Opinion
Index No. 64964/2017 NYSCEF Doc. No. 80
07-16-2024
46-54 WADSWORTH PROPERTY LLC, Petitioner, v. RAFAEL ALMONTE, Respondent.
Unpublished Opinion
DECISION/ORDER
HON. JACK STOLLER, J.H.C.
46-54 Wadsworth Property LLC, the petitioner in this proceeding ("Petitioner"), commenced this holdover proceeding against Rafael Almonte ("Respondent"), a respondent in this proceeding, and Dorotea Lopez ("Co-Respondent"), another respondent in this proceeding, seeking possession of 54-60 Wadsworth Terrace, Unit 55, New York, New York ("the subject premises") on an allegation that Co-Respondent failed to maintain the subject premises as her primary residence and that Respondent's occupancy was derivative of Co-Respondent's tenancy. Respondent interposed an answer with a defense of succession. Petitioner discontinued this proceeding as against Co-Respondent. The Court held a trial of this matter on February 5, 2024, May 13, 2024, and May 3 L 2024. and adjourned the matter to June 28, 2024 for post trial submissions.
The trial record
Petitioner proved that it is the proper party to commence this proceeding; that Co-Respondent had been the rent-stabilized tenant of the subject premises; that Co-Respondent permanently vacated the subject premises; that Respondent remained in possession of the subject premises after Co-Respondent vacated; and that Petitioner caused the appropriate predicate notices to be served prior to the commencement of this proceeding.
Petitioner and Respondent stipulated that Respondent is Co-Respondent's son. Petitioner and Respondent also stipulated to the admissibility of a deed for a condominium in Miami ("the Other Address") dated October 28, 1999 that identifies Respondents as grantees and tenants-in-common of the Other Address; Respondent's driver's license, issued on August 8, 2014 showing the subject premises as Respondent's address; a letter from Respondent's employer in the Bronx showing that the subject premises was Respondent's address and that he worked for them from April 13, 2015 through May 15, 2015 and contemporaneous documentation thereto, including a W-4 form; an application, paystubs, and a W-4 form from another employer of Respondent placing him at the subject premises from September through December of 2017; paystubs and a document from another employer in Manhattan showing Respondent working with it from June of 2015 through May of 2017, with the subject premises as Respondent's address; Respondent's federal and New York State income tax returns for 2015 and 2016, showing the subject premises as Respondent's address; Respondent's W-2 forms for 2015, 2016, and 2017, showing the subject premises as Respondent's address; Respondent's bank statements for intervals ending on January 8. 2015 through January, 2018, showing the subject premises as Respondent's address; records from Respondent's doctor, with an address in Manhattan, showing a number of referrals for Respondent from 2011 through 2017; records showing that Co-Respondent had a joint bank account with Ramona Mercado ("Co-Respondent's Neighbor") going back to 2007, using the subject premises as the address from statements ending January 2, 2014 through July 4, 2016; a letter from Co-Respondent's doctor in New York stating that Co-Respondent last was at their office on June 8, 2016; Co-Respondent's surrender of the subject premises, dated December 13, 2017; Co-Respondent's application for benefits under the Senior Citizen Rent Increase Exemption ("SCRIE") dated April 3, 2017, which stated that Respondent lived in the subject premises; and a letter from a doctor in Florida stating that Co-Respondent received care for a fractured femur on November 19, 2016 and was unable to travel due to surgery and physical therapy.
