3212-16 Decatur Realty LLC v Hernandez

[*1] 3212-16 Decatur Realty LLC v Hernandez 2018 NY Slip Op 51367(U) Decided on September 25, 2018 Civil Court Of The City Of New York, Bronx County Lutwak, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 25, 2018
Civil Court of the City of New York, Bronx County

3212-16 Decatur Realty LLC, Petitioner-Landlord,

against

Diana Marte Hernandez & MICHAEL MARTE, Respondent(s)-Tenant(s), and "JOHN DOE" AND "JANE DOE", Respondent-Undertenants, and JACOB BOATENG, Third-Party Respondent-Tenant.



16682/2018



Attorney for Petitioner:

Jayson Blau, Esq.

625 Crescent Avenue

Bronx, New York 10458

(718) 676-1474

Attorney for Respondent Diana Marte Hernandez:

Kyla L. Ratliff, Esq.

The Legal Aid Society, Civil Practice

Bronx Neighborhood Office

260 East 161st Street, 8th floor

Bronx, New York 10451

(646) 340-1916

Third Party Respondent Pro Se:

Mr. Jacob Boateng

3216 Decatur Avenue, Apt. #2C

Bronx, New York 10467
Diane E. Lutwak, J.

Recitation, as required by CPLR 2219(A), of the papers considered in the review of the [*2]Respondent-Tenant's Order to Show Cause Returnable July 19, 2018 to Restore to Calendar and Order to Show Cause Returnable August 20, 2018 to Restore to Possession:

Papers Numbered

Order to Show Cause to Restore to Calendar With Supporting Affidavit 1

Order to Show Cause to Restore to Possession With Supporting Affidavit 2

Respondent's Memorandum of Law 3

Upon the foregoing papers, the court file, the testimony and documentary evidence presented at a hearing that took place on September 17, 2018 and for the reasons stated below, the Orders to Show Cause filed by Respondent-Tenant Diana [FN1] Marte Hernandez (hereinafter Respondent or Ms. Marte Hernandez) are granted. This proceeding is restored to the calendar, Respondent's tenancy is reinstated and she is entitled to a judgment of possession as against Third-Party Respondent Jacob Boateng, with issuance of the warrant of eviction forthwith, execution stayed through and including October 31, 2018 to provide Mr. Boateng and his family an opportunity to relocate.

PROCEDURAL HISTORY

This is a holdover proceeding based on the claim that the Respondent-Tenants Diana Marte Hernandez and Michael Marte sublet and/or assigned their Rent Stabilized apartment in violation of their lease. The Petition is dated March 14, 2018 and is predicated on a Notice of Termination dated February 14, 2018 advising that the tenancy was terminated effective February 28, 2018 for failure to cure an illegal sublet as required by a prior Notice to Cure dated January 22, 2018. The cure notice advised the tenants that they were in violation of a substantial obligation of their tenancy in that they had sublet and/or assigned their apartment to unknown occupants in violation of their lease. The cure notice included the following statements: "Upon information and belief, you have moved to Florida or another address unknown to the landlord and you have not been seen at the subject premises. Building management has seen unknown persons, named here as 'John Doe' and 'Jane Doe', coming and going from the apartment on a regular basis." The tenants were given until February 8, 2018 to "remove all occupants from the premises and move back into the subject premises."

The case initially appeared on the court's calendar on April 4, 2018. On that date, an attorney filed a Notice of Appearance for "Respondent Germania Hernandez" and a two-attorney, handwritten Stipulation adjourning the case to May 16, 2018 "for all purposes" was submitted to the Court. This Stipulation was signed by Petitioner's attorney and by the "Atty for Resp". The handwritten caption on the Stipulation reads, "3212-16 Decatur Realty LLC, Petitioner, against Germania Hernandez, Respondent" and the Stipulation appears to have been drafted by the attorney for "Respondent Germania Hernandez", as the handwriting is clearly not that of Petitioner's attorney. The names of the Respondent-Tenants appear nowhere on the Stipulation.

