Opinion
No. 62628/13.
09-03-2014
Rodnei FERBY, Petitioner, v. JONERO, LLC, Respondent.
Petitioner Pro–Se. Tremer & Tremer, P.C., by Gary Tremer, Staten Island, N.Y., for Respondent.
Petitioner Pro–Se.
Tremer & Tremer, P.C., by Gary Tremer, Staten Island, N.Y., for Respondent.
Opinion
Harriet L. Thompson, J.
This case involves a landlord and tenant relationship. It has quite a history. It begins as stated below when the Petitioner (hereinafter referred to as “FERBY” as the tenant) and JONERO, LLC. (as the landlord) entered into a written lease agreement to let a commercial store on the second floor of the premises known as 579 Fifth Avenue, “the front portion of the second level of the property”, Brooklyn, New York. The purpose of the rental agreement was for FERBY to construct and develop a “high-end” beauty salon.
The four-day hearing of this case had a tremendous emotional and financial impact on both parties; there is even a criminal court action pending between the parties.
Factual and Procedural History
On December 10, 2010, before a Notary Public, Nelly Vidal, as landlord, and RODNEI FERBY, as tenant, entered into a 5 year lease, which commenced on December 15, 2011 and terminated on December 14, 2016, for the development of an upscale beauty salon. The lease agreement, specifically, paragraph 7 of the Rider thereto, states that “the premises is for commercial use only and not for living or sleeping quarters.”
As shown from the testimony below, FERBY was undisputedly undercapitalized to complete this commercial venture. Notwithstanding his covenants in the lease agreement, his financial inability to pay for the costs of certain renovations and repairs to the subject premises led to his eviction from the front salon.
This Court's review of the Commercial Landlord and Tenant proceeding under index number 079354/2012, disclosed the following facts. On June 15, 2012, JONERO, LLC and Nelly Vidal commenced a commercial summary proceeding against FERBY d/b/a Flourish Hair Salon based on nonpayment of rent in the amount of $11,176.28. The petition alleged the sums due and owing as follows: Monthly rent at $1,890.00 for the months of January 2012, February 2012, April 2012, May 2012, and June 2012; rent for March 2012 at $600.00; water and sewer charges for $150.22; and real estate taxes in the amount of $976.06. The petition was verified by Nelly Vidal and was commenced by the Law Office of Tremer & Tremer, P.C. of Staten Island, New York, the attorney for JONERO, LLC in the proceeding.
The Respondent appeared pro se and after trial, the Hon. Reginald Boddie issued a Decision and Order, dated December 3, 2012, in which it was determined that JONERO, LLC was entitled to a final judgment in the amount of $13,726.28 against FERBY with the issuance of the warrant of eviction stayed 10 days. The court found that FERBY owed $12,600.00 through November 30, 2012, as follows: $1,800.00 for February 2012; $1,800.00 for April 2012; $1,800.00 for May 2012; $1,800.00 for June 2012; $1,800.00 for July 2012; $1,800.00 for August 2012; $1,800.00 for September 2012 and $1,800.00 for November 2012; $150.22 for water and sewer charges and $976.06 for real estate taxes. Hence, a judgment was entered in favor of JONERO, LLC and Nellie Vidal for $13,726.28.
According to the evidence presented herein, on January 31, 2013, FERBY was evicted from the second floor front by New York City Marshall Kenneth J. Giachetta.
On March 12, 2013, FERBY, by counsel, submitted an Order to Show Cause to this Court seeking to be restored to possession of “the second floor rear of the premises known as 579 Fifth Avenue, Brooklyn, New York” made returnable on March 28, 2013 at 10 a.m. in Commercial Part 52.
The motion was adjourned to April 2, 2013. It appears that the adjournment was based on court error. On April 2, 2013, after extensive settlement negotiations, the parties could not amicably resolve their differences and the case was adjourned to April 9, 2013 at 2:30 p.m. for a hearing on the merits.
On April 9, 2013, once again after substantial conference between the parties, settlement negotiations failed and the hearing ensued as more fully stated below.
The Order to Show Cause states that FERBY is not seeking to be restored to possession of the commercial premises. Instead, he seeks to be restored to the rear of the property, an alleged residential apartment. He claims that “upon returning to the property on January 31, 2013[,] I found that the entire building had been shut down and the locks for the entire building entrance for the entire second floor had been changed. I was therefore locked out of my residence unlawfully” (FERBY, Affidavit at ¶ 5). “Upon information and belief, the landlord caused the Marshall's Notice to be placed on the outer door of the property and changed the locks.” FERBY also alleges that he did not receive any eviction notice by mail or at the property and seeks to be reinstated to the rear of the subject premises. What is clear from the relief requested by FERBY and according to his claims, on the commencement of his commercial tenancy, he simultaneously rented the rear portion of the demised property as a “residential tenant.”
The Court file does not contain any written opposition by JONERO, LLC. to this motion.
This Court conducted a 4–day hearing on April 24, 2013, May 29, 2013, June 5, 2013 and June 6, 2013. Some of the delay was due to the fact that FERBY subpoenaed multiple individuals to appear in court on his case-in-chief including, but not limited to, New York City Marshall Kenneth J. Giachetta. This Court declined some subpoenas and granted some subpoenas.
On the first date of trial, FERBY called New York City Marshall Giachetta. After being duly sworn, the Marshall testified about the date of the eviction of FERBY from the front section of the premises known as 597 Fifth Avenue, Brooklyn, New York. FERBY had admitted into evidence as Petitioner's Exhibit “1”, the affidavit of service attesting to the service of the 6–day Marshall's Notice on FERBY. The affidavit of service provides that the Process Server allegedly made two prior attempts at personal service at the subject premises on January 17, 2013 at 4:47 p.m. and on January 18, 2013 at 12:42 p.m., and then resorted to affixation of said Marshall's Notice to the subject premises on January 18, 2013 at 12:42 p.m.
Additionally, FERBY had admitted into evidence as Petitioner's Exhibit “2”, a copy of the Marshall's inventory of the eviction dated January 31, 2013. The Marshall testified that the premises was on the second floor of the premises; that he was present, as well as a locksmith and the landlord and her family. The Marshall testified that he was allowed onto the second floor by the owner and the locksmith went to the door that was the hair salon. The locksmith opened the door and he proceeded to take his inventory. The inventory states that FERBY's personal property was not new but was worn and soiled'.
The Marshall testified that at the eviction, the landlord asked them to look in the rear space. He stated that the landlord told him that they were fearful that FERBY could be hiding back there. The landlord had noticed that the rear lock on their storage space had been changed and they did not have a key. The Marshall agreed to look in the rear and after that lock was opened, he walked through to make sure that there was no one there, including FERBY.
When asked by FERBY whether it was “normal” to go into other parts of property to look for people while doing evictions, the Marshall replied, “No, it's not normal but neither is the fact that a landlord is locked out of their space. So, I did it as a courtesy to the landlord because I would not want to have someone that was just evicted be hiding in another space” (New York City Marshall Kenneth J. Giachetta, p. 28, lines 16–22). The Marshall further testified that while in the rear, he observed a TV, a couch and other personal property but did not inventory it because that was not his function ....he had no warrant to remove anyone from that space (New York City Marshall Kenneth J. Giachetta, p. 30, lines 1–2). The Marshall further explained that he performed this duty for the landlord to protect the landlord. The Marshall testified that “I just made them aware that if someone had trespassed in that area and there was property that was not theirs or property that was missing, that they should contact the police. It's not my function, as a Marshall, to make that determination” (New York City Marshall Kenneth J. Giachetta, p. 30, lines 17–22).
The Marshall went further to state that he considered it his civic duty to assist the landlord and analogized his actions to that of a police officer being off duty and being requested to perform a police duty. The Marshall stated that he felt it was his ethical and civic duty to assist the owner under the circumstances.
The Marshall further testified that “I did not go in to evict anybody from the [rear] premises, I just went in as an officer of the court to make sure that the second floor was safe” (New York City Marshall Kenneth J. Giachetta, p. 31, lines 15–17). FERBY asked the Marshall to describe the rear space and he testified that “I do remember some furnishings being there, I remember a TV, video tapes, some CDs, I can't recall which, and a couch; that's what I recall. There might have been some miscellaneous wood. My primary function going back there was to make sure that it was free from any inhabitants so I didn't really—it was free from any inhabitants so I didn't really—your space, the salon I made a physical inventory so I was particular in what I was doing” (New York City Marshall Kenneth J. Giachetta, p. 32, lines 14–21). The whole objective, he repeatedly stated, was to ensure that the space was empty.
FERBY placed great emphasis on the fact that the Marshall's Notice of Possession was placed on the entrance door which led upstairs to the commercial space instead of the actual salon door itself. The Marshall testified that the Marshall's Notice of Possession would have been customarily affixed to the door of the salon. However, in this case, the Marshall explained that since the landlord changed the locks downstairs and FERBY was the only tenant upstairs and was in sole possession of that area, he decided to put the Notice of Possession on the downstairs entrance door. The Marshall asserted that it was his personal judgment call to put the Notice of Possession on the front entrance door to the second floor of the building. The Marshall testified that “in your circumstances, there was nobody else going to the second floor so there was no need for you to enter into the building because the landlord not only changed the lock on the salon, she had the locks changed on the door at the street level. So in order for you to know what happened, I put the Notice on the only door that you'd be able to see because you wouldn't be able to see the door upstairs. You still wouldn't be able to get into the premises but you wouldn't know what happened” (New York City Marshall Kenneth J. Giachetta, p. 34, lines 14–23).
FERBY, in an attempt to discredit the mailing of the Marshall's Notice by certified mail and by regular mail, brought to the Marshall and the court's attention that the certified mail did not contain an actual floor of the property but contained the address of the premises only. The Marshall testified that his office does the mailing and he could not give an explanation for the absence of the floor on the mailing. However, the parties agreed to admit the certified mail receipt and the first-class mail with certificate of mailing into evidence as Petitioner's Exhibit “4”. Notwithstanding this deficiency in the mailing receipts, the Marshall, while at the eviction, was able to take photographs of the actual envelopes that contained the 6–Day Marshall's Notice located inside of the second floor front salon. FERBY then had admitted into evidence as Petitioner's Exhibit “5A” and “5B”, photographs taken by the New York City Marshall on the date of the eviction, which shows the Marshall's mailings to the subject premises tacked on the wall in the front section of the commercial space. The Marshall was quite pleased and proud of the fact that he was able to confirm that his employees were doing their jobs to the extent that the mailing was actually received and was there inside of the subject location.
FERBY continued to question the Marshall about the disparity between the address as stated on the first Marshall's notice (Petitioner's Exhibit “2”) and the second Marshall's notice admitted into evidence as Petitioner's Exhibit “6. Notwithstanding the deficiencies in the description of the address on Petitioner's Exhibits “2” and “6” and even Petitioner's Exhibit “4” (certified mail receipt and certificate of mailing receipt also lacking a 2nd floor designation), Petitioner's Exhibit “5A” and “5B” prove that FERBY received the mail at the second floor front of the subject premises since the mail was found inside of the premises by the Marshall during the eviction. But for this evidence, FERBY may have been able to rebut receipt of the Marshall's notice due to the deficiency in the address, however, this photographic is irrefutable that FERBY received the Marshall's notices.
On cross-examination, the attorney for the landlord requested that the Marshall describe what he observed at the property during the eviction. He testified that on the date of the eviction, when the locksmith opened the locks for the second floor front part of the commercial space, there was a mattress with linens on the floor right in the middle of the salon. JONERO, LLC. introduced into evidence as Respondent's Exhibit “A” a photograph of the Marshall, Mrs. Vidal and the mattress in the middle of the second floor on the date of the eviction. The Marshall testified that he observed that the rear space did not contain a kitchen or bedroom, and it did not have complete walls. To his knowledge, there was no carpeting on the floor. He stated that there was no bedroom of any kind; no kitchen cabinets or kitchen sink or anything that would indicate that the rear was an apartment. In addition to the above, the Marshall stated that there were no windows in the rear area. In some places, he stated that there was no sheetrock and the walls were bare. The Marshall was clear that this was not a finished space. At least from the Marshall's experiences and prior evictions, in his opinion, this was not an apartment.
At one point, the Marshall had previously stated that he did not see a bathroom and then stated in his opposition affidavit that he did see a bathroom. This prior inconsistent statement offered little to impeach the Marshall's credibility.
On redirect, the Marshall primarily stated that the unit in the rear was not an apartment. In the Marshall's assessment, “when you first went into that part of the space, one of your comments was I found it a little peculiar ...” When asked by the Court why did he find it peculiar, he stated that “it seemed to me that the space was just a hangout spot”. Furthermore, the Marshall stated that “a couch, TV, you know, if you cannot do that in your salon, you can do it in a different space. That's the way I took it in being peculiar” (New York City Marshall Kenneth J. Giachetta, p. 66, lines 9–12).
