223 Centre Street, New York, NY 10013
Genuine Lease:
- term: 10-year lease (Jan 15, 1993 thru Dee 3 1 2002) +5-year option to renew at "mkt rent" (thru 2007)
- rent: $1,775/month with increases of 3% per year starting in the 4th year
- premises: 223 Centre St (at Grand St -SW corner) "First Floor (entire)"
- Tenant: TRAN HAN HO, or a corporate assignee (signed by Mr. Tran)
4 originals of what was later referred to as the "undisputed lease" were executed by the parties on Dee 11, 1992. (Copies of the 1st page of 3 of those originals are enclosed)
There were no problems for 6 1/2 years. The Tenant paid the rent by check, having incorporated after signing the lease as "Sun Mei Inc."
Suddenly, in October, 1999, (7th year) the Tenant's regular rent check (for $1,883) was rejected, claiming a "2nd lease" [All demands to view the only
In March, 2000, the new owner commenced 2 Non-Payment proceedings (one for "each" lease) in Commercial Part of the Landlord/Tenant. (Tenant had mailed certified checks for the undisputed rent, from October, 1999 --once rent check was rejected)
2nd lease:
From copy of the "2nd lease," allegedly signed by the same parties Dec 11, 1992:
- term: 10-year lease & 5-year option to renew (same as undisputed lease) (1/1/93 -12/31/02) option (thru 12/31/07)
- rent: $4,400/month, with schedule of increases, from 4th year, (by 2000 --rent was $4,952)
- premises: 225 Centre Street (same bldg but not recognized address) "Part of first fl. and 1/3 of basement"
- Tenant: TRAN HAN HO and TRAN TUYET VAN (sister, died in 1997) (signed by Mr. Tran only)
The following heading is at top of first page of the alleged "2nd lease":
"ADDITIONAL AGREEMENT FOR BUILDING MAINTENANCE PURSUANT TO LEASE DATE OF 1/15/93 THRU 12/31/02 ("LEASE") BETWEEN WAH MAI CHONG TRADING AS LANDLORD [wite-out see below] .INC AND TRAN HAN HO AS TENANT"
[The Tenant can now prove that the alleged "2nd lease" is nothing more than the genuine undisputed lease, with an altered first page. Thus all signature pages are from the only lease.]
[The Tenant can now prove that the alleged "2nd lease" is nothing more than the genuine undisputed lease, with an altered first page. Thus all signature pages are from the only lease executed by the parties.]
Trial:
The "2nd lease" was presented as Gospel truth by an employee of the present landlord and admitted into evidence, over Tenant's objections. After testimony about the method of payment of Mr. Tran's workers, showing that his sister had such a limited understanding of the English language that she did not know the difference between payments by "Cash" and by "check," this sister was found to be unreliable, and her testimony that she paid only 1 rent (by check) was rejected. Since his sister wrote the rent checks, (after her sister died in 1997), the Court rejected Mr. Tran's testimony that the 2nd rent was never paid, because he was not the one who paid the rent. (The Court found that the 2nd rent was paid in "cash" relying on the landlord's witnesses that the "2nd rent" was "always in cash." All of the cancelled rent checks from March 1993 through Sept. 1999 were admitted into evidence. And no records were offered to support testimony that the "2nd rent" was paid in cash for the first 6 years. The Court believed the landlord's witnesses and awarded a Judgment for $98,715.65 representing 15 months of 2 rents.
The Court never bothered to examine the 4 lease documents in evidence (2 from landlord and 2 from the Tenant.) The Court never noticed that 3 of the original leases in evidence were the genuine undisputed lease, leaving only 1 of the "2nd lease." The Court made findings of fact that the Tenant's 2 originals were different, when anyone can see that the Tenant's 2 originals are the same -- both for 223 Centre -- the undisputed lease. The landlord's 2 leases were different -- 1 of the 223 lease and 1 of the "2nd lease" aka the 225 lease. By awarding a Judgment for 2 rents over 15 months, the Court also ignored the Tenant's ongoing payments of the undisputed rent by certified check. Since the Trial Court did not look at the 4 lease documents, its findings of fact directly contradict the documents. The Court assumed Mr. Tran's 2 lease documents had to be different, and never bothered to look at them.
