Manley Laundromat Inc. v Su Gui Wu
Annotate this CaseDecided on July 1, 2015
Civil Court of the City of New York, New York County
Manley Laundromat Inc., Petitioner-Landlord
against
Su Gui Wu 166 Henry Street, Apt. 14 New York, NY 10002, Respondent-Licensee "JOHN DOE" and/or "JANE DOE" Respondents-Undertenants
L & T 70524/2014
KAPLAN & CHUN, PC
Attorneys for Petitioner
By: Howard C. Chun, Esq.
207 East 4th Street, 1st Fl.
New York, New York 10009
212.777.0320
MFY LEGAL SERVICES
Attorneys for Respondent
By: Michael Grinthal, Esq.
299 Broadway, 4th Fl.
New York, New York 10007
212.417.3709
Sabrina B. Kraus, J.
This summary holdover proceeding was commenced by MANLEY LAUNDROMAT INC(Petitioner) against SU GUI WU (Respondent) seeking to recover possession of 166 Henry [*2]Street, Apt. 14, New York, NY 10002 (Subject Premises) based on the allegation Respondent was the licensee of Shuilan Chio a/k/a Shjuilan Chan (Tenant), the former rent control tenant of record, and that Respondent's licence expired upon the death of Tenant on August 1, 2012, and that Respondent remained in possession, after said date, without Petitioner's permission.
PROCEDURAL HISTORY
Petitioner issued a Notice to Quit dated June 19, 2014, asserting that Respondent's
licence had been terminated upon the death of Tenant, and that any license claimed from Petitioner was thereby revoked. The petition is dated July 9, 2014, and the proceeding was initially returnable July 21, 2014.
On the initial court date, Respondent appeared by counsel and the proceeding was adjourned to September 19, 2014, pursuant to a stipulation which provided Respondent would serve an answer by August 29, 2014, and would pay ongoing use and occupancy.
On August 29, 2014, Respondent filed an answer asserting succession pursuant to 9 NYCRR § 2204.6(d)(3)(i), to Tenant, who was her aunt, based on their living together in the Subject Premises from 2006 through Tenant's death, as a non-traditional family member. The answer also asserts breach of warranty of habitability, as a defense to claims for use and occupancy, and a request for repairs.
On March 5, 2015, the proceeding was assigned to Part R for trial, and the trial commenced. The trial continued on March 9, April 21, and concluded on April 22, 2015. The proceeding was adjourned through May 29, 2015, for the submission of post trial memoranda and on May 29, the court reserved decision.
PRIOR RELATED PROCEEDINGS
As indicated at trial, the court takes judicial notice of the contents of files from three prior summary proceedings regarding the Subject Premises: a nonpayment under Index Number 86708/2011, and holdovers under Index Number 95117/2005 and 89631/2013.
The 2013 Nonprimary Residence ProceedingRespondent never told Petitioner that Tenant had died. Petitioner issued a notice of termination dated October 23, 2013 addressed to Francisco Cho and Respondent. The notice asserted Respondent had not been seen in the Subject Premises for over twelve months, and that Respondent was believed to be in nursing home. The proceeding was initially returnable in December 2013. Respondent appeared. Apparently, Respondent did not advise the court on that date that Tenant was deceased as the court made an APS referral for Tenant.
On January 14, 2014, MFY appeared for Respondent and acknowledged that Tenant had died in August 2012. The proceeding was marked off calendar for discovery. On March 18. 2014, Respondent filed an answer asserting procedural defenses and a claim of succession.
On June 19, 2014, the proceeding was assigned to part L for trial. The proceeding was dismissed by this court, as both named Respondents were dead prior to the commencement of the proceeding, and a law suit against a deceased person is void as a matter of law. Respondent's application to withdraw her succession claim without prejudice was granted.
The instant proceeding followed.
