Gonzalez v NYCHA - Borinquen Plaza Houses
Annotate this CaseDecided on December 9, 2020
Civil Court of the City of New York, Kings County
Esperanza Gonzalez, Petitioner,
against
NYCHA - Borinquen Plaza Houses, Respondent.
L & T 11654/20
Attorney for Petitioner:
Mohammed Abdul, Esq.
District Council 37 Municipal Employees Legal Services
55 Water Street, 23rd Floor
New York, NY 10041
Attorney for Respondent:
Marisa Shemi, Esq.
NYCHA Law Department, Housing Litigation
90 Church Street
New York, NY 10007
Heela D. Capell, J.
Esperanza Gonzalez, ("Petitioner") commenced this illegal lockout proceeding under RPAPL Section 713(10) alleging that she was in peaceable, actual possession of 111 Humboldt Street, Apartment No.5A Brooklyn, NY 11206 ("Premises") before she was removed by force or [*2]unlawful means by NYCHA - Borinquen Plaza Houses ("Respondent" or "NYCHA"). Petitioner subsequently retained counsel, DC 37 MELS, who represented her at trial. The trial concluded on December 1, 2020.
Petitioner testified on her own behalf. She testified that she has worked at Woodhull Hospital in Queens, New York, as a medical assistant for ten years and has been living at the Premises since June of 2017. Petitioner explained that she arrived at the Premises on November 5, 2020 during a lunch break and observed someone from Respondent's staff changing the locks to the Premises. Petitioner maintained that the individual told her that she could no longer live at the Premises and that she had to remove her belongings in three days.
Petitioner elaborated that she has not lived anywhere other than the Premises since June, 2017. She explained that Angel Gonzalez Sr. was the former tenant of record, and that she lived with him and her ex-husband, Angel Gonzalez Jr., his son, at the Premises. She recalled that at some point Angel Gonzalez Sr. passed away and that Angel Gonzalez Jr. moved out of the Premises on September 28, 2020.
Petitioner introduced the following relevant documents into evidence:
Two letters from the same medical provider dated March 2019 stating that she had visited the medical practice. The letters list the address of the Premises as Petitioner's address (Pet Exs. B & C);
Bank of America bank statements from January 2020 through March 2020 listing the Premises as her address (Pet Exs. D & E);
Notice of denial of claim coverage from her employer dated September 2, 2020 addressed to the Premises (Pet Ex. F);
A Spectrum bill in her name for the Premises dated October 28, 2020 (Pet Ex. G);
A paystub from Woodhull Hospital dated September 18, 2020 paid to Petitioner listing her address as "142-02 84th Drive, 5G, Queens, NY 11435" (Pet Ex. H);
Four pay stubs from Woodhull Hospital dated October 16, 2020, October 30, 2020, November 13, 2020 and November 27, 2020 paid to Petitioner listing her address as the Premises (Pet Exs I - L);
A letter from "Katz Drugs" Pharmacy dated November 9, 2020 listing the Premises as Petitioner's address (Pet Ex. N);
A letter from the New York City Employee Retirement System ("NYCERS") to Petitioner dated November 1, 2020 listing Petitioner's address as the Premises (Pet Ex. O);
Petitioner testified that she did not identify herself to NYCHA staff when the locks were being changed on November 5, 2020 but that they recognized her from photos they observed at the Premises. She alleged that Angel Gonzalez, Jr. spoke to a "Mr. Gray" from NYCHA and requested that NYCHA place Petitioner on the lease. "Mr. Gray" allegedly replied that Petitioner could not be placed on the lease because Angel Gonzalez, Jr. had already surrendered the Premises and mailed back the keys to NYCHA. Eventually, Petitioner was given five days to remove her belongings. Petitioner explained that she contacted the superintendent at the subject building to open the door to the Premises, gathered her belongings and took them to storage.
On cross-examination Petitioner conceded that she supplied her address to the institutions and medical providers listed on her trial exhibits, and that the institutions and providers never independently confirmed her address. Petitioner first acknowledged that the address listed on her September 18, 2020 paystub was her "Queens condo" but then stated that the address belongs to Angel Gonzalez Jr.'s mother, and that Petitioner used this address for the purposes of [*3]receiving mail (Pet Ex. H). Petitioner testified that her subsequent paystubs, which listed the Premises as her address, are all dated after Angel Gonzalez, Jr. vacated the Premises (Pet Exs L-I). Finally, Petitioner asserted that she did not have any proof that Angel Gonzales, Jr. reported her income to NYCHA on his recertifications. She also recalled that she did not pay for electricity or gas service at the Premises, and did not have proof that she listed the Premises as her address on tax returns.
