Ferby v. Jonero, LLC

• Decision Date: 03 September 2014
• Docket Number: No. 62628/13.,62628/13.
• Citation: 998 N.Y.S.2d 306 (Table)
• Parties: Rodnei FERBY, Petitioner, v. JONERO, LLC, Respondent.
• Court: New York Civil Court

998 N.Y.S.2d 306 (Table)

Rodnei FERBY, Petitioner

v.JONERO, LLC, Respondent.

No. 62628/13.

Civil Court, City of New York, Kings County.

Sept. 3, 2014.

Petitioner Pro–Se.

Tremer & Tremer, P.C., by Gary Tremer, Staten Island, N.Y., for Respondent.

Opinion

Harriet L. Thompson, J.

This case involves a landlord and tenant relationship. It has quite a history. It begins as stated below when the Petitioner (hereinafter referred to as “FERBY” as the tenant) and JONERO, LLC. (as the landlord) entered into a written lease agreement to let a commercial store on the second floor of the premises known as 579 Fifth Avenue, “the front portion of the second level of the property”, Brooklyn, New York. The purpose of the rental agreement was for FERBY to construct and develop a “high-end” beauty salon.

The four-day hearing of this case had a tremendous emotional and financial impact on both parties; there is even a criminal court action pending between the parties.

Factual and Procedural History

On December 10, 2010, before a Notary Public, Nelly Vidal, as landlord, and RODNEI FERBY, as tenant, entered into a 5 year lease, which commenced on December 15, 2011 and terminated on December 14, 2016, for the development of an upscale beauty salon. The lease agreement, specifically, paragraph 7 of the Rider thereto, states that “the premises is for commercial use only and not for living or sleeping quarters.”

As shown from the testimony below, FERBY was undisputedly undercapitalized to complete this commercial venture. Notwithstanding his covenants in the lease agreement, his financial inability to pay for the costs of certain renovations and repairs to the subject premises led to his eviction from the front salon.

This Court's review of the Commercial Landlord and Tenant proceeding under index number 079354/2012, disclosed the following facts. On June 15, 2012, JONERO, LLC and Nelly Vidal commenced a commercial summary proceeding against FERBY d/b/a Flourish Hair Salon based on nonpayment of rent in the amount of $11,176.28. The petition alleged the sums due and owing as follows: Monthly rent at $1,890.00 for the months of January 2012, February 2012, April 2012, May 2012, and June 2012; rent for March 2012 at $600.00; water and sewer charges for $150.22; and real estate taxes in the amount of $976.06. The petition was verified by Nelly Vidal and was commenced by the Law Office of Tremer & Tremer, P.C. of Staten Island, New York, the attorney for JONERO, LLC in the proceeding.

The Respondent appeared pro se and after trial, the Hon. Reginald Boddie issued a Decision and Order, dated December 3, 2012, in which it was determined that JONERO, LLC was entitled to a final judgment in the amount of $13,726.28 against FERBY with the issuance of the warrant of eviction stayed 10 days. The court found that FERBY owed $12,600.00 through November 30, 2012, as follows: $1,800.00 for February 2012; $1,800.00 for April 2012; $1,800.00 for May 2012; $1,800.00 for June 2012; $1,800.00 for July 2012; $1,800.00 for August 2012; $1,800.00 for September 2012 and $1,800.00 for November 2012; $150.22 for water and sewer charges and $976.06 for real estate taxes. Hence, a judgment was entered in favor of JONERO, LLC and Nellie Vidal for $13,726.28.

According to the evidence presented herein, on January 31, 2013, FERBY was evicted from the second floor front by New York City Marshall Kenneth J. Giachetta.

On March 12, 2013, FERBY, by counsel, submitted an Order to Show Cause to this Court seeking to be restored to possession of “the second floor rear of the premises known as 579 Fifth Avenue, Brooklyn, New York” made returnable on March 28, 2013 at 10 a.m. in Commercial Part 52.

The motion was adjourned to April 2, 2013. It appears that the adjournment was based on court error. On April 2, 2013, after extensive settlement negotiations, the parties could not amicably resolve their differences and the case was adjourned to April 9, 2013 at 2:30 p.m. for a hearing on the merits.

On April 9, 2013, once again after substantial conference between the parties, settlement negotiations failed and the hearing ensued as more fully stated below.

