No eviction is ever easy. This is not only because evictions are typically long, arduous court proceedings. It’s because the stakes are so high. While the apartment may be your property, it is also the tenant’s home and they have numerous legal protections in place to keep them from being arbitrarily kicked out.
However, there are some legal protections that seem a little strange, even to tenants. The most notorious of which concern squatters’ rights. Pursuant to New York State Real Property Actions and Proceedings Law §§ 713(3) and 713(10), squatters, or “surprise tenants,” can claim possession of commercial or residential premises, even if they have assumed possession by illegal means. Consequently, landlords must undertake a summary proceeding to have them removed.
Similarly, the New York City Administrative Code, § 26-521(a), states that landlords cannot just eject a squatter, so long as this individual has “lawfully occupied the dwelling unit for thirty consecutive days.”
Taken in conjunction, this has come to mean that anyone who manages to remain in possession of premises for 30 days or longer is awarded tenancy rights.
While this is considered to be one of New York's more bizarre laws, a recent ruling in Bronx Housing Court, Parkash 2125 LLC v. Gisela Galan, seems equally as counter-intuitive, strange, and almost irrationally pro-tenant at first glance. It also upends the manner in which tenants are to be served warrants of eviction because it claims that the text on the physical warrant of eviction, specifically the line that states “all other persons” must be removed from the apartment, can violate tenants’ right to due process. In essence, the decision finds that an individual must be properly identified (or, failing that, identified as a “John Doe” or a “Jane Doe” on the warrant of eviction) to be evicted.
When the subject came up at November’s Meet-Up featuring Robert Sedaghatpour @STRATCO Property Group and @NYC Marshal Robert Renzulli, Badge No. 49, the blood pressures of some members in attendance visibly spiked. However, as Marshal Renzulli explained, taking the time to sit down and read the decision with a clear head reveals what Judge Michael Weisberg was thinking and why he ruled the way that he did. One may disagree with it, but the opinion is cogent and based upon a reasonable understanding of the constitutional principle of (procedural) due process. Furthermore, one can remedy the situation in most instances without serious difficulties.
(You can read the full decision here.)
The specifics of the case are as follows: The petitioner, Parkash 2125 LLC, initiated a nonpayment summary eviction proceeding and named only the tenant of record, Gisela Galan, on the notice of petition and petition. She failed to answer or appear, so a default judgment was entered against her. Subsequently, a warrant was issued directing the marshal to remove her and “all other persons” from the apartment. Before the eviction could be executed, the respondent’s son moved into the premises and moved to vacate the default judgement. The default judgment was stayed on the condition that the son was to make all overdue rent payments owed by his mother by a date specified in an agreement. The agreement also contained an oath from the son attesting that no one else resided in the subject apartment.
This turned out to be a lie. Two people were living in the apartment—Alexander Pabon and Nicole Rivera. (Pabon had been living in the unit since May 2015, before Gisela Galen, the tenant of record, moved out; Rivera had been there since around April 2018, well after the commencement of the proceeding). After the respondent’s son failed to live up to the conditions set forth in the agreement, the marshal was directed to evict. The marshal did so and removed everyone from the unit, including both Pabon and Rivera even though they did not know about the proceeding until the marshal showed up at their door.
Following the eviction, Pabon and Rivera filed a motion to be restored to possession.
The court found that Pabon, who had been living in the apartment since before the action began, had been denied the right to due process.
Simply put, he was never given his day in court. More annoyingly legalistically put, the judge says that the language of the warrant of eviction, as required by RPAPL § 749(1), violates some tenants’ right to due process, and, therefore, is unconstitutional when taken literally.
Judge Weisberg cites two specific cases wherein precedent had clearly stated that the subject language within the marshal’s warrant of eviction was not to be taken literally. In Fults v Monroe (202 NY 43 ), the Court of Appeals ruled that the language “does not mean literally all persons, but only those in actual possession who are made parties to the proceeding and their guests, agents, servants, and the like.” The Appellate Division, in 170 W. 85th St. Tenants Assn. v Cruz, 173 AD2d 338, 339 [1st Dept 1991], more recently found “for the warrant to be effective against a subtenant, licensee or occupant, he be made a party to the proceeding, either by naming him in and serving him with the petition and notice of petition or by joining him as a party during the pendency of the proceeding.”
This would mean that Pabon, who had resided in the apartment since 2015, was denied his due process rights and should have been named as a party. Judge Weisberg does not reach the same conclusion with regards to Rivera, who moved into the apartment in 2018. “Rivera was not an occupant of the apartment at the time of [the action’s] commencement and thus could not have been named in the petition, even as ‘Jane Doe.’ The court awaits further guidance from the appellate courts as to the due process rights, if any, of occupants of an apartment taking possession after commencement of a summary eviction proceeding.”
However, here is the kicker: The judge still denied these two tenants’ motion to be restored to possession. Despite being denied due process of law, the facts did not warrant an order that would have entitled Pabon to reenter the apartment. “Although the court does not order that Pabon or Rivera be permitted to re-enter the apartment, it finds that Pabon should not have been evicted, as the warrant was not ‘effective against’ him.”
To remedy this, the judge concluded: “Henceforth this court will make clear on all possessory judgments that the warrant of eviction issued pursuant thereto shall be effective only as to those individuals against whom the judgement has been entered, despite the commandment to the contrary on the warrant itself.”
What does this mean for landlords? It means you should know your building and the people who inhabit it!
Even if you do not know the name of each and every person in each and every apartment, you should know the number of people occupying the space and you should be able to identify them as either a Jane Doe or a John Doe in compliance with the Civil Practice Law & Rules’ section on unknown parties, CPLR § 1024. If you are unsure about both the identities of and the number of people who live in an apartment that you own, it is recommended that you hire a private investigator to discover the identities of everyone residing there before you even file a petition.