Hitchcock Plaza, Inc. v Fortune

[*1] Hitchcock Plaza, Inc. v Fortune 2015 NY Slip Op 50373(U) Decided on March 27, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 27, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
14-242

Hitchcock Plaza, Inc., Petitioner-Appellant,

against

Shelley Fortune Respondent-Respondent.

Petitioner appeals from a final judgment of the Civil Court of the City of New York, New York County (Jean T. Schneider, J.), entered on or about September 20, 2012, after a nonjury trial, which dismissed the petition in a holdover summary proceeding.

Per Curiam.

Final judgment (Jean T. Schneider, J.), entered on or about September 20, 2012, affirmed, with $25 costs.

The evidence adduced at trial supports the trial court's fact-laden determination, which rested in large measure on the court's assessment of the credibility of the witnesses, that respondent Shelley Fortune met her affirmative obligation of establishing succession rights to the subject rent controlled apartment as a non-traditional family member of the deceased tenant (see 9 NYCRR 2204.6[d][3]). In this regard, it was essentially undisputed that in 2005, respondent gave up her own rent stabilized apartment and moved in with tenant, her uncle, because the then-ailing tenant could no longer live on his own; and that respondent lived in the apartment with tenant for some five years prior to tenant's death in April 2010. The trial evidence, including testimony from six witnesses, also showed that tenant and respondent had a close, loving relationship, and as the court expressly found, they shared household expenses; had meals together in the apartment; jointly attended church, as well as family, birthday and holiday functions, some of which they hosted in the apartment; and vacationed together at a country home jointly owned by tenant and his sister (respondent's mother) (see RHM Estates v Hampshire, 18 AD3d 326 [2005]). As the trial court put it, tenant was the "father figure" throughout the life of respondent, whose own father was absent, and "[w]hen [tenant] was in need, [respondent] gave up her own rent regulated apartment and moved back in with him, sharing household expenses with him and living as a family."

"[T]he modest intermingling of finances does not negate the conclusion that tenant and respondent had a family-like relationship. It is important to note that in considering whether a person may be considered a family member' for the purpose of succession, no single factor shall [*2]be solely determinative'" (WSC Riverside Drive Owners LLC v Williams, 125 AD3d 458, __ [2015]; see RHM Estates v Hampshire, 18 AD3d at 327; Arnie Realty Corp. v Torres, 294 AD2d 193 [2002]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 27, 2015