DECISION/ORDER Petitioner Tracie Gilliam commenced this holdover summary eviction proceeding, alleging termination of an unregulated tenancy. Respondent Amanda Duncan answered that the proceeding was retaliatory in violation of Real Property Law §223-b, among other defenses.1 The court held a trial at which Gilliam, Kayla McNeill (Gilliam’s daughter), and Jackie Fuller (who connected Gilliam and Duncan, and facilitated the rental) testified for Gilliam. Duncan testified for herself and called no other witnesses. The outcome of the proceeding hinges on whether the court finds Gilliam’s or Duncan’s testimony more credible, as their two different narratives are impossible to reconcile. Duncan claimed that Gilliam required her to pay $200.00 per month in addition to the amount in their written lease, in violation of the New York City Human Resources Administration program that paid most of the rent. She alleged that it was only after she announced her intention to stop making the extra payment that Gilliam terminated her tenancy and sought to evict her. Gilliam denied that she ever charged Duncan extra money. She alleged that any extra money that Duncan did pay was for cable television and internet service, pursuant to a separate agreement with McNeill, who provided the services through her own account. The reason she decided to evict Duncan, Gilliam claimed, was because of complaints about Duncan that she received from other tenants. As discussed below, the court credits the testimony of Duncan, not Gilliam, and finds that Gilliam did unlawfully commence this proceeding in retaliation for Duncan’s refusal to pay rent above the amount permitted by HRA. FINDINGS OF FACT The court finds as follows. Tracie Gilliam is the owner of 625 Emerald Street in Brooklyn, a residential building with three “class A” apartments. Gilliam rented “room 1″ in the second-floor apartment to Amanda Duncan; two other rooms were rented to other tenants. Their one-year written lease commenced June 1, 2018 and set a rent of $800.00 per month. The New York City Human Resources Administration paid $750.00 of Duncan’s rent each month through her participation in a rental assistance program called Living In Communities, or LINC (since replaced by an HRA subsidy called “CityFHEPS”). HRA set maximum rent limits depending on the type of space rented (apartment or room), and how many individuals were occupying the space. The maximum rent for a room to be occupied by one individual was $800.00. Duncan was responsible for the remaining monthly balance of $50.00. Gilliam signed two HRA forms as a condition of receiving the monthly payments from that agency. One was a “Landlord’s intent to rent a room,” in which she swore under the penalty of perjury that the rent would be $800.00 per month. The second was a “Landlord statement of understanding,” wherein she agreed that she was prohibited from charging any rent above the $800.00, and that “‘side deals’ are specifically prohibited.” Duncan was informed by Gilliam, and by Jackie Fuller, the “housing specialist” from Samaritan Village who helped her find the room, that the rent for the room was $1,000.00 per month, notwithstanding the rent set in the written lease. Duncan paid rent to Gilliam through Kayla McNeill, Gilliam’s daughter, who lives on the first floor of the building with her family. Complying with Gilliam’s requirement, Duncan paid $250.00 to Gilliam each month, instead of only $50.00, via McNeill. In addition to the $250.00, Duncan also paid $70.00 per month to McNeill for cable television and internet service, for several months. McNeill provided these services to Duncan through her own account with Optimum, by having a cable box installed in Duncan’s room. Around May 2019, Duncan informed McNeill that she wanted to discontinue her cable and internet service. However, the cable box in Duncan’s room was not removed until June 2019, at the latest. But after June 2019, Duncan did not have any cable or internet service. Nonetheless, Duncan paid $250.00 for July 2019, instead of only $50.00. On July 19, 2019, after having paid her usual $250.00 rent for that month, Duncan informed “Denise,” the “aftercare specialist” associated with the LINC program, that she was no longer going to pay the extra $200.00 required by Gilliam. That same day, Gilliam went to the second-floor apartment and confronted Duncan, in an argument that Duncan recorded (the recording was admitted into evidence). Gilliam told Duncan that she had been informed that “next month” (August) Duncan was planning on not paying “your $200.00.” Duncan confirmed that this was true, whereupon Gilliam stated, “I’m taking you to court.” After some more back and forth, Gilliam stated, “I will serve you. You will be served. And you will be put out.” Gilliam then commenced a holdover summary eviction in August 2019 (index no. 73974/19); it was dismissed on the first court appearance. That proceeding was predicated on a notice of termination dated July 1, 2019. However, the court credits Duncan’s testimony that she was actually served with the notice on July 19th, after her argument with Gilliam. The file for the first proceeding contained an affidavit of service of the notice of termination, alleging that the notice was served on July 1st. But Gilliam neither testified as to any personal knowledge of such service, nor did she call the individual who served the notice as a witness. The mere fact