PROCEDURAL HISTORY & TRIAL This illegal lockout proceeding brought pursuant to RPAPL §713(10) was commenced in September 2023. Counsel for respondent appeared on October 4, 2023 and following an additional adjournment for petitioner to obtain counsel, a trial was held on October 31, 2023. Both parties were represented by counsel at the trial. At the conclusion of the trial, the court reserved decision. At the trial, petitioner Harold P. Knowles testified. Mr. Knowles testified that he had resided at the subject premises, in Jamaica, New York, since July 2007. He stated that he was the former owner of the subject premises and continually resided in the premises from July 2007 through September 7, 2023. He denied ever receiving a notice to vacate or a notice from a city marshal. Mr. Knowles testified that he had not had access to the subject premises since September 7, 2023, and that his keys no longer worked. When asked if he ever moved his belongings out of the subject premises, Mr. Knowles replied that he did not. He stated that he had been staying “from location to location,” including in Albany and New Jersey. He stated that he had incurred costs for travel and food but had no documentation. Mr. Knowles next testified about mail that he received at the subject premises. He testified about a Con Edison (hereinafter “Con Ed”) electricity bill, which was admitted as petitioner’s Exhibit 1. Mr. Knowles stated that the bill contained the subject premises address and had a billing date of November 13, 2023. Mr. Knowles also testified about a mailing from the state Department of Motor Vehicles (DMV), dated September 15, 2023. He stated that it was addressed to the subject premises. The DMV document was admitted as petitioner’s Exhibit 2. On cross-examination, Mr. Knowles was first asked about the Con Ed bill. He confirmed that the outstanding balance through the last billing period was $1,307.57. He was asked if the electric bill had been outstanding for a while. He replied that he had been between jobs and unable to keep up with payments. He stated that he was not afraid of his electricity being shut off since he had made an “agreement” with Con Ed whereby he would pay what he could to avoid shutoff. He stated that his last payment to Con Ed may have been in July 2023. He acknowledged that he was concerned about the electricity bill but testified that he needed to keep using electricity as a necessity. He stated that he would still incur interest charges and late fees because of his outstanding balance. When asked if he was up to date with his other utility bills for the subject premises, Mr. Knowles replied that he was not or that they were not in his name. He stated that the gas bill was not in his name but was instead in the name of his deceased father. He stated that the water bill was in his name but that he was behind because of a “hardship.” He also stated that he did not recall when he last paid the water bill. When he was asked if his property was foreclosed, Mr. Knowles replied that it was. In response to a question about notices received from respondent 21st Mortgage Corporation. He stated that he received one letter with a postmark of September 7, 2023, as well as two unenveloped notices with information pertaining to the foreclosure. Mr. Knowles was next questioned about other properties that he owns. He acknowledged that he had owned a property on Beach Channel Drive in Far Rockaway since 2007. He stated that he only lived at that property in 2012, when the boiler was broken and his father, who was in his 90s, was living there. He explained that he was there to assist his father. Currently, however, he stated that the property was in foreclosure and was occupied by a renter who was not related to him. He also stated that he owns a property in Maryland. He confirmed that he is behind on electricity payments at both properties. Mr. Knowles was asked where he has resided since September 7, 2023. He replied that he was staying outside of Albany at times. He stated that it was 3 1/2 hours away from New York City. He stated that he was not renting and did not own the property outside Albany. Additionally, he stated that he has stayed a couple of nights with his child’s mother and his child in New Jersey. Mr. Knowles was also asked if he owns automobiles. He replied that he owns a Hyundai Sonata and a Chrysler Town and Country. He also acknowledged that he owned a Kia and Plymouth, but that they were not registered. He stated that the Plymouth is in the driveway of the subject premises. The last inquiry on cross-examination concerned Mr. Knowles’ relationship with his neighbors near the subject premises. He stated that he knew a Debbie and an Andre who lived adjacent to him. He stated that he speaks to Debbie frequently and had spoken to Andre the week before. When asked why he did not call them as witnesses, he replied that the neighbors work and he keeps his matters private. On redirect, Mr. Knowles testified that he was not residing at the other properties that he owns. He stated that the Maryland property was not habitable, had no running water, and needed substantial repair. He then stated that the subject premises was his “residence of record.” He explained that he slept and ate