M & B Lincoln Realty Corp. v Thompson

[*1] M & B Lincoln Realty Corp. v Thompson 2015 NY Slip Op 51796(U) Decided on December 8, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2014-1241 K C

M & B Lincoln Realty Corp., Landlord-Appellant,

against

Desiree Thompson, Tenant, Jamal McNichol, Undertenant, -and- Jilian Ann McNichol, Undertenant-Respondent.

Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Eleanora Ofshtein, J.), entered September 30, 2013. The final judgment, after a nonjury trial, dismissed so much of the petition as is against Jilian Ann McNichol in a holdover summary proceeding.

ORDERED that the final judgment, is reversed, without costs, so much of the petition as is against Jilian Ann McNichol is reinstated and the matter is remitted to the Civil Court for the entry of a final judgment of possession in favor of landlord as against Jilian Ann McNichol.

Landlord commenced this holdover summary proceeding to recover possession of a rent-stabilized apartment on the ground that tenant, Desiree Thompson, was not using the apartment as her primary residence.[FN1] Jilian Ann McNichol (McNichol), tenant's sister, appeared and asserted her right to succeed to the tenancy (see Rent Stabilization Code [9 NYCRR] § 2523.5 [b] [1]). At a nonjury trial, the evidence established that tenant had taken up primary residence in a house she had purchased on Albany Avenue, Brooklyn, in 1989, but she had continued to pay rent and sign renewal leases for the apartment, with the latest renewal lease having expired on April 30, 2011. Tenant testified that she came to the apartment only when she experienced marital troubles. Additionally, McNichol established, to the satisfaction of the Civil Court, that she had been residing in the apartment as her primary residence from the inception of [*2]the lease in 1979.

In its decision after trial, the Civil Court stated that Rent Stabilization Code (9 NYCRR) § 2523.5 (b) (1) "entitles a long-term occupant to succeed to the lease when the occupancy commenced at the inception of the tenant of record's tenancy," irrespective of whether the occupant had co-resided with the tenant in the apartment for the two years prior to the tenant's permanently vacating the apartment. The court cited, as its authority for its interpretation of this regulation, cases such as Festa v Leshen (145 AD2d 49 [1989]) and Weintraub v Rudin Estates Co. (160 AD2d 483 [1990]), in which each of the occupants had been granted succession rights to a rent-stabilized apartment on the ground that they had resided in their apartments with their respective tenants from the inception of the leases pursuant to former Rent Stabilization Code (9 NYCRR) § 2523.5 (b) (1). The Civil Court dismissed so much of the petition as was asserted against McNichol, finding that she had primarily resided in the apartment from the inception of the tenancy.

On appeal, landlord contends that the Civil Court should not have dismissed the petition against McNichol because she had failed to establish that she had resided with tenant in the subject apartment as her primary residence for a period of no less than two years prior to tenant's permanently vacating the apartment.

The succession rights provision of Rent Stabilization Code (9 NYCRR) § 2523.5 (b) (1), as amended in 1989, provides, in pertinent part, as follows:

"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."

At the outset, we note that the Civil Court's interpretation of the current regulation was based upon cases decided under Rent Stabilization Code (9 NYCRR) former § 2523.5 (b).[FN2]

Under the current version of this provision, which applies to the case at bar, a family member's residing in the premises from the inception of the tenancy is relevant only when the tenancy has existed for less than the required periods at the time that the tenant of record permanently vacated the premises. Thus, the court improperly based its determination upon the fact that McNichol had been residing at the premises from the inception of the lease.

Pursuant to Rent Stabilization Code (9 NYCRR) § 2523.5 (b) (1), it was McNichol's burden to prove that she had resided with tenant in the subject apartment as her primary residence for a period of no less than two years prior to tenant's permanently vacating the apartment (see [*3]68-74 Thompson Realty, LLC v McNally, 71 AD3d 411 [2010]). The evidence adduced at trial established that, while tenant had moved to a house she had purchased on Albany Avenue in 1989, she had continued to sign renewal leases and to pay rent. Consequently, we find that tenant had not permanently vacated the apartment at any time prior to the expiration of the last lease renewal on April 30, 2011 (see Third Lenox Terrace Assoc. v Edwards, 91 AD3d 532, 533 [2012]).

Although McNichol submitted sufficient documentary evidence establishing that she had resided in the apartment during the two years prior to tenant's permanent vacating of the apartment, the evidence failed to establish that tenant also resided in the premises at that time, since tenant admittedly had been residing elsewhere since 1989 and did not maintain a sufficient nexus to the apartment thereafter so as to be considered to be residing there (see e.g. id.; Jols Realty Corp v Nunez, 43 Misc 3d 129[A], 2014 NY Slip Op 50529[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; 206 W. 104th St. LLC v Zapata, 45 Misc 3d 135[A], 2014 NY Slip Op 51747[U] [App Term, 1st Dept 2014]; Clinton Realty Assoc., LLC v De Los Angeles, 29 Misc 3d 142[A], 2010 NY Slip Op 52178[U] [App Term, 1st Dept 2010]; Metropolitan Life Ins. Co. v Butler, 2002 NY Slip Op 50014[U] [App Term, 1st Dept 2002]; cf. Mexico Leasing, LLC v Jones, 45 Misc 3d 127[A], 2014 NY Slip Op 51456[U] [App Term, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the final judgment is reversed, so much of the petition as is against Jilian Ann McNichol is reinstated and the matter is remitted to the Civil Court for the entry of a final judgment of possession in favor of landlord as against Jilian Ann McNichol.

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

Decision Date: December 08, 2015

Footnotes

Footnote 1:In an order dated April 20, 2012, the Civil Court (Maria Milin, J.) awarded landlord partial summary judgment on the claim of nonprimary residence against Desiree Thompson.

Footnote 2:The Civil Court also relied upon Haroust Corp. v Yuen Chung Chin (155 AD2d 317 [1989]), in which the occupant failed to establish that he had resided together with the named tenant from the inception of the lease or that he had resided in the apartment for two years prior to the named tenant's death. The case was similarly decided under former Rent Stabilization Code (9 NYCRR) § 2523.5 (b) (1) and (2).