Elwin v Burnett 2024 NY Slip Op 34060(U) November 15, 2024 Civil Court of the City of New York, Queens County Docket Number: Index No. L&T 2693/24 Judge: Sergio Jimenez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS CIVIL COURT - L&T 11/15/2024 12:35 PM INDEX NO. LT-002693-24/KI NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 11/15/2024
CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF QUEENS: HOUSING PART 0 ---------------------------------------------------------------X ALISA EL WIN, Index No. L&T 2693 /24 Petitioner,
-against- DECISION/ORDER
MIGUEL BUR ETT, Respondents. ----------------------------------------------------------------X Present:
Hon. Sergio Jimenez Judge, Housing Court
The decision and order on petition after trial is as follows:
PROCEDURAL HISTORY
Ali sa Elwin (petitioner) now represented by counsel , commenced this illegal lock-out
proceeding under RPAPL Section 713(10) alleging that she took legal possession of the premises by
entering into a lease with the owner at the time, Michael McMayo , in 20 11, continuously lived there
since that time and has now been locked out. Petitioner alleges that she was locked out of the subject
premises located at 1887 Strauss Street in Brooklyn, ew York 11212. It is undisputed that Mr.
Burnett who appears by counsel, is the son of Mr. McMayo and exercises dominion and control over
the premises.
Servic was not challenged and therefore the court will consider the service prop r. The court
held a hearing to determine the facts underlying this petition.
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TESTCMO Y AND EV ID EN E
Petitioner testified on her own behalf. Ms. Elwin testified that she moved into the apartment
m 20 11 with her husband, Kevin. he credibly stated she ha never returned th keys to the
respondent. Ms . Elwin admitted that she pent a significant time in Las Vegas evada due to family
issues. Namely she testified that her son who lived in Nevada, broke up with his chi ldren' s mother
and that he needed help taking care of her grandchildren beginning in the second half of 2022. This
was further exacerbated by his alleged incarceration which led to Ms. Elwi n remaining in Las Vegas
for months at a time, only returning for a couple of month to celebrate holidays. It is also undisputed
that the petitioner and her husband have ince separated. Ms. Elwin alleged that she had a bedroom
et, lamps, Japanese dolls, college degrees, cookware and si lverware, tvs and other assorted personal
items in the premises when she left. On cross-examination, Ms. Elwin admitted that the original 2011
lease was for $1 ,800 and that it had no term attached. Ms . Elwin stated she had not spoken to her
daughter for months and that she was 'unable" to answer when the last time she spoke to her ex-
husband. On re-direct she introduced into evidence Pb 1-6 (picture ) and P-c (video) outlining her
connections with the apartment. Ms. Elwin also spoke as to how Kevin Elwin would pay the rent
from their joint pot of money through Zelle and she would cover other utilities. The court, at
petitioner s request also took judicial notice of a holdover 306739-24 against the petitioner brought
by the respondent in this court that is currently pending. P titioner then re ted.
Respondent testified on his own behalf. He credibly testified that his father passed away last
eptember and that he ha been acting as an owner since that time. He introduced Ra (202 1 lease)
Rb (surrender agreement wi th Kevin Elwin and Michelle Elwin), Rf (docusign receipt), and Rg (death
certificate for Mike McMayo). The lease showed only Kevin Elwin as an occupant. However, it was
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not explained by the respondent why Ms. Elwin was not made a party to the lease. The majority of
respondent s testimony dealt with the surrender agreement and its effect including that $8,000 was
paid to Kevin and Michelle Elwin to give up their claims to the apartment. Mr. Burnett spoke briefly
about how he assumed Ms. Elwin represented both of her parents as a result of his "only point of
contact," and Kevin Elwin telling him that his daughter would speak for him. However, Mr. Burnett
admitted he had never spoken to Ms. Alisa Elwin about whether her daughter would represent her
interest as well. Mr. Burnett also stated that he does not often visit the premises. After respondent
rested, petitioner did not provide any rebuttal.
DISCUSSIO
The parties all agree on certain facts: for the purposes of this proceeding, the respondent is
the acting owner who maintains dominion and control over the premises. Ms. Elwin lived in the
premises ful.1-time for years . The locks have also been unquestionably changed by the respondent.
This proves another element of an illegal lockout proceeding (Romanello v. Hirschfeld, 63 Y2d
613[ 1984]). The main point of contention where the parties differ is whether the surrender agreement
(Rb) constitutes a urrender for Ms. Elwin and whether Ms. Elwin abandoned the apartment.