The 2011 Nonpayment Proceeding
Petitioner issued a rent demand dated September 26, 2011, addressed to Francisco Cho [*3]and Tenant, seeking $2211.00, for the period of November 2010 through June 2011, at a monthly rent of $201.00. The petition was dated October 13, 2011. On November 10, 2011, Respondent appeared and filed an answer asserting the rent had been offered and refused, and breach of warranty of habitability. The proceeding was initially returnable November 22, 2011, at 9:30 am.
The proceeding was adjourned to December 20, 2011, at Respondent's request and for her to have an opportunity to obtain counsel. On December 20, 2011 the proceeding was discontinued on consent, after Respondent tendered $2814 in arrears, which Petitioner accepted without prejudice, on behalf of Tenant.Petitioner agreed to make repairs and Respondent agreed "to provide updated documentation from nursing home as to Respondent's likelihood to return home (5/20/11 stipulation)."
The 2005 Nonprimary Residence ProceedingPetitioner served a predicate notice, dated August 2005, which alleged that no one had lived in the Subject Premises since at least 2003. Specific factual allegations included that: Tenant was a permanent resident of Cabrini Nursing Home and had been for years; that there had been no electrical service and no telephone service to the Subject Premises since March 2003; and that Tenant had not received mail at the Subject Premises for at least a year.
The proceeding was initially returnable on October 25, 2005, respondents failed to appear and an inquest was scheduled. On November 23, 2005, an inquest was held by the court (Lansden, J), but the court reserved decision because Tenant was in a nursing home. On January 13, 2006 [FN1] , the court appointed Steven DeCastro, as Guardian Ad Litem (GAL) for Tenant.
Petitioner's counsel wrote a letter to the court regarding the status of the proceeding on February 6, 2006. Attached to the letter is a document from Con Edison confirming no electrical usage since March 2013, as well as an investigator's report supporting the other allegations in the predicate notice.
On March 2, 2006, the GAL moved for an order vacating Tenant's default, alleging that a case worker and family members indicated that there was a plan for Tenant to be discharged and return to the Subject Premises. Petitioner cross-moved for entry of a judgment. On April 5, 2006, the court granted the motion to vacate the default, and MFY Legal Services appeared on behalf of the GAL. MFY was directed to file an answer, and the proceeding was adjourned to May 3, 2006, for all purposes.
On April 25, 2006, MFY filed an answer on behalf of Tenant. The answer asserted procedural defenses and that Tenant had only been "temporarily" absent from the Subject Premises, while recovering from a stroke, and intended to return to reside at the Subject Premises.
On May 3, 2006, Respondent and Tenant appeared in court, as did counsel and the GAL and a conference was held. Later that day, the GAL sent a letter to the court advising the court that Tenant's "whereabouts are presently unknown" and that Respondent provided information to the court at the conference which was untrue. The GAL further stated:
Today, Ms. Wu (the tenant's purported niece) represented that Ms. Chio was discharged [*4]Monday by the nursing home and that the home care services are being provided to her there. Ms. Wu stated repeatedly that Ms. Chio's coming to court proves that she is not demented at all. Ms. Wu and Ms. Chio confirmed that the home care staffmember was in the apartment. I then asked Ms. Chio, "What is the name of the caregiver who came to your apartment?" When Ms. Chio answered that she did not know, Ms. Wu interjected, "She doesn't remember because the home care person was only there once." I made a note to confirm this with the agency, as a matter of routine.
In the court conference, the court inquired whether the home care services have been obtained, and documentation, both from Cabrini and the home care agency, was provided to suggest that 12-hour-a-day home care services are in place.Based on extensive conversations with Tatiana Bourgeois, Director of Social Work of the Cabrini Nursing Home, I believe that we received an extremely incomplete picture of theservices Ms. Chio is receiving and the conditions upon which Ms. Chio was released. The true facts - which Ms. Wu now admitted to me by phone - appear below.Apparently, Ms. Chio was scheduled to be discharged on Monday. She in fact was not discharged on that day. Based on Cabrini's diagnosis of dementia, Ms. Wu was supposed to meet Ms. Chio at the facility for discharge. Ms. Wu failed to appear. As a result, Cabrini rescheduled the discharge. Ms. Wu appeared later at the facility carrying flowers for the Cabrini staff, and explained that she was delayed because she left her wallet at the flower shop. She stayed at the facility for an extended period and requested that Ms. Chio be referred to another home care agency.
