Chow v 86 Bay LLC

[*1] Chow v 86 Bay LLC 2018 NY Slip Op 50793(U) Decided on May 18, 2018 Civil Court Of The City Of New York, Kings County Marton, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2018
Civil Court of the City of New York, Kings County

Walter Chow, Petitioner,

against

86 Bay LLC, Respondent.



13736/18



Petitioner's counsel

New York Legal Assistance Group

7 Hanover Square - 18th Floor

New York, NY 10004

(212) 613-5066

Respondent's counsel

Law Offices of Stuart I. Jacobs

1779 51st Street

Brooklyn, NY 11204

(718) 436-3396
Gary F. Marton, J.

After considering the testimony and the other evidence at the trial of this alleged illegal lockout proceeding, the court makes the following findings of fact, reaches the following conclusions of law, and grants respondent a judgment dismissing the proceeding.

Introduction

The premises at issue is a rent-stabilized, one-bedroom apartment. Leroy Chow, until his death on December 27, 2017, was the tenant of record. Petitioner Walter Chow and Leroy Chow were brothers. Respondent, the landlord of the premises, changed the locks to the premises in January, 2018 [FN1] .

Petitioner asserts that he was an occupant of the premises for at least 30 consecutive days before his brother's death and therefore that he is entitled to a judgment of possession here. He also argues that he need not attempt now to establish a claim to succeed to Leroy Chow's tenancy, and that, once restored to occupancy, he may wait until respondent-herein-as-a-future-petitioner initiates a licensee holdover proceeding in which petitioner-herein-as-a-future-respondent asserts an affirmative defense of succession.

Respondent denies the foregoing and asserts, among other things, that even if petitioner had been an occupant for the 30 consecutive days, that showing would be legally insufficient for the court to grant petitioner the relief sought here.

Discussion

Petitioner testified that his brother had been ill, that he was hospitalized in 2016 and then discharged to a nursing home, and that on August 18, 2016 he was discharged from the nursing home and returned to the premises. Petitioner testified that he moved into the premises at that time to care for his brother. He testified that Leroy Chow was virtually bedridden for the last six months of his life and that continuous care was essential during this period.

The court finds that this testimony was overstated with respect to petitioner's moving into and residing at the premises i.e., not fully credible. The court does not doubt that petitioner was at the premises frequently and that he rendered a great deal of care to his brother [FN2] ; petitioner very well may have been there every day for several hours, and he may have shopped for groceries and picked up prescriptions for his brother; petitioner very well may have kept some clothes and other personal effects at the premises.

Nonetheless, on cross-examination petitioner conceded that during this time he had a residence at 2045 Batchelder Street, Brooklyn, New York. He acknowledged that he suffers from a number of ailments and that during this time he received home healthcare at the Batchelder Street premises. He did not testify that on or after August 18, 2016 he stopped living [*2]at Batchelder Street and he did not testify that, for example, he terminated his utility services there. Petitioner owned a van; it was registered to and kept at the Batchelder Street address.

During cross-examination petitioner also testified that he was not registered to vote. However, later during the trial, respondent produced records from the Board of Elections of the City of New York that were at odds with the foregoing. These records show, among other things, that on October 5, 2011 petitioner changed his home address on his voter registration to 490 East 23rd Street, Brooklyn, New York, and that on June 7, 2016 he changed his home address from 490 East 23rd Street, Brooklyn, New York to 2045 Batchelder Street, Brooklyn, New York [FN3] . The voting records also show that he left this address unchanged until April 4, 2018 — the same date that he verified the pleadings herein — when he changed the home address on his voter registration from 2045 Batchelder Street, Brooklyn, NY to 86 Bay 26 Street, Brooklyn, New York, i.e., the premises.

Petitioner also offered in support three documents. One is a January, 2018 bulletin from the Brooklyn Aquarium Society addressed to him at the premises. The court finds that the bulletin has little probative value because it is from an irrelevant period of time.