FERBY, questioning him again regarding going into the rear space, the Marshall stated that “I instructed the landlord to call the police because she indicated that that was her space and someone had violated her space. Based on this statement, I recommended her to call the police because it was now a police matter and not a city Marshall function to determine if someone had trespassed into her space, it's not my job, I just gave her that bit of advice” (New York City Marshall Kenneth J. Giachetta, p. 68, lines 7–14). According to the Marshall's testimony, the front space was a distinct and separate space from the rear space. It was a peculiar space to the extent that it had a couch and a TV which was customarily not permitted in a commercial space.
The next witness was the Petitioner himself, RODNEI FERBY. At least according to his initial testimony, FERBY gave as his address 579 Fifth Avenue, Rear, Brooklyn, New York. FERBY testified that he began his tenancy at the premises known as 579 Fifth Avenue in or around the early part of December 2011. He testified that he spoke to the agent, Robert Vidal, about renting the space. He never describes how this relationship came to be or how he came to know about the space but he did indicate that it was Robert Vidal, the husband of Nellie Vidal that showed him the front and the rear spaces.
Mr. FERBY testified that he told him what his vision was for the space, an upscale hair salon, named Flourish on Fifth Avenue, and that the space would encompass all types of artists including hair and makeup artists. FERBY testified that when he told Mr. Vidal about his intentions at the premises, Mr. Vidal showed him the rear space, in case he decided to expand his business. At that time, he opened the door to the rear space, which Mr. Vidal said he and his wife were using as a storage unit since 1994 after there was a fire in that rear (FERBY, p. 72, lines 5–14). Moreover, FERBY claims that the agent told him about the rear space, “that part”, “you can put up a wall and that back area, you can live in the back area if you want to” (FERBY, p. 72, lines 23–25 and p. 23, lines 1–9).
FERBY contends that the landlord had knowledge that he was performing construction at the subject premises for nearly 8 months. He testified that the landlord knew the commercial space was under construction because he came to the building to get bills and the rent payment. His testimony regarding the portioning of the rear and the front are unclear. It is not clear whether this area had been partitioned off prior to or subsequent to the lease agreement entered into between the parties. It at least appears from the testimony of FERBY that the landlord was allegedly responsible for structural matters such as electric and plumbing, and he was responsible for everything else.
He also testified that he had taken possession of the premises and was given a key prior to his signing the lease agreement with the landlord. He claims that he “signed the commercial lease and the landlord had to do work to get the commercial space up to code. During that time when they got the commercial space up to code, they were also at that point going to build an area that I can live in until the salon got big enough where that space, itself, could also become a part of the salon and I could vacate. And the whole entire floor could be Flourish on Fifth Avenue” (FERBY, p. 80, lines 20–25 and p. 81, lines 1–4).
FERBY goes on to state that “so once they finished construction, I was going to pay rent for the front half for 3 months. During that 3–month period, the construction would be completed within a month. The salon would be able to be open for the first two months, which would then be enough money, which starting in March, I would then be paying the entire rent which would have been $3,000.00 which would be $1,200.00 for the verbal agreement and $1,800.00 for the lease agreement. (FERBY, p. 81, lines 7–15). “So, that the game plan is basically, since I moved out of my apartment that was $2,000 .00 to basically get the business up and going at that time while I was saving $1,200.00 because my previous rent was $2,000.00, so now I was going to be paying $1,200.00 and that had 3 months for the salon to be built in a month and be open for 2 months to start generating income to pay the full $1,800.00 on the books and another $1,200.00 for the back space starting March” (FERBY, p. 81, lines 19–25 and p. 82, lines 1–5).
Then, according to Mr. FERBY, he was given access to the entire second floor. Notwithstanding the fact that he had a lease that was giving him the front space only, he claims that the parties had a verbal agreement for him to live in the rear for an unspecified period of time for $1200.00 until the business generated enough income to pay the rent of $3,000.00 and he affirmed this to the Court.
FERBY had admitted into evidence the lease agreement as Petitioner's Exhibit “7”; and the photographs admitted into evidence as Petitioner's Exhibits “8A” and “8B”, dated December 8, 2011, depicting the condition of the property before the lease.
He further indicated that some of the construction in the commercial space on the second floor was performed by him and some of it was performed by the landlord. According to FERBY, Johnny, a contractor, who was introduced to him by Mr. Vidal, did some of the work. Mr. FERBY testified that the electricity for the first floor was connected to the electricity on the second floor and that Johnny was hired to separate the electric power. He also put in the sink and the bathtub in the bathroom in the rear space.
FERBY described that they removed 2 walls in the commercial space which separated the front from the rear, making it one large space. He described that once they removed these walls, it became one large area so it was no longer a front and a rear, it was just two doors that allowed you into one area and the back area became a separate area. FERBY further stated that “we started laying the plumbing because the most important thing was to build the back area so I had somewhere to live so that way, we could finish the salon and open the salon and have business. So Johnny made the plumbing, which basically was a sink, tub and hot water heater” (FERBY, p. 86, lines 12–18). FERBY then admitted into evidence a photograph, dated December 8, 2012, which he stated shows the entire open space of the second floor. FERBY seems to imply that there were three phases of construction, to wit: the removal of the front wall at the inception of his tenancy, the extension into the rear space, and then the separation of the rear of the salon from the alleged live-in section in the salon and the creation of a wall to create the rear apartment. FERBY stated that the owner granted him permission to perform this work and he had recorded the alleged conversation about this agreement. After substantial discussion, this Court denied its admission into evidence on legal and foundational grounds.
Since Mr. FERBY had subpoenaed numerous witnesses to testify in his case-in-chief, he agreed to leave the stand, reserved his rights for a continuation of his testimony in his case-in-chief and the attorney for JONERO, LLC. agreed to the reservation of his rights of cross-examination.
FERBY then called Annette Dockery, his mother, as a witness in his case-in-chief. Mrs. Dockery testified that in or about December 2011, she got a phone call from her son stating that he had found a large commercial space that would accommodate his salon in the front and an apartment in the rear. She affirmed that her son told her that the landlord agreed to rent him the space for $1,800.00 for the front and $1,200.00 for the rear space, and that he was given permission by the landlord to live in the rear. She talked to “Bobby” and to Ms. Vidal.
The witness did not testify per se that Nellie had given her son authorization to live in the back; instead, she said that the landlord's primary complaints to her were that her son had not paid rent but that if he could just give her $1,200.00 for the back she would be satisfied for the moment since she had quit her job and was low on funds. She agreed that if he would pay this amount, she would work with her son. When asked by the Court had she been in the rear area, she affirmed that she had been in the rear and that when she had come to New York for the grand opening of the salon that “my son and his girlfriend stayed with Bobby in the back the whole 4 days we were here in New York” (Dockery, p. 108, lines 11–20). She further testified that “[she] went back there and changed [her] clothes. There was a bathroom with a shower, toilet and sink and there was a bed, couch and his clothes. It had a separate door from the other section” (Dockery, p. 109, lines 1–7). The witness acknowledged that there was no kitchen in the rear and no stove, but claimed that her son had a microwave oven.
She also testified that when she ultimately spoke with Nellie Vidal, they spoke as mother to mother, and Ms. Vidal had told her that FERBY had not paid rent for 2 months, she could not pay her bills with no money and that he needed to pay her. Ms. Dockery also testified that FERBY could not afford to do the “build out” and also pay the rent, but never testified about any agreement by the parties to resolve the arrears.
As to the rental agreement for the rear space, Mrs. Dockery stated that “this is what they told me, Nellie and her husband, was the front was for $1,800.00, the back apartment was $1,200.00 and they didn't want to put the $1,200.00 on paper” (Dockery, p. 116, lines 3–6). “The lease agreement was only for the front because that's all they wanted on paper” (Dockery, p. 116, lines 19–20).
On cross and re-direct, the witness replicated her former testimony, in summary, that when she was there in April 2012, the premises was still under construction and the rear wall in contention was not completed with sheetrock. She described that there were wooden studs up in that area and that instead of going through the wall that was open, they would go around to the outer door to go into the rear area.
FERBY next called Sean Grant. Mr. Grant, a personal friend of FERBY, who testified that as far back as when he was at the commercial space in 2011, it was clear that FERBY was in the middle of renovating both the front and back spaces. The witness was an employee at Home Depot and even brought FERBY to Home Depot to pick up a few items.
The witness testified that FERBY always had access to the rear; it was all one space and he never saw a divider. The witness claimed that he was invited over specifically to inquire about some ideas regarding the renovation of the commercial spaces. He indicated that he was present with FERBY when FERBY first met with Mr. Vidal about the rental of the 2nd floor.The witness further testified that while he was there, a male worker was working in the rear area, specifically on the bathrooms and on some of the electrical and plumbing systems. The witness further testified there was a partition between the spaces that allowed you to have access to the front and the rear. He stated that when they first saw the commercial space, before FERBY signed the lease, Mr. Vidal showed FERBY the front and the rear space.
He further stated that during the course of time, FERBY lived there. He testified that while he was there, he witnessed the plumbing installation into the rear space. He observed a 4–inch drain line later installed for the installation of a toilet bowl. He also stated that he saw other transformations but as far as the rear, he didn't see it being done, but “[I] saw the transformation as I continued to stop by” With regard to the tub, there was a vanity that was installed with a showerhead, there was also hot and cold water lines that were installed, specifically, there were new channels of water lines put in (Grant, p. 129, lines 14–25).
The witness could offer no personal knowledge of the amount of the rent but offered some testimony regarding the renovation. While in the unit, he observed a bathroom, a large hot water unit (which he believed was an 80–gallon) and a water connection for FERBY to have access to water. The witness specifically stated that FERBY had removed the walls and extended it further back and also created several walls in the commercial space (Grant, p. 133, lines 14–18). The witness further testified that as the work progressed, the space originally rented to FERBY had increased in size; a wall had been removed and extended back to increase the size of the unit. According to the witness, in the rear space, “[there] was a bathroom and a hot water heater, which adds hot water to the entire unit and then that's basically it, that's all I know of that back area” (Grant, p. 137, lines 3–11). The witness attests that the bathroom was operative because he actually used the toilet and vanity.
On May 29, 2013, the case was adjourned for a continued hearing and FERBY took the stand again on his own behalf. FERBY testified about the alleged corrective measures taken by the landlord. The work started with Johnny Martinez and ended with Mr. Augustine. FERBY was not clear exactly what work Mr. Martinez was doing, but he indicated that he was dealing with the electric and the plumbing. In regard to the plumbing, the work involved redirecting the plumbing. In regard to the electric, it was disconnecting the electric from the first floor to the second floor. His testimony was that Mr. Martinez was supposed to disconnect the bottom floor from the top floor and his job was also to reinforce the rear ceiling.
FERBY testified that “there was a fire in the building in 1984, I think, and that's what made them decide to partition the second floor into two different spaces and use the front space to continue to use as a form of income, and the rear portion with the damages, as storage for [their] belongings” (FERBY, p. 7, lines 12–19). FERBY was able to credibly testify about the type of work that was required to be done with the reinforcement of the ceiling, particularly his description of the “sistering of the joist beams.”
FERBY further testified that the work that was performed on the beams was performed on behalf of the landlord. However, he stated that, at the end, he ended up having to pay the costs of the structural beam work. He states that he paid Augustine, the other agent for the landlord, to complete the electrical outlets that were put in the rear.
He further claimed that the $750.00 that he paid was for the cost of labor for reinforcing the joists in the ceiling that had been affected by the fire that was threatening to collapse (FERBY, p. 10, lines 1–13). FERBY testified that he did not have any proof or receipts to substantiate the $750.00 payment and that the monetary value of that is not what he was disputing.
He further testified that Johnny was working too slowly and had a drug problem, and apparently was working incompetently. He claimed that the owner's nephew, Steven Vidal, informed him of the following: “Her nephew told me, he was like this is my Aunt's building. My Uncle has a history of stirring things up. Tell my Aunt her husband has created a situation, and she will get involved and make things better” (FERBY, p. 12, lines 19–24).
He claims that when Johnny made a demand for an additional sum of $100.00 for additional electrical work, he refused to pay it, and Johnny quit on the spot. According to FERBY, this occurred in January 2012. He testified that he called the landlord's nephew and the landlord agreed to have another electrician come, an old friend, by the name of Mr. Augustine. Mr. Augustine came over and made an assessment. Mr. Augustine said that the required repairs for the salon was too much and agreed instead to perform the required repairs to the apartment because that work was relatively minor. He claimed that the work on the rear would only take one day of work and the front salon would be more extensive. Mr. Augustine and FERBY agreed to the installation of a circuit breaker and box, and that he would have to go through old lines and reconfigure it (FERBY, p. 15, lines 1–8). FERBY further testified that although Mr. Augustine was supposed to be working for one day, he ended up working there for three days.
