Alliance Hous. Assoc., LP v Garcia

[*1] Alliance Hous. Assoc., LP v Garcia 2016 NY Slip Op 51672(U) Decided on November 21, 2016 Civil Court Of The City Of New York, Bronx County Lutwak, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 21, 2016
Civil Court of the City of New York, Bronx County

Alliance Housing Associates, LP, Petitioner-Landlord,

against

Julio Garcia - Occupant, "JOHN DOE"/"JANE DOE" — Occupants, Respondents.



69191/2015



Attorneys for Petitioner:

Arianna Gonzalez-Abreu, Esq.

Gutman, Mintz, Baker & Sonnenfeldt, LLP

813 Jericho Turnpike

New Hyde Park, New York 11040

(516) 775-7007

Attorneys for Respondent:

Jennifer Smith, Esq.

Angel Melendez, Esq.

Bronx Legal Services

349 E. 149th Street, 10th floor

Bronx, New York 10451

(718) 928-3765
Diane E. Lutwak, J.

Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of Respondent Julio Garcia's motion for summary judgment and Petitioner's cross-motion for use and occupancy:

Papers Numbered

Notice of Motion and Accompanying Affirmation, Affidavits, Exhibits 1

Respondent's Memorandum of Law 2

Notice of Cross-Motion and Accompanying Affirmation, Affidavit, Exhibits 3

Affirmation in Reply and in Opposition to Cross-Motion 4

Upon the foregoing papers, the Decision and Order on this Motion and Cross-Motion are as follows:

BACKGROUND & PROCEDURAL HISTORY

This is a licensee holdover eviction proceeding brought by Petitioner-Landlord, Alliance Housing Associates, following the death in July 2015 of the tenant of record of Apartment 1A at 103 West 165th Street, Bronx, New York, Nelida Caraballo, against Respondent Julio Garcia, the occupant of the apartment. Petitioner claims that Respondent is a licensee whose license expired upon the death of Ms. Caraballo.[FN1] The subject premises are located in a privately-owned, multi-family, project-based, substantially rehabilitated Section 8 building, which is subject to the Housing Assistance Payments Program run by the United States Department of Housing and Urban Development ("HUD"). 42 U.S.C. § 1437, 24 CFR Part 881.

The Notice of Petition and Petition are dated November 2, 2015, and the case first appeared on the Court's calendar on December 1, 2015. The case was adjourned initially several times for Respondent Julio Garcia to retain and appear by counsel, which he did on March 31, 2016, at which time he served and filed his Answer raising an affirmative defense of succession rights to the tenancy of Nelida Caraballo as a remaining family member ("domestic life partners and co-parents of their two children"). Respondent by his attorney filed a motion for summary judgment on June 13, 2016, Petitioner filed its opposition and a cross-motion for use and occupancy on September 12, 2016 and Respondent's counsel filed a combined Reply Affirmation and Affirmation in Opposition to Petitioner's motion on October 14, 2016.

Respondent's motion seeks summary judgment on his affirmative defense of succession rights to the apartment [FN2] as a remaining family member of Ms. Caraballo, whom he asserts he met in 1968 when he was 19 years old after which time they lived together continuously "as husband and wife" until Ms. Caraballo's death on July 18, 2015. Respondent's Affidavit, sworn to June 10, 2016, at ¶¶ 7 & 8. Although they never got married, neither of them was ever married to anyone else and they had two children together, Julio Garcia, Jr., born [month/date redacted], 1969, and Ivette Garcia, born [month/date redacted], 1971 (Respondent's Affidavit at ¶ 8); copies of their birth certificates are attached to the moving papers at Exhibit B, pp. 3 & 4.

In addition to his own affidavit, Respondent's motion for summary judgment is supported by the affidavit of his and Ms. Caraballo's daughter Ivette Garcia, sworn to on April 12, 2016, and the affidavits of seven neighbors, sworn to on October 6, 2016 [FN3] . The affidavits of Mr. [*2]Garcia and his daughter Ivette attest to the length of Mr. Garcia's relationship and co-residency with Ms. Caraballo in both the apartment which is the subject of this proceeding as well as in prior apartments they lived in together [FN4] ; the ways in which they handled their finances, household chores and family responsibilities; the babysitting they did together for their grandchildren; certain holiday and social events they attended together; and the personal care and assistance Mr. Garcia provided to Ms. Caraballo during the last year of her life when, already suffering from diabetes, asthma and Alzheimer's Disease, she fell and broke her hip. With regard to this last item, Mr. Garcia explained in his sworn affidavit that he would visit Ms. Caraballo four times a week while she was in a rehabilitation facility recuperating from surgery and then, after Ms. Caraballo was discharged home, "we had home attendants to take care of her during daytime hours, but I took care of her at night. During this time, I ran errands and picked up groceries for Nelida and the home attendants as needed; I gave her medicine; checked her blood sugar levels; cleaned her, fed her, and changed her diapers as needed. I stayed with her and took care of her this way until she died in July 2015." Respondent's Affidavit at ¶ 10. Ivette Garcia corroborates this information about her father's role in her mother's care in her sworn affidavit: "At night, my father was alone with my mother and he was responsible for taking care of her. He would change her diapers if necessary, clean her up, and give her food and water." Affidavit of Ivette Garcia at ¶ 17.

