Kingston Hgts. Apts. v Hurdle

[*1] Kingston Hgts. Apts. v Hurdle 2017 NY Slip Op 50527(U) Decided on April 7, 2017 Civil Court Of The City Of New York, Kings County Avery, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 7, 2017
Civil Court of the City of New York, Kings County

Kingston Heights Apartments, Petitioner,

against

Laquisha Hurdle, Respondent.



LT 73668/16



Gutman Mintz Baker & Sonnenfeldt, PC

813 Jericho Turnpike

New Hyde Park, NY 11040

(516) 775-7007

Veterans Justice Project of Brooklyn Legal Services

1360 Fulton Street, 301

Brooklyn, NY 11216

718 237 5508

Vance Gathing, Esq.
Susan F. Avery, J.

BRIEF HISTORY

Petitioner commenced this proceeding based upon the contention that the "[r]espondent Laquisha Hurdle entered into occupancy of the premises without the knowledge, consent or permission of the [l]andlord.... Moreover, it is believed that they (sic) entered into occupancy pursuant to a license granted by the preceding tenant of record, Sharon Tribble, who is deceased"[FN1] and that said license was terminated upon the death of the tenant of record.[FN2] The premises which is the subject of ths action is 28 MacDonough Street, Apartment 3K, Brooklyn, New York 11216.

It is petitioner's contention that the "tenant of record, Sharon Tribble, died on or about April 1, 2016"[FN3] and that the "[r]espondent is not an immediate family member of the deceased tenant, or if [r]espondent is a family member, [r]espondent was not listed on the income recertification and/or did not reside with the prior tenant, for the two years prior to the death of the tenant of record, nor has [r]espondent's occupancy received approval from the Department of Housing and Urban Development [("HUD")] and/or the landlord."[FN4]

Respondent appeared through counsel and filed an answer, which included numerous defenses, including a succession defense.

The premises which is the subject of this action, is subject to the "project based" section 8 subsidy which is overseen by HUD.[FN5]

THE INSTANT APPLICATION

By notice of motion dated September 15, 2016, respondent seeks an order dismissing the instant proceeding based on the contention that she is the successor tenant to the tenant of record, who is her mother or alternatively dismissing the proceeding because the petitioner failed to follow HUD prerequisites prior to commencing the instant action.

Petitioner opposes the motion.

RESPONDENT'S ARGUMENTS IN SUPPORT: SUCCESSION CLAIMS

The respondent asserts that she is a disabled veteran [FN6] and has been residing at the premises which is the subject of this action since 1985.[FN7] She states that since she initially moved into the subject premises in 1985, she has never had any other address except the subject premises. The respondent also states that during her tours of active military duty she did receive correspondence at Army base(s) at which she was stationed.[FN8] The respondent also states that the petitioner did not properly name her in this proceeding, as her name is Laclesha Tribble.[FN9] Indeed, annexed to the respondent's moving papers as exhibit 8, is a copy of her birth certificate, which clearly shows that the respondent's birth name is Laclesha Tribble. As Ms. Laclesha Tribble is entitled to be addressed by her proper name, this court will refer to her as Ms. Laclesha Tribble, movant or respondent.

In support of her assertions that she has continuously resided at the subject premises, since 1985, Ms. Laclesha Tribble annexes a health care proxy dated July 14, 2015, executed by her mother, the tenant of record, appointing the respondent as her mother's health care agent. The document states that Ms. Laclesha Tribble's address is "28 MacDonough Street, Apartment 3K, Brooklyn, New York."[FN10] Respondent also annexes a letter from the Department of Veterans Affairs ("DVA") dated September 8, 2016, summarizing the benefits that she has earned as a result of her service to this country. The letter is addressed to her at 28 MacDonough Street, Apartment 3K, Brooklyn, New York and states that the letter is provided "to assist disabled veterans when applying for benefits."[FN11] The letter also states that her disabilities are 80% related to her service of this country.[FN12]

Respondent also attaches a "dd 204" form which is generated upon her completion of service. The document is dated August 1, 2014.[FN13] The document states that the respondent's "home of record at time of entry" into service was: "28 MacDonough Street, Brooklyn, New York 11216"[FN14] and that the date her tour of duty commenced was July 26, 2007.[FN15] The document also states that she separated from her final tour of duty on August 29, 2014.[FN16] The document also lists the respondent's mailing address, after her separation from service as "28 MacDonough Street, Brooklyn, New York 11216."[FN17] Additionally, the document lists Ms. Sharon Tribble as respondent's "nearest relative"[FN18] and lists Ms. Sharon Tribble's address as "28 MacDonough Street, Brooklyn, New York 11216."[FN19] Additionally, the document states that upon her separation from service, Ms. Laclesha Tribble was honorably discharged [FN20] and that during her service she was awarded numerous commendations, medals and decorations.[FN21]

