UHAB HDFC v Sylvester |
2015 NY Slip Op 50650(U) [47 Misc 3d 1217(A)] |
Decided on April 27, 2015 |
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This opinion is uncorrected and will not be published in the printed Official Reports. |
UHAB HDFC,
Petitioner-Landlord
against Gary Sylvester 520 West 144th Street, Apt. 4 New York, NY 10031, Respondent-Occupant "JOHN DOE" and "JANE DOE" Respondents-Undertenants |
BACKGROUND
This summary holdover proceeding was commenced by UHAB HDFC (Petitioner) [*2]against GARY SYLVESTER (Respondent) seeking to recover possession of 520 West 144th Street, Apt. 4, New York, NY 10031(Subject Premises) based on the allegation that Respondent entered possession of the Subject Premises as the licensee of Eloise Slyvester (Tenant), the last rent-stabilized tenant of record, that Respondent's license has expired or been revoked, and that Respondent is no longer entitled to remain in possession of the Subject Premises.
PROCEDURAL HISTORYRespondent filed an answer on October 23, 2014, asserting eight affirmative defenses, including improper service, succession, failure to join a necessary party, waiver, acceptance of rent after the termination, lack of standing and failure to serve a Golub Notice.
On March 19, 2015, the proceeding was assigned to Part L for trial and the trial commenced. The trial continued on March 24, and concluded on March 30, 2015. The proceeding was adjourned to April 24, 2015, for the submission of post trial memoranda and on April 24, 2015, the parties submitted memoranda and the court reserved decision.
FINDINGS OF FACTThe parties stipulated to Petitioner's prima facie case, and agreed that the only issue for the court to determine at trial was Respondent's succession claim.
Petitioner is the owner of the subject building pursuant to a deed dated November 30, 2005 (Ex 1). There is a valid MDR for the building for a period through and including September 1, 2015 (Ex 2).
Tenant was the last tenant of record for the Subject Premises. Tenant lived in the Subject premises since the 1940s . Respondent is her grandson (Ex B).
When Tenant was 85, presumably in 2006, she filled out a "Tenant Income Survey Form" wherein she listed herself as head of household and also listed Respondent, age 9, as an occasional resident in the Summer and for long holidays (Ex 8). Other surveys were also submitted into evidence. One dated February 11, 2009, lists only Tenant as a household member, as does a survey dated January 3, 2013 (Ex 8). Another survey dated February 5, 2008, lists Tenant's three grandchildren as regular occupants (Ex 8).
Tenant executed a temporary relocation agreement on February 11, 2013, which again lists only herself as a member of her household (Exs 3 & 9). Pursuant to said agreement Tenant was relocated temporarily to apartment 22 in the subject building. The move took place on July 22, 2013 (Ex 6).
Tenant died May 7, 2014 at the age of 93 (Ex C). Tenant died before moving back to the Subject Premises.
On July 27, 2014, Respondent was moved from Apartment 22 to the Subject Premises by Petitioner (Ex 5). This move was without prejudice to Petitioner's claim that Respondent was not entitled to occupy the Subject Premises (Ex 7).
Carla Wilkins (Wilkins) lives on the sixth floor in the subject building and testified on behalf of Respondent. Wilkins knows Respondent because they grew up in the same building. Wilkins is 37 years old and has known Respondent her whole life. Wilikns testified that Respondent lives in the Subject Premises and that he has always lived there. Wilkins knew [*3]Tenant and knew that tenant and Respondent lived together in the Subject Premises prior to Tenant's death.
The next witness called by Respondent was Arthur E Jefferson (AJ) who lives at 533 West 144th Street. AJ has known Respondent since Respondent was a child. AJ knows Respondent's whole family and knows that Respondent has lived in the area for a long time. AJ testified that Respondent moved into the Subject Premises with Tenant a long time ago. AJ used to see Tenant in the pharmacy. AJ is 66 years old and knew Tenant for 47 years. AJ testified that Respondent lived with Tenant prior to Tenant's death. AJ is related to Respondent by marriage. AJ is married to Respondent's aunt, his wife and Respondent's mother are sisters. AJ and Respondent have a close relationship.
Vladmir Estevez (Estevez) testified next. Estevez has lived in 521 West 144th Street for thirty-two years, directly across the street from the Subject Building. Estevez testified Respondent lived with Tenant prior to Tenant's death.
Victor Thomas (Thomas) also testified. Thomas lives at 530 West 144th Street and knows Respondent and his family from living in the neighborhood. Thomas has known Respondent for over ten years, and knew him to be living with Tenant in the Subject Premises. Thomas testified Respondent has lived in the Subject Premises for somewhere between eight to ten years prior to Tenant's death. Thomas always saw Respondent at the Subject Premises when visiting Tenant.
