The following papers numbered 1 to 3 were read and considered on the Petitioner-Tenant’s Order to Show Cause. Papers Numbered Order to Show Cause and Affidavits Annexed 1 Affirmation/Affidavits in Opposition 2 Replying Affidavits 3 DECISION AND ORDER On September 21, 2021, Petitioner-Tenant filed an Order to Show Cause pursuant to RPAPL §721[4] seeking to recover access, re-entry and possession as well as treble damages for an alleged wrongful eviction. At the time of filing, Petitioner was not represented by counsel. The Order to Show Cause was signed, and the matter was scheduled for September 23, 2021. On that date the matter was adjourned for lack of service until September 28, 2021. On the return date of September 28, 2021, Respondent agreed to fumigate and exterminate vermin in Petitioner’s unit. Respondent also filed written opposition on this date and the matter adjourned for reply and submission on October 5, 2021. Petitioner alleged that on March 19, 2021 he entered into a written agreement with Respondent-Landlord for 95 Waring Place, Apartment 1F Yonkers, New York. He asserted that he performed all the conditions under the lease and alleged that as of September 13, 2021 he was in lawful possession of his apartment. However, sometime that day the Respondent Landlord or its contractors, agents, servants, or employees wrongfully entered during his absence and without his knowledge or consent and changed the locks to the door of his apartment. He alleged he was unable to enter, and Respondent-Landlord refused upon demand to provide Petitioner with a new key to the locks. Petitioner claimed that his tenancy and right to occupy the subject premises was not lawfully terminated by the Respondent. He reported he never received a Notice to Terminate nor a Notice of Petition and Petition to appear in court. He asserted that he was proceeding by Order to Show Cause as he was homeless and in immediate need of suitable housing. With regard to damages, Petitioner stated that from the date of the lockout to his filing of the Order to Show Cause he has suffered damages and out of pocket expenses in the amount of One Thousand ($1,000) Dollars as a result of Respondent’s conduct and continued to have additional damages at a rate of Two Hundred ($200) Dollars per day. Respondent -Landlord opposed the Order to Show Cause and argued that Petitioner surrendered possession of the property and terminated the tenancy. In support, Respondent annexed a “Letter of Agreement” dated August 20, 2021. The document reads: We the undersigned hereby agree that Mr. Karmatice Charles is in rent arrears in the amount of $6,395.00 plus August rent in the amount of $1,200 for a total of $7,595.00. It is agreed upon by both parties that Mr. Karmatice Charles agrees to vacate the premises as of August 31, 2021 with the understanding that all rents in arrears will be forgiven and the lease renewal effective till 6/14/2022 will be terminated. It is also agreed upon that the security deposit held by the landlord in the amount of $1,200 will not be returned to the tenant rather will be utilized to off set the unpaid rent for August of 2021. If tenant does not vacate the apartment by 5 p.m. on August 31, 2021, this agreement will be null and void. The Agreement is allegedly signed by a representative from Respondent, Petitioner and an un-identified witness. Respondent annexed an Affidavit from its property manager, Joseph Schepisi. Mr. Schepisi alleged that Mr. Charles agreed to vacate the premises in exchange of Respondent’s forgiveness of rental arrears. He further alleged that Petitioner provided him with keys to the apartment. Mr. Schepisi reported that he understood the Petitioner intended to vacate the premises, following a conversation with the Petitioner and his father, regarding Petitioner’s relocation to Syracuse New York. Mr. Schepisi alleged that Petitioner requested Respondent permit the Petitioner to leave his belongings in the unit for a short period of time until Petitioner could make the appropriate arrangements to retrieve them. He further indicated that on three separate occasions he planned to meet: Petitioner for the purpose of retrieving his belongings and that on each of the three occasions, Petitioner failed to appear and “made excuses” when he spoke with him over the phone. Finally, Mr. Schepisi asserted that at no time did the Petitioner indicate his revocation of the agreement or state that he still had possession of the property. Respondent contended that the relinquishment of keys and “Letter of Agreement” demonstrated Petitioner’s intent to vacate the property. Petitioner retained the assistance of Legal Services of the Hudson Valley and counsel