DIANE E. LUTWAK, J.
Petitioner, represented by counsel, commenced this alleged illegal lockout proceeding under Section 713(10) of the New York State Real Property Actions and Proceedings Law (RPAPL) by Order to Show Cause in Lieu of Notice of Petition and Verified Petition. Petitioner seeks to be restored to possession of Room 17 in Apartment 2D at 1171 Washington Avenue, Bronx, New York ("the subject premises"), where he resided from January 31, 2020 through May 6, 2020. Respondent 1171 Washington Ave., LLC is the owner of the building, which Co-Respondent Bronx Parent Housing Network, Inc. (BPHN) leases to provide temporary emergency housing to vulnerable formerly homeless individuals pursuant to contracts with the City of New York.
In addition to restoration to possession, Petitioner seeks an order enjoining Respondents from interfering with his use of the premises; finding Respondents' behavior to constitute violations of the new statewide "Unlawful Eviction" law, RPAPL § 768(1), and awarding civil penalties under RPAPL § 768(2); finding Respondents' behavior to constitute harassment and a Class "C" immediately hazardous violation under Sections 2005(d) and 27-2115(m)(1) of the Administrative Code of the City of New York ("NYC Admin Code") and awarding civil penalties under NYC Admin Code § 27-2115(m)(2); enjoining Respondents from further violations of NYC Admin Code § 2005(d) pursuant to NYC Admin Code §§ 27-2121 and 27-2115(m)(2); and awarding Petitioner costs, expenses and attorneys' fees.
The Order to Show Cause was signed May 8, 2020 and made returnable May 14, 2020. In advance of the return date Co-Respondent BPHN served and filed a Notice of Appearance by counsel and opposition papers. On the return date, due to the COVID-19 pandemic and consequent limitations on court operations, the Court and counsel for all parties appeared by Skype for Business videoconference. The court heard argument as to whether the Petition should be granted or dismissed summarily as a matter of law, without a hearing. Further briefing was agreed to, with Petitioner's Reply to BPHN's opposition papers due by May 19 and BPHN's Sur-Reply due by May 22. Petitioner agreed to discontinue the proceeding as against the Respondent-Owner and entered into a written agreement to that effect through counsel dated May 20. Pursuant to CPLR Rule 409(b), and after giving notice to the parties and hearing further oral argument on May 27, the Court has determined there to be no triable issues of fact and that it is appropriate to make a summary determination upon the papers submitted.
The Court makes the following findings of fact, based on Petitioner's Verified Petition dated May 8, 2020 and attached documents; Respondent BPHN's Attorney's Affirmation in Opposition dated May 13, 2020; Affidavit in Opposition of BPHN Case Manager Supervisor Sheila Carter sworn to May 12, 2020 with attached documents; and Affidavit in Further Opposition of BPHN Chief Development Officer John Johnson sworn to May 22, 2020.
The building at 1171 Washington Avenue in the Bronx is owned by Respondent 1171 Washington Ave., LLC and run by Co-Respondent BPHN, a non-profit organization which net leases the building and, under contracts with New York City's Department of Homeless Services (DHS) and Department of Social Services/Human Resources Administration (DSS/HRA), provides emergency transitional housing and supportive services to a certain population of formerly homeless individuals with special needs. The building has twenty-two Class A apartments, each of which has three bedrooms, a bathroom and a living room area. The subject premises in which Petitioner resided and seeks to be restored to possession of is one of three bedrooms in Apartment 2D, where he shared access to the common areas with other residents.
On January 31, 2020 Petitioner was referred to BPHN by DSS/HRA's "Emergency Placement Unit" (EPU) via a "Referral to an Emergency Housing Facility Letter of Introduction". This document includes a paragraph that begins "CLIENT PLEASE READ" and advises Petitioner that, in response to his request for housing assistance, he was found to be homeless and eligible for emergency housing placement services. The letter goes on to inform Petitioner of his responsibilities regarding his emergency housing referral, including that he must swipe in at the facility with his "CBIC"
Also on January 31, 2020 Petitioner signed the following four documents:
Thereafter, the following occurred:
It is undisputed that Petitioner met with his DSS/HRA caseworker on May 6, 2020 and was referred to another transitional housing facility.
