Plaintiff Ashraf Khodeir and plaintiff Rasha Elgahsh, individually and on behalf of her minor children, ("the Khodeirs") have sued defendants Marwan Sayyed ("Marwan") and Subhi Sayyed ("Subhi"), *333alleging violations of the Fair Housing Act,
I. BACKGROUND
A. Facts
The following facts are undisputed unless otherwise stated.
On November 13, 2013, Subhi Sayyed and his wife deeded an apartment building located at 2150 Chatterton Avenue, Bronx, New York (the "Chatterton Building") to their son, Marwan Sayyed. See Quitclaim Deed (Individual or Corporation) (annexed as Exhibit 10 to Thompson Decl., as Exhibit A to Marwan Aff., and as Exhibit J.
*334to Konopka Opp. Decl.); see also Videotaped Deposition of Marwan Sayyed, dated Oct. 17, 2017 ("Marwan Dep."),
Several months later, in February 2014, plaintiffs Ashraf Khodeir and Rasha Elgahsh signed a month-to-month rental agreement to rent an apartment in the Chatterton Building. See Landlord and Tenant Agreement, dated Feb. 1, 2014 (annexed as Exhibit 11 to Thompson Decl. and as Exhibit L to Konopka Opp. Decl.) ("Rental Agreement"). The Agreement identified Subhi as the "landlord," and his signature appears on the agreement.
Although Marwan was the owner of the Chatterton Building during the term of the Khodeirs' lease, the Khodeirs paid rent to Subhi. See Elgahsh Dep. at 80-93. As the record owner, Marwan was legally responsible for the payment of property taxes on the Chatterton Building, Marwan was aware of this fact, property tax bills arrived at his house in Connecticut beginning in November 2013, and he would either give them to Subhi to pay or would pay them himself if the money from the rentals was insufficient to cover them. See Marwan Dep. at 42-44, 138-42.
On October 16, 2014, a criminal complaint was filed against Ashraf Khodheir ("Khodeir") for assaulting Subhi. See New York City Policy Department Complaint # 2014-043-11912 (annexed as Exhibit G to Affidavit in Support of Motion to Dismiss) (Docket # 24) ("Criminal Complaint"). On October 19, 2014, Subhi obtained a temporary Order of Protection against Khodheir, which ordered Khodheir to stay away from Subhi as well as from Subhi's home and place of employment. See Temporary Order of Protection, dated Oct. 19, 2014 (annexed as Exhibit N to Konopka Opp. Decl.) ("Order of Protection"). After the issuance of the Order of Protection, Khodheir stopped residing in the Chatterton Building and began staying at his workplace in Queens. See Elgahsh Dep. at 144; Deposition of Ashraf Khodeir, dated Nov. 8, 2017 ("A. Khodheir Dep."),
As of November 12, 2014, plaintiffs had failed to pay their electric bill to Consolidated Edison Company of New York ("Con Ed") and the electricity in the apartment was turned off. See Elgahsh Dep. at 141 (noting that Con Ed turned the Khodeirs' electricity off the same day she made a payment to Con Ed with her Citibank card); Rasha M. Elgahsh Citi Card Statement, billing period ending Nov. 24, 2014 (annexed as Exhibit 12 to Thompson *335Decl.) ("Elgahsh Credit Card Statement"), *4 (indicating payment of $243.35 to Con Ed on November 12, 2014); see also Excerpts of Videotaped Deposition of Jannan Sayyed, dated Dec. 17, 2017) ("Jannan Dep."),
In the meantime, on October 27, 2014, Subhi obtained a default judgment in Housing Court against Khodeir, Elgahsh, and a Jane Doe defendant, awarding him a judgment of possession. See Civil Court of the City of New York, County of Bronx Decision and Judgment, Index # 045373/2014 (annexed as Exhibit W to Konopka Opp. Mem.) ("Default Judgment"). A notice of eviction was served upon the Khodeirs on November 19, 2014. See Affidavit of Service Notice of Eviction, dated Nov. 19, 2014 (annexed as part of Exhibit A to Thompson Reply Decl.) ("Notice of Eviction"), *3. The notice was dated *336November 20, 2014, and provided that plaintiffs could be evicted on the sixth business day after the date of the notice, see
At some point in late November 2014, around Thanksgiving, which that year fell on November 27, Elgahsh and her children left their apartment in the Chatterton Building with at least some of their belongings. See Elgahsh Dep. at 144; Excerpts of Videotaped Deposition of Maxine Clarke, dated Dec. 9, 2017 ("Clarke Dep."),