On the adjourned date, a handwritten, two-attorney Stipulation settling the case was filed with the Court, again signed by Petitioner's attorney and by the same "Atty for Resp" and again not mentioning the Respondent-Tenants. This time the Stipulation also included the signature of [*3]"Germania Hernandez", under which was written the word "Respondent". Again, the Stipulation's handwritten caption reads: "3212-16 Decatur Realty LLC, Petitioner, against Germania Hernandez, Respondent." The full text of the Stipulation is the following:

Case settled as follows:

(1) Without admitting to any of the allegations in the Petition and Notice of Termination, Respondent consents to a final judgment of possession. Issuance of the warrant is forthwith. Execution of the warrant is stayed through 7/31/18.(2) Respondent agrees to vacate the premises no later than July 31, 2018, and to leave premises in broom swept condition. Petitioner to issue receipt for returned keys.(3) Warrant may be served after 7-14-18. LL reserves claims for arrears + Respondent reserves defenses.

All of the handwriting on the Stipulation including the caption is that of the same attorney who prepared the prior Stipulation, except for item "(3)" which was written by Petitioner's attorney.

Because it was a "two-attorney Stipulation," the Court did not allocute it, nor was the case conferenced with the Court on either of the two dates it appeared on the calendar. Shortly thereafter, the Clerk of Part K and the Court reviewed the May 16 Stipulation prior to preparing a judgment and saw that it contained no explanation for why or how the caption had been changed to state the Respondent's name as "Germania Hernandez", as opposed to the name "Diania [FN2] Hernandez" which appears on all of the papers Petitioner filed with the court. It could not be ascertained from the Stipulation or from any other documents in the court file whether "Germania Hernandez" was a correction of the name "Diania Hernandez" or whether "Germania Hernandez" was someone else being substituted for "Jane Doe": the word "Respondent" appeared beneath the signature of "Germania Hernandez", the phrase "Atty for Resp" appeared beneath her attorney's signature, the Stipulation made no reference to any of the named Respondents and the Stipulation stated that Respondent consented to a final judgment of possession "[w]ithout admitting to any of the allegations in the Petition and Notice of Termination".

Although the Stipulation of Settlement permitted issuance of the warrant of eviction forthwith, no requisition was filed with the Court. Instead, on July 5, 2018, Ms. Marte Hernandez pro se submitted to the Court a form "Order to Show Cause to Restore to the Calendar" supported by her sworn affidavit which states, "I have a good defense/claim because: My brother passed away in Florida Dec. 21, 2017, I flew to Florida for a couple of months to help my family cope and to handle things with my mother. I never abandoned my apartment." The Court signed the Order to Show Cause, which includes the following language on its face: "Until the entry of a Court Order, all proceedings by Petitioner(s), his/her/their Attorney, and any City Marshal are STAYED." On the return date of July 19, 2018, by Stipulation handwritten by Petitioner's attorney, the case was adjourned to September 11, 2018 at 2 pm for "All purposes" and Petitioner acknowledged receipt from Respondent of $1500 "pd in ct w/out prej".

On August 9, 2018, Ms. Marte Hernandez pro se returned to the Bronx Housing Court and filed an "Order to Show Cause In Lieu of Notice of Petition to Restore to Possession [No Existing Proceeding]" using the Court's form # CIV-LT-75, to which the court assigned Index # 18B041531. In the attached Verified Petition Ms. Marte Hernandez explained that she had been [*4]the lawful occupant of Apartment 2C at 3216 Decatur Avenue in the Bronx since March 2011, and that the landlord, 3216-16 Decatur Realty LLC, had unlawfully kept her from possession of the premises on August 2, 2018 at 3:00 pm. That Order to Show Cause was signed by a Housing Court Judge and made returnable on August 16, 2018 at 9:30 am. The form Order to Show Cause includes the following language: "PENDING the hearing of this proceeding and the entry of a Judgment thereon, Respondent(s) and Respondents attorney(s) or agent(s) is/are: 1.[û] Stayed from re-letting the subject premises; 2.[û] Stayed from removing any of the contents of the premises." The Court directed that Petitioner be served by "1st class mail with Certificate of Mailing." On the August 16, 2018 return date, the Court dismissed the Illegal Lock-Out Petition due to defective service, and on that same day Ms. Marte Hernandez prepared and submitted an "Order to Show Cause to Restore to Possession (Existing Proceeding)" under the within index number, supported by her affidavit in which she stated, "I have been illegally locked out. I have a court date on September 11, 2018 .The case is adjourned to September 11, and I have been illegally locked out by the landlord. I did not surrender the apartment." That Order to Show Cause was made returnable on August 20, 2018 and then adjourned to August 23 for a hearing.