With regard to their finances, Mr. Garcia explains in his affidavit that: neither he nor Ms. Caraballo ever had much money; neither of them ever had a credit card; he never had any bank account in his name until four years ago; Ms. Caraballo had a bank account in her name alone where her SSI (Supplemental Security Income) benefits were deposited; they shared household expenses for groceries, clothing and furniture; the electricity, telephone and rent bills were all in Ms. Caraballo's name and their arrangement was that she would pay the rent from her SSI check and he would pay the utility bills; when he had a heart attack, stopped working and applied for disability benefits in 2008 Ms. Caraballo took over responsibility for payment of all household bills while that application was pending; and they never had cable service. With regard to the [*3]subsidized nature of their housing, Mr. Garcia explains: "I was not involved in applying for or recertifying for Section 8. Nelida took care of all of that." Respondent's Affidavit at ¶ 9.

Also submitted in support of the motion are various documents which list Respondent's name and address at 103 West 165th Street, Apt. 1A, Bronx, NY 10452, specifically (in reverse chronological order): (1) an IRS Tax Return Transcript issued on March 21, 2016 for the tax period ending December 31, 2014; (2) a Social Security Benefit Statement form SSA-1099 for the year 2014; (3) a Social Security Benefit Statement in the form of a computer printout for the year 2013; (4) eight pieces of health care-related correspondence from the year 2012; (5) a current New York State Identification Card, issued November 15, 2011 with an expiration date of June 9, 2021 which reflects a date of birth of [month/date redacted], 1948 (establishing that Respondent presently is 66 years old); and (6) a prior New York State Identification Card issued August 24, 2007 with an expiration date of June 9, 2011. Respondent also included a Wage and Tax Statement W-2 form for the year 2006 addressed to him at 101 West 165th Street, Apt. 3B, Bronx, NY 10452, the apartment where he claims he lived with Ms. Caraballo from approximately 1975 until 2007 (see fn 4, supra). Attached as Exhibit C to the moving papers is a set of six photographs of Respondent with Ms. Caraballo [FN5] , of which, according to the affidavits of Respondent and his daughter, the oldest were taken in the early 1980's and the most recent were taken in 2006.

The neighbors' affidavits are brief, and primarily attest to the length of time each of them had known Mr. Garcia and Ms. Caraballo and, "to the best of my knowledge", how long the couple had lived together, both in Apartment 3B at 101 West 165th Street [FN6] and in the subject premises.

Petitioner opposes Respondent's motion with its attorney's affirmation and an affidavit of its agent Eli Davidowitz, sworn to on August 31, 2016, which asserts that Petitioner's records show Ms. Caraballo to be the tenant of record of the subject premises [FN7] with an initial lease effective August 1, 2010 and that, "The records in the Petitioner's management office show that each year from 2010 through 2014 Nelida Caraballo submitted an annual income recertification stating that she was the sole household member of the subject premises." Petitioner's Affidavit at ¶ 6 and Exhibits 1 & 2 thereto. Mr. Davidowitz does not explain why its records for Ms. Caraballo only begin with the year 2010, even though Respondent, his daughter and the seven neighbors all describe the tenancy of Respondent and Ms. Caraballo as one dating back 40 years, first in Apartment 3B commencing in approximately 1975 and then in Apartment 1A commencing in approximately 2007. Mr. Davidowitz does not claim to have any personal knowledge of who was residing at the premises prior to Ms. Caraballo's death, and Petitioner did not include with its opposition papers affidavits from anyone else other than Mr. Davidowitz.

In its opposition papers, Petitioner makes essentially two arguments: First, based on the decision of the Court of Appeals in Evans v Franco (93 NY2d 823, 687 NYS2d 615 [1999]), and HUD guidelines, specifically Section 3-16 of the HUD Handbook and a memo from the HUD [*4]Office of Public and Indian Housing (PIH)[FN8] , "Respondent's succession claim must fail on the sole basis that the Respondent was not named on the lease agreement for the subject apartment at the time of the tenant of record's vacatur." Affirmation in Opposition at ¶ 47. Second, Petitioner argues that even if Respondent's absence from the lease were not the sole consideration, the evidence Respondent submitted in support of his motion is insufficient to establish the requisite period of continuous co-residency in the apartment with the tenant of record prior to her death and there are issues of fact making summary judgment inappropriate. For example, Petitioner's counsel points out that the computer printouts from the Social Security Administration for tax year 2013 and from the IRS for tax year 2014 reflect that they were printed after Ms. Caraballo's death, and therefore it cannot be confirmed from the face of those documents for what period Respondent's address was reported to those agencies to be at the subject premises. Affirmation in Opposition at ¶ 60. Petitioner asks the court to deny Respondent's motion, and to order Respondent to pay use and occupancy at the market rate of $1091 per month during the pendency of this proceeding and to pay outstanding use and occupancy arrears of $14,249 (as of August 2016), dating back to July 2015, the month in which Ms. Caraballo died.

