Barnard Coll. v Ribowsky

[*1] Barnard Coll. v Ribowsky 2009 NY Slip Op 50834(U) [23 Misc 3d 1119(A)] Decided on April 30, 2009 Civil Court Of The City Of New York, New York County Kraus, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 30, 2009
Civil Court of the City of New York, New York County

Barnard College, Petitioners-Landlord

against

Meta Ribowsky, Respondent-Tenant.



L & T 050247/08



ROSENBERG & ESTIS , P.C.

Attorneys for Petitioner

By: FREDERICK S. PARK, Esq.

CRAIG S. CHARIE, Esq.

733 Third Avenue

New York, NY 10017

(212) 867-6000

META BETH RIBOWSKY

Respondent Pro Se

600 West 116th Street, Apt. No. 104

New York, New York 10027

Sabrina B. Kraus, J.

BACKGROUND

This summary holdover proceeding was commenced by BARNARD COLLEGE (Petitioner) and seeks to recover possession of Apartment 104 at 600 West 116th Street (Subject Premises) based on the allegation that, META RIBOWSKY (Respondent) was the licensee of James Rice, the rent-control tenant of record (Tenant), and that the license to occupy the premises terminated with the Tenant's death in October 2006.

PROCEDURAL HISTORY On or about October 10, 2007, Petitioner issued a thirty day notice of termination. The predicate notice alleged that Tenant of record had died on October 23, 2006, that Respondent's license had expired, and her monthly tenancy was terminated effective November 30, 2007. Notice of Petition and Petition were issued on or about January 11, 2008, and the proceeding was first on the Court calendar on or about January 16, 2008. On or about February 22, 2008, Respondent appeared herein, through counsel, and filed an answer and counterclaim which asserted inter alia a claim to succession to the rent-controlled tenancy, based on her living in the Subject Premises, with the Tenant, for 20 years as his life partner prior to his death.

On or about March 3, 2008, the proceeding was marked off calendar pending discovery. The proceeding was restored on or about January 30, 2009. On or about February 18, 2009, Respondent discharged her attorneys and continued pro se. On or about March 24, 2009, the proceeding was assigned to Part S for trial. The trial took place on March 24, 25, 26, 31 and April 2 and 7 of 2009. At the conclusion of the trial, the parties submitted post trial memoranda and the Court reserved decision.

FACTS

Respondent testified that she has lived at the Subject Premises since Labor Day Weekend 1986, and that up until his death she and the tenant lived there together as life partners. The testimony that this was Respondent's primary residence and that she lived at the Subject Premises with Respondent was essentially not rebutted at trial. Respondent owns another apartment in Whitestone, Queens that used to be owned by her grandparents. Much of the documentation that Respondent has, lists Whitestone, Queens as her address of record. Some testimony of some witnesses indicated that occasionally she and the Tenant spent time in Whitestone, Queens, however the preponderance of the credible evidence at trial, including the [*2]credible testimony of Respondent and neighbors from Whitestone, supports the finding that both Respondent and Tenant lived in the Subject Premises together, as their primary residence, from on or about the late 1980s through his death in 2006.

Respondent's relationship with the Tenant began in the late 1980s and lasted through his death in October of 2006. The evidence at trial supported Respondent's claim that she and the Tenant were in a long term committed relationship during this period. Respondent and the Tenant met each other through work, and knew each other for almost two years before they moved in together. Respondent and the Tenant were nearly always together during their twenty-year relationship. They vacationed together, spending leisure time with both family and friends as a couple.

Respondent and Tenant celebrated each year of their relationship, by marking their anniversary as a special celebration. For their fifth anniversary together, Tenant bought Respondent an emerald ring and they pledged their love to each other. Respondent and Tenant referred to each other as husband and wife, received mail at the Subject Premises addressed to Mr. & Mrs. Rice and were thought of by friends and neighbors as a married couple.

Respondent and the Tenant jointly cared for the Tenant's son from a prior marriage, Jamie Rice, during the periods that he was in Tenant's custody. Respondent had known Jaime and assisted the Tenant in caring for him since Jaime was four years old. Jamie Rice testified that he had a close relationship with Respondent when he was younger, and that as a child if he drew a picture of his family, it very well may have included the Respondent. Respondent bathed Jamie as a child, tucked him into bed, had birthday parties for him. Respondent assisted the Tenant in setting up a bedroom for Jaime at the Subject Premises and arranged play dates for him.

