Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered Order to show Cause and Affidavits /Affirmations annexed NYSCEF Doc#: 20 Answering Affidavits/ Affirmations Reply Affidavits/ Affirmations Memoranda of Law Other Decision and Order Upon the foregoing cited papers, the Decision and Order on the Movant, Mr. Steward’s, Order to Show Cause to Restore to Possession is as follows: The Petitioner, 93 Alaska LLC, instituted this holdover proceeding against the tenant, GILSHELDON HOLMAN and the undertenant, JAMES MILES, to recover possession of a commercially zoned unimproved lot located at 93 Alaska Street, Staten Island, New York (the “Premises”). Mr. Holman and Mr. Miles used the Premises for commercial, not residential, purposes. Mr. Holman appeared and entered a Stipulation of Settlement on November 3, 2022 that included a judgment of possession. Mr. Miles did not appear and was adjudicated to be in default. A separate Judgment of Possession was granted against Mr. Miles on December 15, 2022, however, execution was stayed through October 31, 2023 in accordance with the terms of the Stipulation of Settlement entered into with Mr. Holman. The petition did not mention any other tenant on the Premises, and no one else came forward to object to the proceeding. Counsel for the Petitioner filed an affirmation with the Court on September 8, 2023 attesting to the failure of the Respondent Holman to comply with the terms of the Settlement Agreement. The Court issued a warrant of eviction on October 5, 2023 to dispossess Respondent Gilsheldon Holman from the Premises. On November 30, 2023, the Court issued a warrant of eviction to dispossess Respondent James Miles from the Premises. The tenants were evicted by the NYC Marshall on January 10, 2024. The movant, GREGORY STEWARD, applied to be restored to the Premises on February 16, 2024, more than one month after the eviction. Mr. Steward alleged that he resided at the Premises for more than one year prior to the eviction in a camper or recreational vehicle (hereinafter referred to as a camper) in the unimproved lot. The lot was used to repair automobiles and trucks, with scrap parts and scrap metal around the lot. Allegedly, there was no building on the lot. The Factual Background The Court ordered a hearing to be held to give Mr. Steward the opportunity to prove his relationship to the premise, and whether he had a claim to a legal occupancy of the premise. At the hearing held on March 7, 2024, Mr. Steward testified that prior to the eviction he was living in a camper in the vacant lot without the knowledge of the owner, Mr. Cardinale. Mr. Steward acknowledged that of the approximately 25 times that he spoke with the owner of the unimproved lot, he may have mentioned his occupancy at the Premises one (1) time to Mr. Cardinale. Mr. Steward explained he hid his occupancy from the owner at the urging of Mr. Holman. Mr. Steward acknowledged that he does not have a lease, that he occasionally paid money to Mr. Holman in lieu of rent but had no record of making any payment. He alleged to have a title to the camper trailer. Mr. Steward produced a title document however the document was not in his name. Mr. Steward testified he receives his mail and does his laundry at the apartment of Mr. Williams, a friend, who lives on the adjacent block of Barker Street. Mr. Steward testified that he stored his belongings in the camper, including his clothes. He admitted there are no utilities in the trailer. He acknowledged there is no heat, hot water or sewerage system attached to the camper. He alleged to use a generator for electricity and a space heater, and occasionally gets buckets of water from the fire hydrant for use in the camper. He also alleged he has emptied the camper’s sewage tank by walking it from the trailer down the street on a dolly to an auto salvage yard. However, while Mr. Steward had an explanation for the logistics of how he could live in a trailer, he did not have any evidence to support any of this testimony. Mr. Steward said he had witnesses who could testify that he lived on the property, but he did not bring them to Court. He did have letters from some of them, but they were not under oath, nor subject to cross-examination. Vito Cardinale testified that he is the sole member of 93 Alaska Street LLC. He also owns and works at the bakery that is adjacent to the vacant lot. Mr. Cardinale testified that he knows Mr. Steward from seeing him in the street in the neighborhood moving scrap metal. He testified he did not have any knowledge that Mr. Steward was living on the property. The only tenants he knew of were Mr. Holman and Mr. Miles. He testified he never heard a generator operating and had no indication anyone was living on the