408 E. 10th St. Tenants Assn. v Hernandez

[*1] 408 E. 10th St. Tenants Assn. v Hernandez 2012 NY Slip Op 51247(U) Decided on July 10, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 10, 2012
Civil Court of the City of New York, New York County

408 East 10th Street Tenants Association, Petitioner

against

Harold Hernandez, Respondent



L & T 82377/2009



ANDREA SHAPIRO, ESQ

Attorneys for Petitioner

42 Broadway, Suite 1927

New York, New York 10004

(212) 965-8300

KAPLAN & CHUN, PC

Attorneys for Respondent

By: Howard C. Chun, Esq.

30 Avenue B

New York, New York 10009

(212) 777-0320

Sabrina B. Kraus, J.

BACKGROUND

This summary holdover proceeding was commenced by 408 EAST 10TH STREET TENANTS ASSOCIATION (Petitioner) against HAROLD HERNANDEZ (Respondent), seeking to recover possession of 408 EAST 10TH STREET, APT 1B NEW YORK, NY 10009 (Subject Premises), based on the allegation that Respondent was the licensee of Lydia Garcia, the last tenant of record (Garcia), and that Respondent is no longer entitled to remain in occupancy after Garcia's death.

PROCEDURAL HISTORY

Petitioner issued a ten day notice to quit on June 5, 2009, demanding Respondent vacate the Subject Premises on or before June 30, 2009. The Notice of Petition was filed on August 26, 2009, and the proceeding was originally returnable on September 3, 2009. Respondent appeared by counsel, and an filed an answer on September 23, 2009. Respondent's answer asserts that Petitioner is not authorized to institute and maintain this proceeding and that Respondent is [*2]tenant under the lease for the Subject Premises.

On May 7, 2012, the proceeding was assigned to Part R for trial. The trial commenced on May 7, continued on May 8, 11, 16, 18, 29, 2012 and June 14, 2012. The proceeding was adjourned to July 9, 2012 for the submission of post trial memoranda.

FINDINGS OF FACT

PARTIES AND THE SUBJECT BUILDING

Garcia was Respondent's mother and the tenant of record of the Subject Premises. Garcia lived in the Subject Premises until her death in 2008. Prior to her death, she was chronically ill for years suffering from Parkinson's disease, dementia and limited mobility. By the time of her death, Garcia was using a wheelchair to get around. Respondent first started living in the Subject Building as a teenager with his family, and has lived in the Subject Premises for over a decade. Respondent never attended high school, and works as a Superintendent in Manhattan.

The Subject Building is owned by the City of New York, and Petitioner is a Tenants' Association (TA), whose members are the tenants and occupants residing in the building. Petitioner is the net lessee of the building, pursuant to a lease dated October 1, 2000 (Net Lease)[FN1], and is authorized by HPD to manage the building. Petitioner is a participant in the City's Tenant Interim Lease (TIL) program, administered by HPD's Division of Alternative Management Program (DAMP). (T)his program had been enacted by the City to "promote and assist the purchase and management by tenants of deteriorated and abandoned buildings acquired by the City in In Rem' proceedings ( 172 East 122 Street Tenants Association v. Schwarz, supra, 136 AD2d at 372, citing Board of Estimate Resolution cal. No. 178, Mar 22, 1979)." Under the TIL, an association of tenants residing in a city-owned building are trained in building management by HPD, which also finances repairs. When the tenants establish that they can successfully manage the building the City sells it to the tenants as a cooperative.

502 West 135th Street Tenants Association v. Zimroth 160 AD2d 453, 454. During the period between when the building enters the TIL program and conversion to a cooperative "... HPD oversees the renovation and day to day management of the premises, retains responsibility for the major systems, sets initial rents and approves increases, insures that the rent collected is used for routine repairs and maintenance and must approve the commencement of holdover proceedings (Marcus Garvey Park Homes Housing Development Fund Corporation v Franco 12 Misc 3d 840, 842)."

A portion of the Net Lease was admitted into evidence (Exhibit 1).It includes the following provisions:

Article 5.1 provides "Lessee accepts the premises subject to the rights of all lawful Tenants and persons with rights to occupy the Premises." Article 5.5 addresses the enforcement of leases and authorizes Petitioner to institute eviction proceedings against Tenants and "members of their family" only for conduct that violates the lease, is unlawful or for nonpayment of rent.