On November 28, 2014, Elgahsh returned to the Chatterton Building, see Response to Plaintiffs' Rule 56.1 Statement (annexed to Konopka Opp. Decl.) (Docket # 136-1), ¶ 9, and was unable to use her key to enter her apartment. See A.K. Dep. at 301; Excerpts of Videotaped Deposition of Fernando Gonzalez, dated Oct. 25, 2017 (annexed as Exhibit 8 to Thompson Decl.) ("Gonzalez Dep."), 13-16. Elgahsh called the police. See Gonzalez Dep. at 10-13. The police contacted the City Marshal and confirmed that Elgahsh was not currently subject to an order of eviction. New York City Police Department - Omniform System Complaint, dated Nov. 28, 2014 (annexed as Exhibit 13 to Thompson Decl.) ("November 28, 2014, NYPD Complaint Report"), *2. Officer Fernando Gonzalez, one of the officers who responded to the call, testified that after attempting to enter into Elgahsh's apartment, he and his partner called a locksmith, and that the apartment was empty when it was opened. Gonzalez Dep. at 13-17; see also November 28, 2014 NYPD Complaint Report, at *2 (stating that signatory, Sgt. Kenny, called a locksmith after attempting to contact landlord at 2110 Watson Ave. residence with "neg results"). He testified that Elgahsh was very upset upon seeing the empty *337apartment and told him that "all her stuff was gone." Gonzalez Dep. at 17; see also November 28, 2014 NYPD Complaint Report, at *2. Gonzalez further testified that he walked alongside the Chatterton Building with Elgahsh and observed furniture, clothing, suitcases, and mattresses, some of which were damaged, including cut-up mattresses and broken dressers. Gonzalez Dep. at 19-20; November 28, 2014 NYPD Complaint Report, at *2. Elgahsh identified these items as her belongings. Gonzalez Dep. at 19. Gonzalez testified that he did not see any electronics, which Elgahsh said were missing.
B. Procedural History
On November 6, 2015, plaintiffs filed a complaint against defendants alleging violations of the Fair Housing Act,
On June 2, 2017, Subhi filed an Amended Answer to the Complaint that included counterclaims for breaches of contract, fraud, and assault. See Defendant Subhi Sayyed's Amended Answer to Amended Complaint and Counterclaims, filed June 2, 2017 (Docket # 57). In an order dated November 1, 2017, this Court dismissed three of Subhi's counterclaims but sustained his counterclaim for breach of contract for nonpayment of rent. See Khodeir v. Subhi,
C. Standard for Summary Judgment
Rule 56(a) of the Federal Rules of Civil Procedure states that summary judgment shall be granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett,
In determining whether a genuine issue of material fact exists, "[t]he evidence of the non-movant is to be believed" and the court must draw "all justifiable inferences" in favor of the nonmoving party. Anderson,
II. DISCUSSION
A. Unlawful Eviction
Plaintiffs seek partial summary judgment on the question of whether Subhi unlawfully evicted them from their apartment in the Chatterton Building. Pl. Mem. at 5-6. They offer two routes to such a ruling. First, plaintiffs argue that Subhi constructively evicted them from their apartment by refusing Con Ed access on November 12, 2014, to restore their electricity. See
Under New York law, "constructive eviction exists where, although there has been no physical expulsion or exclusion of the tenant, the landlord's wrongful acts substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises." Barash v. Pennsylvania Terminal Real Estate Corp.,
The heating of the apartments, the supply of water, all sanitary arrangements and many other things essential to the proper enjoyment of the apartments in the building by the tenants thereof, are regulated and controlled by the landlord, and he owes a duty to the tenant to see that all such matters and appliances are kept in proper order, and if he persistently neglects them, and by reason of such neglect, the tenant is deprived of heat or water, or his apartments are filled with gas or foul odors from the same, and the apartments become unfit for occupancy, the tenant is deprived of *339the beneficial enjoyment thereof, and the consideration for which he agrees to pay rent fails and there is a constructive eviction.