Respondent testified that the subject premises is a two-bedroom apartment; that he is 64 years old; that Co-Respondent is his mother; that he moved to the subject premises in 1974 when he was 15 years old; that he moved in with Co-Respondent; that he went to high school at 191st and Audubon, the George Washington High School; that he moved out three times; that he first moved out in 1984 or 1985 or 1986 to 186th and Wadsworth Avenue, about five blocks away; that he lived there for about two years; that he went back to the subject premises afterward; that he moved out again around 2000 to New Jersey because he was looking for something different; that he lived there for one year and then moved back to the subject premises; that Respondents co-own the Other Address because he had a sister named Mercedes Almonte ("Respondent's Sister") who needed a place to live and she was not working so they thought it would be better to buy the Other Address under his name; that after the Other Address was purchased no one was really living there but then Respondent's Sister moved in; that another sister was helping Respondent's Sister; that he came to Miami once a year when he was working as a school bus driver, since he had summers free; that he moved to the Other Address in 2005 because he took a buyout from his job; that he lived in the Other Address for five years, until 2010; that he then returned to the subject premises because they were living there since the early 1970s and it was good to be back with Co-Respondent; that he continued to live in the subject premises since 2010; that Co-Respondent lived with him in 2010; that Co-Respondent now lives in Miami; that bills were in Co-Respondent's name; that he helped Co-Respondent according to whatever she needed; that Co-Respondent asked him to help her; that he did different jobs when he came to New York; that he was working as a bus driver most of the time because he has a commercial driver's license; that his primary care doctor has a Chinese last name; that his doctor's office is a ten-minute walk from the subject premises; that Co-Respondent came to the Other Address once a year; that in the summer of 2016, around June or July, Co-Respondent went to Miami; that Co-Respondent was really sad because one of her brothers died; that she wanted to go to Miami to forget about her brother; that Co-Respondent's health was good when she went to Miami but her health was good; that he visited Co-Respondent in 2016 and in 2017 but he did not recall the dates; that he went to Miami in 2017 to comfort Co-Respondent because she had gone through a lot of surgeries at that time; that Co-Respondent had breast cancer and she was not the same because of the chemotherapy; that Co-Respondent was 86 at that time; that Co-Respondent had two more surgeries, one on her thyroid and one when she fell down; that she fell down in November of 2016; that Co-Respondent had to go through surgery, rehab, and chemotherapy in Miami; that Co-Respondent could not come back to the subject premises after that; that Co-Respondent's personal property was in the subject premises when this was going on; that Co-Respondent was receiving mail at the subject premises; that Co-Respondent stayed with someone named "Loida" and someone else when she was in Court to sign a stipulation on December 13, 2017 because Co-Respondent could not walk up to the fifth floor where the subject premises is; that they never talked about Co-Respondent moving out, but it was clear that Co-Respondent would be unable to return to a fifth-floor walk-up; that Co-Respondent had visited Miami to visit her two sisters and her granddaughter; that Co-Respondent started living in Miami more permanently after she fell and after she had surgery; that the name changed in Con Ed statements in 2018; that he paid the rent in Co-Respondent's name when Co-Respondent was in Miami; that he thought that Co-Respondent was going to return; that Respondent never spoke to Petitioner about getting his name on the lease because he never saw it as necessary because they were living in the subject premises for so long and they never had a problem before; and that he never talked to Petitioner about Co-Respondent moving out.
Respondent testified on cross-examination that he bought the Other Address before he moved to New Jersey; that he took out a mortgage for the Other Address from a private person and then two banks, one American and one GMC; that the Other Address was not that expensive, maybe S70.000; that his down payment was $460; that he paid $20,000 to the private person; that the Other Address is a condominium; that the condominium association bills for maintenance every month; that when he bought the Other Address the maintenance was about $188; that he paid the maintenance up until this proceeding commenced: that he did not remember what his mortgage payment was; that he refinanced with GMC; and he does not recall how much the amount was.
Petitioner's counsel read into the record Respondent's deposition testimony to the effect that his monthly mortgage payment for the Other Address was S462; that the loan dated back to the beginning of 2000; that he refinanced in 2008; that he had not paid it since 2009; and that the last payment was over $900. Respondent testified that his deposition testimony was accurate.
Respondent testified on cross-examination that he borrowed $20,000 from an individual; that he refinanced for $70,000; that he could not keep up with the payments; that his family still owns the Other Address; that there is no mortgage on the Other Address; that the Other Address has not been paid off; that in 2008 everyone was having problems and the bank never took over the Other Address; that in 2004 he got a buyout from his New York City job before he moved to Miami; that he was working Miami as a bus driver before he came to New York; and that it would be hard for him to name the companies he worked for from 2010 to 2015.