Tenant appealed.
1 year later, in April, 2002, whioel working the appeal, new counsel (Eustis, Esq.) examined alleged "2nd lease" and discovered 3 areas of wite-out on 1st page (only visible on original)
wite-out:
(1) at end of line of heading, with Tenant's name of corporation (which did not exist on 12/11/92 when lease signed)
("LEASE") BETWEEN WAH MA1 CHONG TRADING AS LANDLORD AND SUN MEI FOOD
(making the next line, ".INC" makes more sense)
(2) changed date from "1st" day of Dec. 1992 to (under wite-out)
"11th" day of Dec.1992
(3) forged signature of Mr. Tran's deceased sister (under wite-out)
Eustis retained 2 forensic document experts to examine the 4 original lease documents admitted in evidence. The expert discovered additional and compelling physical proof that the first page of the "2nd lease" was a "replacement page which was not present when the document was original prepared/executed in 1992." (See Osborn Report) Osborn discovered proof that the initials on the bottom of the first page do not match any of the initials on any of the rest of the pages of all 4 lease documents. The initials are made with different colored ink on a paper which absorbs ultra-violet light rather than reflecting it, as did the 15 remaining pages of this document together with other irregularities (comparison of number of staple holes and "trash" marks were also inconsistent). He made several conclusions, including that the "first page of the '2nd lease' was a replacement page, not present when the document was originally prepared/executed." (See Osborn Conclusions, p. 2)
A Motion based on Newly Discovered Evidence was denied by the same Trial Court which awarded Judgment to the landlord. The Trial Court did not bother to read Mr. Osbom's Report, annexed to the Motion, and insisted that the wite-out was not new evidence without considering the cumulative effect of at least 5 or 6 other categories of compelling physical evidence noted by Osborn.
Tenant appealed the Judgment and the Order denying Newly Discovered Evidence, but the Judgment and Order were both affirmed and the Appellate Division denied leave to appeal. The Tenant's last stay expired after the Appellate Division decision in October.
The Appellate Term did recognize the Tenant's claim that the "2nd lease" could be fake, but affirmed the Trial Court's Order denying Newly Discovered evidence based on the technical requirements for that relief.
Thus, the Tenant remains in the same impossible dilemma: the proof that the "2nd lease" is fake is easily proved by a forensic document expert, but the Trial Court refused to consider that evidence, (and minimized it as only wite-out)when the evidence consists of 13 or more alterations. The Trial Court refused to consider the possibility that the landlord's witnesses had lied, and that Tenant had only signed one lease.
Eviction:
The Tenant paid over $160,000 to satisfy the Judgment, with interest, and attorney's fees. But all of the Tenant's requests for relief were denied, only because the same Trial Court re-issued a warrant of eviction (after the last stay expired), the landlord evicted the Tenant on December 4, 2003. The Tenant has been trying to get back into possession ever since.
The final insult occurred after the Trial Court refused to recuse itself, in early November, 2003. After refusing to recuse itself, (implying that it could be objective), the Trial refused to sign a routine Motion by the Tenant seeking to stay execution of the warrant of eviction, on the grounds of good cause shown and that the Judgment was fully satisfied. It was argued that the Tenant's right to appeal from the Judgment was good cause shown, and there was no prejudice to the landlord who received the 2 rents (as if there were 2 leases) throughout the 2-plus years while the Judgment was appealed.
The Court never considered the possibility that the "2nd lease" was fake, and once proof was discovered, the Trial Court rejected it without considering it. The Tenant is a victim of the landlord's fraud, and the Court became a victim of the same fraudulent scheme.
The photo-exhibits annexed to Osbom's forensic Report will be forwarded by messenger.
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