Additional documents annexed to the respondent's motion, all contained within exhibit [*2]12, which all list her address as "28 MacDonough Street, Brooklyn, New York 11216" include a DVA "Certificate of Eligibility" dated January 14, 2015; a DVA claims decision dated April 16, 2015; a DVA payment stub dated March 21, 2016; a letter from the Defense Finance Accounting Service dated June 9, 2015; a letter from the Secretary of Veterans Affairs dated December 21, 2014, thanking her for her service; a bank statement dated January 4, 2014; a letter from DVA dated February 26, 2015; a letter from USAA Federal Savings Bank dated January 8, 2014 regarding a completed investigation; as well as additional bank account statements for periods from February 2015 through April 2016.

Also annexed to the respondent's exhibit 12 is a bill requesting payment for renters and automobile insurance dated July 18, 2010 addressed to "Laclesha W Tribble SGT USA" at "28 MacDonough Street, Brooklyn, New York 11216."

Respondent asserts that she is entitled to succeed to her mother's tenancy as she has resided at the premises since 1985, when her mother initially entered possession of the premises. It is respondent's contention that her temporary absence from the premises when she was on active military duty serving our country, does not negatively affect her residency at 28 MacDonough Street. Respondent also attaches an affidavit from a childhood friend who states: "I have been a close friend of Laclesha Tribble since we were 12 years old. I see her at least weekly and also saw her mother regularly until she passed.[[FN22] ] Sharon Tribble and her daughter, Laclesha Tribble, lived together at 28 MacDough Street No.3K in Brooklyn New York until Laclesha's mother pass[ed] and except during her enlistment in the Army.... Laclesha Tribble has lived at 28 MacDonough Street, #3K, and nowhere else."[FN23]

Respondent also argues that because she is disabled, she was only required to reside with the tenant of record, her mother, for a one (1) year period prior to her mother's passing.

PETITIONER'S OPPOSITION

It is petitioner's contention that the respondent's motion for summary judgment must be denied. Petitioner asserts that the respondent has failed to state a claim for succession. Alternatively, the petitioner argues that issues of fact as to the respondent's succession defense have been raised, which precludes granting summary judgment in the respondent's favor.

Petitioner contends that the respondent is not entitled to succeed to the premises following the death of her mother because she was never listed on the yearly income recertifications that her mother submitted to management, and that the documentation annexed to the respondent's motion is insufficient to demonstrate that the respondent is entitled to succeed to the premises.[FN24]

The petitioner argues that the respondent "failed to prove that the subject premises was her primary residence prior to entering the military service..."[FN25] and failed to provide "any proof [*3]regarding her residency in 2002 prior to her enlisting in military service."[FN26] It is the petitioner's assertion that because her last tour of duty terminated in August of 2014, and the tenant of record passed away in April of 2016, respondent's succession defense fails because the respondent is unable to demonstrate that she resided at the premises with her mother for the statutorily required two (2) year minimum period.[FN27]

Annexed to the petitioner's opposition, are the following exhibits: exhibit 1, which is a copy of a lease agreement dated April 21, 2010, which is addressed to Ms. Sharon Tribble at the subject premises, and also signed by Ms. Sharon Tribble; exhibit 2, which is a copy of a document entitled "Owner's Certification of Compliance with HUD's Tenant Eligibility and Rent Procedures" and is dated January 17, 2014; exhibit 3, which is a copy of a document entitled "Lease Agreement" dated March 1, 2016; exhibit 4, which is a copy of a document entitled "Owner's Certification of Compliance with HUD's Tenant Eligibility and Rent Procedures" dated January 21, 2016. The court notes , and it is not disputed, that the documents relate to Ms. Sharon Tribble and make no mention of Ms. Laclesha Tribble.

Additionally, annexed to the petitioner's opposition as exhibit 5 is a copy of a document from the "U.S. Department of Housing and Urban Development" ("HUD Handbook") "Issued: March 30, 2010" and "Expires: March 31, 2011" and the stated "SUBJECT" (sic) of the document is "Effective Use of the Enterprise Income Verification (EIV) System's Deceased Tenants Report to Reduce Subsidy Payment & Administrative Errors." In its supplemental opposition, the petitioner annexes the updated and unexpired HUD Handbook.

