Waldman v Abt

[*1] Waldman v Abt 2021 NY Slip Op 51220(U) Decided on December 21, 2021 Civil Court Of The City Of New York, Kings County Stoller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2021
Civil Court of the City of New York, Kings County

Peter Waldman, Petitioner,

against

Gale Abt, Respondent.



Index No. 59219/2020



For Petitioner: Zachary Hall

For Respondent: pro se
Jack Stoller, J.

Peter Waldman, the petitioner in this proceeding ("Petitioner"), commenced this holdover proceeding against Gale Abt, the respondent in this proceeding ("Respondent"), seeking possession of 2355 East 12th Street, Apt. 1D, Brooklyn, New York ("the subject premises") on the basis that Petitioner is the prime tenant of the subject premises, that Respondent is a licensee, and that Petitioner terminated Respondent's license. Respondent interposed an answer with a counterclaim for harassment.[FN1] The Court held a trial on December 16, 2021.

The trial record

Petitioner testified that he lives in the subject premises; that he is the tenant of the subject premises; that his daughter has the original lease because she watches all of his things; and that his daughter cannot now give him the lease because she is in Florida. Over Respondent's objection, Petitioner introduced into evidence a lease showing that he is a tenant of the subject premises and protected by the Rent Stabilization Law ("the Lease"). Petitioner testified that he has a subsidy pursuant to the Senior Citizen Rent Increase Exemption ("SCRIE").

Petitioner testified that he knows Respondent; that a friend brought Respondent into the subject premises and said that she was going to stay for three weeks and she ended up staying for two years; that he never signed a lease with Respondent; that Respondent never paid rent; that he asked Respondent to leave a lot of times; that he wants her out; that he stays with his daughter because Respondent is living there; that he has been a tenant of fifty years; and that he is seventy-nine years old.

Petitioner testified on cross-examination that he has not taken medication that would affect his ability to answer; that the subject premises is in a rent-stabilized building; that his daughter has his original lease; that he knows Respondent through her husband; that he does not remember the year that he met Respondent; that he once thought they were good friends; that he knew Respondent before she was married; that he let Respondent stay in the subject premises because she had no place to stay and he was trying to be nice; that when Respondent moved in, he was living at the subject premises; that he went back and forth to stay with his girlfriend when Respondent moved in; that someone else was in the subject premises when he was away but Respondent did not get along with him; that Respondent's ex-husband offered him money but he would not take it; that he does not rent out the subject premises like it is a hotel room; that he does not remember the exact date that Respondent moved into the subject premises; that Respondent would not leave; that Respondent changed the locks on him; that Respondent threw him out by changing the locks; that someone else named Montgomery Baer, who was a friend of his ("Petitioner's friend") had been staying in the subject premises before Petitioner's friend had a fight with his mother; that Petitioner's friend was in the hospital; the Petitioner's friend was mentally ill; that he does not know if Respondent knew that Petitioner's friend had a mental illness; that he did not place Respondent in danger; that his brother died when Respondent moved in, so there was furniture in the subject premises; that Respondent had been staying in hotels; that Respondent moved to the subject premises from a hotel; that Respondent has not moved out; that Petitioner's friend gave him keys when Petitioner's friend left; that Respondent moved a cat into the subject premises with her; and that he did not invite her back in.

Respondent introduced into evidence an undated letter from Petitioner saying that he resides at the subject premises and that he is allowing Respondent to stay in the subject premises without charging rent and a letter Petitioner wrote dated November 15, 2018 saying that he is allowing Respondent to live in "my apartment" without charging rent.

Respondent testified that in July of 2017 she was invited to live in the subject premises as a roommate; that at the time Petitioner was not living there; that Petitioner's friend was living there; that Petitioner was then living at his girlfriend's apartment and with Petitioner's daughter; that she was not aware of Petitioner's friend's mental illness; that her ex-husband offered Petitioner $300 a month; that she moved out of the subject premises in March of 2018; that she was living in hotels for over three months; that Petitioner's friend moved out; that there was no furniture when she moved in; that Petitioner's friend had a problem with dust and did not want anything in the subject premises; that Petitioner invited her back into the subject premises again; that she moved back in; that harassment then started; that someone broke the locks and rang her doorbell; that the door would be shaking when Petitioner would come; that she was living in the subject premises by herself with no furniture and sleeping on the floor; that people were coming in and out of the subject premises; that she was buying new locks; that she was afraid that Petitioner would call police and have her arrested; that the door remained broken; that her cat was bruised; that her cat died; that Petitioner moved out; that she did not want to move back to the subject premises; that she knew Petitioner long before she was married; that they met in the 1970s; that Petitioner would give keys to people coming in and out of the subject premises; that her belongings were missing; that she did not feel safe; that Petitioner said that she had to leave; that she had nowhere to go; that she never had a problem with Petitioner living in the subject premises; that she did not ask Petitioner to leave; and that people rang the doorbell at all hours.

