1106 Coll. Ave., HDFC v Farmer

[*1] 1106 Coll. Ave., HDFC v Farmer 2010 NY Slip Op 52262(U) [30 Misc 3d 1204(A)] Decided on December 27, 2010 Civil Court Of The City Of New York, Bronx 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 27, 2010
Civil Court of the City of New York, Bronx County

1106 College Ave., HDFC, Petitioners-Landlord

against

Rebecca Farmer, Respondent-Tenant



L & T 37013/10



AGINS, SIEGEL, REINER & BOUKLAS, LLP

Attorneys for Petitioner

BY: DAVID S. LEE, ESQ.

386 Park Avenue South, Suite 1200

New York, NY 10016

212-447-5599

DC 37 HEATH AND SECURITY PLAN

MUNICIPAL EMPLOYEES LEGAL SERVICES

Attorneys for Respondent

BY: CAROL RICHIE, ESQ.

125 Barclay Street — 10th Floor

New York, NY 10007

212-815-1875

Sabrina B. Kraus, J.

This summary holdover proceeding was commenced by 1106 COLLEGE AVE., HDFC (Petitioner) and seeks to recover possession of Apartment 5D at 1105 COLLEGE AVENUE, BRONX, NY 10456 (Subject Premises), based on allegations that the rent-stabilized tenant of record, Roland Reeves (Reeves), is deceased and REBECCA FARMER (Respondent)is a licensee, with no ongoing right to possession of the Subject Premises.

PROCEDURAL HISTORY

This proceeding, initially returnable July 27, 2010, was adjourned to August 17, 2010, for Petitioner to subpoena the Department of Housing Preservation and Development (DHPD). [*2]

On August 17, 2010, Respondent appeared by counsel, and filed an answer, asserting defenses, a counterclaim, and a jury demand. Respondent's answer asserted inter alia lack of improper service of the predicate notice, and the affirmative defense of succession.

The proceeding was adjourned again to September 22, 2010, at Respondent's request, pursuant to a stipulation, which acknowledged DHPD's representation that no file was found in their records, pertaining to Respondent.

On September 22, 2010, the proceeding was adjourned to October 20, 2010, for motion practice. The parties also stipulated that Respondent would pay $570.47, one month's use and occupancy, by October 5, 2010. Respondent asserted that Reeves died on March 24, 2010.

On October 20, 2010, Petitioner moved for summary judgment and related relief. After argument, the Court directed Respondent to pay on going use and occupancy, and reserved decision on the motion.[FN1]

FACTS

Reeves was a tenant of record at Apartment 5A ,at 1279 Stebbins Avenue, Bronx, New York 10459 (Stebbins Apartment). DHPD runs the Neighborhood Redevelopment Program (NRP), aimed at rehabilitating rundown buildings and providing affordable housing for low income persons and families. Under NRP, DHPD conveys buildings to not-for-profit organizations, which accept the conveyances and operate the buildings as rental housing, after their rehabilitation, which is financed by DHPD. The Stebbins Apartment is in a building participating in the NRP program.

On or about February 2007, Reeves was relocated from the Stebbins Apartment to the Subject Premises, pending renovation of the building on Stebbins Avenue. Petitioner asserts that at the time of relocation, no other occupants of the Stebbins Apartment were relocated, and that Reeves asserted he was the sole household member, at that time.

Pursuant to the NRP program, Reeves applied for and received Section 8 benefits. Reeves stated he was the sole household member, in his application, and that his household annual income was $10,201.20. Reeves executed a lease for the Subject Premises, for a term of May 1, 2007 through April 30, 2008, which listed no other occupants of the Subject Premises.

Reeves then executed two renewal leases, each for a one year term, for the Subject Premises. The last renewal lease expired on April 30, 2010. At the time Reeves executed this lease renewal, he was eighty years old.

PETITIONER'S MOTION FOR SUMMARY JUDGMENT

Petitioner asserts that Respondent's succession claim is without merit, because Reeves never indicated on any documentation that Respondent was part of the household. Additionally, Petitioner points out that Reeves had a bank account that was not shared with Respondent, and that in 2006 an agent visited the Stebbins Apartment and saw no evidence that Respondent was living with Reeves. Petitioner further asserts that if Respondent was living with Reeves during this period, then Respondent and Reeves were defrauding Section 8, by receiving a subsidy [*3]based on income of approximately $10,000 per year, when Petitioner asserts Respondent makes substantially more.

