[976 N.Y.S.2d 763] MFY Legal Services Inc., New York City (Tanya Kessler of counsel), for Otto Thompson, respondent.
Senior Counsel, New York City (Louis H. Klein of counsel), for Tomoko Watabe, tenant in possession.
Simon Eisenberg & Baum LLP, New York City (Brian Ullman of counsel), for petitioner.
SABRINA B. KRAUS, J.
The underlying summary holdover proceeding was commenced by 46 DOWNING STREET LLC (Petitioner) against OTTO THOMPSON (Respondent), the rent control tenant of record, based on the allegation that Respondent had sublet 46 DOWNING STREET-APT 1C, NEW YORK, NEW YORK 10014 (Subject Premises) without permission, and in violation of 226(b) of the Real Property Law. At the time the proceeding was commenced, Respondent was incarcerated. KAY K. BOURABAH (Bourabah) was not originally named or served in this proceeding, but she was substituted in by the Inquest Court  for " Jane Doe" on the date of the inquest.
Petitioner issued a notice to cure dated March 19, 2009, requiring that Respondent cure the alleged default by April 15, 2009. The notice to cure was served on Jose Salmon (Salmon), who asserted he was a co-tenant, at the Subject Premises on March 24, 2009, and a copy was delivered to DHCR on March 25, 2009. The notice to cure states that Respondent violated § 226(b) of the Real Property Law and that Respondent was " ... permitting various people to use and occupy the subject premises either pursuant to a license, a sublease or partial sublease, a partial assignment or an assignment ..." . The notice to cure further provides:
You reside in separate premises other than the subject premises. As a rent controlled tenant, statutorily you have [976 N.Y.S.2d 764] no right to permit your apartment to be used by others (except roommates).
You are not residing in your apartment. You are not permitted to have a rommate when you are not residing in your apartment.
PLEASE TAKE FURTHER NOTICE, the violation of a substantial obligation of your tenancy as noted herein must be cured by the removal of the individual or individuals who are currently occupying the subject apartment ...
Petitioner issued a notice of termination on June 3, 2009, terminating Respondent's tenancy effective June 25, 2009. The notice of termination was alleged to have been served by personal delivery to Respondent at the Subject Premises on June 9, 2009, and on DHCR by personal delivery on the same date. Copies of both notices were mailed to Anna M. Kross Center, 18-18 Hazen Street, East Elmhurst, N.Y. 11370 (AMKC).
The petition is dated July 27, 2009, and issued on August 18, 2009. The affidavit of service alleges the notice of petition and petition were served by personal service on Respondent at the Subject Premises on August 25, 2009, with a copy mailed to AMKC. on August 26, 2009. The affidavits of service were filed with the court on August 27, 2009. The petition asserts that the Subject Premises is governed by Rent Stabilization, rather than Rent Control as alleged in the predicate notices.
The proceeding was initially returnable on September 3, 2009.
On August 31, 2009, Respondent submitted an affidavit of unavailability, through Bourabah, asserting that Respondent was incarcerated in Riker's Island pending trial, and seeking to have the proceeding adjourned to September 25, 2009, to obtain counsel to represent Respondent.
On September 3, 2009, Salmon appeared and asserted he was in occupancy of the Subject Premises. The proceeding was adjourned to September 29, 2009 to afford Salmon an opportunity to seek counsel.
On September 29, 2009, it was asserted that Respondent was incarcerated in Riker's and the proceeding was adjourned to October 30, 2009, for trial, and for Petitioner " to submit an Order to Produce."
On October 8, 2009, the court signed a Order to Produce seeking the production of Respondent from AMKC to the courthouse on October 30, 2009 for trial.
On October 30, 2009, the proceeding was adjourned to November 30, 2009 at 9:30 am. On November 30, 2009, the proceeding was adjourned to January 6, 2010, for inquest. The marking on the file indicates that the court sent a post card to both parties, and that an Order to Produce was sent to the prison. On January 6, 2010, the proceeding was adjourned to January 29, 2010.
On January 7, 2010, the Inquest Court signed an Order to Produce Respondent from Cape Vincent Correctional Facility to Civil Court on January 29, 2010.
On January 29, 2010, the inquest took place. On February 8, 2009, the Inquest Court issued a decision awarding Petitioner a final judgment of possession, as against Respondent and Bourabah, whom the court substituted in as a party in place of Jane Doe.
The decision provided:
This is a holdover proceeding wherein the petitioner seeks to regain possession of the subject rent controlled apartment on the grounds that the respondent sublet or assigned the premises without the petitioner's knowledge or consent and that the respondent is now residing elsewhere.
The petitioner has shown proof that a copy of the Notice of Petition and Petition was sent to the respondent at the correctional facility the petitioner believed [976 N.Y.S.2d 765] the respondent to be located (sic). In addition, This Court has served several notices to produce upon said center & upon The Cape Vincent Correctional Facility, a location provided to the petitioner and to the court by Kay Bourabah, who claims to be respondent's common law wife.
The respondent Otto Thompson failed to appear or answer despite 6 adjournments. Moreover, upon information & belief, The Court was advised that respondent's booking number does not appear in the NYS Corrections Department Database. Under these circumstances, The Court adjourned this matter one final time to January 29, 2010 for inquest.
Once again, the respondent Otto Thompson did not appear. Christopher Hubert, a private investigator retained by the petitioner, testified. He stated that when he went to the subject premises he was initially unable to gain admittance. On November 24, 2009, he made a final visit and was admitted by an individual named Jose Salmon. Mr. Salmon stated that he had been respondent Thompson's roommate for 2 years. This witness further testified that he conducted an investigation and ascertained that respondent Thompson was incarcerated in an upstate facility serving a five year sentence which commenced in January 2009.
In addition, Mr. Hubert stated that he followed up with respect to an individual named Kay Bourabah. The petitioner had advised him that she had called the petitioner's office concerning Otto Thompson. He ascertained that Ms. Bourabah had placed the calls from a telephone number registered to her father's business in New Jersey. He also stated that he learned Ms. Bourabah and Otto Thompson had had a child together.
He had also obtained documents relating to a proceeding brought by Ms. Bourabah against the NYS Division of Housing & Community wherein she sought to succeed to her mother's apartment in the Southbridge Towers Development. She had alleged that she lived in said apartment with her mother. Ms. Bourabah was evicted or vacated said apartment in January 2009.
Kay Bourabah testified at the inquest as well. She stated she was Otto Thompson's common law wife and confirmed that they had a child together. She provided a copy of a birth certificate for this child indicating that she had given the subject apartment as her address & Otto Thompson's address at that time; The child's passport listing the subject apartment was also produced. The only other documentation presented was a bank statement, dated February 2009, listing herself as The person with the " Power of Attorney" for Otto Thompson's account.
She conceded that her daughter attends school in New jersey and admitted that she moved into the subject apartment after she had to leave the apartment in Southbridge Towers in January 2009. This would ...