KDG Albany, LP v. Dixon
| Decision Date | 04 December 2018 |
| Docket Number | LT-3532-18/AL |
| Citation | 89 N.Y.S.3d 835,62 Misc.3d 557 |
| Parties | KDG ALBANY, LP, Petitioner-Landlord, v. Shirley DIXON, Respondent-Tenant. |
| Court | New York City Court |
John T. Keenan III, Esq. Albany, NY, for Petitioner-Landlord.
Shirley Dixon, Respondent-Tenant, pro se.
Thomas Marcelle, J.
KDG Albany, LP ("KDG") brought a holdover proceeding against Shirley Dixon ("Dixon"). The court held a trial, and it finds that the credible evidence established the following.
In September 2017, Dixon entered into a lease with KDG to rent an apartment at 105 Philips Street in Albany. In March of the following year, Dixon began dating Ahmed Carroll ("Carroll"). Things went well for a while but, in May, the relationship soured and devolved into verbal and physical altercations. The abuse by Carroll got so bad that Dixon felt compelled to go to Albany County Family Court for an order of protection. On May 23, 2018, Albany County Family Court (Rivera, J.) issued a full stay away order of protection—Carroll could no longer have contact of any kind with Dixon.
The order of protection proved to be of little deterrence to Carroll. Two days later, he violated it. On May 25, Carroll smashed the lock on Dixon's door and entered her home. Dixon called the Albany Police who responded. Ultimately, Carroll was arrested and charged with criminal trespass in the third degree ( Penal Law § 140.10 ), criminal mischief in the fourth degree ( Penal Law § 145.00 ), and criminal contempt in the first degree ( Penal Law § 215.51 ).
Carroll was released on the charges. Still, he refused to cease harassing Dixon, constantly coming to her apartment over a two-week period. Dixon testified that she kept calling the police but since Carroll would flee the scene, the police never charged him. On June 13, 2018, Carroll again broke into Dixon's apartment, this time he beat her. Dixon suffered injuries to her face, arms and legs. It appears from court records that on July 28, 2018, Carroll was apprehended and formally charged with assault in the third degree ( Penal Law § 120.00 ) and upon arraignment of the assault charge, the court issued a new full no contact order of protection (Albany City Ct, Trexler, J., index No. CR 1000-18/AL).
Sadly, Carroll could not be dissuaded from coming to Dixon's apartment building, knocking on her window and causing a commotion. She would call the police, but Carroll eluded arrest. On August 23, 2018, the police caught Carroll and, according to Dixon, he was sent to jail for violating the order of protection.
Against this backdrop, the present landlord tenant dispute arose. KDG's property manager Mary Kelly testified that two tenants had made a series of complaints about noise coming from Dixon's apartment. According to Kelly, between June and September, Elijah Williams and Mercedes Peno made multiple noise complaints. Williams, the basement tenant, complained four to five times in person and another four to five times by phone. Peno, the next-door neighbor, complained four to five times by phone. Kelly testified that tenant complaints made in this manner (in person and by telephone) are considered informal complaints. To register a formal complaint, a tenant must submit it via the management company's internet-based portal.
Nevertheless, without a formal complaint, on August 15, 2018, KDG notified Dixon that she had violated her lease by making bothersome noises and disturbances. KDG further notified Dixon that she had one week to remedy the noise, or it would end her lease. On September 1, KDG accepted Dixon's rent. This indicates that at least between August 15 and September 1 that no further complaints were made about Dixon. This quiet period neatly coincides with the period that Dixon testified that Carroll was incarcerated.
The peace and quiet ended in the early morning hours of September 10, 2018. At about 2:00 a.m., when Dixon got up for a snack, she saw Carroll standing in her bedroom.1 Carroll told her that he had a knife. Dixon was scared and shocked, so she screamed for help. She then attempted to bolt from the apartment, but Carroll grabbed her. A struggle ensued, but Dixon made it to the hallway and yelled for help. Her neighbor, Peno and Peno's boyfriend, opened their door and came out. Dixon told the couple that Carroll was threatening her and pleaded with them to call the police. Peno began to express compassion towards the situation but her boyfriend pulled her into their apartment and slammed the door.