Respondent also testified on his own behalf. Respondent lived in apartment 64 in the subject building with his parents as a young child. After apartment 64, Respondent and his parents moved to apartment 1. Later Respondent's parents moved out of the building, and Respondent moved into the Subject Premises and lived with Tenant. The Subject Premises is a three bedroom apartment. Respondent attended PS 153. Respondent's parents are both deceased, his mother was Linda Sylvester, and died in January 2013. Respondent's father, Gary Sylvester was murdered in 1985 (Ex B). Respondent has two sisters.
Tenant is the mother of Respondent's father and was married to Benjamin Sylvester.
Respondent lived with Tenant while he was in junior high school and through high school. Respondent graduated high school in 1988, and in 1989 Respondent went to Junior College in Glendale California, and then went to John Jay College of Criminal Justice.
Respondent has a BMW he has owned since July 2014. Respondent had another car that was in his name before the BMW, but it wasn't his car, it belonged to someone Respondent was in a relationship with. Since she had bad credit, Respondent helped her purchase the car and let her put it in his name. This woman is the mother of one of Respondent's children. The car was purchased in 2007, at the beginning of their relationship, and was registered to Respondent at 406 Old Country Road, which is his god father's home.
Respondent is registered to vote and his polling place is on 141st Street between Convent and Manhattan Avenues. Respondent registered to vote from the Subject Premises when he first got his license at eighteen years old.
Respondent has three children aged 22, 17 and 9. Respondent shares custody of his 17 year old son Gary with Gary's mother. The 22 year old has lived in South Carolina for the last 15 years, and the nine year old lives in Coop City in the Bronx. Respondent does not have custody of the nine year old, but the nine year old regularly visits him on weekends in the Subject Premises.
Respondent works for ACS, he is a Sergeant at the Department of Juvenile Justice, and [*4]has worked for the Department of Juvenile Justice for18 years. Respondent works from five pm to one am. Respondent's current work location is 17 Bristol Street, Brooklyn, New York. Respondent has been working at this location for approximately one year. Respondent has consistently worked double shifts approximately four times per week, for the past fourteen years.
Respondent was promoted in 2013, before that Respondent worked at night at the Children's Center at 28th Street and First Avenue on a shift that ran from midnight to 8 am. When Respondent first came back from Junior College in the early 1990s he got a job with Dept of Juvenile Justice working in Coop City.
Respondent has a bank account, but no credit cards.
Respondent has six nephews. Respondent listed two "nephews" on his 2012 tax returns, who have never lived with him and who he is not currently in contact with. They live at 1833 Amsterdam Avenue. Though Respondent considers them to be "nephews" they are not actually related.
Kevin Whitfield (KW) testified for Respondent. KW has lived in apartment 21 in the Subject Building since 1989, and knows Respondent. KW has been President of the Tenants' Association for the past ten years, and knows most of the tenant's in the building. KW knew Tenant and testified that Respondent and Tenant lived together in the Subject Premises for many years prior to tenant's death. KW does not recall any period where Respondent did not live with tenant. The building is in the process of becoming a coop, and KWh is involved in the transition. There are 30 units in the building, 25 of which are members of the Tenants Association.
Petitioner called Alex Pressley (Pressley) as a rebuttal witness. Pressley has been employed by Petitioner since 2010, and is a construction consultant for the West 144th Street project, which includes the three buildings located at 520, 540 and 550 West 144th Street. Pressley acts as Petitioner's representative during construction and coordinates activities between architects and contractors. Pressley also monitors the progress of the construction.
Pressley oversaw construction in the subject building and is familiar with the Subject Premises. Pressley has been inside the Subject Premises to monitor the progress of the construction. The Subject Premises was one of fifteen units in the building that underwent construction at the same time.
Antonio Ramirez (Ramirez), lives at 550 West 144th Street, and testified for Petitioner. Ramirez is the Super for the three buildings included in the 144th Street project. Ramirez has been the Super since November 2003. Ramirez knew Tenant but could not recall her name. Ramirez was in the Subject Premises, in 2012 or 2013, to make repairs to the bathroom ceiling. Ramirez also repaired the kitchen faucet during the same period.
Prior to Tenant moving to apartment twenty-two for the temporary relocation, Ramirez went to the Subject Premises to disassemble a book case. Ramirez also helped Tenant move light fixtures and lamps. Ramirez only saw Tenant in the Subject Premises when he made repairs in 2012 and 2013. When Tenant relocated, another woman was helping Tenant pack and was in the Subject Premises. Ramirez testified he never saw anyone else living in the Subject Premises other then Tenant. More recently Ramirez has seen Respondent in the building. Ramirez believes the earliest he saw Respondent in the building was in 2013.
The court did not find the testimony of Ramirez to be reliable. Ramirez appeared to be testifying based on hearsay information, rather than first had knowledge, and based on his general practices, regarding obtaining Tenant's signatures rather than a specific recollection of [*5]incidents with Tenant. Ramirez could not recall whether he witnessed Tenant sign the relocation document.