that the affidavit attesting to its service was contained in a court file does not make it admissible through the mechanism of judicial notice (see Ptasznik v. Schultz, 247 AD2d 197, 199 [2d Dept 1998] [commenting on the "widespread but mistaken notion that an item is judicially noticeable merely because it is part of the 'court file'"]). Gilliam served a new termination notice the same day that the prior proceeding was dismissed. This proceeding then followed. Gilliam’s testimony was not credible. The court does not credit Gilliam’s denial that she charged Duncan extra rent. Gilliam claimed that when she argued with Duncan about her refusal to pay $200.00 for August 2019, she was referring to the cable and internet money that Duncan would have to pay McNeill. But McNeill testified that Duncan had no cable or internet service as of the end of June 2019, at the latest. Therefore, there would have been no reason for Duncan to pay an extra $200.00 in August 2019. The court finds that Gilliam’s claim was a fabrication. Gilliam charged Duncan, and Duncan paid, an extra $200.00 above the $800.00 rent agreed to in the lease and permitted by HRA. During McNeill’s testimony Gilliam attempted to admit a series of bills from Optimum, McNeill’s cable and internet provider. The court admitted the documents only insofar as it found them authentic and thus established that McNeill received service from Optimum. But it denied Gilliam’s request to admit them for the truth of the information contained in them, namely the various services that were provided and the amounts billed to McNeill each month (see Wern v. D’Alessandro, 219 AD2d 646, 647 [2d Dept 1995] [lower court improperly admitted credit card receipts and airline tickets under business record exception to hearsay rule]). However, even if the court had admitted the documents for the truth of how much was billed each month (cf. Elkaim v. Elkaim, 176 AD2d 116, 117 [1st Dept 1991] [bank records produced under court order were properly admitted as "perfectly trustworthy" even absent business record foundation]), they would not support a claim that Duncan paid $200.00 per month for internet and cable. McNeill provided bills for nine different months. The monthly amount charged varied from month to month. But save for the first month, which included some one-time charges (such as $80.00 for “addl set install,” at no point did the total monthly charge exceed $200.00. The highest was $185.10. Duncan conceded that Gilliam did send her a text on June 10, 2019, informing her that she would not be renewing the lease (which had expired at the end of May). But Gilliam accepted rent for July and did not attempt to terminate Duncan’s tenancy until after Duncan refused to pay the extra rent. In rebuttal, Gilliam testified that during the previous year Duncan had been involved in three confrontations with another tenant of the second-floor apartment: two of them involving Duncan’s smoking, and the other concerning common use of the refrigerator. According to Gilliam, these were the reasons that she had notified Duncan on June 10th that she would not be renewing her tenancy. However, in view of Gilliam’s fabrication regarding the side deal, the court does not find this explanation credible. Also, although McNeill lives in the building as well, she gave no testimony concerning any of these incidents. DISCUSSION Real Property Law §223-b(1) prohibits a landlord from serving a notice to quit or commencing any kind of eviction action or proceeding in retaliation for certain protected acts by the tenant. As relevant here, these include “actions taken in good faith…to secure or enforce any rights under the lease or rental agreement” (Real Property Law §223-b[1][b]). The court must enter judgment in favor of the tenant in an eviction action or proceeding “if it finds that the landlord is acting in retaliation for any” of the protected acts (id. §223-b[4]). Where the tenant establishes that the notice to quit was served, or the proceeding was commenced, within a year after “the tenant in good faith took action to secure or enforce against the landlord or his agents any rights under the lease or rental agreement,” there is a “rebuttable presumption” created that the landlord is acting in retaliation (id. §223-b[5]). “The effect of the presumption shall be to require the landlord to establish a non-retaliatory motive for his acts by a preponderance of the evidence” (id.). Here, Duncan’s refusal to pay the $200.00 side deal payment, which payment contradicted the written lease agreement, and which was prohibited by HRA, was a “good faith action to secure or enforce” against Gilliam her rights under their lease agreement. That action took place less than a year before Gilliam’s service of the notice of termination and commencement of this proceeding. Therefore, a rebuttable presumption was created that Gilliam was acting in retaliation for Duncan’s refusal to pay the side deal amount. Duncan was therefore required to establish a non-retaliatory move for her acts, which she failed to do. Accordingly, the court finds that Gilliam commenced this proceeding, and served the underlying notice of termination, in retaliation for acts protected under Real Property Law §223-b. CONCLUSION In view of the foregoing, it is ORDERED that judgment shall be entered in favor of Respondent Amanda Duncan, and further ORDERED that the petition is dismissed. Dated: May 5, 2020
