Opinion
Index No.: L&T 73231/15
10-09-2015
OLTIMDJE OUATTARA, Petitioner v. AUDTHAN LLC and SKYBOX CHELSEA LLC s/h/a CHELSEA HIGHLINE HOTEL,CARLOS ROSARIO, and "JOHN DOE" AND/OR "JANE DOE" Respondents
TO: MITOFSKY SHAPIRO NEVILLE & HAZEN, LLP Attorneys for Respondents By: TERRY L HAZEN, ESQ 152 Madison Avenue, 3rd Floor New York, NY 10016 212.736.0500 OLTIMDJE OUATTARA Petitioner, Pro Se 123 West 104th Street, Apt. 8C New York, New York 10025
DECISION & ORDER
BACKGROUND
This summary proceeding was commenced by OLTIMDJE OUATTARA (Petitioner) against AUDTHAN LLC and SKYBOX CHELSEA LLC s/h/a CHELSEA HIGHLINE HOTEL, CARLOS ROSARIO (collectively "Respondents") seeking to be restored to possession of Room 201 at 184 11th Avenue, New York, NY 10011 (Subject Premises). Audthan LLC, is the net lessee of the subject building, and Skybox Chelsea LLC, is the managing member of Audthan LLC. Carlos Rosario is the manager of the hotel.
Petitioner commenced this proceeding by order to show cause returnable August 13, 2015. Respondents appeared by counsel on the initial return date. The parties spent a long time negotiating a potential settlement with the assistance of the Court and Court Attorney, but ultimately the proceeding was adjourned to September 10, 2015 at Petitioner's request, for Petitioner to have an opportunity to obtain counsel.
On September 10, 2015, Respondents cross-moved for a stay, pending the resolution of a related action they had commenced in Supreme Court, New York County, under Index Number 159096/2015. The court denied the cross-motion for a stay and set the matter down for a hearing on the issues raised in Petitioner's order to show cause on September 24, 2015. Respondents moved for ex parte relief before the Appellate Term, and said request was denied on September 22, 2015 [2015 NY Slip Op 85296(U)].
On September 25, 2015, the hearing took place, and at the conclusion of the hearing, the court reserved decision.
PENDING RELATED ACTION
The court takes judicial notice of a pending related action in Supreme Court New York County under Index Number 159096/15. In that action, Respondents are the plaintiffs, with the exception of Rosario, and Petitioner is sued as a defendant along with DHCR and the City of New York.
The complaint seeks a declaratory judgment that certain related provisions of the Rent Stabilization Law pertaining to hotel tenants, specifically § 2520.6(j) and § 2522.5(a)(2) are unconstitutional, and a preliminary injunction on Petitioner's right to proceed in this proceeding. The action is assigned to Justice Cynthia Kern. Respondents submitted an Order to Show Cause for Justice Kern's signature, which sought to stay the pending proceeding. Justice Kern signed the order to show cause and made the motion returnable on October 27, 2015, however, Justice Kern declined to issue any interim stay of this proceeding.
On September 28, 2015, plaintiff withdrew the motion for a stay.
FINDINGS OF FACT
The underlying facts are largely uncontested. Petitioner made a reservation for a room at the subject hotel for the night of August 3, 2015 (Ex 1). Petitioner checked in to the Subject Premises at approximately 3 pm on August 3, 2015 and paid for the room (Ex 2). On that date, he submitted a written request to become the permanent tenant of the Subject Premises by requesting a six month lease (Exs 5A & 5B). The request was both personally delivered to Respondents' agent and sent by mail. Petitioner spent the night in the Subject Premises. There is a bunk bed in the Subject Premises, and the other bed was rented to another individual, who also stayed in the Subject Premises on the night of August 3, 2015, and checked out the following morning. Petitioner made a second on line reservation for a room at the hotel for the period of August 4 through August 11, 2015 (Ex 4).
On August 4, 2015, Petitioner was in the Subject Premises and Carlos Rosario (Rosario) came to tell him that he had to leave the Subject Premises and return after 3 pm to check in again for his next reservation. Petitioner refused to leave and asserted his right to remain in possession of the Subject Premises as a permanent tenant based on the written request he had made for a six month lease on August 3, 2015. Petitioner then attempted to go to reception and pay for additional nights, but the receptionist refused to accept the payment tendered and again told Petitioner to leave and return after 3 pm.
Petitioner did not leave but remained in the Subject Premises. Rosario called the police and three officers arrived at the Subject Premises. Petitioner informed the officers that he had the right to remain in possession based on his request for a permanent lease. The police advised Petitioner that he should leave the Subject Premises and not allow the matter to "escalate." Petitioner was afraid that if he did not leave, he would be arrested, and so complied with the officers' request to leave. At Rosario's request, the police also asked Petitioner to return the key to the Subject Premises to Rosario, Petitioner complied and left the Subject Premises.