Petitioner argues that he should be restored to possession of the subject premises under the following statutes:
Petitioner argues that he should be restored to possession under RPAPL § 711 because the amendment to that statute made by HSTPA eliminated common-law self-help evictions against any person who lawfully occupies residential premises for thirty days or more including licensees like himself, even if they do not have an enforceable possessory interest. Petitioner argues that HSTPA's legislative history supports this argument in that (1) the amendment to RPAPL § 711 followed closely on the heels of Andrews v Acacia Network (59 Misc.3d 10, 70 N.Y.S.3d 744 [AT 2nd Dep't 2018]); (2) a backdrop of growing recognition of abusive tactics by "three-quarter house" operators, including a 2014 NYPD Memorandum on Enforcement of Unlawful Evictions and guilty pleas in the years 2017 and 2018 in cases the State brought against such operators; and (3) the testimony at a hearing held on May 9, 2019 by the New York State Assembly Standing Committee on Housing of a Senior Staff Attorney at The Legal Aid Society of Northeastern New York.
Petitioner also argues that Andrews v Acacia Network is distinguishable because that case hinges on the petitioner's lack of exclusive use of any portion of the subject premises and Petitioner here had exclusive use of Room 17 in Apartment 2D at 1171 Washington Avenue.
Petitioner asks this court to follow the guidance of Salazar v Core Servs Grp, Inc (2020 NY Slip Op 50424[U], 67 Misc.3d 1206[A][Civ Ct Bx Co 2020]), a recent lockout proceeding in which the petitioner resided at the subject premises through a program "designed to provide housing and services to youth and young adults up to the age of 21." The court found that the plain language of RPAPL § 711 warranted the petitioner's restoration to possession and rejected the respondent's argument that RPAPL § 711 did not apply because petitioner was a mere licensee not entitled to legal process because of his status as "a participant in a program". Petitioner also draws the Court's attention to the recent unreported decision in Morgan v 440 St Marks Realty LLC (Richmond Co L & T Index #10197/20, May 15, 2020), in which the court granted an illegal lockout petition and restored to possession under RPAPL §§ 711 and 713(10) someone whom the landlord knew to be in occupancy. In doing so, the court explicitly did not address whether the petitioner was "a tenant, licensee, squatter or otherwise" and simply found that she been "peaceably in actual possession at the time of ouster, rendering same unlawful and requiring remedy."
Regarding RPAPL § 713(10), Petitioner argues that to give full legislative intent to RPAPL § 711 the two provisions must be read in harmony. To do otherwise, Petitioner argues, would both require the term "possession" to have different meanings in the two sections and render the amendment to RPAPL § 711 superfluous.
RESPONDENT BPHN'S ARGUMENTS
Respondent BPHN asserts that as a nonprofit social service provider operating a homeless shelter under contracts with DHS and DSS/HRA, it is the equivalent of a homeless shelter directly operated by DHS. Respondent characterizes Petitioner as a transient occupant who has no landlord-tenant relationship with BPHN, is not entitled to the rights of a tenant or licensee provided by RPAPL §§ 711, 713 and 768 and therefore lacks standing for the relief he seeks. BPHN asserts Petitioner's right to occupy the subject premises was dependent on his compliance with DSS/HRA rules and the guest/client agreement he signed with BPHN. What occurred when he was closed out of his room in Respondent's facility after disobeying the rules was simply an "administrative transfer of a person from one shelter to another", not an illegal lockout, after which DSS/HRA was required to and did re-house Petitioner. BPHN claims it followed DSS/HRA protocols in cancelling Petitioner's participation in its transitional housing program, that the cancellation was approved by DSS/HRA and BPHN did not use physical or verbal threats against Petitioner. BPHN argues that the petition should be dismissed as Petitioner's exclusive remedy is to request a State Fair Hearing before an administrative law judge pursuant to 18 NYCRR § 358 et seq. and, if he does not prevail, to file a proceeding under Article 78 of the CPLR in New York State Supreme Court.
