This was originally posted on the SGR Blog.
Would the Court Nevertheless Resolve the Discrepancies?
The resolution of a case often is a matter of weighing the credibility of witnesses by the trier of fact (judge or jury). But what is a Judge to do when the testimony of all of the competing witnesses raises questions of accuracy and credibility?
As prologue the Court stated: “This case involves a confused tale. The witnesses’ testimonies diverged significantly. The court was not satisfied that any of the three main witnesses’ testimonies were completely accurate. Moreover, the parties presented fuzzy dates rather than exact ones. So, the recitation of the facts…below implicitly resolves the numerous discrepancies in the testimony. These findings of facts are based upon the credible evidence and the fair inferences made therefrom.”
Landlord Sofyan Moflhi entered into a lease with Robert Kelly, Sr. to rent 86 Howard Street. When the lease expired Mofhli and Senior maintained a month-to-month tenancy. Senior had a son, Robert Kelly, Jr. and Junior had a fiancée—Crystal Wagner. In May of 2021, Senior invited Junior and Wagner to live with him so the couple could save funds for their own apartment. Wagner resided at 86 Howard because Senior had given the couple permission to do so. By June, Moflhi’s landlord became aware that the couple was living in Senior’s apartment and took no steps of any kind to halt the arrangement.
There were, however, problems. Junior was on parole and one of the conditions of his release was that he could not live with someone who had been previously convicted of a felony. Senior had been convicted of a felony which made co-habitation with his son not feasible. Since the arrangement with his son was temporary, Senior moved out and stayed with a friend.
Over the summer, Junior became abusive to Wagner. Although murky, it appears that despite Junior’s violence towards Wagner, Wagner and Junior still resided together at 86 Howard Street until sometime in late September. It was then that the Cohoes Police responded to a domestic violence call and arrested Junior. Wagner moved out of the apartment and into a temporary shelter (presumably for victims of domestic violence). When Junior was arrested and Wagner sought shelter elsewhere, the apartment was vacant, and someone (most likely Moflhi) told the power company to shut off the power to the apartment.
On September 28, Wagner returned to 86 Howard Street with her possessions in tow. Moflhi protested Wagner’s moving in but could not find Senior to have him stop the process. Consequently, Moflhi called the Cohoes Police to prevent Wagner from occupying the apartment. When the police arrived, the officer remembered that Wagner had been living there with Junior at the time of his arrest. The officer told Wagner to call the power company and put the power in her name and to move in. This was done over Moflhi’s landlord’s objection.
At the very beginning of October, Moflhi appealed to a superior officer in the Cohoes Police Department. A lieutenant instructed the parties that Senior (now back in contact with Moflhi) was a lawful tenant who had a right to live at 86 Howard Street. At some point in October, Senior moved in and Wagner filed an order of protection against Senior. Senior moved out.
On October 6, Moflhi served Wagner with a ten-day notice to quit. On October 16, he commenced a proceeding by service of a Notice of Petition and Petition seeking an eviction under Real Property Actions & Proceedings Law 713(3)–which provides that a special proceeding seeking an eviction may be maintained when “[a person] has intruded into or squatted upon the property without the permission of the person entitled to possession.” In other words, RPAPL 713(3) is the legal method to remove squatters.
Wagner insisted that she was not a squatter; but that she was a lawful occupant and consequently, Moflhi was required to commence an action under RPAPL 711.
RPAPL 711 provides that no “tenant or lawful occupant of a dwelling or housing accommodation shall be removed from possession except in a special proceeding.” The term lawful occupant was added to the statute in 2019 as a part of the Housing Stability and Tenant Protection Act.
The question: Was Wagner a lawful occupant? Nowhere does the RPAPL define lawful occupant.
The Court found that, in this case, the context of regular eviction proceeding, the best definition was in the Real Property Law. RPL 235-f defines the term occupant. “Occupant means a person, other than a tenant or a member of a tenant’s immediate family, occupying a premise with the consent of the tenant or tenants.”
The Legislature often used the RPL as a tool to limit and define rights in eviction proceedings (see e.g. RPL 226-c [defining the required notice that a landlord must give a tenant to terminate lease before bringing a holdover proceeding]; RPL 223-b [preventing an eviction if done for retaliatory purposes]; RPL 235-b [nullifying any part of a lease agreement that waives a tenant’s protections guaranteed by the warranty of habitability]; RPL226-b [making unenforceable any lease clause that limits the tenant’s statutory ability to sublet his apartment]). Thus, the Court grafted the meaning of RPL 235-f into RPAPL 711 to define the term “occupant.”
