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Regaining Possession of a Rent Stabilized Apartment from a Tenant Who Moved to Oregon Four Years Ago – With Just a Notice (and Mountains of Camera Data!)

 January 31, 2021

Whenever a potential landlord client comes to me and tells me that they have a “slam dunk” non-primary residence case I always roll my eyes. I always ask the same question, “Do you have cameras? No, not the security camera in the front of the building that takes bad pictures of everyone as they come and go and that overwrites in 30 days.” If they have no cameras, I send them to a reputable NYS licenses private investigator who knows how to do cameras legally, ethically, and in such a way that the data is admissible in court. If they say they are not willing to do the camera work, I decline the case.

The first part of this post will be my standard stuff on cameras in Housing Court cases. The second part of the post will be the story of me, on behalf of a residential landlord client, regaining possession of a rent stabilized apartment from a tenant who moved to Oregon four years ago – with just a notice (and mountains of camera data!)

Cameras


Why cameras?

There are certain cases that I refuse to bring on behalf of a landlord-client if the client has not properly installed cameras outside of the subject apartment. These include: 

·         non-primary residence cases

·         illegal sublet cases

·         illegal short-term sublet cases (like Airbnb)

·         succession rights cases, and

·         many types of nuisance cases.

Such cases are almost un-winnable without a camera.

Let us consider a non-primary residence case, for example. In the Rent Stabilized context, a tenant must reside in their apartment as their primary residence. Therefore, the first thing that a landlord needs to prove in a non-primary residence case is that the tenant is NOT there. How could a landlord prove that the tenant is not there? The following is a sample colloquy between a lawyer and a landlord-client on this topic. 

Landlord:  The tenant in B5 no longer lives in the apartment as his primary residence.

Lawyer:  How do you know that tenant does not live in the subject apartment anymore?

Landlord:  Because he isn’t there.

Lawyer:  I heard you say that already. But how do you know? What is the source of your knowledge?

Landlord:  The super.

Lawyer:  The super lives on the same floor as the tenant and is home all day long?

Landlord:  No the super doesn’t live on tenant’s floor and he is obviously out and about all day.

Lawyer:  The super lives in the building at least?

Landlord:  No, the super lives in another building.

Lawyer:  OK, so the super attends to only the tenant’s building?

Landlord:  No, the super cares for ten buildings, tenant’s building is one of the ten.

Lawyer:  So, if the super works 40 hours per week, and tenant’s building is one of ten, at best he or she spends about 4 hours per week in tenant’s building?

Landlord:  I don’t know; maybe more.

Lawyer:  So, what is the super (who is already a biased witness because he is testifying on behalf of his employer) going to testify to, that in the four hours per week that he is in the building he never sees tenant around?

Landlord:  Something like that, I guess.

Lawyer:  Then you lose. Because tenant will come in and testify that she lives in the apartment, and you have not done anything significant to discredit her.

Landlord:  Well a private investigator got me a printout that shows that someone with the same name as tenant owns a house in the Catskill Mountains.

Lawyer:  What name is that?

Landlord:  “Jane Smith”.

Lawyer:  That is a very common name. Does anything else in the report connect tenant to that address?

Landlord:  No.

Lawyer:  Even if Tenant John Smith of Apt. B5 does own that house in the Catskill Mountains, what are you going to do when Smith says this is just a summer home she only goes to occasionally and she rents it out to others for investment purposes?

Landlord:  Well, I just know tenant doesn’t live there. I just know it.

Lawyer:  Does the super ever see anyone else coming and going from the subject apartment?

Landlord:  No.

Lawyer:  Has the tenant had any repairs done in the apartment recently?

Landlord: 18 months ago, she complained of a leak and we went in and fixed it.

Lawyer:  Well that suggests to me that tenant lives there.

Landlord:  I just know tenant doesn’t live there. I just know it.

Lawyer:  Your psychic knowledge or strong hunch is NOT admissible evidence. You need ADMISSIBLE PROOF in a court. Or you lose.

A picture (or a video) is worth a thousand words, or a thousand guesses and speculations.

Cameras are cheaper than legal fees. If a landlord is not willing to pay for cameras, he is not going to be willing to pay legal fees for a protracted trial that landlord is likely to lose.

Below are two recent examples from Housing Court. Each of these cases may well have had a different outcome if the landlord attorneys had insisted, as I do, that their landlord clients first obtain camera data.

(1)  Grandson Found Entitled to Grandmother's Rent-Controlled Tenancy; Holdover Suit Dismissed; The court found Occupant credibly testified he lived in the apartment since birth as tenant of record raised him. Occupant’s testimony could not be challenged. NYLJ 1549173362NY6044717/

(2)  Tenant submitted documents to support his alleged primary residency at the premises, including mobile bills and a driver’s license reflecting the premises' address. Landlord did not meet its burden to establish Tenant did not maintain his primary residence at the premises and did not prove Tenant did not reside at the premises during the relevant time frame. E-Z pass records were not found probative as Tenant had a girlfriend in NJ he visited, while documentary evidence supported his testimony he resided at the premises but shopped in NJ. Landlord's witnesses were unable to credibly testify that Tenant did not reside at the premises as his primary residence. NYLJ 1576493344NY8222015/

How to do cameras correctly.