Co-Respondent testified that she lives in the Other Address; that she is 91 years old; that she has six children, including Respondent and Respondent's Sister; that before she lived in Miami she lived in New York; that she lived in the subject premises going back to the 1970s; that the subject premises is on the fifth floor; that she walked up the stairs to the subject premises; that Respondent lived with her at the subject premises; that Respondent lived with her; that Respondent spent some time with her in Miami; that Respondent lives on her pension; that Co-Respondent's Neighbor is like a daughter to her; that Co-Respondent's Neighbor lives on Wadsworth Terrace in Manhattan, two buildings from where Co-Respondent lived; that Co-Respondent's Neighbor and she visited each other frequently; that they shared a bank account in case she needed some money; that Co-Respondent's Neighbor bought food and a lot of things; that her church was about ten blocks from the subject premises; that her doctor was about six blocks from the subject premises; that she did not remember why they bought the Other Address; that she has two daughters and a granddaughter in Miami; that she did not move into the Other Address when she purchased it because she did not buy it for her to live in it, but rather for Respondent's Sister; that she visited the Other Address once a year and sometimes two years would go by without her visiting; that that when she visited the Other Address she stayed the longest in 2016; that in 2016 she broke a leg; that Respondent's Sister was with her when this happened; that she spent time in Miami because her daughters' brother died; that she was 84 years old when she fell; that she was taken to the hospital when she fell; that Respondent's Sister was with her; that they operated on her; that they gave her a lot of therapy; that she was hospitalized for fourteen days; that she did not have therapy in New York because she could not go up the stairs with her broken leg; that the therapy lasted for six months; that she still gets therapy at home; that Respondent's Sister was in the subject premises when she was getting therapy there; that she then got breast cancer and thyroid cancer; that she had cancer surgery in 2017 but she does not remember the date; that her personal property, including her furniture, was in New York at the subject premises during this time; that she wanted to be in New York because she is more independent in New York because there is better public transit; that when she returned to New York she stayed with another friend, Co-Respondent's Neighbor and someone named Gloria; that she would not say that she moved out; that all of her stuff is in New York; that she did not have a doctor in Florida before she fell; that she does not feel that she really moved out of the subject premises at all; and that she felt like she changed her residence from New York to Florida when she broke her leg and could not go up the stairs.
Co-Respondent testified on cross-examination that it was the intention for Respondent's Sister to live in the Other Address; that Respondent's Sister did not move in right away; that she does not remember the year that Respondent's Sister moved into the Other Address; that Respondent's Sister lived there continually since Respondent's Sister since moved in; that Respondent lived in the subject premises; that Respondent was out for a year or a little bit longer than a year; that she does not remember if Respondent was out of the subject premises for more than one time; that when Respondent came back he came back to stay; that she did not know where Respondent was living when he was not in the subject premises; and that she shared expenses.
Petitioner submitted into evidence a document Respondent signed saying that he began living in the subject premises on January 1,2014. Respondent testified on cross-examination that he came back from Miami in 2010; that he probably paid utilities for the Other Address from 2010 through 2013; that Co-Respondent had her hip fracture in November of 2016; that he was not with Co-Respondent when this happened; that Co-Respondent had been at the Other Address for five months before the accident; that he paid rent and utilities for the subject premises from 2010 through 2016; that Co-Respondent received a SCRIE at some point; that rent was paid in Co-Respondent's name by money order; that he was paying most of the bills; that Co-Respondent did not ask him for his income information when she was applying for SCRIE; that Co-Respondent was paying the rent from 2010 to 2015; that Co-Respondent received Social Security; that he believed that Co-Respondent notified SCRIE of the Social Security income but not his income; that they lost the Other Address because they stopped paying the mortgage; that after 2016 the maintenance and utilities were being paid by Co-Respondent with his help; that from 2010 only he and Co-Respondent lived in the subject premises; that the super did not live in the subject premises from 2010 through 2016; that he had a one-year lease for the New Jersey apartment; that he did not move his personal property to Miami; that he moved his clothes to the Other Address but not furniture; that he drove from New York to Miami; that he changed his driver's license to Florida; that he no longer has the Florida license; that in 2010 he changed the license back to New York; that he had a license in Florida for five years; that he did not hire a moving company in 2010; that he drove back to New York; that things did not work out for him in Miami by 2010; that he worked without pay and the company changed hands; that there was litigation but no one got paid; that he did not see a doctor in Miami in the five years that he lived there; that he last saw a doctor in New York one-and-a-half years before his testimony; that he gets an exam once a year; that he has health insurance; that he was not sure if he had health insurance in 2010 or 2011; that he did not remember when he obtained health insurance, probably 2004 or 2005; that he had a lot of documents showing that he lived in the subject premises from 2010 through 2015; that he had a license; that he had a job with something called Esperanza Center; that he might need another one if he lost his license; that he was not sure if he lost his license; that he had to take a medical test to maintain his commercial license; that he got a new license in 2010 or 2011; that his Respondent's Sister lived in the Other Address from 2002 to the present day; that Respondent's Sister did not help with rent; that the Other Address is a one-bedroom apartment; that Respondent's Sister did not live there when he was living there; and that Respondent's Sister stayed with his other sister when he was living in the Other Address, from 2005 to 2010.
