3900 Broadway Holding, LLC v Cruz
Annotate this CaseDecided on March 23, 2015
Civil Court of the City of New York, New York County
3900 Broadway Holding, LLC, Petitioner
against
Barbara Cruz a/k/a BARBARA C. MORILLO , Respondent ESTEBAN CRUZ "JOHN DOE" and/or "JANE DOE"
L & T 92302/2012
BELKIN BURDEN WENIG & GOLDMAN, LLP
Attorneys for Petitioner
By: David Skaller, Esq.
270 Madison Avenue
New York, New York 10016
212.867.4466
GOLDBERG SCUDIERI & LINDENBERG, PC
Attorneys for Respondent
By: David G. Scudieri, Esq.
45 West 45th Street, Suite 1401
New York, New York 10036
212.921.1600
Sabrina B. Kraus, J.
This summary holdover proceeding was commenced by AP-OREP 3900 Broadway LP, who was the predecessor in interest to 3900 BROADWAY HOLDING LLC (Petitioner)[FN1] [*2]against BARBARA MORILLO f/k/a BARBARA CRUZ (Respondent) seeking to recover possession of 561 West 163 Street, Apt. 1B, New York, NY 10032 (Subject Premises) based on the allegation that Respondent is the licensee of Catalina Parra (Tenant), Respondent's mother and the last rent control tenant of record, and that after Tenant's death, Respondent is no longer entitled to remain in possession of the Subject Premises. Esteban Cruz (Cruz) is the former husband of Respondent, and named as an undertenant herein. The primary issue for the court to determine is whether Respondent is entitled to succeed to the tenancy of Tenant.
PROCEDURAL HISTORY
Petitioner issued a Notice to Quit dated November 8, 2012. The Notice asserts inter alia:
that Tenant died on May 21, 2009, and was the rent controlled tenant of record as of said date; that Respondent resided either at 612 West 144th Street Apt B8 (W 144th Apt) or 2838 Stillwell Avenue, Apt. 5A, Brooklyn (Stillwell Ave Apt); that Respondent was registered to vote form the W 144th Apt and last did so in 2008; that Respondent did not reside with Tenant at the Subject Premises for the two years prior to Tenant's death; and that Respondent hid her mother's death from the landlord and its agents until 2012.
The petition is dated December 11, 2012, and the proceeding was initially returnable January 7, 2013. The proceeding was adjourned to February 7, 2013 on Respondent's application for time to obtain counsel.
On April 8, 2013, Respondent appeared by counsel and Petitioner moved for discovery. The proceeding and motion were adjourned to May 9, 2013, pursuant to a stipulation which provided: Respondent would serve an answer to the petition and opposition to the motion for discovery by May 2, 2013; Respondent waived traverse; and Respondent would continue to pay use and occupancy at the rate of $525.25 without prejudice.
On May 9, 2013, Respondent produced certain documentation in court pertaining to Petitioner's discovery demands and the proceeding and motion were adjourned to June 13, 2013 for production of additional documents.
On June 13, 2013, the proceeding and motion were adjourned by the Court (Stoller, J) to July 15, 2013, pursuant to an order that provided that the parties were continuing to resolve outstanding discovery issues and that "(i)f Petitioner does not provided Respondent with a key so that she has access to the subject building, Respondent has all of her remedies at her disposal."
On July 15, 2013, the proceeding and motion were marked off calendar for Petitioner to review the additional documentation produced by Respondent.
On November 4, 2013, Petitioner moved for an order restoring the proceeding to the calendar and seeking production of additional documents.The motion and proceeding were adjourned through April 3, 2014, when the motion was withdrawn by Petitioner without prejudice, pending settlement negotiations.
On September 11, 2014, the proceeding was marked off calendar pending transfer of ownership of the building. On December 18, 2014, the proceeding was restored to the calendar by stipulation and for trial.
On March 12, 2015, the proceeding was assigned to Part R for trial. As no answer had yet been submitted on behalf of Respondent, Respondent's counsel orally submitted an answer asserting succession on said date and the file was so marked. The trial commenced and continued and concluded on March 16, 2015.
