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Those Wacky Marshalls!

NYC Housing Court Practice/Procedures

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Those Wacky Marshalls!

Postby TenantNet » Thu Apr 09, 2009 8:11 am

In this Bronx Housing Court matter, the landlord's attorney apparently supplied a script which the City Marshall used to testify. The Marshall might have to face a charge of perjury.

According to one source, the landlord's lawyer was the firm of Lazarus, Lazarus & Winston.
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Riverbay Corp. v Houston
2009 NY Slip Op 50588(U)
Decided on April 2, 2009

Civil Court Of The City Of New York, Bronx County
Madhavan, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on April 2, 2009
Civil Court of the City of New York, Bronx County

Riverbay Corporation, Petitioner,

against

Henry Houston, Judy Brown, Marsha Brown, Respondents.


L & T 8785/08
Jaya K. Madhavan, J.

In this summary holdover proceeding, petitioner alleged that respondent Henry Houston ("Respondent") had failed to maintain apartment 8C at 100 Donizetti Place, Bronx, NY ("Apartment") as his primary residence. Petitioner further alleged that respondent had unlawfully sublet the Apartment to co respondents Judy Brown and Marsha Brown who did not appear in this proceeding. Respondent generally denied petitioner's allegations. The court held a trial over several sessions in which both parties were represented by counsel and now makes the following findings of fact and conclusions of law.

Facts

Petitioner is a Mitchell Lama cooperative organized under the Limited Profit Housing Companies Law and supervised by the New York State Division of Housing and Community Renewal. (Priv. Hsg. Fin. Law, Art II.) Respondent entered into an occupancy agreement with petitioner on March 7, 2001. (Pet. Exh. 7.) That agreement requires respondent to maintain the Apartment as his primary residence and bars subletting. (Id. at Art. 4, ¶ 10. See also 9 NYCRR § 1727 5.3[a][9].)

On January 12, 2008, petitioner terminated respondent's tenancy by notice dated December 31, 2007. Petitioner alleged, among other things, that respondent had relocated to Detroit, Michigan; that respondent was employed in Detroit, Michigan; that a Judy Brown had appeared in a prior nonpayment alleging that she was the tenant of the Apartment; that checks drawn on Judy Brown's checking account had been tendered to petitioner; and that respondent had a Michigan phone number for an address in Michigan.

Discussion

In a nonprimary residence proceeding, the burden rests upon petitioner to prove, by a preponderance of the evidence, that respondent is not occupying the premises as his/her primary residence. (Glenbriar Co. v. Lipsman, 5 NY3d 388, 392 [2005].) "Primary residence is an ongoing, substantial, physical nexus with the premises for actual living purposes." (Cox v. J.D. Realty Associates, 217 AD2d 179, 184 [1st Dept 1995], quoting Emay Props. Corp. v Norton, 136 Misc 2d 127, 129 [App Term, 1st Dept 1987.) Traditional indicia of primary residence includes a driver's license, voter's registration, income tax returns, telephone records and bank statements reflecting the apartment as the tenant's address as well as mail addressed to the tenant at the apartment. (Lesser v. Park 65 Realty Corp., 140 AD2d 169, 173 [1st Dept 1988].) Additional factors may include whether the tenant used the apartment as a voting address; lived in the apartment for fewer than 183 days in a calendar year; or subleased the apartment. (RSC § 2520.6[u].) However, no one factor is conclusive and thus, a finding of primary residence may be made entirely upon testimonial evidence. (300 East 34th St. Co. v. Habeeb, 248 AD2d 50, 55 [1st Dept 1997].)

Once the petitioner establishes a prima facie showing of non primary residence, the burden then shifts to respondent to establish that he/she maintains the premises as their primary residence. (Carmine Ltd. v. Gordon, NYLJ, November 8, 2005, at 27, col. 1 [App Term 1st Dept].) The ultimate burden of persuasion however always rests with petitioner. (Id.) Petitioner has failed to meet its burdens.

