Opinion
L & T 74645/19
03-08-2021
Williams and Georgia TOWERS, HDFC, Petitioner, v. Belinda GREEN, Donell Green, "John Doe" and "Jane Doe", Respondents.
Attorney for Petitioner: Seth Denenberg, Esq., SDK Heiberger LLP, 205 E 42nd St Fl 6, New York, NY 10017 Attorney for Respondent: Anna Wettstein, Esq., The Legal Aid Society, 111 Livingston Street, Brooklyn, NY 11201-1260
Attorney for Petitioner: Seth Denenberg, Esq., SDK Heiberger LLP, 205 E 42nd St Fl 6, New York, NY 10017
Attorney for Respondent: Anna Wettstein, Esq., The Legal Aid Society, 111 Livingston Street, Brooklyn, NY 11201-1260
Heela D. Capell, J.
After trial, the court makes the following findings and determination:
Williams and Georgia Towers, HDFC ("Petitioner") commenced this holdover proceeding against Belinda Green "John Doe" and "Jane Doe," based upon the termination of their license to occupy 420 Georgia Avenue, Apt No.1A, Brooklyn, NY 11207 ("Premises") as a result of the death of the tenant of record, William Green ("Tenant" or "William"). Donell Green ("Respondent" or "Donell") retained counsel and filed a verified answer to the petition asserting, inter alia , that as William Green's surviving great-grandchild he has succession rights to the Premises.
The caption was amended to include "Darnell Green" as a respondent on September 6, 2019 and amended a second time to replace "Darnell Green" with "Donell Green" on October 10, 2019.
The court concluded its trial on November 30, 2020 and December 9, 2020 and post trial briefs were filed, at Respondent's counsel's request, on December 18, 2020. On December 28, 2020, the Governor signed the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 ("the Act") into law, which, as is relevant here, stayed this eviction proceeding for 60 days. (COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020, L 2020, ch 381, Part A § 2.) Respondent's counsel advised the court that she would not be filing a "Hardship Declaration" on behalf of her client. ( Id. at Part A § 4.)
Recitation of Facts:
On the date of trial, Respondent consented to the following elements of Petitioner's prima facie case:
Petitioner is the deed owner of the subject building (Pet Ex. A); the Premises is not stabilized as it is located in a Cooperative building which is subsidized by the Department of Housing and Urban Development ("HUD") and regulated by HUD rules; the building is registered as a multiple dwelling with the New York City Department of Housing Preservation and Development ("HPD"); William Green was the tenant of record for the Premises pursuant to a proprietary HUD lease agreement (Pet Ex. C); William Green passed away on or about May 23, 2019.
As the parties stipulated to the elements of Petitioner's prima facie case, the burden shifted to Respondent to establish his affirmative defense. Respondent maintains that he is William's "remaining family member" pursuant to Federal law governing Project Based Section 8 apartments, ( 42 USC § 1437a [b][3][A]) and is therefore entitled to possession of the Premises. In his Answer, Donell argues that he is entitled to be considered a "remaining family member" even though he did not appear on the family composition for the Premises, because he "requested that his name be added to the lease after moving into the subject premises on or around January 2017, but this request was not processed ..." and "he otherwise meets the HUD requirements ..."
Petitioner's witness, Dorothy Jones, testified that she is the former Board President of the Petitioner, and held this position from 1997 to March of 2018. She testified that in 1993, 420 Georgia Avenue ("the Building") was "falling down," and the Building's management at the time was "doing illegal things in the building." As a result, a tenant's organization was formed which sued for and obtained ownership of the Building in 1994. The new ownership of the Building was structured as a Cooperative, governed under HUD regulations. Pursuant to those rules, occupants are required to certify their income yearly, and to pay 30% of this income as their share of the monthly maintenance. She explained that the recertification process consists of a meeting between management and the proprietary lessee, wherein management reviews the lessee's documents and prepares the recertification paperwork, which the lessee signs. Every occupant in the household, 18 years of age or older, is required to complete recertification documents. The witness asserted that because occupants are recipients of HUD assistance, Petitioner is obligated to ensure that the entire household is in compliance with the HUD regulations. She explained that she personally participated in the Building occupants’ recertification processes.
