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AVDI REALTY LLC, Petitioner, v. Kelvin DELAROSA, Respondent-Licensee, “John Doe” and “Jane Doe”, Respondent-Unknown Occupants.
This is a licensee holdover proceeding which was commenced by Petitioner Avdi Realty LLC under Section 713(7) of the New York State Real Property Actions and Proceedings Law seeking a final judgment of possession against Respondents Kelvin DeLaRosa, “John Doe” and “Jane Doe”, the occupants of 2537 Valentine Avenue, Apartment B1, Bronx, New York, a Rent Stabilized apartment. The Petition asserts the following: “Upon information and belief, the tenant of record, Elsa Bencosme, permanently vacated the apartment on or about May 2018. Prior to the tenant of record's vacature, they gave permission, a license to Kelvin Delarosa to occupy the subject apartment. The licensee is not a tenant of the subject apartment. They have never paid rent to the landlord. They do not have a lease for the subject apartment.” Attached to the Petition is a “Ten (10) Day Notice to Vacate” advising Mr. DeLaRosa, “John Doe” and “Jane Doe” that any license they had to occupy the premises expired when the tenant of record vacated. The Notice is dated July 31, 2018 and is signed by “Beatriz Melendez, Registered Managing Agent” on behalf of Avdi Realty. Also attached to the Petition are copies of (1) a fully executed two-year lease agreement with a monthly rent of $ 800 commencing July 1, 2008 between Elsa Bencosme, Tenant, and an unreadable stamped name and address for the Landlord; and (2) an unsigned Renewal Lease Offer to Elsa Bencosme from owner 2537 Moybros Realty Corp., PO Box 271, Jerome Ave Station, Bronx, NY 10468, dated August 12, 2015, to commence September 1, 2015 for either a one-year lease at $ 808 (a 1% increase) or a two-year lease at $ 822 (a 2.75% increase). For the reasons that follow, this proceeding is dismissed, with prejudice.
The case first appeared on the Court's calendar on September 13, 2018. Petitioner and Respondent 1 Kelvin DeLaRosa appeared on that date by counsel and the case was adjourned on consent to October 29, 2018. Respondent then served and filed an Answer raising, inter alia, affirmative defenses asserting that he both has a Rent Stabilized lease renewal in his name and paid rent directly to the landlord in his own name. The case was adjourned in the Resolution Part several more times and then tried on March 14, 2019.
At trial, Petitioner presented the testimony of two witnesses. First was Petitioner's managing agent Beatriz Melendez, who testified that she works for Arbeni Management, which manages the building for Petitioner Avdi Realty. A certified copy of a deed dated May 31, 2018 from “2537 Moybros Realty Corp.” to Avdi Realty LLC was entered into evidence without objection. The building has 52 apartments and is registered with the City of New York as a multiple dwelling. The apartment has been registered as Rent Stabilized with the New York State Division of Housing and Community Renewal (“DHCR”) in and for every year from 1984 through 2018. The tenant listed in the DHCR's Rent Registration Statement for the premises for the years 2009 through and including 2018 is Elsa Bencosme, whose monthly rent was registered at $ 800 from 2009 through 2015 and at $ 822 from 2016 through 2018.
Ms. Melendez testified that at the closing for the purchase of the building, the prior owner gave Petitioner “a little box” of its management company records, which were incomplete. Ms. Melendez testified that there was “poor recordkeeping” by the prior owner, that “very few things” were turned over” and the records that were turned over did not include any Social Security numbers or identification documents and included only some of the tenants' original leases and lease renewals. Ms. Melendez knew that the person who signed leases for the prior owner had the first name of “Frank”; she did not know his last name. Although the subject apartment was registered with the DHCR from 2009 through 2018 to Elsa Bencosme, the only lease Petitioner received for her from the prior owner at closing and that was offered into evidence without objection was Ms. Bencosme's original two-year lease, dated July 1, 2008, with a monthly rent of $ 800. On cross-examination, when asked how many original leases for Ms. Bencosme were handed over at closing Ms. Melendez's answer was, “Just that one and a lease renewal.” However, Petitioner did not offer a lease renewal in Ms. Bencosme's name into evidence.
