Civil Court of the City of New York, Bronx County
Horing, Welikson & Rosen, P.C. 11 Hillside Avenue Willinston Park, New York 11596 Legal Services NYC-Bronx
Javier E. Vargas, J.
Upon the foregoing papers and for the following reasons, the motion by Respondent-Licensee Marguerite González ("González"), for, inter alia, summary judgment on her succession claim, is granted; and the cross motion by Petitioner-Landlord Hazel Towers Company, L.P. ("Landlord"), for discovery and other relief, is denied as moot.
By Notice of Petition and Petition filed May 2, 2013, Landlord commenced the instant licensee holdover proceeding against Ms. González to recover possession of premises known as 1740 Mulford Avenue, Apartment 6F, in the Bronx, New York, based on the fact that she no longer had a license or right to occupy the premises because the tenant-of-record, Paul Constantino, had passed away on February 21, 2013, and the rent-stabilized lease governing the premises had expired on March 31, 2013. Although the premises are subject to the Rent Stabilization Laws, Landlord alleged the González was unprotected by those laws as merely a licensee without legal right to the apartment. Prior thereto, on April 5, 2013, Landlord had served upon González a ten-day Notice to Quit by April 17, 2013, stating that her continuance at the premises was unlawful, without the Landlord's permission, and revoking any prior license given to her.
After several adjournments and González's obtaining counsel, Bronx Legal Services of New York, this Court issued an order dated August 7, 2013, setting a briefing schedule and ordering González to pay ongoing and past use and occupancy ("U & O") owed since May to August 2013 in the total amount of $3, 103.08 by August 31, 2013. By Answer dated September 6, 2013, González denied most of the Petition's allegations and raised as an affirmative defense that she was entitled to succession rights to the apartment, pursuant to Rent Stabilization Code (9 NYCRR) §§ 2520.6(o) and 2523.5(b)(1), as the deceased tenant-of-record's nontraditional domestic partner, who resided with him for at least one year preceding his death.
By Notice of Motion returnable September 30, 2013, González moves for summary judgment in her favor, pursuant to CPLR 3212, arguing that she is entitled to succession rights to the apartment as Constantino's domestic partner because she shared an emotionally and financially committed and interdependent relationship, and has resided with him for over ten years prior to his untimely passing from cancer. Only one year is necessary pursuant to Rent Stabilization Code § 2523.5(b)(1), because, according to González, she is a disabled person suffering from Multiple Sclerosis, wheelchair bound and with severe limited motor functions, who subsists on a fixed, meager income from Social Security Disability. In her Affidavit, González affirms, among other things, that she had a long-term and loving relationship with Constantino since 1987 spanning over 25 years, ten of which they lived together at the subject premises; that her three daughters considered him to be like a father to them and sent him birthday and Father's Day cards; that they would go together to concerts, baseball games, vacations and other family, school and friends' activities; that Constantino permitted her to use his debit card and paid the rent and electric bills, while she paid for the phone and cable bills; and that she cared for and assisted Constantino during his two-year battle with cancer.
In support of her Motion, González submits: (1) her HSBC bank statements from May 21, 2010 and February 22, 2013 showing her address at the subject premises; (2) certified copies of correspondence and documents from the NYC Human Resources Administration, regarding her public assistance benefits, addressed to her at the premises dated December 2011, July and October 2012 and August and September 2013; (3) correspondence to her at the premises dealing with her benefits from the Social Security Administration dated September 2011 and September 2013; (4) correspondence to her at the premises from Montefiore Medical Center dated August 2012; (5) letter from the U.S. Department of Education regarding her student loans addressed to her there on October 4, 2012; (6) several photos depicting González and Constantino in family functions, a high school graduation, outings with mutual friends and vacations; (7) an Access-a-Ride application with her address there dated July 9, 2008; and (8) greeting cards purportedly sent to her and Mr. Constantino by her daughters and others for birthdays, Father's Day and condolences after his passing. In further support, González also submitted an affidavit by her daughter, Jessica González, who lived with them and attested to the long-term and loving relation between González and Constantino as well as his paternal relationship and friendship with González's three daughters.
In opposition, Landlord cross-moves for leave to conduct discovery in the form of depositions of Ms. González pursuant to CPLR 408, 3102 and 3107, and for a dismissal of her defenses and a final judgment in its favor pursuant to RPAPL 745(2)(c)(I). Through its counsel's affirmation, Landlord argues that González has failed to establish an entitlement to succession to the apartment because all the proof submitted is allegedly not in admissible form and issues of fact exists as to the couple's financial commitment and interdependence. According to Landlord, González has failed to provide any canceled checks, credit card receipts or any documentary formalization of their legal obligations, such as the execution of wills, powers of attorneys or health proxies between them.
It is well settled that in order to succeed on a motion for summary judgment, a movant must establish her claim or defense sufficiently to warrant the court as a matter of law in directing judgment in her favor (CPLR 3212[b]), and she must do so by tender of evidentiary proof in admissible form (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 ). It is also well settled that upon the death or surrender of a rent-stabilized tenant, Rent Stabilization Code § 2523.5(b)(1) provides automatic succession rights to "any member of such tenant's family, as defined in Section 2520.6(o) of this Title, who has resided with the tenant in the housing accommodation as a primary resident... where such person is... a disabled person' for a period of no less than one year, immediately prior to the permanent vacating of the housing accommodation by tenant, shall be entitled to be named as a tenant on the renewal lease." Under the test first articulated in Braschi v Stahl Assoc. Co. (74 N.Y.2d 201 ), and subsequently codified in various provisions of the Rent Stabilization Code and regulations, the definition of a "family member" has been expanded beyond its traditional meaning to include "any other person residing with the tenant in the housing accommodation as a primary or principal residence, respectively, who can prove emotional and financial commitment and interdependence" (9 NYCRR 2500.2[n]; see 9 NYCRR 2520.6[o]; Arnie Realty Corp. v Torres, 294 A.D.2d 193, 194 [1st Dept. 2002]).
The Rent Stabilization regulations provide that evidence of whether such "commitment" and "interdependence" existed may include, but is not limited to, the following eight factors:
(I) longevity of the relationship;
(ii) sharing of or relying upon each other for payment of household or family expenses, and/or other common necessities of life;
(iii) intermingling of finances as evidence by, among other things, joint ownership of bank accounts, personal and real property, credit cards, loan obligations, sharing a household budget for ...