The witness testified that she has lived in the Building since 1996, and knew William as a resident in the Building and as a friend. Ms. Jones concluded that William lived alone based upon his recertifications, her role as Board President and the fact that she lived in the Building. Ms. Jones recalled that William's daughter, Belinda Green, used her power of attorney to complete his 2018 recertification for the Premises which Belinda Green completed in person at the management office. Petitioner admitted into evidence the proprietary lease amendments for William dated August 1, 2017 and August 1, 2018, which contain William's recertification information, including his income, and a location to list the occupants of the Premises (Pet Exs D & E). William is listed as the sole occupant of the Premises on both recertifications (Pet Exs D & E).
The witness explained that she knew Respondent, Donell Green, since he was a child and testified that he lived in Apartment #3G in the Building ("3G"), with Sandra Green, his grandmother and Latisha Davis, his mother, Sandra's daughter. Ms. Jones believed Donell lived in 3G because he would come into the management office yearly and recertify his income as a household member in 3G. She reiterated that she knew the Green family for ten to fifteen years and that William is Sandra's father. She conceded that she does not personally know where Donell lives now. However, the recertification documents for 3G for 2017 and 2018 were both signed by Donell as a member of the 3G household (Pet Exs I & J).
Respondent Donell Green testified on his own behalf. He testified that he was born on XXXXX XX, 1993, that his biological mother is Latisha Davis, his maternal grandmother is Sandra Green, and his maternal great-grandfather is William Green. He asserted that he currently lives at the Premises, 420 Georgia Avenue, Apartment #1A, Brooklyn, New York and has lived there since February 4, 2017. Donell claimed that he was able to recall this date specifically because it was the date his paternal grandmother died. Prior to February 4, 2017 he was staying with his father because his grandmother was sick. Donell testified that he moved into the Premises with William, his great grandfather , the day his paternal grandmother passed away because William needed his help. When Donell moved into the Premises he slept on a couch in the living room, where he claimed he still sleeps.
Throughout his testimony Donell Green referred to William Green as either his great-grandfather or his grandfather.
Respondent acknowledged that he previously resided in 3G, which was his maternal grandmother Sandra Green's apartment. The witness explained that Sandra Green was his legal guardian and that she passed away in August, 2019. He resided in 3G with Sandra Green, her husband Larry Oglen, Sr. and their son, Larry Oglen, Jr. Donell reported that he first moved into the Premises when he was 18 because he had a physically turbulent relationship with his uncle, Larry Oglen, Jr.
Donell recounted William's daily routine. He stated that he dressed William each morning, typically in a button up shirt with a pocket, where William would put his money. Donell helped William wash his face because William had trouble using his hands. Once William was washed and dressed, William came into the living room to watch "Maury" on the television. Donell prepared a typical breakfast for William each day: eggs with bacon and sausage. He stated that William had eleven children who would frequently visit the Premises. William played bingo in Queens every day except for Tuesdays and Thursdays. On bingo days, Donell would prepare William for his 3:30 P.M. "Access A Ride" to Queens. On days when William did not play bingo, he and Donell sometimes watched movies. He testified that William liked to watch "Sanford and Son," and nicknamed Donell "Lamont."
Donell described William as "strict" and "set in his ways." William wanted his bed made twice a day and his laundry done every day, and insisted on having exact change for his ride to bingo. Donell testified that he changed William's clothes twice a day because "he would go to the bathroom in his pants and he did not wear undergarments." He noted that when he moved back into the Premises in 2017, William was over 90 years old and that his grandmother, Sandra, was ill with cancer. Donell testified that he would routinely go food shopping for William, wash and change his linen, and get him dressed. He also stated that William's home attendant, "Theresa," came for four hours every Friday. Donell said that he created a planner for the home attendant, but that William would only ask Donell to help him because he was more comfortable with him. Donell recalled that when William would get his monthly check, William's daughter, Belinda, would purchase seafood, which Donell would cook for his great-grandfather. Donell also bought William water so that he would not have to drink tap water. He stated that he did this because William had bad kidneys.
Donell testified that in 2019 William was diagnosed with kidney failure and that as a veteran of World War II he was able to receive care at a veterans hospital. He added that William suffered from many ailments including gout around his heart, and arthritis, both of which he was prescribed medication for, as well as bad kidneys. Donell added that William took melatonin for sleep, and took suppositories for constipation; either William would take his medications himself or Donell would assist him.