Respondent has alleged a defen e that petitioner had abandoned the subject premises and/or
that she was not in possession at the time of the alleged lockout. The burden of proving a such a
waiver rests upon the party seeking to establi h it or re lying upon such surrender (Sam & Mary
Housing Corp. v. Jo/Sal Market orp., 100 AO2d 901 , 901 -902 2nd Dept. 1984], affirmed, 64 Y2d
1107, 1108 [1985]). A party alleging an abandonment has the burden of proof to show that the non-
alleging party abandoned the subject premises. Here respondent must prove petitioner's intent to
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abandon the subject premises and an overt act (Delgado v. 1038 Southern Blvd. Realty Assocs.,
.Y.L.J. May 28, 2008 at 27:1 [Civ. Ct. Bronx o.] ; Gardner v. Smith, N.Y.L.J. Dec. 21, 2005 at
22:3 [Civ. Ct. Kings Co.]- Walker 1. 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.]).
Here, the court finds petitioner returned to the premises, had kept her belongings in a separate
area organized, not as storage, but a a living space. Further, the interruption of actual presence in the
apartment may be excused. For purposes of primary residence both incarceration college and tays
in nursing homes do not interrupt such occupancy (Hughe v. Lenox Hill Hosp., 226 AD2d 4 [1 st Dept
1996] ; 315 East 72nd St. Owners, Inc. v. Siegel, 22 Misc3d IO [App Term P' Dept 2008]). It would
run counter to public policy to puni ha socially desired act of taking care of one ' s family when the
trauma surrounding foster placement has been so clearly documented and acknowledged 1• This would
especially be the ca e when, as set forth above, there are other instances of absences which can be
excused without giving up residential rights.
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Elwin v Burnett 2024 NY Slip Op 34060(U) November 15, 2024 Civil Court of the City of New York, Queens County Docket Number: Index No. L&T 2693/24 Judge: Sergio Jimenez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS CIVIL COURT - L&T 11/15/2024 12:35 PM INDEX NO. LT-002693-24/KI NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 11/15/2024
CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF QUEENS: HOUSING PART 0 ---------------------------------------------------------------X ALISA EL WIN, Index No. L&T 2693 /24 Petitioner,
-against- DECISION/ORDER
MIGUEL BUR ETT, Respondents. ----------------------------------------------------------------X Present:
Hon. Sergio Jimenez Judge, Housing Court
The decision and order on petition after trial is as follows:
PROCEDURAL HISTORY
Ali sa Elwin (petitioner) now represented by counsel , commenced this illegal lock-out
proceeding under RPAPL Section 713(10) alleging that she took legal possession of the premises by
entering into a lease with the owner at the time, Michael McMayo , in 20 11, continuously lived there
since that time and has now been locked out. Petitioner alleges that she was locked out of the subject
premises located at 1887 Strauss Street in Brooklyn, ew York 11212. It is undisputed that Mr.
Burnett who appears by counsel, is the son of Mr. McMayo and exercises dominion and control over
the premises.
Servic was not challenged and therefore the court will consider the service prop r. The court
held a hearing to determine the facts underlying this petition.
[* 1] 1 of 7 FILED: KINGS CIVIL COURT - L&T 11/15/2024 12:35 PM INDEX NO. LT-002693-24/KI NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 11/15/2024
TESTCMO Y AND EV ID EN E
Petitioner testified on her own behalf. Ms. Elwin testified that she moved into the apartment
m 20 11 with her husband, Kevin. he credibly stated she ha never returned th keys to the
respondent. Ms . Elwin admitted that she pent a significant time in Las Vegas evada due to family
issues. Namely she testified that her son who lived in Nevada, broke up with his chi ldren' s mother
and that he needed help taking care of her grandchildren beginning in the second half of 2022. This
was further exacerbated by his alleged incarceration which led to Ms. Elwi n remaining in Las Vegas
for months at a time, only returning for a couple of month to celebrate holidays. It is also undisputed
that the petitioner and her husband have ince separated. Ms. Elwin alleged that she had a bedroom
et, lamps, Japanese dolls, college degrees, cookware and si lverware, tvs and other assorted personal
items in the premises when she left. On cross-examination, Ms. Elwin admitted that the original 2011
lease was for $1 ,800 and that it had no term attached. Ms . Elwin stated she had not spoken to her
daughter for months and that she was 'unable" to answer when the last time she spoke to her ex-
husband. On re-direct she introduced into evidence Pb 1-6 (picture ) and P-c (video) outlining her
connections with the apartment. Ms. Elwin also spoke as to how Kevin Elwin would pay the rent
from their joint pot of money through Zelle and she would cover other utilities. The court, at
petitioner s request also took judicial notice of a holdover 306739-24 against the petitioner brought
by the respondent in this court that is currently pending. P titioner then re ted.