Annexed to the petitioner's opposition as exhibit 6, are copies of the pleadings, predicate notices and service affidavits; and annexed to the petitioner's opposition as exhibit 7 are two (2) documents. The first document is one (1) page and the second document is three (3) pages. The one (1) page document bears the heading "Shinda Management Corporation" and bears a title of "NY Split Ledger Balance As Of: 11/7/2016" the document bears the name "Lakisha Hurdle" with an address of "305 Decatur Street, Apt 3H, Brooklyn, NY 11216." The three (3) page document also bears the heading "Shinda Management Corporation." This document is titled "Resident Ledger" and is dated November 7, 2016. The document also bears the name "Lakisha Hurdle" with an address of "305 Decatur Street, Apt 3H, Brooklyn, NY 11216."

To support that the respondent does not have a claim of succession rights, petitioner annexes the affidavit of Keturiah Smith, which states that the affiants "knowledge is premised on daily management of and oversight... [of] 28 MacDonough Street, Brooklyn, New York 11216."[FN28]

The affidavit states that the subject apartment is "subject to HUD regulation[s and located] in a project based section 8 building.[FN29] The affidavit also states that "Sharon Tribble was the sole household member for the subject premises" which is demonstrated by "[e]xhibits [*4]'2', '3', and '4.'"[FN30]

Additionally, the affidavit states that the "HUD handbook" annexed to petitioner's opposition as "exhibit 5" "explicitly sets forth eligibility criteria for an individual [to succeed]... [as] head of household [which] requires that... [the] remaining family member must be a party named in the lease... [t]o continue in occupancy after the vacatur and/or death of the head of household."[FN31] According to the affidavit, "[t]his court is bound by the explicit HUD regulations... [which] dictate that the respondent's absence from the lease at the time of the tenant of record's death precludes her from succeeding to the tenancy.... [and] there are no exceptions to this policy and procedure."[FN32]

Additionally, the affidavit in opposition submitted by the petitioner, states that "arrears for outstanding use and occupancy... total $1,432.31 through November [of] 2016." The affidavit refers to exhibit 6 to support the claim for outstanding arrears.[FN33]

It is petitioner's contention that "Sharon Tribble was the sole household member for the subject premises. The [r]espondent was never listed on the lease or the annual recertifications for the subject premises. See Exhibits '2' '3' and '4'".[FN34]

THE LAW

Under federal regulations, "[a] 'family member' who has lived with a subsidized tenant for a significant period of time is entitled to succeed to the deceased tenant's Section 8 subsidy (if otherwise eligible) instead of starting as a new applicant at the bottom of the several-year waiting list for Section 8 payments."[FN35] Pursuant to HPD rules and regulations, to qualify for succession rights in the subject apartment, an occupant must either be approved from a waiting list, or must qualify as a family member who had co-occupied the apartment with the tenant of record for at least two [(2)] years prior to the vacatur of that tenant,[FN36] however, "[t]his time period is reduced to one [(1)] year if the occupant is a senior citizen or disabled."[FN37]

The regulations, provide that "[t]he failure of the family member who is seeking to succeed to possession of the apartment to appear on the appropriate income affidavits creates a [*5]presumption that he or she did not reside in the apartment as a primary residence.[FN38] The presumption created by this regulation could be overcome if the applicant could prove by other evidence that he or she in fact resided in the apartment for the requisite period.[FN39] "The burden of proof is on said family member to show use of the apartment as his or her primary residence during the required period to be eligible to succeed to possession."[FN40]

The absence of a family member's name on the lease or income recertification documents is not fatal to that [] family member's succession claim,[FN41] as "[t]he failure of a family member to be listed on annual certification forms is only one factor to be considered in determining whether that family member is entitled to succeed to the Section 8 subsidy..."[FN42] "the touchstone of succession to a project-based Section 8 tenancy is the legitimacy of respondent's occupancy as a member of the family unit at the time of the tenant of record's death, and not the accuracy of one [(1)] or more HUD forms."[FN43]

The rational that the failure of a family member to be listed on annual certification forms is only one (1) factor to be considered in determining a succession claim, and not the sole determinative factor, is because the "[r]espondent derives her interest in the apartment... from her mother's tenancy. Yet, if respondent's allegations are true, she... ha[s] independent federal rights to continued occupancy. Respondent's mother had no authority to alienate th[ose] rights...."[FN44]

Indeed, in Valley Dream Hous. Co., Inc. v Schmidt,[FN45] the court dismissed "a holdover proceeding,'heard on submitted facts' where the daughter of deceased tenant of record in project-based Section 8 building, demonstrated that she had succession rights to her mother's apartment, even though she had not been listed on annual income affidavits.[FN46] In that case, the [*6]court noted that in "Amsterdam Avenue Housing Associates v Estate of Almeda Wells[[FN47] ] the [c]ourt held that 'the absence of [an occupant's] name on the family composition document was not fatal to her succession claim otherwise established by the trial evidence.' The... decision... cautions lower courts to follow such decisions and precedents of higher courts."[FN48]

