Arlin LLC v Arnold

[*1] Arlin LLC v Arnold 2005 NY Slip Op 51541(U) [9 Misc 3d 1114(A)] Decided on September 23, 2005 Civil Court Of The City Of New York, New York County Lebovits, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2005
Civil Court of the City of New York, New York County

Arlin LLC, Petitioner,

against

Gregory Arnold and CHRISTOPHER ARNOLD, Respondents,



73801/04



Wolf, Haldenstein, Adler, Freeman & Herz LLP (Nancy S. Pitkofsky of counsel) New York City, for petitioner.

Marc Aronson, New York City, for respondents.

Gerald Lebovits, J.

Petitioner, Arlin LLC, commenced this illegal-sublet proceeding on the alleged ground that Gregory Arnold, the primary tenant, illegally sublet his rent-stabilized East 37th Street apartment to Christopher Arnold, his brother.

Respondents, the Arnold brothers, argue that Christopher Arnold is entitled to succeed Gregory Arnold to the subject apartment. Respondents also argue that because Christopher Arnold is Gregory Arnold's immediate family member and has a long-standing connection to the apartment, this sublet proceeding may not be maintained.

Christopher Arnold is not entitled to succession rights. Despite the Arnold brothers' testimony to the contrary—testimony the court finds largely untruthful—Christopher Arnold did not reside in the apartment contemporaneously with Gregory Arnold for two years before Gregory Arnold moved out. But because the Arnolds are brothers and because Christopher Arnold has a long-standing connection to the subject apartment, neither respondent may be evicted for any supposed illegal sublet.

FINDINGS OF FACT[*2]

This three-day trial began on June 22, 2005. Eric Hausknecht, a resident of the subject building and a member of petitioner LLC, and Carel Lindenmeyr, a long-time resident of the building, testified for petitioner. Testifying for respondents were the Arnold brothers, Terry Bernstein, their accountant, and Lois Ann Demko, Christopher Arnold's former girlfriend. Each side introduced several documents and exhibits into evidence, including the Arnold brothers' deposition testimony.

Hausknecht, whose LLC bought the building in 2003, testified that he has never seen Gregory Arnold in the building. He stated that after his LLC bought the building, Christopher Arnold mailed him rent checks but that he refused to accept them.

Lindenmeyr testified that she moved into the building in 1970 and that she has been the Arnolds' neighbor since Nancy Arnold, respondents' mother, moved into the apartment in 1973. Lindenmeyr alleged that Gregory Arnold moved out of the building in February 1998. According to Lindenmeyr, Gregory Arnold told her before moving out that he wanted to try to "move in" his brother to give Harry Rubinstein, their then-landlord, the impression that Christopher Arnold lived there. Lindenmeyr stated that Gregory Arnold told her that he planned to tell Rubinstein that marital difficulties caused him to quit the apartment.

Gregory Arnold testified that his mother moved into the subject apartment in 1973, that he moved into the apartment permanently in 1980 (although he lived elsewhere for a year), and that Mona Arnold, his wife (who never testified), moved into the apartment shortly before 1993. In his deposition, he claimed that Christopher Arnold moved in with him and Mona Arnold in 1993. (See Gregory Arnold's Deposition of Nov. 8, 2004, at 12.) At trial, he claimed that Christopher Arnold did not live in the apartment during most of the 1980s but that Christopher Arnold lived with him and Mona Arnold between 1995 and 1998. In his deposition, he stated that he "never moved out" of the subject apartment. (Id. at 8-9.) At trial, he admitted that he moved into his cooperative apartment at 812 Park Avenue, New York, New York, with his wife in February 1998. He also stated at trial that he moved to Park Avenue because the East 37th Street apartment was too small for them. He stated that while he lived in that apartment, he would often go on trips with his wife to her villa in the south of France. He denied telling Lindenmeyr that he attempted to trick Rubinstein into creating a tenancy for Christopher Arnold. He claimed he told Lindenmeyr only that he had heat and hot water problems.