Ms. Melendez learned that Ms. Bencosme was no longer living in the subject apartment in June 2018, when Respondent Mr. DeLaRosa came in to the management office asking for a lease. Ms. Melendez denied the request, saying that the tenant of record is Elsa Bencosme and she is the who would need to come in to the office; Petitioner does not just transfer apartments to people other than the tenant of record. It was because Respondent came in to the office to ask for a renewal lease that she decided to investigate and then bring this proceeding.
After this proceeding had commenced, Ms. Melendez received from her lawyer's office via an electronic communication a copy of a Renewal Lease for Apartment B1 dated August 12, 2015 for the two-year period of September 1, 2015 through August 31, 2017, with a monthly rent of $ 822, between 2537 Moybros Realty Corp. as owner and Luis Ciano and Kevin DeLaRosa as tenants. This was the first time she had ever seen this Renewal Lease; neither the original nor a copy of it were among the papers received at closing. When asked by her lawyer “if there was an original would it have been in the file,” Ms. Melendez answered “yes” and that, as far as she knew, it never existed. Ms. Melendez testified that Mr. Ciano had come in to the management office in July or August 2018 and identified himself as Elsa Bencosme's husband.
Ms. Melendez testified that the signature at the bottom of the August 12, 2015 Renewal Lease was not “Frank's”, whose signature she was familiar with because he had signed other leases on behalf of the prior owner which had been handed over at closing and were in her possession. Ms. Melendez testified that of the leases that were turned over at closing, some had Frank's signature on them and some were signed by “another gentleman that also owned the building with Frank.” Ms. Melendez did not know the name of the other co-owner.
On cross-examination Ms. Melendez testified that after Petitioner acquired ownership of the building she went to the building several times to knock on all the doors and meet as many of the tenants as she could and that “by June I knew most of the tenants.” Mr. DeLaRosa answered the door when she went to Apartment B1.
Petitioner's second witness was Frank Creedon, who managed the building for the prior owner along with another building in the Bronx at 6125 Broadway. Mr. Creedon was in charge of “basically everything,” including repairs and signing leases. He did not necessarily prepare the leases himself — his daughter who worked with him also prepared them, and the handwriting on leases therefore would always be either his or his daughter's. However, he would review all leases and was the only person who would sign them for the landlord. Tenants would either sign them in front of him or, more frequently, sign them elsewhere and send them in to the office.
When shown the Renewal Lease dated August 12, 2015 listing Luis Ciano and Kelvin DeLaRosa as tenants, Mr. Creedon said the signature was absolutely not his. He also testified that he did not prepare that lease and did not think the handwriting on it was his daughter's, which he would recognize because she worked in the business for many years. She was the only other person who worked with him in the business for the last fifteen years he managed the building. He gave “everything” he had to the new landlord, left nothing behind, and if he had prepared this Renewal Lease he would have given it to the new landlord at closing with all of his other records.
By comparison, Mr. Creedon did recognize and identify his signature on Elsa Bencosme's lease dated July 1, 2008. He also recognized and identified his signature on all fourteen of a set of Renewal Leases for other tenants at 2537 Valentine Avenue and at 6125 Broadway, the other property he used to manage, that were admitted into evidence over Respondent's objection as handwriting and signature exemplars.
Mr. Creedon testified that he had never seen Respondent before and did not know his name. On cross-examination he also stated that “a lot of people live there” in the building, he did not know everybody and he could not recall if he had ever met any tenants in Apartment B1. Mr. Creedon testified first that he handed out every lease to every tenant in all 52 apartments in the building, then corrected himself and said that “on some occasions” he would give the leases to the super, Manuel Jesus Tejeda, to hand out and that “I didn't hand them out personally to each person.”