Regarding HSTPA, Respondent argues that neither its plain language nor its legislative history indicates an intent to alter the pre-existing regulatory framework for the provision of temporary housing and concomitant administrative transfer practices by New York City agencies or to reject long-standing appellate precedent limiting the categories of persons who have standing to bring a lockout proceeding under RPAPL § 713(10). Nothing in HSTPA or its legislative history, Respondent argues, speaks to the rights of transient occupants residing in transitional housing facilities such as the one run by BPHN under contracts with the City.
Respondent also argues that the petition must be dismissed (1) as moot because HRA/DSS was required to and did re-house Petitioner in another facility; and (2) for failure to name DSS/HRA as a necessary party.
The threshold question for this Court to address is whether Andrews v Acacia Network (59 Misc.3d 10, 70 N.Y.S.3d 744 [AT 2nd Dep't 2018]), and its progeny control the outcome in this unlawful entry or detainer proceeding under RPAPL § 713(10) or whether the amendment to the opening paragraph of RPAPL § 711 and the promulgation of the new RPL § 768 under HSTPA overrule Andrews and warrant Petitioner's restoration to possession.
In Andrews, after being denied entry the petitioner sought restoration under RPAPL § 713(10) to the room he had shared in a supportive living facility for persons with substance abuse problems. The facility was operated by the respondent nonprofit social services agency Acacia Network and subject to regulation by the New York State Department of Mental Hygiene's Office of Alcoholism and Substance Abuse Services. Acacia Network asserted in its answer that it was entitled to use self-help to regain possession because petitioner was a licensee and because he had signed a "Resident Attestation" agreement acknowledging that he had no tenancy rights. Petitioner responded that Acacia Network was required to commence a summary proceeding to evict him, citing to RPAPL § 711 and Section 26-521 of the Administrative Code of the City of New York (NYC Admin Code). The lower court granted the petition, finding that petitioner was a tenant entitled to be brought to court before being evicted and the "Resident Attestation" was unenforceable.
The Appellate Term, Second Department reversed, finding that while the characterization of the parties' relationship in their agreement was not controlling, because Acacia Network "did not grant petitioner exclusive dominion and control of a specifically identified portion of the premises, nor were there any locks on any of the dormitory-style rooms", he was a licensee and not a tenant and could not maintain a proceeding under RPAPL § 713(10), citing to Napier v Spielmann (196 N.Y. 575, 90 NE 1162 , affg on op of Houghton, J 127 A.D. 567, 111 N.Y.S. 983 [1st Dep't 1908]); P & A Bros v City of NY Dept of Parks & Recreation (184 A.D.2d 267, 585 N.Y.S.2d 335 [1st Dep't 1992]); and Korelis v Fass (26 Misc.3d 133[A], 907 N.Y.S.2d 101 [AT 1st Dep't 2010]).
The appellate court also found that while the unlawful eviction provisions of NYC Admin Code § 26-521 may provide for criminal liability and civil penalties, they "do not operate to change a license or other nonpossessory interest into a possessory interest" and "do not provide an avenue through which [an occupant] can be restored to possession," citing Barclay v Natoli (NYLJ, 1998 NY Misc LEXIS 799, Dec 30, 1998 [AT 2nd Dep't, 2nd & 11th Jud Dists]) and Clarke v Copenhagen Leasing, LP (48 Misc.3d 27, 29, 12 N.Y.S.3d 489 [AT 2nd Dep't, 11th & 13th Jud Dists 2015]). Further, the appellate court found that RPAPL § 711 gave petitioner no recourse, as that statute "does not operate to convert a license into a possessory interest", and in any event petitioner was not in "possession" of a room and the supportive living facility in which he shared a room was not a "rooming house". Finally, the appellate court found the "Resident Attestation" signed by the petitioner was an enforceable and valid waiver of rights, citing to, inter alia, Coppa v LaSpina (41 A.D.3d 756, 839 N.Y.S.2d 780 [2nd Dep't], lv to app den'd, 13 N.Y.3d 706, 915 N.E.2d 1181, 887 N.Y.S.2d 3 ), a decision which upheld a written agreement waiving "all statutory and/or regulatory relief or defenses regarding eviction and/or discharge from [the] program" signed by a resident of a home owned and operated by a nonprofit social service provider of housing and rehabilitative services to mentally ill homeless adults.
