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Former Tenant Wins Restoration to Now-Occupied Apartment

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Former Tenant Wins Restoration to Now-Occupied Apartment

Postby TenantNet » Fri Jul 17, 2015 1:08 pm

Former Tenant Wins Restoration to Now-Occupied Apartment
New York Law Journal
Jasmine Grays
July 17, 2015

Five years after he was improperly evicted, a 59-year-old recently released prison inmate apparently is about to be restored to the apartment where he lived for 50 years.

But to make room for Otto Thompson, Manhattan Housing Court Judge Phyllis Saxe has ruled that the current tenant, Tomoko Watabe, must be evicted.

"Weighing the equities in this case compels the court to find in Mr. Thompson's favor," Saxe wrote in 46 Downing Street, LLC. v. Thompson, L&T Index No. 81450/09.

Thompson's landlord, 46 Downing Street, LLC., moved to evict him in 2009 on grounds that he had sublet the apartment without obtaining the landlord's consent. However, Thompson failed to appear in the proceeding because he had been incarcerated since 2008 for attempted burglary. A default judgment was granted in the landlord's favor, and Thompson was evicted in April 2010. All of his belongings were eventually discarded.

Watabe signed a market-rate lease of $2,400 in March 2012 and a $2,500 lease in 2013. Meanwhile, Thompson was released from jail in January 2013 and filed a pro se post-conviction order to be restored to possession of the apartment. On Oct. 7, 2013, Judge Sabrina Kraus vacated the default order and joined Watabe as a necessary party to the litigation.

The Appellate Term, First Department, affirmed that ruling, saying: "The tenant's incarceration and his demonstrated efforts to respond to the petition while in prison provided a reasonable excuse for his failure to defend the proceedings, and tenant's submissions were sufficient to establish a potentially meritorious defense to the landlord's illegal sublet claim."

Upon becoming aware of the lawsuit filed by Thompson, Watabe entered into a two-year lease at a reduced rate of $2,000.

Represented by Tanya Kessler of MFY Legal Services, Thompson moved to dismiss the landlord's original petition, arguing that Thompson had been given only 22 days notice instead of the required 30. On May 26, Judge Peter Wendt dismissed the petition for eviction.

Saxe then conducted a hearing to determine how to balance the competing interests of Thompson and Watabe to the apartment.

Thompson testified that he had lived in the apartment with his mother since he was 7 years old. He has some motor problems and walks with a cane. His daughter lives with her mother in Kuwait, and he wants her to return and live with him.

Thompson receives $800 a month from Social Security. His rent for the apartment was $450 and frozen due to his disability.

"Given that his income is $800, this apartment is affordable and will prevent him from having to go into the homeless shelter system," Saxe wrote.

The fact that Thompson was incarcerated and was "not able to appear in the proceeding [seeking his eviction] is not enough to defeat the tenancy," the judge said.

In that regard, she pointed out that the Court of Appeals had held that "a patient or inmate of an institution does not gain or lose a residence or domicile, but retains the domicile he had when he entered the institution." Matter of Corr v. Westchester County Dept. of Social Servs., 33 NY2d 111 (1973).

Watabe, 49, a native of Tokyo, has lived in the apartment with her two cats since 2012 and hopes to purchase a home in Manhattan.

"Ms. Watabe is an analyst for a bank located in midtown New York and earns in excess of $70,000 per year," Saxe wrote.

The judge said that Watabe testified that she is upset and anxious about her precarious living status, and she is worried that she will not live in this apartment until the end of the term, which is February 28, 2016."

However, Saxe noted, "She has the funds to move and only needs one bedroom. The landlord has also been letting her rent the apartment at a reduced rent ($2,000), which evidences both the landlord's and Ms. Watabe's admissions that in 2013 when she was entering into the current lease that they were conscious of Mr. Thompson's intent to return home."

The judge said Thompson was almost 60 years old and not in "ideal health." He has lived in the neighborhood most of his life, went to school and played at local clubs, she said.

Saxe restored Thompson to the apartment, staying the warrant until Sept. 30, "to allow Ms. Watabe to vacate the subject premises with dignity." The judge also left her the option of suing her landlord.

Watabe, who was represented by Louis Klein of The Kasen Law Firm, plans to appeal the Wendt and Saxe decisions but said she is leaving it up to her lawyers whether they will be suing the landlord for breaching the lease.

In an email to the Law Journal, Watabe said that "the judge wrongfully assumes that because unlike Thompson, I get up every morning and work hard every day at a decent job, that I can easily afford to move out of my home and find another apartment."

Also, she said that a notice of eviction could hamper her ability to find new quarters. "I will have to disclose my eviction record every time I sign an application to rent or purchase an apartment in the future," she said. "The court is treating me like a criminal."

Kessler said that Thompson has been moving from place to place and staying with friends since his release from prison. "He has run out of friends to stay with and is on the verge of becoming homeless," according to Kessler.

The lawyer said Thompson "is sympathetic to Ms. Watabe's situation, but his own circumstances are dire—he is disabled, lives on a fixed income, and will be homeless if he cannot return to his home of almost 50 years. He simply has no other options."

The landlord, 46 Downing Street, LLC, was represented by Brian Ullman of Eisenberg & Baum. He has not responded to calls or requests for comment.

Jasmine Grays can be reached via email.
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Re: Former Tenant Wins Restoration to Now-Occupied Apartment

Postby BubbaJoe123 » Fri Jul 17, 2015 2:55 pm

Wow, what a mess.
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Re: Former Tenant Wins Restoration to Now-Occupied Apartment

Postby TenantNet » Fri Jul 17, 2015 3:38 pm

Sure it's a mess, but this sort of thing happens from time-to-time. Cleary, the original tenant should not have been evicted.

The other tenant is really an innocent bystander. The LL should offer her a suitable replacement at a very cheap price, or a lot of money to make up for the injury.
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