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Civil Court, City of New York,

James QUIGLEY, Petitioner, v. Jamie PHILLIPS, Respondent.

L & T 50047/21

Decided: April 14, 2021

Attorney for Petitioner: Antoine R. Morris, Esq., The Legal Aid Society, 111 Livingston Street, Fl 7, Brooklyn, NY 11201 Attorney for Respondent: Edward R. Hall, Esq., Balsamo, Rosenblatt & Hall, PC, 200 Schermerhorn Street, Brooklyn, NY 11201

After trial, the court makes the following findings and determination:

James Quigley, (“Petitioner”) commenced this illegal lockout proceeding under RPAPL § 713[10] alleging that he was removed by force or unlawful means from 567 East 22nd Street, Apt. 2B, Brooklyn, New York 11226 (“Premises”) by Jamie Phillips (“Respondent”). Both parties were represented by counsel. Respondent did not file an answer with the court, which is deemed a general denial. The court conducted a trial on March 25, 2021 and the parties filed post-trial briefs on April 6, 2021.

After the trial, the following facts are undisputed:

• Petitioner was the tenant of record of the Premises, along with his now deceased wife, Joan Phillips, pursuant to the lease;

• Joan Phillips and Petitioner were married to each other at the time of Ms. Phillips' death;

• Joan Phillips is Respondent's mother;

• Petitioner is not Respondent's biological father;

• Joan Phillips was the sole tenant of the record of the Premises prior to marrying Petitioner and prior to his addition to the lease;

• Joan Phillips passed away on January 24, 2021;

• On January 27, 2021, three days after Ms. Phillips passed away, Respondent signed a renewal lease for the Premises in her own name and Joan Phillips' name (Resp Ex. C);

• On or about January 27, 2021, Respondent changed the locks to the Premises and did not provide Petitioner with a key;

• On February 23, 2021, the landlord of the subject building emailed a letter to Respondent rejecting the lease she signed because Ms. Phillips had passed away prior to the signing and Petitioner never authorized Respondent as a signatory to the lease (Pet Ex. 8);

• On February 24, 2021, Respondent obtained a Temporary Order of Protection against Petitioner from Brooklyn Family Court, on default, which instructs Petitioner inter alia to refrain from assaulting, stalking, or harassing Respondent but does not direct Petitioner to stay away from the Premises. (Resp Ex. B).

• On March 21, 2021 Petitioner signed a renewal lease for the Premies (Pet Ex. 2);

At trial, Petitioner testified that he that he had lived with his deceased wife at the Premises for ten years and was locked out of the Premises on January 30, 2021 by Respondent. He stated that he was advised by his attorneys to change the lock, which he did, but Respondent changed the locks again and never gave him a key.

Petitioner signed a lease for the Premises on March 8, 2021 (Pet Ex. 2) and maintained that he paid the rent for the Premises in February and March 2021. Petitioner explained that he relocated out of the Premises in or about April, 2020 because the apartment was full of clutter. He asserted that this clutter put a strain on his marriage with Joan Phillips, as well as a strain on his health. Petitioner explained that because of the clutter, there was no clear path to the fire escape at the Premises, EMS could not get the chair into the Premises to carry Ms. Phillips out of the Premises when she suffered a medical emergency and the Fire Department was called because it was a fire hazard.

Petitioner introduced photographs into evidence, (Pet Exs 5, 6, and 7) all taken in April 2020, which he asserted depicted the state of clutter in the Premises at that time. The pictures show multiple garbage bags full of clothing in the living room, stacked up above the height of the doorknob of the door to the Premises, as well as clothing strewn across chairs and laundry baskets filled with clothes and suitcases piled on top of the baskets and clothing. In the photographs, the path to the door in the living room is obstructed by bags of clothing. The photographs also portray the living room from another angle and contain many bags of clothing piled throughout, along with mirrors, stools, an animal carrier and multiple suitcases, all stacked on top of each other (Pet Ex. 7).