In reply, Respondent's attorney argues that Evans v Franco is not controlling for apartments in project-based Section 8 buildings, that the absence of Respondent's name on income recertification documents is not dispositive of his succession rights claim and that Respondent has proffered sufficient evidence to warrant the granting of summary judgment in his favor. In opposition to Petitioner's cross-motion for use and occupancy, Respondent's attorney argues that Respondent should not be required to pay anything unless and until his tenancy rights are recognized; alternatively, if Respondent is required to pay use and occupancy, it should be set either at the amount last charged to Nelida Caraballo ($167 per month) or at one-third of Respondent's income, which Respondent's attorney asserts consists of monthly Social Security benefits of $1699. Reply Affirmation at ¶ 35.

DISCUSSION

As an initial matter, Respondent is correct that Evans v Franco is not controlling in this case, which does not involve a tenant-based Section 8 voucher as was at issue in that case but rather a tenancy in a project-based Section 8 building. In this context, the absence of Respondent's name on the lease or income recertification documents is not fatal to his succession claim. See Los Tres Unidos Associates, LP v Colon (45 Misc 3d 129[A], 3 NYS3d 285 [Table][App Term 1st Dep't 2014])(upholding dismissal of holdover proceeding, after trial, against son of tenant of record in Section 8 project-based apartment who was not listed on family composition statements where, "The record shows and it is essentially undisputed" that he had lived in the apartment for more than a decade with his mother prior to her death); 2013 [*5]Amsterdam Ave Hous Assocs v Estate of Almeda Wells (10 Misc 3d 142[A], 814 NYS2d 893 [App Term 1st Dep't 2006])(reversing lower court which, after trial, had awarded landlord of a Section 8 project-based apartment a possessory judgment against the daughter of the tenant of record, "on the sole ground that tenant failed to list appellant's name as a household member on an annual recertification form"); Manhattan Plaza Assocs, LP v Dep't of Hous Pres & Dev (3 Misc 3d 717, 779 NYS2d 740 [Sup Ct NY Co], aff'd, 8 AD3d 111, 778 NYS2d 164 [1st Dep't 2004])(upholding recognition of son's remaining family member status in project-based Section 8 apartment, after a hearing held by an administrative law judge, even though his parents had not included him on annual income affidavits, and finding that Evans v Franco was not controlling); Bronx 361 Realty, LLC v Quinones (26 Misc 3d 1231[A], 907 NYS2d 98 [Civ Ct Bx Co 2010])(after trial, dismissing licensee holdover proceeding against tenant's wife and noting that "the touchstone of succession to a project-based Section 8 tenancy is the legitimacy of respondent's occupancy as a member of the family unit at the time of the tenant of record's death, and not the accuracy of one or more HUD forms"); Valley Dream Hous Co, Inc v Schmidt (16 Misc 3d 1138[A], 851 NYS2d 61 [Dist Ct Nass Co 2007])(in a holdover proceeding, heard "on submitted facts", against daughter of deceased tenant of record in project-based Section 8 building, petition dismissed and daughter found to have succession rights to her mother's apartment, even though she had not been listed on annual income affidavits); Morrisania II Associates v Harvey (139 Misc 2d 651, 527 NYS2d 954 [Civ Ct Bx Co 1988])(finding that daughter's defense asserting status as a remaining member of the tenant family could go forward, even though her mother had not listed her on recertification forms, but denying summary judgment).

Accordingly, the court rejects Petitioner's argument that, "Respondent's succession claim must fail on the sole basis that the Respondent was not named on the lease agreement for the subject apartment at the time of the tenant of record's vacatur." Affirmation in Opposition at ¶ 47. As explained by the Court in Morrisania II Associates v Harvey (139 Misc 2d at 662, 527 NYS2d at 961), "It would violate the spirit of the Federal law to preclude respondent from impeaching her mother's statements or offering contradictory evidence. Indeed, neither section 8 nor its implementing regulations mandates that a tenant's failure to list an occupant on the recertification form be accorded preclusive effect against a tenant's survivors. To the extent that lease provisions can be read to the contrary, they are in conflict with the intent of the Federal law."