Christopher Arnold testified that he lived in the apartment for a short time in 1988 and moved back in permanently with Gregory Arnold and Mona Arnold in the early 1990s. To prove that the apartment has been his primary residence for many years and that he lived with Gregory Arnold for more than two years before the latter moved out, he submitted to the court his vehicle registration, driver's license, tax returns, and two passports, one from 1993 to 2003, the other from 2003 to 2113. All these documents list the East 37th Street address. He admitted that he never paid rent for the subject apartment. He also stated that he was the tenant of record in another rent-stabilized apartment, at 243 East 13th Street, New York, New York, since 1991. He alleged that he rented the 13th Street apartment because Gregory Arnold was constantly in [*3]Housing Court. He said he wanted an apartment to fall back on if Gregory Arnold were evicted. He claimed he began subletting his 13th Street apartment in 1992 or 1993 and that he lived in the 37th Street apartment from then onward. He also claimed that since he began to sublet the 13th Street apartment, he used it only intermittently, such as when he needed a place to stay after drinking too much. On January 31, 2001, he admitted, was evicted from the 13th Street apartment because he illegally subletted it. (See L&T Index No. 109874/2000.)

Bernstein stated that he prepared the Arnold brothers' tax returns. Through Bernstein, respondents offered into evidence both the Arnold brothers' federal and state tax returns, which list East 37th Street as their address.

Demko testified that she has known Christopher Arnold for 10 years. She stated that she occasionally slept at the 37th Street apartment with him between 1995 and 1999 while they dated.

The court finds that petitioner's witnesses testified credibly and that Demko and Bernstein testified credibly for respondents.

But the court disbelieves the Arnold brothers. Greg and Christopher Arnold contradicted each other at trial, and their trial testimony contradicted their deposition testimony. Christopher Arnold claimed in his deposition that because Gregory Arnold is his elder brother, Gregory slept in the bedroom. (Christopher Arnold's Deposition of Oct. 1, 2004, at 33.) But Gregory Arnold maintained in his deposition that Christopher Arnold slept in the bedroom because Christopher Arnold is the younger brother. (Gregory Arnold's Deposition of Nov. 8, 2004.) Furthermore, Gregory Arnold's deposition testimony contradicted his trial testimony. He stated in his deposition that he continuously lived in the apartment from 1980 to the date of his deposition, November 8, 2004. (See id. at 7-8.) At trial, Gregory Arnold admitted that he moved out of his apartment in February 1998 because it was too small for him, his brother, and his wife. In his deposition, moreover, he stated that Christopher Arnold moved in with him in 1993. (Id. at 15.) At trial, he claimed that Christopher Arnold moved in with him in 1995.

Christopher Arnold's deposition testimony also shows, contrary to respondents' contention, that between the early 1990s and February 1998, Christopher Arnold did not consider the subject apartment his home. For example, Christopher Arnold stated at his deposition that he never slept in the bedroom unless his brother was out of the apartment; otherwise, he would sleep on the couch in the living room. (Christopher Arnold's Deposition of Oct. 1, 2004, at 33.) He further stated that when both Nancy and Gregory Arnold were staying in the apartment, he slept on the floor or left the apartment to find another place to sleep (id. at 12), yet people who really live in an apartment do not always give up their bedrooms or leave every time a family member stays over. In his deposition, Christopher Arnold did even not call the subject premises "home": "If my mother comes, [the apartment] is hers. If Greg comes, it is his." (Id. at 36.) His deposition testimony shows that he did not live permanently in the 37th Street apartment between the early 1990s and February 1998. [*4]

Apart from Demko, the Arnold brothers did not call any witnesses to substantiate their claim that Christopher Arnold lived in the subject apartment until 1998. Demko testified about Christopher Arnold's residency in the subject apartment only between 1995 and 1999. During the four-year period she dated him, Demko testified, she slept at the subject apartment only "occasionally." Her testimony is insufficient to prove that Christopher Arnold lived there.

Nor did respondents submit any evidence to corroborate that Christopher Arnold sublet his 13th Street apartment. The court finds, therefore, that during the time he claims he sublet his 13th Street apartment, he lived on 13th Street apartment, not on East 37th Street. He never paid rent or contributed money toward rent for the East 37th Street apartment. The Arnolds called no witnesses other than Demko to prove that Gregory Arnold lived in the East 37th Street apartment. Respondents called no witnesses—such as his sublessees—or submit any proof—such as rent checks or a sublease agreement—to substantiate Christopher Arnold's claim that he sublet his 13th Street apartment between 1991 and 1998. His tax returns do not reflect that he paid any taxes on the income he earned from his illegal sublet. He testified that he used the 13th Street apartment when he was too drunk to return to the 37th Street apartment. But rare is the subtenant who would allow a landlord to enter an apartment unannounced to sleep over. It is the court's impression that he testified that he occasionally slept in his 13th Street apartment to cover himself in case petitioner called a witness to state that he really lived in the 13th Street apartment. The court finds that Christopher Arnold sublet the 13th Street apartment only during and after 1998, after he moved into the 37th Street apartment when his brother moved out.