Respondent testified on redirect examination that he does not remember who created the document that he signed; that he wanted to let Petitioner know that his neighbors used him; that he used the date January 1, 2014 because he heard people say that was required for succession; that he had already been living in the subject premises as of January 1, 2014; that he got medical attention from 2015; that the electric bill is in his name for the Other Address; that he is no longer paying for it; that Co-Respondent is paying for it now; that she started paying for the bill in 2016 or 2017; that in fact that the super did live in the subject premises; that at the time that Pedro the super was living in the subject premises he was in Miami; that when he came back from Miami, Pedro was no longer living in the subject premises; that he understood that the super lived in the subject premises for a few months; that Co-Respondent put the super in the subject premises to share with her because the super did not have a place to stay; and that the super's wife lived there too.
Respondent testified on recross-examination that the super was already gone by the time that he returned from Miami and that Co-Respondent told him that the super used to lived with her.
Co-Respondent's Neighbor testified that she lives at 45 Wadsworth Apt. 6D; that she is seventy-five years old; that she has lived in her building since 1987; that she moved to her current apartment in 1995; that her home is three buildings down from the subject premises; that Co-Respondent is like a second mother to her; that Co-Respondent is ninety-two years old; that she has known Co-Respondent about fifty years; that Co-Respondent has lived at the subject premises; that Co-Respondent now lives in Miami; that Respondent is Co-Respondent's son and like a son to her; that she has known Respondent for thirty or forty years; that Respondent lives at the subject premises; that she visited the Building in 2015 and 2016 sometimes once a week, depending; that they were always accustomed to visit one another; that when she came over, Respondent would be there; that in 2016 Co-Respondent was in Miami to visit Co-Respondent's daughter; that she had a joint checking account with Co-Respondent because they have been close and trusted one another and Co-Respondent asked her to be on her bank account to help out Co-Respondent; that she went to the pharmacy given that Co-Respondent lived on the fifth floor; that Co-Respondent's health was okay when Co-Respondent lived in New York; that when Co-Respondent suffered a fall they discovered that she had breast cancer; that she communicated with Co-Respondent every week while Co-Respondent was in Miami; that after the fall she saw Co-Respondent in 2017; that Co-Respondent stayed in her apartment for a week because it was impossible for her to climb the stairs to the subject premises; and that Co-Respondent then went to live with a friend of hers.
Co-Respondent's Neighbor testified on cross-examination that Co-Respondent had six children, named Wilfredo, Luis, Rafael, Mercedes, Manuel, and Jackelin; that Jackelin lives in Miami; that Jacklin has lived in Miami for many years; that Manuel has lived in the Dominican Republic for a couple of years; that before that Manuel lived in New York, in Riverdale; that Respondent's Sister has lived in Miami for many years; that Luis has lived in New Jersey for many years; that Wilfredo has lived in the Dominican Republic for many years; that she first learned about Co-Respondent's fall in 2015 or 2017, she's not sure of the exact date; that she would recognize Co-Respondent's signature; that Respondent lived in Miami in 2009 or 2010, she is not sure; that in 2010 Respondent was in New York; that in 2015 and 2016 Respondent was driving a school bus; that she did not know Respondent's work hours because she did not live with him; that she would visit Co-Respondent at 11 a.m. or Co-Respondent would come to her apartment; and that she seldom saw Co-Respondent to medical appointments.