Also attached to Exhibit 1 is a letter dated April 1, 2001 on HPD letterhead addressed to [*3]Petitioner which confirms that a tenant entire leasehold interest may be assigned upon written consent from HPD.

RESPONDENT'S REQUEST TO BECOME HEAD OF HOUSEHOLD

In February 2004 the tenants of the Subject Building executedTIL leases, wherein one member of each household was designated as the tenant of record, and other family members were listed on the first page of the lease, next to the heading designated as "Tenant."The controversy between the parties in this case centers on whether Respondent has the right to remain in possession afer the death of Garcia, who was the designated head of household and tenant of record.

A primary factor in Petitioner's decision to institute eviction proceedings against

Respondent was personal animosity between Respondent and Pedro Rodriguez. Mr. Rodriguez enjoys many personal advantages as a resident of this building. He is President of the Board, a position for which he and the other two Board members compensates themselves by taking eight percent of the rent collected by Petitioner.[FN2] Mr. Rodriguez and his family additionally enjoy the benefit of having two combined apartments in the building, whereas all other households are limited to one unit. Mr. Rodriguez and his family live in Apartments 3A and 3B. Since 2006, Mr. Rodriguez has owned a restaurant on the ground floor of the building. Mr. Rodriguez has a commercial lease for said restaurant at a below market rent of $600.00 per month. Mr. Rodriguez has been on the Board of Petitioner since 2003. Mr. Rodriguez is not the tenant of record for the apartments he lives in, but like Respondent was listed as a child living with the head of household.

Mr. Rodriguez testified that Respondent asked to have the lease transferred to him, after his mother died. Respondent made this request either before or after a TA meeting. Mr. Rodriguez told Respondent he would need to put the request in writing addressed to Petitioner, and that Petitioner would then submit the letter to HPD. Respondent complied and wrote a letter to Petitioner requesting the lease be put in his name (Exhibit F) for submission to HPD.

The letter submitted by Respondent was dated December 1, 2008 and provided:

Due to the recent passing of my mother Lydia Garcia I am requesting that the unit be transfer (sic) over to my name. I have been living and also listed on the apartment lease for over a ten year period. I have been paying the monthly maintenance on this unit for over 6 years even though the unit is listed under my mother name, utility, cable, and telephone are listed under my name. Due to my experience as superintendent at my present employment I am currently on the repair committee offering my knowledge and input in solving any issues or repairs that may be needed throughout the building ...

The letter was also sent by Respondent directly to Rosario Vera at HPD.

Mr. Rodriguez took the letter to HPD and discussed the request with Rosario Vera, Renee [*4]Martinez and Mr. Lugo. Mr. Lugo told Mr. Rodriguez that he would speak with his supervisor regarding the request and get back to Mr. Rodriguez.

Mr. Rodriguez testified that Respondent had grown inpatient, as he waited for a response, and that he got into an argument about the pending request with Board members during a TA meeting. Mr. Rodriguez' testimony focused repeatedly on the fact that in the course of this argument, Respondent asserted that he had retained counsel, who advised that Petitioner was obligated to accept Respondent's rent payments. Mr. Rodriguez testified that up until this point, Petitioner intended to support Respondent's request for the lease to be put in his name.

The day after Respondent told Mr. Rodriguez he had retained counsel, Mr. Rodriguez called HPD and unilaterally withdrew Petitioner's support for Respondent's pending request to take over as head of household. HPD advised Mr. Rodriguez that the request would not be approved and authorized Petitioner to commence a holdover proceeding against Respondent. Mr. Rodriguez provided this testimony on direct examination on May 11, 2012.

On May 16, 2011, Mr. Rodriguez testified that after Respondent had produced the first and last pages (Exhibit 27) of The Lease, Mr. Rodriguez contacted Rosario Vera at HPD, showed her a copy, and asserted that Respondent had added his signature after the fact.

Contradicting his earlier testimony, Mr. Rodriguez testified that after the meeting where an argument had occurred, Mr. Rodriguez went to HPD with a copy of The Lease, and spoke to Mr. Martinez, Mr. Lugo and Ms. Rivera. Mr. Rodriguez was advised that the request would be submitted to Mr. Martinez. Mr. Rodriguez then went back to Respondent and told Respondent they were waiting for an answer from HPD.

