Atrius Castle, LLC v Fasce

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[*1] Atrius Castle, LLC v Fasce 2018 NY Slip Op 51998(U) Decided on December 3, 2018 Justice Court Of The Village Of Dobbs Ferry, Westchester County Koenigsberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 3, 2018
Justice Court of the Village of Dobbs Ferry, Westchester County

Atrius Castle, LLC, Petitioner-Landlord,


Joe Fasce and ANY/ALL OTHER OCCUPANTS (*), Respondents-Tenants.


Kunal Yadav, Esq., James G. Dibbini & Associates, P.C., Counsel for Petitioner

Robert G. Schneider, Esq., Counsel for Respondents
David A. Koenigsberg, J.

This action is entitled "Notice of Petition Hold Over Dwelling." Petitioner, Atrius Castle LLC, seeks a judgment awarding possession of the subject premises, 155 Beacon Hill Drive, Apartment 11, Dobbs Ferry, New York 10522 (the "Premises"); a warrant of eviction to remove Respondent, Joe Fasce, from possession of the premises; a judgment for rent in arrears against Respondent for the fair value of the use and occupancy of the premises, and a judgment of at least $500 for attorneys' fees, and costs and disbursements of $90.00 for this proceeding.

On August 30, 2018, Respondent in open court served and filed an Answer and Counterclaim, asserting that Petitioner failed to submit proper notice to terminate the tenancy of respondent, Respondent entered into a one year lease for the Premises, and a counterclaim. The counterclaim alleges that on June 18, 2018, Respondent rented the Premises with a signed lease for a one year period beginning July 1, 2018 terminating on June 30, 2019 for monthly rent of $2,550. The counterclaim further alleges that on or about July 13, 2018, Petitioner served Respondent with a "Notice of Termination of License" directing Respondent to vacate the premises by July 30, 2018. Respondent claims that Petitioner violated the laws of the State of New York and "in violation of the tenancy agreement between petitioner and respondent." Petitioner seeks damages in the amount of $9,000 and punitive damages of $20,000 plus counsel [*2]fees.

A non-jury trial was held in this matter on September 27, 2018, from 2:00 pm to 3:15 pm. The proceedings were recorded electronically.

Petitioner presented the testimony of Mariam Ugalde, the Property Manager for Petitioner's property located at 155 Beacon Hill Drive, Dobbs Ferry, NY. The following exhibits were admitted through this witness: Exhibit A: Certified copy of deed proving Petitioner's ownership of 155 Beacon Hill Drive (admission stipulated by parties); Exhibit B, original lease form signed by Respondent only (no objection to admission); and Exhibit C, two original unendorsed cashier's checks each in the amount of $2,550.00, each dated June 19, 2018 (no objection to admission) (the court retained photocopies of the checks; Petitioner maintains possession of the original checks).

Respondent Joe Fasce testified and placed into evidence four receipts dated June 18 showing payments by Respondent in the amounts of $5,100, via two bank checks for $2,550 each, cash for $750, cash for $600, and cash for $2,550. Mr. Fasce testified the receipts were signed by the broker's representative (Respondent maintains custody of the originals of the receipts; the court has photocopies of the receipts). Respondent also introduced into evidence a copy of the "Purchaser Copy" of a cashier's check (not a copy of the check itself) in the amount of $1,450 dated July 19, 2018. Photocopies of the receipts and check together were admitted into evidence over Petitioner's objection, and marked as Exhibit 1.

At the conclusion of the trial, the parties were invited to submit post-trial briefs. Petitioner submitted a Post-Trial Memorandum of Law, dated October 18, 2018, filed with the court on October 22, 2018. Respondent did not submit any post-trial briefs.

The following are the court's findings of fact and conclusions of law.

As the court stated on the record at the conclusion of the parties' presentation of testimony and evidence, no one-year lease was entered into between the parties, because the written lease document was not signed by both parties. Accordingly, the remaining question was whether Mr. Fasce is a tenant on a month to month basis or a licensee.

