City of New York v. Omolukum

177 Misc. 2d 796, 676 N.Y.S.2d 918, 1998 N.Y. Misc. LEXIS 365
CourtCivil Court of the City of New York
DecidedMarch 11, 1998
StatusPublished

This text of 177 Misc. 2d 796 (City of New York v. Omolukum) is published on Counsel Stack Legal Research, covering Civil Court of the City of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of New York v. Omolukum, 177 Misc. 2d 796, 676 N.Y.S.2d 918, 1998 N.Y. Misc. LEXIS 365 (N.Y. Super. Ct. 1998).

Opinion

OPINION OF THE COURT

Sheldon J. Halprin, J.

This summary holdover proceeding was commenced by the petitioner City of New York (hereinafter City) in November 1997 and was tried before this court on January 29 and 30, 1998. The petition states that it was brought pursuant to RPAPL 711 (1) and Real Property Law § 232-a. However, the preliminary notice, titled “Allegations”, stated grounds consisting of the alleged (illegal) use of the premises by the respondents for the sale of drugs. After trial, the City requested permission to file a brief on the issue of whether there are sufficient grounds, as a matter of law, to justify the eviction of corespondent Olufela Omolukum (hereinafter Mrs. Omolukum). Mrs. Omolukum, appearing pro se, filed opposition to the City’s brief. For the reasons set forth below, the court finds in favor of Mrs. Omolukum.

FACTS

Mrs. Omolukum has resided at the subject premises since 1986. She became a statutory month-to-month tenant when the City acquired the premises in an in rem tax foreclosure action. From mid-1990 through January 1996, corespondent [798]*798Joseph Pharr resided with Mrs. Omolukum as a licensee — he was her boyfriend. Mrs. Omolukum testified that her relationship with Mr. Pharr had deteriorated over time due to his escalating drinking and violent behavior. For these reasons, Mrs. Omolukum ejected Mr. Pharr from the subject apartment several times. She finally removed Mr. Pharr and all of his property from her apartment permanently on January 1, 1996. She testified credibly that although she occasionally continued to receive Mr. Pharr’s mail at her address, she would only give it to him “in the street”, and did not permit him to have either keys or access to her apartment or to the mailbox in the lobby. Mrs. Omolukum testified that her new licensee/boyfriend, Larry Moore, has resided with her at the subject apartment since September 3 or 4, 1996. Mr. Moore testified at trial and confirmed this. He also testified that they are still co-occupants of the apartment and that he has never seen Mr. Pharr in the apartment.

The City presented evidence that Mr. Pharr had been arrested and convicted for the sale of narcotics on three occasions. The arrest dates were October 22, 1996, November 5, 1996 and November 26, 1996. Petitioner’s preliminary notice marked “allegations” did not refer to the November 5 arrest, but evidence of it was introduced by documents submitted at trial. On the first occasion, Mr. Pharr was arrested on the corner of East 164th Street and Boston Road — in front of the subject premises. On the second and third occasions, Mr. Pharr was arrested in the lobby of the subject premises. On all three occasions, Mr. Pharr told the arresting officers that his home address was apartment 4B at 581 East 164th Street — Mrs. Omolukum’s residence at the subject premises. At trial, Mrs. Omolukum elicited on cross-examination that neither the arresting officers nor the New York Police Department detectives in charge of the neighborhood drug investigation had visited or contacted her to determine whether Mr. Pharr was living in her apartment at the times of his arrests. Mr. Pharr has been incarcerated since before the commencement of this proceeding.

At trial, the City attempted to present the elements of its prima facie case via documentary evidence and the testimony of one police officer. Mrs. Omolukum relied on cross-examination and on her own and Mr. Moore’s testimony. Given the facts stated here, the court was unsatisfied that the City had presented legally sufficient proof of its case-in-chief. Thereupon the City requested permission to file the aforementioned [799]*799brief on the issue of whether it was entitled to a judgment of possession for Mrs. Omolukum’s apartment as a matter of law. The court now finds that it is not.

