72A Realty Assoc. v Kutno

[*1] 72A Realty Assoc. v Kutno 2006 NY Slip Op 50994(U) [12 Misc 3d 1161(A)] Decided on May 19, 2006 Civil Court, New York County Wendt, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 19, 2006
Civil Court, New York County

72A Realty Associates, Petitioner-Landlord,

against

Michael Kutno, Respondent -Tenant, and Jill E. Wright, "JOHN DOE" and "JANE DOE", Respondents-Undertenants.



L&T 102379/03



Arthur D. Zinberg, Esq, New York City, for Petitioner; Wedeen & Kavanagh, New York City, (Timothy Wedeen of Counsel), for Respondents.

Peter M. Wendt, J.

The petitioner landlord commenced this summary licensee holdover proceeding, claiming that the sole tenant of record of the subject rent stabilized apartment, respondent Michael Kutno, does not reside at the apartment as his primary residence. Petitioner maintains that Kutno resides in 271-24D Grand Central Parkway, Floral Park, New York, or alternately at his condominium in Florida. Petitioner maintains that Respondent-Undertenant Jill Wright is not related to Kutno, and that she continues in possession of the subject apartment without the landlord's consent after the expiration of the most recent lease.

Respondent Wright claims succession rights to the subject apartment pursuant to Rent Stabilization Code § 2523.5(b)(1) and 2520.6(o) on the basis that she and Kutno allegedly primarily resided together in the apartment in a non-traditional family relationship for the requisite period.

Pursuant to Rent Stabilization Code §2523.5(b)(1) and 2520.6(o), where a tenant has permanently vacated, any member of the tenant's family, including non-traditional family members as defined in RSC § 2520.6(o)(2), who has resided in the apartment with the tenant for at least two years (one year for senior citizens and disabled) is entitled to be named as a tenant in the renewal lease. The Code definition of family member includes persons residing in the housing accommodation as a primary or principal residence who can prove emotional and financial commitment and interdependence with the tenant. RSC § 2520.6(o)(2) provides that, "although no single factor shall be solely determinative, evidence which is to be considered in determining whether such emotional and financial commitment and interdependence existed, may include, without limitation, such factors as listed below ..." (I) longevity of the relationship;[*2](ii) sharing of or relying upon each other for payment of household or family expenses, and/or other common necessities of life;(iii) intermingling of finances as evidenced by, among other things, joint ownership of bank accounts, personal and real property, credit cards, loan obligations, sharing a household budget for purposes of receiving government benefits, etc.;(iv) engaging in family-type activities by jointly attending family functions, holidays and celebrations, social and recreational activities, etc.;(v) formalizing of legal obligations, intentions, and responsibilities to each other by such means as executing wills naming each other as executor and/or beneficiary, granting each other a power of attorney and/or conferring upon each other authority to make health care decisions each for the other, entering into a personal relationship contract, making a domestic partnership declaration, or serving as a representative payee for purposes of public benefits, etc.;(vi) holding themselves out as family members to other family members, friends, members of the community or religious institutions, or society in general, through their words or actions;(vii) regularly performing family functions, such as caring for each other or each other's extended family members, and/or relying upon each other for daily family services;(viii) engaging in any other pattern of behavior, agreement, or other action which evidences the intention of creating a long-term, emotionally committed relationship.

A trial was conducted on March 15, 16, and 17, 2006. Respondent Wright testified that she met and started dating Kutno in March, 1984. She testified that in October, 1984 they mutually agreed that she would move in with him and she moved into the subject apartment. She testified that she had an exclusive relationship with Kutno from 1984 to 2000 or 2001. Respondent testified that she and Kutno did not see other people during their relationship, that their relationship was exclusive for 16 years. Wright testified that she and Kutno represented to people that they were married, and even called themselves husband and wife. She credibly testified that they were together as though they had vows to each other as a married couple, that the relationship had exclusivity and fidelity, and that they lived as if married and treated each other as such without formal marriage.

Respondent testified that both she and Kutno maintained their residence at the subject apartment, and that she still lives at the subject apartment. She testified that she considered the subject apartment her home and still considers it her home. She testified that in 1998, 1999 and 2000 she lived at the subject premises and had no other residence, in 1999 she and Kutno spent about 250 days at the subject premises, and in 1997, and 1998 they spent about 200 days there each year. She testified that the rest of the time they were traveling or visiting Kutno's mother in Florida.