Dixon, now alone, accompanied Carroll back into her apartment upon his assurance he would not harm her. Once inside, Carroll told Dixon that if she was not going to be with him, he was not sticking around Albany to do probation. Carroll left Dixon's apartment. In the morning she called the police and Carroll's probation officer to tell these agencies of the events that transpired in the early morning hours.
Later on September 10, Mary Kelly came by to discuss the 2:00 a.m. incident. She told Dixon that she again had been the subject of a complaint concerning an early morning ruckus.2 Dixon explained that the early morning episode was not her fault. Rather, Carroll had caused the disturbance by breaking in and threatening her. Kelly was decidedly unsympathetic. She scolded Dixon, "you need to contact the police and ask them why they aren't doing their job." At the end of their conversation, Kelly served Dixon with a termination notice which provided:
Dixon refused to vacate; KDG sued for possession. Dixon invoked RPAPL 744 as a defense—that is, she asserted that KDG was discriminating against her because she was a victim of domestic violence.3 To establish a defense under RPAPL 744, a tenant must prove two elements: (1) that she is entitled to domestic violence victim status and (2) that the landlord commenced an eviction proceeding because of such status. If the tenant establishes both elements, then the eviction proceeding will be dismissed—unless the landlord establishes a lawful reason for the eviction (for example, the non-payment of rent) (cf. 390 West End Associates v. Raiff, 166 Misc. 2d 730, 734, 636 N.Y.S.2d 965 [App. Term 1st Dept. 1995] [] ).
Turning to the first element, the parties disagree over whether Dixon is entitled to domestic violence victim status. "[A] person possesses domestic violence victim status if such person is or has been a victim of an act that would constitute a family offense and such act is alleged to have been committed by a member of the same family or household" ( RPL 227-d [1 ] [internal quotations omitted] ). Thus, to be a domestic violence victim, a person must have suffered from a family offense committed by a family or household member.
KDG does not dispute that Dixon was a victim of a family offense. This assessment is correct. Family offenses include disorderly conduct ( Penal Law § 240.26 ), harassment in the second degree ( Penal Law § 240.26 ), assault in the third degree ( Penal Law § 120.00 ) and stalking in the fourth degree ( Penal Law § 120.45 ) [ Family Ct Act § 812 [1 ] ]. The evidence supports that Carroll committed all such offenses upon Dixon between May 2018 and September 2018. The court finds that Dixon was a victim of a family offense.
However, KDG argues that while Dixon may have suffered abuse at the hands of Carroll, Carroll is not a member of the same family or household as Dixon. KDG says Dixon cannot be considered a domestic violence victim. It is true, as KDG says, that Carroll and Dixon are neither married nor have ever lived together in the same household. However, Family Court Act § 812 (1) (e) contains a broader definition than a literal reading of Subdivision 1 might suggest. The statute provides that members of the same family or household includes persons "who are or have been in an intimate relationship regardless of whether such persons have lived together at any time" ( Family Ct Act § 812 [1 ] [e] [emphasis added] ).
The question becomes whether Dixon and Carroll had an intimate relationship. Although the term "intimate relationship" is not defined, the statute provides factors to be considered in determining whether such a relationship exists, ( Jessica D. v. Jeremy H. , 77 A.D.3d 87, 89, 906 N.Y.S.2d 119 [3d Dept. 2010] [internal quotations omitted] ).
Guided by this standard, the court has carefully reviewed the credible evidence. Such evidence together with the inferences that the court draws therefrom establishes that Carroll and Dixon had an intimate relationship. Besides this finding, Judge Rivera's May 23, 2018 order of protection from Albany County Family Court is significant. The family court would have had subject matter jurisdiction to issue the order only if it found that an intimate relationship existed between Carroll and Dixon ( Parrella v. Freely , 90 A.D.3d 664, 665, 933...
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