Respondent called Margie Taylor, who testified that she has been a manager at the Premises since October 28, 2019, and has been employed by the Respondent since 1987. She reported that the most recent leaseholder at the Premises was Angel Gonzalez Jr., who became the tenant of record after his father, Angel Gonzales, Sr., passed away in October 2017 (Resp Ex. 1). Ms. Taylor explained that Angel Gonzales, Jr. was able to succeed to his father's tenancy because he and his father properly filed the requisite paperwork with the Respondent - to wit, his father filed a request that Angel Gonzales, Jr. join the household on March 31, 2017 (Resp Ex. 7). Accordingly, when the lease was up for renewal in April 2018, Angel Gonzales, Jr. had been living at the Premises as a lawful occupant for over a year and was able to renew the lease as a tenant (Resp Ex. 1). The witness testified that when Angel Gonzales, Sr. made the request to add his son to the household composition in 2017 he did not include a request that Petitioner join the household composition (Resp Ex 7).
Margie Taylor asserted that Petitioner had once been a lawful occupant at the Premises. She explained that Angel Gonzales, Sr. had requested that Petitioner join the household as his daughter in law in 2011, after she married his son. However, both Petitioner and Angel Gonzales, Jr. submitted a request to be removed from the household composition in 2013, at which point only Angel Gonzales, Sr. was permitted to live in the household until he requested that his son be added in 2017.
Ms. Taylor explained that in or about September 2020, Angel Gonzales, Jr. came into the management office and signed a notice of intent to vacate stating that by September 30, 2020 he would be vacating (Resp Ex. 2). Mr. Gonzales later returned the keys to the apartment along with a letter to NYCHA (Resp Ex. 3). The witness also explained that tenants are required to submit income affidavits each year, which includes disclosing the income of each individual in their household each year, and every occupant living with them. Respondent introduced into evidence income affidavits signed by Angel Gonzales, Jr. for the years 2018, 2019 and 2020 (Resp Exs. 4, 5 & 6). Ms. Taylor maintained that Gonzales, Jr. never notified management that Petitioner was residing at the Premises, nor requested to add her to the household composition from June 2017 through November 4, 2020 (Resp Exs 4, 5, & 6). Ms. Taylor also asserted that from June 2017 through November 4, 2020, she did not see Petitioner in the management office nor in or around the building.
Ms. Taylor testified that tenants agree both on the income affidavits and in their leases that individuals cannot occupy their apartments without Respondent's authorization and that permission to join a household is only granted to family members with a specific kinship to the tenant of record, such as immediate family members, but not ex-spouses. (Resp Ex. 1). She asserted that Petitioner was not listed on any household composition, never requested to be added as an authorized occupant and did not have authorization to reside with Mr. Gonzales, Jr. from June 2017 through November 4, 2020.
Ms. Taylor confirmed that when she saw Petitioner on the day the Respondent changed the locks she informed Petitioner that she would be permitted to remove her belongings from the [*4]Premises. She explained that she did not want to throw Petitioner's belongings into the street, however, she was required to change the locks because she had received the notice of intent to vacate and the keys from Angel Gonzales, Jr. The witness observed Petitioner willingly removing her items from the Premises.
Petitioner commenced this unlawful lockout proceeding pursuant to RPAPL 713(10) based upon the allegation that she had resided at the Premises for over 30 days and that she was locked out by Respondent without due process of law. Respondent maintains that Petitioner lacks standing to maintain this proceeding because she is a "licensee." Furthermore, Respondent argues that Petitioner is ultimately not entitled to possession of the Premises and therefore restoration would be futile. On Petitioner's request, both sides submitted cases to the court supporting their position.
The Appellate Courts in the Second Department generally deny restoration in illegal lockout proceedings where restoration would be "futile." The futility doctrine has been applied in cases where the petitioner seeking restoration is deemed a "licensee," who is therefore not in lawful possession of the subject premises. In Wagman v Smith, (161 AD2d 704 [2d Dept 1990]), the former owner in possession was not restored in an illegal lockout proceeding brought against the subsequent owner because the subsequent owner would have had a claim for possession against the former owner. Similarly, the Appellate Division in this Department refused to restore a licensee to possession in 110-45 Queens Blvd. Garage, Inc. v Park Briar Owners, Inc, (265 AD2d 415 2d Dept 1999]) as restoration would have been futile because the respondent would have prevailed in a summary proceeding against the petitioner. The Appellate Term in this Department applied the holding above and dismissed the petition where the lease for a condominium expired and restoration would have been futile (Bernstein v Rozenbaum, 20 Misc 3d 138[A] [App Term 2d Dept 2008]). Similarly, in Viglietta v Lavoie, (33 Misc 3d 36 [App Term 2d Dept 2011]) the petitioner was not entitled to restoration; although he may have been an equitable owner of the premises and he may have been in occupancy of the premises, he was not a record owner nor was he in "actual" or "constructive" possession.