"Indeed, neither section 8 nor its implementing regulations mandates that a tenant's failure to list an occupant on the recertification form be accorded preclusive effect against a tenant's survivors. To the extent that lease provisions can be read to the contrary, they are in conflict with the intent of the Federal law."[FN49]

ANALYSIS OF THE LAW AND THE FACTS

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact.[FN50] Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.[FN51]

In the case at bar, the respondent has presented sufficient evidence to meet her initial burden on this motion. The birth certificate annexed to respondent's moving papers demonstrate that the tenant of record, is her mother.[FN52] Additionally, the affidavits from respondent, and her childhood friend [FN53] coupled with the documents annexed to the respondent's motion, including: the health care proxy executed by her mother; the DVA letter; the "dd 204" form; the DVA "Certificate of Eligibility" dated January 14, 2015; the DVA claims decision dated April 16, 2015; the DVA payment stub dated March 21, 2016; the letter from the Defense Finance [*7]Accounting Service dated June 9, 2015; the letter from the Secretary of Veterans Affairs dated December 21, 2014, the letter from DVA dated February 26, 2015; the letter from USAA Federal Savings Bank dated January 8, 2014; bank account statements for periods from January 2014 through April 2016 and a bill requesting payment for renters and automobile insurance dated July 18, 2010, corroborate the respondent's succession claim.

Moreover, the DVA letter dated September 8, 2016 states that she is a disabled veteran and that her disabilities are 80% related to her service of this country. Accordingly, having separated from her final tour of duty in August of 2014, she was only required to reside with her mother, the tenant of record for one (1) year prior to her mother's passing on April 1, 2016, which was demonstrated by respondent's submission.

This court finds that the petitioner's assertion that the documents annexed to the respondent's moving papers, at most, demonstrate that she merely used the apartment as a mailing address and not a residence, to be purely speculative and unsupported by any facts and insufficient to raise a triable issue.[FN54]

Based upon the foregoing the respondent met her burden of proof and demonstrated that she resided with her mother, the tenant of record, for more than ten (10) years prior to her mother's passing on April 1, 2016. Alternatively, based upon the foregoing, the respondent met her burden of proof and demonstrated that she is disabled, and has resided with her mother, the tenant of record for at least one (1) year prior to her mother's death. Accordingly, the burden shifted to the petitioner to raise a triable issue of fact.[FN55]

PETITIONER'S SUBMISSION IN OPPOSITION

It is petitioner's contention that the respondent's motion for summary judgment must be denied. Petitioner asserts that the respondent has failed to state a claim for succession. Alternatively, the petitioner argues that issues of fact as to the respondent's succession defense have been raised, which precludes granting summary judgment in the respondent's favor.

It is not disputed that the certifications annexed to petitioner's opposition submitted by the respondent's mother do not list the respondent as part of her family composition. However, the petitioner's contention that the respondent failed to demonstrate that she is entitled to succeed to the premises because she was never listed on her mother's yearly certifications is without merit.[FN56] Indeed, as cited above, the "...regulations create a presumption, based upon the failure to list family members on annual income affidavits, that the individuals did not reside in the premises [*8]as their primary residence [and the p]resumption [is] rebuttable..."[FN57]

Additionally, the petitioner contends that the respondent failed to prove that the subject premises was her primary residence prior to entering the military service, and failed to provide any proof regarding her residency in 2002 prior to her enlisting in military service. The court notes that this contention is without factual support, as the respondent provided documents that listed her residence at the time she entered service, as the subject premises (including, the dd 204 form).

Petitioner also asserts that because her last tour of duty terminated in August of 2014, and the tenant of record passed away in April of 2016, respondent's succession defense fails because she is unable to demonstrate that she resided at the premises with her mother for the statutorily required two (2) year minimum period. Petitioner does not address the respondent's submission that she is a disabled veteran, and 80% of her disability is related to her service of our country, and as an individual with a disability the respondent only needs to meet a one (1) year "minimum period" of co-residency.

In addition to other exhibits, petitioner annexes copies of "tenant ledgers" as exhibit 7. The court notes that the documents bear the heading "Shinda Management Corporation" and there is nothing in the opposition connecting "Shinda Management Corporation" with the petitioner or the respondent. Also, the documents refer to "305 Decatur Street, Apt 3H, Brooklyn, NY 11216" and there is nothing in the submissions before this court to connect "305 Decatur Street, Apt 3H, Brooklyn, NY 11216" to the instant proceeding, as the premises which are the subject of this action are "28 MacDonough Street, Brooklyn, New York 11216."

Further, the documents claim to be rent ledgers for "Lakisha Hurdle" and the appearing respondent claiming succession in the instant proceeding is "Laclesha Tribble." Petitioner fails to offer any facts as to the connection between "Lakisha Hurdle" and "Laclesha Tribble." Even if this court found the documents to be probative on the issue of the amount of arrears that are due, the documents have nothing to do with the respondent's succession defense, and therefore will not be considered by the court.