Mr. Rodriguez saw Respondent's retention of counsel as a hostile act, after which Petitioner's position regarding Respondent's request to take over as head of household completely changed. Mr. Rodriguez testified that Petitioner had never mentioned lawyers and had never indicated they would not support Respondent's request, until Respondent retained counsel. Mr. Rodriguez testified that this altercation took place in front of all the tenants at the meeting, and that Respondent got angry and walked out.

Mr. Rodriguez then "informed" HPD as to what had occurred, specifically that Respondent had retained counsel. Mr. Rodriguez testified that HPD immediately decided to deny Respondent's request, because they didn't want Petitioner getting stuck with a "troublemaker" as a tenant.

On May 18, 2012, Mr. Rodriguez added yet another layer to the sequence of events that led Petitioner to commence this proceeding. Mr. Rodriguez testified to a conversation that took place between himself and Respondent, the date was not specified. Mr. Rodriguez testified that Respondent was in his car in front of the Subject Building, and it was the last conversation between Mr. Rodriguez and Respondent, prior to the commencement of this litigation. Mr. Rodriguez testified that before this litigation was commenced he wanted to "make sure that everything was clear" and to verify that Respondent was going to continue using an attorney to pursue his request to take over as head of household and tenant of record. Mr. Rodriguez asked Respondent not to go through the courts, but to continue to pursue the matter through HPD, "without getting attorneys involved." Respondent declined the suggestion of moving forward without counsel, stating he did not need Mr. Rodriguez' help.

Mr. Rodriguez acknowledged that Respondent was never notified that there was a meeting at HPD regarding his request, and was not afforded an opportunity to be present at such meeting. Mr. Rodriguez also testified that HPD never responded to the request of Respondent, [*5]and that Mr. Hernandez never got back to Petitioner with a final answer on the request, as he originally indicated he would. Mr. Rodriguez testified that HPD never responded to the request because it was withdrawn by Petitioner.

Mr. Rodriguez interpreted the last conversation he had with Respondent to mean that Respondent did not want the assistance of Petitioner in pursuing his request. Mr. Rodriguez acted on this assumption by contacting Rosario Vera to withdraw the request for a transfer, and instead to get permission to commence a holdover proceeding. HPD never responded to Respondent's request for a transfer, because Mr. Rodriguez told them not to. Mr. Rodriguez further testified that Respondent had no right to receive a response to his request from HPD, because Respondent was not the "tenant of record".

Once Respondent exercised his right to retain counsel, he was labeled a "troublemaker" causing Mr. Rodriguez to secretly and unilaterally agree with HPD that no decision would be made on Respondent's pending request and that litigation would immediately be pursued.

Respondent was entitled to a written determination regarding his request to be made head of household upon the death of Garcia. Mr. Rodriguez' attempt to deem that request withdrawn, because Respondent had retained counsel was improper. The failure of either Petitioner or HPD to provide Respondent with a written determination regarding his request, as well as the basis for any denial, was a denial of Respondent's right to due process. Respondent was never advised of any adverse determination, never given an opportunity to be heard on his request and never provided with a response. The failure to provide Respondent with a written denial of his request improperly prevented from challenging any adverse administrative determination through an article 78 proceeding.

THE LEASE

Much of the trial focused on Exhibit A, the lease signed by Respondent and Garcia for the Subject Premises on or about February 2004 (The Lease). In the section of The Lease where "Tenant" is defined both Garcia and Respondent are listed and both signed the lease. Respondent testified credibly that his name was added shortly after the meeting where all the leases were executed, and that the President of the Board, Charo Nespral, consented to this change. Mr. Rodriguez' insistence that a single board member is not able to unilaterally change a term of The Lease is belied by his own unilateral action in changing the monthly rent and initialing the change to The Lease in the hallway outside the Subject Premises.

When the households for the subject building signed leases for the TIL program in 2004, it was the understanding of all that the head of household and tenant of record would be listed on the front page, and also listed under the "Tenant" could be any children or family members residing with the tenant in the household. All of the tenants also understood that one reason for listing the children that lived with them on the front page was to insure that the children would not be subject to eviction if the head of household died. This is the same right and privilege that Respondent asserts in the underlying proceeding.