Additionally, it is doubtful that Gregory, Christopher, and Mona Arnold all lived in the apartment at the same time for more than a few weeks at a time. The subject premises is a small one-bedroom apartment that does not easily house three people. Instead, Gregory Arnold moved out, not because the apartment was too small, but because he and his wife could afford to buy a Park Avenue cooperative and because he wanted Christopher Arnold to succeed to the 37th Street apartment.

Adding to the unreliability of the Arnolds' testimony is that both Gregory and Christopher Arnold attempted to trick both Rubinstein and Hausknecht into creating a tenancy for Christopher Arnold. Lyndenmeyer testified credibly that when Gregory Arnold moved out of the apartment, he tried to engage in a subterfuge to get Rubinstein to create a tenancy for Christopher Arnold. Christopher Arnold continued the trickery. Hausknecht testified credibly that when his LLC took over the building, Christopher Arnold gave him rent checks in his own name, even though only Gregory Arnold had been on the lease. Christopher Arnold did so to create a tenancy for himself.

Christopher Arnold's documentary evidence proves nothing helpful to him. Someone who wants to create a record to obtain an apartment can easily list a false address on documents like a driver's license, vehicle registration, and tax returns. The proof that Christopher Arnold did that here was that after the court examined his 1993 passport, it saw that someone erased his East 13th Street address and pencilled in the East 37th Street address. His passport originally [*5]contained the East 13th Street address because he lived on East 13th Street, not on East 37th Street. The erasure was consistent with the Arnold brothers' acts of deception meant to secure for Christopher Arnold succession rights to a rent-stabilized apartment.

Given the testimony the court credits, the court finds that Gregory Arnold lived in the subject apartment until February 1998, when he moved to Park Avenue. Christopher Arnold moved into the subject apartment for a short time in 1988 and lived in various apartments, including the subject apartment, until 1991. When Christopher Arnold began renting the 13th Street apartment in 1991, he lived there until February 1998. Between 1991 and February 1998, Christopher Arnold used the subject apartment intermittently, as a place to stay for a week or two or for a few weeks when Gregory and Mona Arnold were in the south of France. In February 1998, when Gregory Arnold moved out of the apartment, Christopher Arnold moved into the apartment. Apart from a period between 1988 and 1991, Christopher Arnold did not live in the subject apartment with Gregory Arnold. But because Christopher Arnold lived in the subject apartment for a few weeks at a time between 1988 and 1991, used it with some regularity between 1991 and 1998, and moved into the apartment in February 1998, he has a long-standing connection to the apartment.

CONCLUSIONS OF LAW

The issue is whether petitioner, having proven that the Arnolds fabricated a record of tenancy for Christopher Arnold in the subject apartment, may prevail in its attempt to evict the Arnolds for an illegal sublet. The court concludes, based on strict appellate precedent, that petitioner may not prevail.

Christopher Arnold cannot succeed Gregory Arnold to the subject apartment. To succeed to a rent-stabilized apartment, a successor must be the tenant's family member, must use the premises as a primary residence, and must live in the apartment for two years with the primary tenant immediately before the primary tenant moves out (unless the family member is a "senior citizen" or "disabled person"). (Rent Stabilization Code [RSC] [9 NYCRR] § 2204.6 [d] [1].) Christopher Arnold did not live with Gregory Arnold between February 1996 and February 1998, two years before Greg Arnold moved out of the apartment.

The more difficult question concerns the alleged illegal sublet. Respondents argue that petitioner may not maintain an illegal-sublet proceeding brought against an immediate family member. On this, respondents are on solid footing.

Under a sublease, a tenant conveys the right to occupy the subject premises wholly or partly to a subtenant or sublessee for a set time period. (BLF Realty Holding Corp. v Kasher, 299 AD2d 87, 94, n 4 [1st Dept 2002]; 520 E. 81st St. Assocs. v Roughton-Hester, 157 AD2d 199, 201 [1st Dept 1990].) Under the RSC, a tenant must obtain the landlord's written consent to sublet, unless the lease gives the tenant greater rights than the RSC. (See 9 NYCRR § 2525.6 [a] [providing that RPL § 226-b governs sublets in rent-stabilized leases]; RPL § 226-b [1] [defining [*6]tenants' right to sublet].) If a tenant sublets an apartment without meeting the RSC's requirements, the landlord may commence an illegal-sublet proceeding. (9 NYCRR § 2525.6 [f].) An illegal-sublet proceeding may be commenced before the rent-stabilized lease expires. (9 NYCRR § 2524.3 [h].)

