DECISION/ORDER Petitioners, Anthony Tavares and Irannia Tavarez, commenced this proceeding against respondent New York City Housing Authority (NYCHA) by petition dated June 20, 2018. The petition sought an order restoring petitioners to possession of apartment #8G at 315 East 143rd Street, Bronx, NY 10451, as well as a warrant of eviction and treble damages pursuant to RPAPL §853.On June 22, 2018 the parties appeared in court and an order and stipulation were entered permitting petitioners to amend the petition to add the tenant of record, Juan Tavares, as a respondent. Petitioners were ordered (Spears, J.) to serve Juan Tavares with an amended petition and a copy of the court order by overnight and regular mail by June 27, 2018, and the proceeding was adjourned to July 5, 2018. Irannia Tavarez and NYCHA were represented by counsel. Anthony Tavares appeared without counsel.Irannia Tavarez served and filed an amended petition naming Juan Tavares as respondent and NYCHA as co-respondent. The amended petition sought an order restoring petitioners to possession of the subject apartment, enjoining respondents from denying petitioners access to the subject apartment, awarding petitioners damages and treble damages pursuant to RPAPL §853, plus attorney’s fees, costs and expenses.Motion practice ensued, and the proceeding was adjourned over several months. On March 28, 2019 NYCHA served and filed an answer to the amended petition containing a cross-claim against respondent, Juan Tavares. Juan Tavares entered a general denial.During the pendency of the proceeding, petitioners represented on the record and in motion papers that they were not seeking restoration to the subject premises, only a finding of illegal lockout and damages. On April 15, 2019 and April 29, 2019 a trial was held to determine whether petitioners were illegally locked out of the subject apartment by respondents. The parties rested on April 29, 2019 and post — trial memoranda were submitted on May 16, 2019 when the court reserved decision.Based upon the credible evidence adduced at trial, the court finds that petitioners occupied the subject apartment as licensees of Juan Tavares, the tenant of record, and as such, they have no independent rights of possession to the subject apartment. Because of their nonpossessory interest in the subject apartment, petitioners cannot maintain an action for an illegal lockout, and the proceeding is dismissed with prejudice against both Juan Tavares and NYCHA.The TrialIrannia Tavarez testified on behalf of petitioners that she, Anthony Tavares and their baby lived at 315 E 143rd Street, Apt. 8G, Bronx, New York for five years along with Juan Tavares. She testified that Juan Tavares is the tenant of record of the subject apartment and the father of petitioner, Anthony Tavares. Ms. Tavarez testified that she paid $329.00 cash every month to Juan Tavares toward the $625.00 monthly rent the entire time she lived in the apartment. No rent receipts were produced at trial.Ms. Tavarez testified that Juan Tavares was arrested in August 2017 because he and Anthony Tavares had fought with one another. Ms. Tavarez and Anthony Tavares obtained an Order of Protection against Juan Tavares and he was not permitted to live in the apartment for eleven months. During that time, Ms. Tavarez testified that she continued to pay the rent and that she and Anthony Tavares and their baby remained in the apartment.On June 1, 2018, representatives from NYCHA, the NYPD and Juan Tavares arrived at the apartment at about 11:00 AM while Ms. Tavarez and Anthony Tavares were sleeping. Petitioners heard a “loud noise” and saw representatives from NYCHA and the police entering the apartment. Irannia Tavarez testified that Juan Tavares was present in the hallway around the corner from the apartment.Irannia Tavarez testified that NYCHA representatives told them they had to leave and that they were going to change the locks. Ms. Tavarez was one month pregnant and became very upset. She asked to see a manager. She and Anthony Tavares and their baby left the apartment and went to a shelter where they continue to reside to date.On cross examination, Ms. Tavarez testified that she did not have receipts for the rent she paid and that they might be in storage. She never informed management that she was living in the subject apartment or “register” with NYCHA, but she believed that Anthony Tavares was on the lease.Ms. Tavarez testified that on June 1, 2018, representatives from NYCHA with tools in their hands were breaking the door. She did not see Juan Tavares, but she heard his voice. The police, an “Officer Collado,” were also present and a female officer rushed them out of the apartment.Ms. Tavarez testified that she never received notice to vacate from the subject apartment. She returned to the apartment a few days later to retrieve some of their belongings. Juan Tavares has been living in the apartment since that day.Anthony Tavares