For twelve years Respondent and the Tenant rented a cottage together in Fire Island. Respondent and the Tenant summered with Jamie Rice at the Fire Island Cottage, and spent time there with members of both their families including the Tenant's other children and members of Respondent's family. Respondent and the Tenant also vacationed with Jaime in Florida annually, generally over Easter/Passover, as he was growing up. Jaime and his dad would attend spring training, and where they would visit with Respondent's parents, who wintered in Florida.

Similarly the Tenant and Respondent included each other in family celebrations such as birthdays, weddings, and school graduations. Other than Thanksgiving Respondent and the Tenant shared almost all holidays together. They observed Hanukkah with Respondent's parents and sister. They hung Christmas stockings in the Subject Premises.

The depth of the feelings between Respondent and the Tenant, as well as the fact that they held themselves out to friends family and the public as family, are further established through various documents offered into evidence by Respondent. For example, in evidence as Exhibit BBB are various cards exchanged between Respondent and the Tenant over the course of their twenty year relationship. Some examples from the documents submitted in evidence are:Anniversary cards from Tenant to Respondent which read in part:

(8/10/95) "It has been simply wonderful over the past nine years. We've loved, laughed, worked hard and shared everything. They've been the best years of my life. I love you dearly, and always will."; and

8/10/98 "Your devotion to me and my family is unique in the annals of history. It's been a marvelous 12 years. We've shared virtually everything, enjoyed ourselves, brought joy to [*3]others and accomplished many good works to benefit society. What a team!"; and

8/10/99"It has been a marvelous life together. I've enjoyed every little moment."; and

Birthday Card from Tenant to Respondent which reads in part: 5/21/02 "I love you more than ever."; and

Hanukkah Card from Tenant to Respondent which reads in part: 12/03 " I love you beyond all measure. You are the greatest! You are the joy of my life."

Similarly, that Respondent was considered the Tenant's surviving family by their friends and community is evidence by the condolence cards put into evidence ( Exhibit EEE). Respondent's testimony regarding their relationship was also supported by numerous photographs entered into evidence that show Respondent and Tenant through out their relationship with each others families celebrating holidays, birthdays, vacationing, and socializing with friends (Exhibits G1-15, CCC 1- 46, RRR 1-40).

In addition to the testimony of neighbors in the building that Respondent and Tenant held themselves out as a married couple, and the mail offered into evidence that was addressed to Mr. & Mrs. Rice, in evidence as Exhibit LLL is a police report filed by the Tenant March 6, 2005 in Monroe Township, New Jersey. The report indicates that the Tenant referred to Respondent as his wife.

Cheryl Healton, the Tenant's second wife, testified at the trial. Ms. Healton testified that when she sought a loan from her former husband to assist in paying Jaime's tuition, the loan was made by Respondent. Respondent loaned Ms. Healton $5,000.00 to assist with Jaime's tuition which was repaid with a letter of thanks from Ms. Healton to Respondent. Ms. Healton also testified that when her son was about 17 years old, she had become concerned about the Tenant's health because the Tenant appeared to be repeating himself in conversation. Ms. Healton reached out to Respondent regarding this concern, which the Court finds supports the conclusion that Ms. Healton considered Respondent to be in a long term intimate family relationship with Tenant.

In the Spring of 2006, events took place that changed the nature of Respondent's relationship with Jamie Rice and other family members. Specifically, on or about June 2006 Tenant had a car accident resulting from driving under the influence of alcohol. Jamie Rice became concerned, and came to New York to see the Tenant. Apparently, the Tenant had struggled with an addiction to alcoholism for years that had gone untreated. Shortly after the accident in June 2006, Respondent and members of the Tenant's family arranged for the Tenant to be admitted into an in-patient treatment program for his alcoholism. A few days after said admission the Tenant was diagnosed with stage four lung cancer.