Though Donell referred to William during his testimony exclusively as either his great-grandfather, or as his grandfather, he testified that he would characterize the relationship between them as father and son. He stated that William knew Donell since he was a baby, and took care of Donell, and that he did the same for William later in his life. Donell recalled that William had a great memory and enjoyed talking about his life, including his station during World War II and his wartime girlfriend in Germany. Donell explained that William would give Donell money to go to a Chinese restaurant to buy "Bento shrimp" for William and for Donell to get himself something too.
Donell introduced into evidence a work order for the Premises which he filled out for a defective stove dated September 17, 2018. (Resp Ex. A.) He recalled that he operated the stove because he was responsible for preparing William's meals. He additionally introduced into evidence a work order dated August 15, 2018 in which he requested a repair to the toilet because it was not flushing (Resp Ex. B).
On cross-examination, Donell conceded that he did not pay rent for the Premises or for 3G and acknowledged that prior to February, 2017 there is no record of him living at the Premises. Donell also testified on cross-examination that he lived in Norwalk, Connecticut from 2016 to 2017 and to the best of his recollection he was working in Connecticut in 2016. During this time he stated that he used 3G as his address "because [he was] on the lease [for 3G] and was going back and forth to New York." He stated that he did not use the address for the Premises on any documents prior to 2017. He also maintained that he left Connecticut on June 27, 2017.
Respondent conceded that he did not share bank accounts with William, was not listed on William's income recertification affidavits for the Premises, did not have a telephone line at the Premises, and did not contribute financially to payment of utilities or cable. He stated that William gave him money for food only. He claimed that William did not have insurance or a will that could have potentially named him as beneficiary, and added that Belinda Green was Williams’ power of attorney "because she did not have children." Donell also acknowledged that he never changed his mailing address from 3G to the Premises because he was living in the same building.
Donell testified that during the years 2017 and 2018 he was not living in 3G, but nonetheless signed recertification documents affirming that he was living there. Respondent maintained that his grandmother asked him to sign the recertifications for 3G so that she would not be transferred from her four bedroom apartment to a smaller apartment due to being overhoused. He posited that he did not intend to do anything unlawful; he simply wanted to help his grandmother. Donell stated that other than misrepresenting his apartment number, he otherwise truthfully filled out the forms and provided the required information on the recertifications.
Respondent asserted that he was not listed on the household composition for the Premises because it is a one bedroom apartment, and Belinda was already listed on the household composition and could not be removed. He recalled that after William died he began to receive notices from "Shirley Smoot" regarding William's maintenance arrears, which he believed amounted to $5,000.00. Donell stated that he took the notices down to the management office, and to "introduce himself," because he was living in the Premises. He also asserted that "Emma La Point" from management informed him that he could not be removed from the 3G household composition.
The court notes that William Green is the only person listed on the household composition for the Premises in the 2017 and 2018 recertifications (Pet Exs D & E).
Respondent called two additional witnesses, his mother, Latisha Green-Davis, and the former superintendent at the Building, Maurice Cubas. While Ms. Green-Davis testified that Donell did currently reside at the Premises, and was caring for William before he died, she conceded that she did not know when Donell moved back from Connecticut and for how long he lived in the Premises. Maurice Cubas testified that he was the former superintendent at the building, and that Latisha Green-Davis was his girlfriend, but was similarly vague in his testimony. Though he stated that Donell lived in the Premises, and that he saw Donell there on approximately two occasions when making repairs, he could not recall when he saw Donell at the Premises, whether Donell ever lived in 3G, nor when Donell moved into the Premises. The witness also acknowledged that he did not know anything about the relationship between Donell and William.