The Order to Show Cause states that FERBY is not seeking to be restored to possession of the commercial premises. Instead, he seeks to be restored to the rear of the property, an alleged residential apartment. He claims that “upon returning to the property on January 31, 2013[,] I found that the entire building had been shut down and the locks for the entire building entrance for the entire second floor had been changed. I was therefore locked out of my residence unlawfully” (FERBY, Affidavit at ¶ 5). “Upon information and belief, the landlord caused the Marshall's Notice to be placed on the outer door of the property and changed the locks.” FERBY also alleges that he did not receive any eviction notice by mail or at the property and seeks to be reinstated to the rear of the subject premises. What is clear from the relief requested by FERBY and according to his claims, on the commencement of his commercial tenancy, he simultaneously rented the rear portion of the demised property as a “residential tenant.”

The Court file does not contain any written opposition by JONERO, LLC. to this motion.

This Court conducted a 4–day hearing on April 24, 2013, May 29, 2013, June 5, 2013 and June 6, 2013. Some of the delay was due to the fact that FERBY subpoenaed multiple individuals to appear in court on his case-in-chief including, but not limited to, New York City Marshall Kenneth J. Giachetta. This Court declined some subpoenas and granted some subpoenas.

On the first date of trial, FERBY called New York City Marshall Giachetta. After being duly sworn, the Marshall testified about the date of the eviction of FERBY from the front section of the premises known as 597 Fifth Avenue, Brooklyn, New York. FERBY had admitted into evidence as Petitioner's Exhibit “1”, the affidavit of service attesting to the service of the 6–day Marshall's Notice on FERBY. The affidavit of service provides that the Process Server allegedly made two prior attempts at personal service at the subject premises on January 17, 2013 at 4:47 p.m. and on January 18, 2013 at 12:42 p.m., and then resorted to affixation of said Marshall's Notice to the subject premises on January 18, 2013 at 12:42 p.m.

Additionally, FERBY had admitted into evidence as Petitioner's Exhibit “2”, a copy of the Marshall's inventory of the eviction dated January 31, 2013. The Marshall testified that the premises was on the second floor of the premises; that he was present, as well as a locksmith and the landlord and her family. The Marshall testified that he was allowed onto the second floor by the owner and the locksmith went to the door that was the hair salon. The locksmith opened the door and he proceeded to take his inventory. The inventory states that FERBY's personal property was not new but was worn and soiled'.

The Marshall testified that at the eviction, the landlord asked them to look in the rear space. He stated that the landlord told him that they were fearful that FERBY could be hiding back there. The landlord had noticed that the rear lock on their storage space had been changed and they did not have a key. The Marshall agreed to look in the rear and after that lock was opened, he walked through to make sure that there was no one there, including FERBY.

When asked by FERBY whether it was “normal” to go into other parts of property to look for people while doing evictions, the Marshall replied, “No, it's not normal but neither is the fact that a landlord is locked out of their space. So, I did it as a courtesy to the landlord because I would not want to have someone that was just evicted be hiding in another space” (New York City Marshall Kenneth J. Giachetta, p. 28, lines 16–22). The Marshall further testified that while in the rear, he observed a TV, a couch and other personal property but did not inventory it because that was not his function ....he had no warrant to remove anyone from that space (New York City Marshall Kenneth J. Giachetta, p. 30, lines 1–2). The Marshall further explained that he performed this duty for the landlord to protect the landlord. The Marshall testified that “I just made them aware that if someone had trespassed in that area and there was property that was not theirs or property that was missing, that they should contact the police. It's not my function, as a Marshall, to make that determination” (New York City Marshall Kenneth J. Giachetta, p. 30, lines 17–22).

The Marshall went further to state that he considered it his civic duty to assist the landlord and analogized his actions to that of a police officer being off duty and being requested to perform a police duty. The Marshall stated that he felt it was his ethical and civic duty to assist the owner under the circumstances.

The Marshall further testified that “I did not go in to evict anybody from the [rear] premises, I just went in as an officer of the court to make sure that the second floor was safe” (New York City Marshall Kenneth J. Giachetta, p. 31, lines 15–17). FERBY asked the Marshall to describe the rear space and he testified that “I do remember some furnishings being there, I remember a TV, video tapes, some CDs, I can't recall which, and a couch; that's what I recall. There might have been some miscellaneous wood. My primary function going back there was to make sure that it was free from any inhabitants so I didn't really—it was free from any inhabitants so I didn't really—your space, the salon I made a physical inventory so I was particular in what I was doing” (New York City Marshall Kenneth J. Giachetta, p. 32, lines 14–21). The whole objective, he repeatedly stated, was to ensure that the space was empty.

FERBY placed great emphasis on the fact that the Marshall's Notice of Possession was placed on the entrance door which led upstairs to the commercial space instead of the actual salon door...