Furthermore, he testified that Mrs. Vidal paid for all of the materials for the electrical work. Mr. Augustine went to Lowe's and this is where he purchased the circuit breaker and the covers (FERBY, p. 16, lines 12–20). The witness testified that Petitioner's Exhibit “11”, a receipt for a circuit box and related items, was purchased by Johnny for the separation of the electricity between the first floor and the second floor. He testified that Mr. Augustine completed the remedial work that Johnny did not complete. FERBY then indicated that Augustine paid for these items and Augustine presented the receipts to him to pay for the items. He stated that he refused to pay for the items because Mrs. Vidal was supposed to pay for them, as per their agreement. He claimed that he was “no longer going to get stuck with anymore costs” (FERBY, p. 19, lines 6–12). FERBY continued to claim that Mr. Augustine presented him with the receipt, although the receipt was not admitted into evidence. He claimed that Mr. Augustine came over on February 25, 2012, completed the work, and three days after Mr. and Mrs. Vidals paid him the money for the work, as well as reimbursed him for the items (FERBY, p. 20, lines 14–19).
FERBY further testified that the circuit breaker work that was performed by Mr. Augustine, namely the installation of the circuit breaker upstairs, was for the rear portion only and also for his lights. He further testified that the installation of that circuit breaker did not cover the entire space. “The second floor front already had a circuit breaker and a box. When Auggie came, he looked at the front and rear partition wall did not have sheetrock on it and that the electrical had to be run within the beams through the walls for us to sheetrock and put face on the sides of both walls. The circuit breaker for the front was in the front area. That had already been there”. The witness responds that the separation of the electricity from downstairs was solely for the purposes of installing a new circuit breaker for the rear portion of the property and required the disconnection of the electricity from the first floor to create an electrical line for power for the rear. FERBY stated that “[s]o, Auggie. He works for three days, runs the lines and also there were some lights—lines that were questionable. Those were pulled down and Auggie rewired the lighting to the outlets and ran light stretches to the light switches in the rear. He ran several outlets. He corrected some of the lights. The boxes were overloaded or weren't placed correctly. They weren't placed with outer plates. All of the work that was previously described was in the rear of the property” (FERBY, p. 27, lines 1–25, p. 28, lines 1–6). Apparently, light fixtures and outlets were installed and certain fixtures were replaced. Specifically, FERBY claims that he replaced three outlets. In regards to the light switches, the witness testified that the alleged electrical system was a “bootleg” electrical system in the rear. He claimed that they were only temporary lighting. He also installed light switches for the rear and specifically the closet areas in the rear. At least according to his testimony, the electrical work was performed in the rear before the actual work for the salon was completed.
FERBY testified that since they had removed the rear wall of the front space, the front salon space was extended by moving this wall back; this wall needed outlets replaced and was not completed because Mr. Augustine did not do that particular wall. So, two months went by, according to his testimony, and it was not until the end of May when this electrical work was completed on that wall making it possible for the salon to become fully operational.
According to FERBY the following occurred: “That the wall in the center of the wall there were outlets. On the side of the wall is outlets. There is a bathroom door on the right. In the bathroom, there were also outlets. Both of these walls were taken out; both walls in the back were removed. The walls that had previously been there they were then pushed back into the rear space. (FERBY, p. 34, lines 1–25, p. 35, lines 1–25). FERBY claims that although a lot of this electrical work for the rear occurred in January, February, March, and April of 2012, he asserts that there were still problems with part of the property, which were the alleged grounds for him not paying his rent.
Once again, according to FERBY, the wall in the back was pushed back for the purposes of installation of plumbing and because that was not done, he was unable to use the salon portion of his space. He asserts that this was the reason that he was not paying his rent, and subsequently, Mrs. Vidal abated the rent. His first claim is that Mrs. Vidal had given him a two-week abatement at the end of January 2012. He further claimed that she gave him January and February off, at that point, when Johnny was still in the property (FERBY, p. 39, lines 8–10). He states that January and February's rent had been paid based on this abatement. Then, FERBY claimed that she abated March and April due to the work stated above. He stated that “he only had to pay rent in May and [that] she informed him not to tell Bobby” (FERBY, p. 39, lines 15–19).
From this point forward, FERBY testimony was totally inconsistent. FERBY testified that “I did not have to pay rent and I paid for the rear space which was $1,200.00 for the front according to when I signed the lease”. She abated January, February, March and April, and he paid for the rear only. Allegedly, he paid $1,800.00 for the salon space until the $3,600.00 for two months and I have basically 60 days”. As far as payments were concerned, he stated that he paid her $1,200.00 for the rear and also $1,000.00 for the real estate taxes (FERBY, p. 41, lines 8–9).
For some time during his testimony, the parties apparently dispute the sum due and owing. As a result of this dispute, the undersigned judge agreed to review that transcript of the commercial nonpayment proceeding. Mr. FERBY indicated that the transcript acknowledged that he made a payment $1,200.00 for the rear and $1,000.00 for real estate taxes. JONERO's counsel argued to the contrary. The transcript does not support FERBY'S claims.
FERBY testified that in or about April 1, 2012, Mrs. Vidal called him about the rent. He stated that “she said she was going to come and get the rent and I told her no, you told me I didn't have to pay until May 1. She said ok then I'll see you next month. So, May 1st arrived and I was expecting the check around May 1st but according to my Lease I had until the 10th. So Mr. Vidal came by on the 1st and I told him that I needed another day or so”. He further stated that he was supposed to pay $3,000.00 in rent; $1,800.00 for the salon and $1,200.00 for the rear. When Mr. Vidal came by on May 1st and he did not have the money, he asked Mr. Vidal to give him 3 more days. FERBY testified that Mr. Vidal said he had to move out of the salon and out of the back in 3 days and he got up and walked out” (FERBY, p. 48, lines 1–25, p. 49, lines 1–25 and p. 50, lines 1–7).
FERBY argued with Mr. Vidal and told him that he could not tell him to get out when he had renovated the building and he had two months of his security deposit. FERBY said he then went to Mr. Vidal's nephew, Steven, and Steven told him that Mr. Vidal had just given him three days notice and he said “why”. He claimed that Steven called Mr. Vidal and they agreed to meet with him the following day. He claimed that three of them met at Lindo Restaurant in Brookyn; their customary meeting place. At this meeting, there was a verbal agreement entered into between the parties that FERBY would pay $3,000.00 for the entire second floor including the front and the back; and they agreed to consummate this verbal agreement in a new written lease agreement.
At one point during his testimony, the court inquired as to whether or not the landlord agreed to allow the Petitioner to use the back space for a work/live area and he replied yes, “temporarily until the whole facility can be up and going”. The witness further testified that this arrangement was supposed to be temporary “until the salon was up and running enough for me to sustain income to rent elsewhere.” And then the court inquired, were you supposed to relocate and the witness answered affirmatively. The court further inquired once the income was generated through the salon, you would then move and the witness stated yes ma‘am because the whole idea of the space was to maximize your revenue/business” (FERBY, p. 60, lines 23–25 and p. 61, lines 1–20).
FERBY claimed that he moved out of his apartment located at 725 Fifth Avenue, Apartment SS1, Brooklyn, to the rear of the subject premises in January 2012 while the premises was under construction.
FERBY'S testimony about his actual living space when he vacated that apartment is a bit unclear. FERBY testified while he was doing the construction on the front and the back of the premises, he brought his physical possessions to the space, but when he needed a shower, at one point during the construction when the walls were not up, he would shower elsewhere. He said he always had someplace else to go. The court made the following inquiry: At one point, did you physically move in and use the rear as a residential apartment? The answer from Mr. FERBY was that it was never ever completed.
Then, subsequently, when asked when he started using the property for residential purposes, he stated it was “probably like the months of April and May I was pretty much there. It wasn't even so much the rear because there weren't walls at the time” (FERBY, p. 64, lines 11–25, p. 65, lines 1–3). He further states that at least part of March, April and May of 2012, he was in the rear of the premises for residential purposes at least three to four times a week. “So, in that time, I was overseeing the work that Johnny was doing” “I ate there, showered. I had guests over. I entertained. My brother came. Him and his girlfriend. They stayed there for a week renovating and helping paint, getting things together, and I was there” (FERBY, p. 66, lines 1–17). In addition, he claims that he was also there a little bit in October of 2012 and then in December of 2012.
The witness further testified that “the space was my home. Regardless of the months that I spent there lots of people—my clothes were there. I made meals, I showered. In New York, you're allowed to have two residences” (FERBY, p. 70, lines 22–25 and p. 31, line 1).
In addition, FERBY testified that when he offered his rent for May and June of 2012, the rent was refused by the landlord. He claimed that the basis of her refusal was that they wanted to include the rear as part of the rental agreement and that they could hold him accountable for January, February, March, April and May, 2012, 6 months of rent.
He seems to state that at one point or another, he owed $10,000.00. He received a 10–Day Rent Demand demanding the $10,000.00 and by July 2012, he received the Notice of Petition and Petition for nonpayment of rent. He claimed that this alleged $10,000.00 was for the rear at $1,200.00 per month. He claims that back in July 2012, the back space was inhabitable but at the same time he states that he lived there and that, at least appearing from his testimony, seemed to be a justification for him not paying the rent.
FERBY also made it clear, and the court acknowledges, that he was never given any type of Notice of Petition and Petition for the rear space.
On cross-examination, the attorney for the landlord asked FERBY whether he had any agreement in writing for the rear space for residential purposes and FERBY answered no. The witness also confirmed that he had no proof of any payment other than one payment that he made for $1,200.00 for the alleged rear space.
Additionally, JONERO, LLC.'s attorney, referring to Petitioner's Exhibit “9” in evidence, asked FERBY to show the court evidence of the apartment that he resided in, and FERBY referred the Court to Petitioner's Exhibit “9”. Although the witness testified that he had thousands of photographs, this was the photograph that shows his living space.
Interestingly, when asked whether the lease required him to pay for his own renovation, FERBY did not answer that question.
Furthermore, when asked by counsel who did the work and who paid for it, he was clear that Johnny Martinez and Mr. Augustine completed the work but in terms of payment, the testimony once again is not concise.
FERBY, on cross-examination, testified that he paid $750.00 for the repairs performed to the rear ceiling where the fire had occurred. FERBY further stated that he made additional payments for work to the rear but did not have those records in court with him on the date of trial despite the fact that he had all of his other documents with him in court on each day of this four day hearing.
FERBY also indicated that he was not aware that the property was a commercial building until he entered into the lease agreement with the Vidals. In addition, when asked if he had any proof of payment of the $1,200.00 for the month of March 2012 as he alleged in his direct case, he once again referred the court to the transcript of the commercial case and had no documentary evidence to prove the payment.
Apparently, on the date of the former trial, FERBY claimed that 588 Decatur, Brooklyn, New York was his address, and in this proceeding, he gave the demised premises in dispute as his address. When asked on cross-examination to explain this discrepancy, FERBY stated that “because on the date of trial, I was actually staying with my friend at 588 Decatur and that's where my Medicaid is registered at” (FERBY, p. 94, lines 17–20).
After the above testimony, FERBY rested and the attorney for JONERO, LLC. moved to dismiss. After conference with this court, the motion was withdrawn.
FERBY was then permitted to call Christopher Guevera of the Bronx. Guevera testified that he was present at the meeting between FERBY and Mrs. Vidal which took place after he came home from the hospital and the alleged illegal lockout of FERBY from the commercial space by locking the entrance door to the second floor.
He testified that he was present at the meeting in which Mrs. Vidal allegedly entered into an agreement with FERBY in which FERBY agreed to pay $1,200.00 for the rear space and the landlord allegedly agreed to waive rent for January, February, and March, 2012. He claimed that FERBY was only required to pay rent for April 1, 2012. He stated that “the initial agreement was the $1200.00 for the back and like I said earlier, whatever Rodnei—after Rodnei opened up the shop and was able to make money that he can pay the rest” (Guervera at p. 14, lines 10–14).
When asked about the physical condition of the property and about the renovations, the witness stated that he was present at the property since the inception of FERBY's tenancy and that the condition of the property was a “mess”.He claimed that Mr. Martinez was very, very unprofessional and he did drugs in front of them. He further testified that FERBY was given keys to the front space and then changed the locks on the rear space at the inception of his commercial tenancy. Then, he states that on an uncertain date, Mr. Vidal took the rear keys from FERBY's key ring “out of spite”, and he went back on his agreement with FERBY for FERBY to have the rear space for residential purposes. He described the rear as a total mess; loaded with debris. He stated that “[i]n the beginning, the place was like a total, total mess the codes weren't up to par. What I think happened was that after all of our hard work and labor and we have video proof of, they decided to turn around and try to take this room from him and has been working really, really hard” (Guervera at p. 21, lines 1–10). “I mean it's a brand newly renovated place. They don't have to do any work to do, any finish touches. It is an easy way to get your place renovated (Guervera at p. 21, lines 13–16).
