The issue in this nonpayment proceeding is whether Andres Diaz, respondents' (the record tenants') son, may assert a succession claim to obtain tenancy rights, despite his parents' failure to answer the petition or to appear on any court date. If Diaz has tenancy rights, the Department of Social Services (DSS) will pay his arrears; he has multiple sclerosis and is disabled. If he cannot claim succession, he might be evicted regardless of his colorably meritorious allegation that he co-occupied with his parents the subject rent-stabilized apartment for some 30 years.

After petitioner filed this proceeding against his parents, Diaz answered on their behalf. On April 8, 2008, the first court date, Diaz appeared while respondents did not, and the case was adjourned on consent to May 2, 2008. On May 2, Diaz appeared again on his parents' behalf. The court entered a default judgment of $7580.44 against respondents representing rent through May 2008 but denied enforcement as a money or possessory judgment against Diaz. Diaz is not the record tenant and is not named in the petition. He filed an order to show cause on June 17, 2008, after he received a Marshal's notice of eviction addressed to respondents; Diaz was afraid he would be evicted. On June 23, 2008, petitioner cross-moved to amend the court's judgment of May 2, 2008. Petitioner seeks to enforce the May 2008 judgment against respondents and all family members, including Diaz.

Diaz asserts that he is an authorized occupant of the apartment with succession rights because he is respondents' son. On May 2, 2008, at oral argument, Diaz alleged that his parents moved to the Dominican Republic, although the court does not know the exact date of their [*2]departure from New York. In support of its cross-motion, petitioner argued that Diaz falls under his parents' "penumbra" and should be evicted along with them and their possessions. Diaz submitted to the court a copy of his driver's license, birth certificate, and social security card as proof of his continuous residency in the apartment. He also submitted a notarized letter in Spanish, together with an English translation, from the Dominican Republic dated June 18, 2008. Respondents aver in that letter that they had lived in the apartment since 1975. In their letter they also purport to transfer control of the apartment to Diaz and grant him permission to appear in court on their behalf.

Diaz asserts that he has lived in the apartment since his birth in 1976 as a co-occupant with his parents. His parents emigrated to the Dominican Republic at some point before June 18, 2008, the date of the notarized letter. They left without notifying petitioner of their departure or paying their arrears, which equal $9162.40 through July 2008.

Standing is the right to bring a legal claim before a court. As the Court of Appeals has explained, "[s]tanding to sue is critical to the proper functioning of the judicial system. It is a threshold issue. If standing is denied, the pathway to the courthouse is blocked." (Saratoga County Chamber of Commerce, Inc. v Pataki, 100 NY2d 801, 812 [2003].) Standing is indispensable to litigation. Although he is not named on the apartment lease, Diaz cannot be removed by a warrant of dispossession. The court finds that he has standing to appear in this nonpayment proceeding and, given his colorably meritorious claim, adjourns for a hearing on whether he has succession rights to the subject premises.

An occupant named in a petition who expresses "a colorable claim to . . . succession rights . . . has standing to assert defenses to [a] nonpayment proceeding." (Rochdale Village, Inc. v Goode, 16 Misc 3d 49, 52 [App Term, 2d Dept, 2d & 11th Jud. Dists., 2007 mem] [holding that occupants may raise defenses they might have in nonpayment proceedings if they may claim a landlord-tenant relationship under RPAPL 711(2)].) RPAPL 711(2) provides that when a tenant defaults in rent payments and the landlord commences a proceeding to recover the arrears, a landlord-tenant relationship exists, and the tenant may not be evicted without the landlord's maintaining a summary proceeding. It also provides that a tenant is an "occupant of one or more rooms . . . who has been in possession for 30 consecutive days or longer."

Unnamed family members may be evicted in holdover proceedings. For example, "a tenant's child need not be made a party to a summary proceeding against the parent." (Washington v Palanzo, 192 Misc 2d 577, 581 [App Term, 2d Dept, 2d & 11th Jud. Dists., 2002 mem].) In Loira v Anagnastopolous (204 AD2d 608, 609 [2d Dept 1994 mem]), the court upheld the tenant's daughter's eviction even though she was not named in the holdover petition. Other courts have held, however, that in some circumstances, removing unnamed family members was "born of an era in which women's independent interests in real property went unrecognized, and which assumes . . . that it is the husband who is always the tenant." (Stanford Realty Assocs. v Rollins, 161 Misc 2d 754, 755 [Hous Part, Civ Ct, NY County 1994] [denying in holdover proceeding eviction of tenant's wife after 27-year residency because she might have [*3]independent possessory rights].) These courts "criticize as antiquated" evicting unnamed family members. (2 Robert F. Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 38:31, at 596 [4th ed. 1998].)

Petitioners in holdover proceedings need the ability to remove unnamed occupants who might not have the right to occupy the premises: The petitioner's goal in a holdover is to secure vacant possession. In nonpayment proceedings, the same need is absent: What a petitioner seeks in a nonpayment proceeding is for the rent to be paid. A person the record tenant authorizes to occupy an apartment has a relationship with the landlord, "justifying the [court's] entertainment of the suit." (Matter of G.N. Assocs. by Coombes v Griffen, 178 AD2d 747, 747 [3d Dept 1991 mem], quoting Dulberg v Ebenhart, 68 AD2d 323, 329 [1st Dept 1979].) RPAPL 749 provides that upon issuance of a final judgment for a petitioner, the court will issue a warrant to remove all persons and return the premises to the petitioner's possession. Although RPAPL 749 authorizes removing all persons from an apartment once a warrant issues in a summary proceeding, these persons may not be removed unless they have had a chance to defend themselves. (3 Robert F. Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 46:10 at 198 [4th ed. 1998] [noting that persons who have claims to apartment may not "lawfully be removed without being given their day in court or an opportunity to object to the proceedings"].)

