S.W.S. Realty Co. v. Geandomenico

• Decision Date: 21 September 1984
• Citation: 126 Misc.2d 769,484 N.Y.S.2d 402
• Parties: S.W.S. REALTY CO., Petitioner, v. Diane GEANDOMENICO, Respondent.
• Court: New York City Court

Page 402

484 N.Y.S.2d 402

126 Misc.2d 769

S.W.S. REALTY CO., Petitioner, v. Diane GEANDOMENICO, Respondent.

Civil Court of the City of New York New York County, Housing Part 6.

Sept. 21, 1984.

Robert Lewis, New York City, for petitioner.

Fischbein, Olivieri, Rozenholc & Badillo, New York City (David Brody, New York City, of counsel), for respondent Diane Geandomenico.

Seymour Roy, New York City, for respondent Samir Mako.

DECISION

RENEE A. WHITE, Judge:

The respondent, Diane Geandomenico, has moved this court to vacate a judgment against her and to restore her to possession of the premises known as Apartment 4R at 110 West 30th Street, New York, New York. Following an inquest on a holdover petition, a final judgment of possession was rendered in favor of petitioner. Shortly after the warrant was executed, the premises were rented to a commercial tenant, Samir Mako who took possession of the premises. Mr. Mako was joined as a party to this proceeding.

FINDINGS OF FACT

Michael Lee is a partner in, and agent of, S.W.S. Realty Co., the owner of 110 West 30th Street, an interim multiple dwelling. On September 1, 1977 the respondent, Diane Geandomenico, leased Apartment 4R for a term of five years. Subsequent to the expiration of the lease, she continued to hold the premises as a month to month tenant.

The holdover proceeding brought against the respondent, Diane Geandomenico, alleged that she violated a substantial obligation of the tenancy by "placing rubbish, garbage, and construction materials in the hallway by apartment as well as in the street in front of the building ..." The respondent was not properly served. As a result she defaulted in the action and was subsequently evicted from the premises.

The day the marshal executed the warrant, the petitioner leased the premises to Samir Mako for a term of five years for the purpose of operating a handbag factory. Mako then proceeded to prepare the premises for occupancy; moved in machinery and hired employees. Respondent moved by order to show cause to vacate the default judgment and to be restored to possession. Samir Mako was joined as a party to the proceeding and further alteration of the premises was stayed.

The default is vacated and the holdover proceeding dismissed. Service of process was improper under the "reasonable application" standard enunciated in Eighth Assoc. v. Hynes, 102 App.Div.2d 746, 476 N.Y.S.2d 881 (App.Div. 1st Dept.1984), and Metropolitan Life Insurance Co. v. Scharpf, 124 Misc.2d 1096, 478 N.Y.S.2d 567 (Civ.Ct.N.Y.Co.).

Additionally, the court finds that the proceeding was fraudulently brought. Mr. Lee himself placed garbage in the respondent's hallway and fabricated evidence in an effort to cause the eviction of Ms. Geandomenico from the premises. Since Ms. Geandomenico failed to appear because she had no notice of the proceeding, and a fraud was committed on the court, the default proceeding must be vacated pursuant to CPLR sections 5015 and 317.

Thus, the judgment is vacated and the underlying holdover proceeding dismissed. Now it is necessary to determine if a wrongfully evicted tenant may be restored to possession after an innocent new tenant has taken possession of the premises. This power has not previously been exercised in any reported Civil Court decision.

