Naroznik v Prockett

[*1] Naroznik v Prockett 2015 NY Slip Op 50613(U) Decided on April 16, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2013-2146 K C

Andrej Naroznik and ANNA NAROZNIK, Appellants,

against

Allen Prockett, Respondent.

Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Cheryl J. Gonzales, J.), entered April 5, 2013. The final judgment, after a nonjury trial, dismissed the petition in a nonpayment summary proceeding.

ORDERED that the final judgment is affirmed, without costs.

This nonpayment proceeding was commenced by landlords to recover rent that tenant failed to pay pursuant to a January 30, 2010 lease agreement in which tenant had agreed to pay $914.57 per month for the subject rent-stabilized apartment. Tenant answered and asserted that the rent sought exceeded the legal rent because, as the life partner of the prior tenant of record who had died on January 5, 2010, he was entitled to succession rights to the apartment and, therefore, the rent agreed to in the lease was not the legal rent, as the prior tenant of record had been paying $500 per month. Following a nonjury trial, the Civil Court dismissed the petition.

Landlord contends on appeal that the Civil Court lacked subject matter jurisdiction to rescind the January 2010 lease agreement based upon its determinations that tenant had succession rights to the apartment and, therefore, that the rent agreed to in the lease was improper, and that the court lacked jurisdiction to determine the succession-rights issue in this nonpayment proceeding. These contentions are unavailing. Although, as landlord contends, the fact that an occupant is entitled to succession rights is not per se a defense to a nonpayment proceeding (see Rochdale Vil., Inc. v Goode, 16 Misc 3d 49 [App Term, 2d & 11th Jud Dists 2007]), here tenant's defense sounded in rent overcharge, and the Civil Court could properly make a finding with respect to the succession-rights issue in this proceeding for the purpose of determining the validity of the lease rent (id.; cf. e.g. 1466 Holding Co. v Sanchez, 40 Misc 3d 138[A], 2013 NY Slip Op 51404[U] [App Term, 1st Dept 2013]), as Rent Stabilization Code (9 NYCRR) § 2520.13 provides that "[a]n agreement by the tenant to waive the benefit of any provision of the [Rent Stabilization Law] or this Code is void" (see Draper v Georgia Props., 94 NY2d 809, 811 [1999]). In any event, it has long been held, in regard to a summary proceeding, that the Civil Court can consider equitable defenses (see RPAPL 743) such as rescission and reformation (see e.g. Lun Far Co. v Aylesbury Assoc., 40 AD2d 794 [1972]; Dandey Realty Corp. v Nick's Hideaway, Inc., 24 Misc 3d 105 [App Term, 9th & 10th Jud Dists 2009]; Hammel v Rodrigues, 19 Misc 3d 37 [App Term, 9th & 10th Jud Dists 2008]; see also Nissequogue Boat Club v State of New York, 14 AD3d 542 [2005]; see generally Susquehanna [*2]S. S. Co. v Andersen & Co., 239 NY 285 [1925]).

For a person to qualify as a successor, Rent Stabilization Code (9 NYCRR) § 2523.5 (b) (1) requires simultaneous tenancy by the potential successor—who must meet the definition of family pursuant to Rent Stabilization Code (9 NYCRR) § 2520.6 (o) (2)—with the rent-stabilized tenant of record for the two years immediately prior to the tenant's permanent removal from the premises. A review of the trial evidence indicates that during the two years immediately preceding the death of the prior tenant of record, tenant resided in the apartment with the prior tenant in a familial-type relationship (see e.g. WSC Riverside Drive Owners LLC v Williams, AD3d , 2015 NY Slip Op 01158 [1st Dept 2015]). We note that in determining whether a person may be considered a "family member" for the purpose of succession, "no single factor shall be solely determinative" (Rent Stabilization Code [9 NYCRR] § 2520.6 [o] [2]). It is uncontroverted that tenant moved in with the prior tenant in 1987, as her boyfriend, and during the last two years of the prior tenant's life, while she was dying from cancer, tenant was her sole caregiver and took care of the household. The evidence clearly supports the Civil Court's finding that tenant is entitled to succession rights. Consequently, the determination of the Civil Court will not be disturbed on appeal (see 409-411 Sixth St, LLC v Mogi, 22 NY3d 875, 876 [2013]; Claridge Gardens v Menotti, 160 AD2d 544 [1990]).

Accordingly, the final judgment is affirmed.

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

Decision Date: April 16, 2015