Consolidated appeal from (1) a final judgment of the Civil Court of the City of New York, Kings County (Thomas M. Fitzpatrick, J.), entered November 29, 2006, and (2) an order of said court dated October 4, 2007. The final judgment, after a nonjury trial, awarded landlord possession in a summary proceeding brought pursuant to RPAPL 713 (7). The order denied a motion by occupant Erika Fischer to set aside the final judgment and dismiss the petition.

Final judgment and order affirmed without costs.

On this consolidated appeal in an RPAPL 713 (7) licensee proceeding, Erika Fischer (occupant) seeks reversal of a final judgment of possession awarded to landlord by the Civil Court, which rejected her claim of succession rights to the subject apartment. Occupant also seeks reversal of an order denying her motion to set aside the final judgment and dismiss the petition.

On June 18, 2006, Margit Raab (Raab), the tenant of record of the subject premises and a recipient of Section 8 assistance, died. Four days earlier, occupant, her daughter, had appeared at the New York City Housing Authority's office and sought to be added to the Section 8 household. On July 13, 2006, occupant filed a succession-rights complaint with the Division of Housing and Community Renewal (DHCR). Following notification of the death of Raab, landlord commenced this proceeding to remove occupant as a licensee whose right to possession [*2]had terminated with the passing of the tenant.

No formal answer to the petition was filed. However, the Civil Court permitted occupant to interpose the statutory claim of succession rights (see New York City Rent and Eviction Regulations [9 NYCRR] § 2204.6)^[FN1].

Section 2204.6 (d) of the New York City Rent and Eviction Regulations
(formerly New York City Rent and Eviction Regulations § 56 [d]) provides that upon the death of a rent-controlled tenant, the landlord may not dispossess either the surviving spouse of the deceased tenant or some other member of the deceased tenant's family, as defined therein, who has been residing with the tenant:

"Unless otherwise prohibited by occupancy restrictions based upon income limitations pursuant to federal, state or local law, regulations or other requirements of governmental agencies . . . any member of the tenant's family. . . shall not be evicted under this section 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 (2) years . . . immediately prior to the permanent vacating of the housing accommodation by the tenant. . . ."

At trial, landlord established, inter alia, that Raab's Section 8 income affidavits for 2003, 2004 and 2005 listed Raab as the only person residing in the apartment. For her part, occupant claimed that she moved in with her mother in 2000. However, she presented little documentary evidence to establish her residency at the subject apartment. Occupant presented a bank statement dated November 2005, a Verizon bill from 2006, and a letter addressed to her from the Social Security Administration, dated August 29, 2006. Occupant did not present any tax returns, records from the Department of Motor Vehicles, school transcripts, cellular phone accounts, credit card statements or any other bills to reflect a presence at the subject apartment at least two years before her mother's passing.

The trial court held that occupant had presented insufficient evidence to establish her residency within the apartment for the required time frame and awarded landlord a final judgment possession.

After the entry of the final judgment, a DHCR rent administrator ruled upon occupant's unopposed complaint, finding that occupant was entitled to succession rights and directing landlord to issue a rent-stabilized renewal lease to her. The rent administrator's determination was subsequently upheld upon administrative review. Occupant then moved, with the assistance of counsel, to vacate the final judgment and warrant, alleging that the DHCR determination constituted newly discovered evidence. By order dated October 4, 2007, the Civil Court denied the motion.

By order dated May 22, 2008, this court granted a motion by landlord to supplement the record on appeal to include an April 15, 2008 order of a DHCR deputy commissioner. The April [*3]15, 2008 order, issued following a remand from the Supreme Court in an article 78 proceeding brought by landlord, vacated the prior DHCR orders, based on a finding that DHCR had not been advised of the Civil Court judgment, and determined that occupant was not entitled to succession rights.

At the outset, we note that even if, as occupant contends, the Civil Court was alerted to the pendency of the DHCR proceeding, it was not an improvident exercise of discretion for the court, which has concurrent jurisdiction with DHCR over succession rights claims (Cox v J.D. Realty Assoc., 217 AD2d 179 [1995]), to allow this proceeding to go forward (see UM Realty, L.L.C. v Myers, 2002 NY Slip Op 50704[U] [App Term, 9th & 10th Jud Dists 2002]).

The burden of presenting legally sufficient proof to establish contemporaneous residency with the tenant rests with the party claiming succession rights (see Gottlieb v Licursi, 191 AD2d 256 [1993]). The traditional indicia of primary residence, including driver's license, voter's registration, tax returns, telephone and bank records, would be competent evidence to establish a period of residency. On this record, there is clearly a lack of evidence to support occupant's claim that the subject apartment was her primary residence at least two years prior to her mother's death.

Moreover, the lower court was within its authority to reject occupant's uncorroborated claim of residency. In the context of a nonjury trial, a trial court's fact-finding should not be disturbed on appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]; Matter of Poggemeyer, 87 AD2d 822 [1982]).

Finally, since the initial DHCR order in occupant's favor has now been vacated, there is no basis to disturb the Civil Court's order dated October 4, 2007, which denied occupant's motion to set aside the final judgment and to dismiss the petition based on that DHCR order.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: December 03, 2008