This is a holdover proceeding brought by Esplanade 94 LLC, ("Petitioner") against "John Arir," "Jane Arir" and John Doe and Jane Doe ("Respondents") as licensees of the former tenants, Hicham Rahi and Rida Nehari ("Rida") for possession of 308 West 94 Street, apt. 321, New York, NY 10025 ("the subject premises"). The petition indicates that any license to occupy the subject premises held by Respondents terminated "..following the vacatur and abandonment" of the premises by the above mentioned former tenants of record. Alternatively, Petitioner claims in the petition that Respondents are squatters. Moreover, per paragraph six (6) of the petition the subject premises are plead as subject to the Rent Stabilization Law by reason of the fact that the apartment was subject to the Rent Stabilization Law on June 30, 1974.

The matter was initially returnable on September 4, 2019, and adjourned to October 11, 2019 and October 28, 2019. Abdullah Aiyash ("Aiyash") appeared. Aiyash on the October 28, 2019 appearance entered into an agreement to be added to the petition in place of John Doe and to vacate the unit by November 15, 2019. Additionally, Petitioner discontinued the matter against John Arir and Jane Arir based Aiyash's representation that he was the sole occupant of the subject premises.

However, shortly thereafter, Wilzon Alava ("Alava") appeared by Order to Show Cause returnable on November 7, 2019. Mr. Alava claimed he was an occupant of the subject premises. As such, per decision and order dated December 3, 2019, Mr. Alava was added as a Respondent herein. The Court accepted his answer claiming he was a permanent tenant of the subject premises per the Rent Stabilization Laws. The Court also consolidated Alava's alleged illegal lockout he brought against Petitioner, under LT # 17386/19. A trial was scheduled for December 18, 2019. Mr. Alava failed to appear at the trial so Petitioner was granted a default [*2]judgment, after inquest. Then, Alava filed an Order to Show Cause seeking to vacate that default judgment. The motion was granted, and the trial was to continue February 6 and March 18, 2020. The COVID-19 pandemic began, and Alava filed a Hardship Declaration which stayed the proceeding. Ultimately, years later, upon restoration of the matter for trial, Judge Eleanora Ofshtein per decision and order dated October 3, 2024, declared a mistrial of the incomplete trial due to the substantial lapse in time and retirement of the judge (Judge Jean Schneider) who had initially commenced the trial. The matter on October 24, 2024, was transferred to Part X for trial and assigned to Part T for trial.

This Court conducted a trial where both parties appeared. Petitioner appeared by counsel and Respondent Alava appeared pro se.

Petitioner offered testimony from several witnesses: Ashleigh Stanisic, Wilzon Alava, and Rafael Angel Guzman, Jr. Respondent, Alava, called Ashleigh Stanisic as a witness, and he also testified on his own behalf.

There were several exhibits admitted into evidence on behalf of Petitioner (P1-P4) which included an attorney certified copy of the deed for the subject building, certified copy of the Division of Housing and Community Renewal ("DHCR") apartment registration through April 2019. Lastly, Petitioner asked the Court to take judicial notice of the following: pleadings and affidavits of services in the above matter; the website of the Department of Housing Preservation and Development ("HPD") showing that Petitioner is currently registered as a multiple dwelling with HPD; the stipulation of settlement of October 28, 2019 where Aiyash was added in place of John Doe and agreed to vacate the unit by November 15, 2019 with a representation that he was the sole occupant of the subject premises; and the affidavit of Alava in LT # 17386/19 (the alleged illegal lockout petition) dated December 18, 2019 where Alava was seeking contempt of Judge Heela Capell's order dated November 15, 2019.

Respondent, Alava, had admitted into evidence three documents (Respondent's B, Respondent's D(1) and D(2). Respondent's B in evidence is a letter signed by Ashleigh Stanisic. Respondent's D(1) in evidence is a letter addressed to Petitioner by Mr. Alava dated November 1, 2019. Respondent's D(2) in evidence is a United States Postal Service receipt stamped November 1, 2019 addressed to Petitioner at 305 West End Avenue, New York, NY 10023.

Ashleigh Stanisic testified that she is employed by Petitioner as a manager and is familiar with the subject building and premises. She stated that Mr. Alava is not a tenant of the premises nor has a lease agreement with the owner. She indicated that the subject premises is a single room occupancy ^[FN1] that is subject to Rent Stabilization. According to Ms. Stanisic the last tenant of the subject premises was Hicham Rahi who was listed on the DHCR apartment registration, and that Mr. Rahi vacated the premises in 2019. Further, she indicated that the owner did not give Mr. Alava permission to enter the subject premises.

On cross examination Ms. Stanisic did not recall providing Mr. Alava with a letter as a permanent tenant of the subject premises nor did she have knowledge of Mr. Alava paying rent. [*3]She admitted to working at the subject building for five years and that in 2020 she noticed Mr. Alava living at the subject premises.

