Opinion
074160/2006.
Decided October 3, 2007.
Cutler Minikes Adelman, LLP, Attorneys for Petitioner, New York, NY, By:Jonathan Z. Minikes, Esq.
Sokolski Zekaria, P.C., Attorneys for Respondent-Undertenant, New York, NY, By:Daphna Zekaria, Esq., David B. Cohen, J.
This holdover proceeding was commenced by petitioner-landlord, Westprop Corp. ("Westprop"), seeking possession of a rent stabilized apartment after respondent-tenant, Marco Smythe ("Smythe"), the tenant of record, vacated. Respondent-undertenant, Daniel Carrier ("Carrier" or "respondent"), seeks succession to the apartment pursuant to Rent Stabilization Code ("RSC") [ 9 NYCRR] § 2520.6 (o) (2) on the grounds that he is a "family member."
FINDINGS OF FACT
Petitioner's superintendent and managing agent testified on behalf of petitioner. The respondent and five mutual friends of the respondent and the tenant of record testified on behalf of respondent. Based upon the testimony and documentary evidence presented, the court makes the following findings of fact.
Respondent-undertenant, Daniel Carrier, resides at 165 West 83rd Street, Apartment 44, New York, New York (the "premises" or "apartment"). Respondent-tenant, Marco Smythe, entered into the initial written rent stabilized lease agreement for the apartment on July 14, 1981 and most recently renewed the lease with petitioner for a one-year term on March 16, 2005, set to expire on June 30, 2006. Mr. Carrier and Mr. Smythe have resided in the apartment together since October 1985 until Mr. Smythe's disappearance on January 9, 2006.
In the spring of 1985, Marco Smythe and Daniel Carrier met at a party and subsequently dated. After a few months, Mr. Smythe asked Mr. Carrier to move into the apartment with him, which he did in October 1985. They continued their romantic involvement until around the mid-nineties.
Although their romantic relationship ended, they continued living together for well over a decade with essentially no change to their emotional relationship or day-to-day routine. They were still close with each other and concerned for each other's welfare. Mr. Carrier considered Mr. Smythe to be "family." Mr. Carrier continued to use the apartment as his primary residence as evidenced by his Social Security statement, stock portfolio statements, credit card statements, retirement funds, bank accounts, voting records and insurance. There is no evidence that either Mr. Carrier or Mr. Smythe lived anywhere other than the apartment since October 1985.
They shared both the household chores Mr. Carrier would clean the bathroom while Mr. Smythe would clean the kitchen and household expenses. Mr. Smythe would do most of the shopping although both contributed to the food. Mr. Smythe would give Mr. Carrier detailed billing statements each month. The bills included a 50% share of the local telephone calls, internet, cable, and electricity. The rent was also shared, with Mr. Carrier paying a 75% share due to his larger salary. Mr. Smythe's only income for the past several years was as a self-employed consultant in accounting and computer training, and a small sum as a beneficiary of a trust. Long distance calls were paid for separately as Mr. Carrier would pay for the calls to his family and Mr. Smythe would do the same. The final itemized category on each bill was a list of things Mr. Smythe bought during that month for use in the apartment. When Mr. Carrier shopped for food and other household items, he would pay for them himself and not seek reimbursement. When Mr. Smythe would buy cleaning supplies and small household items, such as paper towels, tissues, disinfectant, shower curtains, dish detergent, sponges, batteries and light bulbs, Mr. Carrier would pay a 54% share of these items as Mr. Smythe detailed each one and calculated the percentages and totals. They also shared the costs of some of the furniture in the apartment: Mr. Carrier paid for a sofa bed and a bookcase, Mr. Smythe paid for the television sets, and both together shopped for new rugs and paid for one each.
Respondent's Exhibit C in evidence consists of the monthly billing statements prepared by Mr. Smythe for Mr. Carrier beginning in April 1991 through December 2005.
There is testimony that two or three years ago, Mr. Smythe received approximately $20-25,000 from the sale of land belonging to his mother.