Cameras should be set up by a professional licensed private investigations and/or security firm. The more experience the company has with this type of work, the better.

First, the camera must be set up so that it does NOT look into the tenant’s apartment when the door is opened, thus invading tenant’s privacy. See more about that below.

The camera must be set up so that it gets a clear view of the subject apartment, but not so that multiple apartments are under surveillance, because then there will be a lot of unnecessary footage to review.

The camera should be motion activated; otherwise, it will be difficult to review all the footage.

Landlord’s counsel needs to work closely with the surveillance camera technologists to streamline both the technical and legal process involved with utilizing cameras, or the evidence obtained from the cameras might not be admissible. A videotape must be “authenticated” before it can be used as evidence in a court proceeding. Testimony from someone who has knowledge of the circumstances and who actually reviewed the footage is usually sufficient. See Zegarelli v. Hughes, 3 NY3d 64, 69 [2004] (A surveillance videotape of plaintiff, sought to be introduced by defendant, was properly authenticated where defendant's investigator testified that he had observed plaintiff; that the exhibit shown to him was a copy of a videotape he had made of the observation; that the tape fairly and accurately showed what he had observed; and that the tape had not been edited at all. Testimony from the videographer that he took the video, that it correctly reflects what he saw, and that it has not been altered or edited is normally sufficient to authenticate a videotape.)

I strongly prefer that the same person:

·         install the camera;

·         maintain the camera (i.e. change its batteries);

·         retrieve the data card from the camera and take it to where it will be stored;

·         superintend the storage system;

·         review the footage; and

·         produce a detailed log of what each incident reveals.

This person is your witness in court!

Landlord’s counsel can see why attending to the details of this type of thing BEFORE a case gets started is vital to bringing a healthy case. Tenant’s counsel can also see how useful it is when landlord’s counsel leaves this important evidentiary work unattended to until trial.

Cameras Legality

Courts in New York have ruled that tenants have an expectation of privacy inside their apartment behind the closed entry door. Otero v. Houston Street Owners Corp., 2012 WL 692037 [Sup. Ct. NY. Co.]; see also People v. Mercado, 68 NY2d 874 [1986] (“Once the door is closed, an individual is entitled to assume that while inside he or she will not be viewed by others”).

On the other hand, New York courts have found that residents in multi-family buildings lack a reasonable expectation of privacy in the building’s common areas, such as lobbies, stairwells, and hallways because it is accessible to other persons. People v. Funches, 89 NY2d 1005, 1007 [1997].

Back to Our Story


In our story a potential residential landlord client came to me three years ago with the “slam dunk” case. The tenant had allegedly moved to Oregon[fn1] two years ago (at that time). I insisted on cameras as a prerequisite for me taking the case and referred him to a NYS licensed private investigator who does this stuff correctly. The landlord, like so many before him and many whom I assume will come after him, never called me again. That is not for another 30 months! The landlord popped back up again over two years later. I was not even sure who it was when the email came in, “Michelle we are ready for the case now…” My response -“What case? I get 600,000 emails a day, who are you?” Well, unbeknownst to me, this guy actually took my advice, called the PI, and ran the camera for over two years, in anticipation of the tenancy’s next Golub period (non-renewal window). Part of the delay was occasioned because landlord needed to properly renew the lease. In any event, in the meantime, landlord obtained 30 months of top notch computer data! Which was fascinating.

Here is part of what the notice of non-renewal I drafted stated:

a.    Tenant was only seen at the Premises for one (1) day (March 25, 2019) during the entire 915 Surveillance Period, a period of 30 months (two and a half years).

b.    A man designated as “Subject 1” was seen in the Premises on approximately 97 days of the Surveillance Period (11% of the time). Upon information and belief, Subject 1 is not Tenant. These are pictures of Subject 1 pulled from the surveillance video: [photo omitted]

c.    On two occasions (May 20, 2018 and June 1, 2018), a person came to the door of the Premises and Subject 1 handed him what appeared to be stacks of mail. On March 25, 2020, a woman, believed to be another tenant of the subject building, let herself into the Premises and came right back out again with what appeared to be a pile of mail.

d.    No one other than Subject 1 has resided in the Premises since at least May 30, 2018. The Premises has been completely empty for 818 days of the Surveillance Period (approximately 90% of the time).

I sent the Notice of Non-Renewal. Three days later, the tenant called me from Oregon. Delightful gentleman. I advised him repeatedly (both orally and in writing) to get an attorney. He declined. He was done with New York City, he had a great job in Oregon, and as the camera showed, he was having trouble subletting the subject NYC apartment. He did not wish to fight. Landlord refunded tenant’s security deposit and gave him a general release. Tenant mailed us the keys and a surrender affidavit.

I know what you are going to ask. Would we have gotten the same result without 30 months of camera data? Maybe. Maybe not. Based on my decades of experience doing this – I say probably not. Certainly, we did not need thirty months! But it was great to have it. A year is usually fine.

If all of that is not enough, I leave you with one more reason that a landlord should never bring a non-primary residence case without a camera. I heard a story from a colleague where the camera quickly revealed that the tenant suspected of nonprimary residence actually lived full time in the apartment. He lived alone and worked nights. That is why the building super never saw the guy coming or going during the day.

Respectfully submitted,

Michelle Itkowitz

[fn 1 = Some details changed to protect the innocent.]

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