Legal Analysis:
"Congress adopted the section 8 housing program to provide decent and safe housing through the private sector to certain ‘lower-income’ families" ( see Morrisania II Associates v Harvey , 139 Misc 2d 651, 655, 527 N.Y.S.2d 954 [Civ Ct, Bronx County 1988]citing Housing and Community Development Act of 1974, as added by Pub L 93-383, 42 USCA 1437fsee also , Evans v Franco , 93 N.Y.2d 823, 687 N.Y.S.2d 615, 710 N.E.2d 261 [1999] ). The Section 8 program is governed by federal statutes and regulations, as well as policies promulgated by HUD. "The family receives its benefit conditioned on maintaining statutory eligibility requirements and complying with the obligations of tenancy" ( Morrisania , 139 Misc 2d at 655, 527 N.Y.S.2d 954 ). State law is also applicable to Section 8 tenancies, unless preempted by federal statute or regulation or state law is in conflict with Section 8 rules and regulations ( see Mott v New York State Division of Housing and Community Renewal , 211 A.D.2d 147, 628 N.Y.S.2d 712 [2d Dept 1995] ).
According to HUD: "In consideration for the receipt of Section 8 assistance, the HAP Contracts impose certain general obligation on the owners of assisted properties including ... the leasing of assisted units to Section 8 income eligible families ..." and "... compliance with Section 8 reporting, management and accounting requirements ..."( see http://www.hud.gov/program_offices/housing/mfh/rfp/s8bkinfo [last accessed 3/1/2021]). In furtherance of this obligation, the owner of a subsidized unit must reexamine the income and composition of the family at least every 12 months ( see 24 CFR 880.603 [c]). The owner is required to determine if the family continues to be eligible for Section 8 subsidized housing, adjust the amount of the subsidy, and determine whether to transfer the family to a different unit if the unit size is no longer appropriate. ( id. ) "The composition of the assisted family residing in the unit must be approved by the PHA ... [t]he family must request PHA approval to add any other family member as an occupant of the unit. No other person ... may reside in the unit ..." ( 24 CFR § 982.551 [h][2].)
The subsection of the HUD Handbook entitled, "Determining the Eligibility of a Remaining Family Member of a Tenant Family," "specifically address[es] the issue of remaining family members who wish to inherit a deceased relative's subsidy and who may be exempt from the ordinary new applicant screening criteria" ( Coley v Brook Sharp Realty LLC , 2015 WL 5854015, 2015 US Dist LEXIS 137762 [SDNY Sep. 25, 2015]citing https://www.hud.gov/sites/documents/43503C3HSGH.PDF [last accessed 3/1/2021]). This subsection states in relevant part:
A. Periodically, family composition changes after initial occupancy. If the qualifying person leaves the unit, a determination must be made as to whether the remaining member of the household will be eligible to receive assistance. Eligibility depends upon the type of project occupied and other issues.
B. The following basic requirements for eligibility must be met for a person to qualify as a remaining member of a household:
The individual must be a party to the lease when the family member leaves the unit.
The individual must be of legal contract age under state law.
The remaining family member as defined in Section 202 and Section 811 regulations as the surviving member or members of an elderly family or family with disabilities that was a party to the lease and living in the assisted unit with the now deceased member of the family at the time of his or her death. (Id.).
As it is undisputed that Respondent was not listed on William's lease, Respondent would not qualify as a "remaining family member" according to a plain reading of the federal law and the HUD Handbook ( id. , 24 CFR § 982.551 [h][2]). Indeed, in Evans v Franco the Court of Appeals strictly interpreted federal law and denied succession rights to a proposed family member because he did not appear on the household composition of a former Section 8 voucher holder ( Evans v Franco , 93 N.Y.2d 823, 687 N.Y.S.2d 615, 710 N.E.2d 261 [1999] ). The Court of Appeals reasoned, "[g]iven the 13 unequivocal annual statements by the deceased that she lived in the apartment alone, there is no basis on this record to conclude that petitioner is a family member or that a hearing is necessary to confirm his status. To permit petitioner to claim status as a surviving family member would be to open the door to possible fraudulent claims and to a wholesale disregard of the intent of the subsidy program" ( Evans v Franco , 93 N.Y.2d 823, 825, 687 N.Y.S.2d 615, 710 N.E.2d 261 [1999] ).