Respondent states that her mother died when she was years old, and that at eight years of age, Respondent went to live with her older sister's family. Respondent states that she spent a lot of time during this period with Reeves, who lived with Respondent's maternal aunt. Respondent states that she considered Reeves and her aunt to be her parents.

Respondent asserts that after 1980, Reeves became the Superintendent for the Stebbins Avenue building, and at an undisclosed date, moved into the Stebbins Apartment.

Respondent asserts that in or about 2004, she moved into the Stebbins Apartment with Reeves, because she could no longer afford the rent in the apartment she had been living in at the time. Respondent stated she "occupied" the bedroom, and Reeves slept in the living room, which she stated housed a single bed. Respondent further asserts that in January 2007, Reeves relocated to the Subject Premises, and that she and Reeves both believed that the relocation was temporary.

Respondent references living in the Subject Premises, but does not state when she first occupied the Subject Premises as her primary residence, or whether she was relocated at the same time as Reeves. Respondent asserts that she paid her share of the rent and utilities in cash to Reeves, and that Reeves eventually became homebound, requiring Respondent to care for him, with the assistance of a home aide.

Respondent does not address the issues regarding the Section 8 subsidy, or why she is not listed as a household occupant. Respondent provides absolutely no documentation in support of her claim to succession or tying her in any with either with the Subject Premises or Reeves.

DISCUSSION

In order to prevail upon a motion for summary judgment, the moving papers must make a prima facie showing of entitlement to judgment as a matter of law, and the Court must find that there are no material questions of fact requiring a trial ( See eg Zuckerman v. City of New York 49 NY2d 557; Winegrad v. New York Univ. Med. Ctr. 64 NY2d 851).

RESPONDENT'S SUCCESSION CLAIM

Respondent's third affirmative defense asserts a claim to succession to the Subject

Premises based, on her relationship with Reeves, as a nontraditional family member.

§ 2523.5 (b)(1) provides that where the tenant of record has permanently vacated a non- traditional family member who has resided in the housing accommodation with the tenant as a primary residence for no less than two years shall be entitled to a renewal lease. § 2520.6 (o)(2) defines non traditional family members as a "... person residing with the tenant ... who can prove emotional and financial commitment, and interdependence between such person and the tenant ...". In making such determination courts will consider inter alia, the longevity of the relationship, sharing or relying on each other for payment of household expenses, intermingling of finances, and formalizing legal obligations (Id).

Respondent asserts a non traditional relationship of a parent and child.

Petitioner provides documentary evidence in support of its motion to strike Respondent's succession claim. On the issue of whether Respondent resided with Reeves, Petitioner provides several documents executed by Reeves, which indicate that he lived alone. Specifically, Petitioner provides an income certification Reeves executed in February 2007, which states under oath that he was the sole member of his household, and that his total [*4]household income was approximately $10,000.00 .

Petitioner also provides an application for Section 8 benefits, executed by Reeves in January 2007, which again lists himself as the sole household member. Also annexed to Petitioner's moving papers is a copy of Reeves' lease for the Subject Premises for the period of May 2007 through April 30, 2008. The lease lists Reeves as the sole occupant. Petitioner further annexes the lease renewals executed by Reeves in 2008 and 2009, both documents specifically provide a place for all occupants of the Subject Premises to be identified. Reeves indicated on both documents that he was the only person living in the Subject Premises.

This documentary evidence is further supported by affidavits submitted by Petitioner's agents. Deborah McBride submits an affidavit in support of Petitioner's motion. In her affidavit she asserts that she is the Superintendent of the Subject Premises, and that she resides on the same floor Reeves did, in Apartment 5D. Ms. McBride states that she is well acquainted with the residents of the Subject Premises, and with those that live on her floor in particular. Ms. McBride states that she only observed Respondent at the building on a regular basis in October or November of 2009, a few months before Reeves died.

Petitioner's motion is also supported by an affidavit of Consolato Cicciu, a managing agent for Petitioner. Ms. Cicciu states that she visited the Stebbins Apartment in late 2006, immediately prior to Reeves' relocation to the Subject Premises. Ms. Cicciu further asserts that, at that time, there was no physical evidence that Respondent was living with Reeves. The affidavit asserts that there was no women's clothing in the apartment, no women's shoes or toiletries, and that there was only one twin size bed in the apartment.