Wilzon Alava testified on behalf of Petitioner that he lives at the subject premises and does not have a lease for the subject premises nor do any of the other tenants in the building have leases for their units; that he got a key to the subject building from the old manager at the front desk; that he does not know Abdullah Aiyash who signed the stipulation in the subject case; that he is a sole occupant of the subject premises; that he cannot remember the name of the person who gave him the key to the subject premises but it was the person that Judge Schneider ordered to give him the key based on the lockout petition; that he now remembers it was Rafael Guzman, the old manager, who gave him the key to the subject premises; that he moved into the room in September 2019; that Rafael Guzman gave him the keys in September or October 2019; that he filed an illegal lockout against Petitioner in November 2019 which the court took judicial notice of; that Rafael Guzman was an older man about 60 years old; that he saw Mr. Guzman every time he left and entered the building; that he has a friend who lives in the building; that actually he has many friends who live in the building; that he was living in Queens at some point but the building was located in the Upper West Side; that Rida told Mr. Guzman to give him the key; that he knew Rida through a friend; that he was not close to Rida Nehari; and that the person he knows, knows Rida and told him that there was a room for rent at the subject building.

Rafael Angel Guzman, Jr. testified that he is familiar with the subject building because his father - Rafael Guzman Sr — worked there but passed away on April 24, 2020. Mr. Guzman indicated that he worked at the subject building from April/May 2020 until February 2022, that he took over his father's position by collecting rent and taking tenant complaints; that he could be found at the front desk of the subject building; and that his father's duties as a building employee did not include renting rooms in the building.

At the conclusion of Petitioner's case at trial, Petitioner asked to conform the pleadings to the proof at trial to reflect the subject premises is covered by the Rent Stabilization Laws as a single room occupancy which was granted.

The issue presented for this trial is whether Respondent — Wilzon Alava — proved the defense in his answer that he is a permanent tenant of the subject premises pursuant to the Rent Stabilization Laws.

Single room occupancy tenants often do not have currently effective leases or other indicia of a formal landlord tenant relationship that would render them tenants in rent stabilized units pursuant to RSC §2520.6 (d). This section defines "tenant" as:

Any person or persons named on a lease as lessee or lessees, or who is or are a party or parties to a rental agreement and obligated to pay rent for the use or occupancy of a housing accommodation or is entitled to occupy the housing accommodation as a tenant pursuant to any other provision of this Code.

Rather, they are typically statutory tenants pursuant to RSC § 2520.6 (j) by virtue of having resided in the subject building continuously for at least six months or by being an occupant who at any time has requested a lease for at least six months and then becomes a permanent tenant. RSC § 2520.6 (j) defines permanent tenant as follows:

For housing accommodations located in hotels, an individual or such individual's family members residing with such individual, who have continuously resided in the same building as a principal residence for a period of at least six months. In addition, a hotel [*4]occupant who requests a lease of six months or more pursuant to section 2522.5(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.

Here, Mr. Alava credibly testified that he moved into the subject premises in September 2019 because he had heard about the unit from his Filipino friend "Confesor Chua" who lives on the sixth floor of the subject building. He got a key to the subject premises from Rafael Guzman, the front desk manager. He remembered filing an alleged illegal lockout against Petitioner in November 2019. The Court took judicial notice of LT 17386/19 (alleged illegal lockout petition brought by Mr. Alava against Petitioner). He testified that Mr. Guzman gave him the key to the subject premises twice — once initially in September 2019 and in November 2019 pursuant to Judge Jean Schneider's order. Mr. Alava indicated that he knew Rida Nehari through a friend but was not close to her. However, the person that knew Rida told him there was a room for rent and Rida told Rafael Guzman to give him the key to the subject room. He knew Rida Nehari was the prior permanent tenant ^[FN2] of the subject premises. Initially, he had a payment arrangement with Rida in September 2019 for $400 monthly. He gave his friend Confesor $400 in September 2019 for the subject premises to give to Rida. He began living in the subject room and there was no one else living there. Then, in January 2020 he began paying $380 monthly in rent to Petitioner by paying Rafael Guzman, the front desk manager, for the subject room. He paid Rafael in cash.

Respondent's D (1) in evidence is a letter addressed to Petitioner by Mr. Alava dated November 1, 2019, requesting a lease of more than six months to allow him to continue living at the subject premises. The letter also indicates that he previously made the same request orally to the front desk employee of the subject building. Petitioner did not reply to his request, so he had to write the letter as follow-up. Further, he asked that Petitioner provide him with a lease for the subject premises within fifteen days, as per the Rent Stabilization Code.^[FN3] Respondent's D (2) in [*5]evidence is the United States Postal Service receipt stamped November 1, 2019 addressed to Petitioner at 305 West End Avenue, New York, NY 10023 which Mr. Alava testified is how he mailed the lease request for the subject premises to Petitioner. However, Petitioner did not reply to his letter request nor provided him with a lease.

Respondent's B in evidence is a letter on Petitioner's letterhead signed by Ashleigh Stanisic (Petitioner's manager) which is dated May 26, 2022, and addressed to "Dear Whom It May Concern." The letter states:

This is a letter to verify that WILZON ALAVA is a tenant here at 308 west 94th street New York, NY 10025 #321. WILZON ALAVA is paying a monthly rent of $367.71.

