East Prospect Props., LLC v Blakeney
Annotate this CaseDecided on April 25, 2019
City Court of Mount Vernon, New York County
East Prospect Properties, LLC, Landlord-Petitioner,
against
John Blakeney, JOHN DOE(S) and/or JANE DOE(S) AND ALL OTHER OCCUPANTS, Respondents-Tenants.
834-19
Andrew M. Romano, Esq.
Attorneys for Petitioner
20 South Broadway, Suite 902
Yonkers, New York 10701
Dion Hunt
131 East Prospect Avenue, Apt. 4H
Mount Vernon, New York 10550
Adam Seiden, J.
This is a holdover summary proceeding commenced by petitioner East Prospect Properties, LLC seeking to recover possession of Apartment 4H located at 131 East Prospect Avenue, Mount Vernon, New York (hereinafter "subject premises").
Petitioner claims that Zessie Blakeney was the rent stabilized tenant of record and that the terms of the lease are being violated in that the subject premises are not being occupied by Zessie Blakeney. Petitioner served a Notice to Quit Property on respondent at the subject premises on February 23, 2019.
A non-jury trial was held in this matter on April 15, 2019. Respondent Dion Hunt testified that he is the grandson of Zessie Blakeney and that he has continuously lived at the subject premises with his grandmother as her caretaker since his grandmother had a stroke in October of 2014 until her death on September 4, 2018. Documentation submitted by Mr. Hunt in support of his contention that he lived with his grandmother since October 2014 consisted of a single letter addressed to him at the subject [*2]premises from his health insurance company, Fidelis Care, dated March 7, 2019. The most recent lease amendment, which was dated November 28, 2015, was signed by both Ms. Blakeney and Geraldine Hunt. Mr. Hunt testified that Geraldine Hunt is his mother and she acted on behalf of his grandmother as she held her power of attorney. On cross examination Mr. Hunt acknowledged that he never directly paid the rent for the premises.
Mr. Christopher DeFeo, a management representative, testified on behalf of petitioner. Mr. DeFeo testified that he was not aware of anyone other than Ms. Blakeney residing in the subject apartment prior to her death in September 2018. It was only after Ms. Blakeney had passed and petitioner was trying to recoup the key to the apartment that he observed respondent in the apartment on one of the two occasions. Mr. Defeo testified that he did not know the respondent nor did he have any communication with him prior to Ms. Blakeney's death.
The issue now before the Court is whether respondent Dion Hunt is entitled to succession rights in the apartment. The apartment in question is covered by the ETPA. According to the applicable succession regulations, "if the tenant has permanently vacated the housing accommodation, any member of such tenant's family, as defined in section 2500.2(n) of this title, 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." 9 NYCRR 2503.5(d)(1).
It is well settled that a person claiming a right to continued possession has the affirmative obligation of establishing his right to succession (see Knoll v Cruz, 51 Misc 3d 146(A) [App Term 2d Dept 2016]; Gottlieb v Licursi, 595 NYS2d 17 [1st Dept 1993]; 68-74 Thompson Realty, LLC v McNally, 71 AD3d 411 [1st Dept 2010]; WRG Acquisition, LLC v Strasser, 45 Misc 3d 1010 [Dist Ct, Nassau County 2014]).
At trial, there was no significant dispute raised as to the fact that Dion Hunt is the grandson of former tenant Zessie Blakeney, who occupied the apartment under a lease since 1982. As such, the only issue with respect to succession rights is whether Mr. Hunt maintained a primary residence in the apartment with his grandmother for at least two years immediately prior to her death on September 4, 2018. The documentary evidence submitted by Mr. Hunt does not establish the two year residency requirement needed to be considered a successor tenant. The singular correspondence from Fidelis Care is dated March 7, 2019, six months after Ms. Blakeney died. As such, it fails to substantiate his claim that he lived at the subject premises during the requisite period. Moreover, Mr. Hunt has failed to provide any additional evidence, either documentary or testimonial, other than his own self-serving testimony that he resided with his grandmother in the subject apartment for the two years prior to her death.
The Court finds the foregoing documentation is insufficient, without more, to establish the two year residency requirement and support Mr. Hunt's succession rights claim. See 420 East Assocs. v. Lennon, NYLJ 1/18/96 P. 27 [Appellate Term 1st Dept.] (finding no succession rights where family member of tenant failed to submit supporting evidence, including affidavits of third parties, correspondence addressed to her at the apartment or commercial receipts)). Upon review of the record, the Court finds that Mr. [*3]Hunt has not met his burden of proving that he lived with Zessie Blakeney for the two year period required for successor tenancy. Accordingly, respondent Dion Hunt has failed to establish his burden of proof, and therefore, is not entitled to succession rights in the subject premises.
Judgment in favor of the petitioner. The warrant of eviction to issue forthwith.
This constitutes the Decision and Order of this Court.
Dated:April 25, 2019
Mount Vernon, New York
___________________________________
HON. ADAM SEIDEN
Associate City Judge of Mount Vernon
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