Opinion
No. 82645/13.
05-15-2017
50 LEFFERTS LLC, Petitioner, v. Shamel COLE et al., Respondent.
Kossoff, PLLC, New York, for Petitioner. Bedford–Stuyvesant Community Legal Services Brooklyn, for Respondent Shanicqua Cole's.
Kossoff, PLLC, New York, for Petitioner.
Bedford–Stuyvesant Community Legal Services Brooklyn, for Respondent Shanicqua Cole's.
GARY F. MARTON, J.
After considering the testimony and the other evidence at the trial of this holdover proceeding, the court makes the following findings of facts, reaches the following conclusions of law, and grants petitioner a judgment of possession after trial against Shaniquca Cole and after inquest against the other respondents. One or more warrants may issue forthwith without stay of execution but such issuance shall not preclude an application for relief pursuant to RPAPL § 753.
INTRODUCTION
The premises at issue is apartment 3N ("3N") at 50 Lefferts Avenue in Brooklyn, N.Y. It is a two-bedroom unit in a 95–unit building that was converted in 1996 to cooperative ownership. Thelma Williams was, until her death in June, 2013, the pre-conversion rent-stabilized tenant of record. Petitioner, the sponsor of the conversion, is the proprietary lessee of 3N and sues to recover possession on the ground that the respondents' rights of occupancy, if any, ended with Williams' death.
Shaniquca Cole is the only respondent to appear herein. She asserts the affirmative defense that pursuant to Rent Stabilization Code [9 NYCRR] § 2520.6(u) and § 2523.5[b], she is entitled to succeed to Williams' tenancy inasmuch as she is a grandchild of Williams and the apartment was their primary residences for the two years preceding Williams' death, i.e., June 11, 2011 through June 10, 2013. " ‘Primary residence’ is judicially construed as ‘an ongoing, substantial, physical nexus with the ... premises for actual living purposes' [ Katz Park Avenue Corp. v. Jagger, 11 NY3d 314, 317 (2008), quoting Emay Props. Corp. v. Norton, 136 Misc.2d 127, 129 (App Term, 1st Dep't, 1987) ]." 69–74 Thompson Realty LLC v. McNally, 71 AD3d 411 (1st Dep't, 2010).
In support of their positions, the parties offered hundreds of pages of documents and the testimony of 12 witnesses, seven for petitioner and five for respondent. With some frequency the testimony and the documents concerned events occurring both before and after the statutory two-year period. For just one example, respondent testified that she had lived at the premises since her birth in 1982. Nonetheless, "[u]nlike a nonprimary residence proceeding in which it is ‘generally desirable’ for the court ‘to evaluate the entire history of the tenancy’ ( 615 Co. v. Mikeska, 75 N.Y.2d 987, 988 [1990] ), our inquiry in this succession case is narrowly limited by the governing Code regulation to a clearly specified, finite time period, viz., the two-year period immediately preceding the tenant's permanent vacatur." 72A Realty Associates v. Kutno, 15 Misc.3d 100, 102 (App Term, 1st Dep't, 2007).
Petitioner presented its prima facie case through one witness, Daffodil Edwards, an employee of the building's managing agent, GFI Management. Respondent presented her affirmative defense through five witnesses: herself; Shamel Cole, respondent's brother and also a grandchild of Thelma Williams; Renee Dean, longtime partner of Shamel Cole, mother of his two children, and friend of respondent since childhood; Lonnie Fulford, former romantic partner of respondent, father of their son Shaheim Fulford, and son of Zenobia Cutchin; Zenobia Cutchin, mother of Lonnie Fulford, grandmother of Shaheim Fulford, and tenant of record of apartment 2D at 552 Gates Avenue, Brooklyn, NY
For rebuttal petitioner presented Monique Lewis, an employee of VIP Concierge which provides security at the building; Harlin Lascelles, the superintendent at the building and an employee of the cooperative; Jerome Moore, an assistant superintendent/handyman at the building, also an employee of the cooperative; Ted Papapostolou, an employee of Century 21 at which respondent was employed during some of the relevant two-year period; Shaun Buchanan, an employee of Sears/Kmart at which respondent was employed during some of the relevant two-year period; and Victorio Leon, an employee of GFI Management.