The court notes that the affidavit of Keturiah Smith, states that the affiant's personal knowledge is premised on the affiant's "daily management" and "oversight" of 28 MacDonough Street, Brooklyn, New York 11216. The court also notes that the petitioner fails to allege, by one (1) with personal knowledge that the affiant "never saw Ms. Laclesha Tribble in or around the subject premises" or that the affiant "actually visited the apartment and saw no signs of Ms. Laclesha Tribble there."

Indeed, while the affidavit of Keturiah Smith states that currently the affiant's responsibilities include "daily management... and oversight... [of] 28 MacDonough Street, Brooklyn, New York 11216"[FN58] there is no statement that the affiant was actually employed by the petitioner to "daily manage[]... and overs[ee]... 28 MacDonough Street, Brooklyn, New York 11216" in April of 2015, (during the relevant time period which is) one (1) year prior to Ms. [*9]Sharon Tribble's passing, in April of 2016.[FN59] Additionally, the affidavit fails to assert any facts to support the conclusions contained in the affidavit, and therefore of no probative value.[FN60]

Indeed, the court is mindful that the petitioner failed to submit an affidavit from any individual, such as a property manager, superintendent or a neighbor to attest to Ms. Laclesha Tribble's absence from the premises which could create an issue of fact, to contradict the facts asserted in the respondent's submission.[FN61]

THE HUD HANDBOOKS

As noted earlier, annexed to the petitioner's opposition as exhibit 5 is a copy of a document that is referred to as the HUD Handbook. The document contains language that it was "Issued: March 30, 2010" and it "Expires: March 31, 2011."

Noting that this document, upon which the petitioner relies and annexes to its opposition, "expired" on "March 31, 2011" in its supplemental opposition, the petitioner annexed the current version of the HUD Handbook. As the petitioner asserts arguments based upon the expired and the current versions of the Handbooks, this court will analyze the text of each Handbook as they apply to the instant decision.

THE HUD HANDBOOK

PETITIONER'S ARGUMENTS IN IT'S OPPOSITION

In its initial opposition, the petitioner cites to the expired HUD Handbook, at "section 7(c) page '5'" as "expressly stat[ing] that "because Ms. Laclesha Tribble was not listed as an occupant of the premises on her mother's yearly certifications and "there are no exceptions to this policy and procedures"[FN62] the respondent is not entitled to succession.

The provisions of the expired version of the Handbook at "7(c) page 5", as relied on by the petitioner in its opposition can be found in the sub-sub section titled "Note."

Article 7 sub-sub section tieled "Note:" reads as follows:

"Note:PHAs[[FN63] ] are required to immediately terminate program assistance for deceased single member households which will result in termination of the HAP [FN64] contract and HAP to the owner in accordance with the aforementioned provisions. The owner is not entitled to HAP from any month following the month in which the death occurred. There are no exceptions to this policy and procedure."

THE HUD HANDBOOK

PETITIONER'S ARGUMENTS IN IT'S SUPPLEMENTAL OPPOSITION

In it's supplemental opposition, petitioner asserts that the "HUD regulations are federal regulations and pre-empt state housing court's decision[s] which establish the contrary."[FN65] To support this contention petitioner refers to the currently effective HUD Handbook at §3-16(B).[FN66]

ANALYSIS OF THE EXPIRED AND UNEXPIRED HANDBOOK TO EACH OTHER

This court has reviewed and compared the provisions cited above of the expired Handbook, with the provisions of the current unexpired Handbook, and determines that the language in the current handbook which most closely applies to the petitioner's argument citing Article 7c of the expired Handbook, be found in Article 8 of the Handbook.

Article 8 of the current and unexpired Handbook, at the sub-sub section titled "Note:" reads as follows:

"Note:PHAs are required to immediately terminate program assistance for deceased single member households which will result in termination of the HAP contract and HAP to the owner in accordance with the aforementioned provisions. The owner is entitled receive the full HAP amount for the month in which the death occurred

"The owner is not entitled to HAP for any month following the month in which the death occurred, with the exception of the Project Based Voucher (PBV)in accordance with 24 CFR 983.352(b)..... "[FN67]

Comparing Article 7c at sub-sub section "Note:" of the expired Handbook, with Article 8 sub-sub section "Note:" of the unexpired handbook, it is clear that, in the language contained in the sub-sub heading "Note." in both Handbooks read almost identically. The only difference [*10]between the two (2) provisions is as follows:

The language in the second paragraph of the sub-sub heading "Note." contained within the expired Handbook reads as follows:

"PHAs are required to immediately terminate program assistance for deceased single member households which will result in termination of the HAP contract and HAP to the owner in accordance with the aforementioned provisions. The owner is not entitled to HAP from any month following the month in which the death occurred.

