Ditmas Flats, LLC v. Pantoja

• Decision Date: 31 August 2015
• Docket Number: No. L & T071904/15.,L & T071904/15.
• Citation: 22 N.Y.S.3d 137 (Table)
• Parties: DITMAS FLATS, LLC, Petitioner–Landlord, v. Orlando PANTOJA, Respondent–Licensee.
• Court: New York Civil Court

22 N.Y.S.3d 137 (Table)

DITMAS FLATS, LLC, Petitioner–Landlord,
v.
Orlando PANTOJA, Respondent–Licensee.

No. L & T071904/15.

Civil Court, City of New York, Kings County.

Aug. 31, 2015.

Sidrane & Schwartz–Sidrane, LLP, by Steven D. Sidrane, Esq., Rockville Centre, on behalf of Ditmas Flats, LLC, Petitioner–Landlord.

Orlando, Pantoja, pro se, Respondent–Licensee.

RICHARD J. MONTELIONE, J.

Appearances: Sidrane & Schwartz–Sidrane, LLP, by Steven D. Sidrane, Esq., 119 N. Park Avenue–Suite 201, Rockville Centre, N.Y. 11570, on behalf of Ditmas Flats, LLC, Petitioner–Landlord (hereinafter, "Petitioner"); Orlando, Pantoja, pro se, Respondent–Licensee (hereinafter, "Respondent").

A bench trial commenced and concluded on August 10, 2015. The Court heard testimony from two witnesses: Simon Felsenburg, an individual employed by Ditmas Flats, LLC, Petitioner, who was involved with the management of the demised premises, and Orlando Pantoja, the Respondent. The Court allowed legal memorandums to be submitted post trial and the Court has considered such a memorandum from the Petitioner in the form of a letter dated August 10, 2015 which is designated as Court Exhibit "1."

There is no dispute that the premises for which recovery is sought by Petitioner includes two parking spaces, parking space nos. 29 and 30, which are located within a garage of a residential building. The Court granted Petitioner's motion to amend the petition to include additional space allegedly used within the parking lot by the Respondent.

Simon Felsenburg testified that the Respondent permanently parks his van in space number 30 of the garage and that he has kept a grill and propane tank for cooking in the parking garage. It is undisputed that at some point the Respondent used a propane grill in the garage and utilized one or two of the rooms located in the garage for personal use.

The parties agreed in a prior stipulation, inter alia, to the jurisdiction of the court and for the Respondent to remove the propane tank and grill from the parking garage. The witnesses testified that the propane tank and grill were moved to another part of the garage and there is no evidence that it was thereafter used, but it was not removed from the premises.

Mr. Felsenburg identified through photographs personal items of Respondent which were located within a room at the garage which includes a chair, flags and other miscellaneous items. Mr. Felsenburg testified that he suspects that the Respondent lives in his van.

Mr. Orlando Pantoja testified that he utilized the space for the last 20 years because he had an agreement with the prior owner that he would maintain the garage in return for use of the space.

There is no evidence that a commercial lease ever existed or that the space utilized by the Respondent was ever used as a commercial space or for a commercial purpose. In fact, within the petition itself is an allegation that "Respondent illegally occupies parking spaces with his van which he lives in and remains in occupancy without permission of the landlord" (emphasis added ). Moreover, a bathroom is used by the Respondent near the opening to the garage. In essence, the Court credits the testimony of both witnesses and virtually all the evidence at trial points to Respondent using his van and the space for living purposes only.

DOES THE COURT HAVE JURISDICTION IN THE COMMERCIAL PART OF THE CIVIL COURT TO PRESIDE OVER A MATTER INVOLVING A PARKED VAN IN A GARAGE USED AS LIVING SPACE WHERE THE PRIOR OWNER AND PETITIONER ACQUIECED TO SUCH USE?

The Respondent's testimony that he had an agreement with the prior landlord regarding the use of the space in exchange for maintaining the garage is not at variance with the Petitioner's allegation that the Respondent is a licensee because he had the permission to use the space ("a license connotes use or occupancy of the grantor's premises, a lease grants exclusive possession of designated space to a tenant, subject to rights specifically reserved by the lessor" [American Jewish Theatre v. Roundabout Theatre Co., 203 A.D.2d 155, 156, 610 N.Y.S.2d 256 [1994] ).

See, also Garza v. 508 West 112th Street, Inc., 22 Misc.3d 920, 924–925, 869 N.Y.S.2d 756, 760 [Supt. Ct., N.Y. County 2008],

If an owner allows a tenant to use a

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