Respondent introduced into evidence hotel bills from March 2018, a Verizon bill for [*2]security cameras, photographs of a door taken by a security camera that Respondent had installed at the entrance to the subject premises, photographs of Petitioner engaged in some acts, and photographs of people coming in and out.

Respondent testified on cross-examination that she did not know if her ex-husband paid for the subject premises; that she told Petitioner when she moved out in 2018; that she moved out because she could not deal with Petitioner's friend; that she stopped staying in the hotel because Petitioner's friend moved out and Petitioner invited her back in; that, as far as she knew, her ex-husband was paying rent; that she never paid rent to Petitioner; that she was arrested at the subject premises because Petitioner's friend and she had an altercation; that Petitioner would call police when he accused her of locking him out of the subject premises; that Petitioner said that the subject premises is not Respondent's and that Respondent has to leave; that the security camera is on the frame of the door in the hallway; that she did not think she needed permission to install a security camera; that she fixed the locks to the subject premises; that it was unsafe; and that she does not know if Petitioner was arrested at the subject premises.

Respondent testified on redirect examination that she changed the locks because Petitioner was not living there; that she was afraid to be in the subject premises by herself; and that she always gave Petitioner a key to the subject premises.

Discussion

A licensee is one who enters upon or occupies lands by permission, express or implied, of the owner, or under a personal, revocable, nonassignable privilege from the owner, without possessing any interest in the property, and who becomes a trespasser thereon upon revocation of the permission or privilege. Williams v. Williams, 13 Misc 3d 395, 397 (Civ. Ct. NY Co. 2006), citing Rosentiel v. Rosentiel, 20 AD2d 71, 76 (1st Dept. 1963), E. Ramapo Cent. Sch. Dist. v. Mosdos Chofetz Chaim, Inc., 52 Misc 3d 49, 51 (App. Term 2nd Dept. 2016), City Enters., Ltd. v. Posemsky, 184 Misc 2d 287, 288 (App. Term 2nd Dept. 2000), 100 W. 72nd St. Assoc. v. Murphy, 144 Misc 2d 1036, 1038 (Civ. Ct. NY Co. 1989)(Tom, J.). Petitioner is the rent-stabilized tenant of record. By Respondent's own testimony and the very letters that Respondent introduced into evidence, Petitioner invited Respondent to stay in the subject premises without paying rent. The nature of Respondent's occupancy by virtue of the evidence that Respondent submitted shows that she is a licensee.

Underscoring the proposition that Respondent has been a licensee, by Respondent's own testimony, her occupancy of the subject premises was not exclusive. She shared the subject premises with Petitioner's friend. Unlike an agreement with exclusive control, an agreement without exclusive possession is a license. Layton v. A. I. Namm & Sons, Inc., 275 A.D. 246, 249 (1st Dept. 1949), aff'd, 302 NY 720, 722 (1951). See Munro v. Godfrey Prescott & NYC Dept. of Hous. Preservation & Dev., 2002 NY Misc. LEXIS 851, 4-5 (Civ. Ct. Bronx Co. 2002), citing Kaypar Corp. v. Fosterport Realty Corp., 1 Misc 2d 469, 470-471 (S. Ct. Bronx Co.), aff'd, 272 A.D. 878 (1st Dept. 1947)(licensors do not surrender their rights to occupy the premises). Cf. Z. Justin Mgt. Co., Inc. v. Metro Outdoor, LLC, 137 AD3d 577, 578 (1st Dept. 2016), Prospect Owners Corp. v. Sandmeyer, 62 AD3d 601, 602 (1st Dept. 2009), leave to appeal denied, 13 NY3d 717 (2010), American Jewish Theatre v. Roundabout Theatre Co., 203 AD2d 155, 156 (1st Dept. 1994), Rodriguez v. Greco, 31 Misc 3d 136(A)(App. Term 2nd Dept. 2011)(the nature of the transfer of absolute control and possession is what differentiates a lease from a license or any other arrangement dealing with property rights), Rucks v. Sunderland, 27 Misc 3d 133(A)(App. Term 2nd Dept. 2010).