During the discussions with the Cabrini staff, involving communications with the home care agency, Ms. Wu in fact cancelled the home care services, against the recommendations of Cabrini. Thereafter, she signed a statement with Cabrini stating that she would be fully responsible for Ms. Chio's care and would protect her interests. On Tuesday, having made a commitment to support Ms. Wu's (sic) interests and to provide 24-hour care personally, Ms. Wu convinced Cabrini to discharge Ms. Chio exclusively to Ms. Wu's care. The home care agency was never allowed to go to the apartment.Before taking Ms. Chio out of the protection of the nursing home, Ms. Bourgeois specifically advised Ms. Wu that she must disclose this information to the GAL and to the court, and that "the court may not be too happy" to find out that Ms. Wu had cancelled Ms. Chio's home care services.I have just spoken with Ms. Wu by telephone, who not only confirms these facts, but informs me that Ms. Chio is not residing at the subject apartment, but is [*5]residing at the home of another relative in Chinatown. Ms. Wu refuises to disclose the street address of that relative. She states, however, that she will take Ms. Chio to her apartment "soon."
In my view, Ms. Wu is not a reliable source of information, and I am doubtful as to where interests lie. She acted specifically against Ms. Chio's interests by cancelling the 12-hour home care services that Cabrini had carefully arranged. After signing a statement that she would be a responsibly (sic) care for Ms. Chio, she violated that commitment almost immediately by falsely representing to the Guardian Ad Litem in court that home care staff had been assisting Ms. Chio at the apartment. She concealed vital material information as to her role in isolating Ms. Chio from professional help, and for some reason, arranged conditions so that Ms. Wu alone would be both the caregiver and the only person to evaluate the care given. In fact, I am not sure where Ms. Chio presently resides.
Also on May 3, 2006, MFY moved for an order relieving Steven De Castro as GAL for Tenant, and the GAL moved for an order referring Tenant for a psychiatric evaluation.
In their moving papers, Donna Chiu, an attorney with MFY, asserted that Tenant was aware of the holdover proceeding, and wished to return to live in the Subject Premises. Ms. Chiu visited Tenant at Cabrini on March 30 and April 3, 2006. Ms. Chiu stated "(Tenant) understands she cannot live alone in the apartment and informed me that a family member will be living with her and she will be receiving home care." Ms. Chiu's affirmation further asserted that discharge had been scheduled for May 1, 2006 and (Tenant) would be receiving twelve hours of daily home care services from the Metropolitan Jewish Home Care Agency.
The GAL stated he did not agree with MFY's assessment that Tenant did not suffer from dementia, that Tenant had been diagnosed with dementia at Cabrini, and GAL sought an independent psychiatric examination to determine Tenant's mental state. In his May 30, 2006 affirmation the GAL, described Respondent's actions towards the Tenant "abusive" and "exploitive."
There was additional motion practice in the proceeding.
On May 31, 2006, the parties entered into a stipulation withdrawing the petition without prejudice, all pending motions were withdrawn and the proceeding was discontinued.
FINDINGS OF FACT
Petitioner is the owner of the subject building pursuant to a deed dated February 17, 1998 (Ex 1). There is a valid MDR for the Subject Premises filed August 1, 2014 (Ex 2). The Subject Premises were registered with DHCR as subject to rent control, listing Francisco Cho as the tenant of record, at a monthly rent of $158.13 (Ex 3). The Subject Premises were next registered in July 2005, and for the years 2005 through 2007, the tenant of record was listed as Shui L. Chan or Shui Lan Chan at a rent of $201.00, and the Subject Premises were listed as rent stabilized (Ex 3). The apartment was next registered for the year 2011 through 2013, at the same rent and the tenant is listed as "SHUI LAN CHAN - SUCCEEED FR".