The witness then recounts the events that lead to Mr. Vidal taking the key, and to FERBY going to court for nonpayment of rent. He then states that FERBY was excluded from possession of the rear and has not occupied the rear space since that time.
On cross-examination, Mr. Gueveara testified that “[w]e're the ones that basically renovated the back living space so he can sleep because it wasn't sleep ready. I helped him move in, so it was we that got the back together amongst other people that same and helped and volunteered, but it is we” (Guervera at p. 31, lines 13–15 and p. 31, lines 18–21). He specifically stated that he had no involvement with the front of the premises or the execution of the lease but was involved exclusively with the rear space.
He stated he was present at the meeting with FERBY and Mrs. Vidal which allegedly took place in her SUV on a date that he was leaving the hospital. He alleged that he was an eye witness that FERBY paid rent, he observed him write the check for Mrs. Vidal and on the aforesaid date, he observed FERBY give Mrs. Vidal $1,200.00 in cash. He testified that he was right there in the car when FERBY gave Mrs. Vidal the cash and told him “he had to pay for the back and not worry about the front” (Guervera at p. 33, lines 19–25 and p. 34, line 1).
He testified that the rear space contained an electrical stove to cook, refrigerator, bed and clothing. He claimed that he even helped FERBY out by providing him with a hot plate. He further testified that “there was a bathroom. There was a tub. There was a sink which had all of his stuff on it. The bed, the clothes, the bathroom, little kitchen where he kept fridge and his food. Basically a little studio apartment. It was small” (Guervera at p. 37, lines 8–13).
On redirect, Mr. Guervera also testified that FERBY had a stereo system. He also testified that FERBY had access to the rear from the very beginning. He got access to the front only after having been given access to the rear (Guervera at p. 41, lines 1–24), and that he had access to the rear more than 3 months before access to the front space.
At the end of this testimony, FERBY rested on his case-in-chief.
JONERO, LLC. began its case-in-chief by requesting that this Court take judicial notice of the various government websites including the New York City Department of Buildings, the Department of Finance, and the Office of the City Registry to substantiate that JONERO, LLC was the owner of the subject premises and that the New York State Department of Taxation and Finance has classified the demised premises as commercial and not residential. The Court granted his motion.
As the first defense witness, JONERO, LLC. called Nellie Vidal, the managing member of JONERO, LLC. She testified that the building had always been used for commercial purposes and never residential purposes.
She testified that FERBY never paid for the renovations in the front or the rear. She stated that the second floor had always had a front and a rear. “Before he took occupancy, it was divided into two parts. I always rented the front part as commercial piece of property and the back space I used because I had stuff left from when I had my business. The back was used for storage” (NELLIE VIDAL, at p. 55, lines 15–19).
She stated that in April 2012, when her husband went to pick up the rent, “he went to the check the back and he could not get into the back. He asked Rodei what happened with the back because he couldn't get in. Rodnei had changed the locks because he said he was putting stuff he needed to get to the back to do work to the front. They needed to get to the pipes and my husband said you have got give me the key. You are not going to lock me out of my space” (NELLIE VIDAL, at p. 51, lines 11–20). She claimed that FERBY represented to her that he was in the rear of the property to allow the plumbing to be done for the operation of the front space.
Mrs. VIDAL also testified that she never granted FERBY permission to change the locks. As to the rear storage area, she stated that “[w]e had storage. We had stuff left over from our previous business. I had my daughter's crib. We were using it for storage, whatever we needed to put back there” (NELLIE VIDAL, at p. 57, lines 18–22).
JONERO, LLC., had admitted into evidence photographs marked as “B–1”, “B–2”, “B–3” and “B–4”. According to the witness, the photographs depicted the storage area as it existed prior to FERBY's tenancy it contained “all the stuff that I had from my business before, boxes and cards and just bags with items in storage” (NELLIE VIDAL, at p. 59, lines 9–12).
Subsequently, JONERO, LLC., also introduced into evidence photographs as Exhibit “E–1” through “E–6” which shows the front area, the extension in the rear and then the rear area. Specifically, “E–1” represented the extension of his salon into the storage area and depicts the removal of all of the VIDAL's personal property from that area. Respondent's “E–2” depicts the right side of the rear of the property. Exhibit “E–3” shows “the right-hand side where I said I had-he said the boxes and the wall, the cement wall which goes along the back and the two sides of the store” (NELLIE VIDAL, at p. 66, lines 11–14)
Then, Exhibit “4”, a photograph, depicts “the back of my storage to the door. [T]his is the area that was cleaned out” (NELLIE VIDAL, at p. 66, lines 21–22). The witness testified that these photographs were taken by her after the eviction in January 2013. The witness testified that “E–6” shows the rear entrance where no one ever went into that part of the property. The witness further testified that “E–10” was a representation of the front space before the rental, and “E–1” through “E–12”, excluding “E–10”, shows the premises that were altered by FERBY.
The witness further stated that she did not know what happened to her personal property and received no notice from FERBY that he was going to remove her property. She was firm that she never gave him authorization and consent to alter the property in the rear.
She then goes on to describe her meeting with FERBY and Guevera. She testified that she went to the property to pick up the rent check and FERBY was not there. He asked if they could meet on 7th Avenue in Brooklyn. She claimed that FERBY told her that he was expecting a large payment from work that he had done and that the check had not cleared. He indicated that he had no cash money, he was waiting for money to clear and he could not give her anymore money at that time. She stated that he never gave her any money, no cash or check as claimed by FERBY and Guevera.
On cross-examination, the witness denied receipt of any cash payments by FERBY and denied granting any authorization and consent to expand in her space in any way. She indicates that the $1,200.00 payment was a partial payment toward the front space and that the $1,000.00 payment was for real estate taxes.
She further testified that she brought the nonpayment proceeding against him because at that time, he had owed at least 1/4 of real estate taxes, water and sewer charges, and monthly rent for the demised premises. She confirmed that on January 31, 2013, the eviction took place. She requested that the Marshall look in the rear area to confirm that FERBY was not there. She then said for the first time since his occupancy that she went into the rear space, “[w]e noticed that everything we had was gone” (NELLIE VIDAL, at p. 102, lines 11–21). At that time, she had the locksmith change the locks. The witness stated that she was unaware that FERBY was using the rear for residential purposes and was shocked to see that her property had been removed on the date of the eviction. She stated that she rarely went to the property except to collect the rent and did not know that FERBY was living in the rear (NELLIE VIDAL, at p. 121, lines 4–25).
Mrs. Vidal further testifies that although her husband went to the property to remove some of their personal property and could not get in, he did nothing until the court date in the nonpayment case. They did not want any altercation with FERBY.
On April 6, 2012, the Hon. Carol Feinman issued an order directing FERBY to pay use and occupancy in the sum of $3600.00 and to send the keys to the downstairs entrance door to the landlord. According to the witness, she never received either the payment or the keys from FERBY.
After the eviction, she testified that despite a court order for access for FERBY to remove his property in five days, “[h]e came only the last two days, took out what he wanted and took out stuff and put it around the corner as garbage. It didn't fit in his truck. He took all of his stuff (sic) was taken out” (NELLIE VIDAL, at p. 125, lines 9–25 and p. 126 1–16). She testified that although he had access to the front only, all of his property in the rear space was put in the public hallway and he was granted access to remove his property. When asked by the Court about what happened to the items in the hallway, she said that “[w]e had to be there with the police so that there would be no confrontation and he took everything that was put in the hallway. Whatever he didn't want he had there, he went and the around the corner. Everything that was there that was his was put for him to take” (NELLIE VIDAL, at p. 128, lines 10–16).
JONERO, LLC., next called Robert Vidal, Jr., as a witness in their case-in-chief, the son of Mrs. Vidal. He stated that his mother never gave FERBY permission to use the rear as residential space and certainly did not grant him authorization and consent to use or occupy the rear space. He asserted that his family had rented FERBY the second floor front for commercial purposes and for no other purpose.
The witness went into great detail on direct of a description of the second floor and stated that “[w]e have [had] two commercial tenants up there and it's always been the same situation. My parents always rented the front portion as commercial space and the back portion they have kept as their own personal storage space” (ROBERT VIDAL, JR. at p. 135, lines 18–22).
At one point, when his mother, the child care provider for his son, started complaining about FERBY not paying the rent, he attempted to intervene on behalf of his mother in an attempt to resolve the arrears amicably. So, he subsequently went to the commercial space and when he was there he observed that “[h]e blew the back wall back and took up more space than he was suppose to be taking”. He then met with FERBY at a restaurant to make arrangements for the payment of May and June rent and to negotiate a new lease for the extension of the commercial space without the authorization and consent of the owner.
He said unfortunately although the parties had talked about a new agreement, they never consummated that agreement. They were in negotiations about the lease but since FERBY did not pay May and June 2012 and it was now July, and FERBY did not communicate with them at all about the rent arrears, by July 2012, they went straight to court.
The witness further testified that he never had the opportunity to go into the rear storage space until the date of the eviction. He just presumed that the rear area remained the same; it was just the original commercial wall that was extended back around 25 feet. He stated that at the time that the Marshall came to do the eviction, he observed that there was a mattress in the middle of the floor in the commercial premises, the heater was on and that FERBY was sleeping in the commercial space. He testified that as the Marshall performed the eviction inventory, his father noticed that the face plate that was on the deadbolt lock on the rear was missing and “he said this guy changed the locks” (ROBERT VIDAL, JR. at p. 143, lines 14–21). He testified that the Marshall said “if it's your space, drill it out. We went into the back. We changed the lock in the back area” (ROBERT VIDAL, JR. at p. 143, lines 14–21).
He then observed bags of clothes and other miscellaneous personal items belonging to FERBY in the rear space. They observed that FERBY had started renovating that area, that there was exposed wooden studs and pipes; they were all exposed and open. He claimed that there was no toilet of any kind. It was never operative and there was no medicine cabinet. He stated that he had looked into the various bags which contained FERBY's clothing. Lastly, he claimed that JONERO, LLC., never collected any rent.
On cross-examination of Robert Vidal, Jr., he testified that the three men, himself, FERBY and his father met at Lindo's Diner. In addition to repeating the above testimony, he testified that since Mr. FERBY had extended beyond the original allotted space contrary to the lease, they had agreed that the rent would be increased to $3,000.00 and FERBY agreed to pay May and June 2012 at $3,000.00. They agreed to start fresh and agreed to waive all of the back rent if he paid those two months and paid his future rent timely. Robert Vidal Jr. was clear that at the time that they were negotiating the new lease terms, he had no knowledge that FERBY had encroached into the rear space for residential purposes.
After extensive repetitive questions on cross examination of the witness, redirect and recross, JONERO, LLC., rested on its defense.
This Court's trial notes and a review of the rebuttal hearing transcript of FERBY believes that FERBY did more harm than good. Hence, it is the opinion of this Court that the commercial nonpayment proceeding transcript was more akin to the truth than the facts as alleged in this post eviction Order to Show Cause.
In summation, FERBY argues that he was illegally evicted from the rear space. He claims that both parties had knowledge that the rear space was occupied for residential purposes. FERBY also asserted that the eviction was unlawful because NYC Marshall Giachetta wrongfully posted the Notice of Possession on the downstairs entrance door instead of the demised premises.
He also asserts that the landlord wrongfully removed all of his personal property from the subject premises. He argues that his TVs, photos, and all of those items are missing. He also claims that there were violations for the premises for electrical and plumbing deficiencies and no permits were issued by the proper government authority to perform the work on the subject premises.
FERBY demands a judgment of possession for restoration to the subject rear space and damages in the amount of $150,000.00.
JONERO, LLC., on the other hand, argues that there was no landlord and tenant relationship between JONERO, LLC and FERBY for the use and occupancy of the rear space. The rear space did not constitute a residential apartment inasmuch as it did not have any of the “characteristics” of an apartment. JONERO, LLC avers that neither party disputes the fact that the subject premises is a commercial unit and the certificate of occupancy and all of the other government agencies stated above restrict the demised building to commercial use and occupancy exclusively. JONERO, LLC., asserts that all of the evidence demonstrates that residential use of the building is unlawful. Therefore, the use by FERBY of this space is illegal and his Order to Show Cause should be denied as a matter of law. JONERO, LLC lastly, requests that this Court issue an expedited order and decision in this matter.
