April 22, 2013
ADELPHI ASSOCIATES LLC, Petitioner,
Jacqueline TORUNO et al., Respondent. No. 84314/12.
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 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." 
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 situation; the court also advised respondent that these pro se lawyers were in room 404 on the fourth floor of the courthouse .
Respondent did not comply with the order, i.e., she did not interpose an answer by August 23, 2012 or thereafter.
On the return date of September 10, 2012 the parties entered into a stipulation that (a) adjourned the proceeding to October 15, 2012, (b) extended respondent's time to serve an answer until September 20, 2012, (c) required respondent to supply certain documents to petitioner by September 28, 2012, and (d) provided that " [i]f after reviewing respondent's documents and written Answer, Petitioner determines there is a further need for more discovery including additional documents and EBTs, Petitioner may move for same."
The documents that respondent agreed to provide were " copies of her birth certificate, school records between Jan 2008 and Mar 2010, tax returns between Jan 2008-Mar 2010 for Respondent and Juan Toruno, Respondent's birth certificate, bank records credit card statements for Juan Toruno and Respondent for Jan 2008-Mar 2010, any deed to Juan Toruno's house in Georgia and any other deeds/leases of Juan Toruno and respondent; state Ids/Drivers licenses of Juan Toruno and respondent between Jan 2008 and Mar 2010," 
Respondent did not comply with this stipulation, i.e., she did not serve an answer by September 20, 2012 or thereafter, and she did not supply the documents to petitioner by September 28, 2012 or thereafter. Petitioner did not move for leave to take discovery.
On the October 15, 2012 return date the court transferred the proceeding to a trial assignment part. On the transfer order the court wrote " Resp. has not complied w/ decision/order dated 8/23/12 to interpose an answer, and she has not served an answer in conformity with the stipulation dated 9/10/12. So she has not properly raised an affirmative defense of succession."
The proceeding, not reached for trial that day, was adjourned to November 7, 2012. On that date the trial was held and the court (Scheckowitz, J.) treated respondent as having interposed a general denial. The trial court found that petitioner had proved its prima facie case and that respondent had not proved a defense. The court granted petitioner a judgment of possession and authorized the issuance of a warrant with its execution stayed through April 30, 2013 as allowed by RPAPL § 753. The trial court wrote " As noted in detail on the record, this court is bound by the decision and order of Judge Marton dated 10/15/12, whereby the resolution part found respondent did not interpose an answer & did not serve an answer and therefore has not properly raised an affirmative defense of succession.' Respondent's answer was therefore deemed a general denial."
Respondent moves for relief now on the ground that she had a statutory right to answer orally but that the court deprived her of the same by requiring that she set forth an answer in writing. The court disagrees; it is respondent who did not avail herself of the opportunity set out in RPAPL § 743 to answer orally " at least three days before the time the petition is noticed to be heard."
Respondent characterizes the relief that she seeks as leave to reargue the orders of the court dated August 13, 2012 and October 15, 2012 and to vacate the trial court's decision and order made on November 7, 2012 after trial. This characterization is too narrow, however, as it leaves extant the stipulation she made on September 10, 2012. If not relieved therefrom, she defaulted thereon by failing to serve by a deadline now expired a written answer and copies of documents.
Regardless of whether respondent's motion is deemed one simply for leave to reargue and for post-trial relief, or whether it is deemed one for leave to reargue, and to vacate a stipulation, and for post-trial relief, it is evident that the motion is addressed to the court's discretion. See, CPLR 2221, 4404.
Respondent asserts that she has a right to succeed to possession of the premises because she has lived there all of her life and her father moved out in March, 2007 . However, as described above, she represented to the court on August 13, 2012 that he had moved out in or about February, 2011. Respondent does not address much less offer an explanation for these inconsistent representations. She does not include as exhibits to her moving papers copies of any documents-e.g., bank records, school records, credit card statements, driver's license-that might place her at the premises at any pertinent time, and she does not offer an explanation for not including such exhibits. Neither does respondent offer copies of any documents, such as a deed or a lease, that might be probative of her father's move to Georgia in 2007 or 2011 (or any other time) and she does not offer an explanation for not offering the same.
Respondent avers that after her father moved out " [i]nitially, I paid rent by money order but shortly thereafter began paying rent from a bank account that was only in my name."  Yet, as noted above, she does not annex copies of checks allegedly written on that account or copies of any other bank records, and she does not explain her failure to do so. Moreover, it is evident that not " shortly thereafter," but as much as two years later she was still paying rent at least some of the time by money order . In a nonpayment proceeding in this court that petitioner brought against Juan Toruno under index number 67120/09 to recover rent accruing since January, 2009, respondent appeared and, in a stipulation of settlement that was " so ordered" on August 5, 2009, agreed to trace three money orders that she alleged had been tendered for payment of rent .
Respondent asserts now that in 2008 and 2009 she alerted petitioner to her father's vacatur of the premises in March, 2007, thereby implying that petitioner had accepted a surrender from her father and had agreed to substitute her for her father as the tenant of record. Yet in a stipulation of settlement " so ordered" on January 29, 2009 in a nonpayment proceeding under index number 52537/09 that petitioner brought against Juan Toruno alone, respondent signed as follows: " Jacqueline Toruno with full authority for Juan Toruno, her father." In another nonpayment proceeding that petitioner brought against Juan Toruno alone under index number 66467/10, respondent stipulated in a settlement " so ordered" on May 4, 2010 that " Jacqueline Toruno is hereby added to proceeding [sic] as she is the adult daughter of Juan Toruno and is a[sic] occupant of the subject premises." And in a stipulation of settlement " so ordered" on December 1, 2010 in another nonpayment proceeding against Juan Toruno under index number 100029/10 respondent signed as follows: " Jacqueline Toruno appears and represents she is authorized to settle this matter on her father's behalf." Had petitioner accepted a surrender from Juan Toruno and agreed to substitute respondent as the tenant of record, the foregoing representations would have been both unnecessary and wrong.
Juan Toruno may have vacated the premises in 2007 or in 2011 or at some other time. However, other than respondent's self-serving and conflicting representations, there is nothing before the court that might be probative of a vacatur on any date. Moreover, simply vacating the premises does not constitute a surrender sufficient to vest an otherwise qualified occupant with a right to succeed to possession. Cf, Extell 609 West 137 St. LLC v. Santana, 2008 N.Y. Slip Op 52289(U) (Civ Ct, N.Y. Co, 2008), aff'd on op below, 2009 N.Y. Slip Op 51702(U) (App Term, 1st Dep't, 2009); St Owner LP v. Nee-Chan, 2007 N.Y. Slip Op 51547(U) (Civ Ct, N.Y. Co,).
Courts prefer to decide cases on their merits. Here respondent makes no showing of merit to her claims that her father surrendered possession and that they both resided at the premises for the requisite period of time. Respondent contends that she was deprived of her right to answer orally but, as discussed above, she let her time to do so lapse, and, more importantly perhaps, she makes no showing of having been prejudiced thereby. The court declines to grant the requested relief and denies her motion.
The court will alert the parties by telephone that copies of this decision and order may be picked up in the courtroom.