On August 23 Ms. Marte Hernandez appeared by counsel and, upon the representation of Petitioner's counsel that there was a new tenant living in the premises named Jacob Boateng, the Court issued an Order adding Mr. Boateng as a Third-Party Respondent, adjourning the hearing to September 11 and ordering Respondent's counsel to serve the Third-Party Respondent with a copy of the Order in the meantime. On September 11 neither the Third-Party Respondent nor Petitioner's counsel appeared due to a religious holiday and the hearing was adjourned one more time to September 17 at 9:30 am.

THE HEARING

Four people testified at the hearing on September 17: Respondent Diana Marte Hernandez testified first, called the Third-Party Respondent Jacob Boateng as her second witness and then rested, reserving the right to re-take the witness stand on rebuttal. Petitioner presented the testimony of Gjergji ("George") Ctaj and Lisa Bermudez and re-called Respondent as its own witness. Respondent then testified a third time as a rebuttal witness.

In her first appearance on the witness stand, Respondent testified that she and her husband moved into the subject premises on March 1, 2011 with one child, and then had a second child in December 2011. At some point in 2016 she went to Florida with her children but without her husband for a one-year nursing program. Her husband's aunt Germania Hernandez moved into the apartment in October 2016. At some point in 2017 Respondent returned to live in the apartment with her husband's aunt and her two children.

In December 2017, Respondent received a letter from her landlord dated December 5, 2017, admitted into evidence as Respondent's Exhibit A, advising her that her lease had been automatically renewed for one year. The letter contained a Rent Stabilized Renewal Lease running from October 1, 2017 through September 30, 2018 signed by her landlord's agent whom she knew as "George".

On December 22, 2017 Respondent had to return to Florida upon learning that her brother had been murdered there. She came back to the subject premises from Florida on February 1, 2018, but then returned to Florida again on February 18, 2018 because her mother attempted suicide.

Respondent returned to New York City on April 17, 2018 and found that the apartment [*5]was in a "horrible" state: her husband's aunt Germania had not been paying the rent even though Respondent had sent her money to do so, was renting out Respondent's room and was sleeping in the living room. Respondent had to stay in her children's room and, after a lot of arguing with Germania whom she accused of stealing her belongings, and because Germania locked her out by using one of the front door locks which she did not have a key to, Respondent went to stay at her sister's home, which is where their mother was also staying since Respondent brought her up from Florida. She left many of her belongings behind in the apartment including jewelry, paperwork and her children's clothing and toys. At the beginning of May 2018 Respondent prepared a Notice of Termination, admitted into evidence as Respondent's Exhibit B, and asked a friend to serve it on Germania.

Respondent knew about this proceeding as she had received what she described as a "letter from her landlord" under her door advising her that they believed that she was illegally renting out her apartment as they had not seen her. When she received the letter she sought advice from Lisa Bermudez, her best friend's aunt whom she had known for 20 years and trusted and who also happened to be someone she knew "worked with George" and whom she thought was "his paralegal."

Respondent learned about the May 16, 2018 court appearance from Lisa Bermudez and came to the Bronx Housing Court that day. However, based on advice she received from Lisa she stayed out in the hallway and did not check in with the Part Clerk or enter the courtroom. She testified that she did not know her rights and that Lisa told her that Germania Hernandez "won all rights" and that she herself had no rights to the apartment. In the hallway she saw and spoke with George about her kids, his kids and the nursing program, and George told her how sorry he was about her brother and everything going on with "this lady in the apartment".