Even if Respondent is a licensee, Respondent challenged the proposition that Petitioner was a proper party to maintain this proceeding against her. Petitioner would be a proper party to obtain relief in this proceeding if, inter alia, he could prove that he is the person entitled to possession of property occupied by a licensee. RPAPL §721(7). The means by which Petitioner sought to prove an entitlement to possession of the subject premises was by moving the Lease into evidence. Respondent objected to the admission of the Lease into evidence because the Lease was a copy. In effect, Respondent invoked the best evidence rule. The best evidence rule requires the production of an original writing where its contents are in dispute and sought to be proven. People v. Haggerty, 23 NY3d 871, 876 (2014), Casanas v. Carlei Grp., LLC, 2021 NY Slip Op. 06787, ¶ 1 (App. Div. 1st Dept.), Stathis v. Estate of Estate of Donald Karas, 193 AD3d 897, 899 (2nd Dept. 2021).

The best evidence rule does not necessarily preclude copies from being admitted into evidence. The Court may admit into evidence "secondary evidence" — i.e., a copy — of the contents of an unproduced original if the Court finds that the proponent of the copy has sufficiently explained the unavailability of the primary evidence, has not procured its loss or destruction in bad faith, and that the proffered evidence is authentic and correctly reflects the contents of the original. Schozer v William Penn Life Ins. Co. of NY, 84 NY2d 639, 644-45 (1994), Casanas v. Carlei Grp., LLC, 2021 NY Slip Op. 06787, ¶ 1 (App. Div. 1st Dept.), 76-82 St. Marks, LLC v. Gluck, 147 AD3d 1011, 1012 (2nd Dept. 2017).

As noted above, Petitioner testified at trial that he is seventy-nine years old, that his daughter maintains his personal effects, including the Lease, and that he could not produce an original of the Lease because his daughter has been in Florida. The Court further takes judicial notice that Petitioner had originally planned to appear at this trial virtually. Petitioner's counsel emailed a scan of the Lease to the Court and Petitioner started to put on his case virtually. During Petitioner's virtual appearance, Petitioner experienced technical audio difficulties with Petitioner's device. Given that Petitioner's counsel's office was nearby the Courthouse, Petitioner and his attorney then came to Court in person and put on his case in person.

As of this writing, the COVID-19 pandemic is afflicting the world in general and New York in particular. The COVID-19 pandemic has made routine the previously novel use of virtual trials. See, e.g., Bonilla v. State of NY, 71 Misc 3d 235, 238 (Ct. Cl. 2021), Matter of Anthony R. (torianne Z.-D.), 71 Misc 3d 1218(A)(Fam. Ct. Kings Co. 2021), Perez v. 1857 Walton Realty Corp, 71 Misc 3d 1203(A)(Civ. Ct. Bronx 2021), Bronx Park Phase II Preserv, 2021 N.Y.L.J. LEXIS 471, *8 (Civ. Ct. Bronx Co.), Wyona Apartments LLC v. Ramirez, 70 Misc 3d 591, 597 (Civ. Ct. Kings Co. 2020). Virtual trials entail the use of virtual evidence using the screen-sharing capacity of the videoconference platform. Perez, supra, 71 Misc 3d at 1203(A), Bronx Park Phase II Preserv, supra, 2021 N.Y.L.J. LEXIS at 471, *8, Wyona Apartments LLC, supra, 70 Misc 3d at 597. Until Petitioner's last-minute relocation to an in-person appearance in Court, Petitioner could reasonably expect to use the scanned copy of the Lease rather than the original. Under these circumstances, Petitioner has sufficiently explained not only the unavailability of the original of the Lease but further that he had not procured the loss or destruction of the Lease in bad faith.

The common use of scanned documents in Portable Document Format ("pdf") at virtual trials underscores the limitations of the best evidence rule in a digital age. "At its genesis, the [best evidence] rule was primarily designed to guard against 'mistakes in copying or transcribing the original writing'". Schozer, supra, 84 NY2d at 643. Technological advancements in copying [*3]render the best evidence rule in modern day practice most useful to protect against fraud, perjury and inaccuracies which derive from faulty memory, Id. at 644, concerns that Petitioner's submission of the copy of the Lease do not raise. A strict requirement of the original writing under these circumstances would extinguish otherwise valid legal claims or defenses where a litigant does not have possession of an original. Id. "As stated by one commentator, the failure to excuse the loss of an original 'would in many instances mean a return to the bygone and unlamented days in which to lose one's paper was to lose one's right.'" Id. The record therefore shows that Petitioner satisfactorily explained the absence of the original Lease.

Although Respondent raised an objection to Petitioner's characterization of the copy of the Lease as a true copy of the original, Respondent herself moved into evidence letters that Petitioner wrote inviting Respondent to live in the subject premises, where Petitioner characterizes the subject premises as "my apartment." Respondent's own evidence as such, and Respondent's testimony as to how she gained access to the subject premises, is consistent with the contents of the Lease. The preponderance of the evidence shows that the Lease Petitioner offered into evidence was a true copy of the original.

