Civil Court of the City of New York, New York County
90 Elizabeth Apt. LLC, Petitioner,
Betty Eng and STEVEN ENG, Respondents.
Petitioner: Santo Golino, by Brian ShawFor Respondent:
Elizabeth Apt. LLC, the petitioner in this proceeding
("Petitioner"), commenced this holdover proceeding
against Betty Eng ("Respondent"), a respondent in
this proceeding, and Steven Eng ("Co-Respondent"),
another respondent in this proceeding (collectively,
"Respondents"), seeking possession of 90 Elizabeth
Street, Apt. 5 and 6, New York, New York ("the subject
premises"), on the ground that Respondents are licensees
whose licenses have been terminated by the surrender of
possession of the prior tenant of the subject premises
("the prior tenant"). Respondents interposed
defenses that they are entitled to succeed to the tenancy of
the prior tenant. The Court previously denied
Petitioner's motion for summary judgment in this matter.
Petitioner appealed the Court's denial of its summary
judgment motion, and the Appellate Term affirmed, finding
that Petitioner did not eliminate issues of material fact as
to Respondents' succession claim. 90 Elizabeth Apt.
LLC v. Eng, 56 Misc.3d 128 (A)(App. Term 1st Dept.
2017). The Court held a trial on this matter on August 25,
2017 and September 19, 2017 and then adjourned the matter to
October 6, 2017 to enable the parties to make post-trial
party disputes that the prior tenant was subject to the Rent
Control Law and that the prior tenant surrendered possession
of the subject premises by a stipulation dated October 2,
2015 ("the Stipulation") settling a prior
proceeding between Petitioner, Respondents, and the prior
tenant, captioned at 90 Elizabeth Apt. LLC v. Eng, Eng,
and Eng, Index No. L/T 79147/2013 (Civ. Ct. NY Co.).
Petitioner proved that it is the proper party to commence
this proceeding and that it properly effectuated service of a
notice to quit pursuant to RPAPL §713(7).
testified that she is the prior tenant's daughter; that
she has lived in the subject premises since 1971; and that
she never lived anywhere else except for when she was in
testified on cross-examination that she did not have bank
accounts from November 20, 2013 to October of 2015; that she
had no source of income; that she did not file taxes; that
she was registered to vote; that she had a landline phone;
that the Con Edison account for the subject premises was not
in her name; that there was cable service to the subject
premises; and that Co-Respondent, her brother, and another
brother of hers lived with her at the subject premises but no
introduced into evidence a record of Respondent's voter
registration, showing that Respondent was registered to vote
at the subject premises and that she voted on November 7,
2006, September 15, 2009, September 29, 2009, November 3,
2009, November 6, 2012, September 10, 2013, and November 5,
2013; Respondent's bank statements mailed to her at the
subject premises from September of 2013 through November of
2015; a mailer regarding voting mailed to Respondent at the
subject premises in 2010; student loan documents mailed to
Respondent at the subject premises in March, July, and August
of 2010; an invoice for a veteran's hospital mailed to
Respondent at the subject premises on March 11, 2010; a
document concerning credit mailed to Respondent at the
subject premises on December 2, 2010; and invoices from the
online retailer Amazon mailed to Respondent at the subject
premises dated September 9, 2009 and December 15, 2009.
Respondents also introduced into evidence birth certificates
for Respondent and Co-Respondent, which show that the prior
tenant was their mother.
testified that he is the prior tenant's son; that he has
lived in the subject premises from the time that he was born
until 2000, when he moved to New Jersey; that he moved back
into the subject premises in 2012; that he is
Respondent's brother; that Respondent lived at the
subject premises her whole life; and that Respondent is the
prior tenant's daughter.
introduced into evidence Co-Respondent's credit card
statements and records of Co-Respondent's bank account
from February of 2012 to December 21, 2015 mailed to him at
the subject premises; Co-Respondent's pay stubs showing
the subject premises as his address from October of 2013
through August of 2015; Co-Respondent's driver's
license issued on February 20, 2013 with the subject premises
as his address; Co-Respondent's income tax returns and
W-2 forms for 2013, 2014, and 2015, with the subject premises
as his address; and an invoice for Co-Respondent dated April
4, 2015 with the subject premises as his address.
testified on cross-examination that he returned to the
subject premises on March 1, 2012; that he filed tax returns;
that he had a cell phone; that the prior tenant was in a
nursing home as of 2010; that the prior tenant did not return
to the subject premises after she entered the nursing home;
and that the subject premises has five rooms, three of which
testified on redirect examination that the prior tenant
wanted to return to the subject premises after she went into
the nursing home.
neighbor of Respondents ("the neighbor") testified
that her mother was a friend of the prior tenant; that she
has known Respondent for thirty or forty years; and that she
has been to the subject premises over that time span, where
she saw Respondent.
neighbor testified on cross-examination that, from November
of 2013 through October of 2015, she was in the subject
premises less than ten times; that she saw Respondent there
when she was there; that sometimes she assists Respondent in
moving things and sometimes Respondent helps her move things.
neighbor of Respondents ("the second neighbor")
testified that she lives on the same floor as the subject
premises; that she knows Respondent; that she has been to the
subject premises, although less so now that the prior tenant
and Respondents' father have died than before they died,
when she came to the subject premises once or twice a month;
that she saw the prior tenant often before the prior tenant
went into a nursing home, at least twenty times a year; that
she saw Respondent at the subject ...