The second document is a letter from AARP seeking a membership renewal. The letter is addressed to both Leroy Chow and Walter Chow at the premises. However, the proposed membership renewal card glued to the letter is made out in the name of Leroy Chow alone. The letter asks for a reply by December 15, 2017; it also provides for a "Free membership for a 2nd household member." Without knowing more about how AARP addresses and writes its missives, the court declines to give full probative weight to this document..

The third document is an empty envelope from the City of New York's Department of Housing Preservation and Development. It is addressed to petitioner at the premises and it is postmarked December 13, 2017. However, petitioner did not offer the contents of the envelope and petitioner did not offer an explanation for not offering the contents. This failure either to offer the contents or to explain the failure to offer the contents gives the court some pause.

Significant, the court finds, are two sets of documents that petitioner neither offered nor explained not offering. One set is his state and federal tax returns (or applications for extensions of time to file the returns) to the extent that he listed a home address on them. The second set [*3]concerns the payments that petitioner testified he received from the Social Security Administration ("SSA"). Presumably SSA sent these payments to petitioner at an address. If SSA deposited the payments directly into petitioner's bank account, the bank must have had an address to which to send to petitioner annual (and perhaps monthly) statements and annual tax forms. Yet petitioner did not offer evidence of this address or addresses. The court draws the negative inference, argued for by respondent, that these documents would have shown an address other than the premises.

Also in support petitioner offered the testimonies of Eidy Lorenzo, Keith Caputo, and John Beatty. Lorenzo was a social worker for SelfHelp Community Services and one of her assignments was to render assistance to Leroy Chow. However, her employment by SelfHelp ended in March, 2017, nine months before Leroy Chow's death. She testified that petitioner was always at the premises whenever she went there. However, she went there only once a month. The court finds that her testimony was credible but probative of little inasmuch as it was equally consistent, on the one hand, with petitioner being at the premises quite often, and on the other hand, with petitioner living at the premises.

Caputo and Beatty each testified to being longtime friends of petitioner, Caputo for 20 years and Beatty for 40 years. Each testified to visiting petitioner at the premises. Beatty, for example, testified that he visited petitioner at the premises six times in 2017, and that he (Beatty) often drove petitioner to the premises and dropped him off there after they had shopped for groceries. However, he also testified that he never picked up petitioner at the premises to take him shopping or otherwise. The court finds that these testimonies were consistent, on one hand, with petitioner being at the premises quite often, and on the other hand, with petitioner living at the premises. The court finds that these testimonies have modest probative value.

In support of its defense, respondent offered the testimonies of Samuel Lee, Tomas Palinkas, and Kaja Besnick. Samuel Lee was a social worker for SelfHelp Community Services and one of his assignments was to render assistance to Leroy Chow. He testified that he visited Leroy Chow once or twice a month from May, 2017 through November, 2017. He testified that his visits took place in the mid-afternoon or early evening and that he saw petitioner at the premises only once. He testified as well that Leroy Chow had a regular home attendant and that the home attendant was always there when he (Lee) visited Leroy Chow. The court finds that Samuel Lee's testimony was credible but of little probative value because it was consistent, on the one hand, with petitioner being at the premises often but not living there, and, on the other hand, with petitioner living at the premises but being absent when Samuel Lee made his visits to Leroy Chow.

Palinkas and Besnick testified that they lived in the same building and on the same floor as Leroy Chow. Besnick testified that he was the building's superintendent and had held that position for 10 or 11 years. Each testified to seeing petitioner only a couple of times in the hallway of the building, and each testified that petitioner did not live at the premises. The court finds that their testimonies were credible but had little probative value on the issue of whether [*4]petitioner lived at the premises or else spent a great deal of time there but lived elsewhere.

The court concludes that petitioner spent a great deal of time at the premises as a caretaker for his brother but that he did not live there. The court holds as well that even if he had shown that he lived at the premises for the last 30 days of Leroy Chow's life, that showing would be legally insufficient as a basis for granting the judgment of possession sought here.

