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Motta v. Sheehan

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Motta v. Sheehan

Postby TenantNet » Wed Nov 15, 2017 5:47 pm

Tags: illegal eviction, illegal lockout, self-help, restoration to possession, warrant of eviction

Summary: Tenant Restored to Possession of Premises in Illegal Lockout by Receiver

Motta v. Sheehan
Court: Civil Court, Bronx
Judge: Judge Enedina Sanchez
Docket Number: 807982/2017

Case Digest Summary

Motta sought to be restored to possession of the premises and a return of its contents in this illegal lockout proceeding. She testified she was unable to open the bottom lock of the home upon returning one afternoon, describing her attempts, albeit unsuccessful, to regain possession of the premises and obtain her belongings. She argued Sheehan did not provide her information to access her possessions in violation of an interim order. Sheehan stated he was appointed the receiver understanding the order to mean he may take possession without obtaining a warrant or hiring a marshall to take physical possession. Self-help was not permissible under New York law, and a party entitled to possession may not evict an occupant without obtaining a judgment of possession and warrant of eviction. Sheehan was granted possession of the property, not a warrant of eviction or writ of assistance. Thus, upon Motta's failure to vacate, he should have applied for a warrant. The court found an illegal eviction occurred as Motta was removed without due process, restoring her to possession of the premises and directing Sheehan to assist her in obtaining her possessions.

PROCEDURAL HISTORY:

Petitioner commenced this proceeding by Order to Show Cause in Lieu of Petition and Notice of Petition seeking to be restored to possession of the premises located at 2414 Lodovide Avenue, Bronx, New York 10469 and for return of all the contents of the apartment. It is important to note that Petitioner commenced two cases — instant case against Larry Sheehan, and another against her ex-husband, Joseph Motta (L&T Index No. 807923/17). The order to show cause was first returnable on September 12, 2017. The matter was adjourned to September 19, 2017 for Mr. Sheehan to obtain counsel. The file was marked “final against Respondent.” The interim order required “Respondent to provide by tomorrow (9/13/17) to Petitioner the full name, address and phone number of the entity which removed Petitioner’s property from the subject premises.” Petitioner alleged that her medications were removed from the premises and the medications could not be readily refilled.

On September 19, 2017, Respondent appeared by counsel and a trial commenced. (FTR Counter 9:50:02). The trial was continued to September 26, 2017. On September 26, 2017, respondent’s counsel requested an adjournment and alleged that respondent was sick. The trial was then adjourned to September 27, 2017 at 2:30pm and the trial continued and concluded

THE HEARING:

This Court recognizes the complicated relationship and legal history between the parties. During the trial, both parties elicited testimony outside of the limited scope of this proceeding. This Court will not address or determine any issues other than whether an illegal eviction occurred under NY Amin Code 26-521.

Petitioner’s Case:

Petitioner appeared pro-se. She was sworn in and testified. Ms. Motta testified that the subject premises were the marital home of her and her husband, Joseph Motta. She testified that there was a final Decision and Order of Divorce in a matrimonial case (Supreme Court Bronx Co. Index No. 3360/11) and that the parties were no longer married.

Petitioner testified that she suffered from a car accident on February 5, 2017. Ever since then, she has had multiple medical appointments and has been seeing several health care professionals. On August 9, 2017, petitioner testified that she went to see a doctor and when she returned in the late afternoon, she could not get into the house. She was unable to open the bottom lock. Petitioner testified that due to her medical condition she sent a family member to see whether the locks were changed. Petitioner then described her attempts to regain possession of the subject premises and to obtain her belongings, most notably several medications that she requires due to her medical condition. She was unsuccessful in obtaining her possessions.

On September 5, 2017, Petitioner commenced the instant proceeding alleging an illegal lockout.

Petitioner testified that on September 13, 2017, pursuant to this Court’s interim order, she contacted respondent to obtain information and access to her possessions. She testified that in violation of the interim court order, respondent did not provide her with that information.

Respondent’s Case:

Respondent appeared by counsel. Respondent was sworn in and testified. Mr. Sheehan stated that he is qualified as a receiver and took a course which allowed him to get familiarized with the law of receivership. He testified that he was appointed as a receiver to the subject property by the order of Honorable Diane Kiesel dated March 28, 2017, hereinafter Kiesel Order. (Respondent’s B in evidence). The order states, in part, “the Receiver shall take possession of the property and shall take such steps as in his discretion as deems advisable consistent with his fiduciary duties, including the payment of mortgages, taxes and other obligations and liabilities attributable to the sale of the property…” He testified that he understood the order to mean he can take possession of the property. He testified that he introduced himself to Ms. Motta as the receiver and discussed the possibility of her obtaining ownership of the property.