Tallman v. Murphy,
At the outset, we reject Subhi's argument that we should not consider the Khodeirs' claim for constructive eviction because "no such relief, or anything approaching such relief, can be found in the Amended Complaint." Subhi Opp. Mem. at 1. In their Amended Complaint, the Khodeirs allege that defendants engaged in unlawful entry and "evict[ion]" in violation of N.Y.C. Admin Code § 26-521(a)(1), (2), and/or (3). Am. Compl. ¶ 126. Paragraph 2 of § 26-521(a) prohibits "engaging in a course of conduct which interferes with or is intended to interfere with or disturb the comfort, repose, peace or quiet of such occupant in the use or occupancy of the dwelling unit, to induce the occupant to vacate the dwelling unit including, but not limited to, the interruption or discontinuance of essential services."Id. This section thus prohibits conduct that amounts to constructive eviction. The Amended Complaint describes in detail the plaintiffs' version of the events, and alleges that "[d]ue to the lack of electrical power and because Subhi Sayyed refused to grant Con Ed technicians access to restore electricity, the premises were unfit for human habitation," thus forcing the Khodeirs "to temporarily relocate to a hotel for several days." Am. Compl. ¶ 77. While Subhi is correct that the Khodheirs do not include a cause of action explicitly labeled "constructive eviction" in the amended complaint, "under the liberal rules of federal pleading, the label of a claim is not dispositive." BLT Rest. Group LLC v. Tourondel,
Here, viewing the facts in the light most favorable to Subhi, the undisputed facts establish that the Khodeirs were constructively evicted from their apartment by Subhi's refusal to allow Con Ed to turn on their electricity. The Rental Agreement specifically instructed the Khodeirs to "[g]o to Con Edison to turn on light and gas." Rental Agreement. It is undisputed that Con Ed required Subhi's permission and assistance to access the portion of the basement where the electric breakers were located. See Elgahsh Dep. at 141-42; Elhusseiny Dep. at 57; Subhi Dep. at 148-49. Con Ed records and deposition testimony from a Con Ed representative establish that on November 12, 2014, the Khodheirs paid an amount towards their arrears sufficient to have their electricity turned back on. See Con Ed Records Ex. 14, at *11;
*340Merritt Dep. at 93; see also Elgahsh Credit Card Statement, at *4 (indicating payment of $243.35 to Con Ed on November 12, 2014).
A Con Ed record shows that a Con Ed representative spoke with the landlord of the Chatterton Building to obtain access to the building to turn back on the Khodheirs' electricity on November 12, 2014. See Con Ed Records Ex. 15, at *6. These records reflect that the "L/L" (that is, the landlord) stated to Con Ed that he would not provide access to the building, that nobody should be living in the apartment, and that he would sue Con Ed if they tried to provide service.
The deposition testimony of Khaled Elhusseiny and Rasha Elgahsh also supports the constructive eviction claim. At the time of the alleged constructive eviction, Khaled Elhusseiny lived in the basement of the Chatterton Building and paid reduced rent in exchange for helping Subhi with the maintenance of the building. See Janan Dep. at 68. Elhusseiny testified that when Con Ed ultimately came to turn the Khodheirs' electricity back on, Elgahsh came and woke him up and asked him whether he had a key to open the door to the room that contained the electric breakers. See Elhusseiny Dep. at 56. Elhusseiny testified that he told Elgahsh that he did not have a key and then called Subhi. Id. at 56-57. Elhusseiny stated that Subhi told him that he was in Connecticut and would be back Monday. Id. at 57. Elhusseiny testified that he did not know for certain whether Con Ed ever turned the Khodeirs' electricity back on. See id. at 58. Rather, when Subhi returned from Connecticut, he told Elhusseiny that "the electricity company they didn't come" and that the Khodeirs "didn't pay the bill for the electricity." Id.