For example, Margarita Beato, has served on the Board, testified that if she dies, her daughter, who lives with her, and who's name appears under the tenant section on the front page of the lease would be entitled to keep living in the apartment "because that's the rules of the building." Ms. Beato testified that the tenants were instructed that if their children's names were listed on the front page of the lease, then the children could remain in occupancy, even after the death of the head of household or tenant of record. Similarly, Ms. Hyacinth Lindo, the HPD tenant coordinator for the building, testified that she had authority to authorize a transfer of the [*6]leasehold to a remaining family member after the death of a tenant of record, but that the request for the transfer must be made in writing. Ms. Lindo testified that a request from a remaining family member to take over the lease of a deceased head of household would be permitted if Petitioner requested approval from HPD.

The Court can only consider the extrinsic testimony regarding the meaning of The Lease if the writing is ambiguous. "Interpretation of an unambiguous contract provision is a function for the court, and matters extrinsic to the agreement may not be considered when the intent of the parties can be gleaned from the agreement (Petracca v Petracca 302 AD2d 576 )." Neither party addressed the issue of ambiguity at trial, but both parties offered extrinsic evidence. The Court finds that it was the intention of the parties in executing The Lease that the head of household was entitled to list under the category of "Tenant" any adult children residing in the household at the time the lease was executed. It was further the understanding and intent of the parties that in the event of the death of the head of household, a remaining family member listed under the tenant section of the lease could apply for the leasehold to be transferred to themselves. The Lease itself provides for assignment in Paragraph 11. Paragraph 26 (not numbered) "PERSONS BOUND BY LEASE: It is the intent of the parties that this Lease shall be binding upon the Landlord and Tenant and upon any parties who may in the future succeed to their interests."

When Respondent added his name and signature to The Lease he was only trying to do so in the manner that all other tenants had been advised to at the meeting. The fact that he signed on the second page, in addition to listing his name as a tenant on the first page, does not make his claim invalid, and was not done in any underhanded attempt to circumvent proper procedure. While it did not make him a co-tenant, it gave him the same right to request that he be made head of household on the death of Garcia, as all other tenants and their families in this building understand to be their own rights. That understanding is that such remaining family members have the right to seek permission to become the head of household, and that such permission shall neither be unreasonably denied, nor denied without cause. By Petitioner's own admission there is no cause to deny Respondent's request, other than the argument set forth that the claim is statutorily precluded. This argument is belied by the terms of the lease itself and the conduct of the parties regarding other units.

DISCUSSION

RESPONDENTS REQUEST TO HAVE THE LEASE PUT IN HIS NAME WAS NOT HANDLED THE SAME AS OTHER REQUESTS BY REMAINING FAMILY MEMBERS

Petitioner has previously approved a transfer of lease from the head of household or

tenant of record to a family member, after the departure of a tenant of record. For example, Robert Rodriguez and Felix Cuevas were brothers living in Apartment 6D in the building.Robert was the head of household and the tenant of record, and he moved to Rhode Island (Exhibit 25A). Robert subsequently requested permission to transfer the lease to his brother, and this request was granted by Petitioner and HPD. No explanation was offered at trial as to why Felix Cuevas was entitled to succeed to his brother's interest as head of household, while Respondent's request was denied. If anything Respondent's claim to take over tenancy of the Subject Premises is more compelling, as Garcia did not choose to move, but died prior to the conversion. Moreover, arbitrarily allowing some remaining family members to take over a leasehold, while denying the same right to Respondent without cause is a violation of the governing By Laws (Exhibit 2) and regulations. [*7]

When Petitioner's witnesses were confronted with this issue, they were unable to justify Petitioner's actions. Many of the witnesses were themselves children of the heads of household and listed under the tenant section of the leases issued by HPD. None of them believe truly that they should loses their homes, without cause, if the head of household dies. Even Mr Martinez, Chief Operating Officer of the TIL unit at HPD, implicitly acknowledged that such a policy would be unjust, by stating he didn't make the rules. FAMILY MEMBERS LISTED ON THE TENANT SECTION OF THE LEASE ARE NOT MERE LICENSEES SUBJECT TO EVICTION WITHOUT CAUSE

Petitioner has failed to establish a cause of action entitling Petitioner to Respondent's eviction. There is no basis to find that under the TIL program, the death of the head of household entitles Petitioner to evict remaining family members without cause. There are two kinds of eviction proceedings contemplated to be within the province of Petitioner, pursuant to the By Laws and Net Lease with the City, summary proceedings for non-payment of rent and holdover proceedings, brought for cause, when a tenant is "disruptive" or in breach of its lease obligations. Neither one of these causes of action exist as to Respondent who has paid rent for the Subject Premises, complied with the lease, and invested sweat equity in the subject building as a member of Petitioner.

