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LP v. Herbert

Other Lower Courts

January 4, 2008

85 Fourth Partners, LP, Petitioner-Landlord,
v.
Barbara Herbert, Respondent-Tenant, Loretta Mears, Respondent-Undertenant.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

OPINION

Joseph Capella, J.

This is a nonprimary residence holdover proceeding in which the respondent-undertenant, Loretta Mears ("Mears"), seeks to succeed to the subject rent stabilized apartment of the respondent-tenant, Barbara Herbert ("Herbert"), as a remaining nontraditional family member. ( Braschi v Stahl, 74 N.Y.2d 201 [1989]; 9 NYCRR 2523.5(b)(1).) To succeed, Mears must establish that she resided with Herbert in the subject apartment as her primary residence for two years before Herbert vacated, and that their relationship was characterized by the requisite emotional and financial commitment and interdependence. (Braschi v Stahl, 74 N.Y.2d 201, supra.) Having completed discovery, the petitioner now moves for summary judgment, (CPLR 3212), on the premise that Mears cannot establish the two-year cohabitation required for succession.

In determining succession based on nontraditional family member status, no single factor is solely determinative, and the court must look at the totality of the relationship, and take into consideration the longevity of the relationship, the level of emotional and financial commitment, the sense in which the individuals define themselves as a family unit, the manner in which the parties conducted their everyday lives, and the reliance placed upon one another for daily family services. (Braschi v Stahl, 74 N.Y.2d 201, supra; 2-4 Realty v Pittman, 137 Misc.2d 898 [Civil Court, NY County 1987].) The resolution of this issue is implicated when there are allegations that the undertenant concealed his/her occupancy and/or the tenant's vacatur was gradual. In 1999, the Court of Appeals was confronted with the issue of concealment in Evans v Franco (93 N.Y.2d 823). In Evans, the trial court found that the petitioner-undertenant was a bona fide family member entitled to succeed to the subsidized apartment of the deceased tenant. The Court of Appeals, however, found that given 13 unequivocal annual statements by the deceased tenant that she lived in the apartment alone, there was no basis to conclude that the undertenant was a family member or that a hearing was necessary to confirm same. In 2005, the Appellate Term, First Department, also visited the issue of concealment in the case of Riverton v Knibb (11 Misc.3d 14). The court found that the respondent-undertenant did not forfeit her succession rights otherwise firmly established by concealing her occupancy from the petitioner for a two-year period following her grandmother's death through the submission of renewal leases bearing her grandmother's forged signature. According to the Appellate Term, given the respondent's long term co-occupancy and the short-lived duration of the respondent's misrepresentations (emphasis added), any fraud or irregularities committed in the aftermath of the grandmother's death cannot reasonably be said to have caused the petitioner any discernable prejudice. [1]

There are at least two Appellate Term, First Department, decisions from 2006 which addressed situations in which the tenant's vacatur was gradual. In 360 West v Anvar (13 Misc.3d 7 [App Term, 1st Dept 2006]), the tenant and respondent-undertenant lived together in a "spousal-type" relationship for several years until they decided to separate in 2001. The tenant gradually relocated to California, but continued to spend several months a year at the subject apartment through 2004. According to the Appellate Term, although the tenant's presence and use of the subject apartment diminished substantially over the years, no reasonable view of the evidence can support a finding that the tenant permanently vacated before March 2004. And as the relationship between the respondent and tenant ended in 2001, the respondent did not meet the two-year cohabitation requirement for succession. In East 96th Street v Santos, (2006 NY Slip Op 51980(U) [App Term, 1st Dept 2006]), the respondent-undertenant contended that the tenant permanently vacated in June 1995. According to the Appellate Term, the evidence conclusively showed that the tenant thereafter retained substantial ties to the apartment. The tenant, who died in April 2004, continued to return to the apartment during vacations, spending roughly six months each year until at least March 2000. In addition, a series of renewal leases through November 2004 were submitted listing the tenant only, either executed by the tenant or bearing the tenant's forged signature. The Appellate Term concluded that the aforementioned facts do not permit a finding that the tenant permanently vacated prior to his death in 2004, and denied succession.