While Andrews is a case from the Second Department, it is cited with approval by the Appellate Term, First Department in Chappuis v CUCS-Kelly (60 Misc.3d 137[A], 110 N.Y.S.3d 193 [AT 1st Dep't 2018]), an unlawful entry and detainer proceeding under RPAPL § 713(10) brought by a formerly homeless resident of a federally-funded transitional housing program after he was excluded because of his alleged pattern of disruptive behavior. The trial court had ordered petitioner's restoration to possession based on the finding that the respondent nonprofit agency had failed to comply with certain due process requirements for "terminating assistance" under federal regulations. The appellate court agreed with this finding, but reversed and remanded for a new hearing because it could not "make the necessary findings on this record as to whether petitioner was in actual or constructive possession at the time he was put out or kept out of the premises, which RPAPL § 713(10) requires to maintain a forcible entry and detainer proceeding particularly in the absence of the `occupancy agreement' purportedly signed by petitioner that is mentioned, but not contained in the record", citing Andrews.
Also instructive and decided at the same time as and for the reasons stated in Andrews is Soto v Pitkin Junius Holdings, LLC (58 Misc.3d 153[A], 95 N.Y.S.3d 126 [AT 2nd Dep't 2018]), an unlawful entry and detainer proceeding under RPAPL § 713(10) brought by a resident of a "supportive three-quarter house" operated by Acacia Network to provide housing to individuals with substance abuse problems. (Acacia Network leased the premises from the named respondent, Pitkin Junius Holdings, LLC.) As in Andrews, the petitioner had signed a "Resident Attestation" form in which he agreed that he had no tenancy rights. As in Andrews, the appellate court reversed the lower court's order awarding possession to the petitioner. See also Felli v Catholic Charities of Steuben County (175 A.D.3d 1065, 1065-1067, 108 N.Y.S.3d 624, 624-625 [4th Dep't 2019])(affirming dismissal of unlawful eviction proceeding brought by a resident of a residential treatment facility for substance abusers who had signed a "Resident and Staff Responsibilities" agreement which included program participation requirements, visitor restrictions, conditions for leaving the facility and the right of facility staff to enter the resident's room without permission for various reasons).
Certainly, as in Andrews and Soto, this court is not bound by the characterization of the relationship between the parties as stated in the agreements between them, which labelled Petitioner variously as a "client", a "commercial guest" and "not a tenant". Miller v New York (15 N.Y.2d 34, 38, 203 N.E.2d 478, 480, 255 N.Y.S.2d 78, 80 ); Women's Interart Ctr, Inc v New York City Economic Dev Corp (97 A.D.3d 17, 21, 944 N.Y.S.2d 137, 140 [1st Dep't 2012]); American Jewish Theatre v Roundabout Theatre Co (203 A.D.2d 155, 156, 610 N.Y.S.2d 256, 257 [1st Dep't 1994]); Fed'n of Orgs, Inc v Bauer (6 Misc.3d 10, 12, 788 N.Y.S.2d 806, 808 [AT 2nd Dep't 2004]).
However, the undisputed evidence establishes that Petitioner's occupancy of a room in Respondent BPHN's facility was pursuant to a license so limited in scope and so highly regulated that it was akin to that of the occupants in Andrews, Soto and Felli and therefore does not constitute the requisite "actual or constructive possession", Chappuis v CUCS-Kelly, supra. Upon arrival at BPHN's facility Petitioner was provided with a set of "Client Rules and Regulations" advising him of various limitations on his use of the premises, including a mandatory midnight curfew, ban on visitors, ban on using hot plates, mandatory payment of his portion of the rent and BPHN's "right to perform regular or random inspections" with or without his consent or presence. Petitioner signed three separate forms that day advising him he would face "immediate discharge" and referral back to DSS/HRA for re-housing if he did not comply with the facility's rules. One of those documents — the "Waiver of Tenant Rights" rider to BPHN's rules and regulations explaining that Petitioner was being provided with conditional "temporary emergency housing" and no tenancy was being created — is similar to the agreements that were upheld as enforceable and valid in Andrews, Soto and Felli, and which the appellate court in Chappuis identified as a critical document that was mentioned but missing from the record. See also Coppa v LaSpina, supra (41 AD3d at 758-759, 839 NYS2d at 782-783)(holding that statutory rights are waivable, and an agreement to waive tenancy rights in the context of a transitional and supportive housing program may be valid "when considering the waiver agreement's background, purpose and effect"). Another form Petitioner signed a week later advised him he was required to make a monthly payment of $314 and that he would "be terminated immediately" if he did not make the required payment and that he would have to then vacate the premises upon request.
