2258 Assoc. LLC v Mompremier

[*1] 2258 Assoc. LLC v Mompremier 2018 NY Slip Op 51624(U) Decided on September 24, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 24, 2018
Civil Court of the City of New York, Kings County

2258 Associates LLC, Petitioner,

against

E. Mompremier et al., Respondents.



60768/16



Petitioner's counsel

Steven E. Ginsberg

26 Court Street - Suite 2515

Brooklyn, NY 11242

(718) 522-4772

Respondents' counsel

Fania Jean - Suite B

120-29 197th Street

St. Albans, NY 11412

(718) 813-5817
Gary F. Marton, J.

Petitioner predicated this holdover proceeding on the allegation that it might recover possession of the premises, a rent-stabilized apartment, because the tenant of record, respondent Marie Mompremier, had failed to sign a renewal upon the expiration of the most recent lease. Respondents interposed an answer that included, among other things, an affirmative defense of succession on behalf of respondent Jacquelin Mompremier [FN1] . Now, after considering the testimony and the other evidence at the trial, the court makes the following findings of fact, reaches the following conclusions of law, holds that respondent Jacquelin Mompremier has established his right to possession of the premises, and grants a judgment dismissing this proceeding.

Previously, by a notice of motion dated October 3, 2016 petitioner moved for summary judgment and by a notice of cross-motion dated October 21, 2016 respondents cross-moved for [*2]summary judgment dismissing the action and granting "respondent Jacquelin Mompremier succession rights."

In a decision and order dated January 24, 2017 the court (Slade, J.) granted the motions in part and denied them in part. The court found that Marie Mompremier bought a house in 2006 and moved there in 2007 after vacating the premises "although she continued to sign renewal leases." The court granted petitioner a judgment of possession against her, noting that she had not surrendered possession: "However, she has not, to date, surrendered possession of the premises, so to that extent petitioner is entitled to seek possession via a judgment as to her." Later the court wrote: "Therefore, the portion of the motion that seeks summary judgment on the issue of whether E Monperemer (as named in the petition) is granted as she has not asserted that she signed a renewal lease. However, the motion is only granted as to her."

The court also wrote: "Throughout the motions and in the course of the affidavits the parties seek to litigate the issues in the context of a non-primary residence holdover, which the facts in this matter both warrant and justify." The court went on to provide that "the cross-motion to dismiss is granted to the extent that the matter is restored to the court's calendar on February 15, 2017 for a hearing/trial on Jacquelin Monpremier's succession claim. The petition and notices are amended to substitute him as a party respondent in lieu of John Doe."

This court finds that the premises is a two-bedroom apartment in a building with 42 apartments. The court finds that petitioner became landlord of the premises and the owner of the building pursuant to a deed dated January 20, 2004. The court finds that Marie Mompremier became the tenant of the premises before then and perhaps as early as 1977. She testified without contradiction that she lived at the premises with her boyfriend and her three children, one of whom is Jacquelin Mompremier who was born in 1981. The court finds that Marie Mompremier bought a house on East 58th Street in Brooklyn, New York and moved there in 2007, and that only Jacquelin Mompremier remained at the premises after she moved out.

Marie Mompremier testified that she paid the rent for a few months after moving out but that Jacquelin Mompremier paid the rent after that. She testified that she signed renewal leases because she knew that Jacquelin Mompremier was living there. She testified that she took most of her belongings with her when she moved out but left some personal effects there because Jacquelin Mompremier was there. She testified that thereafter she returned to the building from time to time. The court finds that the foregoing testimony was credible.

Marie Mompremier also testified that at about the time that she moved out she told the superintendent that she was moving out and that she told two of petitioner's employees that she had purchased a house. This testimony was conclusory, e.g., lacking particulars about the time(s), date(s), and place(s) in which the alleged conversation(s) took place. The court declines to find that these alleged conversations constituted legally sufficient notice to petitioner that Marie Mompremier had surrendered her right to possession of the premises, and the court declines to find that these alleged conversations constituted a legally binding acceptance by petitioner of Marie Mompremier's alleged surrender.

Jacquelin Mompremier testified that he has lived at the premises for his entire life, albeit alone since his mother moved out in 2007. He testified that since 2007 he has paid the monthly rent by tendering money orders either to the superintendent or to another employee of petitioner's and that they never refused these tenders. He testified that both before and after 2007 he called [*3]petitioner to complain about conditions at the premises and that no one ever refused to take his complaints. The court finds that this testimony was credible. However, he acknowledged that he signed the money orders only with the name "Mompremier" and, on cross-examination, that he tendered the money orders in envelopes on which he wrote Marie Mompremier's name and that he did so because her name is on the lease [FN2] .

During the trial respondents offered documents that showed that Jacquelin Monpremier used the premises as his address. These documents included W-2s from 2005, 2006, and 2007, and transcripts of Federal income tax returns for the years 2008, 2009, 2010, 2015, 2016, and 2017.