Respondent’s C was introduced into evidence — a copy of a transcript of a May 2, 2017 court appearance in the Matrimonial Case Index No. 3360/2011. Respondent relied on this transcript to show that Judge Kiesel ordered Ms. Motta to vacate the subject premises on or before June 2, 2017.

Respondent then testified that he proceeded to work on the sale of the house and that on June 27, 2017 he entered into a contract of sale for the property. He testified that the house appeared to be abandoned, there was no essential foods, the back yard was overgrown with bushes and that the mailbox was not checked.

On August 9, 2017, Respondent testified that he changed the locks to the subject property. He testified that he was awarded legal possession and did not need to get a warrant or hire a marshal or a sheriff to take physical possession. Respondent’s closing statement alleged that “possession” means control of the house and that sufficient notice was given so that he was entitled to take possession without any further legal process.

DISCUSSION:

Real Property Actions and Proceedings Law (RPAPL) §711 and NYC Administrative Code §26-521 provide that an individual who has resided at a premises for thirty consecutive days or longer may not be removed from the premises without a special proceeding, warrant of eviction or court order. It is undisputed that the subject premises were Ms. Motta’s marital residence for many years. Therefore, she is entitled to protections under the law before she is removed from the premises.

RPAPL authorizes receivers to bring summary eviction proceedings in a court with jurisdiction over such proceedings but the receiver must also be specifically authorized to bring such proceedings by an order of the appointing court. RPAPL 721(9) In the instant case, the receiver was awarded possession by an order of the Honorable Judge Kiesel, dated March 28, 2017. Respondent relies on a part of the Kiesel order which says, “the Receiver shall take possession of the property and shall take such steps as in his discretion as deems advisable consistent with his fiduciary duties, including the payment of mortgages, taxes and other obligations and liabilities attributable to the sale of the property…” The order states that the receiver must act in his discretion to be consistent with his fiduciary duties to the property such as the taxes, insurance and arranging for the sale of same.

A more complete reading of the order provides that “the Receiver may at any time apply to this Court for an order or instructions or powers necessary to enable him to properly fulfill his duties hereunder…” The order specifies that any additional powers/instructions must be granted by the Court that issued the original order.

Real Property Actions and Proceedings Law (RPAPL) 749(1) states that “upon rendering a final judgment for petitioner the court shall issue a warrant directed to the sheriff of the county or to any constable or marshal of the city in which the property…is situated.” RPAPL 749(2) further directs that the “officer to whom the warrant is directed and delivered shall give at least 72 hour notice, in writing and in the manner prescribed in this article for the service of notice of petition, to the person or persons to be evicted or dispossessed and shall execute the warrant between hours of sunrise and sunset.” See RPAPL Section 735.

It is well settled that self-help is not allowed under New York law. A party entitled to possession may not evict an occupant without obtaining a judgment of possession and a warrant of eviction. Romanello v. Hirschfeld, 63 N.Y.2d 613.

The Kiesel Order granted the receiver, here the respondent, possession of the subject premises and not a warrant of eviction or writ of assistance. Respondent admitted that he did not seek a warrant of eviction nor did he hire a city marshal or a sheriff to obtain physical possession of the subject premises. Respondent’s contention that as a receiver he is not required to obtain a warrant or hire a marshal was not supported by any documentation, statute or case law presented by counsel. He merely relied on the Kiesel Order which awarded him possession. Such reliance was improper as the Kiesel Order instructed the Receiver to “apply to this court for an order or instructions or powers necessary to enable him to properly fulfill his duties hereunder.”

Upon Ms. Motta’s failure to vacate the subject premises, Mr. Sheehan should have applied to the Court for a warrant, hired a city marshal to effectuate the eviction.

DECISION:

Based on the evidence and testimony presented this Court finds that an illegal eviction occurred. Ms. Motta was removed from possession without due process of law as no warrant issued. Mr. Sheehan, as the receiver of the property, resorted to self-help eviction.

Petitioner is to be restored to possession of the subject premises forthwith.

Respondent is to provide Petitioner with keys to the subject premises and is directed to assist Petitioner with obtaining her possessions from the storage facility.

This Decision/Order does not modify, reverse or nullify the March 28, 2017 Order of Honorable Diane Kiesel. Respondent is directed to follow the applicable law in obtaining physical possession of the subject premises.

Claims for damages are severed for a plenary action consistent with this Decision/Order.
This constitutes the Decision and Order of the Court.

This Decision is being mailed to all the parties.

So ordered,
Dated: October 6, 2017
Bronx, New York
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