Wright testified that the subject premises has two bedrooms, a living room, a separate kitchen and one bathroom. She testified that the superintendent at the subject building in 1998, 1999 and 2000 was "Stanley". She testified that Stanley is of medium height and build, that he was a competent superintendent, that he did repairs, and kept the building clean. She testified that Stanley ceased being superintendent in 2004 or 2005, because of a health issue, and that the current superintendent is "Bodan". [*3]

Wright testified that she and Kutno received mail at the subject premises addressed to them as a couple. Wright submitted various pieces of mail, some postmarked between 1991 and 2003, and some not bearing a postmark date, addressed to "Jill Wright-Kutno", "Jill Kutno", "Michael Kutno & Jill Wright", "Jill & Mike Kurtoo", or "Mr. And Mrs. Michael Kutno" at the subject premises.

Wright testified that although she and Kutno were not legally married, she was a "stereotypical housewife" and Kutno was the "bread winner". Wright testified that she did all the cleaning and vacuuming, washed the dishes, took out the laundry, cleaned the bathroom and made the beds. Respondent testified that she did most of the shopping for food and household necessities, and bought things for herself and Kutno. She testified that Kutno paid for most of the expenses because he had the money, that Kutno paid for furniture, and Wright helped select it, that Kutno bought Wright's clothing for her.

Wright testified that she and Kutno never married, that she is gentile and he is Jewish, that he thought his parents needed to get to know Wright better, that Wright saw no benefit to being married. Wright testified that she and Kutno did not have children. She testified that she felt that neither of them was mature enough to have children.

Wright testified that Kutno had a family business which he worked in from 1984 until the business dissolved around 1996. Wright testified that during this period Kutno would leave for work in the morning a little before 9 AM, and that he would have breakfast before he left for work. She testified that he would eat oatmeal, which she would cook. Wright testified that she did very little cooking at home and that the only meal they ate at home was breakfast. She testified that they ate out together every night. She testified that they loved the Hasaki Japanese Restaurant on 9th Street between 2nd and 3rd Avenue and they ate there every other week from 1984 until their relationship dissolved. She testified that Kutno would pay for dinner with his credit card.

Wright testified that she was self employed, and worked as a masseuse. She testified that in 1997 and 1999 she made a maximum income of $400/month, or $4,800/year, and that in 1998 she made a little less. She did not remember how much she made in 2000, 2001, and 2002.

Wright testified that she and Kutno pooled their money, that she contributed the money she made to their pool of money. She testified that Kutno paid for 99% of their expenses because Wright earned very little money. She testified that she did not own any real property.

Wright testified that during their relationship she and Kutno frequently visited each other's family members and went to family affairs together, including her mother's wedding in Waco, Texas, Mother's Day 1985 in Waco, Texas, and her brother Keith's wedding in California in 1997. Wright testified that when Kutno's mother had knee surgery Wright and Kutno stayed with her to help her during her recuperation.

Wright testified that she and Kutno went on vacations together in the Carribean, Europe and North America. She testified that they went to Cozumel, Sedona, Santa Fe, Utah, Montana, Alaska, Yellowstone National Park, France and Italy. She testified that on weekends they went to Montauk, the Hamptons, the Woodstock area, Vermont, the Berkshires and Rhode Island. She testified their last big trip together was in the summer of 1999, when they visited Rome and Scandinavia. She testified that Kutno always paid for the hotel and airfare on these trips, and that they stayed in the same hotel room, that when they stayed at a family member's home they stayed [*4]in the same room. Respondent produced about fifty photos which were of Wright and Kutno together or with family members, or of family members, business associates and friends. She testified that these photos were taken between 1984 and 2000, during the above mentioned trips, or at other visits and social events.

Wright testified that she and Kutno spent every Halloween and New Year's Eve together during their relationship. She produced a photo of them which she testified was taken on Halloween. She produced pictures which she testified were taken of her and Kutno in the swimming pool in Kutno's mother's house in Boca Raton, Florida during Passover, 1997 or 1998, pictures which she testified were of Wright's father and his wife and of Kutno's mother when their parents first met in 1986.

Wright testified that she and Kutno visited her father in Monterey, California on occasions, including on the day before he died on January 2, 1990. She testified that Kutno did not attend her father's funeral because of business obligations. She testified that when Kutno's father died in 1996 she attended the funeral with Kutno.

Wright produced a Bloomingdale's card in the name of Jill Wright. She testified that Kutno provided it for her in 1985 or 1986 and that he paid the bills for the card. She testified that she last used the card in 1988. Petitioner produced a copy of a Platinum Visa card in the name of "Jill Wright". The card states "Member since 1984" and "good thru 4/30/09". Wright testified that she obtained a Platinum Visa Card before her relationship with Kutno started. She stated that her sister was added to this credit card after Wright's relationship with Kutno started. She stated that Kutno was not put on this credit card, as he had his own credit card during their relationship. Wright testified she made charges on the Visa card during their relationship, and Kutno paid for most of those charges. Wright testified her sister also made charges on the card, and that her sister paid for her own charges.