There are no exceptions to this policy and procedure" (emphasis added).

The language in the second paragraph of the subheading ""Note." contained within the current Handbook reads as follows:

"The owner is not entitled to HAP for any month following the month in which the death occurred, with the exceptionof the Project Based Voucher (PBV) program in accordance with 24 CFR 983.352(b)..."[FN68] (emphasis added).[FN69]

Accordingly, it appears that the promulgators of the HUD Handbook which is currently in effect, not only contains broader language intended to recognize exceptions to policy and procedure, but in fact, actually crafted an exception into the amendments which recognizes that the failure to be named in a family composition does not preclude a succession defense.

SUMMARY JUDGMENT MOTIONS: EVIDENTIARY STANDARDS

In opposition to the respondent's motion, the petitioner was required to lay bear it's proof to demonstrate the existence of a triable issue of fact, in order to rebut the respondent's demonstration, which petitioner failed to do.

"It is well established that once a moving party has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which [*11]require a trial of the action"[FN70] Indeed, "[t]he submission by the appellants of medical affidavits and documentary evidence sufficed to establish prima facie their entitlement to judgment as a matter of law, thereby shifting the burden to the plaintiffs to lay bare their proof and demonstrate the existence of a triable issue of fact."[FN71]

Having been required to lay bear their proof, this court must determine, if limiting the evidence that the petitioner could submit at trial to the petitioner's submissions in opposition to respondent's motion, has the petitioner met its prima facie burden to rebut Ms. Laclesha Tribble's, demonstration that she is entitled to succeed to her mother's tenancy.[FN72] As petitioner failed to submit proof in admissible form to rebut the respondent's prima facie showing, the petition must be dismissed.

DETERMINATION

Based upon the foregoing, the motion is granted Ms. Laclesha Tribble is entitled to succeed to her mothers section 8 subsidy and the proceeding is dismissed.

The foregoing constitutes the decision and order of the court.

Dated:Brooklyn, NY

April 7, 2017

Susan Avery, Judge Housing Court Footnotes

Footnote 1:Petition dated June 6, 2016 at ¶2.

Footnote 2:Petition dated June 6, 2016 at ¶¶4 and 5.

Footnote 3:Petition dated June 6, 2016 at ¶3.

Footnote 4:Petition dated June 6, 2016 at ¶5.

Footnote 5:A "project-based" subsidy is associated with a specific dwelling unit and remains with the unit when the tenant vacates. In contrast, a "tenant-based" subsidy is a portable voucher which a tenant can use to pay rent on any apartment, within certain limits, in the United States, Klein v Rhea, 39 Misc 3d 1216(A) (Sup Ct NY County [Stallman, J., 2013]).

Footnote 6:Affidavit of Ms. Laclesha Tribble, sworn to on September 8, 2016 at ¶9.

Footnote 7:Affidavit of Ms. Laclesha Tribble, sworn to on September 8, 2016 at ¶¶3, 6 and 7.

Footnote 8:Affidavit of Laclesha Tribble, sworn to on September 8, 2016 at ¶4.

Footnote 9:Affidavit of Laclesha Tribble, sworn to on September 8, 2016 at ¶5.

Footnote 10:Respondent's exhibit 9 at ¶1.

Footnote 11:Respondent's exhibit 9 at ¶10.

Footnote 12:Respondent's exhibit 9 at ¶10, fifth line from the bottom.

Footnote 13:Respondent's exhibit 12.

Footnote 14:Respondent's exhibit 12 at box 7b.

Footnote 15:Respondent's exhibit 12 at box 12a.

Footnote 16:Respondent's exhibit 12 at box 12b.

Footnote 17:Respondent's exhibit 12 at box 19a.

Footnote 18:Respondent's exhibit 12 at box 19b.

Footnote 19:Respondent's exhibit 12 at box 19a.

Footnote 20:Respondent's exhibit 12 at boxes 23 and 24.

Footnote 21:Respondent's exhibit 12 at box 13.

Footnote 22:Affidavit of Ms. Crystal Goodwin, sworn to on January 18, 2017, at ¶2.

Footnote 23:Affidavit of Ms. Crystal Goodwin, sworn to on January 18, 2017, at ¶3.

Footnote 24:Affirmation of Arianna Gonzalez-Abreu, Esq., dated November 9, 2016 at ¶6.

Footnote 25:Affirmation of Arianna Gonzalez-Abreu, Esq., dated November 9, 2016 at ¶7.

Footnote 26:Affirmation of Arianna Gonzalez-Abreu, Esq., dated November 9, 2016 at ¶7.

