Willoughby Ct. Apts. LP v Gomez

[*1] Willoughby Ct. Apts. LP v Gomez 2017 NY Slip Op 51377(U) Decided on July 26, 2017 Civil Court Of The City Of New York, Kings County Marton, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 26, 2017
Civil Court of the City of New York, Kings County

Willoughby Court Apartments LP, Petitioner,

against

Hector Gomez et al., Respondents.



59673/16



For Petitioner:

Gutman, Mintz, Baker & Sonnenfeldt

813 Jericho Turnpike

New Hyde Park, NY 11040

(516) 775-6590

For Respondents:

Brooklyn Legal Services Corporation A

619 Throop Avenue, Suite 3

Brooklyn, NY 11216

(718) 487-2300
Gary F. Marton, J.

After considering the testimony and the other evidence at the trial of this alleged licensee holdover proceeding, the court makes the following findings of fact, reaches the following conclusions of law, and grants respondents a judgment dismissing this proceeding.

The court finds that the premises at issue is an apartment in a building complex that receives a project-based Section 8 subsidy. The court finds petitioner is the landlord, that Julio Gomez was the tenant of record, that he died on December 3, 2015, and that respondents Hector Gomez and Destiny Gomez are occupants of the premises.

Petitioner alleges that respondents' rights to occupy the premises, if any, were derivative of Julio Gomez' and therefore that they expired upon his death. Hector Gomez counters that Julio Gomez was his father, that until his death the premises was for many years their primary residences, and that as a consequence he has achieved the status of a remaining family member and has an independent right to succeed to Julio Gomez' tenancy. Destiny Gomez, asserting that Julio Gomez was her grandfather, asserts a similar defense.

Petitioner replies, among other things, that neither Hector Gomez nor Destiny Gomez can have the status of remaining family members and succeed to Julio Gomez' tenancy because, as is uncontested, neither were listed in the statutorily mandated annual certifications of household income and composition that Julio Gomez filed.

The court finds that Destiny Gomez is a daughter of Hector Gomez and that she is still at [*2]an age at which Hector Gomez has a parental obligation to provide support. In light of the foregoing and of the result reached above, i.e., dismissal of the proceeding, the court finds it unnecessary to address Destiny Gomez' defense that she has an independent right to succeed to Julio Gomez' tenancy.

Hector Gomez testified that he moved into the premises in 2007. The court finds that this testimony was credible. In support he offered a host of documents addressed to him at the premises. These included monthly bills in 2014 and 2015 for wireless service from Sprint, monthly bank statements in 2014 and 2015 from JP Morgan Chase, a two-year renewal of a New York State Department of Motor Vehicles registration expiring January 6, 2015, automobile insurance bills and identification cards issued by Progressive in 2014 and 2015, and correspondence from the Social Security Administration during 2010, 2011, 2012, 2014, and 2015. The court finds that the documents corroborated his testimony and the court accords full probative weight to his testimony.

Nurys Rodriguez testified that she is a home attendant, that she took care of Julio Gomez from 2008 until 2015, that she was at the premises Monday through Friday from 9:00 am to 5:00 pm, and that during her work she got to know Hector Gomez and Destiny Gomez inasmuch as they were living there. The court finds that this testimony was credible and the court accords it full probative weight.

Vanessa Peterson testified that she works for petitioner's managing agent, Shinda Management, that her title is "Area Supervisor," that Hector Gomez has been for several years on a waiting list for a subsidized apartment at the complex, and that she had been to the premises once in 2011 and once in 2012 and had not seen any evidence that anyone other than Julio Gomez was living there. On cross-examination she acknowledged that she supervises 1,600 apartments spread among 13 developments. The court finds that Peterson's visits to the premises were rare and lacked, except perhaps in a general way, a specific design to uncover impermissible occupants. The court finds that Peterson's testimony was credible but that it lacked probative value insofar as it was offered to show that respondents did not live at the premises.

Petitioner argues that inasmuch as neither Hector Gomez nor Destiny Gomez were listed in the statutorily mandated annual certifications of household income and composition, neither one should be deemed a remaining family member and then allowed to jump ahead of the other applicants on the lengthy waiting list for this subsidized apartment. In support petitioner cites the black letter of subsection 3-16(B) of HUD Handbook § 4350.3 [FN1] and relies heavily on Evans v Franco, 93 NY2d 823 (1999). In that case the court upheld an administrative determination denying an apartment occupant's claim of succession to the deceased tenant's voucher-based Section 8 subsidy. As is the case here, for many years the occupant had not been listed on the tenant's statutorily required annual certifications of household income and composition. The court reasoned that "[t]o permit petitioner to claim status as a surviving family member would be [*3]to open the door to possible fraudulent claims and to a wholesale disregard of the intent of the subsidy program." (At 825).

This attractive argument and variations thereof have gained some support in the context of other governmentally subsidized housing programs. See, e.g., Matter of Murphy v New York State Division of Housing and Community Renewal, 21 NY3d 649, 655 (2013) (Read, J. dissenting); Matter of Klein v Rhea, 2013 NY Slip Op 50629 (Sup Ct, NY Co, 2013); Sunset Housing Assoc. v Caban, 190 Misc 2d 343 (Civ Ct, Kings Co, 2001). Nonetheless, it has been held repeatedly that the argument is adequately countered and outweighed by other considerations such as, and as here, maintenance of family cohesion and an occupant's lengthy residence. See, e.g., Matter of Murphy, supra; Matter of Manhattan Plaza Assoc., L.P. v Dep't. Of Housing Preservation and Development, 8 AD3d 111 (1st Dep't, 2004); Los Tres Unidos Assoc. v Colon, 2014 NY Slip Op 51566 (U), (App Term, 1st Dep't, 2014); Marine Terrace Associates v Kesoglides, 2014 NY Slip Op 51303(U) (App Term, 2nd, 11th, & 13th Jud Dists, 2014), 2013 Amsterdam Ave. Hous. Assoc. v Estate of Wells, 2006 NY Slip Op 50084(U) (App Term, 1st Dep't, 2006); Upaca Site 7 Assoc. v Hunter-Crawford, 2006 NY Slip Op 50887 (U) (Civ Ct, NY Co, 2006). This court is bound by the foregoing and accordingly grants the relief set out above.

Also in light of the result reached above, the court finds it unnecessary to address respondents' other arguments and defenses, including Hector Gomez' defense that he had applied to petitioner to be added to Julio Gomez' family composition, that petitioner had wrongly refused to add him thereto, and therefore either that petitioner should be estopped from denying that he was on the family composition or else that he should be deemed to have been added thereto.

The court will mail copies of this decision and order to the parties, and they are requested to retrieve their exhibits from the courtroom within 30 days hereof, failing which they will be disposed of pursuant to administrative directive.

Dated: July 26, 2017

Brooklyn, NY

Gary F. Marton Footnotes

Footnote 1:In pertinent part, subsection 3-16(B) provides: "The following basic requirements for eligibility must be met for a person to qualify as a remaining member of a household: 1. The individual must be a party to the lease when the family member leaves the unit."