The relationship between a primary tenant and an alleged illegal subtenant affects a landlord's ability to prevail on an illegal-sublet cause of action. If the alleged illegal subtenant is the tenant's immediate family member, the landlord will have more difficulty proving an illegal sublet than if the alleged subtenant is not the tenant's family member. Brothers are included in the RSC's definition of "family member." (9 NYCRR § 2204.6 [d] [3] [i].) A tenant's immediate family members—the same as "family members" under the RSC—are permitted to live in a rent-stabilized apartment without the landlord's consent. (RPL § 235-f [2].) Depending on the family member's connection to the apartment, a landlord may not succeed in an illegal-sublet proceeding.

A landlord may not maintain an illegal-sublet proceeding against a tenant's immediate family member with a long-standing connection to the apartment, even if the primary tenant no longer lives in the apartment. (235 W. 71 St. LLC v Chechak, 4 Misc 3d 114, 115 [App Term, 1st Dept 2004, per curiam], affd 16 AD3d 242, 242 [1st Dept 2005 mem] [holding that nonprimary-residence proceeding, not sublet proceeding, is appropriate when landlord alleges illegal sublet between parent and child]; Hudson St. Equities Group, Inc. v Escoffier, 2003 NY Slip Op 51213[U], *1, 2003 WL 21994079, at *1 [App Term, 1st Dept, Aug. 15, 2003, per curiam] [holding that sublet proceeding is inappropriate when landlord alleges that tenant illegally sublet to foster brother]; Presbyterian Hosp. of City of NY v Melendez, 2001 NY Slip Op 40512[U], 2001 WL 1682762 [App Term, 1st Dept, Nov. 8, 2001, per curiam, Gangel-Jacob, J., concurring] [explaining that if tenants had appealed from possessory judgment and not simply from whether they cured illegal sublet, they would have prevailed because alleged illegal subtenant was tenant's daughter]; Seagrave Establishment, Inc. v Rothstein, NYLJ, June 28, 1985, at 12, col 1 [App Term 1st Dept, per curiam] [holding that tenant's son could not be evicted in illegal-sublet proceeding when tenant lived with son but later moved out]; 61 Jane St. Assocs. v Kroll, NYLJ, Mar. 15, 1983, at 10, col 4 [App Term 1st Dept 1983, per curiam] ["It is obvious that tenant himself is not and has not been in a landlord-tenant relationship with his own children, and that the children have been permitted to reside in the apartment as an incident of the family relationship."], affd 102 AD2d 751, 753 [1st Dept 1984, mem]; 2500 Broadway, LLC v Ward, NYLJ, Mar. 3, 2004, at 19, col 1 [Hous Part, Civ Ct, New York County] ["[T]he occupancy of a close family member in an apartment during the absence of the tenant of record does not constitute an illegal sublet as a matter of law."].)

A landlord that brings an illegal-sublet proceeding must prove an illegal subtenancy. Proving only that the tenant did not use the apartment as a primary residence is insufficient to prove an illegal sublet. (PLWJ Realty, Inc. v Gonzalez, 285 AD2d 370, 370 [1st Dept 2001, mem] [finding that tenant could not be evicted in illegal-sublet proceeding when landlord directed proof only to tenant's nonprimary residence], lv dismissed 97 NY2d 676 [2001]; Park [*7]Holding Co. v Rosen, 241 AD2d 304, 304 [1st Dept 1997, mem], affd on dissent below NYLJ, Oct. 3, 1996, at 24, col 1 [App Term 1st Dept, per curiam, Freedman, J., dissenting]; Santorini Equities, Inc. v Picarra, 2003 NY Slip Op 50645[U], *1, 2003 WL 1793090 [App Term, 1st Dept 2003, per curiam] [same]; MF Holding, LLC v Astopolopoulos, NYLJ, Apr. 26, 2002, at 21, col 1 [App Term 1st Dept, per curiam] [same].)