Petitioner rested after Mr. Creedon's testimony, and Respondent then took the witness stand in his own defense. He testified that he has lived in Apartment #B1 at 2537 Valentine Avenue since March 2010, soon after Elsa Bencosme started living on 161st Street in the McKinley Houses, Apartment # 11E. Ms. Bencosme is married to Respondent's cousin Luis Hiciano. After Ms. Bencosme and Mr. Hiciano moved out, Respondent moved in to the subject premises with four other people: his mother, his father, his niece and someone else whose name he did not know. Respondent testified that he has paid the rent since March 2010, by money orders with his name written on them which he purchased and mailed in to the landlord every month. The landlord cashed the money orders and no one ever questioned where or who they were coming from. He has saved many of his money order receipts, and offered into evidence 61 of them, some in the form of carbon copies of the originals and others in the form of stubs, stapled together into seven bundles. Petitioner objected to the admission into evidence of the money order receipts, arguing that many of the carbon copies appeared to have been written over in ink. On voir dire, Respondent denied having changed any of the carbon copies by handwriting over them in ink. The Court admitted them into evidence, subject to the Court reviewing each one carefully and determining whether it was a carbon copy that appeared to have been altered by being written over in ink, in which case the Court would exclude it.
Mr. DeLaRosa testified that in 2015 he went to the prior owner's management office in the building and was given a lease by the landlord's super, Manuel Jesus Tejeda, which he signed and which the super gave back to him. The lease was in both his name and the name of his cousin Luis, Elsa Bencosme's husband, although Luis did not sign it “because he didn't live there” and instead lived with Elsa Bencosme. The lease that he was given and that was admitted into evidence is the original of the copy that Petitioner's managing agent offered into evidence during her testimony and consists of the original and two identical carbon copies attached to it. Mr. DeLaRosa testified that this is the exact lease the super gave him and he has not altered it in any way. Although he had never met the prior landlord he knew that its name was “Moybros Realty Corp.”. He always dealt with Manuel the super, did not know who signed the lease for the landlord and did not know why he was given the original with two copies attached to it. The Court admitted the lease into evidence, over Petitioner's objection. Respondent testified that when the renewal lease expired in 2017 he asked for another renewal and was told that because the building was being put up for sale “all leases were on hold”.
On cross-examination Mr. DeLaRosa testified that there were two other leases in his name dating back before the one that was admitted into evidence but he does not have them anymore. He did not know why the landlord continued to register the apartment with the DHCR in the name of Elsa Bencosme.
Petitioner then re-called Frank Creedon as a rebuttal witness, solely to explain that when he signs a lease renewal it consists of three pages — an original and two copies. He never sends pre-signed renewal leases to tenants: tenants sign first and return them, he reviews the leases and then he signs and returns just one copy back to the tenant.
On cross-examination Mr. Creedon testified that there is no possibility that he would have signed the lease and handed it to the super for the tenant to sign afterwards because he always reads them to make sure no names have been added that weren't there when he sent them out before signing them. He again testified that there was no way that the signature on the August 12, 2015 Renewal Lease was his, that's not how he signs his name, and that it was not possible that his signature could change as he believes his signature stays the same forever.
Validity of Lease
The Court finds credible Respondent's testimony as to how he came into possession of the Renewal Lease in the names of himself and his cousin Luis dated August 12, 2015: That it was given to him at the building's on-site management office by the super Manuel, who was the only person who worked for the prior owner that he ever dealt with. Respondent credibly explained that he did not know who signed the lease for the landlord, that he did not know why he was given the original lease with the two copies attached and that the lease is in the same condition now as it was when the super gave it to him. The Court also finds credible the testimony of Mr. Creedon to the extent that he asserted that his signature and handwriting are not on the August 12, 2015 lease.