Petitioner's claim that Respondent no longer has the right to possession because Garcia has died, has no support in any applicable statute or governing agreement.The By Laws, in addition to the testimony of the witnesses, establish that each apartment has a designated head of household, generally referred to at trial as the tenant of record, but also identified family members, who reside in the household and are considered members of the Association. A copy of the original by laws governing Petitioner was entered into evidence (Exhibit 2). Article II of the By Laws sets forth the purpose of Petitioner, and specifies that Petitioner's duties under the interim lease with the City include: "a) Promoting tenant cooperation and participation in all aspects of building management; b) Collecting rents and leasing vacant apartments to new tenants; c) Initiating legal action against non-rent paying and disruptive tenants;

(Exhibit 2, pg.1, emphasis added)."

Conspicuously absent from the stated purpose of Petitioner is an policy of evicting remaining family members after the death of the head of household.

Article IV of the By Laws covers membership and provides in pertinent part:

All residential tenants are considered members of the Association. Each residential unit shall be considered one "household" regardless of the number of occupants, size of unit, or monthly rent. ....

There shall be no special consideration or accommodation extended to any one member or household that is not extended to all members or households. No rules may be placed on any one member or household that are not binding on all members and households. (Exhibit 2, pg 3, emphasis added).

The By Laws further provide that general meetings of the Association are open to all members, and that each household shall be entitled to one vote. Any member of a household may attend meetings, vote, serve on the executive board or other committees.

The updated By Laws (Exhibit 2A) indicate that the naming of family members in the [*8]household on the lease gives the family members named rights as a member of the TA.For example, Article IV Section 1 provides in pertinent part: No more than one family member may serve on the Board of Directors at a time. "Family members" are defined as children, siblings, parents, grandparents, nieces, nephews and cousins. All members of the Board shall be ... Named on the rent roll/lease or tenant of record ... Deletions and/or additions to "tenants of record" must be approved by the Board of Directors and HPD (Exhibit 2A, emphasis added).

This provision establishes that additions or deletions to the tenants of record are permitted. In this proceeding, the Board President in 2004, Charo Nespral approved the addition of Respondent to The Lease shortly after it was signed by Garcia. The record does not establish whether The Lease as amended was ever submitted by Petitioner to HPD for approval at or about the time of execution in 2004. The authority of the President to execute lease on behalf of Petitioner is specifically set forth in Article IV Section 2 of the By Laws (Exhibit 2A).

Petitioner's primary witness at trial, Pedro Rodriguez, is the President of the Board. Respondent is no more a licensee subject to eviction without cause than Mr. Rodriguez. Petitioner agreed that this "licensee" had the right to attend meetings only open to members, to tender rent payments, to serve on the Committees, participate in running the building and such "licensees" even have the right to serve as board members and run the building. These rights are beyond what the interest that a licensee has in residential premises.

Petitioner has been in the TIL program for well over a decade without proceeding to the point of converting to a cooperative, and all of the witnesses at trial testified that there is no set date for rehabilitation of the building or conversion, and that such occurrences are likely years away (see eg 151 West 140th Street Tenants Assn v City of New York 161 AD2d 160 noting nine years had elapsed since the building entered the TIL program without conversion to cooperative ownership being accomplished). Ms. Hyacinth Lindo testified that the fact that this building has been in the TIL program for over a decade is not unusual.

Taking Petitioner's logic to its ultimate conclusion then, if it takes a total of twenty years for this building to complete the TIL process, and all of the families, who are supposed to be the individuals benefitting from this program are subject to eviction, without cause, just based on the death of the head of household, many if not all of the families, will be subject to eviction, prior to the conversion to cooperative ownership. There is no basis in the TIL program or any of the governing documents to find that members of the original household at the time the building entered TIL and issued leases, should have less protection from eviction than a stranger who walks in off the street after the conversion and rents a vacant unit.

