Westprop Corp. v Smythe

[*1] Westprop Corp. v Smythe 2009 NY Slip Op 51599(U) [24 Misc 3d 139(A)] Decided on July 22, 2009 Appellate Term, First Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler JJ
570632/08.

Westprop Corp., Petitioner-Appellant,

against

Marco Smythe, Respondent, -and- Daniel Carrier, Respondent-Respondent.

Petitioner appeals from a final judgment of the Civil Court of the City of New York, New York County (David B. Cohen, J.), entered October 3, 2007, after a nonjury trial, which dismissed the petition in a holdover summary proceeding.

Per Curiam.

Final judgment (David B. Cohen, J.), entered October 3, 2007, reversed, with $30 costs, and final judgment awarded to petitioner on the holdover petition. Issuance of the warrant of eviction shall be stayed for 30 days from the service of a copy of this order with notice of entry.

Based upon the evidence adduced at trial, and in the exercise of our authority to render the judgment warranted by the facts (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]), we find that respondent Carrier failed to meet his "affirmative obligation" of establishing succession rights to the subject rent stabilized apartment as a non-traditional family member of the departed tenant of record. While respondent and tenant may have been romantically involved at one time, there was no evidence that a relationship characterized by "emotional and financial commitment and interdependence" continued over the years (see 9 NYCRR § 2523.5[b][1]). Conspicuously absent was documentary evidence demonstrating that respondent and tenant intermingled finances, formalized legal obligations or jointly owned property. As the trial court itself properly recognized, respondent and tenant never held themselves out as a couple, did not share any joint financial accounts, and did not file health care proxies or grant each other powers of attorney. Further, respondent acknowledged that he and tenant did not vacation together, knew very little about each other's finances, and that tenant did not leave a forwarding address upon his sudden "disappearance" from the premises. While the two did socialize together and shared household expenses equally, in view of the totality of the evidence, these actions were more akin to a roommate relationship than that of a non-t[*2]raditional family.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 22, 2009