36170 Realty Ltd. v. Boyd, 56347/2011

CourtNew York Civil Court
Writing for the CourtKatherine A. Levine, J.
Citation143 N.Y.S.3d 773
Decision Date22 February 2021
Docket Number56347/2011
Parties 36170 REALTY LTD., Petitioner, v. Michael BOYD, Respondent-Tenant

143 N.Y.S.3d 773

36170 REALTY LTD., Petitioner,
Michael BOYD, Respondent-Tenant


Civil Court, City of New York, Kings County.

Decided on February 22, 2021

Attorney for Petitioner, David Skaller, Esq., Belkin Burden Goldman LLP, 270 Madison Avenue 5th Floor, New York, NY 10016

Attorney for Respondent, Jaime Lathrop, Esq., 641 President Street, Suite 202, Brooklyn, NY 11215

Katherine A. Levine, J.

Petitioner 36170 Reality Ltd. ("petitioner" or "landlord") brings this holdover proceeding to evict respondent tenant against Michael Boyd ("respondent" or "Boyd") and to recover a rent-controlled apartment (Apt. 3A) located at 36 Clark Street, Brooklyn in which Boyd currently resides. Petitioner commenced this action upon the death in 2010 of Boyd's mother, Elizabeth Boyd, who was the tenant of record, contending that Boyd was not entitled to succeed to the statutory rights of his mother since she was merely a licensee.

This case raises novel issues of interpretation regarding the exception to 9 NYCRR § 2204.6(d)(1). Under New York City's rent stabilization and control regulations, a family member who has resided with a rent-controlled tenant for at least two consecutive years prior to the tenant's death may claim succession rights to the tenancy. 9 NYCRR § 2204.6(d)(1) ; 90 Elizabeth Apt. LLC v. Eng , 58 Misc. 3d 300, 301, 64 N.Y.S.3d 486 (Civ. Ct. N.Y. Co. 2017). However, § 2204.6(d) contains exceptions to this two year residency requirement. It provides that the minimum period of required residence shall not "shall not be deemed interrupted by any period during which the "family member" temporarily relocates because he ... (c)" is not in residence at the housing accommodation pursuant to a court order not involving any term or provision of the lease, and not involving any grounds specified in the [RPAPL]" 9 NYCRR § 2204.6 (d)(1)(iii). At issue is whether the conditions of Boyd's parole and supervised release fall within the meaning of a "court order" and, if so, whether these conditions of parole arose out of any activities which fell within the scope of Real Property Actions and Proceedings Law ("RPAPL"), §§ 711 and 715 which prohibit any part of the premises from being "used or occupied as a bawdy-house, or house or place of assignation for lewd persons, or for purposes of prostitution, or for any illegal trade or manufacture, or other illegal business."

Respondent asserts that he is entitled to succession rights because he resided with his mother until his incarceration in May 2002, and that after his release from prison and parole, he resumed his residency with

143 N.Y.S.3d 779

his mother in 2009. He therefore falls within the exception to the two year residency requirement governing succession rights, as contained in 9 NYCRR § 2204.6(d), because the conditions of his parole, requiring him to stay away from his mother's apartment for part of the two year period immediately before his mother's death, was part and parcel of the underlying court order and criminal conviction. Petitioner counters that conditions of parole are not equivalent to a court order since Boyd's agreement to stay away from his mother's apartment was "voluntary" and had nothing to do with his criminal conviction. It further argues that regardless of the legal meaning of the conditions of parole, as a matter of law Boyd could not succeed to the tenancy since he engaged in "illegal trade, manufacture, or other illegal business" as prohibited by §§ 711 and 715 of the RPAPL. Respondent counters that Boyd's criminal conviction of a sex act involving a minor, and burglary, did not fall within the intent of RPAPL § 711(5), which is commonly referred to as the "bawdy house, illegal use or drug house" statute.