As agreed, this Court reviewed the entire transcript of the commercial nonpayment proceeding under landlord and tenant index number 079354/12 entitled “NELLIE VIDAL & JONERO, LLC., v. RODNEI FERBY ” for the front space at the demised premises. The transcript revealed the following facts.
NELLIE VIDAL testified in her case-in-chief. She testified that FERBY paid rent for the month of December 15, 2011 through January 15, 2012 and paid rent from January 15, 2012 through February 15, 2012. After this last payment, he failed to make any further rent payment. The witness then testified that FERBY made one other payment of $1,000.00. The total sum alleged owing was $16,000.00; $1,800.00 a month for 7 months, water and sewer charges in the sum of $1,522.00, and real estate taxes in the sum of $1,900.00. Then the final figure changed to a claim of $14,190.00 due and owing. Her testimony was unclear.
According to Mrs. Vidal, she hired an electrician named Augustine Degillio to inspect the work that FERBY completed at the property to determine if it was legally correct. The witness confirmed that she did not inspect FERBY's work because it was his place and that he wanted a rent abatement, which she did not concede to give him.
She also acknowledged that FERBY was given the keys prior to the lease execution. She stated that at one point, he gave her $1,000.00 plus an additional $1,200.00. She said that the $1,000.00 was for real estate taxes and the $1,200.00 was a partial payment toward the commercial rent for the front salon. The witness also denied that there was ever a fire at the subject premises.
FERBY testified in his own defense. He stated that the parties modified the lease agreement to provide that he got an abatement of rent for two weeks from January 15, 2012 to February 1, 2012 and that his monthly rent was now due on February 1, 2012. He further stated that he had paid $1,800.00 for rent from January 15, 2012 to February 15, 2012. He also said he paid February's rent. He claimed that she gave him the credit for the two weeks at the end of January due to the faulty electrical work that delayed the opening of the salon until February 1, 2012.
Then, FERBY testified that she gave him a rent abatement for the months of April 2012 and May 2012 and he paid rent for March 2012. He claimed that he paid $1,200.00 for March's rent and $1,000.00 for real estate taxes. The reason he paid $1,200.00 was because the space, once again, was not completed and “she said give me what you can give me”. “I said I will give you $1,200.00. I will pay the taxes. I paid the taxes a month in advance to help her out because she said they were strapped so I paid the taxes a month in advance” (FERBY, p. 45, lines 1–25 and p. 46, lines 1–3).
The Boddie court determined that the following rent was owed: monthly rent at $1,800.00 for February 2012, April 2012, May 2012, June 2012, August 2012, September 2012 and November 2012; $150.22 for water and sewer charges, and $976.06 for real estate taxes. Based on the evidence, the court found that FERBY paid rent for the months of December 2011, January 2012 and March 2012. FERBY presented evidence of the first month rent (initial receipt for rent from 12/15/2011–1/15/2012), second month rent (receipt dated 2/25/2012) and the last payment of $1000.00 and $1200.00 claimed by FERBY. The Boddie Court then entered judgment in the sum of $13,726 .28.
The claims made by FERBY at the hearing on the Order to Show Cause were not supported by the landlord and tenant trial transcript; in fact, in some instances, it was in opposite as fully discussed below. Therefore, it is the opinion of this Court that the trial record of the Boddie Court will not have any significant impact on the determination of this Court in this out-of-possession Order to Show Cause except the issue of the credibility of both parties. Since the order and decision of Judge Boddie is a determination on the merits after a full evidentiary trial, the order and decision is binding on this Court, particularly since the matter is on appeal and no final determination has been made by the Appellate Term, Second Department.
Findings of Facts and Conclusions of Law
The threshold issue in this case is whether the facts and circumstance as stated above are sufficient to establish a valid landlord and tenant relationship between the parties for the rental of the rear space.Basically, a lease is a contract (see Vermont Teddy Bear Company v. 538 Madison Realty Co., 1 NY3d 470, 475, 775 N.Y.S.2d 765, 807 N.Y.2d 876 ; Matter of Wallace v. 600 Partners Co., 86 N.Y.2d 543, 548, 634 N.Y.S.2d 669, 658 N.E.2d 715 ). Where the terms of a contract are clear and unambiguous, the contract must be enforced according to its terms (see Reiss v. Financial Performance Corporation, 97 N.Y.2d 195, 198, 738 N.Y.S.2d 658, 764 N .E.2d 958 ; WWW Associates v. Giancontieri, 77 N.Y.2d 157, 163, 565 N.Y.S.2d 440, 566 N.E.2d 639 ).
Generally, “a landlord and tenant relationship is governed by a contract by which an owner, or other party with title paramount, grants exclusive use or occupancy of a property to another for a specified term.” (Finkelstein v. Ferrara, Landlord and Tenant Practice in New York, 2:1, West's New York Practice Series F). The facts in this case involve the alleged rental of the rear space for residential purposes in contravention of the Certificate of Occupancy. Therefore, the case involves an illegal dwelling, that is, an alleged residential dwelling without a valid certificate of occupancy.
The law provides that “[n]o change shall be made in the occupancy or use of an existing building which is inconsistent with the last issued Certificate of Occupancy for such building unless a new Certificate of Occupancy is issued” (N.Y.C Adm.Code § 27–217). Therefore, no legal contract, verbal or in writing, can exist between FERBY and JONERO, LLC. for the rear space since the subject matter of the contract is illegal. Stated another way, no landlord and tenant relationship can be created for the use and occupancy of the rear space since it is a ity.
There are two avenues that would allow a landlord to rectify the illegality of the rear space. In one instance, the landlord may be able to “legalize” the alleged apartment, or in the other hand, the landlord may have the space vacated. The Civil Court of the City of New York is a court of limited jurisdiction. It has long been established that “except for proceedings for the enforcement of housing standards (CCA 110[a][4] ; 203[0] ) and applications for certain provisional remedies (CCA 209[b] ), the New York Civil Court may not grant injunctive relief (Broome Realty Associates v. Sek Ring Eng, 182 Misc.2d 917, 703 N.Y.S.2d 360 (App.Term, 1st Dept., 1999) ; See Lencal Realty Corp. v. Benn, 1 Misc.3d 134(a), 2003 NYSlipOp. 51640(U), 2003 WL23199951 [App. Term, 2nd & 11th Jud. Dists.] ). Thus, this Court has no power to direct the landlord to legalize an apartment; only the Supreme Court has the power to direct the landlord to legalize the rear space, but even that power is limited absent a contract between the parties for that exclusive purpose. It is undisputed that the lease between the parties does not mandate the conversion of this commercial space into a residential space. The law does, however, permit the landlord to recover possession of the premises.
It is irrefutable that the rear space in this case is illegal and accordingly, there is no landlord and tenant relationship between JONERO, LLC. and FERBY for the residential use of the rear space. The fact that the landlord may or may not have consented to the illegal use and occupancy is insufficient grounds for restoration, may not be a defense to a summary proceeding and “public policy would render negatory any consent thus given” (Wack v. Boutin, 81 N.Y.S.2d 281 [App. Term, 2d Dept., 1947] ). Accordingly, the contract, whether verbal or otherwise, for the rental of the rear was unlawful and unenforceable by this Court.
New York City Administrative Code § 26–521(a)(3) provides that it is unlawful to evict an occupant lawfully in possession of a dwelling unit without a court order, by changing the locks to the entrance of the unit and failing to provide the occupant with a key. In such instance, the remedy available to an occupant would include the commencement of a summary proceeding to be restored to possession pursuant to Section 713(10) RPAPL and/or an action for treble damages pursuant to RPAPL § 853. In our case, the Petitioner seeks restoration to the rear space. Section 853 of the RPAPL was expanded in 1981 to encompass evictions that are unlawful and unaccompanied by the use of force. Prior to the amendment, the law provided for recovery only in instances where possession was obtained by the use of illegal force. However, today, considering the legislature's amendment of the statute to include evictions undertaken in an “unlawful manner” in addition to those executed by force, treble damages can be imposed without a showing of physical force or violence in evicting a tenant (see O'Hara v. Bishop, 256 A.D.2d 983, 984, 682 N.Y.S.2d 291 [1998] ; Lyke v. Anderson, 147 A.D.2d 18, 27, 541 N.Y.S.2d 817 [1989] ).
Under common law, when a tenant failed to vacate after termination of the tenancy, the landlord could re-enter the premises peacefully and evict the tenant, or if he cannot do so, he could maintain an ejectment action (Hoske v. Gentzlinger, 87 Hun 3, 33 N.Y.S. 747 ; Bliss v. Johnson, 73 N.Y. 529, 537 ). The common law right of re-entry was not abrogated by the statutory remedy of summary proceedings (Cohen v. Carpenter, 128 A.D. 862, 113 N.Y.S. 168 ; Stock v. Fredamil, 177 Misc. 897, 31 N.Y.S.2d 448 ). Multiple authorities continue to hold the common law remedy of reentry, which is customarily reserved in commercial leases, has not been abrogated by statute (See 110–45 Queens Blvd. Garage, Inc. v. Park Baiar Owner's, Inc., 265 A.D.2d 415, 696 N.Y.S.2d 490 revg. 177 Misc.2d 555, 677 N.Y.S.2d 424 [2d Dept., 1998] ).
In all commercial leases, including the lease in this case, the landlord must reserve its common law right to peaceably re-enter commercial premises upon the termination of the lease or default in the payment of monthly rent. The courts have repeatedly held that a commercial landlord may reserve that right, but only if the re-entry can be effectuated peaceably. Forceful entry or forceful measures have been condemned by the courts and are not permissible (See Michaels v. Fishel, 169 N.Y. 381, 62 N.E. 425 ; Matter of Jovana Spaghetti House v. Heritage Co. of Massena, 189 A.D.2d 1041, 1042, 592 N.Y.S.2d 879 ; Cohen v. Carpenter, 128 A.D. 862, 113 N.Y.S. 168 ; Liberty Industrial Park Corp. v. Protective Packaging Corp., 71 Misc.2d 116, 119, 335 N.Y.S.2d 333, aff'd 43 A.D.2d 1020, 351 N.Y.S.2d 944 ).
In a majority of the cases in this area, the right of re-entry is only triggered upon a default under the terms of the lease by non-payment of rent. The commercial lease in this case is the standard store lease issued by Blumberg Excelsior, Inc. (A 35–lease, Business premises. Loft, Office or Store) and contains, in paragraph 6, in relevant part, that “[I]f tenant shall make default in the payment of rent reserved herein, or any item of additional rent herein mentioned, or any part of either, or in making any other payment herein required; then, and in any of such events, owner may immediately or at any time thereafter, re-enter the demised premises and remove all persons and all or any property therefrom by summary dispossess proceedings or by any suitable action or proceedings at law or by force or otherwise, without being liable for indictment, prosecution or damages thereof, and re-possess and enjoy the premises together with all additions, alternations and improvements.” This lease, like the other commercial cases reviewed by this court, ties the right to peaceably re-enter to gain possession to a breach of the obligation to pay monthly rent (see Bozewick v. Mash Metalwear Co., 284 A.D.2d 288, 725 N.Y.S.2d 671 ), and it has been repeatedly held that the landlord must first make a demand for the rent (Kepo, Inc. v. Romano, 85 A.D.2d 621, 445 N.Y.S.2d 23 ; Earl v. Vallen, 273 A.D.2d 451, 78 N.Y.S.2d 92; Pine Hill Assoc. v. Malveaux, 93 Misc.2d 63, 64, 403 N.Y.S.2d 398 ). See also the recent matter of North Main Street Bagel Corp. v. Duncan, 63 AD3d 590, 775 N.Y.S.2d 362 [2004] in which the Appellate Division, Second Department determined that the landlord did not make a demand for rent before re-entering and re-letting the premises and therefore, the eviction was wrongful and deemed it a trespass by the owner. The court remanded the trial court to determine the issue of damages. See also the matter of Lee v. Part, 16 AD3d 986, 793 N.Y.S.2d 214 (App.Div. 3rd Dept.[2005] ), where the tenant initiated a proceeding to recover possession after the landlord locked him out of the business for the failure to pay rent. In that case, the tenants traveled to New York City to seek financial assistance to pay the rent. While absent, members of their staff gave the landlord a key and the landlord subsequently padlocked the door to the store. On the same day, the landlord sent a 3–Day Notice by certified mail and allegedly posted copies on the tenant's home and business. The courts held that the “Respondent failed to establish a right to re-enter the premises While a landlord may avail himself or herself of a lease provision permitting re-entry upon breach of conditions as long as he or she re-enters peaceably” (citing Matter of Jovana Spaghetti House v. Heritage Co. of Massena, 189 A.D.2d 1041, 1042, 592 N.Y.S.2d 879 [1993] ), “the landlord must first make a demand for the rent” (North Main Street Bagel Corp. v. Duncan, 63 AD3d 590, 591, 775 N.Y.S.2d 362 [2004] ). The court further found that although Article 20 of the lease allowed re-entry and repossession upon the tenant's default, here the landlord chained the store doors the same day he mailed and posted the 3–Day Notice. Consequently, the landlord was not authorized to re-enter before demanding the rent and thus, the eviction was unlawful.