Petitioner argues that the 30-day time frame is fixed by statute and in support he cites Administrative Code of the City of New York § 26-251 and RPAPL § 711. The court finds this argument unavailing. In pertinent part RPAPL 711 provides: "A tenant shall include an occupant . . . who has been in possession for thirty consecutive days or longer." Here petitioner claims only to have been an occupant but not an occupant in possession; at trial he explicitly declined to claim possession by way of succession to Leroy Chow's tenancy or otherwise. "Since petitioner, the sister of the deceased tenant of record, did not claim tenancy rights, her status was that of a mere licensee whose license expired upon the death of the tenant of record. In these circumstances restoration should not be granted [citations omitted]." Brown v 165 Conover Assoc., 2004 NY Slip Op 51244(U) (App Term, 2nd & 11th Jud Dists, 2004).

Administrative Code of the City of New York § 26-251 provides in pertinent part that "[i]t shall be unlawful for any person to evict or attempt to evict an occupant of a dwelling unit who has lawfully occupied the dwelling unit for thirty consecutive days or longer...." The foregoing seems to support petitioner's argument. However, "[c]ontrary to the Civil Court's determination, the unlawful eviction provisions of Administrative Code of the City of NY § 26-251 do not operate to change a license or other nonpossessory interest into a possessory interest. While these provisions may 'subject a violator to criminal liability and civil penalties, [they] do not provide an avenue through which [an occupant] can be restored to possession of an apartment [citations omitted].'" Andrews v Acacia Network, 59 Misc 3d 10, 11 (App Term, 2nd, 11th & 13th Jud Dists, 2018).

Petitioner also cites in support Dixon v Grunberg & Assoc., LLC, 2004 NY Slip Op 50943(U) (App Term, 1st Dep't, 2004), Banks v 508 Columbus Props., 2005 NY Slip Op 51189(U) (App Term, 1st Dep't, 2005), and Rostant v 790 RSD Acquisition LLC, 2008 NY Slip Op 52308(U) (App Term, 1st Dep't, 2008). These cases, however, are distinguishable on their facts [FN4] , and in any event do not bind this court as do the decisions in Acacia Network and 165 [*5]Conover Assoc.

Accordingly, the court grants the relief set out above. The court will notify the parties by telephone that copies of this decision may be picked up in the courtroom.

Dated: Brooklyn, NY

May 18, 2018

Gary F. Marton Footnotes

Footnote 1:Petitioner was in Houston, Texas from not later than January 3, 2018 to February 9, 2018. On February 14, 2018 he began a proceeding in this court (under index number 11840/18) seeking relief identical to that sought here. On March 9, 2018 the court granted his application to discontinue without prejudice. On March 16, 2018 he began another proceeding in this court (under index number 12883/18) seeking relief identical to that sought here. That proceeding was discontinued without prejudice on April 10, 2018, i.e., the same date that the instant proceeding was first returnable.

Footnote 2:Only six days after Leroy Chow's death, petitioner left for five weeks to serve as a caregiver to a cancer patient at a clinic in Texas. Petitioner wrote to respondent's managing agent in a letter dated February 3, 2018: "I have been at the Burzynki Cancer Clinic since January 3, 2018. I am required to be at this clinic as a caregiver for a stage IV Cancer medical emergency." Petitioner returned to New York City on February 9, 2018. Had Leroy Chow lived another week or another month after December 27, 2017, who would have taken care of him while petitioner was away in Texas? No one addressed this issue.

Footnote 3:In the letter dated February 3, 2018 to respondent's managing agent petitioner wrote: " I have been authorized to reside with Leroy Chow during a Guardianship hearing since October, 2015." If petitioner began residing with Leroy Chow in October, 2015, it would seem to have made little sense for him some eight months later to have registered the Batchelder Street premises as his voting address. The court notes that petitioner did not offer into evidence a copy of the alleged authorization granted in the guardianship hearing.

Footnote 4:In Dixon the death certificate showed that Dixon was the informant and that the premises at issue was Dixon's address; here petitioner did not offer the death certificate and did not offer an explanation for not offering the death certificate. In Banks the evidence showed that before the lockout the petitioner tendered and the respondent-landlord accepted two rent checks. In Rostant the court upheld the lower court's factual finding that the locked-out petitioner had met RPAPL 713(10)'s test of being in "constructive possession."