On March 19, 2015, Respondent's counsel submitted a letter containing relevant case law [*3]relied upon by Respondent, and the court reserved decision.
FINDINGS OF FACTAt the commencement of the trial, the parties stipulated to Petitioner's prima facie case, and agreed Respondent's succession claim would be the main issue for the court to determine.
Petitioner is the owner of the Subject Building pursuant to a deed dated Jun 11, 2014 (Ex 1). There is a valid MDR for the building as of November 20, 2014 (Ex 2).
Tenant was the rent controlled tenant of record for the Subject Premises, pursuant to a written lease dated July 20, 1966 for a two year term at a rent of $125.00 per month (Ex 4B).
Tenant died at New York Presbyterian Hospital on May 21, 2009 (Ex 4A). The Subject Premises is listed as Tenant's residence on her death Certificate. The death certificate lists the informant as Sandra Paez, Tenant's daughter, with an address in Monmouth New Jersey (Ex 4A).
From May 2007 through July 2008, Cruz lived in the W 144th Street Apt.
On June 23, 2007 Respondent and Cruz were married, and their marriage certificate lists the W 144th Apt as their residence (Ex 4D).
In August 2008, Respondent and Cruz signed a lease for the Stillwell Ave Apt for a one year term (Ex 4) and were the rent stabilized tenants of record for said apartment for a period between August 1, 2008 and July 31, 2009 (Ex 6). From August 2008 through July 2009, it is undisputed that Cruz resided in the Stillwell Ave Apt.
Respondent signed a primary election affidavit oath on September 29, 2009 indicating that she had moved from the Stillwell Ave Apt to the Subject Premises since her last voter's registration (Ex 4E).
Respondent's W2 forms for 2007 list the W 144th St Apt as her address (Ex 4G).
Respondent's 2009 W2 forms list Stillwell Ave Apt as her address (EX 4H).
Respondent had a bank account with HSBC. From October 2007 through January 2008 statements for the account were sent to the W 144th St Apt. From February 2008 through July 2008 the statements were sent to the Subject Premises, and from August 2008 through April 2009, the statements were sent to the Stillwell Ave Apt. During the periods where the statements were sent to Stillwell Avenue, the transactions show that Respondent was consistently in Brooklyn. In May 2009, Respondent changed the address where the statements were to be sent to the Subject Premises.
Respondent had a credit card with Capital One. From December 2007 through March 2008, the statements went to the W 144th St Apt. From March - June 2008, the statements were sent to the Subject Premises. From July 2008 through May 2009 the statements were sent to the Stillwell Ave Apt. (Subpoenaed statements, Ex 8).
Respondent had an account with AT & T for four different phone numbers: 917.297.0894; 917.435.4336; 646.709.7824; and 646.460.9520. From September 2008 through May 2009, the statements were sent to the Stillwell Ave Apt (Ex 9).
Respondent's records for Allstate Insurance list the Stillwell Ave address in December 2008 and 2009 (Ex 12), but earlier in 2008 mail from Allstate was addressed to Respondent at the Subject Premises (Ex M).
Respondent had a driver's license issued April 2008 and expiring November 2010 which lists the Subject Premises as her address (Ex K). However, Respondent testified that she had another license for the same year that listed the Stillwell Ave Apt as her address.
Respondent testified on her own behalf at the trial. Respondent testified that she lived in the Subject Premises from 1966, as an infant, until she went to college in 1983. During college [*4]Respondent lived on campus. Respondent married Cruz in 2007, but testified that she still lived at the Subject Premises. Respondent testified that she and Cruz did not live together, until after Tenant's death, except for a few months ion 2008, when Tenant granted Cruz temporary permission to live in the Subject Premises, and then revoked said permission. Other than this period, Respondent testified that she only lived with Cruz on weekends, until Tenant's death.