The Subject Premises is a one bedroom apartment on the fourth floor of a walk up building.
For the reasons stated below, the court finds that Respondent failed to establish by a preponderance of the credible evidence that she primarily resided in the Subject Premises with [*6]Tenant for at least one year prior to Tenant's permanent vacatur in 2010 or that she had a nontraditional family relationship with Tenant entitling her to succession.
In the late 1980s, Respondent emigrated to this country from China. Respondent and her husband bought a home in Massachusetts in 1990 (Ex A). Respondent testified she lived there through 2006. However, Respondent had problems with her homeownership early on. In 1997, Respondent fell behind on common expenses due to the Homeowners Association and a lien was placed on the home.
Respondent falsely testified that in 2009 her home in Massachusetts was foreclosed upon by the bank, because she and her husband fell behind in mortgage payments. Respondent was recalled by her attorneys to change this testimony.
What in fact happened was that on August 31, 2009, the Massachusetts home was condemned. As of that date, the home was in a Collyers like condition. It was filled with trash and decaying food products. Animal feces and urine saturated the carpeting and flooring in the Kitchen, hallways and living room, and the house was declared unfit for human habitation (Ex K-1). The photos shown establish that this is not a condition that developed overnight, but one that developed over years (Ex K-1).
By 2012, the house had no heat water or electricity and two abandoned unregistered automobiles were left on the property one of which had been set on fire. The cars had been there since at least 2009 (Ex K-1).
Tenant was the last rent control tenant of record for the Subject Premises. In 2000, after two strokes, Tenant was admitted to cabrinin Nursing and Rehabilitation Center, where she remained through the spring of 2006.Respondent testified that Tenant suffered another stroke early in 2006. During this six year period, Tenant received care 24 hours a day. While Respondent testified that she regularly visited Tenant during this period, no documentation was offered to support this claim, and Kim, Tenant's nephew, later testified that through 2006, he was the primary contact person for the nursing home, and he was the one who handled any issues that arose.
In general the court found Respondent's testimony was incoherent, inconsistent, unsubstantiated and lacking in credibility.
In 2005, Petitioner commenced a nonprimary residence proceeding and in 2006, Respondent appeared and arranged to pull Tenant out of the nursing home, in order to present a defense in that case, which is discussed in further detail above. At this time Tenat was wheelchair bound and extremely overweight with limited mobility.
On May 2, 2006, Respondent declined the offer of a home attendant 12 hours a day from Metropolitan Jewish Homecare, and agreed to assume full responsibility for Tenant's care. Respondent applied to be Tenant's representative payee and as a result started receiving an income of $486 per month (Ex 6). Respondent advised Cabrini that she would seek home care services through a different agency.
Later that month, an application was submitted to the City of New York, CASA, for home care services for Tenant. The application indicated that Tenant had impaired sight and hearing, was occasionally incontinent, was only alert sometimes, but would be able to direct a home care worker and that Tenant needed help to walk or get up or down from a sitting position. The application further indicated that Tenant had just been discharged from Cabrini Center for Nursing and Rehabilitation with a home health attendant for 12 hours per day, seven days per week, and that her family wanted to change to a different agency. The application indicated that [*7]Tenant suffered from dementia and depression (Ex B-3).
Home care services were briefly provided by the agency and then Respondent unilaterally determined to cease such services. It is unclear how long they were in place. Respondent testified that home care commenced in July of 2006. She later testified alternatively that she kept the attendants for one month, and then she testified it was for one year. She also testified that she was working during this period, which would mean she left Tenant unattended from May through July during the day at the Subject Premises, despite all medical indications that Tenant could not remain in the Subject Premises alone. Respondent submitted no documentary evidence from the Home Care Agency which could substantiate her testimony.