testified next for the petitioners. He testified that on the morning of the eviction, he was sleeping and heard the door being broken down. He and Irannia Tavarez showed ID to NYCHA and the police, but were told they had to leave.The manager from NYCHA then came up to the apartment and told them they had to leave. They took some of the baby’s things and papers and went to their car and then to the shelter. Anthony Tavares testified that it was only 15-20 degrees out that morning and that they were cold. He was not given a copy of the keys after the lock was changedAnthony Tavares testified that he had lived in the apartment for eleven years and that he was on the lease. He testified that he paid $294.00 and that Ms. Tavarez paid $329.00 every month for rent and that they paid rent at the cashier for NYCHA.On cross examination, Anthony Tavares testified that he was in high school when he moved into the subject apartment and that he lived there continuously since that time. He had lived with his father, but had no contact with him during the eleven months Juan Tavares was excluded from the apartment.Anthony Tavares testified that he paid the rent at the cashier on 143rd Street and Third Avenue, but the receipts were lost. He never received legal notice to vacate from the subject apartment. He heard his father’s voice that morning, but did not see him while the locks were being changed.Anthony Tavares testified that when he returned to the apartment three days after being locked out, his father was aggressive. Anthony Tavares removed some of his property and then went to the management office. Mr. Tavares showed management a lease dated May 1, 2016 naming “Juan Tavarez” as tenant and “Anthony Tavarez” and his sister, “Emily Tavarez,” as “occupants,” but NYCHA would not give him a key to the new lock.Petitioners also submitted a Family Member Removal Notice into evidence. That notice dated July 31, 2017, was completed by Juan Tavares. The notice requested the removal of Anthony Tavares from the subject apartment and stated that “On July 28th 2017, my son physically assaulted me and I want him to leave the premises and have him remove from my lease.”Petitioners rested.Respondent, Juan Tavares testified that he lives at the subject premises. He submitted his most recent lease dated June 15, 2018 into evidence. The lease names him as the only occupant of the subject apartment.Juan Tavares denied that petitioners ever paid rent for the subject apartment. To support his claim he submitted various grants paid on his behalf from HRA for rent for the subject premises. The most recent grant was for the period March 2018 through May 2018. Before that there were grants in 2016. He also showed a letter from Catholic Charities promising to pay $500.00 on his behalf from May 2018.Juan Tavares testified that his son, Anthony, had resided in the subject apartment for eleven years, and that Ms. Tavarez lived there for four years. He testified that he removed Anthony Tavares from the lease because his son hit him and threw him out of the apartment.Juan Tavares testified on cross examination that a Marshal came and changed the locks and removed his son and Ms. Tavarez from the subject apartment. This occurred after the Order of Protection his son and Ms. Tavarez had obtained against him expired. He testified that he went to the apartment on June 1, 2018 with the Marshal and the police. He stood in the hallway while the locks were being changedRespondent identified and submitted into evidence an order of the Hon. Enedina P. Sanchez dated February 26, 2018 under Index No.: L&T 811452/17. The order in that illegal lockout proceeding which Juan Tavares had brought against Anthony Tavares, granted Juan Tavares restoration to the subject apartment upon expiration of the Order of Protection. The order was entered on default since Anthony Tavares did not appear in court.Racquel Redman testified next. Ms. Redman testified that she is employed by NYCHA. She testified that she goes to court, works with tenants, and answers telephone calls for Patterson Houses. Ms. Redman testified that she is assigned to Juan Tavares and that he is the tenant of the subject premises.Ms. Redman testified that on June 1, 2018 she received a phone call from the assistant manager to report to the subject apartment. She went there and saw police officers and maintenance workers. She observed Anthony Tavares and Irannia Tavarez moving things out of the apartment. The door was open and there was a maintenance worker standing and waiting to change the locks.Ms. Redman testified that the locks were being changed at the request of Juan Tavares. Juan Tavares was given the keys to the subject apartment because he is the tenant of record. Ms. Redman testified that they only give keys to the tenant, so keys were not given to Anthony Tavares and Irannia Tavarez.On cross examination, Ms. Redman confirmed that Anthony Tavares was authorized to live there