Dumont Green LLC v Duncan

[*1] Dumont Green LLC v Duncan 2023 NY Slip Op 51273(U) Decided on September 13, 2023 Civil Court Of The City Of New York, Kings County Jimenez, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2023
Civil Court of the City of New York, Kings County

Dumont Green LLC, Petitioner,

against

Patsy Duncan, ANDERSON DUNCAN, J. DOE, Respondents.



Index No. 301289-22


Gutman, Mintz, Baker & Sonnenfeldt, P.C.
813 Jericho Turnpike
New Hyde Park, New York 11040
Attorneys for Petitioners — Dumont Green LLC.

Brooklyn Legal Services Corp. A.
260 Broadway
2nd Floor
Brooklyn, New York 11211
Attorneys for Respondent — Patsy Duncan Sergio Jimenez, J.

This holdover proceeding seeks recovery of the property at 1490 Dumont Avenue Apt. 7H in Brooklyn, New York 11208. Respondent Patsy Duncan (hereinafter as respondent) alleged a defense of succession rights. This proceeding was transferred from the resolution part to the trial part on March 30, 2023. The court conducted a trial on July 18, 2023, July 21 2023, August 2, 2023 and the trial was concluded on September 8, 2023 by submission of post-trial memoranda. The court then reserved decision.

Hearing

The parties entered into a stipulation settling a variety of evidentiary matters on July 18, 2023. Respondent consented to petitioner's prima facia presentation and entered into evidence P1 (Deed — NYSCEF 13), P2 (Declaration of Interest — NYSCEF 14), P3 (Regulation Agreement — NYSCEF 15), P4 (MDR — NYSCEF 16), P5 (Death Certificate — NYSCEF 17), P6 (Lease Agreement — NYSCEF 18), P7 (Renewal Lease — NYSCEF 19), P8 (Certified DHCR Registration - NYSCEF 20), P9 (Recertification of 2016, 2018 and 2019 — NYSCEF 21). Respondent also consented to jurisdiction. As such, petitioner's prima facie burden was met. The respondent then, as per the answer, sought to prove a defense of succession rights. They presented five (5) witnesses Natasha Matthews, Allister Duncan, Patsy Duncan, Sharon Cummings and Ingrid Adams. As part of the stipulation of evidences, respondent entered into evidence Ra (Goddard's CD PAP Explanation Notice), Rb (Allistair Duncan Employment Letter) and Rc (Bank Statement for Patsy Duncan).

Ms. Matthews, one of the property managers for petitioner, testified credibly that she has managed leasings, recertifications, the staffing, repairs and general day-to-day management of the premises since around 2015. She stated she had met Mr. Goddard when he moved in. She claimed she saw Ms. Duncan there but was unsure about their romantic relationship. She stated that there had never been a request for Ms. Duncan to be added to the lease. She had believed Ms. Duncan to be the home health aide and that Mr. Goddard had described her as such.

Mr. Allister Duncan, Ms. Patsy Duncan's son, also testified. He testified that he has known Mr. Goddard since 2011 or 2012, that he was introduced as his mother's friend when he and her lived together in Canarsie. He testified that his mother and Mr. Goddard were boyfriend/girlfriend including activities such as "cut the cake and kiss" for birthdays. He stated they used to watch sports together and that respondent moved out at some point in 2016. He [*2]testified that he himself had been Mr. Goddard's home health aide for some time. He claimed that holidays were spent at 1490 by his family including his wife, kids, brothers and friends. Mr. Goddard testified his mother was still married to his father in Trinidad, but she has not been back in Trinidad for decades. He also stated that while his mother was a home health aide, she was never a home health aide for Mr. Goddard.

Respondent, Patsy Duncan, testified that she was in a committed relationship with Mr. Goddard dating to before they moved in together in 2016 as boyfriend/girlfriend, as they were both still married to other people. She recounted how they would spend time together, after they had met at a party. She stated that she did not get divorced for possible inheritance reasons and that both her and her husband, Mr. Duncan, had seen other people. In contradiction to her son's testimony, respondent testified she had gone back to Trinidad to visit and that it was Mr. Goddard that bought her the ticket. She stated she had never met Mr. Goddard's children and did not know where they were. She claims that they never came to visit but only did so in the hospital. On cross-examination, when asked what Mr. Goddard's job was, respondent stated that he did something with regard to blood samples in a lab, which is contradicted by the death certificate, stating that he was a bus driver. Ms. Duncan also stated that she was a health aide but never Mr. Goddard's health aide and that she did not fill out the death certificate because she had COVID when it happened.

The respondent then called Sharon Cummings to testify. Ms. Cummings was Ms. Duncan's husband's sister. She credibly testified that she has known Ms. Duncan for about 50 years. She stated that Mr. Goddard and Ms. Duncan were living together as "companions" or a "couple." She testified that Mr. Duncan in Trinidad was involved with various other individuals. She gave a timeline of how much she saw the respondent, with family, with Mr. Goddard in general from 2016 -2020 when Mr. Goddard passed away, though she was unable to put a specific timeframe to how often she visited. Importantly, she testified that she believed the respondent was in a relationship with Mr. Goddard as a result of her seeing them being "touchy touchy," which implies some sort of intimacy.