From the spring of 2006 through late 2010, Respondent testified that Tenant and Respondent lived in the Subject Premises. Tenant went from receiving round the clock professional care, to receiving no health care services at all, based solely on Respondent's determination that this was appropriate. Tenant would have basically been a prisoner in the one bedroom apartment as there was no elevator in the building and Respondent was not capable of getting Tenant up and down the stairs.
In 2010, Tenant had was hospitalized again.Respondent testified that she had Tenant admitted to the hospital because the Subject Premises was cold and there was no heat. Respondent and her husband believed Tenant's blood pressure was elevated, and that Tenant may have had a stroke. Respondent never brought Tenant back to live in the Subject Premises after that date, and Tenant remained in various institutions from that point until her death in August 2012.
Tenant was transferred from Atlantis Rehabilitation and Residential Healthcare Facility to Brooklyn Hospital, on March 6, 2011. At that time, Tenant had been at Atlantis for less then thirty days. The transfer order states that Tenant was residing in a nursing home and transferred to Brooklyn Hospital, because she was having difficult breathing. The documents list Respondent as the contact person, with an address at the Subject Premises and a phone number of 617.888.2806 (Ex B-3). Tenant was described as nonverbal and lethargic.
Tenant was back as an in patient at Atlantis Rehabilitation & Residential Healthcare by December 2011(Ex 5).
In June 2012, Tenant was admitted to Four Seasons Nursing Home and Rehabilitation Center, because she needed to be placed on a ventilator. Tenant was being fed through a tube. The facility received no information from any relative on her admission, relying solely on transfer forms. However, Respondent did meet with workers at the facility within a few days of Tenant's admission. Tenant was described as being in a "...persistent vegetative state; with very minimal response to tactile stimuli, nonpurposeful. No meaningful response, no visual tracking or any sign of cognitive evidence (Progress Notes June 25, 2012 Ex G)."
On July 6, 2012, Tenant was discharged from the Four Seasons Nursing and Rehabilitation Center to Brookdale Hospital (Ex B-3) for treatment for anemia. Respondent testified that around this period she took a one month vacation to visit relatives in China. The medical records indicate that the nursing home attempted to contact Respondent prior to the transfer, at a phone number of 646-498-3922, but was unable to reach her (Progress Notes, July 6, 2012 Ex G). Tenant remained in Brookdale, on a ventilator, until August 1, 2012, when she died.
Tenant died on August 1, 2012. The death certificate states Tenant was an inpatient at Brookdale University Hospital and Medical Center, lists the Subject Premises as Tenant's [*8]address and lists the informant as Kin Chung Chan, a nephew with an address at 185 Bay 17th Street, Brooklyn, New York, 11214 (Ex 4).
Respondent had a New York State Identification card issued August 15, 2006 valid for a period through August 20, 2015 (Ex A-1). Respondent has made various claims about when she moved into the Subject Premises. At trial, Respondent testified that she moved in April 2006, however she filled out an application to become Tenant's payee and asserted therein that she had lived ion the Subject Premises since 2005 (Ex B-3). Respondent's conflicting statements add to her lack of credibility.
Respondent had a Platinum Master Card, issued by Capital One, for the period of January 2006 through January 2010 (Ex C). Statements from this account were not submitted into evidence.
Tenant had a bank account at First American International Bank, statements were sent to Respondent, on behalf of Tenant. Respondent opened the account in July 2006. The account was closed in December 2009. Statements from December 2007 through December 2009 were addressed to Tenant, care of Respondent, at the Subject Premises. Respondent listed her home phone number as 212.227.9136 and her cell phone of 917.293.5346, on the application n July 2006 (Ex C). No statements were submitted for the accounts associated with either number at trial. All of the withdrawals from the First American Account were made by Respondent. In the calendar year 2008, Respondent withdrew over $30,000.00 . On July 7, 2008, Respondent deposited $28,591.64, which sum came from Metropolitan Life Insurance Company in a check payable to Tenant (Ex C). Respondent deposited only two checks into this account that were from her own funds. The account does not establish commingling of finances or financial interdependence, but rather a unilateral taking by Respondent of all monies coming to Tenant for Respondent's own purposes.