Until July 2005, Smythe and Carrier shared a single phone number; thereafter, they each had separate phone numbers, at Smythe's suggestion, when he switched to an internet-based phone carrier.
Mr. Smythe's practice of itemizing monthly expenses was consistent with his "frugal" and "organized" nature, as testified to by the respondent and Fred Gaines, a college friend and former roommate of Smythe's, who has known him for over 30 years, and perhaps due to his work habits as he would prepare "meticulous" records for his accounting work.
Over this 20 year period, the rent increased and, accordingly, Mr. Carrier's share increased. Mr. Carrier's share of the rent increased three times: in October 1994, July 1999 and November 2004. Mr. Smythe explained on the bill statements that he was hesitant to ask but ultimately needed Mr. Carrier to pay additional rent. On all three occasions, Mr. Carrier paid the new, increased rent.
During the time they lived together, Mr. Smythe would cook the meals and Mr. Carrier would clean the dishes. They ate breakfast together a few times a week, and ate dinner together almost every night. They would also spend time with their close friends and mutual friends, who for the most part were one and the same. The testimony of five of their mutual friends was that Mr. Smythe and Mr. Carrier appeared to be "a couple" when they were together and were very close with one another. This was the case only around their close friends who knew of their sexual orientation. According to Mr. Carrier's testimony, they did not tell family members, co-workers, or society in general of their sexual orientation or their relationship. However, respondent introduced numerous photographs of himself and Mr. Smythe with each other among family and friends, and a number of postcards they sent to one another, evidencing their close relationship.
Even though they did not tell their respective families about their relationship, they did visit each other's families together. Mr. Smythe visited Mr. Carrier's family a few times, but Mr. Carrier formed a strong relationship with Mr. Smythe's family, particularly his mother and brother Ricardo ("Rick"). Mr. Carrier would often visit Mrs. Smythe by himself at her assisted living home in the Bronx as it was near his place of work. On these occasions, Mr. Carrier would sign her out of the home to take her out to eat and spend time with her. Mrs. Smythe also moved into the apartment with them for a six-week period while awaiting placement in a new assisted living home. Mr. Carrier continued to visit her in her new home. In fact, Mr. Carrier and Mr. Smythe had just visited Mrs. Smythe together the day before Mr. Smythe disappeared. Even after Mr. Smythe left, Mr. Carrier was asked to be an honorary pallbearer at Mrs. Smythe's funeral. Mr. Carrier continues to speak and visit with Mr. Smythe's family.
In August 2004, Mr. Carrier traveled to Las Vegas with Mr. Smythe and attended a 60th birthday party for Mr. Smythe's brother Rick. Over the years, Mr. Carrier became very friendly with Rick and his wife, who visited them several times per year. In May 2005, Mr. Carrier returned again to visit Rick Smythe and his family in Las Vegas at their invitation.
Mr. Carrier and Mr. Smythe would sometimes vacation together, although most often on shorter trips. They went on various day trips and weekend trips in which they would split items such as car rental and gasoline costs. They enjoyed picnics and dinner parties with mutual friend, and celebrated each other's birthdays. On a few occasions, Mr. Carrier vacationed without Mr. Smythe due to Mr. Smythe's lack of finances and Mr. Smythe took a trip with a friend to Italy in 2003 without Mr. Carrier. When Mr. Carrier went to Las Vegas in May 2005 to visit Mr. Smythe's brother Rick, Mr. Smythe remained in New York.
On May 15, 2005, Mr. Smythe signed a Division of Housing and Community Renewal ("DHCR") Form RA-23.5, notifying the owner of family members residing in the apartment who may be entitled to succession rights, and submitted it to petitioner. On this form Mr. Smythe listed Mr. Carrier as an "other family member" in order to notify of his claimed succession rights. This form was received by the petitioner.
At no point in their relationship did Mr. Smythe and Mr. Carrier intermingle their finances. They did not have any joint bank accounts or joint credit cards, nor did they jointly own any bonds, real estate, or automobiles. Neither did they formalize legal obligations to one another. They had no wills or trusts and did not grant each other power of attorney. They never filed for a domestic partnership nor did they execute health care proxies. Mr. Carrier's life insurance policy named his only brother, Ronald, as beneficiary as recently as February 2004.