submitted a Reply Affirmation in response. Petitioner argued that the Order to Show Cause should be granted and sought the Court vacate, nullify and void any prior agreement between the parties. Petitioner argued it was never his intention to relinquish his ETPA, rent stabilized apartment. Rather, he alleged he believed the “Letter of Agreement” would enable him to qualify for rental arrears from the federal government. He expressed his unawareness of the terms and consequences of the agreement as he did not have the benefit and assistance of counsel. With respect to his alleged surrender of the key, Petitioner acknowledged providing a key to the property manager. However, he indicated the intended purpose was to provide Respondent with access to repair a leak. He further indicated that he has not removed his belongings from the unit and that his intention has always been to remain in his home. Respondent contends that Petitioner surrendered the premises. The burden to establish surrender rests upon the party seeking to establish the claim. Sam & Mary Housing Corp v. Jo/Sal Mkt Corp., 100 A.D.2d 901 [2d Dep't 1984]; Hui Zhen Wei v. 259 East Broadway Associates LLC, 57 Misc.3d 136(A) [App Term 1st Dept 2017]. To succeed on this claim, Respondent was required to establish that Petitioner evidenced an intention to abandon or relinquish the unit and demonstrate either an act or failure to act by the tenant or occupant which carries the implication that the tenant or occupant does not claim or retain any interest in the premises at issue. While a tenant’s “mere change of heart does not provide a sufficient basis meriting the court’s intervention” (124 Realty v. Gonzalez, 11/21/19 N.Y.L.J. 31, col. 1 [App. Term 1st Dep't], Petitioner’s actions indicated a desire to remain in the unit and to void and nullify the “Letter of Agreement”. Petitioner’s counsel argued that the clear language of the agreement provided “if the tenant does not vacate the apartment by 5 p.m. on August 31, 2021, this agreement will be null and void.” Petitioner maintains he did not voluntarily vacate the apartment, rather that Respondent engaged in “self-help” to effectuate the eviction. Petitioner never retrieved his belongings from the unit and failed to show up on three separate occasions to do so. Counsel argued this demonstrates Petitioner’s intention to remain in the unit. The agreement’s terms clearly indicate that Petitioner would have to voluntarily vacate to invoke the agreement. Any other action, or inaction, would nullify it. As Petitioner never vacated the unit, self-help was not appropriate. Petitioner further sought the Court vacate the Letter of Agreement. Stipulations may be set aside to prevent injustice upon a showing of good cause. Grounds include misrepresentation, non-representation, and mistake. See, Matter of Frutiger, 29 N.Y.2d 143 [1971]; Matter of Ruiz v. Rivera, 300 A.D.2d 402 [App. Term 2d Dep't., 2002]; 142 Fulton LLC v. Hyatt, 14 Misc.3d 1223(A) [Sup. Ct. NY 2007]. Courts may also relieve parties of consequences to an agreement “if it appears that the stipulation was entered into inadvisably or that it would be inequitable to hold the parties to it.” Magnolia Metal Co. v. Pound, 70 App.Div. 318 [1st Dept., 1901]. Petitioner signed an agreement without the benefit of counsel. At the time of its execution, no summary proceeding was pending nor were any predicate notices served. Counsel for Petitioner argued that if a proceeding had been filed by Respondent, Petitioner would have been afforded an opportunity to raise meritorious defenses to the action which may have included: a dispute as to the amount of rent owed, financial hardship pursuant to the Tenant Safe Harbor Act, a stay of his case due to filing a Hardship Declaration and a defense and a defense and automatic stay pending an application to the Yonkers Emergency Rent Assistance Program. The “Letter of Agreement”, counsel contends, severely prejudiced Petitioner’s rights when he had defenses that could defeat the action. See, McAvoy v. Chaplin, NYLJ, July 15, 1983, at 13, col 2 [App. Term, 2d Dept]. Courts have vacated stipulations where a tenant was unaware of valid defenses at the time of entering the agreement. See, Sicherman/Pomp v. Jenkins, 149 Misc.2d 678 [N.Y.City Civ. Ct. 1989]. Petitioner signed an agreement in which rent arrears in the amount of $7,595 would be waived in exchange for Petitioner’s vacatur of the apartment by August 31, 2021. Petitioner alleged he was unaware of what he was signing and. believed he was signing a document to obtain assistance from the federal government. As noted by Petitioner’s counsel, the document was signed out of court when no nonpayment summary