AFE Realty Corp. v Diamond

[*1] AFE Realty Corp. v Diamond 2005 NYSlipOp 50783(U) Decided on May 23, 2005 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 23, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PATTERSON, J.P., GOLIA and RIOS, JJ.
2004-219 K C

AFE REALTY CORP., Appellant,

against

DAVID DIAMOND, "JOHN DOE" and "JANE DOE", Respondents -and- "JOHN DOE" and "JANE DOE", Undertenants.

Appeal by landlord from a final judgment of the Civil Court, Kings County (G. Lebovits, J.), entered March 5, 2004, dismissing the petition.

Final judgment affirmed without costs.

A review of the record indicates that occupant met his affirmative obligation of establishing succession rights to the rent-controlled apartment as a nontraditional family member of the tenant of record with whom he alleges to have had a "mother-son" relationship (see NY City Rent and Eviction Regulations [9 NYCRR] § 2204.6 [d]). In order to have met said obligation, occupant needed to establish that he lived with the tenant of record, as his primary residence, for a period of two years immediately before she vacated said premises, and had a qualifying familial relationship with her which included both an emotional and financial commitment, and interdependence (see NY City Rent and Eviction Regulations [9 NYCRR] § 2204.6 [d] [3]), not just a sharing of the expenses of the premises (see Bims Realty Corp. v Durham, NYLJ, Sept. 18, 1997 [App Term, 2d & 11th Jud Dists]; GSL Enterprises, Inc. v Goldstein, NYLJ, July 13, 1999 [App Term, 1st Dept]).

Viewing the totality of the relationship between occupant and the tenant of record (see Braschi v Stahl Assocs. Co., 74 NY2d 201 [1989]), we find that the testimony adduced at trial established that an emotional and financial commitment and interdependence existed (see NY City Rent and Eviction Regulations [9 NYCRR] § 2204.6 [d] [3]). Accordingly, occupant is a qualifying family member and the court below properly awarded him possession of the apartment. [*2]

Golia and Rios, JJ., concur.

Patterson, J.P., dissents in a separate memorandum.

Patterson, J.P., dissents and votes to reverse the final judgment and award possession to landlord in the following memorandum:

Contrary to the holding of the majority, I conclude that occupant failed to sustain his burden of establishing succession rights as a nontraditional family member of the tenant of record (see NY City Rent and Eviction Regulations [9 NYCRR] § 2204.6 [d] [3]). Although tenant cared for occupant during his teenage years while his mother was sick, nothing in the record supports a finding that their relationship was familial in nature. To the contrary, occupant and tenant developed a relationship that was more akin to that of a business relationship. Tenant would take care of occupant's children in exchange for occupant's assistance in shopping and paying utility bills and rent. As tenant got older, she would spend substantial time away from New York and occupant would handle her household expenses while she was away. Other than contributing to these expenses, occupant was unaware of tenant's finances and submitted no proof of any intermingling of financial resources or financial interdependence. Viewing the totality of the relationship between tenant and occupant (see Braschi v Stahl Assocs. Co., 74 NY2d 201 [1989]), it cannot be said that occupant was a qualifying family member entitled to possession of the apartment.
Decision Date: May 23, 2005