With the guide of RPL 235-f, the Court addressed Wagner’s argument that she was a lawful occupant under RPAPL 711 and not a squatter under RPAPL 711(3). Some of Wagner’s argument was unassailable—the Court found that when Wagner moved into the apartment, she did so with the implied permission of Senior—she was after all going to marry his son and he wanted to give the couple an opportunity to save money for a place of their own. Therefore, at the point she moved in she was a lawful occupant, a licensee, and not a squatter. A licensee is one who enters upon or occupies lands by permission, express or implied, of the owner, or under a personal, revocable, nonassignable privilege from the owner, without possessing any interest in the property.
But her status was not frozen in time and a license could be revoked. The question was whether she was still lawful occupant (i.e., still a licensee) on October 6—the day that Moflhi served his ten-day notice.
Two prerequisite arguments raised by Wagner were addressed before the Court decided whether Wagner was a lawful occupant on October 6. Both arguments sought to elevate her status from licensee to tenant.
First, Wagner testified that she paid $100 weekly rent to Senior, which could arguably confer rights as a subtenant. The problem was that Senior denied that he was paid rent. It was Wagner’s burden to prove that she gave rent to Senior. Without collateral proof of rent payments or confirmation of a rental agreement, the Court found that Wagner failed to meet her burden of persuasion on that issue. Thus, the Court concluded that Wagner was not a subtenant.
Second, Wagner argued that she was a tenant because she occupied 86 Howard Street for more than thirty consecutive days; and that RPAPL 711 defines a tenant as including “an occupant of one or more rooms in a rooming house for thirty consecutive days or longer.” A rooming house is a “multiple dwelling, in which there are less than thirty sleeping rooms occupied primarily by transients, and in which there are provided such services as are incidental to its use as a temporary residence”. That was not an accurate description of the apartment at 86 Howard Street. Rather, the apartment was a dwelling. Thus, RPAPL 711 thirty-day provision was inapplicable to Wagner.
That returned the case back to whether Wagner was a lawful occupant (i.e., a valid licensee) on October 6, the date that Moflhi served her with the ten-day notice to vacate. That question devolved to whether her license had been revoked prior to October 6. There were two ways a license may be canceled—by operation of law or by an expressed or implied revocation by the licensor.
The Legislature has deemed that a license may be revoked by operation of law even in the absence of an expressed revocation. RPL 235-f decrees that “[n]o occupant shall, without express written permission of the landlord, acquire any right to continued occupancy in the event that the tenant vacates the premises or acquire any other rights of tenancy”. Thus, Wagner’s license would have expired under the law if Senior had surrendered possession of the apartment on or before October 6. There was no proof of that. There was no relinquishment of keys or anything else that would evince a surrender of possession of the premises. To the contrary, sometime in October (potentially around October 23), Senior returned to the apartment at the behest of and with the consent of Mofhli and briefly occupied the apartment. That action was inconsistent with Senior surrendering possession. Therefore, Wagner’s license to occupy 86 Howard Street did not end by operation of law.
That brought the Court to the last question: was the license implicitly revoked. Senior permitted his son and his fiancée to occupy his apartment to help the young couple progress towards marriage and independent living. At the end of September, when Junior went to jail for domestic violence and Wagner sought temporary shelter elsewhere, the relationship and the promise of betrothal ended—and so did the license. In essence, there was an implied condition on the license—that Wagner and Junior were progressing towards marriage and independent living. Thus, when the reason for granting the license ended, the license ended by implication. So, on October 6, after the termination of the relationship, Wagner was no longer a licensee and, therefore, no longer a lawful occupant.
But Moflhi still had a problem. The pending proceeding asserted a claim under RPAPL 713 (3)—alleging that Wagner was a squatter. Wagner was decidedly not a squatter. She was a lawful occupant whose occupation became unlawful when her license to occupy the apartment was revoked.
RPAPL 713(7) provides a petitioner may seek the eviction of a licensee when “(a) [her] license has expired, or (b) [her] license has been revoked by the licensor, or (c) the licensor is no longer entitled to possession of the property.” Therefore, Moflhi should have commenced the proceeding under RPAPL 713(7) and not RPAPL 713(10).
Was that defect fatal? The Court retained the discretion to sua sponte amend the pleadings to conform to the proof in the absence of prejudice to the party who would oppose the amendment. The notice provision to the tenant to commence a special proceeding under RPAPL 713(7) and RPAPL § 713(10) are identical. And because Wagner had a full and fair opportunity to present her defenses and in fact mounted a vigorous defense on the issues that were relevant to RPAPL 713(7), the Court sua sponte amended the pleadings to conform to the proof because Wagner was not prejudiced by such an amendment.
The Court issued a judgment of possession to Moflhi.
But another statute altered process of issuance of a warrant of eviction. RPAPL 753, which previously applied only to New York City, required a Court to consider various factors before determining whether a warrant of eviction should be issued immediately or should be stayed “for a period of not more than one year.” Under the circumstances, the Court scheduled a hearing pursuant to determine the timing of the warrant.