June 26, 2017

I represented a multifamily building owner in Brooklyn(1) and I was hired to begin a holdover against a Rent Stabilized tenant who had clearly moved out and was utilizing the apartment as an illegal hotel via the Airbnb platform.  

There was no camera, however, to demonstrate whether the guests were, “living within the household of the permanent occupant” (as required by the statute that limits short-term sublets), i.e. there was no camera data to demonstrate whether the tenant was at home when the guests were subletting from him. Nevertheless, my client was very confident because we had identified many Airbnb listings for the apartment where the tenant was offering to rent the “whole apartment”. OK, so, against my better judgment, I agreed to bring the case without first insisting that the client hire a trained and licensed private investigator and install a proper surveillance camera outside of the subject unit. 

This tenant was represented by a clever young tenant’s attorney, for whom I have mountains of respect. This attorney called me and said, “Michelle, the tenant works nights, so he slept in the bed during the day and his guest slept there at night. Thus, he rented the “whole apartment”, while the guest was living within his household.” 

Now that’s clever! 

It also wasn’t true. Our investigation revealed that this tenant had moved out of the Rent Stabilized unit and in with a new partner. But you can’t blame the tenant for taking a shot. He was making a fortune on the apartment as a hotel unit, with its depressed Stabilized rent and no hotel tax, what’s not to love?! 

Yeah, I could have done discovery and depos and vetted this creative excuse in the course of litigating this holdover and I think things would have broken my way and we would have won the case, if the owner wanted to drop bags of money on my legal fees and spend a year plus on the case. 

Um…We settled. 

What’s the Lesson? The lesson is, as I have oft said in these pages – 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. 

• 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. 

• 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. 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 N.Y.2d 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 N.Y.2d 1005, 1007 (1997). 

• 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 N.Y.3d 64, 69 (2004).

• I strongly prefer that the same person:

• install the camera;
• maintain the camera (i.e. changes 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!

Finally, I do truly respect the creative argument offered by this tenant and his attorney. I could see how, if true, such a circumstance might actually prove to be a great defense for a tenant accused of violating the prohibitions against short-term subletting. I will keep it in mind for my next case where I represent a tenant in this situation!

Respectfully submitted,

Michelle Maratto Itkowitz