Appeal from an order of the Civil Court of the City of New York, Kings County (George Michael Heymann, J.), dated October 23, 2007, deemed from the final judgment of the same court entered October 23, 2007 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 ). The final judgment, entered pursuant to the order granting landlord's motion for summary judgment and denying Keir Walker's cross motion to dismiss, awarded landlord possession in a summary proceeding brought pursuant to RPAPL 713 (7) (see 17 Misc 3d 1118[A], 2007 NY Slip Op 52053[U] ).
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.
PRESENT: WESTON PATTERSON, J.P., RIOS and STEINHARDT, JJ.
Final judgment affirmed without costs.
In this licensee summary proceeding (RPAPL 713 ) filed on or about October 3, 2006, landlord contends that appellant Keir Walker is a licensee of the deceased tenant of record, Cynthia Reed, and that appellant's right to occupy the subject premises terminated upon Reed's death. In opposition, appellant asserts that he is the eldest son of Cynthia Reed and entitled to succeed to her rent-stabilized tenancy by virtue of his contemporaneous co-occupancy of the apartment for the requisite statutory period, prior to her death on April 25, 2006 (see Rent Stabilization Code [9 NYCRR] § 2523.5 [b] ).
Prior to landlord's initiation of the subject licensee proceeding, appellant, on August 7, 2006, filed a complaint with the Division of Housing and Community Renewal (DHCR) alleging entitlement to a renewal lease in his own name. Appellant's complaint was denied by DHCR by order dated December 20, 2006, which, in relevant part, stated:
"After consideration of all the evidence in the record, the Rent Administrator finds that:
On August 7, 2006, the complainant, Keir Walker, filed a lease violation complaint, alleging that after the death of his mother, Cynthia Walker, on April 25, 2006, the owner refused to recognize his succession rights to the subject apartment.
On September 8, 2006, a copy of the tenant's complaint was served on the owner. In response, the owner stated that the complainant has not submitted any proof to support his claim of succession rights to the subject apartment.
On November 9, 2006, a copy of the owner's response was forwarded to the tenant and the complainant was requested to submit additional information and documentation to establish succession rights to the subject apartment. To date, the complainant failed to respond. Based on the above, the Rent Administrator determines that the complainant, Keir Walker, has not been able to provide sufficient proof to establish his succession rights for the subject apartment in accordance with the provisions of Section 2523.5 (b) (1) of the Rent Stabilization Code. Therefore, Keir Walker is not entitled to a renewal lease for the subject apartment.
Therefore, it is ordered that the relief requested is denied, and/or this proceeding is terminated."
After DHCR issued its determination, landlord moved for summary judgment. In support of its application for summary judgment, landlord argued that appellant was barred by collateral estoppel and res judicata from raising a defense to the licensee proceeding premised upon succession rights.
Appellant opposed landlord's motion, contending that he had not received any requests from DHCR relative to his complaint. In support of his right of succession, appellant submitted various documents, including copies of his federal tax returns for the period of 2003 through 2005, demonstrating his claimed residence at the subject premises for more than two years prior to the death of Cynthia Reed.
The Civil Court found that appellant was precluded by the DHCR determination from raising his succession rights claim as a defense to the licensee proceeding, denied the cross motion to dismiss and granted landlord's motion for summary ...