Westman Realty Co., LLC v Cookson

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[*1] Westman Realty Co., LLC v Cookson 2019 NY Slip Op 50144(U) Decided on February 5, 2019 Civil Court Of The City Of New York, New York County Kraus, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 5, 2019
Civil Court of the City of New York, New York County

Westman Realty Company, LLC, Petitioner

against

Nicholas Cookson, Respondent



L & T 53986/17



THE ABRAMSON LAW GROUP PLLC

Attorneys for Petitioner

By: Jeffrey Bodoff, Esq. & David Abramson, Esq.

570 Lexington Avenue, 23rd Floor

New York, New York 10022

212.686.4401

VERNON & GINSBERG, LLP

Attorneys for Respondent

By: Yoram Silagy, Esq.

261 Madison Avenue, 26th Flr

New York, New York 10016

212.949.7300
Sabrina B. Kraus, J.

BACKGROUND

This summary holdover proceeding was commenced by Westman Realty Company, LLC ( Petitioner) against Nicholas Cookson(Respondent) seeking to recover possession of 697 West End Avenue - Apt PH A, New York, New York 10025 (Subject Premises) based on the allegation that Respondent is a licensee no longer entitled to remain in possession after the death of his grandfather, Robert Akeret (Tenant), the last rent control tenant of record.

The essential issue to be determined at trial was whether Respondent primarily resided at the Subject Premises with Tenant for at least two years prior to Tenant's death.



PROCEDURAL HISTORY

Petitioner issued a ten day notice to quit, dated January 9, 2017. The notice alleged that Tenant died on November 12, 2016, and that Respondent's license to occupy the Subject Premises was terminated by virtue of the Tenant's death. The notice was filed with DHCR on January 11, 2017.

The petition was filed on February 10, 2017. Proof of service was filed on February 16, 2017, and the first court date was on February 22, 2017. Counsel for Respondent appeared on the first court date.

Respondent served an answer dated March 16, 2017. Respondent's answer asserts succession to Tenant, as well as a counterclaim for wrongful eviction [FN1] and a counterclaim for attorneys' fees.

On April 3, 2017, the proceeding was marked off calendar pending discovery. Respondent's deposition took place on August 16, 2017 and October 26, 2017 (Ex 6A-B).

On February 16, 2018, Respondent moved for an order permitting him to amend his answer to include a succession claim to Ann Akeret (AA), in addition to the claim of succession already interposed AA was Respondent's grandmother and Tenant's wife. On May 7, 2018, the court (Marin, J) issued an order denying Respondent leave to amend his answer.

On January 31, 2019, the proceeding was assigned to Part 118 for trial. The trial commenced on that date, continued on February 1 and concluded on February 4. On February 4, 2019, the court heard closing arguments and reserved decision.



FINDINGS OF FACT

Westman Realty Company became the owner of the Subject Premises pursuant to a deed dated December 27, 1963 (Ex 1A). The name of the company was changed to Westman Realty Company, LLC pursuant to certificate of conversion dated December 31, 2004 (Ex 1B). The assets of Westman Realty Company were assigned to Petitioner pursuant to an assignment and assumption executed January 2, 2005 (Ex 1C).

Valid MDRs were filed with HPD in August 2017 (Ex 2A) and August 2018 (Ex 2B).

Marina Higgins (MH) testified for Petitioner. MH is employed by Argo Corporation. The Argo Corporation manages the subject building for Petitioner pursuant to a verbal management agreement. MH has been involved with the management of the building for approximately 40 years. MH manages approximately six hundred units in ten different properties. MH executed the predicate notice in this proceeding.

MH testified that to her knowledge Tenant was living by himself in the Subject Premises [*2]at the time of his death and that she only met Respondent in the building for the first time after Tenant had died. MH had not been inside the Subject Premises in the two years prior to Tenant's death.

Tenant was the Rent Control tenant of record for the Subject Premises pursuant to a written lease agreement dated June 16, 1965 (Ex 5). Tenant lived in the Subject Premises with AA.

Petitioner registered Tenant as the rent control tenant of record with DHCR in 1984 at a legal rent of $775.82 (Ex 3)

Tenant and AA had a daughter, Kim Ackeret in 1953 (Ex B). Kim Ackeret married Anthony Straight Cookson and in 1984 they gave birth to Respondent (Ex C).

Respondent is 34 years old, and has lived in the Subject Premises since September 2010. Respondent graduated from the University of Denver in June 2010, and Tenant invited Respondent to come live with his grandparents at the Subject Premises. Respondent shipped his belongings to the Subject Premises. The items Respondent shipped included Respondent's clothes, pots and pans, a vacuum cleaner, snowboards, school files and tapestries and rugs.

