Elston v. Dubois

• Decision Date: 17 May 2005
• Docket Number: 4732.
• Parties: GALE P. ELSTON, P.C., Appellant, v. MARIE-HELENE DUBOIS, Respondent.
• Court: New York Supreme Court — Appellate Division

18 A.D.3d 301

795 N.Y.S.2d 33

2005 NY Slip Op 03967

GALE P. ELSTON, P.C., Appellant, v. MARIE-HELENE DUBOIS, Respondent.

4732.

Appellate Division of the Supreme Court of the State of New York, First Department.

May 17, 2005.

Order and judgment (one paper), Supreme Court, New York County (Debra A. James, J.), entered October 3, 2003, which, following a nonjury trial in an action to recover use and occupancy payments, dismissed plaintiff's complaint, unanimously reversed, on the law, without costs, the complaint reinstated, and the matter remanded to another justice to determine the use and occupancy owed plaintiff, if any, from October 1998 through March 2001.

Plaintiff Gale P. Elston, P.C. (GPE) is a professional corporation whose principal, Gale Elston, Esq., is an attorney licensed to practice in the State of New York. GPE, at all times relevant herein, was the prime tenant of a loft on the fifth floor of the building designated as 425 Broome Street, New York, New York. The lease for the premises, executed by Hip Hin Realty Corp., as owner, and Ms. Elston, provided that the loft shall be used for "office space and art gallery," although plaintiff claims the premises were occupied residentially with the landlord's knowledge and consent.

The loft was divided into two separate areas, a northern portion, which was rented out as one unit, and a southern portion, which was subdivided and leased to various individuals who had their own bedrooms, but shared a kitchen, bathroom and living room. Defendant Marie-Helene Dubois executed a month-to-month "studio share agreement" in August 1997 for $1,200 per month and, pursuant thereto, occupied her room and paid the rent without incident for approximately one year. In October 1998, however, Ms. Dubois ceased paying rent and GPE, after serving a 30-day notice of termination, commenced the first of a series of holdover proceedings against Ms. Dubois.

GPE did not prevail until the sixth holdover proceeding was resolved in March 2001, although Ms. Dubois now maintains that she has not resided in the premises since March 1999. In any event, during the course of the proceedings, the relationship between the parties deteriorated into a physical confrontation in March 1999, which resulted in Ms. Dubois' arrest and prosecution for assault, a charge of which she was later acquitted. Ms. Dubois notes that the criminal court issued temporary orders of protection which precluded her from returning to the premises, although a review of those orders clearly contradicts Ms. Dubois and indicates that with the exception of one brief interval from April 26, 1999 to May 17, 1999, Ms. Dubois was simply ordered to refrain from harassing Ms. Elston, and was not barred from her own residence.

GPE, before the summary proceedings had reached their conclusion, commenced the within action for recovery of use and occupancy from October 1998 through March 2001, which prompted Ms. Dubois to counterclaim for intentional infliction of emotional distress, false arrest and various other torts arising out of the criminal case. The counterclaims were subsequently dismissed and the...