On the last day of trial, the respondent called Ingrid Adams as a witness. She stated that she had known both Mr. Goddard and Ms. Duncan for over 25 years. She stated that Mr. Goddard was her nephew's coach and a friend of hers. She was unable to name Ms. Duncan's boyfriend and did not connect Mr. Goddard to Ms. Duncan as she says she only saw him partying or hanging out in the streets with friends, never with Ms. Duncan.

Discussion

The watershed decision of Braschi v. Stahl Assocs. Co., 74 NY2d 201 (1989) in the Rent Stabilization Code established criteria for finding a non-traditional familial relationship. Various factors were identified such as longevity of the relationship; mutual reliance for payment of expenses and necessities; intermingling of finances, shown as a matter of example by joint bank accounts; engaging in family-type activities like attending family functions together; formalizing of legal obligations by means such as naming one another as beneficiaries in wills and/or executions of powers of attorney; holding themselves out as family members to other family members, friends, community members, and religious institutions; reliance on each other for daily family services or functions; and other manifestations of a long-term emotionally-committed relationship. 9 N.Y.C.R.R. §2520.6(o)(2)(i)-(viii).

This analysis, though, is not just "check[ing] off which factors ... [R]espondent has successfully proven...." (Lamarche v. Miles, 234 N.Y.L.J. 88 [Civ. Ct. Kings Co. 2005]). It is a more involved analysis as to the relationship itself. As 9 N.Y.C.R.R. § 2520.6 (o)(2) specifically states that no single factor shall be solely determinative, "[t]he factors listed in the statute to consider in making the determination, such as sharing expenses and intermingling finances, are merely suggestions and not requirements" (Wiener Mgmt. Co. v. Trockel, 192 Misc 2d 696, 703 [Civ. Ct. Queens Co. 2002]). Even entirely missing a factor does not preclude a determination that the respondent seeking to assert succession and the tenant of record had a "family-like relationship" (Cozzolino v New York State Division of Housing and Community Renewal, 204 [*3]AD3d 494 [1st Dept, 2022]), "[T]he totality of the relationship as evidenced by the dedication, caring and self-sacrifice of the parties ... should, in the final analysis, control" (Braschi, supra, 74 NY2d at 213; Matter of 530 Second Ave. Co., LLC v. Zenker, 160 AD3d 160, 163 [1st Dept. 2018]).

The court finds that respondent has not met their burden of proof. One of respondent's own witnesses, who has known both the deceased tenant of record and the respondent for over 25 years, could not name who the respondent's boyfriend was. Respondent herself stated that the tenant of record professionally did bloodwork for a laboratory yet could not explain why the death certificate listed him as a bus driver. The court notes the absence of any proof of comingled finances, of pictures depicting the family together at any event despite allegations that they had been in one another's lives for over a decade and repeatedly hosted family events. While the court does not require and should not consider evidence of a sexual relationship, the descriptions of the deceased tenant of record and respondent as being affectionate were considered, as one witness described it "touchy-touchy" (West 49th Street, LLC v O'Neill, 77 Misc 3d 385 [Civ Ct New York County, 2022]). Some physical intimacy, short of sexual relations, may be used as proof of a relationship. Petitioner sought to focus the court on the fact that both the tenant of record and the respondent were both married to other people throughout their alleged relationship. However, the court understands that interpersonal relationships are complicated and not necessarily clearcut on legal standing, hence the original need for the Braschi court's decision [FN1] . Solely being married to other people does not, by itself, negate that two people were in a family-type relationship. However, given the larger context of the evidences presented, the court cannot find for respondent.

Given the extent that the testimony was equal in its credibility and did not necessarily preponderate over the other, it is the party who bears the burden who will have their application denied (Rinaldi & Sons, Inc. v Wells Fargo Alarm Service, Inc., 39 NY2d 191 [1976]). Here, the respondent has the burden of proof to prove their defense of succession. They failed to do so, and the court must dismiss that defense.

Conclusion

For the above reasons, the petitioner is entitled to a judgment of possession as against Patsy Duncan and Anderson Duncan, the proceeding is dismissed as to J. Doe for being non-descriptive (Michaelangelo Preserv., LLC v Burgos, 75 Misc 3d 1209[A][Civ Ct Bronx County 2022]). Warrant to issue 30 days from the date of this order. Execution of the warrant is further stayed to January 2, 2024 for respondent to vacate the premises. EED is set to January 3, 2024. This is without prejudice to any claims between the parties in a plenary proceeding. The parties may pick up their exhibits in Part O, but if it has not been done so within thirty (30) days from the date of this order, they will be discarded according to court directives. This constitutes the decision and order of the court.

Dated: September 13, 2023
Brooklyn, New York
Sergio Jimenez, JHC Footnotes

Footnote 1: At the time that Braschi was decided, New York State, along with most of the United States, was actively discriminating against the LGBTQ community by withholding the myriad of legal, financial and cultural protections embodied by marriage. While this proceeding does not deal with an LGBTQ relationship, the spirit of the court's decision embraces non-traditional relationships.