Respondent thereafter sought advice from the Bronx Housing Court's HelpDesk and, on July 3, when she could not gain access to the apartment, called the police. With the police present she changed the lock and the police gave Germania a copy of the key. Respondent then took out an Order to Show Cause on July 5, came to court on the return date of July 19 and paid $1500 to Petitioner's attorney. The Order to Show Cause was adjourned to September 11. George called her that day, very upset with her for bringing the case back to court. He told her there was a large amount of back rent owed and he did not want her in the building anymore. She told him she would pay what was owed.

Respondent visited the apartment on July 31, as she had been doing every day since she had secured access, to make sure that Germania was moving out, which she did that day. Respondent returned the next day, August 1, and discovered that Germania had broken and stolen much of her furniture and other belongings and left the apartment a mess. Some of her things were still there €" her kitchen table, her bed, her children's beds, sofas and a TV stand. Photos Respondent took that day of her possessions in the apartment were admitted into evidence. When Respondent went back the next day, August 2, she discovered that the lock had been changed and she could not get in. Petitioner's super at the building told her that George had changed the locks. Respondent testified that she never told Germania or the landlord that she wanted to give up the apartment or that she would not return from any of her trips to Florida. She and her youngest child have been staying with her grandmother, her older child is staying with her aunt and she is now separated from her husband. Respondent has a new job working in the emergency room at St. Barnabus Hospital and testified that she can pay whatever rent is owed.

Respondent's second witness was the Third-Party Respondent Jacob Boateng. Mr. Boateng testified that he has lived in the subject building since 2008 in a one-bedroom apartment (1A), and he had been asking the landlord for years if he could move to a larger apartment when one became available. He learned about Apartment 2C from the landlord a few days before August 15. On August 15 he signed a lease, George gave him the keys and he, his wife, their three children (one of whom is a 6-week-old baby) and his mother-in-law moved in to 2C, which was empty and ready for move-in.

The last rent he paid for 1A was $1160, and the rent for 2C is $1300. He was in Apartment 1A at 6:38 am on August 24 waiting for a friend to come help him move out a heavy "chain hoist" when Respondent's process server came to the building and served him with this Court's Order adding him as a party. Mr. Boateng testified that he and his family have nowhere else to move to if evicted.

Petitioner called its managing agent and officer Gjergji ("George") Ctaj as its first witness. Mr. Ctaj testified that he brought this proceeding after seeing "different people coming in and out" of Apartment 2C and learning that "the aunt" was renting out rooms. The aunt was in court on May 16, 2018 with a lawyer. He also saw Diana Hernandez that day outside the courtroom, and she told him she was doing well in Florida where she had a great job, her husband had a great job, their kids were doing well and the schools were better; she told him she didn't want the rent balance to increase or for the landlord to start a collection case against her.

He was aware of the Order to Show Cause that Respondent took out on July 5, 2018, returnable July 19, and initially thought it had been brought by the aunt who had agreed to move out. He called Respondent to ask her what was going on and she told him that she wanted to get the apartment back. He was not aware that his attorney had collected rent from Respondent in court on July 19 nor that there was a stay against Petitioner as a part of this proceeding. He acknowledged that he was the one who changed the locks to Apartment 2C on August 1 after getting the keys from the aunt. He described the condition of the apartment on that day as very dirty, with bad odors from rotting food and mattresses in every room. On August 15 he signed a lease with Mr. Boateng for 2C, gave him the keys and let him move in, even though the effective date on the lease was September 1.

Next to testify for Petitioner was Lisa Bermudez, who testified that she has known Respondent for 20 years, and that Respondent is her niece's best friend. They have communicated over the years in person, by telephone and on social media including FaceBook and Instagram. Ms. Bermudez testified that she and her niece went out to eat with Respondent in 2016 and had a conversation in which Respondent told her she was moving to Florida where she had gotten a job in a hospital and that her children were going with her. After that meal, she saw a few posts from Respondent on FaceBook which also indicated that she was leaving and moving to Miami.