Respondent Julio Garcia's claim falls well within the definition of a Section 8 family as he is a single, elderly and disabled person who asserts that he is the remaining member of Nelida Caraballo's family. The federal statute and regulations authorize Section 8 payments for "families" (see 42 USC§ 1437f[a]; 24 CFR § 881.101), and the term "family" includes, "A single person, who may be an elderly person, displaced person, disabled person, near-elderly person, or any other single person" as well as "the remaining member of a tenant family" (42 USC § 1437a[b][3][A]; 24 CFR §§ 881.201 and 5.403).The court in Morrisania II Associates noted that federal law provides no definition of "remaining family member" and held: "Since it is not ambiguous, it should be defined according to the ordinary and natural meaning of its own words, as a person who had actually been in occupancy as a part of the family unit at the time of the named tenant's death. Its use recognizes an underlying statutory assumption: all family members have occupancy rights which are not terminated by the death of any member." (139 Misc 2d at 656, 557 NYS2d at 957). Further, state courts determining [*6]succession rights claims of remaining family members in federally subsidized housing may turn to state law:

In the absence of controlling Federal interpretation, the court may seek guidance from analogous local standards if they are consistent with the Federal purpose, and do not limit rights secured by Federal law . Thus, in Second Farms Neighborhood Hous. Dev. Fund Co. v Perez (Civ Ct Bronx County 1986, index No. 47442/86, aff'd without opn App Term, 1st Dep't 1988), the court applied the equivalent relationship standard used for succession under Rent Stabilization Code (9 NYCRR 2520 et seq.) to hold that the granddaughter of a section 8 (42 USC § 1437f) tenant was protected by the Federal law. (Id. at fn 1).[FN9]

Petitioner's counsel cites to the "HUD Handbook", the full title of which is "Occupancy Requirements of Subsidized Multifamily Housing Programs (4350.3)", and Section 3-16 thereof, entitled "Determining the Eligibility of a Remaining Member of a Tenant Family", in support of its position that eligibility for remaining member status is limited to persons who are, inter alia, "a party to the lease when the family member leaves the unit." However, while the courts can and do rely on the HUD Handbook and it has been found to be binding in certain circumstances, Matter of Nelson v Roberts (304 AD2d 20, 757 NYS2d 41 [1st Dep't 2003]); Impac Associates Redevelopment Co. v Robinson (9 Misc 3d 1065, 805 NYS2d 253 [Civ Ct NY Co 2005]); Green Park Assoc. v Inman (121 Misc 2d 204 [Civ Ct NY Co 1983]), by its own terms the HUD Handbook advises owners that they "may only terminate tenancy in limited circumstances as prescribed by HUD regulations and the lease and must follow HUD and state/local procedures" (Ch. 8, sub-sec. 8-1[B])[FN10] . Moreover, "it is well established that HUD handbooks do not consist of binding regulations. Rather, 'the various "handbooks" and "booklets" issued by HUD contain mere "instructions," "technical suggestions," and "items for consideration"'". United States v East River Hous Corp (90 F Supp 3d [SDNY 2015]), citing and quoting from Thorpe v Hous Auth of City of Durham (393 US 268, 275 [1969]); see also, e.g., Am Mfrs Mut Ins Co v Payton Lane Nursing Home, Inc (704 F Supp 2d [EDNY 2010])("although helpful, the HUD Handbook is neither a statute nor a regulation, and has not been promulgated by HUD so as to give it the force of law"). In the hierarchy of legal authority, a government agency's internal procedures and guidelines such as those found in the HUD Handbook is entitled to limited weight, and "has no binding force on us, but is entitled to notice so far as it is an official interpretation of statutes or regulations with which it is not in conflict." Burroughs v Hills (741 F2d 1525 [7th Cir 1984]). Here, the provision of the HUD Handbook that Petitioner points to is in direct conflict with [*7]controlling state case law interpreting the federal statutes and regulations which establish rights for remaining family members, Los Tres Unidos Associates, LP v Colon (45 Misc 3d 129[A], 3 NYS3d 285[Table] [App Term 1st Dep't 2014]); 2013 Amsterdam Ave Hous Assocs v. Estate of Almeda Wells (10 Misc 3d 142[A], 814 NYS2d 893 [App Term 1st Dep't 2006]), and under this line of cases someone like Respondent claiming succession rights may very well be entitled to remaining family member status, even though he was not a party to the tenant of record's lease or listed on annual income affidavits.

