Papers Numbered Notice of Motion, Affirmation, Affidavit & Exhibits 1 Notice of Cross Motion, Opposition, Affirmation, Affidavit, and Exhibits 2 Reply Affirmation to Respondent’s Opposition 3 Reply & Opposition to Petitioner’s Opposition & to Cross Motion 4 DECISION/ORDER The underlying proceeding is a holdover wherein petitioner seeks possession of the subject premises after allegedly terminating respondents tenancy on May 31, 2019 after service of a Thirty Day Notice of Termination. Petitioner thus alleges respondent is an unregulated monthly tenant. Respondent disputes that allegation and contends he is under a fixed term that expires February 29, 2020 pursuant to a one year lease he signed on March 5, 2019. Respondent, by counsel, now moves this court for an order granting summary judgment pursuant to CPLR §3212(b) alleging he has a valid lease, petitioner has engaged in harassment, and this is a retaliatory eviction. Specifically, respondent alleges a valid lease exists which was entered into with petitioner’s son, Jin Chao Liang (aka ‘Charlie’), allegedly acting as an agent for petitioner. Respondent also seeks summary judgment and an order enjoining future harassment and imposing penalties upon petitioner. This claim appears to be based on an alleged illegal lockout incident which took place in March 2019 where, after summoning the police, respondent was given a key to the premises. Respondent’s third basis for summary judgment is his contention that this eviction proceeding is retaliatory in nature since it was commenced after he lodged several complaints about repairs to petitioner. Petitioner opposes respondent’s motion and cross moves for an order directing respondent to pay use and occupancy at the rate of $800 per month for June 2019 forward. Respondent took possession of the premises allegedly in November of 2012 pursuant to a lease signed by a man named “Jin” who lived in the building with two other men he knew as “Mr. Ping” and “Charlie”. He claims he paid rent to Jin, Mr. Ping, and Mr. Ping’s wife until she passed in 2017 and that Mr. Ping was usually the one who addressed repairs. Respondent asserts he believed Mr. Ping was the owner of the premises and Jin and Charlie are his sons. He then alleges Jin and Mr. Ping moved to Florida and he was instructed by Mr. Ping to pay rent to Charlie which he claims he did up to January 2019. At this point, Charlie was also his contact for repairs. At that time, respondent alleges he vacated the apartment because of black mold growing within it but his belongings remained and he stayed in the apartment when he had nowhere else to stay. Respondent represents Charlie executed the current lease in March of 2019. The lease is signed by Jin Chao Liang. Shortly thereafter in March 2019, respondent alleges he was illegally locked out of the premises. Pursuant to police involvement, he was given a key to the premises promptly. Petitioner, by counsel, opposes these allegations. He contends that the premises were owned by his wife, Xinping Chen, until her death. Petitioner apparently acquired authority over the premises in April 2019 as administrator of his wife’s estate. He argues that his son, whose name he does not mention, had no ownership interest in the premises and was not given any authority to enter into a lease on petitioner’s behalf. Petitioner further claims that he did not intend to illegally lock respondent out of the premises but changed the lock because he believed he had moved out and would not return. Petitioner alleges the existence of mold is due to respondent’s failure to maintain electricity in the apartment which prevented proper ventilation. Petitioner argues that an order for use and occupancy is warranted because it is a financial hardship for petitioner and it would be a gross miscarriage of justice to allow respondent to continue to live rent free. Petitioner’s cross motion seeking an order directing payment of use and occupancy is denied because the request is not in compliance with The Housing Protection Act of 2019 which allows the court to direct payment where there has been two adjournments at the sole request of respondent or sixty days have passed after the first appearance of the parties, not counting an initial adjournment for respondent to seek counsel, and only counting time adjourned solely at the request of respondent. In accordance with the statute, petitioner’s motion is premature. Respondent’s motion for summary judgment based on harassment, seeking enjoinment of petitioner and civil penalties is denied. While an illegal lockout can be per se evidence of harassment, the court can consider the surrounding circumstances in making that determination. Respondent admits that he vacated the apartment due to mold in early January 2019 coming only infrequently to the premises to pick up mail and incidentals. While petitioner’s actions may have been unwise and may expose him to liability, it was not unreasonable for him to assume respondent may have abandoned the premises. Coupled with a prompt resolution and restoration of respondent to the premises, enjoinment is not necessary. This denial is without prejudice to respondent seeking damages in a plenary action. With regard to respondent’s request for summary judgment based on the existence of a lease, they must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating any issue of fact. Friends of Thayer Lake LLC., v. Brown, 27 NY3d 1039 (2016). The existence of the lease is not in dispute. The dispute arises out of whether the lease is valid since it was entered into by a party other than the owner of the premises. As respondent argues, petitioner’s son, who issued the lease, lives in the premises, collects rent and makes repairs, and thus had apparent authority to execute the lease. Petitioner argues the lease is not valid because “petitioner’s son never had any ownership in the property and has no right or authority to sign a lease with Respondent.” Apparently there have been at least one other prior lease but it is unclear who issued it and signed on petitioner’s behalf and neither party was able to produce it. In order for the lease to be considered valid, Jin Chao Liang, must have possessed actual, apparent, or implied authority to enter agreements on behalf of his father, Wenyi Liang. Standard Funding Corp. v. Lewitt, 89 NY2d 546 (1997); Canon Fin. Svcs., Inc. v. Meyers Assoc., LP., 139 AD3d 575 (1st Dept. 2018; Matter of Bank of N.Y., 4 AD3d 112. Apparent authority derives from the principal’s conduct toward a third party that reasonably leads the third party to believe that the agent possesses the authority to enter a transaction. Hallock v. State, 64 NY2d 224 (1984); Greene v. Hellman, 51 NY2d 2014; Federal Ins. Co. v. Diamond Kamvakis & Co., 144 AD2d 45. Apparent authority arises from the conduct of the principal, not the agent, who does not acquire apparent authority through his own acts. Hallock, supra; Imburgio v. Toby, 82 AD3d 653 (1st Dept. 2011); 56 E. 87th Units Corp. v. Kingsland Group, Inc., 30 AD3d 1134 (1st Dept. 2006). If we accept, as petitioner contends, that he did not give authority to his son to issue a lease, we still must examine the actions of petitioner and what respondent relied on based on those actions. “The existence of apparent authority depends upon a factual showing that the third party relied upon the misrepresentation of the agent because of some misleading conduct on the part of the principal — not the agent.” Ford v. Unity Hosp., 32 NY2d 464. Petitioner, in the case at bar, gave his son authority to assume a variety of responsibilities including, rent collection, repairs, and apparently designated him as respondent’s direct contact even before petitioner moved to Florida. These allegations were not contested by petitioner either during oral argument or in written opposition, thereby resolving issues of fact underpinning the legitimacy of the lease. In fact, it appears that the whole family was involved in the operation of the premises at different times, so it is not certain respondent would know exactly who owned the premises between petitioner, his wife, and his sons. Ultimately, it is reasonable for respondent to rely on Jin Chao Liang’s authority based on the actions of petitioner. Wen Kroy Realty Co. V. Public Nat. Bank & Trust Co., 260 NY 84. As such, this court deems the lease to be valid. Accordingly, respondent’s motion for summary judgment is granted. The petition is dismissed. This constitutes the Decision and Order of the court. Dated: November 1, 2019
