Opinion
No. 86868/2013.
12-17-2014
Joann WILLIAMS, Petitioner, v. Yvonne WILLIAMS, Respondent.
Opinion
Joann Williams, the petitioner in this proceeding (“Petitioner”), commenced this holdover proceeding against Yvonne Williams, the respondent in this proceeding (“Respondent”) seeking possession of 547 West 147th Street, Apt. E2, New York, New York (“the subject premises”) on the ground that Petitioner terminated Respondent's tenancy on thirty days' notice. Respondent, who appeared by a guardian ad litem appointed by the Court (“GAL”), interposed an answer of general denial and that Petitioner is not a proper party to commence this proceeding pursuant to RPAPL § 721. The Court held a trial on this matter.
Petitioner introduced into evidence a deed showing that the building in which the subject premises is located (“the Building”) is owned by a Housing Development Fund Corporation (“the HDFC”), organized pursuant to Article XI of the Private Housing Finance Law. Petitioner introduced evidence that the HDFC is in compliance with the registration requirements of MDL § 325.
Petitioner testified on her own behalf. Petitioner testified that Respondent rented a room in the subject premises in January of 1999 and that she paid $300.00 a month.
On cross-examination, Petitioner testified that Respondent was Petitioner's father's roommate at the subject premises. Petitioner testified on cross-examination that she rents another room in the subject premises to someone else. Petitioner testified on cross-examination that she is not related to Respondent or Petitioner's other subtenant. Petitioner testified that she lived in the subject premises in the early 1990s with her father and that the Building was not a residential cooperative corporation when he first moved in. Petitioner testified on cross-examination that her father died in 2005 without a will and that at some point the board of the HDFC voted to approve the transfer of the shares appurtenant to the subject premises to Petitioner's name. Petitioner testified on cross-examination that her father gave her an actual copy of shares but that her husband misplaced the shares when they moved. Petitioner testified on cross-examination that the monthly maintenance for the subject premises in is $832.00 a month.
Petitioner testified on cross-examination that Respondent was evicted from public housing and had no place to live, so her father, who was not related to Respondent, rented Respondent a room in the subject premises. Petitioner testified on cross-examination that she wanted possession of the subject premises back from Respondent partly because of nonpayment and partly because Respondent acts erratically and damages the subject premises.
Petitioner testified on redirect examination that the last time she collected rent from Respondent was in 2012.
The president of the board of the HDFC (“the HDFC president”) testified for Petitioner. The HDFC president testified that she has been president for twenty-eight years and that she was a treasurer before she became president. The HDFC president testified that she has known Petitioner for at least twenty years, and that she knows Petitioner because she knew Petitioner's father. The HDFC president testified that Petitioner owns the 250 shares that are appurtenant to the subject premises. Petitioner introduced into evidence a ledger of shares dated October 30, 1992, showing that Petitioner, by her former name Joann Jordan, was a co-owner of the 250 shares appurtenant to the subject premises along with her father. The HDFC president testified that Petitioner has been paying rent for the subject premises since Petitioner's father died. Petitioner also introduced into evidence a proprietary lease, although the first two pages of the proprietary lease are missing. The commencement date of the proprietary lease is September 30, 1992.
The HDFC president testified on cross-examination that she did not have a copy of the share certificate. The HDFC president testified that the board of the HDFC never formally met to vote to confer shareholder status on Petitioner because Petitioner's father just put Petitioner on her shares, like the HDFC president did with her daughter. The HDFC president testified on cross-examination that the HDFC followed Petitioner's father's wish in keeping Petitioner's name on the lease. The HDFC president testified on cross-examination that the City had taken over an apartment when a shareholder died. The HDFC president testified on cross-examination that Petitioner's failure to live in the subject premises was not an issue that the board of the HDFC dealt with, although the HDFC president testified that the proprietary lease requires a shareholder to live in the apartment they own shares appurtenant to. The HDFC president testified that apartments for people in HDFC's were supposed to be set aside for persons with low incomes and that the board of the HDFC made no inquiry as to Petitioner's income.
The HDFC president testified that Respondent was living at the subject premises; that Respondent needs someone to look out for her, and that the proprietary lease allows non-family members to live at the subject premises.