The subject of the HUD memorandum identified as Notice PIH 2010-9 (HA)[FN11] , which Petitioner cites and annexes to its opposition papers in support of its argument, is "Effective Use of the Enterprise Income Verification (EIV) System's Deceased Tenants Report to Reduce Subsidy Payment & Administrative Errors" and its stated purpose is to ensure that public housing authorities (PHAs) "do not make subsidy overpayments on behalf of deceased single member households" through the regular use of a "Deceased Tenants Report". While the memo discusses certain procedures PHAs should follow where the head of household has died and the only remaining member of a "single member household" is a live-in aide or a minor, it does not address the situation presented by an occupant like Mr. Garcia, who claims to be a remaining family member of a deceased head of household who did not include him on annual reporting forms. This memo fails to shed any light on the issue presented by this case and therefore is not relevant to the court's determination.

Accordingly, the remaining questions are (1) whether Respondent has presented sufficient evidence to support his claim of succession rights to Ms. Caraballo's apartment to warrant the shifting of the burden of proof to Petitioner; and, if so, (2) whether Petitioner has raised a material issue of fact requiring the court to deny Respondent's motion and set the case down for trial; and, if so, (3) whether Respondent is required to pay use and occupancy to Petitioner pendente lite; and, if so, (4) at what rate, and as of what date, such use and occupancy should be paid.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. Winegrad v New York Univ Med Center (64 NY2d 851, 853 [1985]); Zuckerman v New York (49 NY2d 557, 427 NYS2d 595 [1980]. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient. Alvarez v Prospect Hospital (68 NY2d 320, 324, 508 NYS2d 923, 925-926 [1986]); Zuckerman v New York (49 NY2d at 562, 427 NYS2d at 598).

Respondent has presented sufficient evidence to meet his initial burden on this motion. The affidavits from Respondent, his family members and neighbors contain sworn statements with regard to his long-term spouse-like relationship with Nelida Caraballo. Those affidavits constitute the type of evidence the Court can consider on a motion for summary judgment, see, e.g., Classic Props, LP v Martinez (168 Misc 2d 514, 646 NYS2d 766 [App Term 1st Dep't 1996]); Hazel Towers Co, LP v Gonzalez (41 Misc 3d 1230[A], 981 NYS2d 635[Civ Ct Bx Co 2013]); Kelly Mgt LLC v Soltero (27 Misc 3d 984, 986-988, 898 NYS2d 415, 417-418 [Civ Ct [*8]Bx Co 2010]); Melohn v Franklin (2001 WL 1771829, 2001 NY Slip Op 50126[U]), and are corroborated, in part, by the documents which list the subject premises as Respondent's address over the past four years.[FN12]

Petitioner primarily rests its opposition to Respondent's motion on the tenant of record's lease dated 2010 and income affidavits for the years of 2010 through 2014, which do not list Respondent as a member of her household. The recertification forms are admissible; this issue was discussed at length in Morrisania II Associates, where the court found that while the deceased tenant of record's statements on Petitioner's forms were hearsay, they were reliable, were not barred by the Dead Man's Statute and could be received in evidence either as if they were admissions of a party or as declarations against interest. Further, Petitioner's agent asserts that there is nothing in Petitioner's files reflecting Respondent's presence in Ms. Caraballo's household prior to her death.

Summary judgment may, in certain circumstances, be an appropriate way to determine a tenant's succession rights defense to a licensee eviction proceeding. For example, in Classic Props, LP v Martinez, supra, the Appellate Term reversed the trial court's denial of summary judgment to the respondent on his succession rights defense where there was "voluminous objective evidence" to document "the existence of a long-term (24 years) committed family-type relationship between respondent Martinez and the deceased rent-controlled tenant, entitling respondent to eviction protection under the succession regulations". The evidence submitted by respondent included numerous detailed affidavits from friends attesting to the close nature of the relationship between respondent and the tenant; photographs and intimate correspondence depicting the couple's joint celebration of holidays and family functions, as well as world travel, over a period of more than 20 years; documents showing that respondent was authorized to use the tenant of record's credit cards and that respondent and the tenant had named each other as principal beneficiaries and alternate executors in their respective wills and that respondent was the sole beneficiary on six life insurance policies purchased by the tenant. Respondent and the tenant also had executed a City of New York Affidavit of Domestic Partnership.

In Hazel Towers Co, LP v Gonzalez (41 Misc 3d 1230[A], 981 NYS2d 635 [Civ Ct Bx Co 2013]), the court found it appropriate to grant summary judgment to respondent on her succession claim as nontraditional domestic partner to the tenant of record's Rent Stabilized apartment where, in opposition to respondent's evidence in the form of detailed affidavits, photographs, correspondence addressed to respondent at the premises and greeting cards sent to and by the various members of the family, the petitioner had offered no contrary evidence whatsoever, argued that the lack of proof of financial interdependence was fatal to respondent's succession claim and cross-moved for discovery. The court rejected petitioner's argument that the lack of proof of financial interdependence was fatal to respondent's succession claim, citing cases holding that the absence of joint bank accounts or other documents showing financial interdependence between the parties to be insufficient to raise a triable issue of fact, especially "where the parties have sufficiently established that they possess limited assets and lack significant resources." Id.