In 2007, the Appellate Term, First Department, in the case of South Pierre v Mankowitz, (17 Misc.3d 53), found that the respondent-undertenant engaged in a persistent and systematic pattern of deception in concealing his occupancy status from the petitioner for nearly 13 years following the tenant's death, by forging the tenant's name on no fewer than seven renewal leases and numerous rental payments. According to the court, the respondent offered no explanation as to why he would have engaged in the deceptive conduct if, as he claimed, the petitioner knew of the tenant's death. It then went on to hold that considering the severity and duration of the respondent's fraudulent conduct, the respondent waived any succession claim he might have had. In a subsequent case entitled 72A Realty v Kutno, (15 Misc.3d 100 [App Term, 1st Dept 2007]), the respondent-undertenant and tenant lived together in a spousal-type relationship during the mid-1980's, until they initially separated in December 1999. The tenant continued to maintain a nexus with the apartment until at least October 31, 2003, executing a renewal lease, paying rent and staying in the apartment on a sporadic basis. Based on the aforementioned, the Appellate Term held that the tenant permanently vacated in October 2003, and given the dissolution of the relationship some time between 1999 and 2001, the requisite cohabitation for succession was not met.

According to the respondents' deposition transcripts, Mears initially moved into the subject apartment in August 1986 as Herbert's subtenant. Some time between Autumn 1986 and early 1987, the two became lovers and began sharing expenses. As lovers, Herbert and Mears publicly held each other out as family members, attended plays, celebrated birthdays and graduations, as well as attended the funerals of each others' parents. Both women listed their names on the building mailbox, directory and storage facility. Mears paid for the cable and utility services, while the two shared the rent for use of the apartment and storage facility. In late 1989 or early 1990, the building manager denied the respondents' request to have Mears added to the lease. Between November 1989 and February 1990, the relationship between Herbert and Mears ceased to exist. In late 1991, Herbert moved in with another woman in Massachusetts, and has lived there ever since. According to Mears, since their breakup, the respondents have spent a week to ten days together at the subject premises on eight to ten separate occasions. And according to Herbert, since their breakup, she has returned to the subject premises an average of every six weeks, staying approximately one weekend per visit. In 1994, the respondents made a representation that Herbert still lived in the apartment, and in 2006, they represented that Herbert "recently" moved out.

According to the petitioner, given that the domestic relationship between Mears and Herbert ended in late 1989 or early 1990, and Herbert continued to maintain substantial ties to the apartment by executing renewal leases and paying the rent in her name only, the requisite cohabitation requirement for succession cannot be met. Although they concede that Herbert executed renewal leases and paid rent in her name only, the respondents allege that Mears' occupancy was not concealed, and the petitioner long knew of Herbert's absence from the apartment. They also allege that they were afraid of asserting a succession claim any time sooner in order to avoid jeopardizing Mears' occupancy. Viewing the evidence in a light most favorable to the respondents, ( O'Sullivan v Presbyterian, 217 A.D.2d 98 [1st Dept 1995]), the court will assume that a nontraditional relationship did in fact exist, that Mears' occupancy was not concealed, and that it was not the respondents' intention to perpetrate a fraud. Even so, unlike Riverton, (11 Misc.3d 14, supra), this is not a case involving a long term co-occupancy, and the instant irregularity or misrepresentation was not short-lived, but spanned over 16 years. As already noted, in 1994, the respondents represented that Herbert still lived in the apartment, and in 2006, they represented that Herbert "recently" moved out. Given the appellate authority previously discussed, this court is compelled to find that Herbert's continued execution of renewal leases, payment of rent in her name only and sporadic stays at the apartment demonstrate that she continued to maintain substantial ties to the apartment for over 16 years after her alleged vacate date. (360 West v Anvar [13 Misc.3d 7, supra]; 72A Realty v Kutno, [15 Misc.3d 100, supra].) Moreover, Herbert's ongoing substantial ties further demonstrate that she permanently vacated many years after her relationship with Mears ended, eliminating any succession claim Mears may have had.

Based on the aforementioned, the petitioner's motion for summary judgment is granted, and the petitioner is awarded a judgment of possession and warrant forthwith. Execution of the warrant is stayed through and including March 31, 2008, subject to the respondents paying ongoing use and occupancy. This constitutes the decision and order ...


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