Reginald
Coleman, Petitioner
against
Onsite Property Management, Inc., Tony Rivera and
John Doe, Respondents, Mario Herrera Third Party Respondent.
|
805127/14
for Petitioner Coleman: Megan K. O'Byrne, New York Legal Assistance
Group
for Respondent Onsite Property Management, Inc.: Kathleen R.
Bradshaw
Jose Rodriguez, J.
Petitioner commenced this proceeding by Order to Show Cause in Lieu of Petition
seeking to be restored to possession of premises located at 2412 Westchester Avenue,
Apartment 3R, Bronx, New York. Respondent argues that the petitioner abandoned
and/or surrendered the apartment. Petitioner and respondent, Onsite Management, Inc.,
are represented by counsel. Third Party respondent, Mario Herrera, failed to appear.
After trial it is the conclusion of this Court that petitioner has been improperly
locked out of the subject apartment and is entitled to be restored to possession. Petitioner
is the tenant of record of the subject rent stabilized apartment. Petitioner has resided in
the subject apartment since August 2010 pursuant to a written lease agreement and is the
recipient of a New York City Housing Authority (NYCHA) Section 8 rent subsidy. It is
undisputed that NYCHA Section 8 continued to make payment on petitioner's behalf
until May 2014. Petitioner testified that he did not abandon or surrender possession and
never spoke to respondents' agent about vacating the
subject apartment. He acknowledged that electrical utility service for the
apartment was [*2]suspended for non-payment and
alleges that he was seeking financial assistance from the Veterans Administration (VA)
to pay the utility bill. He stated that he used candles to light the apartment and frequently
stayed with friends away from the apartment. In May 2014 he traveled to Virginia to stay
with family due to his grandmother's poor health. Petitioner's grandmother passed away
on June 1, 2014. He returned on June 6, 2014 and learned that a third party, Mario
Herrera, was occupying the subject apartment. Petitioner observed that his furniture and
furnishings were still in the apartment. He was informed by Mr. Herrera that the
apartment was rented by Mr. Anthony DeRosa, the building's managing agent, as a
furnished apartment. Petitioner spoke to Mr. DeRosa regarding his clothing and was
informed that they were stored in the building's basement. Petitioner states that he was
unable to locate his clothing and other personal items.
Mr. DeRosa, testified that he had not seen petitioner and believed that he has
vacated the subject apartment. He states that Section 8 stopped petitioner's rent payments
in April 2014 and he received a telephone call from a representative for the VA
indicating that petitioner was not returning to the subject apartment. He acknowledges
that petitioner never surrendered the keys to the apartment and did not inform him that he
was vacating the apartment. His belief that petitioner vacated the apartment was based
upon information received from the representative of the VA and Section 8's suspension
of rent payments. He testified that he found the door to the apartment unlocked and
without electricity. On June 2, 2014 Mr. DeRosa entered into a one year lease for the
subject apartment with the third party respondent, Mario Herrera.Abandonment of an
apartment is defined as the "intent to abandon and engaging in some act or failure to act
that indicates that the tenant no longer has an interest in the premises." (See, Scherer,
Residential Landlord-Tenant Law, § 2:111; Delgado v. 1038
Souther Boulevard Realty Assoc.,N.Y.L.J., May 28, 2008, p/ 27, Co. 1 (Civ. Ct.,
Bronx Co.); Malik v. Hillside Clearview Apts. Realty, LLC,746 N.Y.S.
2d 251, 192 Misc 2d 181 (Civ. Ct., Queens Co., 2002); Bay Park Two v.
Campionio, NYLJ, September 23, 1992, at 26, col 4.). Surrender is defined as "a
tenant's relinquishment of possession before the lease has expired, allowing the landlord
to take possession and treat the lease as terminated." (See, Blacks Law
Dictionary, 7th Ed.). It must be established that two facts concurrently exist: (1)
Intention to abandon or relinquish, and (2) some overt act or some failure to act which
carries the implication that the owner neither claims nor retains any interest in the subject
matter of the abandonment. The burden of proving an abandonment or surrender is on
the party seeking to establish it or relying upon such abandonment or surrender.
Sam & Mary Housing Corp. v. Jo/Sal Market Corp., 100 AD2d 901,
474 N.Y.S.2d 786 (2nd Dept., 1984). Gill v Central Queens Properties
Corp., NYLJ, June 27, 2001, at 20, col 4. (App Term, 2nd Dept.);
Johnson v. Manning, NYLJ, November 16, 1988, at 21, col 2, (App
Term, 1st Dept.); Mitchell v. City of New York, 154 Misc 2d 222, 584
N.Y.S.2d 277,(Civ.Ct., Bx. Cty.1992). Failure to pay the utility bill was not an
indication of abandonment but a financial crisis that petitioner alleges he was attempting
to resolve with assistance from the V.A. See, Lee v. Park, 16 AD3d 986,
793 N.Y.S.2d 214 (3rd Dept. 2005).
The court concludes that respondent failed to establish that petitioner has
abandoned or surrendered the subject apartment. It is undisputed that petitioner is the
tenant of record of the apartment. There is no evidence that petitioner expressed an intent
to abandon the apartment, relinquished possession or treated the lease as terminated. Nor
was any evidence provided establishing that petitioner authorized anyone to surrender
possession of the apartment. [*3]Respondent's reliance
upon unverified statements allegedly made by third parties is insufficient to establish
petitioner's abandonment or surrender.By order dated June 17, 2014 this matter was
adjourned to June 21, 2014. The third party respondent, Mario Herrera, the current
occupant of the subject apartment, was added as a respondent. The order adding the third
party respondent and informing him of the adjourned return date, together with the initial
Order to Show Cause, respondent Onsite's opposition papers and petitioner's reply
affirmation were served upon respondent Herrera. On June 21, 2014 the matter was
adjourned to June 30, 2014 for trial. Third Party Respondent, Mario Herrera failed to
appear.
As stated in Padilla v. Padilla, 164 Misc 2d 740, 626
N.Y.S.2d 656 Civil Ct., Bx. Co., 1995) "00 [w]here an eviction is held to be illegal but a
new tenant is already in place, the court must balance the equities between the evicted
tenant and the new tenant in order to determine whether reinstatement is warranted or
whether the evicted tenant is relegated to a damage action only". Columbia
Assocs. v Miles, NYLJ, June 7, 1989, at 21, col 4 (App Term, 1st Dept).
Timeliness of the evicted tenant's motion seeking reinstatement is among the factors to
be considered in balancing the equities. In the matter before this court petitioner resided
in the rent stabilized apartment for three years. His possessions remain in the apartment
and are being used by Mr. Herrera. Petitioner commenced this proceeding seeking to be
restored to possession on June 12, 2014, six days after he returned to the apartment
following his Grandmother's funeral in Virginia. It is the finding of this court that the
equities balance in favor of the petitioner.Accordingly, it is ordered that the petitioner
herein be restored to possession of the subject apartment forthwith. It is further ordered
that a judgment of possession be entered in favor of the petitioner and against
respondents Onsite Property Management, Inc. and Mario Herrera. A warrant of eviction
against Mario Herrera shall issue forthwith and execution is stayed until after service of a
Marshal's Notice of Eviction.
Damages are reserved for a plenary action.The foregoing constitutes the
decision and order of the Court.