On or about August 2005, Mr. Smythe stopped paying rent to petitioner, even though Mr. Carrier continued to pay Mr. Smythe for his portion of the rent each month. On January 9, 2006, Mr. Smythe voluntarily and permanent vacated the apartment without any advance notice or indication of his whereabouts. He left behind a notice of non-payment for the previous five months' rent, although Mr. Carrier had given him checks for his share of the rent for all five months and the checks had been cashed. Mr. Carrier contacted Mr. Smythe's friends and family and went to the local police station where he attempt to file a missing persons report.
Respondent testified that he was not permitted to file a missing persons report because he was not a relative and was advised to return with a family member, and that Mr. Smythe's brother Rick then came to New York and filed a missing persons report.
CONCLUSIONS OF LAW
Rent Stabilization Code, section 2523.5 (b) (1), provides, in pertinent part, that a "family member" of a tenant of record shall be entitled to be named as a tenant if:
(a) . . . such tenant has permanently vacated the housing accommodation, 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 residence for a period of no less than two years . . . immediately prior to the permanent vacating of the housing accommodation by the tenant . . . shall be entitled to be named as a tenant on the renewal lease (RSC § 2523.5 [b] [1]).
Pursuant to RSC § 2520.6 (o) (2) and Braschi v Stahl Assocs., Co. ( 74 NY2d 201), a "nontraditional" family member is protected from eviction if the individual can establish that there was an emotional and financial commitment and interdependence with the tenant of record. Among the factors a court must consider in making this determination are:
(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 evidenced by, among other things, joint ownership of bank accounts, personal and real property, credit cards, loan obligations, sharing a household budget for purposes of receiving government benefits, etc.;
(iv)engaging in family-type activities by jointly attending family functions, holidays and celebrations, social and recreational activities, etc.;
(v)formalizing legal obligations, intentions, and responsibilities to each other by such means as executing wills naming each other as executor and/or beneficiary, granting each other a power of attorney and/or conferring upon each other authority to make health care decisions each for the other, entering into a personal relationship contract, making a domestic partnership declaration, or serving as a representative payee for purposes of public benefits, etc.;
(vi)holding themselves out as family members to other family members, friends, members of the community or religious institutions, or society in general, through their words or actions;
(vii)regularly performing family functions, such as caring for each other or each other's extended family members, and/or relying upon each other for daily family services;
(viii)engaging in any other pattern of behavior, agreement, or other action which evidences the intention of creating a long-term, emotionally committed relationship.
(RSC § 2520.6 [o] [2]; see also Braschi, 74 NY2d at 212-213). In order to find that a nontraditional family existed, the critical element is an emotional and financial commitment and an interdependence. The factors listed in RSC § 2520.6 (o) (2) to consider "are merely suggestions and not requirements" ( Wiener Mgt. Co. v Trockel, 192 Misc 2d 696, 703 [Civ Ct, Queens County 2002]), and "no single factor shall be solely determinative" (RSC § 2520.6 [o] [2]). Evidence of a sexual relationship may not be considered in determining whether the tenant of record and the respondent constituted a nontraditional family (RSC § 2520.6 [o] [2]). In determining the outcome, a court must weigh "the totality of the relationship as evidenced by the dedication, caring, and self-sacrifice of the parties which should, in the final analysis, control" ( Braschi, 74 NY2d at 213). "The burden of proof for establishing family membership pursuant to RSC § 2520.6 (o) (2) is upon the proponent of such claim" ( West 49th St. Realty Assoc. v Sullivan, NYLJ, Nov. 22, 1995, at 26, col 6 [Civ Ct, NY County]). After a thorough examination of the evidence, the burden of proof has been met by the respondent and the court finds, based upon all the credible documentary and testimonial evidence adduced at trial, that respondent's relationship with Mr. Smythe does satisfy the criteria set forth of "emotional and financial commitment and interdependence" ( Braschi, 74 NY2d at 211).