DECISION

The first issue before the court concerns which standard of proof shall govern this proceeding. The City’s petition states that this matter is commenced pursuant to RPAPL 711 (1) and Real Property Law § 232-a. RPAPL 711 (1) authorizes the commencement of summary eviction proceedings against persons holding over in possession of premises after the expiration of their tenancy. This is clearly inapplicable since there is no claim that Mrs. Omolukum’s statutorily protected month-to-month tenancy had simply expired. However, RPAPL 711 (1) also authorizes the commencement of summary holdover proceedings against a tenant whom a landlord deems “objectionable” if the landlord can “by competent evidence establish to the satisfaction of the court that the tenant is objectionable”. Indeed, in its posttrial brief the City concedes that because Mrs. Omolukum is a month-to-month tenant in City-owned housing, she may only be evicted upon a showing of “good cause”. (157 W. 123rd St. Tenants Assn. v Hickson, 142 Misc 2d 984 [App Term, 1st Dept 1989].) The court notes that the City misstated this burden in its brief, asserting that in holdovers brought under RPAPL 711 (1) the City need only demonstrate a “rational basis” for the termination of a respondent’s tenancy. This is untrue and the City offered neither case law nor statutory language to support this proposition. The court reaffirms that “good cause for eviction” is the burden which the City must bear.

The sufficiency of that good cause is the second issue before the court. In determining this, the court must look at both the sufficiency of the predicate notice and the actual merits of the case. As to the former, Real Property Law § 232-a states that any month-to-month tenant of City-owned housing is entitled to 30 days’ notice of termination prior to the commencement of holdover proceedings. The City served the required notice here. It is well settled that where a holdover is commenced pursuant to RPAPL 711, “the tenant is entitled to a precise statement of the grounds and facts upon which the landlord relies in seeking an eviction”. (G.A.G. Enters. v Gonzalez, NYLJ, June 15, 1988, at 30, col 6 [Civ Ct, Kings County]; Cypress Holding Corp. v Nivar, NYLJ, July 19, 1989, at 20, col 2 [Civ Ct, Bronx County]; City of New York v Norman, NYLJ, [800]*800July 29, 1992, at 23, col 3 [Civ Ct, NY County].) As stated earlier, the notice herein (titled “Allegations”) contained claims that Mrs. Omolukum and Mr. Pharr were engaged in illegal drug sales on the subject premises and that Mr. Pharr had been arrested twice for this activity. Neither the notice nor the petition specifically state that this conduct is claimed to be “objectionable” within the meaning of RPAPL 711 (1). Indeed, a plain reading of the “allegations” indicates that the conduct complained of is more properly characterized as “illegal trade or * * * business” within the meaning of RPAPL 711 (5) — a statute not mentioned at all in the petition. Nonetheless, despite the distinction drawn in the statute between “objectionable conduct” and “illegal trade or business”, the courts have been loath to punish the City for technical inaccuracies of pleading in “drug holdovers”. To this end, it has been held permissible on several occasions to permit “illegal trade or business” pursuant to RPAPL 711 (5) to be read as “objectionable conduct” within the meaning of RPAPL 711 (1). (See, e.g., Fordham Bedford Renewal v Briham, 19 HCR 469 [Civ Ct, Bronx County]; One Tinton v Glynn, NYLJ, Nov. 16, 1988, at 23, col 4 [Civ Ct, Bronx County]; 2505 Bedford Realty Co. v Woodson,

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Related

157 West 123rd St. Tenants Assn. v. Hickson
142 Misc. 2d 984 (New York Supreme Court, 1989)
City of New York v. Goldman
78 Misc. 2d 693 (Civil Court of the City of New York, 1974)
City of New York v. Rodriguez
140 Misc. 2d 467 (Civil Court of the City of New York, 1988)
Marwyte Realty Assoc. Ltd. v. Valcarcel
150 Misc. 2d 1044 (Appellate Terms of the Supreme Court of New York, 1991)
2505 Bedford Realty Co. v. Woodson
152 Misc. 2d 897 (Civil Court of the City of New York, 1992)

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Bluebook (online)
177 Misc. 2d 796, 676 N.Y.S.2d 918, 1998 N.Y. Misc. LEXIS 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-new-york-v-omolukum-nycivct-1998.