DECISION/ORDER Petitioner filed this order to show cause (“OSC”) in lieu of a notice of petition on or about May 13, 2020, seeking to be restored to possession of Apartment #3L, an apartment located at 875 Morrison Avenue, Bronx, New York. Respondents appeared by counsel and interposed an answer asserting a general denial and several counterclaims. When Petitioner’s counsel failed to appear on the first day the proceeding was scheduled to be heard, the Court adjourned the OSC to May 26, 2020 for a hearing on Petitioner’s claims. When no resolution could be reached, the Court held a hearing over Skype after the witnesses were sworn in and during which Petitioner and Respondent’s agent, Nathan Dessler, testified in support of their respective positions. Petitioner testified that the tenant of record for the subject apartment was Karen Newman and that they were together as a couple. He and Ms. Newman began staying together at the apartment sometime toward the end of last year, but that at the time he continued to occupy an apartment located at 2720 Grand Concourse. Petitioner testified that he did not officially move into the apartment until the end of February 2020 when Ms. Newman gave him a key fob which they obtained together at the management office and by that time all of his possessions were moved into the subject apartment. Petitioner testified that he obtained the key fob to the building from Ms. Newman and that it gives building residents access to the front door, the side door as well as the back door of the building. Sometime in March 2020, Ms. Newman contracted COVID-19 and passed away. That month, he received communication from the management company and spoke to Nathan Dessler who asked him to either leave the apartment or fill out and sign some papers. He recalled that the conversation took place while he was standing in line to get tested for COVID-19 and that Respondent was also trying to gain access to the apartment at that time. Petitioner testified that his ability to access the building changed on April 20, 2020 when he returned to the apartment and the key fob did not work anymore. Now he is only able to gain access to the building with the assistance of other building residents who are familiar with him and this caused other issues such as Ms. Newman’s daughter “popping up” at the building angry and telling him to leave the building. Petitioner then testified that since his last communication with management, he has not gone to management nor spoken to Mr. Dessler to try to get his key reactivated. The only other communication he received from Respondent is a 10-day notice to quit that arrived in the mail. Lastly, Petitioner testified that he did make a prior attempt to have this issue resolved in court. On cross-examination, Petitioner clarified that he and Ms. Newman got together in August 2019 but had known each other for years before. Prior to moving into the subject apartment, he occupied apartment #501 which is an apartment located at 2720 Grand Concourse, Bronx, where he was occupying the apartment with someone else. Then sometime in November 2019, he and Ms. Newman decided that they wanted to live together but he did not physically move into the subject apartment until the end of February 2020 and Ms. Newman passed away the following month in March 2020 but Petitioner was unsure about when exactly because her daughter did not give him that information. Petitioner denied changing the locks to the subject apartment and testified that he is currently the occupant of the subject apartment which he now occupies alone since the death of Ms. Newman and acknowledged not having a lease for the apartment. Petitioner further testified that since Ms. Newman died, he has spent his nights including the two nights prior to his testimony at the apartment and goes out when he has to. Petitioner also testified that he did not change the locks to the apartment, and that he received the key fob from Ms. Newman and was present when they obtained the key fob together which was sometime in March 20201. Respondent then called Nathan Dessler as its witness. Mr. Dessler testified that he has been employed by The Park Central 1 LLC as the property manager for approximately four years. Mr. Dessler testified that the subject building is a cooperative and a rental property but that the shares appurtenant to the subject apartment are owned by The Park Central 1 LLC. He testified that the tenant of record for the subject apartment is Karen Newman but that Ms. Newman passed away as per the death certificate he received. He testified that Respondent has no record of issuing a key fob to Petitioner, that only Ms. Newman and her daughter had a key fob because they were the only individuals who requested one. Mr. Dessler testified that every key fob must be photo registered and that residents are not permitted to use other residents’ key fobs. Mr. Dessler explained that in order to obtain a key fob, the individual seeking one has to visit the management office, and have a key fob photo registered to him or her which he explained means that the key fob may then only