ZUCCARO v. WALRATH (2023)

Petitioner filed the instant nonpayment summary proceeding on February 15, 2023, for possession of the property and $1,600 in past due rent. The Respondents appeared virtually on March 9, 2023, due to an illness and were arraigned on the petition in person on March 13, 2023. The matter was adjourned for appearances of counsel on March 27, 2023, when all parties again appeared in person for a trial.

The Petitioner essentially testified that the Respondents owed $800 for the rent in January and an additional $800 for the rent in February, 2023. This was uncontested by the Respondents who had admittedly already moved out of the apartment. On these facts alone, this would be a fairly simple case to decide. However, the Respondents testified that on December 8, 2022, the Petitioner called them from inside their apartment because he had to move the couch away from the window and turn off their fan. Rather than denying these allegations, the Petitioner admitted as much and maintained it was right to enter the apartment because he owned it. Penal Law section 140.15 defines Criminal Trespass in the Second Degree (a class A misdemeanor) when someone “knowingly enters or remains unlawfully in a dwelling”. In a case with similar facts, the court held that a “landlord may not recover the rent for January, 1959 on the 66th Street apartment that the tenant is entitled to the return of her deposit of $135 on that apartment and, further that for the invasion of her rights, she is entitled to the nominal sum of $75” Kobouroff v. Blake, 16 Misc 2d 202, 205 [NY Mun Ct, 1959] [internal citation omitted].

It appears the defendant in Kobouroff was represented by counsel and litigated the issue of punitive damages. As the issue of punitive damages was not litigated in this case, the court will not assess punitive damages against the Petitioner even though they would otherwise be very appropriate on these facts. With respect to the Petitioner's claim for a warrant of eviction, it is conceded that the Respondents have vacated the property and the Petitioner is already in possession, so the Court will not issue a warrant of eviction. With respect to the Petitioner's claim for $1,600 in unpaid rent, the Court is deeply concerned with the Petitioner's shameless admission that he entered the Respondent's apartment to move a couch and turn off a fan. The Court finds that it would be improper to award the Petitioner $1,600 for the tenant's breach of the lease when it was the landlord who breached the lease with his unlawful entry.

Order

Therefore, it is hereby ORDERED:

The petition is hereby dismissed with prejudice.

This is the Decision and Order of the Court.

Joshua P. Bannister, J.