In Melohn v Franklin (2001 WL 1771829 [Civ Ct NY Co 2001]), aff'd (2002 WL 1880239 [App Term 1st Dep't 2002]), the court granted summary judgment to the respondent on [*9]his defense of succession rights to the tenant of record's Rent Controlled apartment where the motion was supported by detailed affidavits of respondent and the tenant of record's two children and grandson; "a plethora of pictures from the different family gatherings through the years (1970's to 1990's)"; postcards; and documentary proof of financial commitment between respondent and the tenant of record in the form of a power of attorney given to respondent by the tenant of record over her checking account, several joint investment accounts, a testamentary trust set up by the tenant of record for respondent and a bequest to respondent's sister in the tenant of record's will. In opposition, the petitioner had "not produced any credible or admissible evidence to cast doubt on the relationship between respondent and [the tenant of record], which involved a thirty-five year cohabitation complete with sharing finances and obligations, as well as establishing familial ties." Id.

However, none of these cases in which summary judgment was granted involved a situation like that presented by the case now before this court, where (1) the occupant of an apartment in a project-based Section 8 building asks the court to find entitlement to succeed to the tenancy of a deceased nontraditional domestic partner; (2) the opposition to the motion includes sworn income affidavits signed by the tenant of record that do not list the person claiming succession rights as a member of the household; and (3) the quantum of evidence in support of the various elements of the remaining family member's claim is something considerably less than "voluminous". Respondent's documentary evidence is nominal - 6 photographs and 14 documents (8 of which are pieces of medical-related correspondence addressed to him at the premises during the period of May through October 2012) — and does not include any objective indicia of financial interdependence, a family relationship or co-residency.

While it is the totality of the circumstances that must be examined, and the absence of documentary evidence of financial interdependence does not necessarily undermine a succession rights claim, Arnie Realty Corp v Torres (294 AD2d 193, 742 NYS2d 240 [1st Dep't 2002]), especially where the parties are of limited financial means, Roberts Ave Assocs. v. Sullivan (2003 NY Slip Op 51091[U], 2003 NY Misc LEXIS 901 [App Term 1st Dep't 2003]), sufficient, credible testimony at trial is needed to compensate for the lack of such formal, objective evidence, United Hay v Grabrovak (2002 NY Misc. LEXIS 405, 2002 NY Slip Op 50170U [App Term 1st Dep't 2002]). This is especially true here where there is not just a lack of traditional documentation of co-residency and financial interdependence (such as shared bills, joint bank accounts, joint credit cards, joint property ownership, etc.), and no formalization of legal obligations (such as the naming of each other as executors or beneficiaries under wills or life insurance policies, agents under health care proxies or powers of attorney), but also there is minimal documentation to demonstrate that during any significant period of time prior to Ms. Caraballo's death in July 2015 they had a nontraditional domestic partner relationship (such as photographs [FN13] ; greeting cards and other correspondence, especially to and from Mr. Garcia and Ms. Caraballo as a couple and/or to each other for anniversaries, Valentine's Day, father's/mother's day, etc.; vacation mementos; entries in a family bible or other religious books; documents listing each other as contact person in case of emergency; medical facility records documenting Respondent's visits to Ms. Caraballo and indicating him to be a person to be consulted or contacted; etc.).

Thus, while the tenant of record's failure to report Respondent's presence in the [*10]household is not fatal to his remaining family member claim, such failure nevertheless does raise factual questions for trial on this thin paper record. See Los Tres Unidos Associates v Colon, supra; Marine Terrace Associates v Kesloglides, supra; 2013 Amsterdam Avenue Housing Associates v Wells, supra.

More closely aligned with the facts of this case is Morrissania II Associates; while that decision found the respondent to have raised a valid remaining family member defense to the petitioner-landlord's eviction proceeding, despite the fact that her mother had not listed her on the annual recertification forms, the court also found there to be issues of fact and denied summary judgment to respondent. The respondent in Morrissania II Associates, similar to Respondent herein, had supported her motion with affidavits of herself, one family member (her sister) and several neighbors, along with school records for her children. In opposition, Petitioner had submitted income recertification forms apparently signed and filed by respondent's mother from 1980 through 1985 which listed her as the sole occupant of the apartment and stated that her Social Security payments were the only source of household income. Petitioner also submitted the affidavit of one of its employees, who claimed that when she visited the apartment she saw only respondent's mother and one bed. While the court found that affidavit to be of little probative value because it did not disclose when, how often, or for how long the employee had visited the premises, the court nevertheless denied summary judgment to the respondent, finding that the recertification forms alone sufficiently showed the existence of a triable factual question. The court explained, "Given the contradictory evidence considered on this motion, the factual questions surrounding respondent's status must be resolved at trial. If the preponderance of the evidence favors respondent's claim of continuous, bona fide residence, she would then be entitled to judgment as a matter of law dismissing this proceeding." (139 Misc 2d at 663, 557 NYS2d at 961.)