On or about June 14, 2018, Respondent responded to an on-line apartment listing for the subject premises that was posted by a real estate broker, Luxor Homes. The contact phone number had a 316 area code. Respondent met the broker at the premises. Respondent testified the broker was named Monique Mazie. Ms. Mazie showed the subject premises to Respondent who said he wanted to lease the apartment. Responsdent signed the form entitled "Lease Agreement" provided by Ms. Mazie. Respondent's signature is dated June 18, 2018. The lease date written on Exhibit B is stated to be June 14, 2018, for "Term 1 Year, . . . beginning July 1st 2018 ending June 30th 2019," with a yearly rent of $30,600, monthly rent of $2,550, and security of $2,550. Respondent has never received a refund of the cash payments.

The Lease Agreement states on page 4, under the heading "Signatures, effective date": that "[i]t is effective when Landlord delivers to Tenant a copy signed by all parties." Exhibit B is not signed by the Landlord. Accordingly, the Lease Agreement for a one year term never came into effect.

The receipts, Exhibit 1, show that on June 18, 2018, Respondent paid Mazie with two bank checks in the total amount of $5,100 to cover the first month's rent and the security deposit; $750.00 in cash to pay for garage rent for five months; $600.00 in cash for a security deposit for two dogs ($300 each); and $2,550.00 in cash for the "Real Estate Fee Broker." While Exhibit B, the Lease Agreement document, states the lease was to begin July 1, 2018 and end June 30, [*3]2019, those dates are written on what appears to be other dates that were overwritten after white out was applied. Respondent testified that when he signed the document, the lease dates were June 20, 2018 to June 20, 2019. The court is unable to discern what dates were written in below the white out, but the court notes that the handwriting used to enter the July 1, 2018 to June 30, 2019 dates appears to be written by the same person who entered the information above those entries to identify the landlord, tenant, and address information, as well as the entry for the lease date. In any event, because the Lease Agreement was never signed by the Landlord, the lease never became effective.

According to Respondent, Maize gave him the key to the apartment on the date he first saw it, before he signed the lease and paid her anything, which he did when he met her on June 18, 2018 at Pete's Saloon. Respondent moved in on June 20, 2018. Respondent testified that after he moved in he noted that the apartment did not have smoke alarms, the floors buckled, the washing machine backed up into the bathtub, the dryer vented into the bathroom. He complained about these items to the building superintendent. After he complained to the superintendent he was then contacted by the building manager Mariam Ugalde. Respondent testified that on July 19, 2018, he mailed Petitioner a check for $1,450 (see Exhibit 1, page 2), and the check has never been returned.

According to Ugalde, Respondent began his occupancy on or about June 18, 2018, but that Respondent has not paid any rent. She testified that she received the two bank checks (Exhibit C) from the broker, but that the Landlord did not accept or deposit the checks and she tried within a week of June 18 to return them to Respondent but he would not take them back and would not vacate the premises after she asked him to do so. Ugalde testified Petitioner decided not to sign the Lease Agreement and has not deposited the two checks.

Ugalde interacted with Respondent in person four times, the first within a week when he called and stated he was not happy with the superintendent, that he would get someone else to make repairs, and that he would not allow the superintendent to enter the apartment to make repairs. She testified that Respondent called and asked why nothing had been done with the apartment. When she received the call, Ugalde was surprised that Respondent was in the apartment. She testified that her office was not aware that there was a new tenant in the apartment as the owner had not had a chance to do anything to fix up the apartment. Ugalde also said Respondent left her harassing messages via telephone. She tried to return the two checks to Respondent, but he would not take them back and when she told him to vacate the apartment he refused to leave. Thereafter the Petitioner commenced the process to evict Respondent from the premises. Respondent has not surrendered the premises and has not paid rent. Petitioner seeks possession of the premises.