Once the absence of an original document is excused, all competent secondary evidence is generally admissible to prove its contents. Schozer, supra, 84 NY2d at 645, 76-82 St. Marks, LLC, supra, 147 AD3d at 1012. Accordingly, the Lease is in evidence and it shows that Petitioner is the rent-stabilized tenant of the subject premises and therefore entitled to possession of property occupied by a licensee as required by RPAPL §721(7).

Even if Petitioner is the rent-stabilized tenant of the subject premises, Respondent argues that Petitioner does not have standing because he has not been maintaining the subject premises as his primary residence. An evaluation of a rent-regulated tenant's primary residence occasions a multi-factor analysis as to whether the tenant maintains an ongoing, substantial, physical nexus with the regulated premises for actual living purposes, Katz Park Ave. Corp. v. Jagger, 11 NY3d 314, 317 (2008), Glenbriar Co. v. Lipsman, 5 NY3d 388, 392-393 (2005), 92 Cooper Assoc., LLC v. Roughton-Hester, 165 AD3d 416, 417 (1st Dept. 2018), the factors of which Respondent did not develop on the record. Even assuming arguendo, however, that Petitioner failed to maintain the subject premises as his primary residence, such a failure would not deprive Petitioner of his entitlement to possession of the subject premises until, at the very least, Petitioner's landlord served upon Petitioner a notice between 150 and 90 days prior to the expiration of the lease indicating the landlord's intention not to renew the lease. 9 N.Y.C.R.R. §2524.2(c)(2). Any evidence regarding Petitioner's primary residence therefore does not support a finding that Petitioner is not entitled to possession of the subject premises upon the termination of Respondent's license.

Respondent counterclaims against Petitioner for harassment. The prohibition against harassment applies to an "owner." N.Y.C. Admin. Code §27-2005(d). An "owner" means a "lessee, agent, or any other person, firm or corporation, directly or indirectly in control of a dwelling...." N.Y.C. Admin. Code §27-2004(a)(45). The purpose of this language is to impose liability on any entity or person with some say in the operation of a building, Schlam Stone & Dolan, LLP v. Howard R. Poch, 40 Misc 3d 1213(A)(S. Ct. NY Co. 2013), such as an officer of a corporate landlord, Dep't of Hous. Pres. & Dev. of the City of NY v. Chana Realty Corp., 1993 NY Misc. LEXIS 659, at *1-2 (App. Term 1st Dept. 1993), or a registered managing agent. Dep't of Hous. Pres. & Dev. v. 2515 LLC, 6 Misc 3d 1039(A)(Civ. Ct. NY Co. 2005), citing DHPD v. Livingston, 169 Misc 2d 660, 661 (App. Term 2nd Dept. 1996). As the purpose [*4]of N.Y.C. Admin. Code §27-2004(a)(45) is to define an owner as a person or entity in control of a building, the Court construes the use of the word "lessee" in the definition of an owner to refer to a lessee in control of property, i.e., a net lessee. Ellouzi v. Sherman, 2019 NY Slip Op. 50555(U)(Civ. Ct. NY Co.), Metropolitan Realty Group v. McSwain, 27 Misc 3d 1216(A)(Civ. Ct. NY Co. 2010), Redhead v. Henry, 160 Misc 2d 546, 547 (Civ. Ct. Kings Co. 1994). See Also Jackson v. Dunbar, LLC, 2012 NY Slip Op. 30493(U)(S. Ct. NY Co.)(a social services organization that rents apartments in which to house its clients can be deemed an owner for purposes of the Housing Maintenance Code). Under this definition, a tenant is not an "owner" and the prohibition against harassment memorialized in N.Y.C. Admin. Code §27-2005(d) does not apply to Petitioner.

Accordingly, it is ordered that the Court dismisses Respondent's counterclaim of harassment against Petitioner and it is further ordered that the Court awards Petitioner a final judgment of possession; that issuance of the warrant of eviction is permitted forthwith, and in compliance with L. 2021, c. 417, the warrant shall state the dates that hardship declarations were sent to Respondent and that no hardship declaration has been filed; that an execution of the warrant, meaning an eviction, is stayed through January 21, 2022 for Respondent to move out of the subject premises; and that if Respondent does not move out of the subject premises on or before January 21, 2022, the warrant may execute after the service of a marshal's notice.

The parties are directed to pick up their exhibits within thirty days or they will either be sent to the parties or destroyed at the Court's discretion in compliance with DRP-185.

This constitutes the decision and order of the Court.

Dated: December 21, 2021

Brooklyn, New York

______________________________

HON. JACK STOLLER

J.H.C. Footnotes

Footnote 1: Respondent's answer also included a defense of lack of personal jurisdiction. The Court dismissed this defense by an order dated December 6, 2021.