Opinion
L T 39616/10.
Decided September 29, 2010.
AGINS, SIEGHEL, REINER BOUKLAS, LLP, Attorneys for Petitioner, By: JASON BOROFF, ESQ., New York, NY.
ROSEMARIE CHEVERE, Respondent Pro Se, Bronx, New York.
BACKGROUND
Findlay Teller Housing Development Fund Corporation (Petitioner) commenced this summary holdover proceeding to recover possession of Apartment 316, located at 1201 Findlay Avenue Bronx, New York (Subject Premises) following the death of Frank Rivera, tenant of record, who died on May 25, 2010. The Subject Premises is governed by Section 202 of the Section 8 Regulations of the Department of Housing and Urban Development(HUD). Rosemarie Chevere (Respondent) is in possession of the Subject Premises. Petitioner contends Respondent entered into possession pursuant to a license granted by the tenant of record which expired upon the tenant's death.
PROCEDURAL HISTORY
Petitioner issued a 10 day notice to vacate dated June 28, 2010, which was personally served on Respondent on July 2, 2010 at the Subject Premises. The petition was issued July 13, 2010, and was personally served on Respondent on July 28, 2010. The proceeding was originally returnable in Court on August 6, 2010. On that date Respondent appeared and signed a stipulation consenting to the jurisdiction of the Court and adjourning the proceeding to August 31, 2010 at Respondent's request, for Respondent to have an opportunity to seek counsel.
On the next return date, August 31, 2010, Petitioner moved for summary judgement and for an award for use and occupancy. Respondent was granted a second adjournment to September 20, 2010 to submit opposition papers. Respondent was directed to pay one month's use and occupancy without prejudice. Additionally, Respondent asserted her answer on the record and asserted two defenses, succession and waiver.
On September 20, 2010, Respondent submitted opposition papers and the Court marked the motion submitted and reserved decision.
FACTS
The facts in this proceeding are largely uncontested. The last tenant of record was Frank Rivera. Mr. Rivera was in possession of the premises pursuant to a written lease agreement dated July 1, 2005 (Exhbit I to moving papers). Mr. Rivera died. Respondent asserts that Mr. Rivera died in May 2010. It is also acknowledged that Respondent came into possession as a result of her relationship with Mr. Rivera.
Petitioner is a not-for-profit HDFC and owner of 1201 Findlay Avenue, Bronx, New York. On or about October 1969, the Daughters of Jacob Geriatric Center applied for financing with the Commissioner of Housing and Community Renewal to fund a project that would provide affordable housing for the elderly. An agreement was entered into on November 14, 1969 restricting the use of the building for said purpose. The building was transferred to Petitioner and became designated pursuant HUD section 202 as supportive housing program for the elderly. A "Use Agreement" was made between Petitioner and HUD which set forth the guidelines for the use of the building. Copies of the Use Agreement and Riders are annexed to Petitioner's moving papers. Rider 7 explicitly provides that the Subject Building is to be one hundred percent occupied by the elderly. Any change must receive the prior written approval of the Secretary of HUD.
Respondent asserts that she is entitled to remain in possession, and has asserted the affirmative defenses of succession and waiver to the underlying proceeding. Respondent asserts that she is the "significant other" of the deceased tenant, that she resided with him and that she is herself disabled. Respondent acknowledges that she is not elderly as defined by the statute, as she is 52 years of age.
Respondent submits no admissible documentation in support of her claims. Respondent's opposition consists of two letters from third parties, which were prepared for the purposes of this litigation. The first is a September 17, 2010 letter from Giovanni Williams, Clinical Director of Counseling Services of New York, addressed to the Court, which asserts that he was informed by employees of Petitioner by phone that Petitioner provides housing for the elderly and/or the disabled. The second letter is dated September 16, 2010 and is also addressed to the Court. It is a letter from Rodney Waldron, Case Manager with Bronx TASC-Mental Health Court Program, which asserts that Respondent has been a client of the Bronx TASC Mental Health Court program since November 25, 2008. It further asserts that Respondent lived in the Subject Premises with her "significant other" for the past eight years, and that since the death of her significant other, Respondent has become increasingly stressed and depressed.
Respondent does not dispute Petitioner's allegations that she never received permission to occupy the Subject Premises. In fact annexed to Petitioner's moving papers as Exhbit J is a Guest Authorization Form purportedly submitted by the deceased tenant seeking permission for Respondent to visit the Subject Premises from December 2, 2009 through December 16, 2009, and describing Respondent's relationship to Mr. Rivera as that of a friend.