Respondent has been living in the Subject Premises since at least 2003. Garcia had been living in the Subject Building for several decades, initially in apartment 2B and later in the Subject Premises. Respondent was an active participant in Petitioner. Respondent attended board meetings (see exhibits B1- B5 and C meeting minutes noting Respondent's attendance) and training seminars given by HPD to tenants. Respondent received certificates of completion for the HPD training seminars (Exhibits D1- D2 ) . Why would HPD devote resources to training Respondent on how to manage and run the building, only to evict him without cause because his mother died? Such a policy in addition to being nonsensical, would be a waste of resources and taxpayer dollars. [*9]

Moreover, Petitioner's argument that Respondent is subject to eviction without cause because there is no applicable statutory entitlement to succession, puts the cart before the horse. Before any issue of an affirmative defense is reached, Petitioner must establish it has the right to evict Respondent from his family home of over a decade. Petitioner failed to do so at trial. Additionally, the absence of a statutory right to succession, does not preclude Respondent from requesting to be made head of household on the death of his mother, nor does it justify HPD's and Petitioner's denial of due process in addressing said request or the unreasonable denial of said request.

Even if Respondent were not covered by The Lease, and had been rented a vacant unit after the building had entered the TIL program, he would not be subject to eviction without cause (512 East 11th Street HDFC v Grimmet 181 AD2d 488). It is well established that in an HDFC government is sufficiently intertwined with the building that due process requires that any termination of tenancy must be for cause and can not simply be based on the expiration of a term (Grimmet, supra). This is even more applicable when the building is still City owned and has not yet been converted to a cooperative, as the government involvement is stronger and more direct.

As a general rule, where the state (or city) has so far insinuated itself into a position of interdependence with a [housing] program or project, the program or project cannot be considered to have been so purely private' as to fall without the scope of the Fourteenth Amendment.' While the TIL program is transitory in nature, the City oversees petitioner's activities and operation, monitors its building management skills, sets initial rent increases, and must approve the commencement of holdover proceedings. Thus, the City is so entwined' with the conduct of the program as to constitute significant and meaningful governmental participation, triggering constitutional due process guarantees. One of those guarantees is that a tenant is entitled to notice of the alleged cause for eviction and procedural due process in the determination of whether cause exists. Eviction ... requires a cause other than mere expiration of the lease'. Since petitioner did not allege any cause for removal of the tenant, the petition was properly dismissed [157 West 123rd Street Tenants Assoc. v Hickson 142 Misc 2d 984 (App Term, 1st Dept, 1989, citations omitted].

Moreover, the due process requirements applicable to Petitioner and this TIL building require that Respondent be provided with a written statement of the denial and the reasons for the denial (Johnson v City of New York 192 AD2d 352).

Title 28 of the Rules of the City of New York addresses the Department of Housing Preservation and Development. Chapter 34 of Title 28 directly addresses buildings in the TIL program. There is nothing in Chapter 34 of Title 28 that prohibits the claim of a remaining family member after the death of head of household. Chapter 24 is completely silent as to the procedure to be used by a TA in this situation. 28 RCNY § 34-01 defines tenant as "a residential tenant of record occupying a dwelling unit in a Building pursuant to a lease with the City or with a Tenant Association that has entered into a Tenant Interim Lease." Respondent is in occupancy pursuant to The Lease agreement executed by the parties, and his addition to The Lease was authorized by the President at the time it was added. 28 RCNY § 34-04(f) precludes Petitioner from commencing an eviction proceeding against a tenant on any grounds other than nonpayment of rent without prior written approval from HPD. Petitioner has no written approval for the commencement of this proceeding.

Petitioner's primary legal allegation in maintaining this eviction proceeding against [*10]Respondent is the claim that there is no statutory right to succession in TIL buildings. This claim is based on the fact that succession to a tenancy in a city owned building is addressed in Chapter 24 of Title 28. Chapter 24 provides a statutory right to succession in buildings under the supervision of the Division of Property Management and the Division of Homeless Housing Development. Chapter 34 does reference other Chapters of Title 28 being specifically applicable or in applicable to TIL buildings. 28 RCNY § 34-02(a) provides:

Coverage. These rules will govern the procedures for: selecting Buildings for the Program, leasing Buildings to Tenant Associations, determining and establishing rent, providing notice to Tenants and terminating Buildings from the Program. Buildings in the Program will be subject to these rules and chapter 21 of this title. Notwithstanding any provision of chapter 14 of this title to the contrary, Buildings in the Program will not be subject to chapter 14 of this title.