Respondent's Sister testified that she lives in Miami; that she is sixty-three years old; that Respondent is her brother; that Co-Respondent is her mother; that she was born in the Dominican Republic; that she moved to the United States on March 30, 1975; that she came to the subject premises; that when she moved in, Co-Respondent, her sister Iris, and her brother Manuel lived there; that she moved into the Other Address in 2010; that her sister Iris and Co-Respondent also live in Miami; that her sister lives a fifteen-minute drive from her; that she was living by herself when she first moved; that Co-Respondent moved in with her permanently at the end of 2017; that Co-Respondent was living in the subject premises before that; that Co-Respondent used to visit once a week and spend three or four weeks with her and her sister; that in June or July of 2016, Co-Respondent visited her; that Co-Respondent had an accident in the subject premises when she was eighty-four years old, in October; that Co-Respondent had a fall; that she was unable to pick her mother up; that they called 911; that Co-Respondent went to an emergency room with her and her sister; that Co-Respondent was hospitalized for one or two weeks; that Co-Respondent must have spent three or four days waiting for a surgeon to be available; and that Co-Respondent then had surgery.
Petitioner and respondent stipulated that Co-Respondent went into rehab from the accident and discovered that she had breast cancer.
Respondent's Sister testified that Co-Respondent returned to New York at the end of November of 2017; that Co-Respondent had a double mastectomy and thyroid cancer; that she realized that Co-Respondent had to live with her on a permanent basis when Co-Respondent returned from New York; that she knew that Co-Respondent was in no condition live in New York because Co-Respondent could not walk five flights to get to the subject premises; that she gave Co-Respondent her bedroom and she altered certain things in the bathroom, taking Co-Respondent's state into account; that the Other Address has one bedroom; that she sleeps in the living room; that there are no steps where she lives and Co-Respondent can use the elevator; that Co-Respondent never moved Co-Respondent's personal property to Miami; that she started receiving mail other than medical bills for Co-Respondent in Miami around the beginning of 2018; and that Co-Respondent returned to New York in 2017 because Respondent wanted to accompany Respondent to Court.
Respondent's Sister testified on cross-examination that she was last in New York for her nephew's wedding maybe twelve years ago.
Petitioner submitted into evidence a SCRIE application signed Co-Respondent, listing Respondent as living there and that her income was $9,600.
Radhames Del Villar ("the Former Super") testified that he was the super of the building in which the subject premises is located from 2002 to 2017; that he lived in the super's apartment; that he had a porter and a handyman; that he knows the subject premises; that Co-Respondent was the owner of the subject premises; that he last saw Co-Respondent a year ago; that she wanted Respondent's name on the lease; that Co-Respondent used to live in the subject premises; that in 2008, a porter, Pedro Eres, moved into the subject premises because Co-Respondent was back and forth in the subject premises; that he did not see Respondent in the subject premises from 2007 through 2009; that Respondent used to live in Florida; that Respondent used to stay in the subject premises; that Respondent returned from Florida in 2009; that Co-Respondent was not there when Respondent came back; and that Co-Respondent lived in Florida at the time.
The Former Super testified on cross-examination that he still lives in the building; that he was not the super in 2019; that he was in the subject premises many times when he was the super; that he saw Co-Respondent in 2007 or 2008 and his porter lived there as well; that 65 tenants live in the building; that there are five floors; that he saw every single tenant in the Building; and that he was in the subject premises in 2007.
Discussion
A succession defense may be raised in defense of a nonprimary residence holdover proceeding. Malone v. Spinsky, 31 Misc.3d 1239(A)(Civ. Ct. N.Y. Co. 2011). Co-Respondent's surrender of the subject premises, Petitioner's discontinuance against Co-Respondent, Respondent's assertion of a succession defense, and the parties' stipulation to litigate the succession defense in this matter all demonstrate the ripeness of the succession issue before this Court in this matter.
A family member can succeed to a Rent-Stabilized tenancy if the family member resided with the tenant for two years immediately preceding the permanent vacatur of the tenant, "permanent vacatur" meaning the date when the tenant permanently stops residing in the housing accommodation. Public Housing Law §14(4)(a), 9 N.Y.C.R.R. §2523.5(b)(2). The parties do not dispute that, as Co-Respondent's son, Respondent is Co-Respondent's family member.