Moreover, Petitioner was referred to BPHN with a Letter of Introduction from DSS/HRA which advised him of what a "room closure" was, his obligation to use his DSS/HRA benefit card to swipe in to the facility every day and the fact that failure to do so would result in a room closure. He was advised that if he still needed emergency housing after a room closure he was to return to DSS/HRA to receive a new placement.
It bears noting that clearly distinguishable from Andrews, Soto, Felli, Chappuis and the case now before this Court are those cases in which licensees are restored to possession under RPAPL § 713(10) when they raise a viable family member succession rights claim to the prior tenant of record's (TOR) tenancy. See, e.g., Rostant v 790 RSD Acquisition LLC (21 Misc.3d 138[A], 873 N.Y.S.2d 515 [AT 1st Dep't 2008])(stepdaughter of deceased Rent Controlled TOR restored to possession where evidence established that she "was in constructive possession of the premises (see RPAPL 713 ), and that landlord's principal was aware of petitioner's possessory claim at the time of the lockout"); Banks v 508 Columbus Props (8 Misc.3d 135[A], 803 N.Y.S.2d 17 [AT 1st Dep't 2005])(husband of deceased Rent Stabilized TOR restored to possession where evidence established that he tendered and landlord accepted at least two rent checks prior to lockout and landlord "was well aware of petitioner's stated interest in a renewal lease in his name"); Dixon v Fanny Grunberg & Assoc, LLC (4 Misc.3d 139[A], 798 N.Y.S.2d 344 [AT 1st Dep't 2004])(son of deceased TOR restored to possession where evidence established he had given landlord written notice that he was asserting possessory rights); Bascus v Lake (2020 NY Misc LEXIS 1451, 2020 NY Slip Op 50425[U][Civ Ct Bx Co 2020]) (son of Rent Stabilized TOR restored to possession after being locked out by a non-family member licensee of the TOR); Hui Zhen Wei v 259 E Broadway Assoc LLC (57 Misc.3d 136[A], 66 N.Y.S.3d 653 [AT 1st Dep't 2017])(wife of Rent Stabilized TOR who had surrendered his tenancy restored to possession where she previously asserted possessory rights to respondent owner who had made several buyout offers to her prior to the lockout); and compare Tantaro v Common Ground Community Hous Dev Fund, Inc (147 A.D.3d 684, 684-685, 48 N.Y.S.3d 129, 129 [1st Dep't 2017])(upholding dismissal of unlawful eviction action brought by fiancée of deceased Rent Stabilized TOR who was not listed as a member of the TOR's household and was required to sign in on the visitor's log each time she sought access); Padilla v Rodriguez (61 Misc.3d 133[A], 110 N.Y.S.3d 865 [AT 1st Dep't 2018])(upholding dismissal of lockout proceeding where petitioner was the Section 8 tenant of a different apartment and had no possessory interest in the subject apartment); Brown v 165 Conover Assoc (5 Misc.3d 128[A], 798 N.Y.S.2d 707 [AT 2nd Dep't 2004])(dismissing illegal lockout proceeding brought by sister of deceased tenant of record who did not claim tenancy rights); Chow v 86 Bay LLC (59 Misc.3d 1229[A], 108 N.Y.S.3d 688 [Civ Ct Kings Co 2018]) (dismissing illegal lockout proceeding brought by brother of deceased tenant of record who failed to prove he had lived with his brother in the premises).