The courts have ruled on whether occupants may be removed from an apartment if they were not named in the underlying nonpayment proceeding. In 523 West 138th Street Realty Co., Inc. v Castillo (NYLJ, Aug. 14, 1990, at 17, col 1 [App Term, 1st Dept per curiam]), for example, the court held that the record tenant's brother-in-law was not a necessary party to the proceeding and could be evicted. The petitioner in Castillo did not know about the brother-in-law's occupancy when it commenced the proceeding against the record tenant. Also, the brother-in-law made no claim of independent possessory rights to the apartment. The Appellate Term in Castillo allowed the petitioner to evict the record tenant's brother-in-law because the petitioner did not know about the occupant's residency in the apartment when it commenced its proceeding and because the brother-in-law did not claim independent possessory rights. Indeed, the brother-in-law in Castillo could not claim possession of the apartment. The Rent Stabilization Code provides that family members may claim succession rights to rent-stabilized housing if they can demonstrate co-occupancy with the record tenant. (Rent Stabilization Code [9 NYCRR] § 2520.6 [o] [1].) The Code specifies sons as qualifying family members who may claim succession to rent-stabilized apartments. (Id.) Brothers-in-law are not traditional family members and cannot claim independent possessory rights. Even though he is not the record tenant and has never paid rent to petitioner, Diaz's asserted long-term co-residency in the apartment with his parents entitles him to a hearing to determine his succession rights to the apartment.

Unnamed family members should be allowed to claim succession in a nonpayment proceeding just as they could in holdover proceedings. The Appellate Term, First Department, in Fourth Lenox Terrace Assn. v Wilson (15 Misc 3d 113, 114 [App Term, 1st Dept 2007 per curiam]), among many other cases, has held in a holdover proceeding that when an occupant-[*4]child has primarily resided in a rent-stabilized apartment leased to the record tenant-parent, a showing of simultaneous tenancy on a continual basis is sufficient to claim succession. The same showing of simultaneous tenancy should be sufficient to obtain succession rights in a nonpayment proceeding. To claim succession rights, it is necessary in holdover proceedings to establish continuous residency for two years. (E.g. Univ. Towers Assocs. v Mintz, 15 Misc 3d 130[A], 2007 NY Slip Op 50662[U], at *1, 2007 WL 987004, at *1, 2007 NY Misc Lexis 1630, at *1 [App Term, 2d & 11th Jud Dists, 2007 per curiam].) Evidence that Diaz resides in the apartment corroborates his claims of continuous occupancy. His birth certificate lists the subject apartment as his parent's domicile. The subject apartment is also listed as his primary residence on his New York State driver's license, issued on February 12, 2007. The alleged simultaneous tenancy of respondents and Diaz for over two years gives him standing in this proceeding and is sufficient for the court to hold a hearing on succession rights.

Diaz qualifies for financial assistance from DSS in paying the rent arrears and ongoing rent because he has multiple sclerosis. One of the purposes of the statutory rent-regulation system is to protect "long-term and disabled tenants from the hardships of eviction." (Matter of McMurray v NY St. Div. of Hous. & Community Renewal, 72 NY2d 1022, 1024 [1988 mem].) DSS assists disabled occupants who have been granted succession rights to pay their rent. In Martine Assocs. LLC v Minck (5 Misc 3d 61, 63 [App Term, 2d Dept, 2d & 11th Jud Dists, 2004 mem]), proof of DSS payments was a "colorable defense" to a proceeding, and the court denied enforcement of a default judgment against the tenant.

The Department of Housing and Community Renewal (DHCR) has a procedure for an occupant to obtain a lease. The record tenant is required to submit DHCR form RA-23.5, which notifies the landlord that a family member who resides with the record tenant might be entitled to succession rights. (See Dept of Hous. & Community Renewal, http://www.dhcr.state.ny.us/Forms/Rent/ra235.pdf [accessed July 30, 2008].) After this procedure exists, most occupants are unaware of it and do not file the paperwork. DSS cannot help Diaz without a lease in his name. Diaz is not at fault for petitioner's not naming him on the petition; petitioner did not name a "John or Jane Doe" in its petition.

Even though respondents left outstanding arrears and did not notify petitioner of their departure or apply to add Diaz as a tenant, Diaz should not be evicted before he has a chance to request help from DSS — a request he cannot make successfully if he has no recognized tenancy rights.

This court will not enforce a judgment to evict a disabled person who might have tenancy rights. After this court denied enforcement of the default judgment against him on May 2, 2008, petitioner could have filed a licensee holdover proceeding against Diaz. If it had done so, Diaz could have claimed succession, and the parties would have been entitled to a trial for the court to decide that question. Petitioner's decision not to bring a licensee holdover against Diaz should not stop him from asserting tenancy rights. This court will hold a hearing to determine whether he may succeed to the apartment. A decision on Diaz's order to show cause and petitioner's [*5]cross-motion requesting that the judgment be enforced against all parties is held in abeyance pending that hearing. The court adjourns to September 15, 2008, at 9:30 a.m. for a hearing on whether Diaz has succession rights to the subject premises.

This opinion is the court's decision and order.

Dated: August 1, 2008

J.H.C.