On May 16, 2018, Ms. Bermudez had a conversation with Respondent in the courthouse, outside the courtroom, in which Respondent told her that she had a good job in Florida and "didn't want the lady to be in the apartment because she owed rent." Ms. Bermudez testified that Respondent told her she did not want to be sued over her rent account but did not tell her she wanted the apartment back. Ms. Bermudez was in court that day on behalf of Petitioner's attorney, for whom she works as a paralegal and for whom she checked in. She did not check in for Respondent. Ms. Bermudez was aware of the Orders to Show Cause that Respondent filed in July and August because Respondent told her about them.

Petitioner then called Respondent as its third witness. Respondent acknowledged that she had communicated with Ms. Bermudez on FaceBook and Instagram but denied having ever posted any messages or told anyone that she was moving permanently to Miami. She testified that she and her husband separated in July 2017, and he now lives in Miami and works for UPS.

Respondent then testified one final time as a rebuttal witness. She denied that she had ever told George that she had moved to Florida permanently or that she wanted only to work out a deal regarding her rent account. As for her conversations in the courthouse hallway on May 16 she testified that she told George that she had hated living in Florida and that one of her sons has ADHD and had not been not treated well in school there. She told Lisa Bermudez that she wanted to make sure she could get back in the apartment and never said she didn't want the apartment. Her children were in school in Florida from 2016 through 2017 and have been back in school here since 2017.

DISCUSSION

The issue presented is whether there was any justification for Petitioner to ignore this Court's Order of July 5, 2018 by changing the locks to Respondent's apartment, removing her belongings and re-renting it to another one of its tenants living in another apartment in the same building while a stay of all proceedings was in effect. Based on the papers filed with this court, the history of this proceeding and the evidence presented at the hearing, there is no such justification for Petitioner's use of self-help. When Respondent's Order to Show Cause was adjourned to September 11 on the July 19 return date, after she gave $1500 to Petitioner's attorney in court, all stays remained in effect. When Petitioner's agent Gjergji Ctaj changed the locks on August 1 after Respondent's husband's aunt moved out under an agreement to which Respondent was not a party, Petitioner should have provided a key to Respondent as it had no judgment of possession against her, much less a warrant of eviction. Romanello v Hirschfeld (63 NY2d 613, 468 NE2d 701, 479 NYS2d 519 [1984]). What Germania's move out accomplished was a cure of the alleged illegal sublet which was the basis for this holdover proceeding. It did not give Petitioner the right to evict Respondent, and when Petitioner did so it was in willful and blatant disregard of this Court's Order.

Petitioner's argument that Respondent abandoned the apartment when she went to Florida in 2016 and only changed her mind after she and her husband separated lacks merit, is not borne out by the undisputed facts and appears to be a theory created by Petitioner after the fact. Respondent testified credibly that when she left for Florida in 2016 to attend a nursing program she went with her children, leaving her husband in the apartment which his aunt moved into in October 2016. Whether or not Respondent thought when she left for Florida that this was a permanent or temporary move, what messages she may have posted on FaceBook or Instagram at that time and whether that nursing program was a job or an externship, may be disputed facts but are not material. What is relevant and undisputed is that Respondent and her children returned to the subject premises from Florida in 2017, without Respondent's husband, who by this time was living and working in Miami, although his aunt was still living in the apartment.

Petitioner does not address the significant, undisputed fact that, in early December 2017, it sent Respondent a copy of a renewal lease which its agent had signed and explicitly deemed effective October 1, 2017. If Petitioner believed that Respondent had abandoned the apartment and moved to Florida permanently in 2016, as testified to by its attorney's paralegal Lisa Bermudez, it should not have automatically renewed her lease in the Fall of 2017 and should have instead sent her a Notice of Intent Not to Renew Lease and then commenced a holdover [*6]proceeding based upon nonprimary residence. See PLWJ Realty, Inc v Gonzalez (285 AD2d 370, 370-371, 726 NYS2d 858 [1st Dep't 2001]) (dismissing holdover proceeding landlord brought based on claim that tenant had illegally sublet the apartment where landlord's evidence instead supported its theory that the tenant no longer used the apartment as her primary residence). However, Petitioner did not do this. Instead, having renewed Respondent's lease, Petitioner brought this alleged illegal sublet proceeding based on a Notice to Cure dated January 22, 2018.