One significant difference between the Morrissania II Associates case and the one now before this court that makes this an even stronger case for denying summary judgment is that the familial relationship at issue in the earlier case was mother-daughter, which is easily proven with the daughter's birth certificate, whereas here the familial relationship asserted is that of nontraditional domestic partners - one that necessarily requires a fact-intensive inquiry which, given the limited documentation presented, is best handled at trial where the court can have the opportunity to see and hear the witnesses' testimony and make credibility determinations. Although Respondent presents evidence that ultimately may serve to substantiate his succession defense, resolution of the credibility issues presented by the parties' conflicting submissions must await further exploration at trial. 105-115 Bennett Realty Co, LLC v Piney (17 Misc 3d 128[A], 851 NYS2d 64 [App Term 2007] citing BME Three Towers, Inc v 225 East Realty Corp (3 AD3d 444, 772 NYS2d 7 [1st Dep't 2007]).

Accordingly, Respondent's motion for summary judgment is denied.

Turning to Petitioner's cross-motion for an order requiring Respondent to pay use and occupancy pendente lite, this court has broad discretion to award use and occupancy upon such terms as are reasonable under the circumstances, Shoshany v Goldstein (20 Misc 3d 687, 860 NYS2d 908 [Civ Ct NY Co 2008]), citing Alphonse Hotel Corp v 76 Corp (273 AD2d 124, 710 NYS2d 890 [1st Dep't 2000 mem]), and may do so on an interim basis without a hearing, 3950 Blackstone Assoc LLC v Goldstein (39 Misc 3d 1237[A], 2013 NY Slip Op 50917[U] [Civ Ct Bx Co 2013]), citing Andejo Corp v South Street Seaport Limited Partnership (35 AD3d 174, 825 NYS2d 50 [1st Dep't 2006]). There does not need to be a lease between the parties or a [*11]recognition of tenancy rights in order for a court to award use and occupancy, and it is appropriate to require that such payment be made by a remaining family member claiming succession rights to a deceased tenant of record's apartment, Westbeth Corp HDFC Inc v Gross (2016 NY Misc LEXIS 4134, 2016 NY Slip Op 51589[U] [Civ Ct NY Co 2016], as the obligation "is predicated upon the theory of quantum meruit, and is imposed by law for the purpose of bringing about justice without reference to the intention of the parties." Eighteen Associates v Nanjim Leasing Corp (257 AD2d 559, 683 NYS2d 291 [2nd Dep't 1999])(quoting Rand Prods Co v Mintz (72 Misc 2d 621, 340 NYS2d 444 [App Term 1st Dep't 1973]), quoting 1 Williston, Contracts § 3A, at 13 [3d ed]). Although the court may look to the amount of rent paid under a prior lease in setting use and occupancy, prior rent is only probative, not dispositive. 43rd St Deli, Inc v Paramount Leasehold, LP (107 AD3d 501, 967 NYS2d 61 [1st Dep't 2013]).

The arguments of Respondent's counsel to the contrary are unavailing, and Petitioner's motion for use and occupancy pendente lite is granted; to accommodate and protect both parties and to preserve the status quo until this proceeding is resolved, the court directs Respondent to pay use and occupancy at the rate of 30% of his income commencing with the month in which Petitioner's cross-motion was made returnable, September 2016, and continuing until this proceeding is finally resolved.

CONCLUSION

Because there are issues of fact necessitating a trial, Respondent's motion for summary judgment is denied. Respondent is hereby ordered to commence paying use and occupancy at the monthly rate of $509.70 (30% of his income of $1699 per month, as reported in Respondent's counsel's Reply Affirmation), retroactive to September 2016. Future payments beginning with the month of December 2016 must be made by the 10th of each month and payment for the three-month retroactive period must be made by January 10, 2017. This proceeding is restored to the court's calendar for trial on January 10, 2017.

This constitutes the Decision and Order of this Court.

_________________________

Diane E. Lutwak, Hsg. Ct. J.

Dated: Bronx, New York

November 21, 2016

Footnotes

Footnote 1:Petitioner also names a "Jane Doe" and a "John Doe" as respondents-occupants, but Julio Garcia is the only respondent who has appeared, and the documents that have been submitted to the court thus far contain no indication that there is anyone other than Mr. Garcia residing in the apartment at the present time.

Footnote 2:In the moving papers, Respondent's counsel frames the issue as if the apartment were Rent Stabilized, which it is not; Respondent's reply papers correctly acknowledge that the apartment is located in a project-based Section 8 building.

