Tom v Tom

[*1] Tom v Tom 2014 NY Slip Op 50887(U) Decided on May 22, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ALIOTTA, J.P., PESCE and WESTON, JJ.
2012-2708 Q C

Tim Tom, as Preliminary Executor of the Estate of MERY SU LING CHIN, Respondent, May 22, 2014

against

Joan Tom, Appellant, -and- "JOHN DOE" and/or "JANE DOE," Undertenants.

Appeal from a decision of the Civil Court of the City of New York, Queens County (Inez Hoyos, J.), dated August 31, 2012, deemed from a final judgment of the same court entered August 31, 2012 (see CPLR 5512 [a]). The final judgment, insofar as appealed from as limited by the brief, after a nonjury trial, awarded petitioner possession in a licensee summary proceeding.

ORDERED that the final judgment, insofar as appealed from, is affirmed, without costs.

Upon the death of Mery Su Ling Chin in August 2011, her stock shares in Roosevelt Terrace Cooperative (RTC), located in Queens, New York, became the property of her estate. Her son, petitioner Tim Tom, was appointed the preliminary executor of the estate. Thereafter, petitioner, as preliminary executor of the estate, commenced this licensee summary proceeding (RPAPL 713 [7]), by which he sought to recover possession of his mother's apartment at RTC from occupant, his sister. Petitioner argued that any license that occupant had to remain in the apartment had been revoked and that, pursuant to RTC's occupancy agreement and by-laws, occupant was not entitled to succeed to their mother's rights because she had not resided in the apartment with their mother for at least a year prior to their mother's death. Occupant defended on the ground that she had succession rights. Following a nonjury trial, the Civil Court found that occupant had begun residing in the subject apartment after her mother's death and awarded possession to petitioner.

The relevant portion of the RTC occupancy agreement provides that "no one other than the Member may occupy the Apartment unless the member is then in occupancy or the prior written consent of the Board of Directors of the Corporation has been obtained" (article 5 [B] [2]; 7 [E]). The RTC by-laws state that shares in RTC may be transferred

"(ii) upon the death of the stockholder . . . provided the consent of the Corporation is first obtained, which consent shall not be unreasonably withheld, by request to a . . . child . . . of the deceased stockholder who at the time of death of the stockholder resided with the stockholder in the apartment which is the subject of the stockholder's occupancy . . . For the purposes of this Section, continuous occupancy with the deceased stockholder for the one year period immediately preceding the death of the stockholder shall be presumed to satisfy the occupancy requirement of clause (ii) if the transferee had no other residence during that period" (article IX, section 10 [A]).

In support of petitioner's claim that occupant had not resided with their mother for at least a year prior to their mother's death, an employee of the management company for RTC and the president of the RTC board of directors testified, among other things, that occupant had informed them that she did not live with her mother; that she did not have keys to her mother's apartment; and that they did not start to regularly see occupant in the building until after her mother had died. In addition, the board president testified that the board of directors had rejected occupant's application to transfer her mother's shares of the cooperative to herself because she had submitted forged documentation, and that occupant did not have the approval of the board to occupy the apartment. Petitioner testified, among other things, that, for the five years preceding their mother's death, occupant had not resided with their mother; rather, she had lived in the basement apartment of an Elmhurst building owned by their mother. In support of these assertions, petitioner submitted photographs of their mother's two- bedroom RTC apartment, which depicted one bed and a fold up bed; mail, postmarked June 2007 and January 2012, addressed to occupant at "apartment B" at the Elmhurst building; and photographs of apartment B showing that the apartment contained a kitchenette, sofa, clothes, etc. A resident of the Elmhurst building, and a friend of the decedent, testified that occupant resided in the basement of the Elmhurst building.

In support of her claim that she had resided with her mother in the RTC apartment for more than a year prior to her mother's death, occupant testified, among other things, that there was no legal basement apartment in the Elmhurst building, which she used as an office; that she did not have a key to her mother's apartment because there were only two keys and her brother had one of the keys, and she had given the remaining key, which she used to keep in her possession, to her mother because her mother kept getting locked out of the apartment; and that she had documentation showing that she had resided with her mother for a year prior to her mother's death. Occupant submitted several applications and documents on which RTC is listed as her address, and testified that RTC was listed as her address on her driver's license; however, her license was not admitted into evidence. Although occupant testified that she had IRS correspondence, tax returns and social security statements which showed that she had lived with her mother before her mother's death, none of these documents were admitted into evidence.

In our view, the evidence amply supports the Civil Court's conclusion that occupant did not reside in the apartment with her mother at the time of her death or for at least a year prior to her mother's death. Consequently, the Civil Court properly awarded possession to petitioner.

We note that the documents annexed to occupant's brief on appeal, including but not limited to voter registration forms, which were not admitted into evidence at trial, are dehors the record and will not be considered on appeal (Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the final judgment, insofar as appealed from, is affirmed.

Aliotta, J.P., Pesce and Weston, JJ., concur.

Decision Date: May 22, 2014