Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, February 2, 2018

Borah, Goldstein, Altschuler, Nahins & Goidel, P.C. (Virginia K. Trunkes) for appellant.

Brooklyn Legal Services (Shannon Karam and Jane Landry-Reyes of counsel) for respondent.

Ordered that the final judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition.

After he had been denied entry to a room he shared in a supportive living facility operated by Acacia Network for individuals with substance abuse problems (see generally 14 NYCRR ch 21, part 800 et seq.), petitioner commenced this unlawful entry and detainer proceeding (RPAPL 713 [10]) seeking to be restored thereto. Acacia answered, asserting that it was entitled to use self-help to regain possession since petitioner was a licensee and, in addition, that petitioner had signed a "Resident Attestation" in which he had agreed that he had no tenancy rights to the premises. In response, petitioner argued that, pursuant to RPAPL 711 and Administrative Code of the City of New York § 26-521, Acacia had been required to commence a summary proceeding to remove him. The Civil Court held that petitioner was a tenant, that the "Resident Attestation" was unenforceable and that Acacia was required to commence a summary proceeding to remove petitioner, and awarded petitioner a final judgment of possession.

In the "Resident Attestation," petitioner acknowledged that he had no tenancy rights. While "this court is not obligated to accept the parties' characterization that [petitioner] was a licensee rather than a tenant (see 1 [Robert F.] Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 4:1, at 170-173 [4th ed])" (Federation of Orgs., Inc. v Bauer, 6 Misc 3d 10, 12 [App Term, 2d Dept, 9th & 10th Jud Dists 2004]), here, Acacia did not grant petitioner exclusive dominion and control of a specifically identified portion of the premises, nor were there{**59 Misc 3d at 12} any locks on any of the dormitory-style rooms. Thus, petitioner is a licensee and not a tenant (see id.; see also David v #1 Mktg. Serv., Inc., 113 AD3d 810 [2014] [residents of a three-quarter house were licensees, not tenants]; Coppa v LaSpina, 41 AD3d 756 [2007] [residents of a facility providing mentally ill homeless adults with housing and rehabilitative services were licensees]). Since a licensee does not have "possession," he cannot maintain an unlawful entry and detainer proceeding (RPAPL 713 [10]; see Napier v Spielmann, 196 NY 575 [1909], affg on op of Houghton, J. 127 App Div 567 [1908]; P & A Bros. v City of N.Y. Dept. of Parks & Recreation, 184 AD2d 267 [1992]; Korelis v Fass, 26 Misc 3d 133[A], 2010 NY Slip Op 50122[U] [App Term, 1st Dept 2010]).

Contrary to the Civil Court's determination, the unlawful eviction provisions of Administrative Code of City of NY § 26-521 do not operate to change a license or other nonpossessory interest into a possessory interest. While these provisions may "subject a violator to criminal liability and civil penalties, [they] do not provide an avenue through which [an occupant] can be restored to possession of an apartment (see Barclay v Natoli, NYLJ, Dec. 30, 1998 [App Term, 2d Dept, 2d & 11th Jud Dists])" (Clarke v Copenhagen Leasing, L.P., 48 Misc 3d 27, 29 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

The Civil Court also invoked RPAPL 711 in support of its determination that petitioner could maintain this proceeding. RPAPL 711 provides in pertinent part: "A tenant shall include an occupant of one or more rooms in a rooming house . . . who has been in possession for thirty consecutive days or longer." As noted above, petitioner was not in "possession" of a room, and the supportive living facility in which he shared a room is not a "rooming house." In any event, like the Administrative Code unlawful eviction provisions, RPAPL 711 does not operate to convert a license into a possessory interest (see generally Sasmor v Powell, 2015 WL 5458020, 2015 US Dist LEXIS 124461 [ED NY, Sept. 17, 2015, No. 11 Civ 4645(KAM)(JO)]).

The Civil Court's reliance upon Cooper v Back on Track Group, Inc. (45 Misc 3d 623 [Civ Ct, Kings County 2014]) in holding that the "Resident Attestation" is unconscionable and unenforceable as a waiver of petitioner's rights under the RPAPL and the Administrative Code was also misplaced. Cooper failed to address David (113 AD3d 810) and Coppa (41 AD3d 756), both of which hold that a waiver of rights under RPAPL 711 and Administrative Code of City of NY § 26-521 is {**59 Misc 3d at 13}not unconscionable and is enforceable. Although Coppa, David, and Bauer all arose in slightly different contexts, they unequivocally establish that petitioner in the instant case, like residents in three-quarter housing who are not given exclusive dominion and control of a part of the premises, are licensees, and that "Resident Attestations" which waive any claim of tenancy are not per se invalid and unenforceable (contra Shearin v Back on Track Group, Inc., 46 Misc 3d 910 [Civ Ct, Kings County 2014]).

Accordingly, the final judgment is reversed and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition.

Pesce, P.J., Weston and Aliotta, JJ., concur.