property. Mr. Cardinale testified that after Mr. Steward filed his Order to Show Cause, Mr. Cardinale went to the property and inspected the camping trailer on the property. The property was used as an auto salvage yard and to work on cars. Mr. Cardinale testified that the camper trailer was filled with auto parts and scrap metal and was not habitable. He took pictures of the exterior of the camper trailer which show there is no door to the camper, there is a tarp over the top of the trailer to protect it against the elements, and scrap metal parts lying all around the outside of the camper. Mr. Steward admitted there was a tarp over the camper to keep the rain and wind out of the camper., and that the camper contained the auto parts and scrap metal but alleged he could live among them. The Decision on the Movant’s Motion to Restore The Movant, Mr. Steward, was not a party to the holdover proceeding. He was not identified as a tenant or subtenant in the proceeding. Pursuant to RPAPL, Mr. Steward may have standing if he can prove he is a “person forcibly put out or kept out” of the property RPAPL §721 (4). The first issue to be considered by the Court is the legal status Mr. Steward seeks to return to. Mr. Steward did not testify to a tenancy of a habitable premise. He does not present any indicia of tenancy. He may have been permitted to be on the property by Mr. Holman, one of the tenants, creating a license status. However, that license was terminated when Mr. Holman was legally evicted by the Marshall. Mr. Steward did not present any evidence to show he was a licensee of the owner of the property. Finally, there is nothing showing any license continued after the eviction. When the Marshall evicted Mr. Holman and Mr. Miles from the vacant lot, the gate to the Premises was padlocked for more than one (1) month before Mr. Steward moved to be restored to possession. He testified that he didn’t know that he could ask the Court to let him back in. It was Mr. Holman who eventually persuaded Mr. Steward to move to be restored to the Premises. The NY Real Property Action and Proceeding Law (RPAPL) §768 states: “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 consecutive 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…” RPAPL §768(1)(a). To determine if Mr. Steward can be restored to the premise, the Court must decide whether the camper, where he seeks to reside, can be considered a “dwelling unit;” whether Mr. Steward had any lawful claim to occupancy of the property; and whether he can prove he resided in the camper for more than 30 days prior to the eviction. The RPAPL does not define a “dwelling unit.” The New York City Administrative Code §26-522(a)(1) defines “Dwelling Unit” as “such term is defined in subdivision 13 of Section 27-2004 of the housing maintenance code.” The NYC Housing Maintenance Code §27-2004(13) states: “Dwelling unit shall mean any residential accommodation in a multiple dwelling or private dwelling.” A “private dwelling” is likewise not defined in the Housing Maintenance Code, however it is defined in the Real Property Tax Law as: An owner-occupied building or structure, with the land on which the same is constructed, intended for residential use and occupancy by one or more families living independently of each other with separate cooking facilities, which is not a multiple dwelling within the meaning of the multiple dwelling law…” NY RP Tax Law 421-b (2)(a). The NY Executive Law Article 18, known as the New York State Uniform Fire Prevention and Building Code Act defines a “mobile home” to mean: A movable or portable unit designed and constructed to be towed on its own chassis, comprised the frame and wheels, connected to utilities, and designed and constructed without a permanent foundation for year-round living.” NY Exec §372(13). [Emphasis added] Both sides acknowledge there is a camper parked on the unimproved lot owned by the Petitioner and that the camper does not have any utilities (running water, sewer, electric, gas, etc.) attached to it. The parties also agree that the camper is without a door, it leaks and is covered with a tarp to protect the camper from the weather elements (rain, wind, snow, etc.). It is the opinion of this Court that the camper which Mr. Steward is petitioning to occupy is not a private dwelling as intended by the Real Property Tax Law, nor by the NYC Maintenance Code. It is also not a “mobile home.” since it is not connected to utilities, as described in the NY Executive Law. There is also no testimony or evidence that the owner of the property rented or permitted Mr. Steward to occupy the camper as a dwelling unit. There is testimony and pictures demonstrating the premise is a fire and health hazard. If Mr. Steward were