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Adelphi Associates LLC v. Toruno

Civil Court of City of New York, Kings

April 22, 2013

ADELPHI ASSOCIATES LLC, Petitioner,
v.
Jacqueline TORUNO et al., Respondent. No. 84314/12.

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Stern & Stern, Brooklyn, for Petitioner.

South Brooklyn Legal Services, Inc., Brooklyn, for Respondent.

GARY F. MARTON, J.

After a trial respondent moves for relief. The motion is addressed to the court's discretion. It is denied and all stays are vacated.

The Facts

The above-captioned is a holdover proceeding. The premises at issue is a rent-stabilized apartment. The notice of petition and petition were served by conspicuous place service on August 2 and August 3, 2012, and the return date of the proceeding was ten days later, i.e., on August 13, 2012.

RPAPL § 743 provides: " Except as provided in section 732, relating to a proceeding for nonpayment of rent, at the time when the petition is to be heard the respondent ... may answer, orally or in writing. If the answer is oral the substance thereof shall be recorded by the clerk or, if a particular court has no clerk, by the presiding judge or justice of such court, and maintained in the case record. If the notice of petition was served at least eight days before the time at which it was noticed to be heard and it so demands, the answer shall be made at least three days before the time the petition is noticed to be heard and, if in writing, it shall be served within such time * * * *."

The notice of petition includes such a demand, but respondent did not respond to the statutory command to answer either orally or in writing " at least three days before the time the petition [was] noticed to be heard." [1]

Petitioner alleges that respondent is not the tenant of record, that the tenant of record moved to Georgia, and that respondent's right, if any, to occupy the premises ended at that time. On the proceeding's return date of August 13, 2012 petitioner's counsel advised the court that he wanted to move for leave to take discovery because respondent had told him that she wanted to claim the apartment as a successor to the tenant of record.

The Rent Stabilization Code (" RSC" ) provides that a " family member" of a tenant of record who has surrendered possession of premises may succeed to the tenant of record's tenancy if the family member and the tenant maintained their primary residences at the premises contemporaneously during the two years immediately preceding the surrender. 9 NYCRR § 2523.5(b).

Upon the court's inquiry respondent stated that the tenant of record was her father. This statement, if true, would establish respondent's status as the requisite " family member." The court inquired further and respondent stated that her father had moved to Georgia. The court then asked for the date of this event. She asserted that her father had been " back and forth," that " he didn't officially move out," and that it was about " a year and a half ago" when " he decided he wanted to stay in Georgia." This last assertion, if true, would place her father's vacatur of the apartment in, roughly, February, 2011 and fix the requisite two-year period of co-residency as, roughly, March, 2009 through February, 2011.

Respondent also stated " We were still in the lease [i.e., presumably February, 2011] so I couldn't do anything about it until the lease was over."

Upon this discussion the court, to move the proceeding along, wrote an order that (a) adjourned the proceeding to September 10, 2012, (b) required respondent to serve and file a verified answer by August 23, 2012, and (c) noted that " Resp. expects to assert a defense of succession, and pet may move for leave to take discovery." The discussion ended with the court encouraging respondent to meet with either of the court's two pro se attorneys to discuss her ...


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