From that point forward, both Respondent and the tenants family members cared for the Tenant until his death in October 2006. Respondent was at the hospital all day, everyday, taking leave from her job to care for the Tenant. Respondent's testimony was that she was in the hospital almost everyday for 15 to 16 hours per day with the Tenant and his son. Respondent and the Tenant's son visited various rehabilitation facilities for the Respondent, and Respondent was sent to a facility in White Plains for rehabilitation for his alcoholism, where Respondent visited him two to three times per week. [*4]

Over labor day weekend in 2006, the Tenant suffered a stroke at the Subject Premises. Respondent called 911 and the Tenant was taken to St Luke's Roosevelt Hospital. The Tenant remained in the hospital for a few weeks. On October 13, 2006 the Tenant was released from the hospital and came back to the Subject Premises. Arrangements had been made for a hospital bed and medical equipment to be kept in the Subject Premises. Ten days later the Tenant passed away at the Subject Premises.

After his death, Respondent mourned by observing Shiva in the Subject Premises for one week. This was established by Respondent's testimony and also referenced in the testimony of one of the Tenant's daughters. The family prepared a written memorial for the Tenant's funeral service (Exhibit AAAAA). The only paragraph of the written memorial which references the tenant's family reads as follows " Jim rice is survived by his long-time partner, Meta Beth Ribowsky, daughters Anna Lou Newcomb and Grai St. Clair Rice, and son James St. Clair Rice, as well as two grandchildren, Jennie Copeland Newcomb and John Clark Newcomb. He is also survived by two former wives and dear friends Anna Lou Clark Platt and Cheryl Healton." Similarly the obituary for the Tenant published in the New York Times on October 25, 2006 (Exhibit ZZZZ) in listing the family that survived the Tenant includes "... long time partner Meta Beth Ribowsky ...".DISCUSSION

In defining "family member" for the purposes of succession to a rent-stabilized apartment NYCRR 2204.6(d) states that the definition includes "any other person residing with the tenant in the housing accommodation as a primary residence who can prove emotional and financial commitment, and interdependence between such person and the tenant." The provision further provides that "no single factor shall be solely determinative".

Petitioner argues that Respondent has not established a right to succession because she failed to establish that she and the Tenant intermingled finances and that they were dependent on each other financially. It is true that Respondent's evidence was somewhat limited in this regard. However, the evidence did support some financial co-mingling and interdependence. Respondent and the Tenant did have a visa credit card that they shared. Respondent lent $5000.00 to the Tenant's former wife for the payment of the tenant's son's tuition, and Respondent paid for various expenses including the car that the couple used, vacations, dinners etc. When the Tenant became unemployed for a period, Respondent took on responsibility for a greater amount of the expenses.

The parties did in large part maintain separate finances, but the record suggests that this was also true in the Tenant's previous marriages. Ms. Healton testified that, during her marriage to the Tenant, while they had a joint account, they maintained separate bank accounts as well, and each paid for expenses separately. "Even in traditional marriages, particularly those between older people who have previously been married and who have children from those previous marriages, it is not uncommon to find that there is not a total intermingling of finances." [Wiener Management Co. v. Trockel 192 Misc 2d 696, at 703 (2002)]. Moreover it has been held that while the statute considers intermingling of finances the absence of said factor does not mandate denial of a succession claim (RHM Estates v. Hampshire 18 AD3d 326 (1st Dept., 2005).

In this case, the record establishes that both the Tenant and Respondent paid for aspects of the life they shared together. They were both of modest means, lived a modest lifestyle, and Respondent credibly testified that material items were not of great significance to them in their shared life. The Tenant did have an interest in a family trust, however it is clear from the record [*5]that this was primarily intended to benefit his children and Respondent credibly testified she had no desire or need to interfere with that.

An objective review of the totality of the circumstances in this proceeding shows that Respondent and the Tenant were committed to sharing every aspect of their life together and that they did so for the twenty years that they lived together as family as the Subject Premises. The Court finds that Respondent is exactly the type of individual that was intended to be protected by the extension of succession rights to non-traditional family members under rent regulation.

The defenses asserted in paragraphs 4 through 6 of Respondent's answer are dismissed . Respondent however has successfully established her claim to succession and is entitled to be named as the tenant of record on a renewal lease. The petition is therefor dismissed.

This constitutes the decision and order of this Court.

Dated: New York, New York

April 30, 2009 Sabrina B. Kraus, JHC

TO: