Moflhi v. Wagner, 2022-50091

CourtNew York City Court
Writing for the CourtTHOMAS MARCELLE, J.
PartiesSofyan Moflhi, Petitioner, v. Krystal Wagner, Respondent
Decision Date08 February 2022
Docket Number2022-50091,Index LT-323-21/CO

Sofyan Moflhi, Petitioner,

Krystal Wagner, Respondent

No. 2022-50091

Index No. LT-323-21/CO

City Court of Cohoes

February 8, 2022

Unpublished Opinion

Thomas Gabriels Albany, for Petitioner-Landlord.

Legal Aid Society of Northeastern New York (Amanda Paladino, Esq. of counsel), Albany for Respondent-Tenant.


This case involves a confused tale. The witnesses' testimonies diverged significantly. The court was not satisfied that any of the three main witnesses' testimonies were completely accurate. Moreover, the parties presented fuzzy dates rather than exact ones. So, the recitation of the facts below implicitly resolves the numerous discrepancies in the testimony. These findings of facts are based upon the credible evidence and the fair inferences made therefrom.

Landlord Sofyan Moflhi ("landlord") entered into a lease with Robert Kelly Sr. ("Senior") to rent 86 Howard Street. When the lease expired the landlord and Senior maintained a month-to-month tenancy. Senior had a son, Robert Kelly, Jr. ("Junior"), and Junior had a fiancée-Crystal Wagner ("Wagner"). In May of 2021, Senior invited Junior and Wagner to live with him so the couple could save funds for their own apartment. Wagner resided at 86 Howard because Senior had given the couple permission to do so. By June, the landlord became aware that the couple was living in Senior's apartment and took no steps of any kind to halt the arrangement.

There were, however, problems. Junior was on parole and one of the conditions of his release was that he could not live with someone who had been previously convicted of a felony. Senior had been convicted of a felony which made co-habitation with his son not feasible. Since the arrangement with his son was temporary, Senior moved out and stayed with a friend.

Over the summer, the date is unclear, Junior became abusive to Wagner. Although murky, it appears that despite Junior's violence towards Wagner, Wagner and Junior still resided together at 86 Howard Street until sometime in late September. It was then that the Cohoes Police responded to a domestic violence call and arrested Junior. Wagner moved out of the apartment and into a temporary shelter (presumably for victims of domestic violence). When Junior was arrested and Wagner sought shelter elsewhere, the apartment was vacant, and someone (most likely the landlord) told the power company to shut off the power to the apartment.

On September 28, Wagner returned to 86 Howard Street with her possessions in tow. The landlord protested Wagner's moving in. The landlord could not find Senior to have him stop the process. Consequently, he called the Cohoes Police to prevent Wagner from occupying the apartment. When the police arrived, the officer remembered that Wagner had been living there with Junior at the time of his arrest. The officer told Wagner to call the power company and put the power in her name and to move in. This was done over the landlord's objection.

At the very beginning of October, the landlord appealed to a superior officer in the Cohoes Police Department. A lieutenant instructed the parties that Senior (now back in contact with the landlord) was a lawful tenant who had a right to live at 86 Howard Street. At some point in October, Senior moved in and Wagner filed an order of protection against Senior-Senior moved out.

On October 6, the landlord served Wagner with a ten-day notice to quit. On October 16, the landlord commenced this proceeding by service of a Notice of Petition and Petition seeking an eviction under RPAPL 713 (3). RPAPL 713 (3) provides that a special proceeding seeking an eviction can be maintained when "[a person] has intruded into or squatted upon the property without the permission of the person entitled to possession." In other words, RPAPL 713 (3) is the legal method to remove squatters.

Wagner insists that she is not a squatter; but that she is a lawful occupant and consequently, the landlord was required to commence this action under RPAPL 711. This argument has force.

RPAPL 711 provides that no "tenant or lawful occupant of a dwelling or housing accommodation shall be removed from possession except in a special proceeding" (emphasis added). The term lawful occupant is of recent vintage. This language was added to the statute as a part of the Housing Stability and Tenant Protection Act (HSTPA) (L 2019, ch 36).

The question is, of course, is Wagner a lawful occupant. Nowhere does RPAPL define lawful occupant. Courts have wrestled with this lack of statutory definition in the context of Emergency Eviction and Foreclosure Prevention Act, § 3, part A, § 1 (3) (L 2020 ch 381, as extended L 2021 ch 104, as amended L 2021 ch 417) ("EEFPA") (see Kalikow Fam. P'ship, L.P. v. Doe, 72 Misc.3d 1172 (Civ Ct, Queens County 2021) (interpreting the...

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