The argument section of Subhi's brief is devoid of any explanation as to why Subhi's refusal to provide Con Edison with access to the basement would not constitute a constructive eviction. Subhi refers to the statements in Con Ed record as "inadmissible hearsay," Subhi Opp. Mem. at 6, but he gives no explanation as to why this is so. Subhi does not deny that the document itself is admissible as a business record. See Fed. R. Evid. 803(6) ; see also Con Ed Records Ex. 15, at *2 (certifying that the records provided "are true copies of records maintained by Consolidated Edison Company of New York, Inc., in the normal course of business"). Nor does he argue that the statements of the landlord recounted in the Con Ed document would not be admissible against him as the statement of a party-opponent. See Fed. R. Evid. 801(d)(2). Instead, Subhi's brief points only to Elhusseiny's deposition testimony in which Elhusseiny testified that Subhi was in Connecticut at the time Con Ed came. Subhi Opp. Mem. at 6 (citing Elhusseiny Dep. At 59).
While Subhi has not made the argument, and it is certainly not the Court's job to find evidence to support Subhi's arguments, see CILP Associates, L.P. v. PriceWaterhouse Coopers LLP,
Accordingly, based on the evidence in the record, a reasonable jury would have to conclude that Subhi prevented Con Ed from accessing the electric breakers in the basement. The evidence also shows that the Khodeirs obtained a stay in their eviction proceedings, which gave them the legal right to stay in their apartment at least through the order's return date of December 12, 2014. See OSC, at *2; see also November 28, 2014, NYPD Complaint Report (noting that police called the City Marshal on November 28, 2014, and confirmed that Elgahsh had not yet been evicted). Subhi offers no argument that these facts, if established, do not show a constructive eviction. Thus, plaintiffs are entitled to summary judgment on this issue.
B. Vicarious Liability Against Marwan
We next consider whether Marwan, as owner of the Chatterton Building in November 2014, is vicariously liable for any torts or Fair Housing Act violations committed by Subhi with respect to plaintiffs' tenancy. Plaintiffs and Marwan have both moved for summary judgment on this issue. Plaintiffs argue that Marwan is liable either because Subhi was his employee or because Subhi was his agent. See Pl. Mem. at 10. Because we find that plaintiffs are entitled to summary judgment that Subhi was Marwan's agent, it is not necessary to reach the question of whether Subhi was Marwan's employee.
Under New York common law, "[a] principal-agent relationship is established by evidence that one person - the principal - has allowed another to act on his or her behalf, subject to his or her control, and evidence of consent by the other person - the agent - to so act." Zeus Constr. Servs., LLC v. Fame Constr., Inc.,
"Actual authority is the result of the principal's consent manifested to the agent." C.E. Towers Co.,
By contrast,
apparent authority is entirely distinct from authority, either express or implied, and arises from the written or spoken words or any other conduct of the principal which, reasonably interpreted, causes a third person to believe that the principal consents to have an act done on his behalf by the person purporting to act for him.
Minskoff v. Am. Exp. Travel Related Services Co., Inc.,
The Supreme Court has held that, under the Fair Housing Act ("FHA"), a principal may be vicariously liable for the acts of an agent because "when Congress creates a tort action, it legislates against a legal background of ordinary tort-related vicarious liability rules and consequently intends its legislation to incorporate those rules." Meyer v. Holley,
The Second Circuit's description of a principal's liability under the Fair Housing Act mirrors New York law. Thus, citing (among other authorities) the Restatement (Second) of Agency, the Second Circuit has held that the existence of an agency relationship requires proof of three elements: "(1) the manifestation by the principal that the agent shall act for him; (2) the agent's acceptance of the undertaking; and (3) the understanding of the parties that the principal is to be in control of the undertaking." Cleveland,
Here, considering all evidence in the light most favorable to Marwan, the uncontested evidence establishes that during the relevant time period, Marwan implicitly granted Subhi actual authority to *343conduct all aspects of management of the Chatterton Building.
In 2014, Marwan was the owner of the Chatterton Building. See Quitclaim Deed. The owner of property enjoys certain rights, such as the right of possession, see Wood v. Fisk,
Marwan gives no testimony that he delegated someone other than Subhi the authority to engage in any of these activities. It is undisputed, however, that Subhi collected rents, signed the lease as a "landlord," and otherwise "t[ook] care of the property." See, e.g., Marwan Dep. at 68, 123-26; Elgahsh Dep. at 80-93 (recounting how Elgahsh paid rent to Subhi); Marwan Aff. ¶¶ 9-14 ("Following the title transfer ... Subhi continued to manage Chatterton just as he had before the title conveyance."); Rental Agreement (identifying Subhi as the landlord). This provides powerful circumstantial evidence that Subhi was not proceeding as a rogue actor but was instead acting as an agent of the only person who could otherwise permissibly engage in these activities: Marwan, the actual owner of the building.