The Petition in this case includes a Notice to Licensee of Termination of License and Intention to Recover Possession, dated July 13, 2018 ("Notice"), and an Affidavit of Conspicuous Service, sworn to July 20, 2018, that the process server was unable to serve Respondent personally with the Notice, had attempted service of the Notice on Respondent on July 16, 2018 at 10:18 PM, then on July 17, 2018 he posted a copy of the Notice on the entrance door of the apartment and mailed a copies by First Class and Certified U.S. Mail to Respondent. Petitioner has not served Respondent with 30-day notice to vacate. The court holds that Respondent was served with the Notice.

Ugalde also testified that after Respondent was served with the Notice he tried to give her a check in the amount of $1,450 to pay for "July Rent", but she refused to accept the check. She [*4]did not recognize the signatures on the Exhibit 1 receipts and she never accepted any cash payments. She said the broker provided to Ugalde the two bank checks and the broker must have signed the receipts but she did not recognize the signature of the broker on the receipts.

In this case, it appears that the broker provided Respondent with a key to the premises, but the broker did not have authority to enter into a lease with Respondent and, as the court held previously, the lease was never signed by the Landlord and no landlord-tenant relationship was created.

While Respondent did not prove the existence of a lease agreement, neither did Respondent provide evidence that the broker had authority to lease the premises to him or intent by Petitioner that gave rise to a month to month tenancy. Petitioner never deposited the checks for the first month's rent and security deposit, and did not accept the July 19, 2018 check, for a partial month's rent, tendered just two days after Respondent received the Notice to terminate the license to occupy the Premises.

The evidence establishes that Respondent's occupancy does not rise to the level of a tenancy under NY Real Property Actions and Proceedings Law § 711, that defines a tenant as someone in possession for 30 consecutive days or longer, as Petitioner served the Notice to Licensee of Termination of License on July 17, 2018, before Respondent occupied the Premises for 30 days starting July 20, 2018. In addition, the two bank checks Respondent gave to the broker who gave them to the property manager, see Exhibit C, were dated June 19, 2018, whereas the broker receipts for the two bank checks are dated June 18. Clearly, those checks were intended to cover rent beginning on July 1, 2018, not to pay rent as of June 20, 2018, and those checks were not accepted by the Petitioner as demonstrated by the fact the Petitioner still had possession of the two actual checks not having deposited those checks to its bank account. Respondent's tender of a check dated July 19, 2018 to cover "July Rent" was an effort to create a landlord-tenant relationship where one did not exist before Petitioner terminated the license relationship. There is no evidence that the Respondent deposited the July 19 check.

Respondent was provided access to the premises on a conditional and limited basis by the broker, who had no authority to lease the apartment to Respondent. Petitioner did not intend to create a landlord-tenant relationship with Respondent. Petitioner's intent is demonstrated by the Petitioner's refusal to deposit the two bank checks, Ugalde's oral notice to Respondent to leave the Premises within a week after Respondent's occupancy on June 20, 2018, and the written Notice served on Respondent on July 17, 2018, terminating the license arrangement. Petitioner has not demanded a rent payment for the June 2018 period of occupancy. Accordingly, RPAPL § 711 does not apply in this case.

In such a case, RPAPL § 713(7) applies, under which a licensee is entitled to only a ten (10) day notice. Petitioner duly served Respondent with 10-day notice to quit by July 30, 2018, Respondent did not vacate the premises by July 30, 2018. Accordingly, Petitioner is hereby awarded judgment as follows:

1. A judgment awarding to Petitioner possession of the subject premises, 155 Beacon Hill Drive, Apartment 11, Dobbs Ferry, New York 10522;2. A warrant of eviction to remove Respondent, Joe Fasce, from possession of the Premises, with the warrant stayed until December 11, 2018;3. Rent in arrears against Respondent for the fair value of his use and occupancy from June 20, 2018 to December 11, 2018 in the amount of $14,594.00; and4. Reasonable attorneys' fees and costs. The court will enter judgment in the amounts of $500 for fees and $90 for costs, but Petitioner may submit a fee petition on notice to amend the judgment; and5. Respondent's counterclaim is dismissed.

A judgment accompanies this order.

Dated: December 3, 2018


David A. Koenigsberg

Village Justice