However, some courts have determined that even if a proposed remaining family member is missing from the "required forms," they can still succeed to a tenancy in project based Section 8 housing as long as they can establish "the required residency and family relationship ... by a preponderance of credible evidence at trial." ( 5th & 106th St. Assoc. LP v Montanez , 2015 N.Y. Slip Op. 31876[(U]) [Civ Ct, New York County 2015] citing [ 2013 Amsterdam Avenue Housing Associates v. Wells , 10 Misc 3d 142(A), 814 N.Y.S.2d 893 [App Term, 1st Dept 2006], see also Bronx 361 Realty, L.L.C. v. Quinones , 26 Misc 3d 1231(A), 907 N.Y.S.2d 98 [Civ Ct, Bronx County 2010], Los Tres Unidos Associates, LP v. Colon , 45 Misc 3d 129(A) [App Term, 1st Dept 2014], Marine Terrace Associates v. Kesoglides , 44 Misc 3d 141(A), 998 N.Y.S.2d 306 [App Term, 2nd Dept 2014). Courts have made this inquiry particularly where the landlord knew of the proposed remaining family members’ residency at the subject premises and frustrated their attempts to be added to the lease.
In Montanez , the court explained: "the inquiry remains fact specific and includes consideration as to the bona fide family relationship, whether the owner knew of the occupancy, whether the owner frustrated earlier attempts to have the occupants added to the lease, and other relevant factors" ( Montanez , 2015 N.Y. Slip Op. 31876[(U]) at 12). In Marine Terrace, the Appellate Term 2nd Department held "the evidence is clear and convincing that occupant resided in the apartment for many years with the knowledge of landlord and that his efforts and those of his mother to add him to the lease were frustrated by landlord. Under these circumstances, landlord may not invoke the absence of occupant's name on the lease as a basis for denying him succession rights" ( Marine Terrace , 44 Misc 3d 141[(A]), 998 N.Y.S.2d 306 ).
It is undisputed that Respondent does not appear on any lease or family composition for the Premises. Respondent maintains that he requested and Petitioner unlawfully refused him permission to be added to the household composition for the Premises. However, he conceded on cross-examination that he continually and purposely recertified and added his information to the family composition for 3G. Moreover, Respondent did not provide any dates or times when he made the request to be added to William's household, nor did he provide any documentary proof in support of the claim. Respondent also testified that he was told that he could not be added to the household composition for the Premises because Belinda Green was already listed on the household composition and the Premises was a one bedroom apartment. However, the evidence reflects that William Green is the only individual listed on the household composition for the Premises in 2017 and 2018 (see Resp Exs D & E). Notably, as Respondent testified that he intentionally signed recertifications for 3G in 2017 and 2018, it is unclear when Petitioner could have frustrated his attempts to be added to the household composition at the Premises at any time prior to William's death ( see Mar. Terrace Assoc. v Kesoglides , 44 Misc 3d 141[(A]), 998 N.Y.S.2d 306 ).
Assuming arguendo that Respondent had established that Petitioner refused to add him to the household composition for the Premises, Respondent still has the burden to establish by a preponderance of the evidence that he resided at the Premises with William for "more than a short period of time." ( NSA N. Flatbush Assoc. v Mackie , 166 Misc 2d 446, 450, 632 N.Y.S.2d 388 [Civ Ct, Kings County 1995], see also Concord Seaside Lp v Johnson , 2018 NYLJ LEXIS 160, [Civ Ct, Richmond County 2018], Bronx 361 Realty, L.L.C. v Quinones , 26 Misc 3d 1231[(A]), 907 N.Y.S.2d 98 [Civ Ct, Bronx County 2010], Boston Tremont Hous. Dev. Fund Corp. v Dunbar , 62 Misc 3d 844 [Civ Ct, Bronx County 2018], Alliance Housing Assoc LP v Garcia , 53 Misc 3d 1215[(A]), [Civ Ct, Bronx County 2016] ). For example, in Concord Seaside LP v Johnson , the occupant sought the status of "remaining family member" at a Project Based Section 8 unit. Although the respondent did not appear on any of her deceased grandmother's tenancy documents, the court granted succession because she credibly testified that she contributed to household expenses and formalized her change of address on her voter records, learner's permit, educational records and financial records ( Concord Seaside LP v Johnson , 2018 NYLJ LEXIS 160 [Civ Ct, Richmond County 2018]).