at one time. However, on redirect, she testified that the tenant of record could sign a form to remove the authorized resident from the apartment, which is what Juan Tavares did in the notice dated July 31, 2017.Respondents rested.Findings of Fact and DecisionDuring the time petitioners, Anthony Tavares and Irannia Tavarez, lived in the subject apartment, they were licensees of respondent, Juan Tavares. As licensees they had no possessory interest in the subject apartment. Therefore, Juan Tavares was permitted to remove petitioners without legal process, under the common-law right of ouster.NY Real Property Actions and Proceedings Law (RPAPL) §§711 and 713(7), provide in pertinent part as follows:§711 — Grounds where landlord-tenant relationship exists:A tenant shall include an occupant of one or more rooms in a rooming house or a resident, not including a transient occupant, of one or more rooms in a hotel who has been in possession for thirty consecutive days or longer; he shall not be removed from possession except in a special proceeding.§713 — Grounds where no landlord-tenant relationship exists:(7) He is a licensee of the person entitled to possession of the property at the time of the license, and (a) his license has expired, or (b) his license has been revoked by the licensor, or (c) the licensor is no longer entitled to possession of the property;…The credible testimony at trial established that Anthony Tavares and Irannia Tavarez were licensees of Juan Tavares, and that no landlord-tenant relationship existed between them. Neither were they tenants of NYCHA, despite Anthony Tavares being listed as an authorized occupant for part of the time they were in occupancy. Accordingly, their occupancy of the subject apartment was not pursuant to RPAPL §711, and they could be removed from the apartment without legal process.In P & A Brothers, Inc., v. City of New York Department of Parks & Recreation, 184 A.D.2d 267 (1992), the court held that an owner still has a common law right to remove a licensee or squatter without legal process, and that RPAPL §853 was enacted to deter such behavior, but not to mandate legal action to oust the licensee. The court opined on what was then eighty years of legal precedent stating,While it is true that tenants as defined in RPAPL 711 may be evicted only through lawful procedure, others, such as licensees and squatters, who are covered by RPAPL 713 are not so protected (see, Morillo v. City of New York, 178 AD2d 7). Thus, RPAPL 713 merely permits a special proceeding as an additional means of effectuating the removal of nontenants, but it does not replace an owner’s common-law right to oust an interloper without legal process (see, Bliss v. Johnson, 73 NY 529).The common-law right to remove a licensee or squatter without legal process remains to date, but that action could now be subject to penalties pursuant to RPAPL §853. The court in P&A Brothers, went on to state that,Indeed, New York’s current forcible entry and detainer statute (RPAPL §853) is very similar to the one referred to in Fults v. Munro (202 NY 34) more than 80 years ago. The forcible entry and detainer law was specifically enacted to discourage undue intimidation and violence in the ejection of persons from real property by providing for treble damages under certain circumstances, not to prohibit resort to summary ouster. The decision by the Court of Appeals in Napier v. Spielmann (196 NY 575, affg on opn at 127 App Div 567) that a servant or licensee acquires no possessory interest in property is still valid authority. (P & A Brothers at 268, 269).RPAPL §853 was enacted to discourage owners from using self-help and violently evicting people by imposing treble damages against those who remove persons in “a forcible or unlawful manner.” However, this statute did not negate the common-law right of an owner to remove a licensee or squatter without legal process, which is what transpired in this proceeding.After the testimony and evidence adduced at trial, the court finds petitioners to have been licensees with no possessory rights to the subject premises. Petitioners both testified that they paid rent to Juan Tavares. Ms. Tavarez testified that she paid $329.00 cash to Juan Tavares toward the $625.00 monthly rent the entire time she lived there, however no rent receipts were produced at trial. Anthony Tavares testified that he paid $294.00 towards the rent every month, by paying the cashier on 143rd Street and Third Avenue, but his receipts were “lost”.Juan Tavares vehemently denied petitioners’ statements that they paid rent to him. Juan Tavares testified that petitioners, in fact, never paid rent for the subject apartment. To bolster his testimony, Juan Tavares submitted into evidence numerous grants paid on his behalf from HRA in 2016 and HRA grants covering the period of March 2018 through May 2018 (respondent’s B and C). Additionally, Juan Tavares also submitted evidence that Catholic