Respondent purchased a new queen size mattress and bed liner for his use at the Subject Premises from Sleepys on September 20, 2011 (Ex Q). The mattress was delivered to him at the Subject Premises on the following day. The purchase cost Respondent approximately $1600.00.

Respondent had a Volvo, he purchased in 2010. Respondent drove the car to California after graduation. Respondent left the car at his parents' house in Los Angeles and flew to New York. Respondent brought the car to New York in 2013. Respondent's car was registered to the Subject Premises as of June 17, 2015 (Ex E). Statements for Respondent's auto insurance were sent to the Subject Premises between November 2013 and May 2016 (Ex Z).

Respondent was issued a New York State Driver's license on August 1, 2013. The license lists the Subject Premises as Respondent's address (Ex F). Respondent's EZ Pass Account records were submitted in evidence (Ex G). The records list the Subject Premises as Respondent's address. Respondent got the account in 2014 and submitted statements for May 2014 through December 2016. The EZ Pass Account was for the Volvo (Ex 6A, p.50).

Respondent took classes for design, and scuba during the relevant period. Respondent listed the Subject Premises as his address with these institutions (Exs H, I, & J). Respondent had a Chase Sapphire Credit Card from 2015 to 2016 . Redacted statements were submitted in evidence and show Respondent's address as being at the Subject Premises (Ex L). Respondents Bank of America statements between 2014 and 2016 also show the Subject Premises as his address (Ex M). However, other Bank of America documents pertaining to his banking records list his parents address as his residence (Ex BB).

Respondent is registered to vote from the Subject Premises. Respondent registered to vote from the Subject Premises on April 23, 2012. Respondent voted from the Subject Premises in the 2012 and 2016 Presidential elections (Ex O).

Respondent applied to renew his passport in 2015. Respondent listed the Subject Premises as his address (Ex Y).

Respondent was called for Jury Service in New York county based on his residence at the Subject Premises. Respondent received a proof of service certificate at the Subject Premises for service on October 8, 2014 (Ex X).

Respondent also consistently spent time with Tenant and other family members at a family cabin on Lake Champlain (Lake House). The address of the Lake House is 151 Grog [*3]Harbor Way, Essex, New York 12936 (Ex 6A, p. 11). Respondent spent time at the Lake House every summer. The Lake House is owned by Respondent's mother and her sisters. The Lake House has no heating, no insulation and no electricity, and was primarily used by the family as a retreat during the summer months.

The Subject Premises is a five bedroom penthouse apartment with a terrace located at West End Avenue and 94th street. Respondent has his own bedroom. A picture of Respondent's bedroom at the Subject Premises shortly after he moved in was submitted in evidence (Ex AA-10). Tenant also had his own bedroom. Tenant used the master bedroom as an office and slept in a bedroom off the living room. Respondent testified credibly that he had a very close relationship with Tenant. In 2013, AA died and Respondent continued to live in the Subject Premises with Tenant.

Family members would also stay in the Subject Premises at various times including Respondent's cousins and aunts.

Respondent enjoys travel and snowboarding and spent time away from the Subject Premises while traveling and snowboarding since moving in. Respondent testified to various trips he had taken and time spent abroad. Respondent did not have an independent recollection of the exact dates, and lengths of time of the various trips, but acknowledged that he traveled often . With the exception of a three month trip to Asia, Respondent was rarely away from the Subject Premises for longer than one month.

Respondent has had no significant employment since graduating from college. Respondent did work at a single catering event in Vermont (Ex D ). The pay stub Respondent submitted into evidence for this event is dated 10/12/16 and lists the Subject Premises as Respondent's address.

Respondent is the great grandson of Dorothy Whitney and receives income through a Family Trust. A document related to the Trust was submitted in evidence (Ex A). Respondent received approximately $4000 per month through the Trust from at least 2010 forward. After Tenant died, Respondent received $8000 per month through the Trust in order to be able to meet expenses associated with the Subject Premises.

In addition to the monies from the Family Trust, Respondent acknowledged that his parents sometimes helped him with expenses. Respondent is an authorized card holder on his father's American Express account, and his father pays for the charges associated with said account.

Respondent filed no state or Federal Taxes for the years 2010 to 2016. Respondent earned no taxable income during this period.

The Con Edison records for the Subject Premises were submitted in evidence (Ex FF). The records show that Tenant added Respondent's name to the account before his death.