Petitioner's Witnesses

At trial, petitioner called four witnesses in support of its claims. Sargent Rosalie Ramirez testified that she had been employed by petitioner for the past seven years as a public safety officer. Despite the title given to Ms. Ramirez by petitioner, there was no evidence that she was an actual peace officer or otherwise licensed or trained by the State of New York in law enforcement.

In any event, Ms. Ramirez testified as to her investigation. She visited the Apartment on five occasions between March 2007 and May 2007. During each of these visits, Ms. Ramirez did not find respondent at home and left her business card. She did not however receive a phone call from respondent. Ms. Ramirez then testified that she conducted an internet based search using respondent's social security number. The results correlated respondent's social security number to an address on Brinker Street in Detroit, Michigan for respondent. Ms. Ramirez then added that she was unable to locate a telephone listing for respondent in the Apartment.

Ms. Ramirez also reviewed the contents of petitioner's file for respondent. This search yielded photocopies of eight checks payable to petitioner which were drawn on the accounts of either Judy Brown or Betty D. Brown. (Pet. Exh. 3.) Ms. Ramirez also found respondent's 2003 Income Affidavit which was notarized in Michigan. (Pet. Exh. 4.)

Finally, Ms. Ramirez sent a package to respondent at the Michigan address that she had discovered on the internet. That package was returned to Ms. Ramirez unsigned. Ms. Ramirez did not send a package to respondent at the Apartment.

Petitioner's next witness was Nancy Del Rio Rosario. Ms. Del Rio Rosario testified that she was the Housing Agent for petitioner. She recalled a prior nonpayment proceeding between the parties under Index No. 3282/06 in which a woman named Judy Brown appeared in Bronx Housing Court on respondent's behalf. Ms. Del Rio Rosario testified that Ms. Brown appeared with a power of attorney signed by respondent and claimed that the Apartment belonged to her. She further produced copies of internet name search results which stated that respondent resided in Detroit, Michigan.

Detective Michael Mabry then testified for petitioner. Like Ms. Ramirez, Mr. Mabry was not an actual peace officer and received his title from petitioner. Nor was Mr. Mabry able to testify as to having received any law enforcement training. Instead, Mr. Mabry testified that he "investigates sublets."

His investigation here consisted of visits to the Apartment and an internet search. Mr. Mabry testified that he made three to four visits to the Apartment, all in May 2007, during which he was unable to find respondent at home. He did not however make any effort to call respondent at the Apartment. Instead, Mr. Mabry entered respondent's social security number into an internet search engine InfoTec which indicated that respondent had a Detroit, Michigan address. Significantly however, Mr. Mabry conceded that "InfoTec searches [were] not 100% accurate." Mr. Mabry further admitted that he was "unsure [of] how InfoTec works." And although Mr. Mabry was aware that InfoTec permitted a name and address search, he did not employ these methods in his investigation of respondent. Nor did Mr. Mabry's search results draw any distinction between Henry C. Houston I, II, III, or IV.

Respondent's Case

Respondent then credibly testified in his own behalf. Notably, respondent testified that his parents Henry Clay Houston and Carlretta Houston have lived at 18063 Brinker Street in Detroit, Michigan ("Michigan Address") since 1971 and produced a deed for this property in their names. (Resp. Exh. H. See also Resp. Exh. G.) Respondent admitted to having lived at the Michigan Address in 1996, but stated that he had not resided there since then. At most, respondent conceded that he had a cell phone with a Michigan area code and that he visited his parents in Michigan in May 2006. He candidly admitted that the purpose of his visit was to ask his parents for money to help pay maintenance arrears he incurred due to his gambling problem.

During this trip to Michigan, Judy Brown, the mother of respondent's eight year old son, appeared in court on respondent's behalf in connection with a nonpayment proceeding between the parties herein under Index Number 3282/06. (See Resp. Exhs. A - C.) Respondent testified that Ms. Brown lives in Mobile, Alabama, and has never resided in the Apartment. Instead, respondent noted that he and Ms. Brown have an amicable relationship and that, since 2001, she has visited their son, Henry Houston, IV, in the Apartment. To ensure that Ms. Brown had ongoing contact with their son, respondent allowed her to open a phone line in her name in the Apartment. Respondent explained that he was unable to obtain phone service in his name as he had "credit problems" stemming from his gambling issues. Indeed, because of his addiction, respondent had relied upon Ms. Brown to make approximately 12 maintenance payments to petitioner since the inception of his tenancy.

