[*1]
Beckford v Thomas
2006 NY Slip Op 52412(U) [14 Misc 3d 1205(A)]
Decided on October 25, 2006
Civil Court Of The City Of New York, Kings County
Bluth, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 25, 2006
Civil Court of the City of New York, Kings County


Antoinette P. Beckford, Claimant,

against

Emma Thomas, Defendant.




3688/2006

Arlene P. Bluth, J.

Antoinette P. Beckford is defendant Emma Thomas's former tenant. Ms. Beckford brought this small claims action against Ms. Thomas for $5,000 to recover the value of her personal property which defendant allegedly discarded while claimant was in the process of moving out. The trial was held on September 28, 2006. Both parties appeared without an attorney and testified on their own behalf and presented witnesses. Based upon the evidence introduced at trial and having had the opportunity to observe the demeanor of the witnesses and assess the credibility of their testimony, the Court finds as follows:

FINDINGS OF FACT


In January 2006, defendant rented an illegal basement apartment to claimant and her family. The next month, in February, defendant informed claimant that she wanted her out. Defendant never commenced a summary proceeding or ejection action against claimant. Defendant never gave claimant a specific vacatur deadline, nor did the parties ever agree on any particular date by which claimant would surrender possession. Over the next several weeks, claimant who was staying with elsewhere while searching for a new apartment was gradually moving out her belongings. When claimant came to her apartment on March 17, 2006, however, she found the locks changed and her belongings in the backyard. She called the police, and they ordered defendant to bring the items back into the house. Claimant took some of her belongings with her. Over the next few weeks, claimant visited the apartment several times, and took some belongings each time. Once she found the door to her apartment off the hinges. During this time, one of claimant's children became ill and was admitted to the hospital; claimant told defendant's husband, Mr. Thomas, that she needed more time to remove her remaining possessions, and he agreed. Again, no specific date was agreed upon. When claimant returned a [*2]couple of weeks later, she was able to retrieve a few more items, but she was horrified to see that much of what she had left there since the last time including her baby's crib were gone.

Claimant's and her witness's testimony regarding the missing property was credible, while defendant and her husband's conclusory denials of any knowledge as to the whereabouts of claimant's property were not credible. They offered no plausible explanation for the disappearance of claimant's property, asserting only that they found the apartment vacant and assumed that claimant had taken out all of her belongings.

As to claimant's damages, she did not present any receipts. Instead, she submitted two sworn affidavits from people who had allegedly given her children various clothing and other items as gifts. The affidavits purported to state the value of the goods purchased but did not annex receipts therefor. Claimant also presented a printout she obtained from "Babies R Us" showing the prices of a crib, mattress, and sheet set that claimant testified she received as a gift just after she moved into defendant's basement. The price of the crib was $499.99, the price of the mattress was $129.99, and the price of the sheet set was $189.99. Defendants did not dispute claimant's testimony as to damages, and specifically did not contest that the crib was brand-new.



CONCLUSIONS OF LAW


"The law is clear and well-established that a landlord may not oust an occupant of an apartment from those premises without resorting to proper legal process and providing legal notice." Romanello v Hirschfeld, 98 AD2d 657, 470 NYS2d 828; aff'd as mod, 63 NY2d 613, 479 NYS2d 519. Where, as here, a tenant has been in occupancy for thirty or more consecutive days, she may "not be removed from possession except in a special proceeding." RPAPL § 711. It is undisputed that defendant never commenced an eviction proceeding against claimant, let alone obtained a warrant and called in the marshal. She chose not to employ the lawful process for removing claimant and her belongings from the premises. Instead, she decided to handle matters herself. Absent any agreement with claimant to vacate and remove her property by a date certain, defendant had absolutely no right to discard any of claimant's belongings. Therefore, the Court finds that defendant is liable to claimant for unlawfully removing her property.

As to the issue of damages, since claimant is seeking money from defendant, it is her burden to prove how much is due. It is well settled that the general standard of proof is a "preponderance of the evidence" (Roberge v Bonner 185 NY 265, 269) and that a fact-finder may not render a decision based on "speculation or guesswork" (Bernstein v City of New York, 69 NY2d 1020, 1021-22). Unfortunately, claimant was unable to prove the value of most of the property she alleged was missing. The Court cannot accept the two affidavits as evidence of the value of missing items because the defendant had no opportunity to cross examine those third parties; the affidavits are inadmissable hearsay out-of-court statements offered to prove the truth of the value of the items. As to the brand-new crib and accessories, however, claimant's testimony was credible and specific. She submitted proof of their cost in the form of a Babies R Us Item Inquiry Detail," which this Court likens to a page from a catalog. Defendant had the opportunity to but did not question claimant's proof with regard thereto. Therefore, claimant is entitled to recover the value of the crib, mattress, and sheet set, which total $819.97.

Accordingly, judgment is for claimant in the amount of $819.97 plus interest from June 5, 2006, and costs and disbursements. The clerk is directed to enter judgment accordingly. [*3]

This is the Decision and Order of the Court.

Dated:

___________________________

ARLENE P. BLUTH

Judge, Civil Court