Petitioner argues that even if Respondent was residing with Reeves, and could prove a non-traditional family member relationship, the Court must reject the succession claim, based on the fraud perpetrated on Section 8, in that Respondent's income was not declared and the subsidy would have been fraudulently obtained. Petitioner relies upon the Court of Appeals decision in Evans v. Franco (93 NY2d 823) in making said argument. Petitioner's reliance is misplaced, as this Court has previously held, Evans did not address the issue of whether the tenant was entitled to continued possession under state law, but rather whether the tenant was entitled to continuation of the subsidy under Federal law (Bainbridge Cluster Associates v. Doe 16 Misc 3d 316 citing Evans, supra at 823).

However, Petitioner has submitted sufficient evidence to make a prima facie showing of entitlement to summary judgment on the issue of succession. Having done so ..."it was incumbent upon Respondent to come forward with evidentiary proof in admissible form to demonstrate the existence of a triable issue of fact relating to (her) eligibility under ... succession provisions (Haroust Corp v. Chin 155 AD2d 317, at 318, citation omitted).

In Haroust Corp. v. Chin, , supra the Court held that where the landlord submitted documentary evidence establishing that the occupant did not meet the criteria for succession, the occupant's failure to rebut the landlord's showing was fatal. While in that case no affidavit or was submitted by the occupant, here the brief affidavit of the occupant asserting in a conclusory manner an entitlement to succession is insufficient to create a triable issue of fact.

In another case on point, 420 East Associates v. Lennon 223 AD2d 408 (1st Dept, 1996),

The Appellate Division affirmed the trial court's award of summary judgment, including on the issue of succession. The Appellate Division held that

... the occupant of the subject apartment, failed to present any evidence [*5]demonstrating a material issue of fact as to her right of succession to the subject apartment. Had the subject apartment been her primary residence for no less than two years prior to the permanent vacating of the apartment by the original tenant of record, supporting evidence such as affidavits of third parties ... would be readily available...

Id at 408 citing Matter of Rose Assocs. v. State Div. Of Hous. & Community Renewal 121

AD2d 185.

In City Realty Associates Ltd v. Westreich 3 Misc 3d 127(A), The Appellate Term affirmed the trial court's award of summary judgment to Petitioner. The Appellate Term held in pertinent part "(i)n opposition to landlord's proof that appellant was not entitled to succeed to the rent controlled apartment, appellant failed to come forward with probative evidence tending to confirm that he primarily resided with his mother for at least two years immediately prior to her death (Id )." The Appellate Term noted in particular that the occupant "... conspicuously failed to submit the customary indicia of continuous residence at the subject premises during the relevant time period (Id)."

Similarly, in the case at bar, the Court would expect that Respondent, a union employee represented by counsel, would have submitted customary indicia of continuous residence such as her drivers license, tax returns etc to support her succession claim, and defeat Petitioner's summary judgment motion, yet absolutely no documentation was provided.

In addition to that failure, Respondent does not submit the affidavits of any one other then herself, to rebut Petitioner's evidence, and further support her claim that she was a non-traditional family member with the Reeves, and that they resided together since 2004 [see eg Chester Westowner LLC v. Mittleman 25 Misc 2d 132(A)(App Term, 9th & 10th, 2009)].

Respondent essentially acknowledges that she and Reeves did not intermingle finances, but argues that there is authority finding an entitlement to succession even in the absence of the intermingling of finances, citing to Fort Washington Holing LLC v. Abbott 28 Misc 3d 364, however in that case it was undisputed that the occupant and tenant of record had lived together for thirty years. Similarly, Respondent relies upon RHM Estates v. Hampshire 18 AD3d 326 for the proposition that failure to intermingle finances should not preclude a finding of entitlement to succession. However, in RHM estates the party claiming succession did submit documentary evidence of co-residency such as bank statements, a w2 form and a voter registration form, the types of documentary evidence conspicuously absent from Respondent's submission in the case at bar.