Petitioner explained that he was her primary caretaker prior to her death. He asserted that he coordinated her doctor's appointments, took her to and from appointments and made sure she had food. Petitioner also testified that he was in close contact with her “healthcare and insurance.” He stated he accompanied her to her doctor's appointments “pretty often” because she was regularly going for chemotherapy in addition to other appointments. However, Petitioner emphasized that the clutter at the Premises greatly disturbed him. He maintained that he tried to clean up but it would cause an argument between himself and his wife because she wanted the kids, rather than him, to clean up their belongings. Petitioner claimed he eventually became frustrated that his wife's children never cleaned up the apartment and so he found an apartment nearby.

At trial, Respondent maintained that Petitioner abandoned the Premises and she was therefore entitled to change the locks. Respondent testified that she had lived at the Premises, a two bedroom apartment, since she was born, and that she had lived there “consistently” since 2014. She asserted that her mother, Joan Phillips, had occupied one room and that she and her twin sister occupied the other room since 2014. In 2015, she stated that her mother, herself, sister and two nieces lived at the Premises while Petitioner lived in an apartment on Hawthorne Street in Brooklyn. Respondent stated that during this time Petitioner would “go back and forth” but was at the Premises “a little bit more.” Respondent asserted that Petitioner “pretty much” always maintained another apartment and would travel back and forth to the Premises.

While Respondent testified that she resided at the Premises since 2014, she also testified that she and her sisters “would bring food over” to her mother at the Premises when her mother was ill. She stated that she and her sisters would clean the apartment and clean up after their mother, and that there were occasions where she fell, and they would care for her. They also helped her use the restroom and change her clothing.

Respondent attested between 2013 and 2014, the family had to relocate from the Premises because the landlord renovated the entire apartment. All of the family's furniture and belongings were either moved into a temporary apartment down the block, or to a storage area, which Petitioner paid for. The renovations were supposed to take two weeks but lasted six months. Respondent explained that when the renovations were completed, all of the furniture and belongings were “forced back into the apartment.” She asserted that to this day, all of their belongings, 50 years worth from different people, is sitting at the Premises.

Respondent testified that building management contacted her to renew the lease for the Premises in December, 2020 or January, 2021. At that time she did not not believe Petitioner would return to the Premises “because he said it so many times.” The management office subsequently sent her a renewal lease that contained her name and her mother's name (Resp Ex. C). Respondent asserted that she signed the lease in her own name and sent it back to the management office. She stated they contacted her and told her her mother needed to sign the lease as well. Respondent acknowledged she then “printed” her mom's name on the lease, although she had passed away three days prior (Resp Ex. C). She did not communicate to the landlord that her mother died because “James Quigley was in communication with the landlord” and “he said whatever he needed to say.” She subsequently received the February 23, 2021 email from management thereafter explaining that they were nullifying the lease she signed because her mother had passed and Petitioner had not authorized her to sign the lease (Pet Ex 8). Respondent did not contact management again. However, she changed the locks in January, 2021 and explained that she tried, but failed, to reach Petitioner. She spoke to him in February, 2021 and told him he could have access to the Premises to collect his belongings.

Respondent introduced into evidence a text message from Petitioner dated April 22, 2020 (Resp Ex. A). In the text message, Petitioner tells Respondent to pay the rent because Joan Phillips owed two months of rent on the Premises. Respondent maintained that when she received the text message it led her to believe that Petitioner was no longer maintaining rights to the Premises and that she started paying rent for the Premises from April 2020 through the time he started this case. She explained, however, that her mother paid the utilities for the Premises. She testified that she paid rent for January and February of this year but she did not pay March, 2021 rent because he is “here” and “saying he paid the rent because it is in court.” Respondent asserted that she has a profile through the building management, which she used to pay the rent. She stated that once she makes the online payment it is supposed to reflect her name, but when she checked the website it does not state her name.