Respondent was the representative payee for Tenant's government benefits in 2011 (Ex A-2). In June 2006, Respondent submitted an application to be the representative payee for Tenant's social security benefits (Ex B-3). In the application Respondent asserted that Tenant was mentally impaired (directly contradicting her representations to the court at the same period that Tenant did not suffer from dementia), that there was no one else willing to serve as payee and that Respondent and Tenant resided together. The application further states Tenant derives her income of $574.50 from social security disability benefits for a Black Lung. Respondent asserted that she had lived at the Subject Premises since April 2005, and that her phone number was 978.549.2283. From July 2006 forward, Tenant's social security checks were sent to Respondent as payee at the Subject Premises. Tenant received a monthly benefit of $486.00. This amount increased to $574.00 per month as of May 2006.
Starting in the Spring of 2006, Respondent paid the rent for the Subject Premises on behalf of Tenant. Respondent paid $4,320 for arrears on May 8, 2006, to Harry Dan which was accepted by Petitioner, without prejudice, and left a remaining balance of $500. By June 3, 2006, Respondent had paid all arrears for the Subject Premises (Ex A-4).
Respondent initially testified that she worked full time for one year from the Spring of2006 through the Spring of 2007. Again no documents were submitted to support this testimony, and there is no indication that Respondent regularly deposited her "wages" into the joint account she had with Tenant. Respondent then contradicted her testimony and stated that she was employed through March of 2008. Respondent testified she had a bank account in Massachusetts for the period of 2008
through 2010, but no records from the account were submitted in evidence. Respondent testified that she did not file taxes for the years 2010 through 2012, and again
incredibly testified that she did not know if her husband filed for those years. Respondent testified that she was focused on caring for Tenant, and implied her husband handled such matters. The documents entered into evidence show numerous phone numbers associated with
Respondent. No statements or records for any said number or account were offered into evidence. For example, the records from Atlantis Residential & Rehabilitation Health Care Facility provide that in February 2011 Respondent provided 617-888-2806 as her contact number. No records were submitted into evidence pertaining to this account.
The Atlantis records also indicate that Respondent was not present either when Tenant was transferred into Atlantis on February 15, 2011, or when Respondent was transferred out on on March 5, 2011, and that on both occasions the facility tried to reach Respondent on the 617 number but left a voice message for her. The records do not indicate that Respondent and Tenant held themselves out as mother and daughter, but rather listed Respondent as Tenant's niece.
As of July 2006, Respondent also listed the following phone numbers as her, 978-549-2283, 212-227-9136, and 917-293-5366 (Ex C). No statements for any of these accounts were submitted into evidence.
As of the date of the trial, Respondent alleged she had been unemployed since 2008, and her husband alleged sporadic employment.
Respondent's husband Lin Wei Ye (Husband) also testified at the trial. Husband testified that he has lived in the Subject Premises since late 2009. Husband testified that he and Tenant jointly filed taxes in 2007 and listed the Massachusetts home as their address.
Husband was unemployed when he started living in the Subject Premises in 2009. Husband testified that from 2008 forward tax returns for himself and Respondent were prepared by Respondent. Husband testified that Respondent hired someone to prepare tax returns and that he gave Respondent the information to be used for the returns. Husband testified that Respondent was in charge of handling finances for the family. This completely contradicts Respondent's testimony regarding fiancés and taxes for the same period. Husband testified that he and Respondent filed joint tax returns for the years 2009 to the present.
Counsel for Respondent tried to change this testimony on redirect, but the result was not credible.