Chapter 21 addresses buildings that come under DAMP. Chapter 14 addresses the setting of rents in DAMP buildings in programs other than TIL.

There is also some case law addressing a claim of succession in a TIL building. In 518 West 134th Street Tenants Association v Calderon 181 Misc 2d 216 (1999) the Appellate Term held that because the TIL regulations were silent as to the issue of succession, the court could not presume that such a statutory right existed. However, the decision was issued in the context of a reversing a Housing Court decision to award "succession" to the remaining son of the tenant who voluntarily vacated the premises, under the authority of Braschi v Stahl Associates 74 NY2d 201 and standards applicable to rent stabilized tenancies, but not to TIL tenancies. Additionally, the facts of Calderon differ from those in this case, because in Calderon the son was not an authorized occupant of the apartment during any part of his mother's tenancy, the son did not even have a key to the apartment and at the time of the appeal, the conversion to a coop had already been accomplished. These factual distinctions make explain why an unauthorized occupant related to a tenant who voluntarily moved on and chose not to purchase is a licensee, whereas an authorized occupant listed on the lease governing the tenancy who remained in possession after the death of the head of household would not be.

Moreover, as noted above, the lack of a statutory right to assert succession does not deprive Respondent of applying to become head of household, and the basis for such request finds support in the By Laws, The governing Lease, the governing regulations, the testimony of Petitioner's witnesses at trial as well as the prior conduct of Petitioner and HPD in granting such requests.

The Court of Appeals has held that "due process is a flexible constitutional concept calling for such procedural protections as a particular situation may demand ( LaRossa Axenfeld & Mitchell v Abrahms 62 NY2d 583, 588)." Here, Respondent was entitled to notice of his right to apply to take over as head of household after his mother's death, written determination on that request based on objective standard, and if the request is denied a written statement as to the denial, as well as notice as to the proper procedure to challenge that denial.

In this proceeding, Respondent received no meaningful opportunity at HPD to confront any statements made by Mr. Rodriguez leading to HPD'+s denial of his request. Respondent received no notice of the facts relied upon by HPD in reaching its determination or even notice that a determination has been made, and no notice as to how he might challenge HPD's adverse determination. As such, Respondent is permitted to litigate his claim to remain in possession under The Lease in Housing Court (City of New York v Scott 239 AD2d 113; see also Westwood [*11]Houses Inc. v Hayes 12 Misc 3d 128(A) App Term 1st Dept). Respondent was in occupancy pursuant to the Lease. Both parties acknowledge that The Lease was ambiguous and offered extrinsic evidence as to how The Lease should be interpreted. As noted above, the Court finds it was the intention of the parties in executing the Lease that Respondent could apply to become head of household upon the death of his mother and that such permission could not be unreasonably withheld or withheld without cause. Petitioner offered no cause for denial of Respondent's request. As such the Court finds that Respondent is entitled to take over The Lease upon his mother's death and become the new head of household and tenant of record for the Subject Premises.

CONCLUSION

Based on the foregoing, the petition is dismissed. This constitutes the decision and order of the Court.

_________________________

HON. SABRINA B. KRAUS

Dated: July 10, 2012

New York, New York

Footnotes

Footnote 1: Lydia Garcia was a signatory to the Net Lease, signing on behalf of Petitioner as Petitioner's Treasurer. The Net Lease does not appear to ever have been recorded with the City according to ACRIS on line records.

Footnote 2: Article V Section 4 of the By laws relied upon by Petitioner (Exhibit 2A) provides "No Management Fee shall be paid to Directors or Officers for their services as directors and Officers. No remuneration may be paid to a Director or Officer for services performed by them in any other capacity, unless a resolution authorizing such services is approved by the Board of Directors before the services are undertaken. Payments to officers in violation of the By Laws are referenced in Exhibits B-2 and B-4.