there. On recross, Mr. Knowles was asked about his Maryland property. He stated that he did not have any tenants in the property. He explained that the property was built in 1928 and had not been updated. He stated that the water had not been on at the Maryland property for over 10 years. He stated that he maintained an electricity account so that the grass could be cut at the property. Petitioner rested at the conclusion of Mr. Knowles’ testimony. Ruslan Mingazov was called as the sole witness for respondent. He testified that he is employed as a real estate broker for RE/MAX and works as a property manager for respondent. He testified that he is familiar with the subject premises because he visits it every 3-4 weeks. He stated that he logs his visits in a calendar. After his recollection was refreshed with the calendar, he testified that he visited on June 13, 2023, July 12, 2023, August 21, 2023, September 6, 2023, and September 7, 2023. He also testified that he visited about a year before. He explained that in June, he saw a gray minivan in the driveway of the subject premises. Mr. Mingazov next testified that when he went to the subject premises, he took photos of any activity and would knock on the door. He stated that he received no answer in June, no answer in July, no answer in August, and no answer on September 6th. On September 7, 2023, he stated that he went to the subject premises with a locksmith. When they entered, he smelled a “strong and foul odor.” He stated that he had to get an N95 mask before entering again. Upon reentry, he stated that he saw 4 to 5 mice that scattered. He also saw “piles of trash and debris,” dead mice, and old food. He stated that he could not walk freely because there was “garbage everywhere.” He took pictures of the front, back and inside of the property. The photographs were introduced as exhibits (35 total) and were admitted without objection. When asked about damage to the property, Mr. Mingazov stated that there was water damage, mold, and peeling paint. He also reiterated that trash was piled high, on beds, the bathtub, and sink. Mr. Mingazov testified that he has been a property manager for respondent for 7 years and had been a property manager generally for 10 years. He stated that based on his experience, he considered the property abandoned. On cross-examination, Mr. Mingazov confirmed that the lock was broken to enter the subject premises. However, he stated that he and the locksmith knocked before entering. When asked if he had left notices when he had made visits to the subject premises, he replied only that his only job was to report and observe. Finally, Mr. Mingazov testified that he was the one who had taken all the photographs in evidence and that the photographs depicted all rooms in the subject premises. Upon the conclusion of Mr. Mingazov’s testimony, respondent rested. Following summations, the trial concluded. DISCUSSION Under RPAPL §713(10), a special proceeding may be maintained where “[t]he person in possession has entered the property or remains in possession by force or unlawful means and he or his predecessor was not in quiet possession for three 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.” At the trial, petitioner established that he was peaceably in actual possession of the subject premises at the time that respondent forcibly changed the locks. Petitioner credibly testified that he entered possession as the former owner and that the property had been foreclosed. He also demonstrated that he maintained an electricity account at the subject premises and continued to receive mail there until he was locked out. Moreover, his testimony was consistent that he continued to reside in the premises after the foreclosure and nothing in the trial record indicated that he had ceded exclusive possession of the subject premises to any person or entity at any time before the locks were changed. On this point, the law is well established that a licensee cannot maintain an illegal lockout proceeding (see Coppa v. LaSpina, 41 AD3d 756, 759 [2d Dept 2007]; Li Jen Yao v. Steele, 79 Misc 3d 131[A], 2023 NY Slip Op 50788[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]; Andrews v. Acacia Network, 59 Misc 3d 10, 12 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). A primary indicium of a license is lack of exclusive possession of the relevant premises (see Qian ‘Lily’ Zhu v. Xiao ‘Joy’ Hong Li, 70 Misc 3d 139[A], 2021 NY Slip Op 50089[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Andrews, 59 Misc 3d at 11-12; Federation of Orgs., Inc. v. Bauer, 6 Misc 3d 10, 12 [App Term, 2d Dept, 9th & 10th Jud Dists 2004]). The Appellate Term, Second Department has recently held that a former owner in possession is not subject to eviction as a licensee without a specific description of how a license, with attendant absence of exclusive possession, was created (see 130-50 228th, LLC v. Moseley, 77 Misc 3d 139[A], 2022 NY Slip Op 51372[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022] [Citing approvingly Wok Kwan Chu v. Lee, 39 Misc 3d 147[A], 2013 NY Slip Op 50859[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013], which held that a license was not proven where the occupants did not lack exclusive