Similarly, in Bronx 361 Realty, L.L.C. v Quinones , (26 Misc 3d 1231[A], 907 N.Y.S.2d 98 [Civ Ct, Bronx County 2010] ), the wife of the deceased tenant sought succession but was not on the initial lease. Five days into her husband's tenancy, while she was in the midst of obtaining permission from management to be added to the lease, her husband suddenly passed away. As her credible testimony demonstrated that she lived with the deceased from 1995-2007 and married him in 2003, her absence from the tenancy forms was not dispositive and she was given succession. In Alliance Hous. Assoc., LP v Garcia , 53 Misc 3d 1215[(A]) [Civ Ct, Bronx County 2016] ), the purported successor was able to provide documentary evidence dating nearly fifty years relating to his relationship with the tenant of record, the mother of his children. His children provided proof of the relationship and the successor submitted voluminous documents demonstrating that he resided at the Premises with the tenant of record for over two years prior to her death, in addition to documents which established their financial interdependence ( see also Boston Tremont Hous. Dev. Fund Corp. v Dunbar , 62 Misc 3d 844 [Civ Ct, Bronx County 2018] ).
Here, Respondent has not established by a preponderance of the evidence that he resided at the Premises with William. Respondent testified credibly that he physically took care of William; he was able to specifically recall the details of William's daily schedule and routine as well as the tasks that he performed as William's caretaker. However, in other aspects, Respondent's testimony was inconsistent and remarkably lacked any concrete dates or facts. During his testimony, Respondent recalled three specific dates: the date of William's death, and two different dates when he stated that he moved into the Premises: on direct, February 4, 2017 and on cross-examination, June 27, 2017. In sum, Respondent testified that he lived both in New Jersey and Connecticut between 2012 and 2017 but could not clearly recall when he moved to New Jersey or Connecticut or even to the Premises for the first time. He also could not recall specific dates regarding when he began and ended certain employments. Although Donell testified credibly that he cared for William, he also maintained that he did not pay for rent or utilities at the Premises, because he "was just sleeping there." This testimony is strikingly inconsistent with his position that he shared a father-son relationship with William and considered the Premises to be his home. Similarly, Respondent's two witnesses, his mother, Latisha Davis, and the former superintendent at the Building, Maurice Cubas, could not recall basic facts necessary to his defense, such as when he moved into the Premises, or how long he lived there.
Notably, Respondent did not produce any documentary evidence in support of his testimony that he resided at the Premises. He testified concretely that he had resided at 3G, a three bedroom apartment, with his grandmother and uncle and that he "moved" into the Premises, a one bedroom apartment, with William, when he fought with his uncle. However, Respondent never changed his mailing address from 3G to the Premises, nor his voter registrations, nor any other documents that suggest he primarily resided at the Premises. Furthermore, Respondent continued to recertify his income for 3G rather than the Premises. Indeed the only documentary proof which Respondent provided in support of his residency at the Premises were two work orders for the Premises dated in 2018.
Accordingly, Respondent relied almost exclusively upon his own testimony to establish his remaining family member status, which testimony included falsely certifying his income for 3G, an apartment he allegedly did not reside in at the time he signed the recertifications. Even if this alleged falsity did not occur, Respondent failed to provide significant support for his position that he actually resided at the Premises, rather than just serving as his great-grandfather's caretaker for an unverified period of time.
Certainly, Respondent's testimony as to the relationship between himself and the Tenant had greater parallels to a live-in aide or caretaker rather than as a remaining family member. Such can be inferred by the Tenant's selection of Belinda Green, and not the Respondent, as his power of attorney, by the fact that Respondent did not pay for rent or utilities in exchange for his occupancy of the Premises, and by the Respondent's decision to continue to use 3G as his address for the receipt of mail and on his recertifications for the years 2017 and 2018. "HUD's policies ... do not recognize care attendants as family members for continued occupancy purposes" ( Davidson 1992 Assoc. v Corbett , 190 Misc 2d 813, 738 N.Y.S.2d 813 [App Term 1st Dept, 2002] citing 24 CFR 982.551 [h] [4]).
Accordingly, Petitioner is awarded a judgment of possession against Donell Green. The warrant of eviction may issue forthwith, with execution stayed 30 days to permit Respondent to vacate the Premises with dignity. The parties are directed to pick up their exhibits within thirty days or they will be sent to the parties or destroyed at the court's discretion in compliance with DRP-185.
This constitutes the decision and order of the court.