Footnote 27:Affirmation of Arianna Gonzalez-Abreu, Esq., dated November 9, 2016 at ¶7.

Footnote 28:Affidavit of Keturiah Smith, sworn to on November 9, 2016 at ¶3.

Footnote 29:Affidavit of Keturiah Smith, sworn to on November 9, 2016 at ¶4.

Footnote 30:Affidavit of Keturiah Smith, sworn to on November 9, 2016 at ¶5.

Footnote 31:Affidavit of Keturiah Smith, sworn to on November 9, 2016 at ¶7.

Footnote 32:Affidavit of Keturiah Smith, sworn to on November 9, 2016 at ¶¶7 and 8 (emphasis in the original).

Footnote 33:Affidavit of Keturiah Smith, sworn to on November 9, 2016 at ¶12.

Footnote 34:Affidavit of Keturiah Smith, sworn to on November 9, 2016 at ¶5.

Footnote 35:Evans v Franco, 246 AD2d 377 (1st Dept [1998]).

Footnote 36:28 RCNY §3—02[p].

Footnote 37:Manhattan Plaza Assocs., L.P. v Dep't of Hous. Pres. & Dev. of City of NY, 3 Misc 3d 717 (Sup Ct NY County [Richter, J., 2004]) affd 8 AD3d 111 (1st Dept [2004]).

Footnote 38:Manhattan Plaza Assocs., L.P. v Dep't of Hous. Pres. & Dev. of City of NY, 3 Misc 3d 717 (Sup Ct NY County [Richter, J., 2004]) affd 8 AD3d 111 (1st Dept [2004]).

Footnote 39:See Chinatown Apartments, Inc. v Lee, 168 Misc 2d 990 (Civ Ct NY County [Madden, J., 1995]) "the present regulations create a presumption, based upon the failure to list family members on annual income affidavits, that the individuals did not reside in the premises as their primary residence. 28 RCNY 3—02(p)(3). Presumptions are rebuttable..."

Footnote 40:28 RCNY §3—02[p][3].

Footnote 41:Los Tres Unidos Associates, LP v Colon, 45 Misc 3d 129[A] (App Term 1st Dept [2014]).

Footnote 42:28 Chinatown Apartments, Inc. v Lee, 168 Misc 2d 990 (Civ Ct NY County [Madden, J., 1995]); see also RCNY §3—02[p][3].

Footnote 43:Bronx 361 Realty, LLC v Quinones, 26 Misc 3d 1231[A] (Civ Ct Bx County [Madhaven, J., 2010]).

Footnote 44:Morrisania II Assocs. v Harvey, 139 Misc 2d 651 (Civ Ct NY County [Stalman, J., 1988]).

Footnote 45: 16 Misc 3d 1138[A] (Dist Ct Nassau County [Fairgrieve, J., 2007]).

Footnote 46:Valley Dream Hous. Co., Inc v. Schmidt, 16 Misc 3d 1138[A] (Dist Ct Nassau County [Fairgrieve, J., 2007]).

Footnote 47:10 Misc 3d 142 (App Term 1st Dept [2006]),

Footnote 48: cf Greater Centennial Homes Hous. Dev. Fund Co. Inc. v Thomas, 50 Misc 3d 1214(A) (City Ct Mt Vernon [Seiden, J., 2016]) "[a]lthough some courts have held that the absence of respondent's name from the re-certification and lease amendments does not bar a succession claim, it is clear from a review of those cases that the decisions were fact specific and were compelled by the courts' desire to render decisions that were based upon their inherent sense of justice rather than following the letter of the law."

Footnote 49: All. Hous. Assocs., LP v Garcia, 53 Misc 3d 1215(A) (Civ Ct Bx County [Lutwak, J., 2016]).

Footnote 50:Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 ([1985]); Zuckerman v New York, 49 NY2d 557 ([1980]).

Footnote 51:Alvarez v Prospect Hospital, 68 NY2d 320, 324 ([1986]); Zuckerman v New York, 49 NY2d 557 ([1980]).

Footnote 52:See All. Hous. Assocs., LP v Garcia, 53 Misc 3d 1215(A) (Civ Ct Bx County [Lutwak, J., 2016]) "the familial relationship at issue in the earlier case was mother-daughter, which is easily proven with the [submission of the] daughter's birth certificate."

Footnote 53:See, e.g., Classic Props, LP v Martinez, 168 Misc 2d 514 (App Term 1st Dept [1996]); Hazel Towers Co., LP v Gonzalez, 41 Misc 3d 1230[A] (Civ Ct Bx County [Vargas, J., 2013]).