Petitioner returned to the hotel after 3pm and sought to go back into possession of the Subject Premises. Respondents offered to place Petitioner in a different room, room 425, but Petitioner continued to assert his right to be a permanent tenant of the Subject Premises. The receptionist advised Petitioner that room 425 was the only available room. Petitioner declined the offer to occupy room 425 because it was not "worth it." Petitioner did not wish to have to make a new request to become a permanent tenant of room 425.
Petitioner came to court and commenced this proceeding.
Respondents have a policy of not renting rooms to anyone who lives in New York City, or who has a New York City address. Petitioner was aware of this policy and therefore did not provide Respondents with his last address of record when he checked in.
Petitioner decided to rent a room because Joe Stevens, a fellow taxi driver, told Petitioner that the hotel was subject to Rent Stabilization and explained to Petitioner the process for requesting a lease and becoming a permanent tenant.
Petitioner testified that he currently resides at 2707 Morris Avenue, Apartment 4B, Bronx New York, 10468. Petitioner testified that he had lived at that address for approximately one year, that he pays rent for the apartment but has no lease for it. Petitioner lives in the Morris Avenue apartment with other friends from the same country and pays $300 per month in rent for said premises. The Morris Avenue apartment is a one room apartment that Petitioner shares with five other individuals. The tenant of record for the Morris Avenue apartment is Guessida Bonkoungou.
Petitioner has New York State driver's license (Ex 8) issued August 27, 2014, which lists his address as 123 west 104th Street, Apartment 8C, New York, New York 10025. Petitioner is identified on the licence as Oltimdje Urlich Ouattara. Petitioner testified that he lived at the 104th street address for approximately 2 months prior to moving to Morris Avenue.
Petitioner asked the court to mail any decision to him at the 104th street address. Petitioner stated that he continues to receive mail at that address, because it is more secure there then the Morris Avenue apartment. Petitioner testified that Egbtoke Koku is the tenant of record of the apartment on 104th street, and that Petitioner goes to that apartment every other day, and has a key to said apartment. Petitioner stated he does not sleep at the 104th Street apartment, he does not keep any of his belongings there, and he has never paid rent for that apartment.
Rosario testified for Respondents. Rosario is the manager of the subject hotel. Rosario's testimony regarding the underlying facts corresponded to the testimony provided by Petitioner.
Anna Huggins (Huggins) also testified for Respondents. Huggins is a Project Manager at the Clinton Housing Development Company, which is a not for profit company that develops affordable housing in the district covered by Community Board 4.
Respondents submitted in evidence a report and recommendation by Administrative Law Judge John B. Spooner detailing the harassment engaged in by a prior net lessee of the subject building, and recommending denial of the application of the owner for a certificate of no harassment based on his findings (Ex C). Joe Stevens was specifically referenced as a tenant against whom acts of harassment had been committed in Spooner's report.
Huggins testified that her employer was working with Respondents to cure the harassment in connection with the administrative determinations. Huggins testified that the plan developed called for the relocation of tenants and development of 24 units of affordable housing. Huggins acknowledged there are five permanent tenants in the subject hotel who elected not to relocate and that a second plan to develop units around those permanent tenants had been developed and was submitted for approval to HPD, which approval is still pending. Huggins testified that Joe Stevens was one of the permanent tenants who elected not to relocate.
DISCUSSION
The Subject Premises is governed by Rent Stabilization. Certified copies of the DHCR registration for the Subject Premises (Ex 3) indicate that the Subject Premises has been registered with DHCR for the years 1984 through 2015, although the initial registration was not filed until November 1995. For the years 1984 and 1985, it was registered as rent stabilized, but no tenant of record was listed and no rental amount was registered. The Subject Premises was registered as permanently exempt, based on the allegation it was a coop or condo, for the years 1986 through 1990. Amended registrations were filed for 1991 and 1992 in 1997, and it was registered as temporarily exempt based on "SRO/Transient" occupancy for the years 1991 through 1995, and 1997 through 2015. For the year 1996 it was registered as vacant.
Respondents do not contest the regulatory status of the Subject Premises.
9 NYCRR § 2520.6 (j) provides:
Permanent Tenant. For housing accommodations located in hotels ... a hotel occupant who requests a lease of six months or more pursuant to section 2522(a)(2) of this Title, or who is in occupancy pursuant to a lease of six months or more shall be a permanent tenant even if actual occupancy is less than six months. Unless otherwise specified, reference in this Code to "tenant" shall include permanent tenant with respect to hotels.
§ 2522.5(a)(2) of the Rent Stabilization Code provides:
For housing accommodations in hotels rented to an occupant who has never had a lease, such occupant may at any time during his or her occupancy request a lease and the owner must, within 15 days after such request, grant a lease commencing on the date such request was made at a rent which does not exceed the legal regulated rent, for a term of at least six months. The hotel occupant who requests such a lease becomes a permanent tenant but the lease need not be renewed. Notwithstanding the above, an owner shall not
refuse to grant a lease or to extend or continue a tenancy in order to prevent the hotel occupant from becoming a permanent tenant, except to the extent that the owner may be permitted to do so by law pursuant to a warrant of eviction, or other order of a court of competent jurisdiction, or governmental vacate order.