The Rent Stabilization Code ("RSC") provides that a "family member" of a tenant of record who has vacated rent-stabilized premises may succeed to the tenant of record's tenancy if the family member and the tenant maintained their primary residences at the premises contemporaneously during the two years immediately preceding the surrender. In pertinent part, 9 NYCRR § 2523.5(b)(1) provides that "any member of such tenant's family ... who has resided with the tenant in the housing accommodation as a primary residence for a period of no less than two years ... immediately prior to the permanent vacating of the housing accommodation by the tenant... shall be entitled to be named as a tenant on the renewal lease."

Respondent Jacquelin Mompremier argues that whether the statutory two-year period of co-residency is deemed to have ended in 2007, when his mother moved to her house on East 58th Street, or ten years later on January 24, 2017 pursuant to the decision and order herein of the same date, he has satisfied the statutory test of familial relationship and temporal co-residency. Petitioner counters that the actions taken by Jacquelin Mompremier and his mother which, whether intentional or not, disguised her departure from the premises, disqualify him from succeeding to her tenancy. Petitioner calls the court's attention not only to respondents' post-2007 signing of lease renewals and payments of the monthly rent but also to a claim of tenant harassment that Marie Mompremier filed at DHCR against the instant petitioner on October 19, 2015, i.e., eight years after her move to East 58th Street.

In Matter of Jourdain v New York State Div. Of Hous. and Community Renewal, 158 AD3d 41 (2nd Dep't, 2018) the court considered a claim of succession by the mother of the tenant of a rent-stabilized apartment. It was uncontested that the mother had lived with the tenant since 2003, that the tenant moved out in 2008 but paid the rent thereafter, and that the tenant executed in 2009 a two-year lease renewal. The court framed the issue as follows: "[W]hether a family member who had been residing in an apartment with the tenant for years and had the right to seek succession when the tenant moved out of the apartment lost that right by virtue of the fact that the tenant continued to pay the rent and executed a renewal lease after moving out. We answer this question in the negative." (At 42). The court also noted that the landlord had not shown that the delay in the assertion of the claim to succession had prejudiced the landlord in opposing the same. See also, Mexico Leasing, LLC v Jones, 2014 NY Slip Op 51456(U) (App Term, 2nd, 11th, [*4]& 13th Jud. Dists, 2014) where the court held that there could not be "a finding of nonentitlement to succession rights based solely on the ground that the tenant of record has not maintained her primary residence in the rent-stabilized apartment during the two-year period prior to her permanent vacating of the apartment...."

In support of its argument that respondents' concealment of Marie Mompremier's vacatur in 2007 defeats or precludes Jacquelin Mompremier's claim of succession, petitioner cites, among other decisions, Third Lennox Terrace Assoc. v Edwards, 91 AD3d 532 (1st Dep't, 2012) and 68-74 Thompson Realty, LLC v McNally. 71 AD3d 411 (1st Dep't, 2010); see also, M & B Lincoln Realty Corp. v Thompson, 2015 NY Slip Op 51796 (U) (App Term, 2nd, 11th, 13th Jud Dists, 2015), Jols Realty Corp. v Nunez, 2014 NY Slip Op 50529(U) (App Term, 2nd, 11th, 13th Jud Dists, 2014). These decisions would require here a decision in petitioner's favor. See also, South Pierre Assoc. v Mankowitz, 17 Misc 3rd 53, 55 (App Term, 1st Dep't, 2007) where the court wrote: "To ensure the fair and orderly resolution of succession disputes, the governing Code provision (see 9 NYCRR 2523.5 [b] [1]) contemplates the timely interposition of succession claims via a procedure described in the case law as follows:

'in the ordinary course of events, a family member, who remains in the apartment following the departure of the named tenant, will receive a renewal notice towards the end of the lease term, directed to the named tenant; the recipient will thereupon inform the landlord of the tenant's departure as well as his status as a family member; and, assuming there is no dispute regarding his status, the surviving family member will receive a renewal lease designating him tenant of record" (245 Realty Assoc., 243 AD2d at 32-33 [emphasis supplied; internal quotation marks omitted]).'"

However, the cases that petitioner cites do not bind this court. Instead, Jourdain, even if decided wrongly as petitioner argues, does. Accordingly, inasmuch as Jacquelin Mompremier has shown that he would have been entitled to succession had he asserted the claim when his mother moved out (or, perhaps, at the end of the term of the lease then extant), the court grants the relief set out above.

The court will mail copies of this decision to the parties along with their exhibits.

Dated: September 24, 2018

Brooklyn, NY

_________________________________

Gary F. Marton Footnotes

Footnote 1:Counsel characterizes herself in the answer as counsel for "respondents" and also as counsel for "respondent." In the undated notice of appearance in the court file she checked the box that identifies her as counsel for "respondent(s)."

Footnote 2:Petitioner offered copies of two of the money orders. One is dated January 30, 2016 and the other is dated March 14, 2016. Each states that it is from "Marie Mompremier."