Respondent testified on his own behalf. He credibly testified that his father passed away last
eptember and that he ha been acting as an owner since that time. He introduced Ra (202 1 lease)
Rb (surrender agreement wi th Kevin Elwin and Michelle Elwin), Rf (docusign receipt), and Rg (death
certificate for Mike McMayo). The lease showed only Kevin Elwin as an occupant. However, it was
2 of 7 [* 2] FILED: KINGS CIVIL COURT - L&T 11/15/2024 12:35 PM INDEX NO. LT-002693-24/KI NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 11/15/2024
not explained by the respondent why Ms. Elwin was not made a party to the lease. The majority of
respondent s testimony dealt with the surrender agreement and its effect including that $8,000 was
paid to Kevin and Michelle Elwin to give up their claims to the apartment. Mr. Burnett spoke briefly
about how he assumed Ms. Elwin represented both of her parents as a result of his "only point of
contact," and Kevin Elwin telling him that his daughter would speak for him. However, Mr. Burnett
admitted he had never spoken to Ms. Alisa Elwin about whether her daughter would represent her
interest as well. Mr. Burnett also stated that he does not often visit the premises. After respondent
rested, petitioner did not provide any rebuttal.
DISCUSSIO
The parties all agree on certain facts: for the purposes of this proceeding, the respondent is
the acting owner who maintains dominion and control over the premises. Ms. Elwin lived in the
premises ful.1-time for years . The locks have also been unquestionably changed by the respondent.
This proves another element of an illegal lockout proceeding (Romanello v. Hirschfeld, 63 Y2d
613[ 1984]). The main point of contention where the parties differ is whether the surrender agreement
(Rb) constitutes a urrender for Ms. Elwin and whether Ms. Elwin abandoned the apartment.
Respondent has alleged a defen e that petitioner had abandoned the subject premises and/or
that she was not in possession at the time of the alleged lockout. The burden of proving a such a
waiver rests upon the party seeking to establi h it or re lying upon such surrender (Sam & Mary
Housing Corp. v. Jo/Sal Market orp., 100 AO2d 901 , 901 -902 2nd Dept. 1984], affirmed, 64 Y2d
1107, 1108 [1985]). A party alleging an abandonment has the burden of proof to show that the non-
alleging party abandoned the subject premises. Here respondent must prove petitioner's intent to
[* 3] 3 of 7 FILED: KINGS CIVIL COURT - L&T 11/15/2024 12:35 PM INDEX NO. LT-002693-24/KI NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 11/15/2024
abandon the subject premises and an overt act (Delgado v. 1038 Southern Blvd. Realty Assocs.,
.Y.L.J. May 28, 2008 at 27:1 [Civ. Ct. Bronx o.] ; Gardner v. Smith, N.Y.L.J. Dec. 21, 2005 at
22:3 [Civ. Ct. Kings Co.]- Walker 1. 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.]).
Here, the court finds petitioner returned to the premises, had kept her belongings in a separate
area organized, not as storage, but a a living space. Further, the interruption of actual presence in the
apartment may be excused. For purposes of primary residence both incarceration college and tays
in nursing homes do not interrupt such occupancy (Hughe v. Lenox Hill Hosp., 226 AD2d 4 [1 st Dept
1996] ; 315 East 72nd St. Owners, Inc. v. Siegel, 22 Misc3d IO [App Term P' Dept 2008]). It would
run counter to public policy to puni ha socially desired act of taking care of one ' s family when the
trauma surrounding foster placement has been so clearly documented and acknowledged 1• This would
especially be the ca e when, as set forth above, there are other instances of absences which can be
excused without giving up residential rights.