possession]). Therefore, as there was no demonstration that petitioner was a licensee of respondent and insofar as petitioner continued to exclusively possess the subject premises after the foreclosure, the court finds that petitioner has sufficient standing to maintain this summary lockout proceeding. In the context of a former owner in possession after a foreclosure, New York law provides multiple remedies at law for the recovery of possession by a new owner. Real Property Law (RPL) §221 allows for a court to order that a new owner be put in possession via the sheriff through a writ of assistance (see Lincoln Sav. Bank v. Warren, 156 AD2d 510, 511 [2d Dept 1989]). Additionally, Real Property Actions and Proceedings Law (RPAPL) §713(5) permits an owner following a foreclosure sale to bring a summary evicton proceeding against occupants in possession (see Plotch v. Dellis, 60 Misc 3d 1, 3-4 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Therefore, to permit a former owner in exclusive possession to be removed without legal process would be wholly contrary to the legal structure set up to afford due process in these circumstances (see e.g. Goshen Mortgage, LLC v. Cumberbatch, 219 AD3d 806, 807 [2d Dept 2023] [Affirming on due process grounds the denial of a writ of assistance against occupants who were not named in a foreclosure and not subject to a summary eviction proceeding]) Respondent’s defense at trial was effectively that petitioner had abandoned the subject premises. The court notes that respondent did not interpose any answer in this special proceeding (cf. CPLR §402). Nonetheless, the court does not find that respondent established at trial that petitioner abandoned the subject premises (see Tangiyev v. Telt, 71 Misc 3d 1213[A], 2021 NY Slip Op 50373[U], *4 [Civ Ct, Kings County 2021] [Burden of proof of abandonment is on the party seeking to establish it]). While respondent showed that the subject premises was kept in a haphazard and potentially unsanitary condition when the locks were changed, its witness acknowledged that a car was in the driveway (which petitioner stated was his during his testimony) and that there were furnishings, including a bed, in the premises. The photographs admitted into evidence depicted toiletries in the bathroom, clothing hanging from the bed in a bedroom, and a space heater, chair, and couch in what appears to be the living room. There is a significant amount of trash and debris in the photos as well. However, the court does not find that the photos evince an abandoned property.1 Abandonment may be found upon evidence of “doors unlocked, [and a] house substantially empty” (Salem v. US Bank N.A., 82 AD3d 865, 866 [2d Dept 2011]) and/or “surrender of keys and physical relocation of business or personal items previously kept at the subject property” (Patton v. Modern Asian, Inc., 208 AD3d 1491, 1492 [3d Dept 2022]). The failure to pay bills, including utility bills, alone, does not connote abandonment (see Matter of Lee v. Ho-Park, 16 AD3d 986, 987 [3d Dept 2005]). Respondent presented no evidence that petitioner ever relinquished his keys or took any affirmative acts to communicate an intent to abandon the subject premises. Moreover, his personal property, including a car and personal furnishings and clothing, remained in the subject premises. While petitioner acknowledged that he owned other properties in Far Rockaway and Maryland, neither his testimony nor respondent’s evidence demonstrated that he was residing at either property, or any other property other than the subject premises, when the lockout occurred. Finally, while not raised by respondent, the court does not find that restoration of petitioner to possession would be futile in these circumstances (cf. 110-45 Queens Blvd. Garage, Inc. v. Park Briar Owners, Inc., 265 AD2d 415, 416 [2d Dept 1999]; Bernstein v. Rozenbaum, 20 Misc 3d 138[A], 2008 NY Slip Op 51558[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). While respondent may well prevail in an ejectment action or eviction proceeding against petitioner, the equities balance in favor of petitioner, who credibly testified that he had been in possession for over 15 years at the time that the lockout occurred. Moreover, for the court to sanction self-help in these circumstances would undermine the legislative creation of remedies for owners to regain possession after foreclosure (see In re Warren A., 53 AD2d 400, 402 ["We should not ascribe to the Legislature an intent which renders the language of [a] statute surplusage and without significance.”]). Accordingly, petitioner is granted a final judgment of possession against respondent 21st Mortgage Corporation (see RPAPL §749; Parker v. Howard Ave. Realty Corp., 56 Misc 3d 15, 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Respondent is also directed to restore petitioner to possession of the subject premises forthwith (see Watson v. NYCHA-Brevoort Houses, 70 Misc 3d 900, 904 [Civ Ct, Kings County 2020]). The parties are directed to pick up their exhibits within 35 days or they may be destroyed at the court’s discretion in compliance with DRP-185. This Decision/Order will be emailed to the parties’ attorneys. THIS CONSTITUTES THE DECISION & ORDER OF THE COURT. Dated: November 3, 2023