Respondent has not lived anywhere else since moving into the Subject Premises in 2010. Respondent did not pay rent to Tenant but Respondent bought groceries and cooked. Sometimes Respondent would pay for household things like repairing the washing machine.

In September 2016, Tenant became ill. Tenant's health deteriorated, Tenant became depressed and was not eating. Tenant's family decided to take him to LA, to the home of Respondent's parents. Tenant received medical care there, but soon after arriving was set up for hospice at the home of Respondent's parents. Tenant died in California on November 12, 2016 (Ex 4).

Respondent's parents testified at trial. They both credibly testified that Respondent [*4]maintained the Subject Premises as his only residence from the time he graduated college through the death of Tenant. Both parents acknowledged that their tax returns for 2013 -2015 claimed Respondent as a dependent and listed Respondent as living at their home in California. Both parents credibly testified that this was inaccurate and that they were unaware of this mistake until the issue came to their attention through this litigation. Tax returns of the parents were submitted in evidence (Exs DD, EE and Ex 7).

Julie Ackeret (Julie), Respondent's aunt was called to testify. Julie credibly testified that in the two year period before Tenant's death, she was at the Subject Premises at least once a month, and personally observed that Tenant and Respondent both lived in the Subject Premises during that time. During this period, Julie slept in the maid's room when she stayed at the Subject Premises. Julie testified that she observed Respondent in the Subject Premises about 95% of the time that she stayed over. Julie usually came on a Friday morning and would have at least one meal with Respondent during her visit.

Respondent called five additional witnesses on the final day of trial, including: Lea Parker, a tenant at the Subject Building; Aaron Moore and Carly McCoy, college friends who regularly visited Tenant and Respondent at the Subject Premises; and Liza Akeret (Liza), Respondent's Aunt, who testified to regularly visiting both Respondent and Tenant at the Subject Premises. All of these witnesses credibly testified that Respondent's home has been the Subject Premises from late 2010 forward. Liza testified that in the two years prior to Tenant's death, she was at the Subject Premises approximately once a week, and that she observed Tenant and Respondent living there together during this period.

Respondent also subpoenaed two employees of Argo Management to testify at trial, Rafael Caamano (RC) and Modesto Montijo (MM). Both have worked as doormen at the subject building for decades.

RC works five days a week from Friday through Tuesday, on a shift that runs from four pm to midnight. RC credibly testified that from 2010 forward Respondent has consistently been living at the Subject Premises . RC testified that Respondent is very active socially and travels extensively. RC acknowledged that he can't say specifically how often he sees Respondent, and that Respondent was gone from the Subject Premises sometimes for a month at a time, but that Respondent always came "back home" to the Subject Premises. RC also testified that Respondent regularly received deliveries at the Subject Premises.

MM also testified credibly that Respondent maintained the Subject Premises as his home during the relevant period. MM testified that before AA's death Respondent was there less, and that between AA's death and Tenant's death Respondent was almost always there. MM works Monday through Friday from 8 am-5 pm.

Lawrence F. Maietta (LM), the accountant for Respondent's parents, was called to testify. Through his testimony documents (Ex CC & DD) pertaining to the tax preparations for Respondent's parents were admitted into evidence including un-redacted tax returns for Respondent's parents. LM credibly testified that the fact that Respondent was listed as a dependent on his parents returns was due to error on the part of LM's office. LM further testified that no taxes were due by Respondent on the distributions he received from the family trust because the distributions were from the principal of the trust and from monies that had already been taxed. LM also testified that Respondent's parents received no financial gain by declaring him as a dependent because they were subject to the Alternative Minimum Tax.

MH was recalled as a rebuttal witness. MH submitted payroll record in evidence to [*5]dispute the number of vacation days and sick days RC and MM testified they took during the relevant period. MH also submitted an apartment occupancy questionnaire in evidence. The court does not give much weight to said document, nor do any discrepancies in the number of vacation days or sick days taken by RC and MM cause the court to discount their credible testimony that they regularly observed that Respondent was living in the Subject Premises.



DISCUSSION

The Rent Control regulations provide in pertinent part that no member of a rent control tenant's family shall be evicted " ... where the tenant has permanently vacated the housing accommodation and such family member has resided with the tenant in the housing accommodation as a primary residence for a period of no less than two years ( NY Comp. Codes R. & Regs. tit. 9, § 2204.6)

"The burden of presenting legally sufficient proof to establish primary residency rests with the party claiming succession rights (see Gottlieb v. Licursi, 191 AD2d 256, 595 N.Y.S.2d 17 [1993] ). 'Primary residence' is judicially construed as "an ongoing, substantial, physical nexus with the ... premises for actual living purposes [68-74 Thompson Realty, LLC v. McNally, 71 AD3d 411, 412 (2010)(citations omitted)]."

