1150 Brighton Co. v Persits

[*1] 1150 Brighton Co. v Persits 2021 NY Slip Op 50668(U) Decided on July 9, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 9, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : DAVID ELLIOT, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1711 K C

1150 Brighton Co., Appellant,

against

Sophia Persits, as Administratrix of the Estate of Bella Persits, Alex Persits, John Doe and Jane Doe, Respondents.

Claro, PLLC (Joseph M. Claro of counsel), for appellant. Brooklyn Legal Services (Jessica Reed of counsel), for respondents.

Appeal from a final judgment of the Civil Court of the City of New York, Kings County (John H. Stanley, J.), entered April 13, 2017. The final judgment, entered pursuant to a decision of that court dated March 10, 2017, after a nonjury trial, dismissed the petition in a holdover summary proceeding.

ORDERED that, on the court's own motion, the notice of appeal from the decision dated March 10, 2017 is deemed a premature notice of appeal from the final judgment entered April 13, 2017 (see CPLR 5520 [c]); and it is further,

ORDERED that the final judgment is affirmed, without costs.

In this nonprimary-residence holdover proceeding commenced in 2012, Alex Persits (occupant), the stepson of Bella Persits (tenant) who died in 2015, asserts that he is entitled to succession rights to the rent-stabilized premises (see Rent Stabilization Code [RSC] [9 NYCRR] § 2523.5 [b] [1]). The Civil Court, after a nonjury trial, found that occupant had succession rights and dismissed the petition.

Contrary to landlord's argument, "the relevant one- or two-year period (depending on whether or not the family member is a senior citizen or disabled) in which the family member must 'reside with' the tenant is the one- or two-year period immediately prior to when the tenant ceases residing at the housing accommodation" (Matter of Jourdain v New York State Div. of [*2]Hous. & Community Renewal, 159 AD3d 41, 46-47 [2018]; see 700 Bklyn Realty, LLC v Samuel, 69 Misc 3d 126[A], 2020 NY Slip Op 51115[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; EB Bedford, LLC v Lee, 64 Misc 3d 39 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). As it is undisputed that occupant is disabled, the one-year period is applicable (see RSC § 2523.5 [b] [1]).

Here, the testimony and documentary evidence established that occupant had been living in the subject apartment with tenant and her husband, occupant's father, for decades until illness necessitated what was thought, at the time, to be the couple's temporary departure from the apartment in 2008. Contrary to landlord's argument, it is not relevant that tenant may not have resided in the apartment with occupant in the year prior to the expiration of the final renewal lease in 2012, since the record supports a finding that occupant lived in the apartment with tenant for the year prior to when tenant ceased residing in the apartment. Therefore, there is no basis to disturb the Civil Court's determination that occupant had succession rights (see Matter of Jourdain v New York State Div. of Hous. & Community Renewal, 159 AD3d 41).

Accordingly, the final judgment is affirmed.

ELLIOT, J.P., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 9, 2021