Wright testified that her name was added to Kutno's American Express card in 1997 or 1998. She testified that her name is Elaine Kutno on the American Express card because her name is Jill Elaine Wright. Respondent produced an AT&T card bearing the name "Jill Kutno". Wright testified that Kutno gave her the card in 1985. She testified that she last used the card in 1998 or 1999.

Wright testified that she hasn't filed tax returns since 1998 because she did not earn enough income. She testified that she has not voted since 1998 and that she has not registered to vote. Wright testified that her driver's license is at her brother's address in Texas, that she has always had it there.

Wright testified that Kutno purchased a condominium in 1996 located at 1105 Highland Beach Drive, Highland Beach, Florida. She testified that she and Kutno would visit the condominium in Florida. She testified that they would travel back and forth together, that sometimes Wright would come back to New York without Kutno, and that there were times when Kutno was at the Florida house alone. Wright testified she stopped going the Florida condominium in 2000.

Wright testified that their relationship ended gradually in increments of time from the end of 1999 until about 2001. She testified that during this period Kutno's presence in the apartment was sporadic, that he would not stay in the apartment when she was there. She testified that it took at least until 2001 for Wright to get a sense that the relationship was over. [*5]

Wright testified that her breakup with Kutno was emotionally difficult, that Wright feels she lost a husband, not just a boyfriend. Wright was emotional and crying when she testified about the breakup with Kutno. The Court found this emotional display of sadness very credible, and it evidenced the breakup of a loving long-term relationship. Wright testified that she was still considered a member of Kutno's family because she bonded with his family.

Wright testified that through the last years of their relationship Kutno was verbally abusive. She testified that she is afraid of Kutno because he has a volatile temper. Wright testified she would physically fight back with Kutno, although he was 6'2", and Wright is 5'5" and weighs 105 pounds. Wright testified she has no self defense training. She testified that Kutno still has keys to the apartment, that it could have gotten ugly. However, she testified that Kutno departed amicably.

Wright testified she is periodically in touch with Kutno, and that lately Kutno has called her. Wright testified that she asked Kutno to testify and

submit an affidavit in this proceeding, but he would not. Petitioner produced a letter from Wright's attorney to petitioner's attorney dated June 9, 2004 wherein he stated that Kutno had effectively withdrawn from this action.

Wright's sister Judy testified that she has lived in New York for 29 years, and that she sees Wright on a regular basis and calls Wright daily. Judy testified that Wright resides at the subject premises, has resided there for more than 18 years, and has no other residence. Judy testified that she has visited the subject premises more than 100 times between 1984 and 2000. Judy testified that she calls Wright at the telephone number of the subject premises and that Wright has no other "land line" telephone number.

Judy testified that Kutno has been Wright's intimate "significant other" for 15 years, that Wright lived with Kutno from the time they met, and that they were "connected at the hip". Judy testified that between 1984 and 2000 she met Kutno hundreds of times, that Wright and Kutno attended family events together and always stayed in the same room. She testified that she went to restaurants with Wright and Kutno and that Kutno paid all the time. She testified that Kutno left in the beginning of 2000 and that she hasn't seen him since then. The Court finds Judy's testimony entirely credible.

Petitioner maintains that Wright has not proved that she and Kutno had a relationship characterized by the emotional and financial interdependence required to obtain succession rights under RSC §§ 2523.5(b)(1) and 2520.6(o). Petitioner argues that there was no intermingling of finances and that Wright did not make any financial contribution to the relationship but was completely dependent on Kutno.

However, the evidence establishes that Kutno and Wright's relationship was characterized by an intermingling of finances and mutual emotional dependence similar to that in a traditional marriage in which the husband is the "breadwinner" and the wife is a "homemaker". Although Kutno did provide most of the financial support, Wright provided a substantial financial contribution in services including housekeeping and management of the household, maintaining clothing for both partners, shopping for personal items for both of them, as well as emotional support. The absence of documentary evidence of intermingled finances does not necessarily defeat a succession claim where the record otherwise establishes a non-traditional family [*6]relationship.

The Code provision does not require that there be such a total intermingling, only that there be an "emotional and financial commitment, and interdependence," and these there clearly were. As the Court of Appeals stated "It is the totality of the relationship as evidenced by the dedication, caring and self sacrifice of the parties which should, in the final analysis, control." (Braschi v Stahl Assoc Co, 74 NY2d 201, 213). Slope Spaces v Vasquez, NYLJ, Oct 19, 1999, p. 29, col 1 (App Term, 2d Dept).

The courts in determining succession claims have given significant weight to evidence of an economic and emotional partnership where one partner provides financial support and the other domestic services such as homemaking. Arnie Realty Corp v Torres, 294 AD2d 193, (1st Dept, 2002); St Marks Assets, Inc v Herzog, 196 Misc 2d 112, (App Term 1st Dept, 2003); Roberts Avenue Associates v Sullivan, App Term, 1st Dept, 2003, WL 21730092.

