Mexico Leasing, LLC v Jones

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[*1] Mexico Leasing, LLC v Jones 2014 NY Slip Op 51456(U) Decided on September 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 29, 2014
2013-817 Q C

Mexico Leasing, LLC, Landlord-Appellant,


Madge Jones, Tenant-Respondent, YVETTE MORRIS and MELBOURNE JONES, Jr., Undertenants-Respondents, -and- CHRISTOPHER JAMES, "JOHN DOE" and/or "JANE DOE," Undertenants.

Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered May 16, 2012. The final judgment, after a nonjury trial, dismissed the petition in a holdover summary proceeding.

ORDERED that the final judgment is affirmed, without costs.

In this nonprimary-residence holdover proceeding, the proof, at a nonjury trial, established that Madge Jones, the tenant of record of the subject rent-stabilized apartment, had moved to Pennsylvania in 1999 to be closer to her place of employment, leaving her young-adult children and a grandchild living in the apartment. Tenant testified that, after moving to Pennsylvania, she would return to the apartment several times a month, that she continued to view herself as living in the apartment, and that she continued to pay the rent and to sign renewal leases, the last lease expiring on June 30, 2011. Tenant's daughter, Yvette Morris, testified that she was born in 1976 and has lived in the apartment since 1984. Morris' daughter, who was born in 1995, has lived with Morris since birth. Following the trial, the Civil Court held that Morris was entitled to succession rights, as she had established that she had lived with her mother during the two-year period prior to tenant's relocation in 1999. Accordingly, the court dismissed the petition.

On appeal, landlord contends that the tenant of record cannot be found to have permanently vacated the apartment until July 2011, as she continued to pay the rent and sign renewal leases during the years from 1999 to 2011. Landlord further contends that Morris is not entitled to succession rights because the tenant of record did not live in the apartment during the two-year period prior to June 30, 2011 (see Third Lenox Terrace Assoc. v Edwards, 91 AD3d [*2]532 [2012]).

The succession provision of the Rent Stabilization Code (RSC) provides, in pertinent part, as follows:

"(b) (1) Unless otherwise prohibited by occupancy restrictions based upon income limitations pursuant to federal, state or local law, regulations or other requirements of governmental agencies, if an offer is made to the tenant pursuant to the provisions of subdivision (a) of this section and such tenant has permanently vacated the housing accommodation, any member of such tenant's family, as defined in section 2520.6(o) of this Title, who has resided with the tenant in the housing accommodation as a primary residence for a period of no less than two years . . . immediately prior to the permanent vacating of the housing accommodation by the tenant, or from the inception of the tenancy or commencement of the relationship, if for less than such periods, shall be entitled to be named as a tenant on the renewal lease" (RSC [9 NYCRR] § 2523.5 [b] [1]).
In our view, Morris satisfied the Code's requirements for succession rights, albeit not for the reasons stated by the Civil Court.

In Matter of Murphy v New York State Div. of Hous & Community Renewal (21 NY3d 649, 653 [2013]), the Court of Appeals, noting that the Mitchell-Lama succession provisions "serve the important remedial purpose of preventing dislocation of long-term residents due to the vacatur of the head of household," held that the denial by the New York State Division of Housing and Community Renewal (DHCR) of succession rights to the tenant of record's son based on the tenant of record's failure to file an annual income affidavit listing her son, as required by DHCR's succession regulations, was arbitrary and capricious in light of the overall goal of the succession provisions. As has long been recognized, the rent-control and rent-stabilization succession provisions share the same salutary purpose as the Mitchell-Lama succession regulations (e.g. Rent Stabilization Assn. of NY City v Higgins, 83 NY2d 156 [1993]; Braschi v Stahl Assoc. Co., 74 NY2d 201 [1989]; Lesser v Park 65 Realty Corp., 140 AD2d 169 [1988]; NCL Realty v Sunga, NYLJ, May 31, 1988, at 22, col 2 [App Term, 2d & 11th Jud Dists]). Reading RSC § 2523.5 (b) (1) with this purpose in mind, we hold that the provision does not mandate, or even allow, a finding of nonentitlement to succession rights solely on the ground that the tenant of record has not maintained her primary residency in the stabilized apartment during the two-year period prior to her permanent vacating of the apartment, which here under all the facts and circumstances must be deemed as having occurred on July 1, 2011. Notably, RSC § 2523.5 (b) (1) focuses on the remaining family member's having resided in the apartment "as a primary residence" within the two-year period prior to the tenant's permanent vacating of the apartment, and does not insist upon the tenant of record's having so resided during that period. It is thus our view that the eviction of the remaining family member in the circumstances of this case would not be consistent with the purpose of RSC § 2523.5 (b) (1) to avoid the "grievous harm" (Lesser, 140 AD2d at 173) of uprooting family members, and is not warranted.

Accordingly, the final judgment is affirmed.

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

Decision Date: September 29, 2014