Nor was there any credible evidence that Respondent abandoned or surrendered the apartment after the commencement of this illegal sublet proceeding such that Petitioner was permitted to use self-help to change the locks after receiving the keys from the undertenant on or about August 1, 2018. See generally 170 West 85th Street Tenants Ass'n v Cruz (173 AD2d 338, 339, 569 NYS2d 705, 707 ([1st Dep't 1991]); Malik v Hillside Clearview Apts Realty, LLC (192 Misc 2d 181, 746 NYS2d 251 [Civ Ct Qns Co 2002]); and compare Witlow v Kip's Bay JV LLC (22 Misc 3d 136, 880 NYS2d 877 [App Term 1st Dep't 2009])(finding an abandonment of the apartment by the time of the alleged illegal lockout where the evidence established that the tenant delayed seven months before seeking restoration, removed her belongings from the premises, failed to pay rent for approximately one year and stopped paying for utility and cable service); Matter of Eight Cooper Equities v Abrams (143 Misc 2d 52, 54-55, 539 NYS2d 673, 675-76 [Sup Ct NY Co 1989])(surrender is accomplished by vacating the premises and returning the keys to the landlord).

Respondent's overt actions establish her clear intent to re-occupy the apartment as soon as she could after a falling out with her husband's aunt Germania who had rented out Respondent's room, stolen her property, not paid the rent as agreed and failed to properly maintain the apartment. First, Respondent prepared a Notice of Termination and gave it to a friend to serve on Germania in May 2018, prior to the May 16 court appearance. Then, unrepresented by counsel, Respondent came to the courthouse on May 16, and although she did not enter the courtroom where this proceeding was pending it was her credible testimony that this was because she did not know her rights and relied on the advice of Petitioner's attorney's paralegal. That Germania, represented by counsel, settled the case in an agreement in which the signing parties' attorneys sua sponte changed the caption, eliminated Respondent's name, granted a judgment of possession to Petitioner and agreed that Germania €" a mere occupant, not the tenant of record, of the premises - would move out of the apartment by July 31, has no bearing on Respondent's rights. In the absence of an explicit authorization, a subtenant has no right to surrender the rights of the over-tenant to the landlord, Delgado v 1038 S Blvd Realty Assoc (2008 NY Misc LEXIS 3310, 239 NYLJ 102 [Civ Ct Bx Co 2008]); Zaidman v Babbage (9 1111[A]), 808 NYS2d 921 [Civ Ct NY Co 2004]), and given the circumstances of this case, that the unrepresented Respondent was in the courthouse but did not enter the courtroom or sign the settlement agreement cannot be construed as an abandonment or surrender of her tenancy rights.

On July 3, when Respondent could not gain access to her apartment, she called the police who allowed her to change the locks so long as Germania was given a copy of the key, which she was. Respondent then came to court and took out an Order to Show Cause on July 5, obtained a stay of all proceedings and paid her landlord's lawyer $1500 towards her rent arrears on the return date of July 19. With that Order to Show Cause adjourned to September 11, Respondent took it upon herself to monitor Germania's actions by going to the apartment every day so that she was able to confirm that she did in fact move out on the July 31 deadline.

On August 1 Respondent took photographs of the condition of her apartment and of her possessions which were still there. When she returned the next day to start cleaning up she discovered that George (Gjergji Ctaj, Petitioner's managing agent and principal) had changed the locks, which he admits to having done. Unable to gain access to the apartment, she came to court on August 9 and filed a lock-out petition. Although it is not clear why she was permitted to so file - as if there were no proceeding already pending €" in any event, that petition was apparently not served properly on Petitioner and was dismissed on its August 16 return date. Respondent then immediately took out the post-eviction Order to Show Cause which is now before the Court for decision.