Respondent submitted into evidence documentation probative of his primary residence at the subject premises from 2014 through 2017, including tax returns, Glenbriar Co. v. Lipsman. 5 N.Y.3d 388, 392-393 (2005), Second 82nd Corp, v. Veiders, 146 A.D.3d 696 (1st Dept. 2017), Columbus Manor, LLC v. Turnbull, 63 Misc.3d 143(A)(App. Term 1st Dept. 2019), W-2 forms, Id., pay stubs, Cox v. J.D. Realty Assocs., 217 A.D.2d 179, 184 (1st Dept. 1995), Brg 321 LLC v. Hirschorn, 52 Misc.3d 131(A)(App. Term 1st Dept. 2016), bank statements, 300 East 34th St, Co. v. Habeeb, 248 A.D.2d 50, 55 (1st Dept. 1997), Brg 321 LLC, supra, 52 Misc.3d at 131(A), and a driver's license. Glenbriar Co., supra. 5 N.Y.3d at 392-393, 300 East 34th St. Co., supra, 248 A.D.2d at 55, Columbus Manor, LLC, supra, 63 Misc.3d at 143(A). Significantly, the evidence shows that Respondent is a bus driver and that he had employers in New York City in that capacity from 2014 through 2017.
The only exhibits countervailing Respondent's evidence are Co-Respondent's understatement of the household income in a SCRIE application and Respondent's name on a deed dated in 1999 for the Other Address. However, an understatement of household income on a SCR IF application cannot impair an entitlement to succession. Levine v. Costanzo, 1994 N.Y. Misc. LEXIS 759 (App. Tenn 1st Dept.), leave to appeal denied, 1994 N.Y.App.Div. LEXIS 8461 (1st Dept. 1994), LN. Covington Corp, v. Surdo, N.Y.L.J. July 8, 1998 at 31:4 (Civ. Ct. N.Y. Co.).
Respondent's name on a deed for the Other Address, by itself and in the face of Respondent's evidence, bears limited probative value. Rent-stabilized tenants with much stronger ties to alternate addresses nevertheless maintain their New York City rent-stabilized apartments as their primary residences. Glenbriar Co., supra, 11 A.D.3d at 353-354 (a New-York apartment was still a tenant's primary residence when she spent six months out of the year in Florida); 310 E. 23rd LLC v. Colvin, 41 A.D.3d 149, 149-150 (1st Dept. 2007)(a house a tenant owns in Upstate New York used as a home address in certain tax-related documents is merely the tenant's second residence that the tenant only used on weekends, holidays and vacations, not her primary residence); Four Winds Assocs. v. Rachlin, 248 A.D.2d 352, 353 (2nd Dept. 1998)(a tenant who owns a condominium in Florida, registered her automobile there, and had a restricted Florida driver's license still maintained her primary residence at her rent-stabilized apartment in New York City when she voted in New York, paid New York income taxes, possessed a New York State driver's license, received ongoing care from medical professionals in New York, and kept her clothing in the New York apartment); RSP 86 Prop. LLC v. Sylvester, 47 Misc.3d 137(A)(App. Tenn 1st Dept. 2015)(a rent-stabilized tenant who maintains seasonal homes in the Hamptons and in Florida does not vitiate a substantial physical nexus to the rent-stabilized apartment where the tenant's most important documents, such as his tax returns, driver's license, voter registration, as well as bank and credit card statements adhere); Ninth Ave. Realty LLC v, McKay, 29 Misc.3d 136(A)(App. Tenn 1st Dept. 2010) (the ownership and weekend and vacation use of a house in Orange County, New York does not mean that rent-stabilized tenants are not using their rent-stabilized apartment as their primary residence when their rent-stabilized apartment is fully-furnished and they spend well in excess of one hundred eighty-three days at the rent-stabilized apartment, and where they maintain full-time jobs in Manhattan); ST Owner LP v. Ward. 21 Misc.3d 133(A)(App. Term 1st Dept. 2008)(even when a rent-stabilized tenant owned a house in New Jersey and registered her car there, tire rent-stabilized premises in New York was still her primary residence when she only used the New Jersey house on the weekends). The documentary evidence in the record connects Respondent more strongly to the subject premises than the tenants in the above authority were connected to their rent-regulated apartments. The documentary evidence further shows that Respondent has weaker ties to the Other Address than the tenants in the above authority to their alternate addresses. Accordingly, Respondent has therefore proven that he primarily resided in the subject premises from 2014 through 2017.