Charities promised to pay $500.00 on his behalf, which represented rental arrears from May 2018 (respondent’s D).Based upon the testimony and evidence submitted, the court finds the testimony of both Ms. Tavarez and Anthony Tavares incredible. The petitioners failed to substantiate their claim that they paid rent to Juan Tavares. Ms. Tavarez testified that she did not have receipts for the rent she paid “because they might be in storage.” The court is troubled by the fact that during this trial, petitioners failed to produce any receipts that were allegedly available to them.The testimony provided by petitioners was conclusory at best, and no evidence supported their allegations. “…[W]here an adversary withholds evidence in his possession or control that would be likely to support his version of the case, the strongest inferences may be drawn against him which the opposing evidence in the record permits.” Noce v. Kaufman, 2 N.Y.2d 347, 353 (1957). Had they had rent receipts, petitioners could have brought them to court. They did not, and the Court will, pursuant to Noce v. Kaufman, draw an inference that petitioners did not pay rent to Juan Tavares and therefore rent receipts do not exist.Juan Tavares testified that he removed Anthony Tavares as an authorized tenant from his apartment lease by completing a notice dated July 31, 2017. Petitioners corroborated his testimony when they submitted into evidence a Family Member Removal Notice (petitioner’s 2). The notice stated that “On July 28th, 2017, my son physically assaulted me, and I want him to leave the premises and have him remove from my lease.”During the trial, it was also revealed that Juan Tavares had brought an illegal lockout proceeding against Anthony Tavares (Index No.: 811452/17). The Hon. E. Sanchez, JHC, issued a decision and order on default dated February 26, 2018 restoring Juan Tavares to possession of his apartment, and a judgment was entered accordingly. Juan Tavares waited until the Order of Protection that had excluded him from his apartment expired. Then Juan Tavares and NYCHA, acting pursuant to that decision and order, asked petitioners to leave the subject apartment and the locks were changed.Petitioners presented no evidence establishing any possessory interest in the subject premises. Petitioners were no more than licensees of respondent, Juan Tavares. While Anthony Tavares was an “authorized occupant” at one time, he and Tavarez lived in the subject apartment because of permission granted to Irannia them by Juan Tavares. Once he revoked his permission by filing the Family Member Removal Notice dated July 31, 2017, Juan Tavares effectively revoked the license he had given them to live in the apartment and therefore they are not of the class of persons the legislature meant to protect under RPAPL §713. See Almonte v. City of New York, 166 Misc.2d. 376 (App Term 2nd Dept 1995), wherein the Court held that the common-law remedy of self-help could be used peacefully against nontenants; P & A Brothers v. City of New York Dept. of Parks and Recreation, 184 A.D.2d 267; Paulino v. Wright, 210 A.D.2d 171; “an action for forcible entry will not lie where the person ousted is a servant or mere licensee”; Napier v. Speilman, 127 A.D. 567 (1908).The 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….” 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, Slip Op 28026 (App Term, 2nd Dept 2018).Petitioners repeatedly informed the court that they were not interested in being restored to the subject premises. All petitioners requested was an order finding that respondents illegally locked them out. However, that relief was not available to petitioners in this proceeding, because they were mere licensees who could not maintain a proceeding for an alleged illegal lockout. Korelis v. Fass & Conriv Realty, 26 Misc.3d 133(A), N.Y. Slip Op 50122 (U) (App Term, 1st Dept 2010), Padilla v. Rodriquez, 61 Misc.3d 133(A), N.Y. Slip Op 51471 (U) (App Term, 1st Dept (2018).Based on the foregoing findings of fact and law, the petition is dismissed with prejudice against both Juan Tavares and NYCHA. Petitioners occupied the subject apartment as licensees of Juan Tavares, the tenant of record, and they had no independent rights of possession. Because of this, they could not maintain an action for illegal lockout with respect to the subject apartment.Petitioners also sought treble damages pursuant to RPAPL §853. This relief is not available in a proceeding brought pursuant to RPAPL §713, and must be sought separately. See Saccheri v. Cathedral Props. Corp., 16 Misc.3d 111, 114, (App. Term, 2nd Dept 2007). Petitioners claim for treble damages pursuant to RPAPL §853 is also dismissed without prejudice to commencement in the proper forum.This constitutes the Decision and Order of the Court after trial. A copy of this Decision and Order is being mailed to both sides along with their trial exhibits.So Ordered:Dated: June 12, 2019Bronx, New York
