civil court's default final judgment in favor of the landlord because the non-payment proceeding was brought in the commercial part of the court when the landlord knew that the individual tenant was living on the premises. The space was used commercially as a day care center, but under state law the individual tenant was required to live on the premises of the day care center. The appellate court based its decision on the residential nature of the occupancy and the following is reflected in Artykova, supra. 37 Misc 3d 42, 44; 953 N.Y.S.2d 811, 812,

In light of the misrepresentation in the petition as to the nature of the occupancy (see CPLR 5015[a][3]) and the strong legislative policy that all summary proceedings to recover residential premises be commenced in the Housing Part (CCA 110[a][5]; see L. 1972, ch. 982, § 1, as amended by L. 1978, ch. 310, § 4; Uniform Rules for NY City Civ. Ct. [22 NYCRR] § 208.42[a] ), the default final judgment should have been vacated and the petition dismissed (see U.B.O. Realty Corp. v. Mollica, 257 AD2d 460, 683 N.Y.S.2d 532 [1999]; 379 E. 10th St., LLC v. Miller, 23 Misc 3d 137[A], 2009 WL 1233805 [App.Term, 1st Dept.2009]; Freeman St. Props., LLC v. Coirolo, 17 Misc 3d 137[A], 2007 WL 4244791 [App.Term, 2d & 11th Jud. Dists.2007] ).

Although the use of the premises in Artykova was ostensibly commercial in nature, the court held that its residential use took it out of the commercial part of the civil court.

The Court in Sasson v. Gissler, 11 Misc 3d 1063(A), 816 N.Y.S.2d 701 (Table) N.Y.City Civ.Ct.,2005, involved a motion for summary judgment in the context of the landlord's acquiescence to a tenant's residential use of commercial space and the court stated,

As petitioners have raised an issue of fact as to their awareness of and acquiescence in respondent's residential use of the premises, summary judgment on this ground is precluded. In U.B.O. Realty Corp. v. Mollica, 175 Misc 2d 897 (App Term, 1st Dept 1997), affd 257 AD2d 460 (1st Dept 1999), by contrast, there was a finding that the landlord knew of or acquiesced in the tenant's residential use of premises and therefore, the tenant was entitled to a dismissal. Similarly, in 7—9 East 32nd St. Assoc. v. Tighe, NYLJ, Feb. 6, 1996, at 25, col 2 (App Term, 1st Dept), as the petition alleged that the premises were commercial, whereas the evidence established that they were lived in, the dismissal of the commercial nonpayment proceeding was affirmed.

On the other hand, summary proceedings brought in the housing part of the [*4]civil court are governed by RPAPL §§711 and 713. Residential property is "real property located in this state improved by any building or structure that is or may be used, in whole or in part, as the home or residence of one or more persons, and shall include any building or structure used for both residential and commercial purposes" (emphasis added). See, RPAPL § 1305. The fact that Respondent is a licensee licensed to use two parking spaces does not appear to affect the jurisdiction of the housing part of the court when Respondent uses those spaces to park his van for living purposes. See, RPAPL § 713(7).

Here, the Court finds that the commercial part of the civil court lacks jurisdiction and is an inappropriate forum to determine the issues when there is a non-commercial use of the space as described.

The housing part of the civil court appears to have jurisdiction and is a more appropriate forum.[FN1] In those instances where summary proceedings are inadequate and "(w)hen an individual cannot be relieved through summary proceeding, he should seek relief through ejectment (citation omitted)." See, LCD Holding Corp. v. Velez, 40 Misc 3d 1242(A), 980 N.Y.S.2d 276, 2013 NY Slip Op. 51530 & U).[FN2]

Here, the Court finds that Respondent is in fact a licensee who used his space, composed of his van parked in the space of the Respondent's garage, as well as certain rooms and other facilities within the garage, located in a residential and commercial structure, as a home, with the acquiescence of the Petitioner who is the successor-in-interest of the prior owner.

[*5]Conclusion

Based on the foregoing, the allegations within the petition itself that the Respondent lived in his van, the testimony of both witnesses regarding the use the space, and the documentary evidence in the form of photographs showing the personal property of the Respondent in the utilized space, this Court finds that the Respondent's van was parked in a space used for living and not commercial purposes and therefore this Court dismisses the Petition.

The parties' respective exhibits may be picked up at the chambers of the judge which is located on the 7th floor of the court house where the trial took place or they will be discarded in 30 days unless the parties request otherwise.

This constitutes the Decision and Order of the Court. The clerk is directed to enter judgment in favor of the Respondent dismissing the Petition.

Dated: August 31, 2015______________________________

Richard J. Montelione, J.C.C.

Footnotes

Footnote 1:Parenthetically, a proceeding in the Housing Part of the Court may also be more appropriate for public policy reasons inasmuch as the Respondent appears to meet the guidelines for no cost legal assistance from the Legal Services Corp. or The Legal Aid Society with possible referrals to social workers and such eligibility and resources do not exist in the commercial landlord-tenant part of the Civil Court. Moreover, when appropriate, the housing part of the civil court may appoint a Guardian Ad Litem under CPLR 1202. See, also Kings 28 Associates v. Raff, 167 Misc 2d 351, 636 N.Y.S.2d 257 (Civil Ct., Kings Cty. 1995).

Footnote 2:NYCCA § 203 permits an ejectment action where the value of the real property is less than $25,000 at the time the action commences, and otherwise in Supreme Court. See, also David D. Siegel, NY Practice § 478 (5th Ed.), "(i)f the relationship between disputants does not fall within the reach of the summary proceeding, resort may still be had, of course, to the plenary ejectment or a like action. These may be used, for example, against squatters, interlopers, trespassers, encroachers, etc., and even against outright tenants if based on something besides non-payment of rent, holding over, or one of the other enumerated summary proceeding grounds. When it is used, ejectment still qualifies traditionally as a law action, which has two major consequences: it is constitutionally triable by jury, and the process of enforcement for a resulting judgment is still an execution." (Note: all footnotes have been omitted).