Here, the evidence establishes that Petitioner was a licensee subject to a living arrangement in BPHN's facility characterized by explicit and extensive occupancy conditions who lacked any possible claim to possession under RPAPL § 713(10) as interpreted by long-standing case law. Accordingly, Andrews and its progeny require dismissal of this proceeding, unless they have been overturned by HSTPA.
The Court now turns to HSTPA, specifically the new sentence added to the opening paragraph of RPAPL § 711 and the new section RPAPL § 768. A fundamental rule of statutory interpretation is that a court should attempt to effectuate the intent of the legislature, starting with the plain language of the text. Matter of Smith v Donovan (61 A.D.3d 505, 508, 878 N.Y.S.2d 675, 678-679 [1st Dep't 2009]). Initially, it is helpful to take a broad look at Article 7 of the RPAPL, which is entitled "Summary Proceeding to Recover Possession of Real Property" and which provides procedural vehicles in New York State for securing a judgment and warrant of possession both on "Grounds where landlord-tenant relationship exists" (Section 711) and on "Grounds where no landlord-tenant relationship exists" (Section 713). It is subsection (10) of the latter section that applies when someone who has been "forcibly put out or kept out," RPAPL § 721(4), seeks restoration to possession. Under RPAPL § 713(10) a successful petitioner who can prove they were evicted "by force or unlawful means" and were "peaceably in actual or constructive possession at the time of the forcible or unlawful detainer", Goncalves v Soho Vil Realty, Inc (47 Misc.3d 76, 9 N.Y.S.3d 522 [AT 1st Dep't 2015]), may be entitled to be restored to possession.
Here, Petitioner makes no claim of a landlord-tenant relationship with Respondent BPHN, and in any event the facts establish clearly that he was a licensee with limited rights to occupy a room and have access to shared common areas at BPHN's facility. Accordingly, RPAPL § 711 — "Grounds where landlord-tenant relationship exists" — does not apply. While the new sentence in the opening paragraph of RPAPL § 711 added by HSTPA appears to establish a blanket proscription against the removal of any "lawful occupant" from possession without resort to a special proceeding under the RPAPL, this sentence must be read in its context, which is a paragraph that defines who is a "tenant" for purposes of a nonpayment or holdover proceeding brought by a landlord against a tenant under RPAPL § 711. Further, BPHN's facility is not a "rooming house" or "hotel", but rather a facility run by a nonprofit agency under contract with the City to provide emergency transitional housing and supportive services to vulnerable homeless clients of DSS/HRA. And, significantly, HSTPA did not amend RPAPL § 713. The definition of a "person in possession" for purposes of an unlawful entry or detainer proceeding under RPAPL § 713(10) remains unchanged by the plain language of HSTPA.
Nor does HSTPA's legislative history support Petitioner's claim that the amendment to RPAPL § 711 was intended to affect proceedings brought under the unchanged RPAPL § 713(10) and the limitations on its scope under long-standing appellate case law, including that which is discussed above. No mention of an intention to expand the scope of protected parties under RPAPL §§ 711 and 713 is made in the 168 relevant pages of the transcript of the State Assembly's proceedings on June 14, 2019, to which Respondent's counsel included a link in his sur-reply papers.
As for the new RPAPL § 768, entitled "Unlawful Eviction" and found in HSTPA Part M § 24, both the State Assembly and State Senate memoranda explain that the new law "creates the crime of unlawful eviction". Much of the language is identical to that found in New York City's similar law of the same name, Title 26, NYC Admin Code Ch. 5, which has been on the books since 1985. As explained by the court in Andrews v Acacia Network, supra (59 Misc 3d at 12, 70 NYS3d at 746), those provisions of New York City's unlawful eviction law, "do not operate to change a license or other nonpossessory interest into a possessory interest. While these provisions may `subject a violator to criminal liability and civil penalties, [they] do not provide an avenue through which [an occupant] can be restored to possession of an apartment." RPAPL § 768 must be interpreted similarly, as it is evident from the legislative history that this section was intended to make available statewide what already exists in New York City.
Accordingly, the petition is dismissed with prejudice. This constitutes the Decision and Order of this Court, copies of which are being emailed to the parties' counsel.