§ 2522.5(c)(2) provides:
For housing accommodations in hotels, each owner shall furnish to each person, at the time of registration, a Notice of Rights in a form promulgated or approved by the DHCR, describing the rights and duties of hotel owners, occupants and tenants as provided for under the RSL and this code and a hotel occupant's right to become a permanent tenant at a legal regulated rent by requesting a lease for a term of at least six months at anytime during his or her occupancy. .... An owner who violates the RSL and this code by failing to furnish this Notice of Rights, and/or by engaging in any conduct which compels a person to rent as a hotel occupant, prevents a hotel occupant from becoming a permanent tenant, or results in a hotel occupant vacating a housing accommodation, shall be subject to a loss of a guidelines adjustment pursuant to paragraph (3) of this subdivision as well as penalties pursuant to section 2526.2(b) and (c)(1) of this Title, and may be subject to a penalty pursuant to section 2526.2(c)(2) of this Title, in an amount no less than $1,000.
DHCR Fact Sheet # 42 provides that SRO's constructed prior to 1969 and containing six or more housing accommodations are subject to Rent Stabilization. The court takes judicial notice that DOB records show that the Subject Premises is an SRO and the original Certificate of Occupancy shows that the building was completed October 1, 1952, although a later Certificate of Occupancy lists a completion date of April 1, 1965 (documents annexed hereto and incorporated herein).
Nutter v W&J Hotel Company (171 Misc2d 302) is a case directly on point. In that proceeding the court defined the issue stating "(t)his illegal eviction proceeding presents the issue of whether a landlord may evict, without process of law, a person who registers for a rent-stabilized hotel room for one night and promptly requests a lease pursuant to the hotel stabilization provisions of the Rent Stabilization Law... The Court concludes that respondent may not, and therefore committed an illegal eviction (id at 303)."
In Nutter, the petitioner checked in, was not provided with the notice of rights as required by rent stabilization, requested in writing the same day a written lease and the following day was denied the request and asked to leave. As in the case at bar, the tenant did not leave at the insistence of the manager and was instead escorted out by the police.
" .... (T)he request for a lease, evincing an intent to accede to tenancy status, is what triggers the protection of the rent stabilization laws (Nutter at 305 citing 459 West 43rd Street Corp v DHCR 152 Ad2d 511)."
§26-521 of the New York City Administrative Code provides in pertinent part:
Unlawful Eviction. A. It shall be unlawful for any person to evict or attempt to evict an occupant of a dwelling unit who .... has made a request for a lease for such dwelling unit pursuant to the hotel stabilization provisions of the rent stabilization law except to the extent permitted by law pursuant to a warrant of eviction or other order of a court of competent jurisdiction or a governmental vacate order by .... engaging or threatening to engage in any ... conduct which prevents or is intended to prevent such occupant from the lawful occupancy of such dwelling or to induce the occupant to vacate the dwelling unit including, but not limited to, removing the occupants possessions from the dwelling unit ...".
Respondents act of calling the police and using the police to intimidate Petitioner into vacating the Subject Premises and surrendering his key, after he had asserted the right to be a permanent tenant, was a use of force and intimidation designed to evade their obligations under the rent stabilization law and unlawfully exclude Petitioner from the Subject Premises. Respondents were well aware of these obligations they having litigated a nearly identical proceeding, several weeks earlier [see Guira v Audthan LLC 48 Misc3d 1217(A)].
All of Respondents actions appears to be geared to evading their obligations under the Rent Stabilization Code. For example, Respondents have two "policies" they have put into place to prevent individuals from becoming permanent tenants and limiting occupancy to transients.
The first is that they tell all individuals that the maximum permissible stay is 14 days. So not only do Respondents not provided individuals checking in with the required notice pursuant to § 2522.5(c)(2), but in fact they do the opposite by informing registrants that any occupancy will be limited to 14 days.
Second, Respondents will not allow New York residents to register for a room. Their written policy provides:
"All Jazz Hostels are intended for transient tourists. Therefore, we cannot accommodate local or nearby residents at our hostels. In New York, residents of New York State cannot stay with us (Id)."
Thus even to stay for one night, Petitioner, like the petitioner in Nutter (supra at 303) was required to falsely claim he was an out of state resident in order to register.
CONCLUSION
Based on the foregoing, the court finds that Petitioner is the permanent tenant of the Subject Premises and was unlawfully evicted by Respondents. Respondents are directed to restore Petitioner to the Subject Premises forthwith. Petitioner is awarded a judgment of possession as against Respondents.
This constitutes the decision and order of the Court.
Dated: New York, New York
October 9, 2015
/s/_________
Sabrina B. Kraus, JHC
TO: MITOFSKY SHAPIRO NEVILLE & HAZEN, LLP
Attorneys for Respondents
By: TERRY L HAZEN, ESQ
152 Madison Avenue, 3rd Floor
New York, NY 10016
212.736.0500
OLTIMDJE OUATTARA
Petitioner, Pro Se
123 West 104th Street, Apt. 8C
New York, New York 10025