In the case Sol De Iviza, LLC v. Kanjo Realty, Inc., 29 Misc.3d 72, 911 N.Y.S.2d 567 [2010], the Appellate Term, First Department reaffirmed this rule of law and set forth a more detailed legal yardstick in these types of cases. The court starts by stating that “although eviction through legal process is undoubtedly the most secure method, it is well-settled that a landlord may, under certain circumstances, utilize self-help to regain possession of commercial premises (citing Zendani v. Morina Realty Corp., NYLJ, 3/11/99, p. 28, col.3 [App. Term, 1st Dept.]; see also Liberty Industrial Park Corp. v. Protective Packaging Corp., 43 A.D.2d 1020, 351 N.Y.S.2d 944 [1974]aff'd. 71 Misc. 2nd 116, 335 N.Y.S.2d 333 [1972] ). The test in determining a commercial landlord's proper utilization of self-help must contain the following elements: (1) the subject lease specifically reserves the landlord's right to re-enter and regain the premises upon the tenant's breach of its obligation to pay rent, (2) prior to re-entry, landlord serves upon a tenant valid rent demand, (3) re-entry was effectuated peacefully, and (4) tenant is, in fact, in default of its obligation to pay rent (Bozewick v. Mash Metalwear Co., 284 A.D.2d 288, 725 N.Y.S.2d 671 [2001] ; Matter of 110–45 Queens Blvd. Garage, Inc. v. Park Briar Owners, Inc., 265 A.D.2d 415, 696 N.Y.S.2d 490 [1999] ; Matter of Jovana Spaghetti House v. Heritage Co. of Massena, 189 A.D.2d 1041, 1042, 592 N.Y.S.2d 879 ; see also matter of Lee v. Part, 16 AD3d 986, 793 N.Y.S.2d 214 [2005] ; North Main Street Bagel Corp. v. Duncan, 63 AD3d 590, 775 N.Y.S.2d 362 [2004] ; 2 Dolan, Rasch's New York Landlord and Tenant-summary proceedings, Sections 29; 1, 29; 11 [4th Ed.] ). The court determined that although the landlord's lease agreement reserved the right to re-entry, the record on appeal was insufficient to determine if the appropriate elements had been established and accordingly, remanded the matter to the trial court for a hearing in accordance with their decision.
Often, in commercial proceedings, the landlord will change the locks and retain the keys. Such conduct operates as an eviction. The act of the landlord entering into the premises by changing the locks operates to deprive the tenant of its use of the premises sufficient to terminate the lease (Constitutional Realty Corp. v. Pudder, 54 A.D.2d 537, 387 N.Y.S.2d 1 [1st Dept.1976] ). A key is the symbol of possession, just as the surrender of the key by the tenant is evidence of an intent on his or her part to surrender possession (See the old case of American Track Society v. Jones, 76 Misc. 236, 134 N.Y.S.2d 611 ). Thus, when a landlord arbitrarily refuses to furnish the tenant with a key, even when the tenant has offered to pay the rent, “shows such a hostile attitude on part of the landlord towards the tenant, such willful disregard of the tenant's rights and such willful and unreasonable interference with the tenant's enjoyment of the lease premises is tantamount in law to an eviction. Even possession by a subtenant of a key to the premises is not a possession by the tenant, essential to the full possession of the premises” (American Track v. Jones, supra). It has long been held that changing locks on the premises and preventing access by the tenant amounts to a wrongful eviction (3855 Broadway Laundromat, Inc. v. 600 West 161 Street Corp., 156 A.D.2d 202, 548 N.Y.S.2d 461 (1st Dept.[1989] ) ; Barsh v. Pennsylvania Terminal Real Estate Corp., 26 N.Y.2d 77, 308 N.Y.S.2d 649, 256 N.E.2d 707 ; Mitchell v. City of New York, 154 Misc.2d 222, 584 N.Y.S.2d 277.
As equally important to the above analysis, the Housing Court and Commercial Part do not have the jurisdiction over a cause of action for damages, including damages pursuant to RPAPL Section 853. Kiryankova v. Brovkina, 2003 N.Y.SlipOp. 50920[U], 223, 2003WL21246185 [2003]; See also matter of Bedford Garden Co. v. Silberstein, 269 A.D.2d 445, 702 N.Y.S.2d 884 [2000] ; ANE Tiebout Realty, LLC v. Johnson, 26 Misc.3d 131[A], 2010 N.Y.SlipOp. 500 55 [U] 2010WL174863 [2010], aff'd. for reasons stated at 23 Misc.3d 1112[A] 2009 N.Y.SlipOp. 50715[U] at Star 4, 2009WL1037741 [2009] ). Damages for a wrongful eviction including RPAPL § 853 damages must be sought in a plenary action in a court of competent jurisdiction. (Saczheri v. Cathedral Props. Corp., 16 Misc.3d 111, 114, 842 N.Y.S.2d 676 [2007] ; ANE Tiebout, supra. See also the matter of Rostant v. Swersky, 79 AD3d 456, 912 N.Y.S.2d 200 [App. Div., 1st Dept., 2010], which discussed the proscription against the Housing Court determining damages pursuant to Section 853 of the RPAPL. Moreover, see Eze v. Spring Creek Gardens, 85 AD3d 1102, 925 N.Y.S.2d 888 [App. Div., 2nd Dept, 2011], affirming that the Housing Part of the Civil Court lacks jurisdiction over the cause of action seeking to recover treble damages pursuant RPAPL § 853.
It is well-settled that where the Court finds that an unlawful eviction has occurred, restoration is an appropriate remedy well within that court's authority to order. (See Banks v. 508 Columbus Properties, 8 Misc.3d 135(A) (App.Term, 1st Dept., 2005) (ordering restoring occupant to premises after finding of illegal lockout affirmed); Restant v. 700 RSB Acquisitions LLC, 21 Misc.3d 138(A) (App.Term, 1st Dept., 2008) (affirming restoration to possession of stepdaughter of deceased tenant-of-record after illegal lockout); Saccheri v. Cathedral Properties Co., 16 Misc.3d 111, 842 N.Y.S.2d 676 (App. Term, 9th & 10th Jud. Dists., 2007) (reversing lower court's failure to restore tenant to possession after illegal lockout).
In a case in which the Appellate Term reversed the lower court, as to Appellant's request to be restored to possession, it is undisputed that Appellants were not removed pursuant to a judgment or order from the court and thus, the court was without authority, in this nonpayment proceeding commenced by the landlords to direct landlord to restore Appellant's to possession (see for example, the cases Ric–Mar Equity Ventures v. Murrell, 184 Misc.2d 298 [App. Term, 2nd & 11th Jud. Dists., 2000] ; Tsafatinos v. Jimenez, N.Y.L.J. 2/9/99 [App. Term, 2nd & 11th Jud. Dists.] ).
In Pied–A–Terre Network Corp. v. Porto Resources, LLC, 33 Misc.3d 126(A), 2011 WL4486723 [NY Appellate Term, 1st Dept., 2011], the court found that “even assuming, without deciding, that Petitioners were unlawfully evicted as alleged in the Petition, “restoring Petitioner[s] to possession would be futile, because a summary proceeding brought by Respondents would result in Petitioners' certain eviction” (Soukousuna v. 365 Canal Corp., 11 Misc.3d 137(A); 2006 N.Y.SlipOp. 50522(U), 2006WL822915 (App.Term, 1st Dept.[2008] ), supra, particularly for commercial premises with no leasehold interest. The court lacks jurisdiction over the branch of RPAPL Art. 7 restoration petition which sought damages including treble damages pursuant to RPAPL 853 (citations Rofante v. Swerski, 79 AD3d 456 [2010] ; Eze v. Spring Creek Gardens, 85 AD3d 1102 [2011] ).
See also the matter of Satchell v. Nicholson, 39 Misc.3d 217, 959 N.Y.S.2d 410, 203 N.Y.SlipOp. 23032, in which it was determined that the court lacks authority to restore the tenant to possession who was not removed pursuant to a judgment or order. The tenant was not removed pursuant to a judgment or order of the court, the court was without authority to direct the landlord to restore the tenant to possession; the tenant's remedy in such circumstances is to commence a proceeding to be restored to possession pursuant to RPAPL § 713(10) ; CPLR § 5015(d). The Court said “[t]he Respondent was not evicted by a Marshall pursuant to a judgment or an order. Accordingly, she may not be restored to possession by a motion made in a proceeding commenced by the tenant. Instead, she must commence her own proceedings. In a summary proceeding, commenced by landlord, the authority of the Civil Court to restore a tenant to possession is an incident of its power to vacate its own judgments and orders (CPLR § 5015(d) ; § 5523; Haebler v. Myers, 132 N.Y. 362, 30 N.E. 963 ; Iltit Associates v. Sterner, 63 A.D.2d 600, 405 N.Y.S.2d 68 ). Where, as here, the tenant is not removed pursuant to a judgment or order of the court, the court is without authority to direct the landlord to restore the tenant to possession. The tenant's remedy in this circumstance is to commence a proceeding pursuant to RPAPL § 713(10) to be restored”. Id.
The most difficult challenge in this case involves the other relief sought by FERBY—the restoration to possession.
In some cases, notwithstanding a finding of wrongful eviction, our courts deny restoration in matters where restoration may be futile because the party or entity would be subject to eviction anyway. In such cases, courts have often limited the occupant to money damages for wrongful evictions. Generally, the rationale behind such holdings is that restoration to possession may be futile where the person or entity would be subject to eviction anyway. (See Soukousuna v. 365 Canal Corp., 11 Misc.3d 137(A), 2006 N.Y. Slip Op. 50522(U), 2006 WL822915 (App.Term, 1st Dept.). In Soukousuna v. 365 Canal Corp., the trial court determined that there was sufficient evidence to find that the use of the premises was illegal but directed that the tenant be restored to possession since the landlord had used self-help rather than commencing a summary proceeding. It is rare that any court, trial or otherwise, would restore an occupant to an illegal property. The Appellate Term modified the Trial Court's decision by declining to restore the tenant to possession. The Appellate Division affirmed the determination not to restore the tenant to possession, holding that while the tenant was appropriately awarded damages for the unlawful eviction, it would be futile to restore the tenant to possession because the tenant had been using the premises for illegal purposes and “the summary proceeding brought by Respondent would result in Petitioner's certain eviction”.
Likewise, in the matter of 110–45 Queens Blvd. Garage, Inc. v. Park Briar Owners, Inc., 265 A.D.2d 415, 696 N.Y.S.2d 490 [1999], the Appellate Division, Second Department, found for a landlord that asserted its common law right for peaceable re-entry to recover possession. The tenant was not entitled to repossession after a forceful entry but was relegated to recovery of damages resulting from a forcible re-entry. The court reasoned that there was a question of fact as to whether the ouster was peaceable or forcible (citing Lari-kay Golf v. Lasner, 93 A.D.2d 857, rev'd on other grounds at 61 N.Y.2d 722 ). “However, it is clear from this record that restoring the Petitioner to possession would be futile, because the Appellant would prevail in a summary proceeding to evict the Petitioner (citing Wagman v. Smith, 161 A.D.2d 704, 555 N.Y.S.2d 839 ; Friends of Yelverton v. 163 Street Improvement Council, 135 Misc.2d 275, 514 N.Y.S.2d 841; 135 Misc.2d 275, 514 N.Y.S.2d 841 ; Yates v. Kaplan, 75 Misc.2d 259, 347 N.Y.S.2d 543 ; Bresler v. Amsterdam Operating Corp., 194 Misc. 76, 86 N.Y.S.2d 250 ). The Petitioner, if it be so advised, may move in the Civil Court to assert a claim to recover damages for forcible re-entry.”
In Wagman v. Smith, 161 A.D.2d 704, 555 N.Y.S.2d 839 [1990], the Appellate Division, Second Department, held that notwithstanding the fact that the owner should have sought a writ of assistance to evict an occupant, rather than just change the locks, there was no need to restore the occupant to possession simply to be subject to eviction after a writ of assistance is obtained and executed by a Sheriff. (See also Brown v. 165 Conover Assoc., 5 Misc.3d 128(A), 204 N.Y.SlipOp. 51244(U), 2004WL2381393 [App. Term, 2nd Dept .] holding that a licensee not claiming any tenancy rights should not be restored to possession after the death of the tenant and expiration of the license]; Burnstein v. Rosenbaum, 20 Misc.3d 138(A), 2008WL2832169 [App. Term, 2nd Dept., 2008] ).
See also a well-written decision in the matter of SITC Inc. v. Riverplace Holding LLC, 23 Misc.3d 219, 870 N.Y.S.2d 879 (Civ. Ct, N.Y. Cty [2008], where Judge Krauss determined that a commercial tenant was not entitled to be restored to possession of multiple rent-stabilized apartments due to the unlawful eviction by the landlord on three specific grounds, to wit: the tenant was an illusory tenant who rented the subject premises for the sole purpose of subletting to short-term occupants for financial gain, the eviction was accomplished without the use of force and no individual occupant was displaced from the subject premises and pertinent to this proceeding, legal authority supports denial of restoration to possession even where the eviction was unlawful where restoration would be futile. Judge Kraus, reasoned that the recovery in that case was limited to monetary damages. The tenant in that case was operating in contravention of the rent stabilization law and the court justifiably denied the relief to be restored to possession. She even acknowledges that “there are certainly grounds upon which Respondent could have proceeded to legally evict the Petitioner. Respondent could have commenced an action for non-payment of rent. The Respondent could have served the Petitioner with notices of non-renewal during the Golub period based upon non-primary residency. The Respondent did not, and in fact, sends Petitioner offers of renewal which were executed and returned by the Petitioner. However, given the court's finding that the underlying tenancies are illusory, tenancies in violation of the rent stabilization law, as well as consideration of the other issues discussed above, the court holds that restoration to possession would be improper, despite the illegality of the underlying eviction. Petitioner should be relegated to an action for monetary damages.”
Turning to our last substantive issue of law applicable in this case, the Court finds applicable the doctrine of judicial estoppel or what has been called the Doctrine of Inconsistent Positions. This doctrine precludes a party from asserting a claim which is inconsistent with a position taken in a prior judicial proceeding (Kimco of N.Y. v. Devon, 163 A.D.2d 573 (2nd Dept., 1990). The doctrine is intended to preclude the party in one case from asserting facts one way and then contend in another judicial proceeding that the same facts should be found otherwise.
The doctrine rests upon the principle that a litigant “should not be permitted to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise.” Environmental Concern v. Larchwood Construction Corp., 101 A.D.2d 591 (2nd Dept., 1984.) The doctrine is also applicable when a party to an action has secured a judgment in its favor by adopting one position and then sought to assume a contrary position in another action, simply because its interests have changed. Inherent in such a claim is the fact that the prior inconsistent position must have gained judicial acceptance or been endorsed by the court in some manner. Ferrera v. Wycckoff Heights Medical Center, 12 Misc.3d 1180(a) (2006).
Judge Kraus in 465 Harman LLC. V. Quinones, 1/3/2007, NYLJ, p. 24, col. 1, used this doctrine to hold that the Petitioner–Landlord could not treat the tenant as a tenant in one case and in another proceeding claim that the tenant was an undertenant. In the first proceeding, the landlord had obtained a judgment for money against the tenant and obtained funds from FELPS (Family Prevention Eviction Subsidy) on behalf of the tenant. The court finding that the landlord would have to acknowledge a landlord and tenant relationship in order to obtain the funds from the government. In the second proceeding, the owner alleged that the tenant had no tenancy rights and no rights to possession. Judge Kraus dismissed the arguments by the attorney for the Petitioner which relied upon the finding in Martinez v. Jacobson, 225 A.D.2d 521 (2nd Dept., 1998) which stood for the proposition that so-ordering of a stipulation and granting of a judgment were no more than ministerial acts. She reasoned that “the Court in Martinez specifically limited its holding to the unique circumstance' of that case. Moreover, Martinez involved no question of judicial estoppel, and was an action where both parties were represented by counsel. Other cases have held that a stipulation that is so-ordered by the court constitutes a sufficient judicial endorsement of a party's position to invoke judicial estoppel. Manhattan Avenue Development Corp., v. Meit, 224 A.S.2d 191 (1st Dept., 1996); NYC Econ. Dev. Corp., v. Harborside Mini Storage, Inc., 12 Misc.3d 1155(a) (2006)”.
Now turning our attention to the case at bar, after a four-day hearing, on April 24, 2013, May 29, 2013, June 5, 2013 and June 6, 2013, the Court had ample opportunity to observe the demeanor and credibility of the witnesses, carefully reviewed, assessed and evaluated all of the testimonial and documentary evidence in this case, and reviewed the transcript of this hearing and the transcript of the above commercial nonpayment proceeding, and finds that the eviction was lawful and shall remain lawful unless the underlying judgment and warrant are vacated by the Appellate Term on appeal.
It is the opinion of this Court that the testimony of FERBY in rebuttal to JONERO'S claims was inconsistent, confusing and more ambiguous than ever. It was nothing short of disastrous. FERBY offered no useful testimony to rebut JONERO, LLC.'s defense. He offered different versions of alleged agreements between the parties, different versions of why he failed to pay rent, different versions of the amount he paid to the owner and different versions of why he paid it to the owner.
So from the transcript of this hearing, FERBY states in version one: “[w]e did not have to pay for rent that was abated from March in our testimony with Judge Boddie the payment were on December. We made first month, present and two months security. On January 15, it was time to pay the rent for January 15, went from January 15 through February 15. I met her to give her a check. We now going to move your rent date from the first of the month. We're going to abate you the last two weeks in February” (FERBY, rebuttal, pg. 25, Lines 7–20). It should be noted that in the commercial nonpayment case as provided below, he claimed that she gave him the credit for the two months at the end of January due to the faulty electrical work that delayed the opening of the salon until February 1, 2012.
He later states that “[t]he rent for the rear space was waived for December, January and February” (FERBY, rebuttal, p. 52, lines 7–20).
Then, FERBY testifies that “there was going to be no payment for the commercial space for March and April. They received the payment for the rear space for $1200.00. May. It was just basically when they claim they expected three rent which was is a hundred for front, $1200.00 for back” (FERBY, rebuttal, p. 49, lines 1–12). He even claimed that he did not owe January, February, March or April rent. He paid $1200.00 for the rear and the front space was free (FERBY, rebuttal, p. 49, lines 13–24).
Then after discovery of the encroachment in the back space, he claimed that the owner told him that if he paid May and June 2013 rent, paid the increase in rent to $3,000.00, paid on time and if all those conditions were met, FERBY would be offered a new lease despite his default in the lease. At that time, any back rent arrears would be waived and she would not see him until May 2013 for rent collection.
Then, he claimed that the owner gave him permission to create whatever he wanted in the rear. The rear part of the property was supposed to be “[t]the private studio, vision, vision of flourish on Fifth Avenue” and he “had permission from the landlord to create whatever floor plan [he] wanted” (FERBY, rebuttal, p. 40, lines 7–8 and lines 22–24).
Then, FERBY further claimed that he had permission to use the rear for living space. (FERBY-rebuttal, p. 41, lines 10–11). Query: if he was given permission and given the keys, then why did he admit that he changed the locks on the rear space in May 201[3] (FERBY, cross examination, p. 42, lines 5–8).
This hearing is a classic example of a blatant disregard for the truth and the damage that it reaps when it is carelessly disregarded .In the nonpayment proceeding, the facts as described by the parties are probably more close to the truth than the facts alleged in this post eviction hearing. The claims between the parties arose as a result of the simple execution of a commercial lease for commercial purposes in a building classified for commercial purposes. But sometimes, the parties involved turn simplicity into complexity.
In the nonpayment proceeding, it was clear to this Court from the transcript that the owner, Nellie Vidal, was not explicitly clear about the amounts due and owing by FERBY or the amounts paid by FERBY. She was at least able to state with some degree of specificity the amount of the monthly rent, the amount of the real estate taxes and the amount of the water and sewer charges for the property. She testified that her tenant sought a rent concession during his “build out” of the property and she was unwilling to give him the rent concession since he was not paying rent. She stated that when he failed to make the payments, she brought a nonpayment case.
During the nonpayment case, FERBY acknowledges that he entered into possession of the subject premises for commercial purposes. He paid one month rent and two months security and made additional rent payments. Due to the faulty electrical wiring in the premises, he sought a rent abatement. He claimed that he got an abatement from the landlord for the last two weeks in January 2012 and then his rent became effective on the first of the month thereafter in February 2012. He paid February and March 2012 and the landlord agreed to abate April and May 2012. He stated that he paid $1,200.00 for March rent and paid $1,000.00 for real estate taxes. He stated that the reason that he paid the $1,200.00 was the space was once again not completed and the landlord agreed to accept the $1,200.00, which was all he was able to pay at that time. The only real dispute in the nonpayment proceeding between the parties was whether or not there was a rent abatement and for what month. There was no dispute regarding the payment of the rent in March 2012 and the purpose for the payment.
There was also no dispute between the parties regarding why the tenant was seeking a rent abatement. It was clear that the subject premises had electrical problems that were not resolved. At least the parties were in accord to the extent that they both acknowledged that electrical work was required to be performed in the rear of the premises in order to disconnect the electricity between the first and second floors.
In his nonpayment case, FERBY claims that he was entitled to a rent abatement based upon defective services in the premises. He claims that he made a partial payment of $1,200.00 because he lacked funds and $1,000.00 for real estate taxes but in the out of possession Order to Show Cause, FERBY proffered different facts which are precluded under the equitable doctrine of judicial estoppel. Here, as we have seen, he claims that the March payment of the $1,200.00 was now for the rear space. He also now claims the landlord had notice that he was using the rear for residential purposes and in fact, suggested that the landlord encouraged him to convert the rear space to residential use. As discussed above, judicial estoppel prohibits a party from asserting one type of claim in one case and asserting a different claim in another case. Kimco of N.Y. v. Devon, 163 A.D.2d 573 (2nd Dept., 1990; Environmental Concern v. Larchwood Construction Corp., 101 A.D.2d 591 (2nd Dept., 1984.). This Court grants no weight to the testimony by FERBY that the monthly rent paid for March 2012 was rent for the rear apartment. Based on the fact that his earlier testimony was that he paid the $1,200.00 as a partial payment and the $1,000.00 for real estate taxes, this court completely discredits his testimony in this out of possession Order to Show Cause. As stated above, his motive to not be truthful is obvious; he seeks to be restored to the rear of the property allegedly used as an apartment. But for this claim, there would be no grounds for this entire hearing since his eviction from the commercial space was based on court order and his eviction from the rear was not by court order.
This is what really happened. Mr. FERBY, a young, enthusiastic, energetic, and creative young man relocates from the Midwest to New York City with the hopes of opening a spectacular beauty salon. His motives and his dreams were real; the problem was that he did not have sufficient capital to live out his dreams. FERBY himself acknowledged that he was undercapitalized and that he had to do most of the construction labor himself. He claimed that he provided and paid for all of the equipment and the fixtures, but this obligation to perform the renovations to accommodate his business as a beauty salon was his legal obligation pursuant to the signed lease. FERBY also admitted that this alleged apartment was supposed to be a temporary and he would occupy the rear space only until he finished the salon, opened the salon and then made sufficient income to find alternative housing.
This entire commercial venture proved to be more of a financial burden and hardship to FERBY than he anticipated. Even during his testimony, he acknowledged, as well as his mother, Mrs. Dockery, that he could not pay his rent at the commercial space and also do the build out. His undercapitalization as stated above was the cause of his relinquishment of his residential apartment, if he ever even had one, to take up occupancy in this commercial space.
FERBY did what he thought was expedient for his personal and professional survival; and up until his eviction on January 31, 2013, his plans worked. He developed the commercial space, unlawfully extending the commercial space into the landlord's space, and then he creates a living space in the rear of the property due to his financial hardship.
The Court finds that contrary to FERBY and his witnesses, they being his closest friends and family, that the landlord did not have actual knowledge that the rear space was converted to a living space until the day of the eviction. The testimony in the nonpayment proceeding did not elude to any of the claims by FERBY that the landlord and him agreed that he could occupy the back space of his commercial space for residential purposes. At a point in time, the owners did become aware that he had extended his commercial space into their rear space but the court finds credible the testimony of Nellie Vidal and her family members that they were unaware that FERBY was using the rear of the subject premises as an apartment or even sleeping in the front salon space until the date of the eviction.