He needed the letter for "EBT" benefits, housing and ERAP monies. According to Mr. Alava, he opened a public assistance budget in October 2024 and public assistance asked for certification that he was living at the subject premises. As such, Respondent's B in evidence was used to verify he lived at the subject premises.

On cross examination Mr. Alava testified that in January 2019 he lived in Queens; that he lived there since 2013; that he was not familiar with co- Respondent, Abdullah Aiyash; that if someone else was living in the room, he would have known; that he did not apply to live in the subject unit; and that he moved from Queens because it was closer to us job at Kay Cleaners on West 103 Street and Broadway.

Ashleigh Stanisic testified on behalf of Mr. Alava. She was asked about Respondent's B in evidence, the letter she signed and dated May 26, 2022 which was addressed to "Dear Whom It May Concern" verifying that Mr. Alava is a tenant at the subject premises and paying a monthly rent of $367.71. According to Ms. Stanisic, she was asked by the Petitioner/owner to write the letter for payment of "use and occupancy" and was told exactly what to write. On cross examination, Ms. Stanisic indicated that Petitioner did not intend to make Mr. Alava a tenant when it prepared the letter, and the purpose was merely for the collection of use and occupancy. She also testified that Mr. Alava never asked her for a lease.

Based on the credible testimony of Wilzon Alava and the documentary evidence (Respondent's B, Respondent's D(1) and D(2)), this Court finds that Mr. Alava is a permanent tenant of the subject premises under the Rent Stabilization Laws. RSC § 2520.6 (j); RSC §2520.6 (d). Specifically, the evidence at trial established that Mr. Alava moved into the subject premises in September 2019, that on November 1, 2019, he wrote and mailed to Petitioner a letter requesting a lease of more than six months to allow him to continue living at the subject premises. PR 307 W. 93, LLC v. Peralta, 59 Misc 3d 141(A), 107 N.Y.S.3d 607 (AT 1st Dep't 2018). However, Petitioner did not reply to his letter request nor provided him with a lease. Mr. Alava continued to reside at the subject premises which is a single room occupancy/hotel room for at least six months, since September 2019. He remained there living openly in the subject unit with the knowledge of landlord's employees and continues to reside at the subject premises for the last six (6) years. Petitioner was aware of Mr. Alava's occupancy of the subject premises initially from its front desk employee, Rafael Guzman, Sr. Subsequently, Ashleigh [*6]Stanisic was aware of Mr. Alava's occupancy which she testified to at trial. Dexter 345, Inc. v. Hanlon, 60 Misc 3d 140(A), 110 N.Y.S.3d 484 (AT 1st Dep't 2018); 222 E. 12 Realty LLC v. McNally, 59 Misc 3d 127(A), 100 N.Y.S.3d 611 (AT 1st Dep't 2018); Aimco 240 W. 73rd St., LLC v. Koren, 59 Misc 3d 127(A), 100 N.Y.S.3d 609 (AT 1st Dep't 2018); Einhorn v. McCloud, 57 Misc 3d 139(A), 71 N.Y.S.3d 922 (AT 1st Dep't 2017).

Additionally, Petitioner's manager, Ashleigh Stanisic under the supervision of Petitioner prepared and signed a letter dated May 26, 2022 which was addressed to "Dear Whom It May Concern." The letter verified that Wilzon Alava is a tenant of the subject premises paying a monthly rent of $367.71. The words "tenant" and "rent" were stated in the letter from Petitioner's manager which admits that Mr. Alava is a rent paying tenant not a licensee or occupant of the subject premises. This establishes the existence of a landlord-tenant relationship between Petitioner and Mr. Alava. Moreover, this Court finds incredible the testimony of Ashleigh Stanisic stating that the May 26, 2022 letter was merely written for Petitioner to receive "use and occupancy" from public agencies on behalf of Mr. Alava. Additionally, this Court finds incredible the testimony of Rafael Angel Guzman, Jr. that his father — Rafael Guzman, Sr. as the front desk employee was not authorized by Petitioner to rent rooms.

As such, based on the above discussed statutes and plethora of appellate case law cited, Respondent, Wilzon Alava, qualifies as a permanent tenant of the subject premises, under the Rent Stabilization Code, and is entitled to a lease issued in his name. Accordingly, the instant petition against, Respondent, Wilzon Alava is dismissed. This is the decision and order of the court.

ORDERED: The petition is dismissed after trial.

And further

ORDERED: Petitioner to forthwith issue to Respondent, Wilzon Alava, a rent stabilized lease for the subject premises.

And further

ORDERED: Respondent to forthwith serve a copy of this Decision and Order with Notice of Entry on Petitioner.

This is the decision and order of this court. The parties are directed to pick up their exhibits within thirty days or they will either be sent to the parties or destroyed at the Court's discretion in compliance with DRP-185. Copies of this decision will be uploaded to NYSCEF and emailed to Respondent, Alava, at [email protected].