Based on the foregoing the Court finds that Petitioner has submitted sufficient evidence by way of documentation and affidavits to establish a prima facie entitlement to summary judgment, and that Respondent has failed to rebut that presumption and establish a question of material fact either on the issue of her being a non-traditional family member or on the issue of her having resided with the tenant of record from 2004 forward. Respondent's third affirmative defense is thus stricken.

FIRST AFFIRMATIVE DEFENSE

Petitioner also seeks to strike Respondent's first affirmative defense, which asserts improper service of the ten-day notice to vacate. Petitioner asserts conspicuous place service of the ten-day notice. Respondent states she never received the papers left at the Subject Premises by conspicuous place delivery, but acknowledges receipt by mail. [*6]

The affidavit of service states that the process server made an initial attempt at service on June 23, 2010 at 6:24 pm, and returned to deliver the papers on June 24, 2010 at 9:26 am, and affixed the papers to the door at that time. The process server also asserts mailing the papers on June 24, 2010.

In this case it is possible that both the affidavit of the process server and the Respondent's claims could be true. "Because there is no requirement that the papers actually be received for there to be proper service, an allegation that they were not received does not rebut the presumption of proper service. In Fairmont Funding and similar cases, the process server could have done a proper nail and mail' yet the wind or a passerby could have knocked the papers off the door ... Under such facts, service would be proper even if the target may not have received it. In other words, where both affidavits may be true, there is no need for a hearing [650 Fifth Avenue Co. v. Travers Jewelers Corp., 29 Misc 3d 1215(A), 2010 WL 4187936, citing Fairmount Funding Ltd v. Stefansky 235 AD2d 213]."

Based on the foregoing, the Court finds that Petitioner has sustained its burden of establishing proper service and nothing in Respondent's verified answer or affidavit in opposition requires a traverse hearing. As such Respondent's first affirmative defense is dismissed.

RESPONDENT'S SECOND AFFIRMATIVE DEFENSE

Respondent's second affirmative defense asserts that the Petition fails to disclose the corporate status of Petitioner. However, the Petition does in fact state that the Petitioner is a domestic corporation in paragraph 1. Additionally, Respondent submits no opposition to dismissal of the second affirmative defense. As such, Respondent's second affirmative defense is dismissed.

PETITIONER HAS ESTABLISHED AN ENTITLEMENT TO SUMMARY JUDGMENT

Petitioner thus has established that its is the landlord of the Subject Premises and that Respondent has remained in possession after the expiration of her license, and is without an ongoing right to possession. Based on the foregoing the Court awards Petitioner a final judgment of possession. The warrant of eviction shall issue forthwith, and execution shall be stayed through January 30, 2011 to afford Respondent an opportunity to voluntarily vacate the Subject Premises.

REMAINING ISSUES

Based on the forgoing, that portion of Petitioner's motion seeking to strike Respondent's jury demand is moot.

Respondent's fourth affirmative defense and first counterclaim of breach of warranty of

habitability, while not a defense to the underlying holdover proceeding, is relevant as against Petitioner's claim for use and occupancy. Given that the issue of possession has been resolved, the Court severs Petitioner's claim for use and occupancy for suit in a plenary action, and dismisses Respondent's claims of warranty of habitability without prejudice.

In the event Respondent seeks a stay of the execution of the warrant beyond January 30th, 2011, Petitioner may renew its claim for fair market use and occupancy and the Court will consider the condition of the Subject Premises in determining such award.

CONCLUSION [*7]

In conclusion, Petitioner's motion is granted to the extent of dismissing Respondent's first, second and third affirmative defenses, on the merits, and Petitioner's motion for summary judgment is granted. Petitioner is awarded a final judgment of possession, and forthwith issuance of the warrant of eviction. Execution of the warrant is stayed through January 30, 2011.

Petitioner's claim for use and occupancy and Respondent's claims based on warranty of habitability are severed for a plenary action.

Petitioner's motion to strike Respondent's Jury Demand is denied as moot.

This constitutes the decision and order of this Court.

Dated:December 27, 2010__________________________

Bronx, New YorkSabrina B. Kraus, JHC Footnotes

Footnote 1: On or about December 3, 2010, the Court restored the matter to the calendar for a conference with counsel, and specifically to inquire about the lack of documentary evidence submitted by Respondent. Counsel for Respondent asserted that documentation supporting the succession claim existed, but that it was not produced, because it was unnecessary to establish that questions of fact exist requiring a trial.