In further support of his defense that he maintained the Apartment as his primary residence, respondent offered several documents. Specifically, respondent introduced his bank and other financial statements from September 2007 through the present, all of which were addressed to respondent at the Apartment. (Resp. Exh. Q; Pet. Exh. 11.) While respondent's bank statements reflected some transactions being performed in Michigan and other states, the majority of charges and withdrawals occurred in Bronx and Westchester counties. (Id.) Respondent also introduced an Abstract of Driving Record from the NYS Department of Motor Vehicles which confirmed that he had a New York State Driver's license which was suspended on January 22, 2002. (Resp. Exh. J.) That license reflected the Apartment as his address. (Id.) Respondent also produced a Michigan driver's license which expires on December 31, 2009. (Pet. Exh. 10.) However, there is no evidence of when this license was issued.

Testimony of Marshal Joel Shapiro

Finally, petitioner called NYC Marshal Joel Shapiro, Badge 57, out of turn. Marshal Shapiro testified in connection with his attempt to execute a warrant of eviction upon the Apartment on September 13, 2006. Marshal Shapiro claimed to have recalled a woman answering the door to the Apartment on that date and conveniently identifying herself as Judy. He then remembered that Judy said she was respondent's wife. As Judy was unable to "walk right," Marshal Shapiro aborted the eviction and referred the case to Adult Protective Services.

The court accords Marshal Shapiro's testimony no weight whatsoever. Throughout his testimony, Marshal Shapiro held onto and referred to two documents: the warrant of eviction issued in the 2006 proceeding and an initially unidentified item. The court and respondent's counsel asked Marshal Shapiro to turn the latter over to the court. Marshal Shapiro testified that the document was "personal" and "not connected to [this] case" but then very reluctantly handed it to the court. The so called personal document unconnected to this case was in fact a letter dated November 12, 2008, from petitioner's counsel to Marshal Shapiro. Shockingly, in that letter petitioner's counsel instructed Marshal Shapiro on how to testify in this proceeding.

Given the extraordinarily serious nature of this letter, the court reprints it in full below:

November 12, 2008

City Marshal Joel Shapiro

Re:Testimony on case Riverbay v. Houston, 11/14/08, 2:15 PM

1118 Grand Concourse, 8th Floor, Part T

Dear Joel:

As we discussed last week, you are scheduled to testify on Friday at 2:15 PM. The case details are given above. This case is a holdover based on non primary residence.

Here is what I will be asking you about:

You had an eviction scheduled under a non payment Index No. 3282/06, Henry Houston, 1000 Donizetti Place, Apt. No. 8C. The eviction was scheduled for some time in April 2006. (I need you to get the exact date from your records.) When you showed up to do the eviction, Henry Houston was not there. A woman by the name of Judy Brown was there. She told you that "it was her apartment." She may have told you that her husband Henry Houston didn't live there any more.

Judy Brown had a cast on her leg at that time, and she said it was broken. As a result of her disability of a broken leg, you aborted the eviction, and advised Riverbay that APS needed to be contacted because she was disabled.

Also while you were there, Judy Brown made a phone call to Henry Houston, and told him that he needed to get "up here" right away. He did not return while you were there.

Subsequently, an Order to Show Cause was taken out returnable 5/5/06 stopping the eviction in any event. A stipulation was done, and you were later told it was breached, so you re served the Notice of Eviction. You are aware of a subsequent Order to Show Cause returnable 6/23/06. As you were never told to take further action, you assume it was paid (and in fact it was).

The point of your testimony is to establish that Henry Houston wasn't living there in 2007. You can bring these records to refresh your recollection, and I suggest you create your own notes about these events. If you have any questions about what I'm asking you to testify to, please give me a call on Wednesday or Thursday so we can go over this.

Yours, etc.,

/s/ [Petitioner's Counsel]


The court finds the conduct of both petitioner's counsel and Marshal Shapiro to be outrageous.

Marshal Shapiro is an officer of the Civil Court who was appointed by the Mayor of the City of New York. (NYCCCA §1601[1]; NYC Marshal's Handbook, § 1 2.) Every day, NYC Marshals are called upon to, among other things, levy property, garnish accounts and dispossess tenants. The extraordinary impact that a Marshal's actions has upon the lives of debtors, tenants and countless others requires that they perform their work with honesty and integrity. Thus, Section 1 1 of the NYC Marshal's Handbook which governs their conduct explicitly provides that:

City marshals are public servants who must maintain uncompromised standards of integrity in the management of their offices and the conduct of their official business. They must obey the law in all their activities, both official and personal. In dealing with the courts, public agencies, attorneys, parties to legal actions and proceedings, and the public, marshals must conduct their business honestly.

Where a Marshal violates his/her duties, they may be disciplined, suspended and/or removed by the Appellate Division via the NYC Department of Investigation. (NYCCCA § 1610; Joint Administrative Order 453.)

While this court may not discipline Marshal Shapiro, it can and does find his conduct in this matter to be unacceptable. The record clearly shows that Marshal Shapiro lied to this court while under oath by testifying that the document he was referring to was "personal" and "not connected to [this] case." This fact, coupled with Marshal Shapiro's nervous demeanor while testifying, lead this court to conclude that he had no independent recollection of the facts to which he testified. Indeed, the court finds it simply incredible that Marshal Shapiro could vividly recall the details of this unremarkable attempted eviction which occurred two years earlier. Marshal Shapiro's "testimony" was instead a recitation of the desired tale prepared for him by petitioner's counsel. Accordingly, this court is referring Marshal Shapiro to the NYC Department of Investigation for whatever disciplinary action it deems appropriate. The court is also referring this matter to the Bronx District Attorney's Office so that it may conduct an appropriate investigation and determine whether to prosecute Marshal Shapiro for perjury or any other offense.

Petitioner's Counsel's Conduct

Petitioner's counsel conduct is even more egregious than that of Marshal Shapiro. As an attorney, petitioner's counsel must represent his/her client within the bounds of the law. (DR 7 102[FN1].) He/she may not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. (DR 1 102[a][4][FN2].) Nor may he/she engage in conduct that is prejudicial to the administration of justice. (DR 1 02[a][5][FN3].) Specifically, a lawyer may not, among other things, knowingly use perjured testimony or false evidence (DR 7 102[a][4][FN4]), knowingly make a false statement of law or fact (DR 7 102[a][5][FN5]), or knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule (DR 7 102[a][8][FN6]).

Petitioner's counsel's conduct implicates these and several other Disciplinary Rules. In his letter, petitioner's counsel supplied Marshal Shapiro with the exact testimony he desired to elicit on direct examination. Petitioner's counsel even provided Marshal Shapiro with specific quotes of what Judy Brown allegedly said during the September 2006 attempted eviction, although there is no evidence that petitioner's counsel was ever present in the Apartment with Marshal Shapiro.

In his defense, petitioner's counsel states that Marshal Shapiro's testimony was, at times, inconsistent with the facts set forth in the letter, and therefore, no impropriety exists. This statement only underscores petitioner's counsel's utter inability to grasp his ethical obligations as an attorney. An attorney who supplies his/her witness with desired testimony commits a series of ethical breaches, regardless of how the witness ultimately testifies. Eliciting false testimony and otherwise engaging in deceitful conduct compounds these ethical transgressions while also giving rise to further violations of the disciplinary rules. The court notes that petitioner's counsel has been admitted to the New York State bar for nearly 16 years, making his conduct and statements in this regard all the more disturbing. As it is not the province of this court to determine whether disciplinary action is appropriate, the court is referring this matter to the Departmental Disciplinary Committee so that it may take whatever action it finds warranted.

Analysis

On the merits, petitioner failed to prove that respondent was not occupying the Apartment as his primary residence. Petitioner's witnesses lacked personal knowledge of any facts from which the court could conclude that the Apartment was not respondent's primary residence. Ms. Del Rio Rosario for example, relied heavily upon Ms. Ramirez and Mr. Mabry for her testimony. However, both Ms. Ramirez and Mr. Mabry visited the Apartment on five occasions over the course of three months at unspecified times and were unable to find respondent home facts which hardly compel the conclusion that respondent was not living in the Apartment.

Petitioner's proof mainly consisted of internet searches performed by Ms. Ramirez, Mr. Mabry and Ms. Del Rio Rosario which placed respondent at a Michigan address. (Pet. Exhs. 1, 2, 8, 16 - 22.) The court received these search results into evidence for very limited purposes, e.g. proof of the impetus for petitioner's investigation. The documents were not however received for the truth of the matters stated therein as they constituted rank hearsay not falling within any recognized exception to the hearsay rule. Significantly, "in all of the exceptions [to the hearsay rule] there is, or there is thought to be, some circumstantial probability of reliability; that is, the conditions under which the statement was made are deemed such as to make its truthfulness highly probable." (Prince, Richardson on Evidence, § 8 107 [Farrell 11th ed], citations omitted.)

Petitioner's internet search results are entitled to no weight as they are utterly unreliable. Ms. Ramirez, Mr. Mabry, and Ms. Del Rio Rosario did not know how the internet databases they searched obtained their information and, far more importantly, whether any of the results were accurate. (Cf. MDL § 328[3], electronic database maintained by NYC Department of Housing Preservation and Development is "prima facie evidence of any matter stated therein and courts shall take judicial notice thereof as if same were certified as true under the seal and signature of the commissioner of that department.") Mr. Mabry even conceded that his searches were not fully accurate. Thus, there was no assurance that these records were reliable.

At best, petitioner established that respondent had a Michigan Driver's License and a cell phone with a Michigan area code. However, these two facts, without significantly more, do not warrant a finding that respondent failed to occupy the Apartment as his primary residence. To the contrary, respondent's financial records reflected regular transactions in New York from April 2005 through the conclusion of the trial. (Resp. Exh. Q; Pet. Exh. 11.) Although not his burden, respondent then established that his parents owned the Michigan home which petitioner claimed was respondent's primary residence. Respondent further candidly and credibly testified that he had not resided at the Michigan address since 1996 but had visited his parents, in part due to financial problems. In short, petitioner did not prove, by a preponderance of the evidence, that respondent failed to occupy the Apartment as his primary residence. Instead, the evidence was consistent with respondent maintaining an "ongoing, substantial, physical nexus with the premises for actual living purposes." (Cox v. J.D. Realty Associates, 217 AD2d at 84.)

Nor did petitioner prove that respondent had sublet the premises to Judy Brown or anyone else. Petitioner failed to introduce any competent evidence to establish the ongoing occupancy of the premises by anyone other than respondent.

Conclusion

Accordingly, the court finds that petitioner has not met its burdens of proof and persuasion. The petition is dismissed with prejudice. The parties may recover their trial exhibits from the Part T Clerk in Room 470. This constitutes the Decision/Order of this court, copies of which are being mailed to the parties' respective counsel today.

Dated:April 2, 2009

Bronx, NY

___________________
Hon. Jaya K. Madhavan

OCA e-submission: no Judge E-Mail


Footnotes

Footnote 1: Effective April 1, 2009, the Rules of Professional Conduct have been amended. New Rule 1.2 generally defines the scope of representation between a client and a lawyer.

Footnote 2: New Rule 8.2[c].

Footnote 3: New Rule 8.4[d].

Footnote 4: New Rule 3.3[a][3].

Footnote 5: New Rule 3.3[a][1].

Footnote 6: New Rule 8.4[a].
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