Footnote 3:Petitioner correctly pointed out in its opposition papers that the un-notarized statements of Respondent's neighbors, attached as Exhibit A to Respondent's original motion papers, should not be considered as they are not in admissible form. See Affirmation in Opposition at ¶¶ 61-63. The seven affidavits of neighbors, referenced in Respondent's Affirmation in Reply at ¶ 13 and attached thereto as Exhibit A, however, are in proper form and will be considered.

Footnote 4:In his affidavit at ¶¶ 5 and 6 Respondent explains that prior to moving to the apartment where he lives now, Apartment 1A at 103 West 165th Street, he and Ms. Caraballo had lived in Apartment 3B at 101 West 165th Street and that, "We lived in that apartment together for about thirty years and I still live there now." He also explains that, "103 West 165th Street and 101 West 165th Street are the same building with one entrance." The website for the New York City Department of Housing Preservation and Development, which the court takes judicial notice of pursuant to Multiple Dwelling Law § 328(3), confirms this: 103 West 165th Street is an 87-unit, 6-story building that is also known as 101 West 165th Street, 101-03 West 165th Street and 1060 Nelson Avenue. With regard to Respondent's "I still live there now" statement in ¶ 5 of his affidavit which Petitioner's counsel highlights in its Attorney's Affirmation in Opposition at ¶ 11 ("How could he have been living in two places at once?"), to the extent he appears to refer to Apartment 3B at 101 West 165th Street, the court will treat this as an inadvertent, typographical error — as the court similarly will treat certain discrepancies in the affidavit of Petitioner's agent, see fn 7, infra — as everything else in Respondent's affidavit and the accompanying documents indicates that Respondent's claim is that he lives in Apartment 1A at 103 West 165th Street, and that Apartment 3B at 101 West 165th Street is an apartment in the same building where he and Ms. Caraballo lived together from approximately 1971 they moved to the subject premises in 2007.

Footnote 5:A seventh photograph that is included is of Ms. Caraballo alone.

Footnote 6:See fn 4, supra.

Footnote 7:In his affidavit at ¶¶ 2 and 3, Mr. Davidowitz actually does not refer to the subject premises, but instead refers to 103 West 163rd Street, Bronx New York. The court will treat this as a typographical error and assume instead that Mr. Davidowitz meant to refer to 103 West 165th Street.

Footnote 8:The memo which Petitioner cites to and attaches a copy of, Notice PIH 2010-9 (HA) ("Subject: Effective Use of the Enterprise Income Verification (EIV) System's Deceased Tenants Report to Reduce Subsidy Payment & Administrative Errors"), indicates on its first page that it was issued on March 30, 2010 and expired on March 31, 2011. The current version of this notice — with the same subject title - appears to be Notice PIH 2012-4, issued on January 1, 2012 and "effective until amended, superseded, or rescinded"; it is available along with other HUD notices, rules, regulations, handbooks and so forth on HUD's website. It appears to be very similar to the one Petitioner attaches to its papers, although certain language in the original ("there are no exceptions to this policy and procedures") at page 5 ¶ 7(c) which Petitioner quotes from several times and highlights in bold type, see Affirmation in Opposition at ¶¶ 22 & 48 and Affidavit of Eli Davidowitz in Opposition at ¶ 8, does not appear in the current version.

Footnote 9:However, since federal law does not impose upon the remaining family member any specific period of co-residency with the tenant of record, the minimum one- or two-year overlap periods found in such statutes as those governing rent stabilized and rent controlled apartments (see 9 NYCRR § 2523.5[b]; 9 NYCRR § 2204.6[d]) do not apply to tenancies in project-based Section 8 buildings. As explained by Judge Madhavan in Bronx 361 Realty, LLC v Quinones, supra, a case in which only one of the two spouses was on the lease and the couple had lived in the apartment together for only five days before the tenant of record died, "while the length of respondent's co-occupancy with the tenant of record bears on the legitimacy of her occupancy as a member of the family unit, it is not dispositive of that central issue."See also, e.g., NSA N Flatbush Assocs v Mackie (166 Misc 2d 446, 632 NYS 2d 388 [Civ Ct Kings Co 1994])(in holdover proceeding against son of tenant of record, 20 months found, after trial, to be a sufficient duration of co-residency).

Footnote 10:See also Ch. 8, Sec. 3, sub-sec. 8-12(B)("owners must be in compliance with applicable federal, state and local requirements when pursuing termination of tenancy").

Footnote 11:See fn 8, supra.

Footnote 12:Given that the most recent of the six photographs submitted by Respondent dates from approximately 2006, those photographs are so attenuated in time that they cannot be given much weight.

Footnote 13:See fn 12, supra.