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LCD Holding Corp. v. Velez

Civil Court of the City of New York, Kings County

August 21, 2013

LCD Holding Corp., Petitioner,
Michelle Velez, "JOHN DOE" and "JANE DOE, " Respondents.

Unpublished Opinion

Jared Rich, Esq. appeared on behalf of petitioner

Michelle Velez Albion State Correctional Facility appeared pro se

Bruce E. Scheckowitz, J.

After trial, the court makes the following findings and determination:

LCD Holding Corp. ("petitioner") commenced the instant "squatter" holdover proceeding against Michelle Velez ("respondent") seeking possession of the premises described as 84 Visitation Place, Brooklyn, NY 11231 (the "premises") on the grounds that respondent intruded or squatted upon the premises without the permission of the petitioner. The premises are described in the petition as a "certain plot, piece or parcel of land commonly known as 84 VISITATION PLACE..." Petitioner appeared in this proceeding through its attorney and respondent appeared pro se.

Petitioner commenced this proceeding on November 12, 2012. As respondent was incarcerated and serving a prison sentence at the Albion Correctional Facility in Albion, NY during the course of the proceeding, the matter was adjourned several times for respondent to be produced for video conference and trial. A video conference was conducted by the Honorable Eleanora Ofshtein on April 23, 2013, wherein respondent asserted a defense to the proceeding of adverse possession. Judge Ofshtein deemed the statement an oral answer and affirmative defense and marked the defense on the court file and in the transfer order. The proceeding was referred to this Part for trial on July 17, 2013 and the court conducted the trial over the course of one day.

The Testimony and Evidence

Petitioner's Prima Facie Case

At trial, Eddie Doran, vice president of petitioner, testified regarding petitioner's prima facie case. Mr. Doran asserted that LCD Holding Corp. owns the subject premises, 84 Visitation Place. In support, petitioner's attorney offered into evidence a self-certified copy of the deed for the premises under CPLR § 2105 (Pet. Ex. 1). Petitioner's counsel proffered that he compared the self-certified copy of the deed to the ACRIS version of the deed rather than comparing the copy of the document to the original deed.

Mr. Doran testified that 84 Visitation Place ("84 Visitation Place" or "84) is a "residential vacant lot." He stated that there is no physical division between the premises and 86 Visitation Place ("86 Visitation Place" or "86"), which is owned by respondent. Mr. Doran explained that his company purchased 84 Visitation Place in 2006 after managing it for one year for a "Mr. Redman, " the prior owner of the property. Mr. Doran further explained that while he managed the premises he advised the owners of the neighboring properties that 84 Visitation Place was "up for sale and was going to be marketed." He also stated that he visited the premises "numerous times" to check the property's condition and that he has been in control of the premises since petitioner purchased the lot in 2006.

The witness maintained that in or about 2007 he sent respondent a letter asking her to remove her property from 84 Visitation Place. He asserted that as a response to the letter, respondent commenced an adverse possession claim against petitioner and locked petitioner out of the property by adding a padlock to the fence on the property in 2007 or 2008. Mr. Doran testified that the adverse possession action was dismissed due to respondent's failure to file a Note of Issue and her failure to prosecute the case.

Mr. Doran acknowledged that in 2010 petitioner filed a petition for Chapter 11 bankruptcy in the Southern District of New York under In Re: LCD Holding Corp., Case No. 10-15084 (SHL), and has petitioned the Bankruptcy Court to sell 84 Visitation Place to a purchaser with the highest and best offer. Petitioner's attorney produced a certified copy of an order by the Bankruptcy Court dated June 27, 2013 authorizing petitioner to sell the premises "free and clear of all liens, claims, and interests with such liens, claims and encumbrances, and other interests to attach to the proceeds of sale in the order of their priority..." (Pet. Ex. 2). The order acknowledges that respondent Velez claimed an interest to the premises in a state court action, but that the New York State Unified Court System's website indicated that the case had been "disposed of." Mr. Doran testified that to his understanding, 84 Visitation Place is to be sold and nobody can make claims on or against the property but only against the money deposited in the court after the sale.

Petitioner moved into evidence photographs taken by Mr. Doran the day before trial which depict the premises as a lot with a small, man-made shed (Pet. Exs. 3A, 3B and 3C). Mr. Doran testified that the photos were taken from the stoop of 82 Visitation Place, the house to the right of the subject premises, and depict both 84 and 86 Visitation Place. The witness asserted that the lot has not been cared for in a long time. (Pet. Ex. 3C) Petitioner also produced a certified copy of an order from HPD regarding a demolition and bid on 84 Visitation Place in 1996. (Pet. Ex. 4). The order shows that the City demolished the structure existing on 84 Visitation Place, in 1996. (Pet. Ex. 4) Petitioner also offered an order issued by the Supreme Court in The People of the State of New York v. Raul Velez and Michelle Velez, Indictment 05547/10 by the Honorable Martin P. Murphy dated April 12, 2012 into evidence (Pet. Ex. 5). The order described the lots of 84 Visitation Place and 86 Visitation Place as "touching, contiguous, and unseparated" without a fence or other property marker between them. In support of its ...

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