Chechak, Hudson, and Justice Phyllis Gangel-Jacob's concurrence in Melendez relied on PLWJ Realty for the proposition that an immediate family member may not be evicted in an illegal-sublet proceeding. The Appellate Division affirmed the Appellate Term in PLWJ Realty on two grounds: because the landlord submitted proof about the tenant's nonprimary residency, not about the tenant's alleged illegal sublet (see 285 AD2d at 379), and because of the reasons stated in Justice Gangel-Jacob's dissent in the Appellate Term. (Id., citing 187 Misc 2d 241, 241 [App Term, 1st Dept 2000, Gangel-Jacob, J. dissenting].)

Justice Gangel-Jacob enumerated three grounds for dissenting in PLWJ Realty. First, the tenant's son—the alleged illegal sublessee—lived in the apartment for most of his life. Second, the tenant's son had a right to live with the tenant concurrently in the apartment, and the landlord did not prove that the tenant did not live with her son. Third, she agreed with Justice Helen E. Freedman's dissent in Park Holding. (See 241 AD2d at 304, affd on dissent below NYLJ, Oct. 3, 1996, at 24, col 1 [Freedman, J., dissenting].) In Park Holding, the tenant's son moved out of the apartment for one year following his college graduation and then moved back into the apartment. Justice Freedman noted that the tenant had a right to live with her son. She stated that the landlord did not prove that the tenant did not live in the apartment and therefore did not prove that the tenant did not live contemporaneously with her son.

Thus, the landlord in PLWJ Realty failed in its sublet proceeding because it submitted proof only about the tenant's nonprimary residence and because the landlord failed to prove that the tenant did not live in the subject apartment, and therefore was unable to prove that the alleged illegal sublessee lived in the apartment contemporaneously with the tenant. The Chechak and Hudson cases, along with the concurrence in Melendez, extended PLWJ Realty's and Park Holding's rulings to find that a landlord is barred from bringing an illegal-sublet proceeding against a tenant's immediate family member if the family member has close ties to the apartment. The Appellate Division, First Department, unanimously affirmed Chechak. Citing PLWJ Realty, it held that the landlord failed to prove an unlawful assignment. (See 16 AD3d at 242.) The First Department found, instead, that the landlord proved only that the subject apartment might not have been the tenant's primary residence. By affirming Checkak in its entirety, and in doing so by citing its opinion in PLWJ Realty, the First Department approved the Appellate Term's extension of PLWJ Realty and Park Holding barring a landlord from bringing an illegal-sublet proceeding against a tenant's immediate family member with close ties to an apartment.

But regardless how it came about that the Appellate Term and the Appellate Division extended the Appellate Division's decisions in Park Holding and PLWJ Realty, Chechak, and Hudson are now the law and bind this court. [*8]

To support its argument that the court should not recognize differences in subletting to family members and non-family members, petitioner cites to Dogwood Associates v Lumsby (L&T Index No. 86998/2002 [Hous Part, Civ Ct, NY County, Nov. 20, 2002, Schachner, J.]), an illegal-sublet proceeding in which the landlord alleged that the tenant illegally sublet his apartment to his daughter. The Dogwood tenant moved for summary judgment, claiming that because the alleged illegal subtenant was the primary tenant's daughter, they could not be evicted. The landlord, on the other hand, argued that it may bring an illegal-sublet proceeding against a tenant's immediate family member when, as here, the primary tenant surreptitiously allows an immediate family member to reside in the apartment in the primary tenant's absence. (Id. at 2-3.)

The Dogwood court found that the cases the tenant cited—PLWJ Realty, Park Holding, and MF Holding—stand for the proposition that a landlord may not prevail if it submits proof only about the tenant's nonprimary residence and not about the tenant's illegal sublet. (See id. at 1-2.) The Dogwood court found that these cases do not bar an illegal-sublet proceeding brought against immediate family members. The Dogwood court denied summary judgment, therefore, because the court found issues of fact about whether the primary tenant illegally sublet the apartment. This court agrees with the Dogwood court's interpretation of PLWJ Realty, Park Holding, and MF Holding. (Accord Chechak, 4 Misc 2d at 115 [McCooe, J., dissenting]; Archangel Michael Realty, Inc. v Vidal, L&T Index No. 111082/2002, at 3 [Hous Part, Civ Ct, NY County, Mar. 27, 2003, Jiminez, J.] [noting that "[n]either Park Holding Co. nor PLWJ Realty prohibit[s] the court from entertaining . . . a proceeding" involving an "alleged illegal sublessee [who] is a family member"] [citations omitted].) But the unpublished Dogwood, perhaps the only case (with the similarly unpublished Archangel Michael Realty) that favors petitioner herein, did not address Melendez, and Dogwood predates both Hudson and Chechak, which, as explained above, expanded the First Department's holding in PLWJ Realty. Additionally, the Dogwood court decided a motion for summary judgment, whereas in this case the court held a trial. The Dogwood case itself never went to trial. After the court denied summary judgment, the landlord agreed to discontinue the proceeding, and the court's opinion was never appealed. This court may not rely on Dogwood.