Respondent called Hilita Cruz Hunt, her eldest sister and Joan Phillip's daughter, as a witness. Ms. Cruz Hunt explained that she does not reside at the Premises. She maintained that Petitioner had lived at the Premises but that she dropped him off at another address, by Lenox Road and Rogers Avenue, three times around the time her mother passed away. She visited her mother every other weekend and sometimes after work on Mondays and Wednesdays. Ms. Cruz Hunt testified that Petitioner claimed he was her mother's primary caretaker but that her mother said she never wanted anyone to take care of her. The witness explained that Respondent had lived at the Premises until the beginning of the COVID-19 pandemic, which the court notes began in Brooklyn, New York mid-March, 2020, because her mother was undergoing chemotherapy treatment and Respondent did not want to expose her mother to any illnesses. The sisters would drop things off at the Premises and then leave. Ms. Cruz Hunt maintained that Petitioner began informing her that he moved out of the Premises in January when her mother passed.

Respondent called Sherry Anne Phillips, her other sister, as her last witness. She testified that she and her sisters were raised at the Premises and always had the keys to the Premises during their lifetimes. She testified that the Petitioner had been “back and forth” from the Premises since 2011 and vacated the apartment around two years ago. When her mother got sick he could not take care of her, however, she tries not to be around him as much as possible when in the apartment.

Respondent maintains as a defense to this proceeding, that Petitioner abandoned or surrendered possession of the Premises. The burden of proving a surrender rests upon the party seeking to establish it or relying upon such surrender (Sam & Mary Housing Corp. v Jo/Sal Market Corp., 100 AD2d 901, 901-902 [2nd Dept 1984] affirmed 64 NY2d 1107, 1108 [1985]). In order to deem an apartment to be abandoned, an expressed intent to abandon and an overt act is required to be shown (Delgado v 1038 Southern Blvd. Realty Assocs., N.Y.L.J. May 28, 2008 at 27:1 [Civ Ct Bronx Co]; Gardner v Smith, N.Y.L.J. Dec. 21, 2005 at 22:3 [Civ Ct Kings Co]; Walker v 570 7th Ave. LLC, N.Y.L.J. June 8, 2005 at 22:1 [Civ Ct Kings Co]; N'tuli v Rinaldi, N.Y.L.J. Jan. 31, 2001 at 32:2 [Civ Ct Richmond Co]).

For example, keys are considered to be a symbol of possession (Fishel v Baronelli, Ltd., 119 Misc 2d 625, 627 [Civ Ct NY Co 1983]; Eight Cooper Equities v Abrams, 143 Misc 2d 52, 55 [Civ Ct NY Co 1989]). However, the fact that the power was off at the subject premises is probative of abandonment Salem v US Bank Natl. Assn., (82 AD3d 865, 866 [2nd Dept 2011]; N. Main St. Bagel Corp. v Duncan, 6 AD3d 590, 591 [2nd Dept 2004]; Lyke v Anderson, 147 AD2d 18, 25-26 [2nd Dept 1989]), as was the apparently trashed state of the subject premises and petitioner's uncontroverted failure to sleep in the subject premises (see Salem, 82 AD3d at 866). Notably, no abandonment is shown when the tenant leaves his belongings in the apartment, pays rent, and maintains a lock, even if the tenant may spend enough time out of the apartment so as to fail to maintain it as a primary residence (Real America Co. v Crow, NYLJ April 9, 1984 at 12:5 [App Term 1st Dept]).

Respondent bears the burden of establishing Petitioner's expressed intent to abandon the Premises, as well as an overt act (Delgado v 1038 Southern Blvd. Realty Assocs., N.Y.L.J. May 28, 2008 at 27:1 [Civ Ct Bronx Co]; Gardner v Smith, N.Y.L.J. Dec. 21, 2005 at 22:3 [Civ Ct Kings Co], Walker v 570 7th Ave. LLC, N.Y.L.J. June 8, 2005 at 22:1 [Civ Ct Kings Co]; N'tuli v Rinaldi, N.Y.L.J. Jan. 31, 2001 at 32:2 [Civ Ct Richmond Co]). Respondent maintains that the fact that Petitioner did not primarily reside at the Premises, and allegedly stopped paying rent for the Premises in April 2020, demonstrates that he abandoned the Premises. However, Respondent has not met her burden.