proceeding was pending. Further, Petitioner provided Respondent with a key to the unit, although the parties offer contrary explanations. However, there is no dispute that Petitioner’s belongings remain in the unit. Respondent acknowledged that Petitioner failed on three separate occasions to retrieve his belongings. Counsel argued in the alternative that even assuming Petitioner understood the terms of the agreement, the court may vacate same as it is harsh and unjust. Bussing c. Caligiuru, 65 A.D.2d 764 [2d Dep't 1978]; Solack Estates Inc v. Goodman, 102 Misc.2d 504 [App. Term 1979]. Petitioner had an ETPA lease through June 14, 2022 and at the time of executing the agreement, owed less than six months rent. Counsel contends that given the eviction moratorium and a pandemic spanning over 19 months, owing less than 6 months of rent is not egregious, especially when there are numerous resources available such as the Yonkers Emergency Rent Assistance Program. Considering all the facts and circumstances, the Court finds Petitioner did not voluntarily surrender the apartment and that there are sufficient grounds to vacate the “Letter of Agreement”. The execution of the agreement was made out of court, when no summary proceeding was pending and without the benefit of counsel. Petitioner insists the key was not a surrender or abandonment but rather, to facilitate repairs. The Court finds Petitioner “[h]as invertedly, unadvisedly or improvidently entered into an agreement which [] may work to his prejudice.” Matter of Frutiger, 29 N.Y.2d 134 [1971]; see also, Cabbad v. Melendez, 102 Misc.2d 504 [App. Term. 1st Dept, 1981]; Solack Estates Inc. v. Goodman, 1-2 Mise.2d 504 [App. Term 1st Dep't. 1979] Aff’d 78 A.D.2d 512 [1st Dep't., 1980]. Turning then to the Petitioner’s allegations regarding the unlawful eviction, a tenant should only be evicted by way of a legal proceeding. RPAPL §711. In the above matter, no proceeding was commenced, and no predicate notice served. RPAPL §853 provides: “If a person is disseized, ejected, or put out of real property in a forcible or unlawful manner, or, after he has been put out, is held and kept out by force or by putting him in fear of personal violence or by unlawful means, he is entitled to recover treble damages in an action therefore against the wrong-doer,” Respondent engaged in self-help. However, Respondent argued its actions were in reliance on the “Letter of Agreement” in which Petitioner agreed to vacate. There was no showing here that the Respondent used force or violence. Nor does Petitioner allege that Respondent engaged in harassment or that Respondent was attempting to evict Petitioner for economic gain. The Court also considers the Respondent’s attempts to arrange for Petitioner to retrieve his belongings, which appear to remain in the unit to this day. Petitioner sought treble damages of $1,000 plus $200 per day for each day he was out of possession of the apartment. Under RPAPL 853, treble damages are discretionary. While Petitioner alleged he suffered damages, Petitioner has failed to substantiate same. “To arrive at the amount of treble damages, there must first have been ascertainable compensatory damages, which have not been substantiated.” Smart Coffee, Inc. v. Sprauer, 71 Misc.3d 193, 206 [2021] citing Mannion v. Bayfield Development Co., 134 Misc.2d 1060 [Sup. N.Y. Co. 1987]; O’Hara v. Bishop, 256 A.D.2d 983 [3rd Dept. 1998]. Thus while the Court finds the eviction was jurisdictionally defective and unlawful, considering facts and circumstances of this particular case, and the stipulation entered between the parties, the Court finds that an award of damages excessive. This branch of the Petitioner’s Order to Show Cause is accordingly denied. Petitioner’s Order to Show Cause is granted to the extent that Petitioner is granted access to the unit. Respondent is directed to provide Petitioner a new set of keys to effectuate this purpose upon exhibition by Petitioner of a copy of this Decision and Order. Accordingly, it is hereby ORDERED, that Petitioner-Tenant’s Order to Show Cause is granted to the extent that Petitioner-Tenant is awarded possession of apartment 1F located at 95 Waring Place, Yonkers New York pursuant to RPAPL 721[4] and [10]; and it is further ORDERED, that Respondent-Landlord shall provide Petitioner-Tenant access, re-entry and possession of Apartment 1F located at 95 Waring Place, Yonkers New York: and it is further ORDERED, that Respondent-Landlord shall provide Petitioner a new key to the unit upon exhibition by Petitioner or his attorney of a copy of this Decision and Order. The foregoing constitutes the Decision and Order of the Court. Dated and Entered: October 14, 2021