Were Christopher Arnold and Gregory Arnold unrelated, petitioner might prevail. If a primary rent-stabilized tenant does not live with an unrelated person, a landlord may prevail in an illegal-sublet proceeding. (E.g. Offit, Fortgang & Komito v Moshlak, 5 Misc 3d 130[A], 2004 NY Slip Op 51308[U], 2004 WL 2472371 [App Term, 1st Dept 2004, per curiam].) The facts in Moshlak are similar to the facts in this case, except that the Moshlak primary tenant was not related to the subtenants. In Moshlak, the primary tenant contended that he lived in his rent-stabilized apartment with two roommates. At trial, the primary tenant admitted that he lived at another address with his wife. The primary tenant never obtained the landlord's written permission to sublet the apartment. The court found that the tenant's apartment was sublet illegally. If the respondents here were not related, petitioner, like the petitioner in Moshlak, might be entitled to a warrant of eviction for an illegal sublet, subject to Gregory Arnold's right to cure by moving back to his apartment and subject to the result of any nonprimary-residence proceeding petitioner might commence. [*9]

Citing the dissenting opinion in Hudson Street Equities Group (see 2003 NY Slip Op 51213[U], *1-3, 2003 WL 21994079, at *1-3 [McCooe, J., dissenting]), petitioner urges that the law does not bar an illegal-sublet proceeding against an immediate family member. (See Petitioner's Post-Trial Memorandum of Law, Sept. 9, 2005, at 1-2 [arguing that factfinder must find for landlord in illegal-sublet case involving immediate family members if evidence shows that immediate family members have no right to succeed tenant].) According to petitioner, "the court is respectfully urged to adopt the analysis espoused in the dissenting opinion in Hudson . . . ." (Id.) But a dissenting opinion is not binding; the court may not rely on the Hudson dissent opinion to find for petitioner. (See e.g. People v James, 75 NY2d 874, 875 [1990, mem] [noting that dissenting opinions are not binding interpretations of majority's holding].)

Although this court may not rely on Justice William P. McCooe's dissent in Hudson, his dissent is helpful because it clarifies the majority's opinion that an illegal-sublet proceeding may not be successfully brought against a tenant's immediate family member even if the family member does not live in the apartment contemporaneously with the primary tenant. Justice McCooe remarked that the Hudson trial court found that the primary tenant and his foster brother were not roommates. Justice McCooe noted that the trial court found that although the tenant and his foster brother had been roommates at one time, they were not roommates when the landlord brought its illegal-sublet proceeding. Justice McCooe dissented precisely because the Hudson majority found that despite the trial court's finding that the tenant did not live with his foster brother, the landlord could still not prevail in an illegal-sublet proceeding. (See Hudson St. Equities Group, 2003 NY Slip Op 51213 [U], *2, 2003 WL 21994079, at *2 [McCooe, J., dissenting].)

In his dissent, Justice McCooe also explained that another reason the Hudson landlord could not prevail was that the landlord did not prove that the foster brother was an illegal subtenant. Justice McCooe made it clear that the Hudson majority found that the foster brother was a licensee and therefore could not be evicted in an illegal-sublet proceeding. Here, as in Hudson, Christopher Arnold was Gregory Arnold's licensee. Petitioner Arlin LLC may not succeed even though the Arnold brothers lied about their status in the apartment.

In Hudson, the primary tenant moved out of his rent-stabilized apartment and allowed his foster brother to use the apartment. The foster brother used the apartment at least intermittently for over 30 years as the tenant's roommate or when the tenant was out of town. The court found that the foster brother's connection to the apartment was long-standing. Given the way the foster brother used the apartment, the court concluded that he was more a licensee than a subtenant. The court held that if a close family member with a long-standing connection to a rent-stabilized apartment occupies the apartment in the primary tenant's absence, an illegal-sublet proceeding is not tenable.