Respondent's statements that she never abandoned her apartment and never told either Germania Hernandez nor Gjergi Ctaj that she was not returning to the apartment are fully credited and are corroborated by her above-described actions from May through August 2018 which demonstrate her intention to resume occupancy as soon as her husband's aunt moved out. The testimony of Petitioner's agents that Respondent told them that she had moved to Florida permanently, was living there happily and was concerned only with limiting the amount of rent she owed for the apartment, on the other hand, is not credited and there is no other evidence to sustain a finding that Respondent abandoned the premises. In any event, what exactly Respondent said to her landlord's agent George/Gjergi and her landlord's attorney's paralegal Lisa in the courthouse hallways on May 16, 2018 is of no moment, although it is certainly troubling that the person Respondent trusted and relied on for advice had other, adverse allegiances and appears to have misguided Respondent such that even though she showed up at the courthouse for that critical appearance she remained outside the courtroom and did not check in with the Part Clerk.

With regard to the Third-Party Respondent Mr. Boateng, while his testimony was credible, and it may be a hardship for him and his family to have to relocate, he only just moved into the apartment from another apartment in the same building less than a month and a half ago, as opposed to Respondent's seven-year tenancy. To the extent Mr. Boateng and his family have suffered or will suffer any financial loss from having moved into this apartment and then having to move again, that is a claim he may have against Petitioner, but is not a reason not to restore Respondent to possession. The balance of the equities favors Respondent Marte Hernandez, Pomeroy Co v Thompson (5 Misc 3d 51, 784 NYS2d 278 [App Term 1st Dep't 2004]), and Third-Party Respondent Boateng and his family will need to vacate the premises within the limited period of time the Court grants him to relocate.

Petitioner proceeded at its own risk when its managing agent and principal Gjergji Ctaj changed the locks on August 1, when it removed Respondent's belongings and when it signed a lease with the Third-Party Respondent on August 15 as it knew or should have known that the tenant of record had cured the alleged illegal sublet that was the basis of this proceeding and not only had asserted ongoing rights to the premises but also had obtained a stay from this Court of "all proceedings by Petitioner(s), his/her/their Attorney, and any City Marshal" pursuant to an Order to Show Cause signed by the Court on July 5, 2018, supported by her affidavit stating that she "never abandoned my apartment".

CONCLUSION

Accordingly, the court finds that Petitioner carried out an illegal eviction of Respondent Diana Marte Hernandez and grants her Orders to Show Cause to restore this case to the calendar, to be restored to possession and for other relief. A judgment of possession in favor of [*7]Respondent Diana Marte Hernandez and against Third-Party Respondent Jacob Boateng is granted, with issuance of the warrant of eviction forthwith, execution stayed through and including October 31, 2018 to give Mr. Boateng and his family an opportunity to vacate with dignity. Petitioner shall reimburse Ms. Marte Hernandez for any expenses incurred to secure compliance with this Order. This decision is without prejudice to any remedy, other than specific performance, that Third-Party Respondent Mr. Boateng may have against Petitioner with respect to the lease he was given and monies he paid and that Respondent Diana Marte Hernandez may have against Petitioner including damages for unlawful entry and detainer pursuant to RPAPL § 853; harassment under Rent Stabilization Code §§ 2525.5 and 2526.2 and Local Law 7, NYC Administrative Code § 27-2004; penalties for illegal eviction under New York City Administrative Code § 26-523; contempt of court under Judiciary Law § 756; and/or sanctions for frivolous behavior under Part 130 of the Rules of the Chief Administrator of the Courts, 22 NYCRR § 130-1.1. See, e.g., Zaidman v Babbage (9 Misc 3d 1111[A], 808 NYS2d 921 [Civ Ct NY Co 2004]).

This constitutes the Decision and Order of this Court. Copies will be provided to the respective counsel for Petitioner, Respondent Diana Marte Hernandez and Respondent-Undertenant Germania Hernandez (sued as "Jane Doe") in hand at the courthouse and by first-class mail to Third-Party Respondent Jacob Boateng. Petitioner shall have one of its agents provide an additional copy of this Decision and Order to the Third-Party Respondent, either in hand or under the door to the premises.

Dated: September 25, 2018

Bronx, New York

_________________________

Diane E. Lutwak, HCJ Footnotes

Footnote 1:Respondent was sued incorrectly as "Diania Hernandez"; the Court has sua sponte corrected the caption to reflect the correct spelling of Respondent's first name and to include both of her last names.

Footnote 2:See fn 1, supra.