In his deposition testimony and his briefing, Marwan repeatedly asserts that there was no "agreement" between him and his father regarding the Chatterton Building. See Marwan Dep. at 43 ("We didn't have an agreement. Just if the bills came in, he would pay them.");
This is not a case where Marwan was unaware that he was the owner of the building, let alone unaware of his responsibilities as the owner. For example, Marwan acknowledged that he received property tax bills for the Chatterton Building in 2013 and 2014, and occasionally paid them when his father was short. Marwan Dep. at 137-42.
While Marwan refused to acknowledge the existence of any "agreement," he testified that when his father transferred title to the Chatterton Building to him on November 13, 2013, Marwan knew that his father "would still take care of the property,"
The only reasonable inference to be drawn from this evidence is that Marwan assented to an arrangement under which Subhi would continue to manage the building as he always had and would keep the rent as income for himself. Even if a jury found that Marwan was entirely silent, and merely accepted the arrangement proposed by his father, the fact that Marwan permitted his father to do all the acts that could only be done with the authority of the owner of property-and that Marwan did not protest his father's doing so-would be enough to show that he assented to his father's acting as his agent. As is stated in the Restatement (Third) Of Agency § 1.03, "[s]ilence may constitute a manifestation [of assent to agency] when, in light of all the circumstances, a reasonable person would express dissent to the inference that other persons will draw from silence. Failure then to express dissent will be taken as a manifestation of affirmance."
Marwan notes that in Cleveland v. Caplaw Enterprises,
Marwan's citation of Glover v. Jones,
United States v. Hylton,
Mrs. Hylton owns 5 Townline Road. Yet, she had no involvement in renting the house or in interacting with the renters .... She had Mr. Hylton handle all aspects of the rental. Therefore, the first two elements of agency are satisfied: Mrs. Hylton gave Mr. Hylton authority to act on her behalf and Mr. Hylton accepted such authority.
The only issue that remained to be discussed in Hylton was whether there was an "understanding of the parties that the principal is to be in control of the undertaking"-the third element of agency. The Hylton court noted that Mr. Hylton discussed his actions with Mrs. Hylton and that Mrs. Hylton signed the leases in question.
Recognizing that Cato v. Jilek,
Marwan also notes that in Cato the vicariously liable wife "deferred" to her husband's decisions regarding the question of apartment rentals. Id. at 13. Marwan argues that "[i]n order to have deferred to George [the husband], Beverly [the wife], by definition, must have had [sic] abdicated her right to input in the decision making process." Id. Marwan argues that by contrast, in this case, "there is no evidence that Marwan deferred to Subhi" because "Marwan had no right to make decisions, and thus could not have abstained from asserting such right." Id. Contrary to Marwan's argument, though, as the sole owner of the Chatterton Building, Marwan had the exclusive right to make decisions about the building. He provides no evidence that he was unable to exercise that right.
Finally, Marwan asks that the transfer of the Chatterton Building be viewed as "a formal, written declaration of trust, or an express reservation of life use." See Marwan Mem. at 16. However, Marwan provides no authority supporting his contention that we may simply ignore Marwan's legal ownership interest and we are aware of none.
Accordingly, to the extent Subhi is found liable in tort or under the Fair Housing Actions for his actions related to his dealings with plaintiffs in the operation of the Chatterton Building, Marwan is vicariously liable as the principal.
III. CONCLUSION
For the reasons stated above, this Court grants in part and denies in part Plaintiffs' partial motion for summary judgment (Docket # 121), and denies Defendant Marwan's motion for summary judgment (Docket # 125).
SO ORDERED.