Mr. Carrier lived in the apartment for over 20 years as his primary residence. In terms of sharing the household expenses, it has been well documented over the years by Mr. Smythe that a sharing did occur. Both parties contributed to the cost of food. Mr. Smythe did most of the shopping and bought the cleaning and household supplies while Mr. Carrier purchased other items and typically paid for meals when they dined out. Electric, telephone, cable, and some furniture costs were evenly split. They split rent unevenly due to the disparate nature of their incomes, but it was sharing nonetheless in which respondent contributed far more than Mr. Smythe.
There was no intermingling of finances such as joint bank accounts. However, "[e]ven in traditional marriages . . . it is not uncommon to find that there is not a total intermingling of finances" ( Wiener Mgt. Co. v Trockel, 192 Misc 2d at 702 [although respondent and deceased tenant of limited means had separate bank accounts, total intermingling of finances is not required to establish succession]; see also RHM Estates v Hampshire , 18 AD3d 326, 327 [1st Dept 2005] [absence of intermingling of finances does not negate conclusion that family relationship existed], lv denied 2006 NY App Div LEXIS 4429, *1 [1st Dept, Apr. 11, 2006]; Llorente v Stackiewicz, NYLJ, Feb. 22, 1995, at 31, col 4 [App Term, 1st Dept] ["absence of joint [bank] accounts or financial transactions is not dispositive"], lv denied 1995 NY App Div LEXIS 8748, *1 [1st Dept, Aug. 10, 1995]; Sullivan, NYLJ, Nov. 22, 1995, at 26, col 6 [succession established where respondent and deceased tenant had separate bank accounts but shared and relied upon each other for household and family expenses and cooked and ate dinner with each other almost every night]; Colon v Frias, 162 Misc 2d 36, 37, 40 [Civ Ct, Kings County 1994] [succession established where respondent and deceased tenant had separate passbook savings accounts and only tenant's account named respondent as "Totten" beneficiary]; Lerad Realty v Reynolds, NYLJ, Aug. 29, 1990, at 22, col 5 [Civ Ct, NY County] [family relationship found between respondent and deceased tenant of record, who shared apartment for five years, despite absence of joint bank accounts and tenant's "odd" practice of giving cash receipts for money respondent contributed to rent]). Moreover, it appears that Mr. Smythe himself had very little finances to "intermingle."
While Mr. Smythe visited Mr. Carrier's family a few times, Mr. Carrier formed a strong bond with Mr. Smythe's family, particularly his mother and brother Rick. Mr. Carrier would visit with Mrs. Smythe at her assisted living home, lived with her for a six-week period in their apartment, and served as an honorary pallbearer at her funeral, a position usually reserved for family members. Mr. Carrier attended a 60th birthday party for Rick and visited Rick and his wife in Las Vegas, one time without Mr. Smythe ( see Colon v Frias, 162 Misc 2d at 38-39 [participation at family gatherings cited as factor in finding a family relationship existed]). Mr. Smythe and Mr. Carrier also took weekend trips together, went on picnics, and had dinner parties with friends. More commonly though, they ate dinner together almost every night in the apartment, with Mr. Smythe cooking the meals and Mr. Carrier cleaning the dishes afterwards ( see e.g. RHM Estates, 18 AD3d at 327 [respondent and decedent lived together for 15 years, shared holiday and birthday celebrations, traveled together and traditionally ate breakfast together]; South Pierre Assocs. v Mankowitz, NYLJ, Jan. 18, 2006, at 20, col 1 [Civ Ct, NY County] [respondent and tenant shared 10-year relationship in subject apartment, shared household chores such as cooking cleaning and shopping, and had joint bank account; respondent paid a portion of monthly rent, and visited tenant's mother regularly]; Lamarche v Miles, NYLJ, Nov. 4, 2005, at 19, col 1 [Civ Ct, Kings County] [respondent and deceased tenant shared their lives socially with friends and family, ate all their meals together for nearly 20 years, and cared for each other, with respondent doing the shopping, cooking and cleaning for disabled tenant]).
