In a holdover proceeding entitled 46 Downing Street, LLC v. Thompson, Mr. Thompson attempted to be “restored to occupancy” to his unit #1C at 46 Downing Street after being incarcerated in prison.

The issue is that the apartment has been occupied by Ms. Watabe for the past three years. The petitioner, 46 Downing Street, LLC, filed a holdover proceeding against Mr. Thompson for subletting the apartment, while he was in prison. The court ruled in favor of the petitioner, and Mr. Thompson was evicted from the apartment.

Upon Mr. Thompson’s release from prison, he filed a pro se post-eviction order. From there, the appellate term ruled in favor of the respondent, arguing that his imprisonment was a reasonable excuse for his absence from the proceedings. The respondent then filed a motion to dismiss the petition, which Judge Wendt granted, as the petitioner did not provide the respondent the necessary thirty days to end the tenancy. The petitioner argued that he had the right to rent the apartment to Ms. Watabe at market-rate because of Mr. Thompson’s incarceration. The respondent’s argument was that he lived in the apartment since he was seven years old and intended to bring his teenage daughter to the United States from Kuwait to live with him. The apartment is also affordable for the defendant at $450 per month, as his income is $800 per month from social security. Ms. Watabe claims that she intends to purchase a home in Manhattan and is concerned that her lease will be terminated because of the lawsuit.

The respondent’s incarceration “is not enough to defeat the tenancy”. In1970, the Court of Appeals ruled, in Corr v. Westchester County Dept. Of Social Services, that “a patient or inmate of an institution does not gain or lose a residence or domicile, but retains the domicile he had when he entered the institution”. Furthermore, the fact that the landlord rented the apartment Ms. Watabe at a reduced rate of $2,000 illustrated their belief that Mr. Thompson would return to the apartment.

The court awarded Mr. Thompson possession of the apartment. This ruling, however, does not prevent Ms. Watabe from suing the petitioner for any damages, in regards to her lease.

The case was cited as 46 Downing Street v. Thompson, 81450/09, NYLJ 1202732411218, at *1 (Civ., NY, Decided July 25, 2015).

This article was written by Stephen Tsamblakos, a legal intern at Moulinos & Associates LLC.