Even if the Court were to accept the claims by FERBY that the owner had knowledge that he occupied the rear space for residential purposes and actively participated in its unlawful conversion, this Court has no authority to restore him to possession of the rear space in contravention of local law. Assuming arguendo that the landlord had knowledge that FERBY was using the rear of the subject premises for residential purposes, the conclusion of the court would not be any different. Whether or not the landlord had knowledge of the residential use or whether or not the parties colluded together for FERBY to occupy the rear space of the subject premises, this Court shall not enforce an agreement by the parties to engage in an act that is in violation of local law (citations). As agreed at the hearing, this Court took judicial notice of the various government websites which states the legal status of the property as commercial, and although this building does not have a Certificate of Occupancy (the building was built prior to 1932), its classification is for commercial use only.
FERBY would be mandated to obtain the necessary permits, licensing and plans to alter the subject premises from commercial to residential use. The record is completely devoid of any testimony that such plans were requested, nonetheless, filed with the appropriate city agencies. In fact, all of the work that was done on the second floor including the work performed by FERBY and the owner, the Court has great reservation as to its conformity with the NYC Building Code, the Electric Code, Plumbing Code and other related building regulations. The testimony was also completely void of any testimony from either party that a licensed electrician, a licensed plumber or a home contractor of any kind was authorized by any regulatory agency to perform the required work in that space.
This Court further finds the testimony of FERBY against the weight of the credible evidence. FERBY and his mother both admitted that FERBY was undercapitalized in this project. His financial inability to pay the rent and the loss of his alleged investment in the sum of $15,000.00 to $20,000.00 due to this proper eviction from the front salon space are motives for FERBY not to reveal the entire truth in this case. The lease states that FERBY was obligated to perform the work on the subject premises (Petitioner's Exhibit “7”, paragraph 11 of the Rider to the lease agreement admitted into evidence). His eviction proves that FERBY, notwithstanding his contractual obligation to perform the work, unfortunately, did not have the ability to simultaneously pay for the work required to open his business and to pay the rent.
The Court finds that notwithstanding FERBY's claim, he was, in fact, served with the New York City Marshall's Notice. A review of the photographs admitted into evidence as Petitioner's “5A” and “5B” and the certified mail receipt shows that the numbers are identical, and the photographs are proof that both of those notices were inside of the front space of the demised premises on the date of the eviction. The Marshall, rightfully so, was quite pleased to discover the Marshall's notice in the demised premises because it was proof to him that his staff was competently performing their jobs in his office. FERBY's claim that he did not receive the Notice of Eviction is absolutely false and this evidence rebuts that claim in its entirety.
This Court also finds that the affixation by NYC Marshall Giachetta of a copy of the actual Notice of Possession to the entrance door on the first floor instead of the demised premises on the second floor did not constitute any unlawful or improper act nor a deviation from any standard of care or customary practice in the execution of the warrant of eviction here. The Marshall acted with due diligence and acted reasonably under the circumstances. His legal obligation was to ensure that FERBY had notice that the landlord had legal possession of the demised premises. Since FERBY was the only tenant on the second floor, it was appropriate for NYC Marshall Giachetta to affix or to attach the notice to the front entrance door to the second floor since the landlord had changed the locks there as well as changed the locks on the second floor of the demised premises.
Having made these aforementioned findings, and just as important as all of the above, the Court further finds that the landlord changing the lock(s) to the rear space constitutes self-help authorized by common law, by N.Y. statute and by the rental agreement between the parties.
As set forth above, the Courts recognize the rights of a landlord to use self-help in specific circumstances (Bozewick v. Mash Metalwear Co., 284 A.D.2d 288, 725 N.Y.S.2d 671 [2001] ; Matter of 110–45 Queens Blvd. Garage, Inc. v. Park Briar Owners, Inc., 265 A.D.2d 415, 696 N.Y.S.2d 490 [1999] ; Matter of Jovana Spaghetti House v. Heritage Co. of Massena, 189 A.D.2d 1041, 1042, 592 N.Y.S.2d 879 ; see also matter of Lee v. Part, 16 AD3d 986, 793 N .Y.S.2d 214 [2005] ; North Main Street Bagel Corp. v. Duncan, 63 AD3d 590, 775 N.Y.S.2d 362 [2004] ; 2 Dolan, Rasch's New York Landlord and Tenant-summary proceedings, Sections 29; 1, 29; 11 [4th Ed.] ). This court is of the opinion that the facts in this case fit the criteria required by the Appellate Division, Second Department. The only quagmire is the absence of service of a specific rent demand for the rear space. Notwithstanding this deficiency, this Court shall apply a more progressive interpretation of the above criteria to the specific facts in this case in the interest of efficient resolution of the dispute between these parties that has waged on since the inception of this commercial tenancy in 2011, to avoid duplicative litigation between the parties and to preserve judicial time and resources with the identical parties.
Let's review them. FERBY claims in this proceeding that JONERO, LLC. granted him authority to occupy the rear for residential purposes and the parties agreed on a monthly rent of $1,200.00. FERBY claimed that that he owed rent for the rear part of the property. This fact is undisputed. Since the lease agreement only provided for the front part of the property and FERBY encroached on the landlord's rear space, the Court finds that there was sufficient notice from the landlord that rent was due and owing for the entire second floor including the rear space. Hence, service of the rent demand for the front space is tantamount to service of the rent demand for the rear space. Since, according to FERBY, the rent demand constituted a demand for the rent for the rear space too, it is irrefutable that FERBY claimed that he was paying rent for the rear space when he made the subsequent rent payments.
This Court also specifically observed that FERBY admitted that he got the five day notice and then the dispossess, and he is now estopped from denying actual notice of the rent due and owing for the second floor. It should make no difference to this Court if the notice was for the front or the rear; he was in exclusive possession of the second floor and hence, notice of the front arrears was also notice of the rear arrears. Therefore, service of a rent demand for the second front floor satisfies a demand for the rent of the entire space including the rear space.
Of equal significance, Paragraph 6 of the lease provides that “[I]f tenant shall make default in the payment of rent reserved herein, or any item of additional rent herein mentioned, or any part of either, or in making any other payment herein required; then, and in any of such events, owner may immediately or at any time thereafter, re-enter the demised premises and remove all persons and all or any property therefrom by summary dispossess proceedings or by any suitable action” (emphasis added). This lease, like the other commercial cases reviewed by this court, ties the right to peaceably re-enter to gain possession to a breach of the obligation to pay monthly rent (Bozewick v. Mash Metalwear Co., 284 A.D.2d 288, 725 N.Y.S.2d 671, and FERBY'S failure to pay rent for the entire commercial space was sufficient grounds for JONERO, LLC. to invoke the right of self-help to recover possession of the rear space (Kepo, Inc. v. Romano, 85 A.D.2d 621, 445 N.Y.S.2d 23 ; Earl v. Vallen, 273 A.D.2d 451, 78 N.Y.S.2d 92; Pine Hill Assoc. v. Malveaux, 93 Misc.2d 63, 64, 403 N.Y.S.2d 398 ); cf. North Main Street Bagel Corp. v. Duncan, 63 AD3d 590, 775 N.Y.S.2d 362 [2004].
Having determined that the Marshall's actions were proper during and at the eviction, and that he properly exercised his discretion and judgment in looking into the rear space and allowing the owner to change the locks, this Court deems both actions “suitable actions” by the landlord to regain possession of the rear space for nonpayment of rent by self-help in accordance with the terms and conditions of the lease agreement between the parties (Michaels v. Fishel, 169 N.Y. 381, 62 N.E. 425 ; Matter of Jovana Spaghetti House v. Heritage Co. of Massena, 189 A.D.2d 1041, 1042, 592 N.Y.S.2d 879 ; Cohen v. Carpenter, 128 A.D. 862, 113 N.Y.S. 168 ; Liberty Industrial Park Corp. v. Protective Packaging Corp., 71 Misc.2d 116, 119, 335 N.Y.S.2d 333, aff'd 43 A.D.2d 1020, 351 N.Y.S.2d 944 ).
Even if this Court were to find that the rear space was residential, which is not supported by any credible evidence particularly since it contains no windows that are mandated by local law for residential use, the above Appellate authority compels this Court to deny restoration to the subject premises.
Of equal emphasis, the facts in this case further support the finding of this Court that restoration of FERBY to the rear space would be “futile”. All that JONERO, LLC. would be required to do to seek possession of the rear space would be to serve a 10–Day Notice to Quit for a squatter proceeding pursuant to RPAPL § 713(3) (squatter) and/or a licensee proceeding pursuant to RPAPL § 713(7) (licensee) and FERBY would ultimately be evicted by court proceeding or self-help as described above. Therefore, this Court shall not grant restoration since it would be futile since FERBY would be evicted anyway.
In addition, this Court does not find, based on the testimony and evidence presented by FERBY, that he suffered any damages for this self-help eviction. According to even FERBY himself, he had alternative accommodations at 588 Decatur Avenue, Brooklyn, NY; FERBY claims that this is the address where his Medicaid benefits went to and one that he must represent as his residence for those benefits. Moreover, the eviction from the front of the space, at least at this juncture, has been deemed lawful based on the valid service and receipt of the Marshall's Notice and thereafter, the proper execution of a warrant of eviction by valid delivery of a Notice of Possession. FERBY can claim no damages there.
Oftentimes, this Court has wrestled with the balancing the equities between parties in Commercial Part 52 where commercial tenants have invested substantial sums of capital into their commercial spaces and default in their obligations under the lease. In some instances, based on their ability to pay their rent and invest in renovations to the property, the lion share of those commercial tenants are able to recoup the value of their investment in the commercial property and turn a profit during the leasehold. In this instance, unfortunately, FERBY was unable to reap the financial rewards from his investment in the property since he was unable to finance the construction and to pay his monthly rent. Notwithstanding the fact that FERBY claims that he spent $15,000.00 to $20,000.00 for the renovation, he not only failed to present any evidence to substantiate that claim, he also stated in rebuttal that he personally performed the renovations to the front salon. His investment, thus, was “sweat equity” and the cost of the materials. The sums that he allegedly expended, in comparison to the many commercial ventures in New York City, would be considered a minor investment, not a major investment.
Moreover, FERBY cannot claim damages from the removal from the rear of the property also based up his acknowledgment that the living/work space was only supposed to be temporary housing, so he therefore acknowledged that it was not supposed to be permanent housing. The rear live/work space was nothing more than a self-survival solution by FERBY to keep a roof over his head with the hope of also opening his business. FERBY admittedly could not afford to pay for his own separate residential apartment and the commercial space while doing the construction for his business. He reasoned that he had no alternative than to move into the rear space to avoid his own homelessness.
The testimony of Mr. FERBY was often confusing and inconsistent during this four-day hearing; in some parts of his testimony, he was downright erratic and his testimony was clearly unreliable. His proffered claims were against the weight of the credible evidence and often not rational. This Court does not rule that FERBY's testimony was totally lacking in credibility or totally unworthy of belief, but instead was self-serving and thus, legally and factually insufficient to sustain FERBY's burden of proof.
After a careful review of the aforementioned landlord and tenant file, the evidence produced at the hearing, and the demeanor of FERBY, this court does not find that FERBY intentionally and willfully entered into the rear space with the intent to commit a crime. Although he did not get the landlord's authorization and consent, his actions were impetuous; lacking in sound judgment as often happens during our youth; his action of encroachment and the removal of the landlord's personal property were not performed with the intent to commit a crime but to save his failing business.
In this case, it is the opinion of this Court that the tenant has suffered enough for his imprudence. However, if the landlord elects, FERBY may be held liable for the conversion of the property owned by Mr. and Mrs. Vidal. His lost investment, his eviction from the front salon and from the rear of the property and the larger than life experiences that have come along with those events should be sufficient retribution for his lack of judgment. In addition, we should not forget that there is a personal judgment against this young man in the sum of $13,726.28 and that judgment is enforceable for twenty years.
As described above, the premises are illegal and this court lacks the power the restore FERBY to an illegal dwelling. The restoration of FERBY to possession of the subject premises would be in contravention of public policy, would be futile, and against the weight of the credible evidence.
Accordingly, this Court finds that FERBY has failed to prove his prima facie case of good cause to be restored to possession of the subject premises, and the Order to Show Cause is denied. The Court further finds that the tenant has failed to make out a prima facie case pursuant to RPAPL § 853 and the relief sought is likewise denied. All stays are hereby vacated and JONERO, LLC. has the right to immediate possession of the rear space.
A courtesy copy of this Decision and Order shall be mailed to both parties. Both parties may retrieve their evidence from the chambers of the undersigned by appearing at the 7th Floor Security Desk and instructions shall be given to the parties to retrieve their evidence and to acknowledge receipt thereof on a form to be provided by the Court.
JONERO, LLC. shall serve a copy of this decision and order and a copy of the judgment of dismissal on FERBY within thirty (30) days of the entry of a copy of the decision and order and judgment by the Clerk of Commercial Part 52 and shall file proof of service thereof with the Clerk of the Court.
This constitutes the Decision and Order of this court.