There was no formalized legal obligations between Mr. Smythe and Mr. Carrier as respondent testified that they did not want to make their relationship known. They had no wills and did not grant each other power of attorney. They never filed for a domestic partnership, nor did they file health care proxies. Although formalizing legal obligations is one factor to consider, it is not necessary for finding that an emotional and financial commitment and interdependence between respondent and the tenant of record existed ( see Sullivan, NYLJ, Nov. 22, 1995, at 26, col 6 [parties "had limited income, no jointly owned property, and therefore no need for a will or domestic partner agreement because their economic situation did not require any"]). Mr. Carrier's life insurance policy listed his only brother, Ronald, and not Mr. Smythe, as beneficiary as recently as February 2004. Respondent credibly testified that he did so because his brother, Ronald, was most in need of financial assistance. The fact that respondent made special provisions for a relative of apparently limited resources does not mean that an emotional and financial commitment and interdependence with Mr. Smythe did not exist ( see Lamarche v Miles, NYLJ, Nov. 4, 2005, at 19, col 1 [respondent entitled to succession on basis of family relationship with deceased tenant even though decedent had two life insurance policies naming his sister and mother, respectively, as beneficiaries]; Colon v Frias, 162 Misc 2d at 40 [tenant's failure to take out life insurance in favor of respondent does not negate family relationship between parties entitling respondent to succession]; Lerad Realty v Reynolds, NYLJ, Aug. 29, 1990, at 22, col 5 [respondent entitled to succession on basis of family relationship with deceased tenant even though decedent had two life insurance policies naming his brother as beneficiary]).
Significantly, Mr. Smythe filled out DHCR Form RA-23.5 in 2005 naming Mr. Carrier as a "family member" who lived with him in the apartment. This form lists the factors one should consider in determining whether there is a family relationship. Mr. Smythe looked at these factors on the form, the same ones being considered in this case, and set forth in writing his belief that Mr. Carrier satisfied them. By filling out this form and listing Mr. Carrier as a family member, Mr. Smythe notified the petitioner of his desire that Mr. Carrier succeed to the apartment.
Mr. Smythe and Mr. Carrier never held themselves out as a couple to their families, their co-workers, or society as a whole. It has been held to be "unrealistic" to expect a gay couple to hold themselves out as a family to the public or family members ( South Pierre Assocs. v Mankowitz, NYLJ, Jan. 18, 2006, at 20, col 1, citing Lerad Realty v Reynolds, NYLJ, Aug. 29, 1990, at 22, col 5; see also Lamarche v Miles, NYLJ, Nov. 4, 2005, at 19, col 1). While they did not publicly hold themselves out to be a couple as a "traditional" couple would, there was the credible and consistent testimony from five close mutual friends to the fact that they were, and appeared to be, a couple. There are also numerous photographs and postcards in evidence showing a similar closeness between the two. "A paucity of documentation to show financial and emotional interdependence is not fatal when there are greeting cards, photographs, and testimony attesting to the familial relationship shared" ( 176 E. 3rd St., LLC v Wright, NYLJ, Jan. 19, 2001, at 26, col 5 [App Term, 1st Dept]; see also Lamarche v Miles, NYLJ, Nov. 4, 2005, at 19, col 1).
CONCLUSION
Respondent has proved an emotional and financial commitment and interdependence as required by RSC § 2520.6 (o) (2) and, based on the totality of the evidence, a dedicated, caring and self-sacrificing family relationship between Mr. Carrier and Mr. Smythe ( see Braschi, 74 NY2d at 213). As Mr. Carrier's relationship with Mr. Smythe meets the criteria set forth in RCS § 2520.6 (o) (2), he is entitled to succeed to the apartment. Accordingly, the petition is denied.
Petitioner is directed to provide respondent with a rent stabilized renewal lease naming him as a tenant within twenty (20) days of the date of this decision (RSC § 2523.5 [b] [1]).
The clerk is directed to mail a copy of this decision to all parties.
This constitutes the decision and order of the court.