Like the foster brother in Hudson, Christopher Arnold was Gregory Arnold's family member. Although Gregory Arnold conveyed to Christopher Arnold a right to occupy the premises, he did so for an indefinite period. The Arnold brothers did not intend to create a [*10]subtenancy but, rather, to move Christopher Arnold into the apartment so that he could secure succession rights, however deceptively. Christopher Arnold paid rent to no one, and petitioner submitted no evidence that a subtenancy existed between the Arnolds. Because no sublet existed and because Christopher Arnold lived in the premises with Gregory Arnold's consent, Christopher Arnold was a licensee, not a sublessee.

Also like the foster brother in Hudson, Christopher Arnold has a long-standing connection to the apartment. He has had some connection with the apartment for at least 14 years: He lived in the apartment for a time between 1989 and 1991, he used the apartment for up to a few weeks at a time between 1991 and 1998, and he has lived in the apartment since 1998. Thus, like the foster brother in Hudson, Christopher Arnold is a licensee, has a long-standing connection to the apartment, and is the primary tenant's immediate family member. In keeping with Hudson, this illegal-sublet proceeding must be dismissed.

Chechak and Melendez also support Hudson's reasoning. (See 16 AD3d at 242; 2001 NY Slip Op 40512[U], 2001 WL 1682762.) In Chechak, the primary tenant lived in the apartment for 14 years. His mother was the tenant of record from 1982 to 1999. The tenant succeeded his mother to the apartment in 1999. After succeeding to the apartment, he relocated to Michigan, but his mother still used the apartment intermittently. The landlord commenced an illegal-sublet proceeding to evict the tenant and his mother. The Appellate Term, which the Appellate Division affirmed, found that as an immediate family member, the mother was permitted to live in the apartment. Because the mother was the tenant's close family member and because she had close ties to the apartment, the Appellate Term found that the landlord's illegal-sublet proceeding had to be defeated. The court suggested that the landlord might have prevailed if it had brought a nonprimary-residence proceeding instead of an illegal-sublet proceeding, and the Appellate Division confirmed that sentiment. (See 16 AD3d at 242 ["The proper procedure for terminating this tenancy was not initiated."].)

.

In Melendez, the tenant of record allowed her daughter and her daughter's family to move into the subject apartment after she moved to Florida. At trial, the mother, the daughter, and the daughter's family were all evicted in an illegal-sublet proceeding. Justice Gangel-Jacob's concurrence clarifies the majority's opinion. The only issue on appeal was whether the mother cured the illegal sublet, not whether to vacate the judgment of possession resulting from the mother's alleged illegal sublet. According to Justice Gangel-Jacob, the court would, or should, have reversed had the tenants appealed the judgment of possession. Reasoning that a tenant's immediate family members have the right to live in a rent-stabilized apartment, Justice Gangel-Jacob stated that the appropriate proceeding would have been a nonprimary residence proceeding, not an illegal-sublet proceeding.

Like the tenants in Chechak and Melendez, Christopher Arnold is Gregory Arnold's immediate family member. Like the tenant in Chechak, Christopher Arnold had a long-standing connection to the apartment. Just as the respondents in Chechak and Melendez could not be [*11]evicted based on an illegal-sublet theory, the Arnold brothers, too, may not be evicted on that theory.

PLWJ Realty and Santorini also help respondents. In both cases, the landlords submitted proof only that the primary tenant did not use the apartment as a primary residence. The landlords in neither case proved that the tenants sublet their apartments illegally—or even that the family member had a long-standing connection to the apartment. Here, petitioner proved that Gregory Arnold did not use the subject apartment as his primary residence and that Christopher Arnold lived in the apartment without the landlord's permission. But for the reasons discussed above, the court finds that Christopher Arnold was his brother's licensee, not a subtenant.

CONCLUSION

Christopher Arnold did not live in the apartment contemporaneously with Gregory Arnold for two years. He may not succeed Gregory Arnold to the subject apartment. Petitioner demonstrated that Gregory Arnold, the tenant of record, no longer occupies the subject apartment as his primary residence and that Christopher Arnold currently occupies the subject apartment. But petitioner brought an illegal-sublet proceeding, not a nonprimary-residence proceeding. An illegal-sublet proceeding may not be maintained if the alleged sublessee has a long-standing connection to the apartment, is the primary tenant's immediate family member, and is the primary tenant's licensee. The petition is dismissed.

This opinion is the court's decision and order.

Dated: September 23, 2005

J.H.C.