Petitioner credibly testified that he was living apart from his wife for some time prior to being locked out of the Premises because he could not reside in the clutter of the apartment. Petitioner introduced into evidence photographs that corroborated his testimony that the apartment was in a state of sincere disarray and clutter. Respondent corroborated this testimony with her own when she explained that the family had relocated out of the Premises in 2013 or 2014 due to renovations and that all of their belongings of 50 years were placed back into the apartment thereafter. She explained that Petitioner relocated out of the Premises shortly thereafter and that he and his wife had been living apart since.

All of the Respondent's witnesses, including herself, confirm Petitioner's testimony that he went back and forth from a separate apartment to the Premises for at least a year or two prior to his wife's death. Both parties concede that Petitioner still kept his belongings at the Premises, kept the keys for the premises, and was paying rent for the Premises through April, 2020. Petitioner also maintains that he paid rent in February and March, 2021. Most importantly, Respondent has not established that Petitioner stated expressly that he no longer desired to return to the Premises or performed any overt act that demonstrated his abandonment of the Premises. In fact, he testified that he returned to the Premises shortly after his wife's death, and that the locks were changed. He maintains that he contacted an attorney who advised him to change the locks back, which he did, but that Respondent then changed the locks again. His attorneys contacted the landlord's office so that he could sign a renewal lease, which he did. He then commenced the instant proceeding. If anything, Petitioner's acts demonstrate a desire to reside at the Premises, of which he is the rent stabilized tenant of record. (Banks v. 508 Columbus Props., 8 Misc 3d 135[A][App. Term 1st Dept 2005][no abandonment shown when, inter alia, immediately prior to the lockout petitioner tendered and respondent accepted at least two rent checks]; Webley v. David Feldman Realty Corp., N.Y.L.J. June 30, 1993 at 25:4 [Civ. Ct. Kings Co.][continuation of Section 8 subsidy a factor tending to show that the premises have not been abandoned].) However, payment of rent is also an important factor is determining whether an abandonment has taken place. (see e.g. Banks v. 508 Columbus Props., 8 Misc 3d 135[A] [1st Dept 2005]; Matter of Lee v. Ho-Park, 16 AD3d 986, 987-988 [3rd Dept. 2005]; N. Main St. Bagel Corp. v Duncan, 6 AD3d 590 [2d Dept 2004]; Ritz Entertainment Org., Inc. v Unity Gallega of United States, Inc., 166 AD2d 186 [1st Dept 1990]; Lyke v Anderson, 147 AD2d 18 [2d Dept 1989], Nieves v. 331 E. 109th St. Corp., 112 AD2d 59 [1st Dept. 1984]; Witlow v Kip's Bay JV LLC, 22 Misc 3d 136[A] [App Term, 1st Dept 2009]; Banks v. 508 Columbus Props., 8 Misc 3d 135[A][App Term, 1st Dept 2005]; Faustin v. 103 Equity Holding LLC, N.Y.L.J. April 18, 2000; at 26:3 [App Term, 1st Dept], Real America Co. v. Crow, N.Y.L.J. April 9, 1984 at 12:5 [App. Term 1st Dept]).

It is undisputed that Respondent changed the locks to the Premises without providing Petitioner with due process of law. The Court therefore finds that the Respondent unlawfully removed Petitioner from possession of the Premises in violation of RPAPL § 713[10], although he was legally residing there, and orders that he be restored to possession of the Premises forthwith. Accordingly, Petitioner is awarded a judgment of possession in favor of the Petitioner and against the Respondent for 567 East 22nd Street, No.2B Brooklyn, NY 11226. Petitioner may seek the assistance of a New York City Marshal or Sheriff or the NYPD to enforce the judgment in the event that restoration is denied.

This constitutes the decision and order of the court.

Heela D. Capell, J.

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