Notice of Motion for Partial Summary Judgment, filed July 27, 2018 (Docket # 121) ("Pl. Not. Mot."); Memorandum of Law in Support of Plaintiffs' Motion for Partial Summary Judgment, filed July 27, 2018 (Docket # 122) ("Pl. Mem."); Declaration of Stephen C. Thompson in Support of Plaintiffs' Motion for Partial Summary Judgment, filed July 27, 2018 (Docket # 123) ("Thompson Decl."); Local Rule 56.1 Statement of Undisputed Facts in Support of Plaintiffs' Motion for Partial Summary Judgment, filed July 27, 2018 (Docket # 124); Notice of Motion for Summary Judgment, filed July 27, 2018 (Docket # 125) ("Marwan Not. Mot."); Memorandum of Law in Support of Motion of Defendant Marwan Sayyed for Summary Judgment, filed July 27, 2018 (Docket # 126) ("Marwan Mem."); Affidavit of Marwan Sayyed in Support of Motion for Summary Judgment, filed July 27, 2018 (Docket # 127) ("Marwan Aff."); Statement of Material Facts Pursuant to Local Rule 56.1, filed July 27, 2018 (Docket # 128) ("Marwan 56.1 Statement"); Plaintiffs' Memorandum of Law in Opposition to Defendant Marwan Sayyed's Motion for Summary Judgment, filed Sept. 18, 2018 (Docket # 132) ("Pl. Opp. Mem."); Declaration of Stephen C. Thompson in Support of Plaintiffs' Memorandum of Law in Opposition to Defendant Marwan Sayyed's Motion for Summary Judgment, filed Sept. 18, 2018 (Docket # 133) ("Thompson Opp. Decl."); Plaintiffs' Response to M. Sayyed's Statement of Material Facts Pursuant to Local Rule 56.1, filed Sept. 18, 2018 (Docket # 134) ("Pl. Response to M. Subhi's 56.1"); Memorandum of Law in Opposition to Plaintiffs' Motion for Partial Summary Judgment, filed Sept. 18, 2018 (Docket # 135) ("Marwan Opp. Mem."); Declaration of Michael Konopka in Opposition to Plaintiffs' Motion for Partial Summary Judgment, filed Sept. 18, 2018 (Docket # 136) ("Konopka Opp. Decl."); Counter Statement of Defendant Marwan Sayyed in Opposition to Plaintiffs' Rule 56.1 Statement of Undisputed Facts, filed Sept. 18, 2018 (Docket # 137) ("Marwan Counter 56.1"); Memorandum of Law in Opposition to Plaintiffs' Motion for Partial Summary Judgment, filed Sept. 19, 2018 (Docket # 138) ("Subhi Opp. Mem."); Reply Memorandum of Law in Support of Motion of Defendant Marwan Sayyed for Summary Judgment, filed Oct. 12, 2018 (Docket # 140) ("Marwan Reply Mem."); Plaintiffs' Reply in Support of Their Motion for Partial Summary Judgment, filed Oct. 12, 2018 (Docket # 141) ("Pl. Marwan Reply Mem."); Plaintiffs' Reply in Support of Their Motion for Partial Summary Judgment, filed Oct. 12, 2018 (Docket # 142) ("Pl. Subhi Reply Mem."); Declaration of Stephen C. Thompson in Support of Plaintiffs' Memorandum of Law in Reply in Support of Their Motion for Partial Summary Judgment, filed Oct. 12, 2018 (Docket # 143) ("Thompson Reply Decl."); Declaration of Stephen C. Thompson in Further Support of Plaintiffs' Motion for Partial Summary Judgment, filed Oct. 25, 2018 (Docket # 146) ("Thompson Supp. Decl."); Letter from Michael Konopka, filed Nov. 8, 2018 (Docket # 147) ("Konopka Letter"); Letter from Stephen Thompson, filed Nov. 16, 2018 (Docket # 149) ("Thompson Letter"); Declaration of Stephen C. Thomspon in Further Support of Plaintiffs' Motion for Partial Summary Judgment, filed Nov. 16, 2018 (Docket # 150) ("Thompson Housing Court File Decl.").
Excerpts of Marwan Sayyed's deposition are contained in the record as Exhibit 2 to the Thompson Decl.; Exhibit D to the Marwan Aff.; ECF page *76-81 of the Marwan 56.1 Statement; Exhibit A to the Thompson Opp. Decl.; Exhibit C to the Konopka Opp. Decl.; and at ECF pages *10-12 of the Marwan Counter 56.1.