A grandson may not be evicted from his grandfather's rent-controlled apartment if the grandson's primary residence was with his grandfather for at least two years prior to his grandfather's departure from the apartment (see NY City Rent and Eviction Regulations [9 NYCRR] § 2204.6 [d] [1], [3]).

It is uncontested that Tenant was the rent control tenant of record at the time he died in November 2016. It is also uncontested that Respondent is the Tenant's grandson.

Petitioner argues that the amount of time that Respondent spends at the Subject Premises is not enough to support his succession claim. They acknowledge that Respondent has no other residence, but argue that he leads a nomadic life style based on his extensive travels and time spent away from the Subject Premises. Petitioner essentially argues that because Respondent is only physically present in the Subject Premises for an average of 100 days per year, and because his absences are not compelled but are voluntary pursuits of travel and leisure, the court should rule that he did not primarily reside in the Subject Premises during the two year period.

The court disagrees. The court finds that a preponderance of credible evidence at trial established that Respondent maintained the Subject Premises as his primary residence, and his only residence from late 2010 through the date Tenant died. This conclusion is supported by the credible testimony of Respondent and his family members, friends, a neighbor and two of Petitioner's own employees, as well as significant documentary evidence including Respondent's voting records, drivers license and motor vehicle registration.

Respondent was physically present in the Subject Premises for significant amounts of time from late 2010 forward, kept all of his belongings at the Subject Premises and had an ongoing substantial physical nexus with the Subject Premises for actually living purposes. Respondent slept in the Subject Premises, entertained there, and identified it as his residence on almost all documents of record. The fact that in most of those years Respondent spent less than 183 days in the Subject Premises, does not in and of itself warrant a different result.

Petitioner failed to controvert the credible evidence Respondent submitted. Petitioner [*6]failed to produce any witnesses who were in the Subject Premises during the relevant time period to rebut the testimony of Respondent's witnesses . The Court does not give great weight to the testimony of MH as regards Respondent's primary residence as Petitioner failed to establish a sufficient basis for any personal knowledge about who was living in the Subject Premises on her part. The one bank account Respondent opened before college and his parents tax documentation alluding to Respondent's parental residence was addressed and credibly explained to the court (see eg Ex CC), and do not counterbalance Respondent's evidence [300 E. 34th St. Co. v. Habeeb, 248 AD2d 50, 56 (1997)].

Similarly, the fact that Respondent traveled extensively does not deprive him of the right to succeed to his grandfather's tenancy. Respondent's temporary absences did not sever his primary ties to the Subject Premises which was his only residence [335 East 70th Realty Inc. v Sara A.M. 2001 NY Slip Op 40310(U)].

While Petitioner correctly argues that the law does not require proof that Respondent maintained an alternative primary residence [see eg TOA Const. Co. v. Tsitsires, 54 AD3d 109, 113 (2008)], Petitioner submitted no persuasive credible evidence for this court to make any finding other than Respondent did maintain the Subject Premises as his primary residence for the requisite two year period. The documentary evidence and credible testimony overwhelmingly show that the Subject Premises was Respondent's primary residence in the two year period prior to Tenant's death (Shadick v 430 Realty Co. 250 AD2d 417; Knoll v Cruz 51 Misc 3d 146(A)).

Based on the foregoing, the petition is dismissed. [FN2]

This constitutes the decision and order of this Court.[FN3]



Dated: February 5, 2019

New York, New York

Hon. Sabrina B. Kraus, JCC

OCA e-submission: no Judge E-Mail Footnotes

Footnote 1:At trial, the court dismissed without prejudice Respondent's counterclaim for damages pursuant to § 853 of the Administrative Code. This cause of action may not be asserted in the context of a residential summary proceeding and must be asserted in a separate action [Rostant v. Swersky, 79 AD3d 456, 457 (2010); Saccheri v. Cathedral Props. Corp., 16 Misc 3d 111, 114 (2007)].

Footnote 2:Both sides reserved their rights to seek attorneys' fees. Any post trial motions pertaining to attorneys' fees should be made returnable in Housing Court.

Footnote 3:Due to the voluminous nature of the exhibits at trial, the court will retain the exhibits in the Part. Counsel should pick up trial exhibits from the court room or chambers on or before February 15, 2019.