RESTORATION OF POSSESSION TO OUSTED TENANT

A tenant wrongfully evicted may be restored to possession even after the execution of the warrant. Golde Clothes Shop v. Loew's Buffalo Theatres, 236 N.Y. 465, 141 N.E. 917 (1923); Eighth Assoc. v. Hynes, 102 A.D.2d 746, 476 N.Y.S.2d 881, supra (App.Div. 1st Dept.); Iltit Assoc. v. Sterner, 63 A.D.2d 600, 405 N.Y.S.2d 68 (App.Div. 1st Dept.1978); Third City Corp. v. Lee, 41 A.D.2d 611, 340 N.Y.S.2d 654 (App.Div. 1st Dept.1973); 520 East 81st Street Assoc. v. Heineman, NYLJ, May 17, 1982, p. 15, col. 1 (App.Term 1st Dept.); Oppenheim v. Spike, 107 Misc.2d 55, 437 N.Y.S.2d 826 (App.Term 1st Dept.1980); Central Brooklyn Urban Dev. Corp. v. Copeland, 122 Misc.2d 726, 471 N.Y.S.2d 989 (Civ.Ct.Kings Co.1984); D.U. Fourth Realty Co. v. Meredith, 119 Misc.2d 423, 463 N.Y.S.2d 374 (Civ.Ct.N.Y.Co.1983); 7402 Bay Parkway Assoc. v. Diamond, 116 Misc.2d 403, 458 N.Y.S.2d 122 (Civ.Ct.Kings Co.1982); Papp v. Maffei, 64 Misc.2d 739, 315 N.Y.S.2d 995 (Civ.Ct.N.Y.Co.1970).

The case at bar is complicated by the fact that an innocent new tenant, a party to this proceeding, is in possession of the premises. Mr. Mako entered into a lease and commenced occupancy on July 7, 1984 for the purpose of operating a handbag factory in this mixed use interim multiple dwelling.

When both the ousted tenant and the new tenant in possession were both residential tenants, the court in D.U. Fourth Realty Co. v. Meredith, 119 Misc.2d 423, 463 N.Y.S.2d 374, supra (Civ.Ct.N.Y.Co.1983) chose not to exercise its power to restore the wrongfully ousted tenant to possession. The ousted tenant was relegated to an action in damages for wrongful eviction.

In Golde Clothes Shop v. Loew's Buffalo Theatres, 236 N.Y. 465, 141 N.E. 917, supra (1923) a landowner in possession under a warrant demolished the building on the site and erected a theatre. During that time, the previous tenant was contesting its ouster. The decision awarding possession to Loew's was reversed and the ousted tenant demanded to be restored to the premises. The Court of Appeals awarded a determinate area to the tenant. Judge Cardozo, speaking for the court stated that "the plaintiff shows itself to be the owner of a legal estate, and asks to be restored to ... that which is its own.... One does not lose what is one's own because its utility would be greater if it were awarded to some one else." Golde Clothes Shop v. Loew's Buffalo Theatres, supra at 470, 141 N.E. 917.

Here, as a result of a fraudulent and illegal eviction, Ms. Geandomenico has been ousted from the premises to which she is legally entitled. The fact that it would be more profitable to Mr. Lee and Mr. Mako to operate a factory does not divest Ms. Geandomenico of her legal right to possession.

Judge Cardozo continued, "We are told that the defendant rested upon an order of a court. The prop was insecure, and warning was not lacking of the danger of collapse. When the order was reversed and the proceeding dismissed, rights and duties were re-established, inter partes, as if no order had been made" Golde Clothes Shop v. Loew's Buffalo Theatres, supra at 470, 141 N.E. 917.

When Mr. Lee participated in a scheme to illegally evict Ms. Geandomenico, he knew that his action could be attacked in an action brought by Ms. Geandomenico. He took the risk of reletting, and went ahead, subjecting himself to an action for damages by either Mr. Mako or Ms. Geandomenico. Mr. Lee has implicated an innocent third party in his action. No matter what the court decides one innocent party will be out of possession.

It is necessary to weigh the equities as between Ms. Geandomenico and Mr. Mako in order to determine who should be permitted to retain possession and who should be relegated to an action for damages. An important and overriding consideration is the difference in the tenancies. Ms. Geandomenico is a residential tenant who wishes to continue in possession of the premises to use as a home for herself and her son. Mr. Mako...