Respondent second argument is that the surrender agreement could be applied to the
petitioner. Here, it is undisputed that there is no actual authority as no authorization was presented by
either party allowing Ms. Michelle Elwin to act as a representative of Ms. Alisa Elwin. As Mr. Kevin
Elwin and Ms. Alisa Elwin are di vorced that would also divest Mr. Elwin of any authority to act on
1 For an illuminating read on the rea lities and effects of the family policing system the court suggests read in g Professor
Trivedi 's law review article published in the New York University Review of Law & ocial Change. In the article, Profe or Trivedi , among a more all-encompassing analysis of the sy tern , recounts the various harms that can occur even when chi ldren are placed in well-meaning lovin g foster placements (Shanta Trivedi , The Harm of Child Removal, 43 NYU Rev of L & Soc Change 523 [2019]).
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Ms. Elwin's behalf2 • In this particular situation, there is also no apparent authority as the respondent
admits he had not spoken to Ms. Elwin about anyone representing her interests at any point during
the occupancy.
Where the testimony on both accounts is equally as credible but conflicting and the weight of
either one does not preponderate over the other, it is the party with the burden of proof who will be
denied relief (Rinaldi & Sons, Inc v. Wells Fargo Alarm System, Inc., 39 NY2d 191 [1976]) , in this
situation, it is the respondent who must prove abandonment. The court finds that respondent has not
made out his burden to show that either the surrender agreement attached to the petitioner or that
petitioner's absence was an unexcused one. As such, under this set of facts, the respondent has not
made out their defense of abandonment. The court notes, however, that under similar facts, the court
could find abandonment due to the prolonged absence of the petitioner, excused as it may be.
Further, the court finds unavailing respondent's argument as to futility. The court is quite
dubious of the concept of futility , particularly because it rewards bad actors (see Bernstein v.
Rozenbaum, 20 Misc 3d 138[A], 2008 NY Slip Op 51558[U] [App Term, 2d & 11th Jud Dists 2008];
Soukouna v. 365 Canal Corp., 11 Misc 3d 137[A], 2006 NY Slip Op 50522[U] [App Term, 1st Dept
2006]; Bornstein v. Goldberger , 59 Misc 3d 135[A], 2018 NY Slip Op 505 l 3[U] [App Term, 1st
Dept 2018] ; Wagman v. Smith, 161 AD2d 704 [2d Dept 1990); 110-45 Queens Blvd. Garage, Inc. v.
2 The court's ana lysis would not differ even if Mr. and Ms. Elwin were still married or even not separated as husband and
wife are not one within the scope of legal entities and have their own desires, interests and volition. It has been an unfortunate truth that misogyny has run rampant over that tenet throughout recorded history. As it would be a vio lat ion of the Eq ual Protection Clause of the 14th Amendment to not allow a woman to make her own financial decisions, the com1 cannot here condone the abrogation of Ms. Elwin's independent rights (ability to assign an agent or not to do so/surrender a premises) to be given to her hu sband without express permiss ion (Reedv. Reed, 92 S.Ct. 25 1 [1971 ]).
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Park Briar Owners, Inc. , 265 AD2d 4 I 5 [2d Dept 1999]). rt is a concept better left for the commercial
sphere.
CONCLUSION
For the reasons set forth above, the petition is granted. A judgment of possession is granted
in favor of petitioner. Warrant to issue forthwith. Stay of execution to November 20, 2024 for
respondent to give Petitioner a copy of the keys to the front entrance door of the apartment forthwith
upon service of a copy of this Decision/Order. If Respondent fails to comply, Petitioner is permitted
to change the lock to the subject premises and shall provide Respondent with a copy of the keys to
the newly installed lock, if able to do so peaceably. Earliest eviction date set at November 21, 2024.
Petitioner may also employ a marshal to retake possession of the premises and enforce this judgment.
Petitioner may seek the assistance of the NYC Police Department to regain entry after requesting the
assistance and presence of the police to enforce the peace. This order/judgment is not enforceable
against anyone but respondent. Should new tenants be in place -prior to the date of this order,
petitioner may not execute the warrant.
A copy of this decision/order will be published on NYSCEF and mailed or emailed to non-
represented parties. Exhibits that were physically submitted to the court will be available for pick up
for the next 30 days or will be destroyed in compli with the various court directive. This
constitutes the decision and order of the court.
Dated: Brooklyn, New York November 15, 2024
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To: The Legal Aid Society Attn: Anna Wettstein, Esq . 111 Livingston Street 7th Floor Brooklyn, New York 1120 l awettstein legal-aid.org Allorneysfor Petitioner - Alisa Elwin
Guerriera Feldman & Williams, LLP Attn : Ari Feldman, Esq. 363 Sixth A venue Brooklyn, ew York l 1225 gfwlawyers@gmail.com Attorneys.for Respondent - Miguel Burnett
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