to use an electric space heater in the camper as his only source of heat, there would be a substantial risk of a fire. Given the description of a camper filled with automobile parts and other debris, a fire in the camper would be life threatening. Without running water and sewer utilities in the camper, there is a substantial health risk with any extended occupancy. It would be unconscionable for the Court to permit Mr. Steward to occupy the camper with these hazards. The Court also finds, based upon the record from the hearing, there is no evidence to prove that Mr. Steward was residing at the unimproved lot. While he testified regarding clever or inventive ways to account for the necessities of living in the space, he did not produce any admissible evidence to demonstrate that he was actually residing in the camper. He did not produce any evidence of tenancy, nor evidence that he was a licensee of the Premises. If this Court were to assume Mr. Steward was a licensee of Mr. Holman, then his license would have ended with the legal eviction of Mr. Holman by the Marshal. There is no evidence that any license was granted by the owner of the property to allow Mr. Steward to occupy the premise. Furthermore, any assumed license Mr. Steward had with the Mr. Holman was abandoned by Mr. Steward when Mr. Holman was legally evicted, and Mr. Steward waited more than 30 days to petition the owner or Court to be restored to the Premises. Finally, the Court finds Mr. Steward did not have a lawful occupancy of the Premises. He admitted he hid his alleged occupancy from the owner of the Premises, implying he knew such an occupancy would not be permitted by the owner. The Movant does not allege that Mr. Cardinale took any action in violation of RPAPL §768(1)(a), namely: (i) Using or threatening the use of force to induce the occupant to vacate the dwelling unit, (ii) engaging in a course of conduct which interferes with or is intended to interfere with or disturb the comfort, repose, peace or quiet of such occupant in the use of or occupancy of the dwelling unit, to induce the occupant to vacate the dwelling unit including, but not limited to, the interruption or discontinuance of essential services; or (iii) engaging or threatening to engage in any other contact which prevents or is intended to prevent such occupant from the lawful occupancy of such dwelling unit…RPAPL §768(1)(a)(i-iii). RPAPL §768(b) provides that it will be unlawful for an owner of a dwelling unit to fail to restore the occupant to the unit if the owner committed any of the unlawful acts set forth in RPAPL §768(1)(a). In this instance, the Movant has failed to demonstrate that he lawfully occupied the premises, nor did he demonstrate that the owner of the premises employed any of the prohibited activities set forth in RPAPL §768(1)(a). Therefore, the criteria required to restore the Movant to the property, namely that the premise be a “dwelling unit,” that the occupant had prior “lawful occupancy,” that the owner dispossessed the occupant through the “use of force, threats or interference with the comfort or repose of the occupant,” have NOT been proven in this matter. RPAPL 768 For that reason, the Movant’s motion must fail. Finally, given the inability of the Movant to prove a lawful occupancy, “restoring the [movant] to possession would be futile, because the [Petitioner] would prevail in a summary proceeding to evict the [movant]” (Matter of 110-45 Queens Blvd. Garage Inc. v. Park Briar Owners, Inc. 265 A.D.2d 415, 696 N.Y.S.2d 490 [Supreme Court, App. Div. Second Dept., 1999], citing Wagman v. Smith, 161 A.D.2d 704, 555 N.Y.S.2d 839, [Supreme Court, App. Div. Second Dept., 1990]). In this matter Mr. Steward is, at best, a licensee whose right to use the Premises had expired and whatever holdover rights he may have had were terminated by the eviction. It would be futile to restore Mr. Steward to this commercial property just to have him evicted shortly thereafter in another proceeding. Id. However, if Mr. Steward believes he was wronged by the eviction, he may still maintain a claim in Civil Court for damages due to the alleged forcible reentry. This Court will not address the merits of such a claim at this time. Therefore, the Court hereby Orders that if the Movant has personal belongings remaining on the property, the parties are to make arrangements for the Movant to recover the personal property, but Mr. Steward is not permitted to occupy the property. If Mr. Steward has any difficulty recovering the property he should notify the Court immediately to receive an access order. Accordingly, the Order to Show Cause to Restore the Movant to the Premise is DENIED. This is the Decision and Order of the Court. Dated: March 18, 2024