To reconcile this disparate testimony, and as permitted by CPLR R 4536, see, e.g., Trevisani v. Karp (164 AD3d 1586, 1587, 83 NYS3d 777, 779 [4th Dep't 2018] ), citing People v. Hunter (34 NY2d 432, 435—436, 358 NYS2d 360, 315 NE2d 436  ), the Court has compared the handwriting and signatures on the August 12, 2015 lease in Respondent's name with Elsa Bencosme's original lease dated July 1, 2008 and the fourteen other Renewal Leases offered into evidence as exemplars, all of which Mr. Creedon testified his signature did appear on. Based on its examination of these documents the Court finds that while Mr. Creedon's signature is not on Respondent's August 12, 2015 lease, the distinctive handwriting that filled in the blank lines on that form with the tenants' names and other terms of the lease matches exactly the handwriting on twelve of the fourteen lease renewals for other tenants as well as the handwriting on Ms. Bencosme's original lease. Accordingly, Respondent's lease had to have been generated by Petitioner's predecessor-in-interest and offered to Respondent as he described it and the Court accordingly finds it to be a valid lease offer which, upon acceptance by the tenant, created a binding lease agreement. 123 W 15 LLC v. Compton (4 Misc 3d 138[A], 798 NYS2d 349 [App Term 1st Dep't 2004] ).
While Respondent provided no clear answer to the question of who signed his lease on behalf of the prior owner, that question need not be answered for the Court to determine that the August 12, 2015 lease is valid. Mr. Creedon testified that he did not know everybody in the building, that “a lot of people live there”, that he could not recall if he had ever met any of the tenants in Apartment B1, that he did not personally distribute all of the leases and that the super Manuel would also hand them out. In other words, Mr. Creedon came across a not particularly “hands-on” manager, and it is certainly possible that the super took it upon himself to sign Respondent's lease. Further, Mr. Creedon's testimony that all leases had to be reviewed and signed by him after the tenant signed them was contradicted by Petitioner's agent Ms. Melendez, who testified that there was a second prior co-owner whose name she did not know and whose signature appeared on some of the leases that were handed over at closing. Accordingly, it is possible that that other owner signed Respondent's lease.
The Court also does not credit the testimony of Mr. Creedon that if the August 12, 2015 lease in Respondent's name existed he would have turned it over at closing. Ms. Melendez testified that the prior owner was a poor record keeper and that only “very few things” were turned over at closing in “a little box”.
Why the landlord continued to register the apartment with the DHCR in the name of Elsa Bencosme is a question that was not answered by the evidence presented by either side; however, this is not determinative of Respondent's rights. Significantly, whereas the DHCR records list Elsa Bencosme as the tenant in every year from 2009 through 2018, only her original lease was offered into evidence. It would be expected that if that lease had been renewed by Ms. Bencosme at least some of those renewals would have been turned over at closing and offered into evidence.
Further adding to the veracity of Respondent's testimony and his claim that he is a tenant in his own right is the evidence he presented to support his claim that he paid rent in his own name to the prior owner for many years: 61 money order “receipts”, 42 of which are “carbon copies” of the originals from a company called “American Financial Integrity,” a/k/a “AFI of New York, Inc.” and 19 of which are tear-off stubs from United States Postal Service (“USPS”) money orders. The USPS tear-off stubs differ from the money order carbon copies in that they are filled in separately from the money orders and do not necessarily reflect what was written on the actual money orders. The Court has reviewed all 61 of the money order carbon copies and tear-off stubs and notes the following:
• Of the 12 money order carbon copies comprising Exhibit A, all with pre-printed dates in the year 2012, 9 have no ink on them and clearly include the names of both Respondent and Petitioner's predecessor-in-interest, Moybros Realty; six of them also clearly also reference apartment “B1”, the subject premises. Of the remaining 3, two have been inked over, but when holding those up to the light it appears that the ink merely reiterates what had come through faintly on the carbon copy, which includes the names of both Respondent and Moybros Realty and a reference to apartment “B1”. The one other carbon copy of a money order comprising Exhibit A has no ink on it, and the words “Moybros Realty” and a reference to “B1” are on it, but Respondent's name cannot be seen.
• Of the 8 money order carbon copies comprising Exhibit B, all with pre-printed dates in the year 2013, 2 have no ink on them and clearly include the names of both Respondent and Moybros Realty and a reference to apartment “B1”. On the other six, the only writing that can be seen is in ink, with a range of readable text from simply the word “Renta” in red ink on one of them to others that have just “Moybros Realty” and a reference to “B1” to others that include all of that plus also Respondent's name.
• Of the 9 money order carbon copies comprising Exhibit C, all with pre-printed dates in the year 2014, none have ink on them, all but one clearly include the names of both Respondent and Moybros Realty and 4 of those include a reference to “B1”; the other one has the name of Moybros Realty on it but Respondent's name does not appear.
• Of the 10 money order carbon copies comprising Exhibit D, all with pre-printed dates in the year 2015 (except possibly one, which shows “8” as the month but the date and year are covered up by other pre-printed text), none have ink on them, 7 clearly include the names of both Respondent and Moybros Realty and a reference to “B1” and one clearly includes the names of both Respondent and Moybros Realty without a reference to “B1”. The other two have the name of Moybros Realty on them but not Respondent's name.
• Exhibit E consists of 8 USPS tear-off stubs, all with pre-printed dates in the year 2016; they all reference the names of both Respondent and Moybros Realty and 7 of them also reference apartment “B1”.
• Exhibit F consists of 9 USPS money order stubs, all with pre-printed dates in the year 2017; they all reference the names of both Respondent and Moybros Realty and 3 of them also reference apartment “B1”.
• Exhibit G is comprised of 2 USPS money order tear-off stubs and 3 money order carbon copies with no ink on them. The 2 USPS money order stubs are both dated in February 2016 and include the names of both Respondent and Moybros Realty. The 3 money order carbon copies contain pre-printed dates of 11/24/15, 10/31/15 and 1/9/16, respectively, they all contain the names of both Respondent and Moybros Realty and “B1” appears on one of them.
Collectively, Respondent's Exhibits A through G corroborate his testimony that he paid rent in his own name by money orders which he mailed in to the prior owner over a period of many years. While the 19 USPS money order tear-off stubs do not reflect what information was written in on the actual money orders that were mailed in to the prior owner, there is no reason for the Court to believe that those money orders differed in any substantial way from the 31 of the 42 AFI money order carbon copies, the earliest one of which was dated 1/29/12 (Exhibit A1) and the latest one of which was dated 1/9/16 (Exhibit G5), that clearly included in the text that came through on the carbon copies the names of both Respondent and Moybros Realty, 19 of which also included a reference to apartment “B1”.
Based on a preponderance of the credible evidence, the Court finds that the August 12, 2015 lease in Respondent's name was prepared by Petitioner's predecessor-in-interest and offered to Respondent who signed it and chose a two-year renewal running through August 31, 2017. Petitioner is bound by the actions of its predecessor-in-interest in creating a tenancy with Respondent.
Acceptance of Rent
A tenancy may not generally be created by waiver or estoppel. 117 W Fourth LLC v. Fennell (1999 NY Misc LEXIS 709 [App Term 1st Dep't 1999] ), citing Plon Realty Corp v. D'Abbracci (1997 NY Misc LEXIS 757 [App Term 1st Dept] ); and Gottlieb v. Aragones (NYLJ, July 12, 1996, at 21, col 3 [App Term 1st Dept] ). However, the cases that stand for this proposition do leave open the possibility that a landlord can waive the right to contest the creation of a new tenancy with someone who remains behind after a Rent Stabilized tenant of record moves out, by intentionally continuing to accept rent from the remaining occupant without taking any action, see, e.g., 317 West 77th, Inc v. Pera and Maurer (1990 NY App Div LEXIS 16873 [App Term 1st Dep't 1990] ); and Lee v. Wright (108 AD2d 678, 485 NYS2d 543 [1st Dep't 1985] ); both citing Jefpaul Garage Corp v. Presbyterian Hospital in NY (61 NY2d 442, 447-448, 462 NE2d 1176, 1178-1179, 474 NYS2d 458, 460-461  ).
The Court of Appeals decision in Jefpaul Garage Corp v. Presbyterian Hospital in NY stands for the well-settled proposition that acceptance of rent by a landlord from a tenant with knowledge of the tenant's violation of the terms of the lease normally results in a waiver of the violation:
The logic underlying this rule is plain enough: the option rests with the landlord to recognize the violation and terminate the tenancy. If he chooses to ignore it and accepts rent with knowledge of the tenant's violation then the acceptance evidences his waiver and an election to continue the relationship. Although the intent to waive is usually a question of fact, knowing acceptance of rent without any effort to terminate justifies an inference that the landlord has elected to hold the tenant to the lease. The primary reason for the rule is the inconsistency of the landlord's positions. As one old English case put it, the landlord should not be permitted “to treat a man as a tenant, and then treat him as a trespasser” (Finch v. Underwood, 2 Ch Div  310, 316).
Jefpaul Garage Corp v. Presbyterian Hospital in NY (61 NY2d at 447-448, 462 NE2d at 1178-1179, 474 NYS2d at 460-461  ).
In 317 West 77th Inc v. Pera and Maurer, supra, the Court noted that, “the predecessor landlord knowingly accepted Maurer as a tenant in his own right, in place of the rent stabilized tenant, who vacated the premises long ago. Significantly, Webb admitted that she took no action against t[enant] (Pera) for his failure to execute a renewal lease in 1982 since ‘it was not easy to get a new tenant’ at the time. Later, Webb failed to take any steps to remove Maurer, prior to the sale of the building to petitioner in August 1985. Petitioner, as successor in interest, was bound by the prior owner's actions.”
Here, even though the Court has found that Petitioner's predecessor-in-interest Moybros Realty offered Respondent a lease in his own name which he accepted, an alternate ground exists on the facts of this case for finding that Petitioner's predecessor-in-interest acknowledged Respondent's tenancy by accepting rent payments from Respondent in his own name over a period of at least four years without any objection. While Mr. Creedon, agent for Moybros Realty, did not admit to having any knowledge of Respondent's occupancy - or Ms. Bencosme's vacatur of the premises - no evidence was presented that Moybros Realty rejected any of Respondent's payments or sued Elsa Bencosme for nonpayment of rent. Significantly, although Moybros Realty registered the apartment with the DHCR in Ms. Bencosme's name in every year from 2009 through 2018, the only lease that was offered into evidence in her name was her original one, which expired in 2010. Further, no evidence was presented that Moybros Realty took any steps to remove Elsa Bencosme and Respondent prior to the sale of the building to Petitioner on May 31, 2018. Accordingly, as in 317 West 77th Inc v. Pera and Maurer, supra, “Petitioner, as successor in interest, was bound by the prior owner's actions,” and the credible evidence demonstrates that Moybros Realty waived the right to contest the creation of a new tenancy with Respondent by accepting rent from him without taking any action over a period of at least four years.
Accordingly, the Petition is dismissed, with prejudice. The parties may pick up their documents that were submitted into evidence as trial exhibits from the Part T Clerk (in either Room 409 or 410 at 851 Grand Concourse, Bronx, New York) within thirty days. If the exhibits are not picked up by April 22, 2019, they may be disposed of in accordance with Administrative Directives. This constitutes the Decision and Order of the Court, copies of which are being mailed to the parties' attorneys forthwith.
1. Kelvin Delarosa is the only Respondent who appeared in this proceeding; accordingly, all references herein to “Respondent” refer only to him.
Diane E. Lutwak, J.
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