Yung Wan Chan (Chan) also testified for Respondent. Chan testified that Tenant was wheelchair bound from 2006 and could not navigate stairs. Chan clearly was not an objective witness and her goal in testifying was to assist Respondent in securing succession rights. The court did not find Chan credible, and also does not find great weight should be accorded to Chan's testimony.
Kim Cheung Chan (Kim) was tenant's nephew. Kim emigrated to the United States in 1988, and lived with Tenant in the Subject Premises for approximately two years. From 2006 until Tenant died, Kim did not visit the Subject Premises more than once or twice a year. Kim testified that from 2006 forward Tenant was wheelchair bound, very overweight and not very mobile.
Because of his sparse interaction with Respondent and Tenant from 2006 forward, the court can not give Kim's testimony great weight.
DISCUSSION§ 2204.6(d)(3) of the Rent Control Law provides that no eviction shall be permitted of a tenant's family member, where the tenant has permanently vacated, and such family member has resided with the tenant as a primary resident for a period of no less then two years as a primary residence.
A niece is no longer included in the definition of qualifying family members based solely on blood relationship. A statutory amendment effective June 19, 1997 removed nieces and nephews from the definition of family members entitled to succession rights based on their familial relationship. The Rent Regulation Reform Act of 1997 contained a provision that amended Pub. Housing Law §14(4). The amendment to that provision directed DHCR to promulgate regulations that eliminated aunt, uncle, niece and nephew from the definition of "family member" qualified to success to a rent regulated tenancy. The purpose of this amendment was to limit the class of individuals entitled to succeed to regulated apartments, and to bring regulated rents into parity with market rents. The executive memoranda filed with the Assembly Bill provides in pertinent part:
To ensure that repeated successions do not deny owners vacancy bonuses for extended periods of time, the laws governing succession have been reformed. The list of family members entitled to succeed a tenant in occupancy has been reduced by eliminating nieces, nephews, aunts and uncles. ... These far reaching succession reforms coupled with the provision of vacancy bonuses are expected to bring the rent levels of three out of four rent stabilized apartments to market levels over the life of the bill.
(Governor's Approval Mem. Bill Jacket, L 1997, ch 116).
However, a niece can assert a succession claim if she can establish that she was residing with Tenant in the Subject Premises and " ... can prove emotional and financial commitment, and interdependence between ..." herself and Tenant.
The statute provides that factors to be considered in such a determination include longevity of the relationship, sharing expenses, intermingling of finances, engaging in family type activities; formalizing of legal obligations, holding themselves out as family members [§ 2204.6(d)(3)].
Respondent failed to establish by a preponderance of credible evidence at trial that she had a nontraditional family relationship with Tenant. There was no substantial relationship beyond aunt and niece between the parties at any time prior to 2006. There was certainly no evidence to support Respondent's contention that they had a mother daughter relationship.
For a period of less then four years, from mid 2006 through late 2010, Tenant and [*9]Respondent allegedly resided together in the Subject Premises. In December 2010, Tenant was hospitalized, she never returned to the Subject Premises after this date.
During this relatively brief period of cohabitation, Tenant already suffered from dementia, impaired sight and hearing, incontinence, and was only occasionally alert. She was not capable, at that time, of first developing a nontraditional family relationship with Respondent. In fact the relationship seems to be largely one sided with Respondent using Tenant's home and income for her own purposes. It is hard to see what if any benefit Tenant got from the relationship, and it appears that in fact Tenant was not receiving the care she needed.
By pulling Tenant out of the nursing home, Respondent received Tenant's social security income, which was previously going to the nursing home, and a low rent, rent controlled apartment she and her husband could live in. Respondent, who was represented by MFY in regards to the Subject Premises as far back as 2005, was also able to set the stage for her succession claim. Respondent testified that around this period, her husband lost his job and their home was going into foreclosure. Respondent testified that the mortgage on the Massachusetts home was $1000 per month, and that the rent for the Subject Premises was much more affordable.