Maureen English (English) also testified for Respondent. English met Respondent in 2000 through work, and regularly spent time with Respondent at the Subject Premises. The testimony of English contradicted Respondent's testimony regarding Respondent's presence in the Subject Premises on weekends. English testified she mostly visited Respondent in the Subject Premises on the weekends, and that in 2008 she visited Respondent at the Subject Premises on as many as 100 times. Respondent testified that most weekends she was with her husband at his address. Also English contradicted Respondent's testimony that Cruz lived in the Subject Premises for a few months in early 2008. Based on the foregoing, the court does not give great weight to the testimony of English.
Orquidia Maria DE Jesus (DeJesus) also testified for Respondent. DeJesus has lives in apartment 3D and has lived in the building since 1977. DeJesus testified that other then business hours, whenever she went to the Subject Premises Respondent opened the door for her and was in the Subject Premises. DeJesus testified that in 2007 and 2008 she visited Tenant between 2-3 times per week, and in 2009 she went even more frequently. DeJesus testified she visited both on weekdays and on weekends.
DISCUSSION§ 2204.6 (d)(1) provides in pertinent part:
... the city rent agency shall not issue an order granting a certificate of eviction, and any member of the tenant's family, as defined in paragraph (3) of this subdivision, shall not be evicted under this section where the tenant has permanently vacated the housing accommodation and such family member has resided with the tenant in ths housing accommodation as a primary residence for a period of no less than two (2) years .... immediately prior to the permanent vacating of the housing accommodation by the tenant ...
Respondent has the burden of establishing by a preponderance of credible evidence that she lived in the Subject Premises with Tenant as her primary residence for two years prior to her death (Gottlieb v Licursi 191 AD2d 256).
The relevant time period is May 2007 to May 2009. The court finds that its is uncontested that Tenant lived in the Subject Premises in the two years prior to her death, and that Respondent is her daughter. The court finds that Respondent failed to meet her burden of establishing by a preponderance of credible evidence that the Subject Premises was her primary residence during the relevant two year period.
The court does not credit Respondent's testimony that upon her marriage to Cruz in June 2007, she lived apart from her husband as a newlywed. Additionally documentary evidence shows that Respondent and Cruz were the rent stabilized tenants of record of the Stillwell Ave Apt for the last 10 months of the relevant period of August 2008 through May 2009.
The documentary evidence overwhelmingly shows that the Subject Premises was not listed as Respondent's primary residence on bank accounts, with any of her employers, for her credit card statements and for a variety of other documents.
Where documentary evidence contradicts the testimony of a Party regarding primary residence, whether there has been a sufficient explanation of the documents by witnesses is a question of fact and credibility for the trial court (409-411 Sixth Street LLC v Mogi 112 AD3d 558).
Here, the court did not find the testimony of Respondent sufficient to explain the documentary evidence. For example, there was no testimony elicited from Respondent about the nature of her life with Tenant in the Subject Premises during the last two years, how they spent their time, what they did, what care was involved if any. Respondent's conclusory statement that she could not have mail sent to the Subject Premises, because her mother would interfere with the delivery of said mail was not credible. Nor was there any detailed testimony explaining why Respondent would have lived with her mother rather than her newlywed husband.
The death certificate for Tenant does not even list Respondent as an informant.
Based on the foregoing, the court finds Respondent failed to establish succession by a preponderance of credible evidence.
CONCLUSIONPetitioner is awarded a final judgment of possession as against Respondent. The proceeding is dismissed as to all other named parties. The warrant of eviction shall issue forthwith. Execution of the warrant is stayed through April 30, 2014, to afford Respondent an opportunity to vacate.
This constitutes the decision and order of the Court.[FN2]
Dated: New York, New York
March 23, 2015
__________________
Sabrina B. Kraus, JHC
FootnotesFootnote 1:On September 29, 2014, 3900 Broadway Holding LLC was substituted in for AP-OREP 3900 Broadway LP as Petitioner in this proceeding, and a substitution of counsel was also filed. "Petitioner" as used herein shall refer to the first entity through the date of the substitution and the second entity after said date.
Footnote 2:Parties may pick up Trial Exhibits within thirty days of the date of this decision from Part R. After thirty days, the exhibits may be shredded in accordance with administrative directives.
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