As will be detailed below, this Court reaffirms its previous ruling that the conditions of parole are part and parcel of a court order, and that in order to be on parole Boyd had to accept the conditions offered by the Parole Board. Therefore, Boyd's absence from the apartment was a mandatory condition of parole and fell within the exception to the residency requirement provided by 9 NYCRR § 2204.6 (d)(1)(iii). However, respondent cannot reap the benefit of this exception without having the court also probe into the incidents leading to the parole order which mandated that Boyd could not reside in his mother's residence. Since the parole conditions flowed ineluctably from the sentence, which contained an order of protection for eight years, this court concluded that the parties could present evidence of the underlying conduct which led to the sentence and order of parole.

The court also finds that Boyd used both his mother's apartment and the entire premises, including the roof of the building, to manufacture a technological apparatus which enabled him to constantly tape a minor engaging in sexual conduct for about a year and view her in "live time" on his camcorder in or about his mother's apartment, He also used the apartment to create multiple tapes of the minor. He therefore used his apartment to engage in illegal manufacturing or business for more than "an isolated use" and his activities fell within the prohibitions listed under RPAPL §§ 711 and 715 so as to defeat any claim to succession rights. Furthermore, Boyd's actions constituted a modern day version of using the premises for lewd and immoral conduct which also defeated any claim to succession rights.

Procedural History and Basic Facts

History of Criminal Action

By a lengthy decision and order dated November 21, 2001, Judge Patricia DiMango ruled on defendant's motion to suppress evidence. Dimango first set forth that Boyd was charged with burglary in the second degree ( Penal Law § 140.25 (2) on two separate dates and five counts of possessing a sexual performance by a child in violation of Penal law § 263.16. Judge DiMango first recited the testimony of the two apprehending police officers who decided to search Boyd's knapsack after observing him engage in strange behavior. The officers removed a "Sony Digital Handycam" camera with a fold out LCD screen which depicted six pictures of a female lying naked in bed. The camera also contained a video cassette tape of a female masturbating. The police officer handcuffed and frisked Boyd and brought him to the precinct without telling him if he was under arrest.

143 N.Y.S.3d 780

While in custody, Boyd admitted that he had additional video tapes of the girl at the apartment. The detective and officers went to the apartment and Boyd gave the officers a plastic bag filled with video tapes, covering a period of almost one year, which depicted a naked girl lying in bed and masturbating. Boyd also had "a VCR with a television set and a computer monitor with a CPU tower, which appeared to contain a porthole for eight-millimeter tapes." Subsequently, one of the officers returned to the premises with a search warrant. Upon executing the warrant, he recovered the CPU unit, CD-ROM disks, floppy discs, pornographic magazines, and what appeared to be VHS tapes and other tapes. Soon thereafter, a detective discovered the identity of the female on the video tapes, and proceeded to the minor female's apartment where the door was answered by her father. After being shown the images from the camera, the father identified the images on the tape as being of his daughter (14 years of age) and the room in the picture as her bedroom. He recounted to the police that several weeks earlier his daughter had complained that she thought she had seen a camera outside her window which was on the top floor of the building.

Defendant sought to suppress all of the physical evidence obtained from the time of the street encounter through and including the return of the search warrant, and also sought to suppress statements he made to the police at the station house because he was not informed of his Miranda warnings. He claimed that all of the evidence was improperly obtained pursuant to illegal searches and seizures and be suppressed as fruit of the poisonous tree after the police acted improperly when they initially approached him as he sat on a stoop in Brooklyn.

Judge DiMango first found1 that Boyd's initial reactions upon countering the police on the stoop gave rise to a "founded suspicion that criminal activity was afoot" and elevated the encounter to the "common law right to enter." The search of the plastic bag was necessary as the police could not rule out the presence of a gun, although the officer thereupon discovered that the "gun" was in fact a video camera simultaneous with his seeing the six pinhole pictures. The images thus came into "plain view" through no police misconduct and the police officer properly investigated the identity and whereabouts of the female and properly seized the camera. Since the police came into possession of the camera in a lawful manner, the court denied suppression of the camera of any of its contents.

Judge Dimango also found that the police officer's discussion with Boyd at the precinct to find out the name and location of the teenage female was proper under the "public safety" exception to the Miranda rule, given the officer's concern for the welfare of the teenager. The detective did not attempt to elicit evidence of a crime but attempted to ascertain the...

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