The Appellate Term recently decided the case of Andrews v Acacia Network, (59 Misc 3d 10 [App Term 2d Dept 2018]). In Andrews, the court stated: "[c]ontrary to the Civil Court's determination, the unlawful eviction provisions of Administrative Code of the City of NY § 26-521 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.'" citing Barclay v Natoli, 1998 NY Misc. LEXIS 799 [App Term, 2nd Dept, 2d & 11th Jud Dists 1998]). The Appellate Term in the First Department similarly affirmed the Civil Court's dismissal of an illegal lockout proceeding because the petitioner was a "mere licensee of the tenant" and a "licensee does not have 'possession,' [and] cannot maintain an unlawful entry and detainer proceeding" [see Padilla v Rodriguez, 61 Misc 3d 133[A] [App Term 1st Dept 2018]).
Based upon the cases cited above, the court finds that the proceeding should be dismissed. Petitioner failed to establish that she was in legal possession of the Premises as contemplated by RPAPL 713(10). First, the court did not find credible Petitioner's testimony that she had resided at the Premises since July 2017. Petitioner's testimony varied three times. She first testified that she did not reside anywhere else from June 2017 through November 5, 2020 other than the Premises. However, on cross examination, when directed to her paystub [*5]dated September 18, 2020 which lists an address in Queens as her address, she testified that the address was for her "Queens condo" (Pet Ex H). Petitioner later explained that the address on the paystub was her "mother in law's" address where she received mail.
While the court finds Petitioner's testimony credible that she once resided at the Premises, Petitioner was unable to establish that she resided there consistently since June 2017 as she testified. Based on Petitioner's testimony and the documents presented at trial, it is far more likely that Petitioner occasionally utilized the Premises as a mailing address and moved back into the Premises after Angel Gonzales, Jr. surrendered possession of the Premises on September 28, 2020. Further support for this conclusion can be found in Petitioner's paystubs, which show that Petitioner changed her address from the aforementioned Queens address to the Premises after September 28, 2020. A majority of the other documents presented at trial such as the Spectrum bill and NYCERS letter, the letter from Katz Drugs and four of her paystubs are all dated after September 28, 2020 (Pet Exs G, I-L, N & O). At most these documents reflect that Petitioner may have actually moved into the Premises only 35 days prior to being locked out by NYCHA.
Petitioner argues that she should be restored to the Premises pursuant to RPAPL 713(10) as long as she resided there for over thirty days. However, according to the Appellate precedent in this Department, most recently Acacia Network, the Petitioner must have legal possession of the Premises in order to be restored (see Acacia Network, 59 Misc 3d 10 [App Term 2d Dept 2018]). Here, the evidence shows that Petitioner moved into the Premises after possession had already been given back to Petitioner by the tenant. Furthermore, as Ms. Taylor explained at trial, after 2014, Petitioner was never named on the household composition nor was an approved household member. Accordingly, Petitioner was not entitled to succeed to the tenancy of Angel Gonzales, Jr. or Angel Gonzales, Sr.
In order to succeed to a tenancy in a New York City Housing Authority apartment, the party seeking succession must have resided in the apartment as an "authorized occupant" (see Matter of New York City Hous. Auth. Hammel Houses v Newman, 39 AD3d 759 [2d Dept 2007]) [respondent did not qualify as remaining family member because she was not listed on income affidavits, did not have authorization to reside at the apartment and NYCHA was not aware of her occupancy] see also Jamison v NYCHA, 25 AD3d 501 [1st Dept 2006]). An individual can only qualify as an authorized occupant if they had prior written authorization from NYCHA to reside at the apartment. Therefore, Petitioner failed to establish at trial that she was entitled to be restored to possession of the Premises, as she did not have "legal possession" when Respondent changed the locks (see Acacia Network, 59 Misc 3d 10 [App Term 2d Dept 2018]). Furthermore, even if Petitioner were to prevail here, restoration would be "futile" as she was not an "authorized occupant" in this NYCHA apartment (see Bernstein v Rozenbaum, 20 Misc 3d 138[A], [App Term, 2nd Dept, 2d and 11th Jud Dists 2008]).
The proceeding is dismissed without prejudice to Petitioner's rights, if any, pursuant to RPAPL 768 and NYC Admin Code 853, and Respondent's defenses thereto.
This constitutes the decision and order of the court.
Brooklyn, New York
HON. HEELA D. CAPELL
December 9, 2020
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