Johanny Araujo (Araujo) lives in apartment 54 in the Subject Building and testified for Petitioner. Araujo has lived in apartment 54 since June 2014, prior to that Araujo lived in Apartment 52 for seventeen years. Araujo testified she has never seen Respondent, but knew Tenant as the tenant of record for the Subject Premises. Araujo knew Tenant from Tenant Association meetings and used to see Tenant sitting by the window in the Subject Premises. Araujo contradicted herself in her testimony and did not have much interaction with Tenant or knowledge of who was living in the Subject Premises. The court does not give the testimony of Araujo great weight for these reasons.
Hilda Garcia (Garcia) testified next. Garcia has lived in apartment 35 in the Subject Building since 1991. Garcia testified that she knew the woman, Garcia did notv reference Tenant by name, who lived in the Subject Premises and on two or three occasions many years ago she had seen that woman in the Subject Premises, and on those visits, Garcia saw no one else in the Subject Premises. Garcia testified that she rarely saw Respondent, and that she first started seeing Respondent after the summer of 2014, when Garcia believes that Respondent moved into the Subject Premises.
Milagros Blanco (Blanco) has lived in apartment 5 in the Subject Building for thirty-nine years. Blanco's apartment is very close to the Subject Premises. Blanco saw Tenant walking on the street with a walker once or twice a week. Whenever Blanco saw Tenant on the street, Tenant was alone. Blanco saw Respondent a few times during the summers tapping on the window of the Subject Premises to say hello to Tenant. Blanco testified that she did not see Respondent around the building or entering or exiting the Subject Premises prior to tenant's death.
Herlin Gonzalez (Gonzalez) testified, he has been the site manager for the Subject Building for a little over four years. Gonzalez was unaware of Respondent living in the building prior to Tenant's death. Gonzalez testified that Respondent did not have most of the items in apartment 22 moved back to the Subject Premises, but directed that a large portion be discarded.
Milagros Gerena-Rochet (MGR) has been employed as a relocation specialist by Petitioner for eleven years. MGR temporarily relocates tenants during the course of construction, and holds meetings where relocation procedures are explained to the tenants. MGR did so for this building. Through the testimony of MGR, Petitioner entered documents into evidence from the meetings. MGR only recalls seeing Respondent at one meeting, she does not recall if this was before or after Tenant's death.
Respondent took the stand again on rebuttal. Respondent testified that writing on Exhibit 9 did not belong to Tenant and that Tenant had a unique signature.
DISCUSSION
Pursuant to §2523.5(b)(1), once a tenant of record permanently vacates, a family member who has "... resided with the tenant in the housing accommodation as a primary residence for a period of no less then two (2) years ... shall be entitled to be named as a tenant on the renewal lease."
Here it is undisputed that Tenant was the Tenant of record and primarily resided in the Subject Premises through and including the date of her death on May 7, 2014. It is also established that Respondent is Tenant's grandson and thus within the category of family [*6]members entitled to succession upon proof of primary residence with Tenant from April 2012 through April 2014.
Therefore the only remaining question of fact on Respondent's succession claim is whether he maintained the Subject Premises as his primary residence for this period. From July 2013 through April 2014, Tenant was living in apartment 22 rather then the Subject Premises, pursuant to the relocation agreement, but for purposes of determining Respondent's succession claim the court will deem residency of apartment 22 during the relocation period to be the same as residency in the Subject Premises. Gottlieb v Licursi 191 AD2d 256). The court found Respondent to be a very credible witness and credits his testimony regarding his residence with his grandmother for the two years prior to her death.
In addition to Respondent's credible testimony regarding his residence, documents which show the Subject Premises as Respondent's address for this period include: his bank account with Municipal Credit Union [Exs M(1-6) and I(1-5)] which were sent to the Subject Premises for the years 2012 through 2014; and his tax documents which show Respondent used the Subject Premises for tax purposes pursuant to W-2s issued for the years 2012 and 2013 (Exs J & G), 2012 and 2013 tax returns (Exs K & H), and correspondence with the IRS [Exs L(1-4) and P]; and a joint Chase Bank Account with Tenant for which statements were submitted for April 2011 (Ex F-1) and January 2014 (F-2); and a variety of other correspondence during the relevant period including a hospital bill from February 2014 (Ex N-2), insurance proceeds from February 2014 (Ex R), correspondence regarding his son from September 2013 (Ex N-1), and a doctor's bill from September 2013 (Ex 0-1).
The testimony of the witnesses offered by Petitioner on rebuttal was insufficient to overcome the preponderance of credible evidence submitted by Respondent of his residency during the relevant period.
CONCLUSION
Based on the foregoing, the court finds that Respondent is entitled to succeed to his grandmother's tenancy, and the petition herein is dismissed.
This constitutes the decision and order of the Court.[FN1]
Dated: New York, New York
April 27, 2015