Such services, while not easily calculable, are recognized as significant and are required to be factored into maintenance and equitable distribution awards in matrimonial cases. Domestic Relations Law § 236(5)(d)(6) and (6)(a)(8); "Equitable distribution was based on the premise that a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner or homemaker" ... The Equitable Distribution Law reflects an awareness that the economic success of the partnership depends "not only upon the respective financial contributions of the partners, but also on a wide range of nonremunerated services to the joint enterprise, such as homemaking, raising children and providing the emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home." Brennan v Brennan, 103 AD2d 48, 52.

Price v. Price, 69 NY2d 8, 14, (1986). Such services have even been held to indirectly contribute to an increase in value of separate property of the other spouse, such as a business. Price v Price, supra. See also Sivigny v Sivigny, 213 AD2d 243, (1st Dept, 1995), aff'g, Sup Ct, NY Co, Gangel-Jacob, J, April 8, 1993; DeMarco v DeMarco, 235 AD2d 1014 (3rd Dept, 1997). Such an arrangement would not be questioned as financial interdependence in a legal marriage, and should certainly be counted in determining succession rights for a non-traditional family member. Additionally, Wright testified that she contributed 100% of her earnings to their "pool" of money, which was used for expenses, and that Kutno provided her with credit cards and an AT&T calling card which he financed.

Wright's extensive and credible testimony and the other evidence establishes many of the factors required by RSC § 2520.6(o) were present. For example, the longevity of the relationship of some sixteen years, relying on each other for household expenses and for "daily family services", engaging in many family functions, holidays, celebrations, vacations and social events together, holding themselves out as a married couple, caring for each other's family members during health crises and supporting each other during the loss of close family members. RSC § 2520.6(o) in listing the factors which shall be considered in determining the presence of a non-traditional family relationship, provides that no single factor shall be solely determinative. In light of the extensive evidence of a non-traditional family relationship, the absence of written documents formalizing legal obligations or benefits on each other is not enough to defeat Wright's entitlement to succession. [*7]

Petitioner also argues that Wright is not entitled to succession protection because she and Kutno did not reside in the apartment together for the requisite period immediately prior to his permanently vacating. However, Wright credibly testified that their breakup was emotionally difficult and occurred gradually over a period of time. It is normal for long-term intimate partners to end a relationship gradually, not abruptly. If the parties were legally married, the fact of their gradual breakup would not be a basis to deny succession protection to the remaining spouse. The succession provisions were intended to provide persons in non-traditional relationships with the same protection of their homes as legal family members. Respondent Wright should not denied succession protection of her home merely because her sixteen year intimate relationship with Kutno ended gradually. The succession provisions of the Rent Stabilization Code are remedial regulations designed to protect non-traditional family members from eviction. They are to be liberally construed to extend their benefit to all occupants they are designed to protect. See Sommer v NYC Conciliation and Appeals Board, 93 AD2d 481, (1st Dept, 1983), aff'd, 61 NY2d 973 (1984).

Petitioner also argues that a negative inference should be inferred from Wright's failure to produce Kutno to testify on her behalf. However, as Wright does not have control over Kutno, the Court will not draw a negative inference based on her failure to produce Kutno as a witness.

Petitioner argues that Wright's case consisted principally of her testimony and that of her sister and that Wright did not produce sufficient documentary evidence of the relationship or of her residence in the apartment for 16 years with Kutno and during the period after he left. However Wright credibly testified that she resided at the apartment as her primary residence for many years with Kutno, and continued to reside there as her primary residence after Kutno departed. Petitioner failed to allege any alternate address as primary residence for Wright and entirely failed to rebut Wright's testimony that she continuously resided in the apartment as her primary residence for approximately twenty years and continues to reside there. The Court finds that Wright was a credible witness, and that her extensive testimony, together with that of her sister and the other evidence produced is sufficient to establish that she and Kutno co-habited the apartment as primary residents in a non-traditional family relationship for far longer than the requisite period, and that she is entitled to succeed to the apartment under the succession provisions of the Rent Stabilization Code.

For all the foregoing reasons, after a trial at which all the testimony and exhibits were carefully considered, and mostly based on the credibility of Jill Wright's and her sister Judy's testimony, respondent Wright's succession defense is granted and the proceeding is dismissed.

Petitioner argues that it seeks legal fees versus Kutno because he no longer claims the subject apartment as his primary residence. However, petitioner is not entitled to attorney's fees under the lease because it is not the prevailing party in this proceeding. Indeed, Jill E. Wright is the prevailing party herein.

This constitutes the decision and order of the Court.

Dated: New York, New York__________________________

May 19, 2006 PETER M. WENDT, J.H.C

APPEARANCES OF COUNSEL