Petitioner disputes that Co-Respondent resided in the subject premises during Respondent's occupancy thereto. Petitioner's evidence as such consists of the Former Super's testimony. The testimony of an employee of a landlord that a tenant does not live in an apartment is "hardly dispositive" on the issue of whether the tenant did in fact live there. 300 East 34th St. Co., supra, 248 A.D.2d at 53, Second-82nd St. Corp, v. Vrionis, 2001 N.Y. Misc. LEXIS 943 (App. Tenn 1st Dept. 2001). The testimony of four witnesses that Co-Respondent physically occupied the subject premises bears some probative value as well, although as witnesses who are either directly interested or are family members, the probative value of their testimony is limited as well. See Coleman v. New York City Transit Authority, 37 N.Y.2d 137, 142-143 (1975). The bank statements placing Respondent at the subject premises are more probative, 300 East 34th St. Co., supra, 248 A.D.2d at 55, and the letter from Respondent's doctor in New York was consistent with the testimony that Respondent traveled from New York to Florida in the summer of 2016 before she had her fall in November of 2016. The preponderance of the evidence therefore shows that Co-Respondent resided in the subject premises at the very least until June of 2016, although the exact date of Co-Respondent's permanent vacatur is not as clear.
While the concept of a "permanent vacatur date" under the Rent Stabilization Code is a legal construct that appears to contemplate a clean break between living in one place on one day and moving out the next day, this construct does not necessarily align neatly with the uncertainties often inherent in the decisions people make in real life, SF 878 E. 176th, LLC v. Molina, 65 Misc.3d 1216(A)(Civ. Ct. Bronx Co. 2019), that can make it impossible to identify a precise permanent vacatur date. 700 Bklyn Realty, LLC v. Samuel, 69 Misc.3d 126(A)(App. Tenn 2nd Dept. 2020), EB Bedford LLC v. Lee, 64 Misc.3d 39, 42 (App. Term 2nd Dept. 2019).
The particular circumstances of this proceeding involve an elderly tenant had a fall while she was out of state that necessitated surgery and rehabilitation, followed by a diagnosis of cancer that occasioned chemotherapy. Common sense dictates that recovery from surgery, rehabilitation, and chemotherapy can complicate the ability of such an elderly tenant to make the trip from Florida back to New York. Just as a senior citizen in a facility who has no intention of relinquishing their rent-regulated apartment does not per se run afoul of their requirement to maintain the apartment as their primary residence, Soybel v. Gruber, 136 Misc.2d 430 (Civ. Ct. N.Y. Co. 1987)(Tom, J.), the medical difficulties that Co-Respondent was experiencing did not compromise the efficacy of her tenancy at the subject premises.
Even though Co-Respondent's absence from the subject premises from June of 2016 through her surrender in December of 2017 complicates pinpointing a date of permanent vacatur, as noted above, Respondent proved that he resided with Co-Respondent at least from January of 2014, more than two years before any of those dates. Regulations providing for succession rights serve the important remedial purpose of preventing dislocation of long-term residents due to the vacatur of the head of household. Jourdain v. N.Y. State Div, of Hous. & Community Renewal. 159 A.D.3d 41, 45 (2nd Dept. 2018), citing Murphy v. N.Y. State Div, of Hous. & Community Renewal. 21 N.Y.3d 649, 653 (2013). This policy underscores the point that a lack of precision as to a date of permanent vacatur fails to add up to a compelling reason to deny succession to a family member who had been residing in a unit for a long period of time with a tenant. Compare Pers Realty LLC v. Granville, 73 Misc.3d 121(A)(Civ. Ct. Kings Co. 2021). Accordingly, it is ordered that the Court dismisses this proceeding on the ground that Respondent has proven an entitlement to succeed to Co-Respondent's tenancy.
This constitutes the decision and order of this Court.