The GAL testified that Respondent is mentally ill. The GAL testified that an officer of the HDFC told him that Respondent has lived in the subject premises since the 1980s, and about issues concerning payment of use and occupancy.
Only the HDFC can confer the possessory interest sufficient for Petitioner to obtain standing to commence this proceeding. Newell Funding LLC v. Tatum, 24 Misc.3d 597, 601 (Civ.Ct. N.Y. Co.2009). While the HDFC president testified to a highly informal process by which she purported that the HDFC recognized Petitioner as the holder of shares appurtenant to the subject premises, an interest in real property cannot be created or granted unless by operation of law or by a conveyance in writing, General Obligations Law § 5–703(1), a requirement that applies to ownership of shares in residential cooperative corporations. Gilgoff v. Maldonado, 8 Misc.3d 1016(A) (App. Term 1st Dept.2005), 1045 Anderson Ave. HDFC v. Mack, 3 Misc.3d 1109(A) (Civ.Ct. Bronx Co.2004).
Accordingly, under normal circumstances, a purported oral agreement with a board of directors of a residential cooperative corporation to vary the terms of, inter alia, a proprietary lease is void. Jones v. Fordham Hill Owners Corp., 225 A.D.2d 465, 466 (1st Dept.1996). This proposition takes on extra salience with regard to HDFC's. An important objective of Article XI of the Private Housing Finance Law, which establishes HDFC's, is to provide housing to low income families. 546 W. 156th St. HDFC v. Smalls, 43 AD3d 7, 13 (1st Dept.2007). Permitting shareholders to own stock in HDFCs without maintaining their appurtenant apartments as their primary residence undermines that goal. Accordingly, the typical proprietary lease in an HDFC, as the proprietary lease for this proceeding does, requires a shareholder to maintain the appurtenant apartment as that shareholder's primary residence. See, e.g., 167–169 Allen St. HDFC v. Ebanks, 22 AD3d 374 (1st Dept.2005), leave to appeal denied, 2006 N.Y.App. Div. LEXIS 1892 (1st Dept.2006), 406 W. 47th St. HDFC v. Picot, 2003 N.Y. Misc. LEXIS 1532(App. Term 1st Dept.2003). As the HDFC president testified, shareholders in the HDFC should be persons with low incomes.
Petitioner has not resided in the subject premises for at least fifteen years. The HDFC never made an effort to determine Petitioner's income. Petitioner does not have a stock certificate in her name. While the proprietary lease has Petitioner's name on it, Petitioner added it herself to Petitioner's father's proprietary lease after the HDFC and her father executed it. The board of the HDFC never held a meeting concerning the transfer of the shares appurtenant to the subject premises to Petitioner and no resolution confirming t-he transfer was entered into evidence. The HDFC president testified that the City should actually take the shares when a shareholder dies.
While there is some evidence in the record supporting a proposition that Petitioner has standing to commence this proceeding—Petitioner's payment of rent, Petitioner's name on a ledger of stock certificates, and the verbal acknowledgment of the HDFC president of Petitioner's status—this evidence is insufficient to overcome the absence of a proprietary lease in Petitioner's name, the absence of a stock certificate, and Petitioner's and the HDFC's disregard for the purposes of the Private Housing Finance Law. A balancing as such compels a finding of lack of standing. Compare Gordian v. Donovan, 6 Misc.3d 1028(A) (Civ.Ct. N.Y. Co.2004) (even a stock certificate and a proprietary lease may not be sufficient to demonstrate standing to commence a holdover proceeding if the totality of the circumstances otherwise outweighs those documents).
If the HDFC alone can confer upon Petitioner the possessory interest needed so she has standing, Newell Funding LLC, supra, 24 Misc.3d at 601, the record on this trial does not show that the HDFC has done so. The Court finds that Petitioner has not met her burden of proving that she is a proper party pursuant to commence this proceeding pursuant to RPAPL § 721. The Court dismisses this proceeding.
The parties are directed to pick up their exhibits withing 30 days or they will either be sent to the parties or destroyed at the Court's discretion and in compliance with DRP–185.
This constitutes the decision and order of this Court.