Footnote 54:"Plaintiff presented no evidence [to support]... its claim... and mere conclusions, expressions of hope, or unsubstantiated assertions are insufficient to defeat a motion for summary judgment" Tchaika Renewal Co., Ltd. v City of New York, 232 AD2d 250 (1st Dept [1996]).

Footnote 55:"Upon a review of the record, we find that plaintiff's motion for summary judgment should have been granted, as plaintiff established prima facie its entitlement to judgment as a matter of law.... The burden then shifted to defendant to rebut the prima facie showing by demonstrating the existence of a triable issue of fact (internal citations omitted). Defendant failed to submit an affidavit in opposition by one with personal knowledge of the facts so as to raise a triable issue of fact..." Parts Auth., Inc. v Kuruvilla, 2017 NY Slip Op 50372(U) (App Term 2nd Dept [Decided on March 29, 2017]).

Footnote 56:Whether her mother misrepresented the family composition of the premises when submitting the certifications is merely a factor for the court to consider, supra.

Footnote 57:See Chinatown Apartments, Inc. v Lee, 168 Misc 2d 990 (Civ Ct NY County [Madden, J., 1995]); see also 28 RCNY 3—02(p)(3).

Footnote 58:Affidavit of Keturiah Smith, sworn to on November 9, 2016 at ¶3.

Footnote 59:"It appears from the affidavit... that the chauffeur sought to be examined is not now, and for some time past has not been, employed by the defendant corporation. The affidavit... is sufficient in our opinion to impose upon the moving party the burden of showing the existence of facts entitling him to the examination" Glasser v Borglund, 248 AD 898 (App Div 2nd Dept [1936]).

Footnote 60:"In the case at bar, the affidavit submitted in support of defendant's motion was from one of its employees allegedly having personal knowledge of the claim. However, said employee failed to set forth supporting facts in evidentiary form indicating... date[s or times]... the purported [observations] w[ere] made. Accordingly, the employee's affidavit was insufficient..." Amaze Med. Supply Inc. v Allstate Ins. Co., 2 Misc 3d 138(A) (App Term 2nd & 11th Jud Dists [2004]).

Footnote 61:See Goldman v Wilson, 19 Misc 3d 136(A) (App Term 1st Dept [2008]) "[the motion was properly granted in a] nonprimary residence holdover proceeding (internal citations omitted). The landlord's renewed submission included an affidavit of the building's resident superintendent indicating that the affiant seldomly saw tenant at the premises for a two-year period, as well as an affidavit by a representative of the landlord's management firm stating that he conducted a public records search which showed tenant's address to be at a specified location in Los Angeles."

Footnote 62:Affirmation of Arianna Gonzalez-Abreu, Esq., dated November 9, 2016 at ¶21 (emphasis in original)

Footnote 63:PHAs is an abbreviation for "Public Housing Agencies."

Footnote 64:HAP is an abbreviation for "Housing Assistance Payment."

Footnote 65:Affirmation of Arianna Gonzalez-Abreu, Esq., dated March 24, 2017 at ¶44.

Footnote 66:Affirmation of Arianna Gonzalez-Abreu, Esq., dated March 24, 2017 at ¶44.

Footnote 67:Pages 5 through 6 at https://portal.hud.gov/hudportal/documents/huddoc?id=pih2012-4.pdf

Footnote 68:Pages 5 through 6 at https://portal.hud.gov/hudportal/documents/huddoc?id=pih2012-4.pdf

Footnote 69:Indeed, 24 CFR §983.352 is entitled "vacancy payment" and authorizes provides at paragraph 3, as follows: (3)The PHA may make vacancy payments to the owner only if: (i)The owner gives the PHA prompt, written notice certifying that the family has vacated the unit and containing the date when the family moved out (to the best of the owner's knowledge and belief); (ii)The owner certifies that the vacancy is not the fault of the owner and that the unit was vacant during the period for which payment is claimed; (iii)The owner certifies that it has taken every reasonable action to minimize the likelihood and length of vacancy; and (iv)The owner provides any additional information required and requested by the PHA to verify that the owner is entitled to the vacancy payment.

Footnote 70: Nel Taxi Corp. v Eppinger, 203 AD2d 438 (2nd Dept [1994]) citing Alvarez v Prospect Hosp., 68 NY2d 320 ([1986]).

Footnote 71:Simms v N. Shore Univ. Hosp., 192 AD2d 700, 701 (2nd Dept [1993]) citing to Winegrad v New York Univ. Med. Center, 64 NY2d 851 ([1985]).

Footnote 72:"As a matter of law, if the only facts proven at trial were those alleged by Petitioner in its motion, then Petitioner would not have met its burden to prove that Respondent had caused the leaks" Beacon 109 204-206 LLC v Leon, 2015 WL 7070077 (Civ Ct NY County [Weissberg, J., 2015]).