Evicted tenant who regains possession must be given new hearing

December 24, 2013 By Charisma L. Miller, Esq. Brooklyn Daily Eagle
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An evicted tenant who regains possession of his apartment cannot be re-evicted under the original eviction notice, a Brooklyn judge ruled.

Alex Othman was evicted from his apartment on Marcy Avenue for nonpayment of rent. In rent arrears for $4,050, the management company, 598 Marcy Avenue Associates LLC, commenced an eviction proceeding against Othman. A hearing was scheduled for June 26, 2013.

Othman did not appear for the June hearing, and an eviction judgment was filed against him. In October, an eviction warrant was served on Othman and he vacated his apartment.
Once he left his apartment, Othman filed a motion in Brooklyn’s Housing Court asking the management company to show cause as to why he should not be granted re-entry to the building and his apartment. A hearing date was scheduled for Oct. 16, but Othman never showed.

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After a hearing in December, it was revealed that Othman showed up at the Marcy Avenue apartment building on Oct. 16, the day of the last hearing, and handed a money order in the amount of $6,750 to satisfy his rental arrears. Othman gave payment to building superintendent Mamerto Rodriguez, and either with Rodriguez’ permission or without his knowledge, Othman re-entered his apartment.

Upon contacting the management company and being told that it was improper for him to receive monies, Rodriguez informed Othman that he must leave the premises. Othman refused, and the management company commenced a claim, deeming Othman a trespasser. They requested that the original eviction notice be re-issued.

“It simply defies logic that a tenant would return, would tender $6k and not expect to retain possession,” Jamie Lathrop, Othman’s attorney, told the Brooklyn Daily Eagle.

Othman had no reason to think that he was in error when he gave his rent arrears to the superintendent, Brooklyn Housing Court Judge Gary Marton noted in his recent ruling. “[T]he superintendent was known to [Othman] as someone who often collected rent from the tenants at the building,” Marton noted.  

In fact, Othman asserted that a representative from the management company told him that Rodriguez would meet him at the Marcy Avenue apartment to collect the rent arrears.

The management company insisted that Othman was a trespasser and that the payment was to satisfy debt, not a rental payment. Using this logic, the management company contended that the original eviction notice served on Othamn in October be reinstated. Marton ruled that case law prevented such an outcome.

 “Once a warrant of eviction has been executed…If the tenant as a trespasser thereafter re-enters into possession of the premises, the marshal cannot re-execute the warrant of eviction and re-evict him,” Marton wrote, citing case precedent dating from 1974.

Marton ruled that if the management company wishes to have Othman removed from the apartment, it must begin a new eviction proceeding.

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