The evidence largely indicates that Respondent needed to use the Subject Premises as a place to live, because she was unable both financially and otherwise to maintain her home in Massachusetts, which was eventually was condemned. Respondent took monies from Tenant to use for her own purposes, and Respondent both removed Tenant from a nursing home in 2006, in response to the summary nonpayment proceeding commenced by Petitioner, and declined to have Tenant receive medical services she was entitled to and that were deemed medically necessary for Tenant. It is difficult to see how Respondent could have adequately cared for Tenant when she maintained her own home in Massachusetts in a collyers condition.
Respondent alleged that she and Tenant were like mother and daughter. In fact, Respondent's mother immigrated to the United States in 1985 and lived in Boston, where Respondent moved when she immigrated to the United States. Respondent's mother lived in Boston until 1995, when she died while on a trip in China.
Morever, Tenant did have a mother daughter relationship with one of her nieces, Tenant adopted a child, it was one of her other nieces (Ex H form from 3/16/11), but Tenant never took this step or any other step to formalize her relationship with Respondent. While Respondent was a payee for Tenant's government benefits, this self-serving step was taken by Respondent, when Tenant lacked mental capacity to make such a determination and served only to financially benefit Respondent.
The Atlantis records indicate that from March 2011 through October 2011, Tenant could have been discharged to her home, but Respondent would not agree to this (Ex H). In March 2011, the notes indicate discharge was feasible, but Respondent was unwilling to take Tenant home unless ".... she is doing better." In April 2011, the records indicate discharge was feasible but that Tenant's niece was "unsure" of discharge plans. In May 2011, the records indicate that [*10]discharge was feasible and that Tenant had an apartment, but that her niece remained unsure of discharge plans. In October 2011, the forms indicate discharge was feasible, but that the patient's niece wanted to see more progress before agreeing to a discharge. As of January 2012 the records indicate that discharge was no longer feasible because "Family is unable to take care of res at this time (Ex H)."
However, at trial, Respondent lied and testified that she wanted to bring Tenant home during this period, but the hospital would not allow it. Respondent testified without credibility, that both she and Tenant asked the facilities to release Tenant to the Subject Premises and they refused.
On July 7, 2012, the records indicate Brookdale Hospital staff tried to reach Respondent multiple times at 646.498.3922, the number Respondent had provided, and left multiple messages, but were not able to reach Respondent. A similar note from July 9, 2012 indicates that Tenant's family could not be reached to provide further history. A similar note about multiple attempts to reach Respondent is reflected on August 1, 2012, when staff was trying to reach Respondent to request that she come to the hospital to be advised that Tenant had passed away.
Additionally, Respondent was not a credible witness. Her testimony often made no sense and the absence of documents that admittedly existed and were never produced such as tax returns, bank and phone statements is an inexplicable gap in the evidence.
CONCLUSION
The court finds that evaluated as a whole Respondent did not meet her burden of establishing the right to succession, both on the issue of establishing a nontraditional family relationship and on the issue of primary residence. Based on the foregoing, Petitioner is awarded a final judgment of possession as against Respondent and "John Doe". The proceeding is dismissed as against "Jane Doe" as there was no evidence of any other occupants besides Respondent and her husband. The warrant of eviction shall issue forthwith. Execution of the warrant is stayed through September 30, 2015 to afford Respondent and her husband an opportunity to vacate, and conditioned upon payment of use and occupancy at the last lease rate.
This constitutes the decision and order of the Court.[FN2]
Dated: New York, New York
July 1, 2015
__________________
Sabrina B. Kraus, JHC
+
FootnotesFootnote 1:The order in the file is dated January 13, 2004, but the court assumes the year is mistaken given that the proceeding was initially returnable in October 2005.
Footnote 2:Parties may pick up exhibits, within thirty days of the date of this decision, from Window 9 in the clerk's office on the second floor of the courthouse. After thirty days, the exhibits may be shredded, in accordance with administrative directives.
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