Excerpts of Elgahsh's deposition are contained in the record as Exhibit 4 to the Thompson Decl. and as an attachment to the Marwan's 56.1, at ECF pages *24-37.
Excerpts of Ashraf Khodeir's deposition appear at Exhibit 5 to the Thompson Decl.; as Exhibit F to the Konopka Opp. Decl.; Exhibit G to the Thompson Reply Decl.; and ECF pages *16, *54-56 to Marwan Counter 56.1.
Excerpts of Janan Sayyed's deposition appear as Exhibit 3 to Thompson Decl.; Exhibit D to the Konopka Opp. Decl; and Exhibit B to the Thompson Reply Decl.
During his deposition, Subhi testified that while Con Ed did routinely contact him for access to the basement of the Chatterton Building to turn a tenant's electricity on or off, he could not recall whether Con Ed had contacted him with respect to the Khodeirs. Videotaped Deposition of Subhi Sayyed, dated Nov. 16, 2017 (excerpts of Subhi's deposition testimony are contained in Exhibit 1 to the Thompson Decl.; Exhibit B to the Thompson Opp. Decl.; Exhibit B to the Konopka Opp. Decl; Exhibit H to Thompson Reply Decl.; and at ECF pages *29-30, and *62-63 to Marwan's 56.1 Counterstatement) ("Subhi Dep."), 148-49.
Excerpts of Calvin Merritt's deposition appear as Exhibit 9 to Thompson Decl. and Exhibit O to the Konopka Opp. Decl.
Subhi argues that "any allegation that Subhi refused to provide Con Edison with access to the basement is inadmissible hearsay ...." Subhi Opp. Mem. at 6. For the reasons stated in section II.A, below, we reject this argument.
Excerpts of A.K.'s deposition appear in Exhibit 6 to Thompson Decl. and Exhibit G o the Konopka Opp. Decl.
Excerpts of Maxine Clarke's deposition are annexed as Exhibit U to the Konopka Opp. Decl.; as Exhibit I to the Thompson Reply Decl; and as ECF pages *32-44, *58-61 to Marwan's 56.1 Counterstatement.
Excerpts of Khaled Elhusseiny's deposition appear as Exhibit 7 to the Thompson Decl.; Exhibit H to the Konopka Opp. Decl.; Exhibit E to the Thompson Reply Decl.; and as ECF pages *45-51 of Marwan's 56.1 Counterstatement.
Additionally, for there to be a constructive eviction, the tenant must abandon possession following the acts constituting the constructive eviction with "reasonable promptness." Leider v. 80 William St. Co.,
Subhi does not argue that the landlord referred to in the record is someone other than himself. Nor could he, given that all of the evidence in the record demonstrates that Subhi identified himself as the landlord of the Chatterton Building in 2014, see, e.g., Rental Agreement (identifying Subhi as the landlord); Marwan Aff. ¶¶ 10, 13 (noting that after the conveyance of the Chatterton Building, Subhi "executed rental agreements as landlord" and "[d]uring 2013, 2014 and 2015 ... exercised sole and exclusive dominion and control over ... Chatterton"), and that he had done so specifically to Con Ed, see Janan Dep. at 65-66 (stating that Con Ed addressed a letter regarding turning the Khodheirs' electricity off to Subhi and that he let Con Ed into the building to turn the electricity off); Subhi Dep. at 148-49 (noting that Con Ed had contacted him on previous occasions to access the building to turn electricity on or off).
Subhi's brief refers Elhusseiny's testimony that Subhi had said he would not oppose any action by the "government." Subhi Op. At 6. But because Subhi's statement is being offered by Subhi himself, it is not admissible as a statement of a party opponent under Fed. R. Evid. 802, and Subhi offers no other explanation for its admissibility.
Early in his deposition testimony, Marwan denies receiving property tax bills for the Chatterton building in either 2013 or 2014. Marwan Dep. at 42. However, later in his deposition testimony, upon examining a Property Tax Bill Quarterly Statement from 2014 sent to his address in Connecticut, id. at 139, Marwan acknowledged that the tax bills began being sent to him after the Chatterton Building was deeded to him, see id. 140-41.