R&E Creatively Removes Illegal Occupant On Behalf Of Property Owner With State Law Typically Used By Tenants To Prevent Unlawful Evictions
Civil Court of the City of New York, County of Queens: Housing Part O, Decided: May 7, 2021
R&E Team: Michael T. Carr and Justin S. Weitzman
Rosenberg & Estis, P.C. recently won a civil decision in New York City Housing Court in Queens County, arguing a prospective tenant illegally occupied an apartment using a lockbox key meant only for safe self-showing during the pandemic.
Attorneys Michael Carr, member, and Justin Weitzman, associate, of Rosenberg & Estis represented Leagem Partners LLC, the owner of 119-20 Union Turnpike in Kew Gardens before Housing Court Judge Clifton A. Nembhard. The respondents, sisters Eva Gallimore and Esther Gallimore and two unnamed occupants, represented themselves.
On April 1, 2021, Eva Gallimore applied to lease an apartment at 119-20 Union Turnpike using an online rental platform that also assists landlords with showings. Eva Gallimore’s online application was conditionally approved, permitting her move forward with the next phase in the process, due diligence, which was only complete after Eva Gallimore paid a security deposit, first month’s rent and signed a proposed lease.
While the rental platform was performing due diligence on Eva Gallimore’s application, her sister, Esther Gallimore, scheduled a self-showing for April 6, 2021 using the online platform to view the apartment under the guise that she was going to take measurements of the unit. A key was placed in the lockbox, and a code was given to Esther Gallimore to access the lockbox and retrieve the key during a limited window and for the limited purposes of viewing the apartment and/or taking measurements.
Prior to Esther Gallimore’s lockbox appointment on April 6, 2021, representatives of the rental platform had communicated to Eva Gallimore that she had not been approved for the apartment and could not move in, as there remained outstanding issues with verification of her employment and income. Nevertheless, when these representatives attempted to verify Eva Gallimore’s employment and income, it was discovered that she had made misrepresentations in her application. When confronted with the inaccuracies in her application, Eva Gallimore was obstructive in providing further information, represented that she had already moved into the apartment using the key obtained by Esther Gallimore from the lockbox, and that she was a self-proclaimed legal tenant.
R&E successfully defeated Gallimore’s argument that she became a tenant of the apartment by signing the lease, paying her first month’s rent and a deposit, because the property owner never countersigned the lease and repeatedly told Gallimore that her application was contingent upon employment and income verification. The firm also expedited the hearing of the case, saving valuable time and resources for the property owner.
R&E resolved the case more swiftly by making novel use of New York State Real Property Actions and Proceedings Law § 713(10), also known as an “Illegal Lockout” proceeding, on behalf of the property owner to commence a special proceeding to evict Gallimore and the other respondents. The law allows tenants to initiate special proceedings against landlords to prevent unlawful evictions and the forcible unlawful entry or detainment of a residence that a tenant peaceably possesses. Any other proceeding would have pre-supposed that Gallimore was a lawful tenant, which Judge Nembhard ruled was not the case, while offering Covid-19-related protections to the respondents at a time when residential evictions are rare during the pandemic.