DISCUSSION
The proponent of a motion for summary judgment must demonstrate entitlement to judgment as a matter of law providing sufficient evidence to eliminate any material issues of fact.
Winegrad v New York University Medical Center, 64 NY2d 851 (1985); Alvarez v Prospect Hospital, 68 NY2d 32091986). Once such a showing is made, the burden shifts and the opposing party must tender evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which would require a trial or tender an acceptable excuse for his or her failure to do so( see Zuckerman v City of New York, 49 NY2d 557; Greenberg v Coronet, 167 AD2d 291 [1st Dept 1990]).
Petitioner has established its prima facie case. It has established that it is the landlord and owner of the Subject Premises, that the last tenant of record is deceased, and that Respondent came into possession of the Subject Premises as the licensee of said tenant.
Once Petitioner established its prima facie case, the burden shifted to Respondent to lay bare her proof in order to show material issues of fact exist, or to establish that she has an affirmative defense.
Respondent has failed to establish that she has a right to succeed to the tenancy of the Subject Premises, which is clearly designated as housing for the elderly. As a matter of law Respondent is not entitled to make a succession claim to the Subject Premises because she is not elderly. In a case on point, the Court denied the succession claim of a daughter, who had resided with her mother from the inception of the tenancy and was an approved occupant, because the apartment was a Section 202 unit reserved for the elderly.
The Court held in pertinent part:
12 USC § 1701(q) previously defined "elderly families" to include "the surviving member or members of any family . . . who were living, in a unit assisted under this section, with the deceased member of the family sat the time of his or her death." However, former subsection (d)(4) was repealed and the statute amended in 1990 to contain a much narrower redefinition of "elderly person" as an "individual who is at least 62 years of age" The plain meaning of this amendment clearly evinces Congress' intent to limit the class of persons to benefit from the statute as redefined. Indeed, when this definition is read, as it must, in pari materia with Section 202's statutory objective of "accommodat[ing] the special needs of elderly persons", respondent is categorically barred from succeeding to the apartment.
607 Concord Senior Housing v. Morales , 16 Misc 3d 1121 (A), 2007 NY Slip Op 51531 (U) (citations omitted).
While there is one appellate case that held a remaining family member could qualify to succeed to tenancy of the Subject Premises, that holding was predicated upon the pre-1990 act being applicable, because the tenant's occupancy had commenced prior to the 1990 amendment ( See Windmill Housing Development Fund Co., Inc. v. Winchell 16 AD3d 429 [2nd Dept, 2005]).Moreover, in Winchell the person claiming succession was the daughter of the tenant, and had lived in the premises with the express permission of the landlord from the inception of the tenancy to care for his elderly mother ( Id), facts not applicable to Respondent's claim, given that Respondent is not a family member, did not reside with the tenant from the inception of the tenancy and had no permission from Petitioner to reside in the Subject Premises.
Similarly, Respondent's claim that being disabled would somehow entitle her to assert succession claims is also unavailing. In 1990, the Section 202 Program was bifurcated, and Section 202 was amended to be limited to a program for the elderly, and a separate section, Section 811 was the program designated for disabled individuals.
Finally, Respondent's claim at oral argument that Petitioner waived the right to object to her occupancy, because they were aware of her occupancy, even if it had been established by Respondent as true, would not legally create a right to possession on the part of Respondent in the Subject Premises which is statutorily designated as housing for the elderly. Said designation is not subject to waiver.
CONCLUSION
Respondent has failed to raise any material issue of fact requiring a trial and has failed to establish any affirmative defense to Petitioner's cause of action. Accordingly, Petitioner's motion for summary judgement is granted. Petitioner is granted a final judgment of possession, the warrant of eviction shall issue forthwith, execution of the warrant shall be stayed through October 31, 2010.
Petitioner's request for a judgment for use and occupancy is denied without prejudice. In the event Respondent makes any application for a stay of the execution of the warrant, Petitioner may renew its request for use and occupancy, which must be determined at a hearing regarding the fair market value of the Subject Premises. In the event Respondent does not seek a stay of the execution of the warrant, Petitioner's claim for use and occupancy is severed without prejudice for a plenary action.
As no evidence was presented that the Subject Premises is occupied by any John or Jane Doe, the proceeding is dismissed as to John and Jane Doe without prejudice.
This constitutes the decision and order of the court.