be utilized by the individual registered whose photograph remains on file. If an individual’s photograph is not registered with management, that individual was never issued a key fob. Mr. Dessler added that he did not ask Petitioner to leave the apartment nor did he change the locks to the apartment. On cross-examination, Mr. Dessler testified that Ms. Newman was not permitted to obtain a duplicate of the key fob and confirmed having had conversations with Petitioner since Ms. Newman died. In addition, he testified that the key fobs were deactivated at the direction of Ms. Newman’s daughter, and acknowledged that Respondent has taken steps to commence a holdover proceeding against Petitioner. Petitioner commenced this proceeding pursuant to §713 (10) of the Real Property Actions and Proceedings Law (“RPAPL”) which provides that a special proceeding may be maintained where the person in possession has entered the property or remains in possession by force or unlawful means and he or his predecessor in interest was not in quiet possession for the years before the time of the forcible or unlawful entry or detainer and the petitioner was peaceably in actual possession at the time of the forcible or unlawful entry or in constructive possession at the time of the forcible or unlawful detainer. In addition, pursuant to §26-521 (a) of the New York City Administrative Code, it 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 days or longer except to the extent permitted by law pursuant to a warrant of eviction or other order of a court of competent jurisdiction or a governmental vacate order. However, this section of the Administrative Code has been held not to provide a vehicle to be restored to possession but rather subject the violator to criminal liability as well as civil penalties. Despite the above, “it is not necessarily the case that every occupant covered by the New York City’s illegal eviction law will be entitled to be restored to possession in an RPAPL §713 (10) proceeding” (Residential Landlord — Tenant in New York 2019 Update §7:9 “Self-help” [Note: online version]). In fact, “a number of courts have held that a licensee without a colorable claim to continued possession is not entitled to restoration to possession after a self-help eviction” (id.) In this line of cases, the appellate courts have found that restoration would be futile despite the use of self-help. For example, in Soukouna v. 365 Canal Corp, 48 AD3d 359 [1st Dept 2008], the Appellate Division affirmed an order of the Appellate Term which modified a judgment of the Civil Court restoring the petitioner in that case to possession of the leased premises and awarded him money damages. The Appellate Division held that although both the Real Property Law and the RPAPL “contemplate court action by landlords seeking to recover premises used by lessees for illegal purposes, restoring petitioner to possession would be futile, because a summary proceeding brought by respondent would result in petitioner’s certain eviction” (id). The Court also reviewed the case law submitted by the parties, including a recent decision by this very Court granting the petitioner in an alleged illegal lockout proceeding a judgment of possession. To be clear, Bascus v. Lake (Civ Ct, Bronx County 2020, 67 Misc 3d 1206 [A]), the petitioner had a colorable claim of possession which stemmed from the actual tenant of record, his mother, hence why restoration was appropriate. However, Section 768 of the RPAPL, a new section added to the RPAPL following the Housing Stability and Tenant Protection Act of 2019 (“HSTPA”) appears to have codified the prohibition against self-help. It provides that it is unlawful 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 or who has entered into a lease with respect to such dwelling except to the extent permitted by law pursuant to a warrant of eviction or other order of a court of competent jurisdiction or governmental vacate order. Here, although the evidence adduced at the hearing established that Petitioner is indeed a licensee of the now deceased tenant of record, the evidence also established that he is in physical possession of the subject apartment. But, meaningful possession cannot be achieved if Petitioner does not have the ability to enter the building. In addition, the fact that he is not the tenant of record leaves him without the ability to obtain a key fob through the process outlined by the managing agent. Moreover, the Court notes that by serving upon Petitioner a predicate notice, Respondent recognizes that by virtue of Petitioner’s status as an occupant of the apartment during this time period it must resort to legal process to remove him. Based on foregoing, Petitioner is granted a final judgment of possession and Respondent is directed to either reactivate Petitioner’s key fob or provide him with a working key fob for the subject building upon receipt of this Court’s order which makes no finding as to Petitioner’s ultimate status. A copy of this order will be mailed/emailed to the parties. This constitutes the decision and order of this Court. Dated: June 2, 2020