THE WITNESSES
Petitioner established its prima facie case with Daffodil Edwards' testimony and the documents introduced during her testimony. She is an employee of GFI Management which manages many buildings including the one in which 3N is located, and documents introduced during her testimony established that petitioner is the proprietary lessee of 3N and owns the appurtenant shares. Petitioner also established during Edwards' testimony that Williams was the rent-stabilized tenant of 3N, that she died on June 10, 2013, and that a petition, notice of petition, and predicate notice of termination were duly served.
In her defense, Shaniquca Cole testified that she has lived at the premises for her entire life and that she had never lived anywhere else. She testified that Thelma Williams was more of a mother than a grandmother to her, and that she was the primary caretaker of Thelma Williams during her final illness. She testified at some length about four documents (discussed infra) that showed that during the two-year period she used two other addresses—apartment 2D at 552 Gates Avenue and apartment 4M at 50 Lefferts Avenue—as her home address.
Shamel Cole testified that Thelma Williams was his grandmother, that respondent is his sister, that she never lived anyplace other than the premises, and that he too had lived at the premises except for the period July, 2011 to April, 2013, when he was incarcerated in the State of Georgia. He testified that while incarcerated he spoke by cellphone to Thelma Williams two to three times per week and that during these phone calls he often spoke to respondent as well. He testified that after his incarceration he was paroled to Thelma Williams and resumed living at the premises but a few weeks later moved out to live with Renee Dean, his partner of many years and the mother of his two children .
After the trial's conclusion counsel for respondent advised that Shamel Cole and Renee Dean had married each other.
Renee Dean testified that she has known respondent since they were teenagers, that respondent always lived at the premises, that she is like a sister to her, and that she (Dean) has always felt herself to be a part of Williams' family. Dean testified that during the time that Shamel was incarcerated she visited 3N almost every day and that respondent was invariably there. Dean also testified that her children went to 3N after school and that she would pick them up there.
Zenobia Cutchin testified that for 14 years she has lived in a two-bedroom apartment at 552 Gates Avenue, Brooklyn, New York and that she lives there with her son, Lonnie Fulford, and her three daughters. She testified that she has known respondent for over 10 years and that as far as she knew, respondent lived at 50 Lefferts Avenue. Cutchin testified that respondent never slept at 552 Gates Avenue, that she (Cutchin) had never heard of her son staying over at 50 Lefferts Avenue, and that Shaheim lived with respondent at 50 Lefferts Avenue from May, 2011 through July 2013.
Lonnie Fulford testified that he lives with his mother in her apartment at 552 Gates Avenue, that Shaheim is his son, that respondent is Shaheim's mother, that his romantic relationship with respondent ended about two years before he testified herein in December, 2014, and that respondent lived at 50 Lefferts Avenue with her grandmother. He testified that respondent never lived at 552 Gates Avenue. He also testified that he moved to and lived at 3N for about four months in 2011 but moved out when Thelma Williams brought a holdover proceeding to evict him, respondent, and others . He testified that respondent spent weekends at 552 Gates Avenue but that she did that much less often after Thelma Williams became ill. He testified that his mother knew about respondent staying over at 552 Gates Avenue but that she (his mother) did not like it. He testified that he, rather than respondent, typically picked up Shaheim after school, that he would take Shaheim back to 552 Gates Avenue after picking him up, and that during the two years immediately preceding Thelma Williams' death Shaheim stayed half of the time at 50 Lefferts Avenue and half of the time at 552 Gates Avenue.
The court's computer database shows that Williams began a holdover under index number 88505/11 against Wanda Cole, Shaniquca Cole, Malcolm Cole, Malik Cole, and Lonnie Fulford, that it was filed on August 22, 2011, that it was first returnable on September 2, 2011, that it was adjourned to September 14, 2011, and that it was dismissed on that date.
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In petitioner's rebuttal, Monique Lewis testified that she works for VIP Concierge, a company that provides security and similar services, and that the company was hired not by petitioner but by the cooperative itself. She testified that she worked at 50 Lefferts Avenue from Monday through Friday from 4 pm to midnight from December, 2012 until after June, 2013. She testified that although she was stationed in the lobby, she did not function as a doorman, and that her duties were principally to answer the telephone and to monitor what was going on but did not include letting people in or out of the building. She testified that she did not often see respondent, and that to gain entrance to the building respondent was often buzzed in, apparently not having a key.
Harlin Lascelles testified that he works for the cooperative, that he is the superintendent, that he supervises a staff of two, and that he works from 9 am to 5 pm on Mondays through Fridays. He testified that he knew Thelma Williams and that he saw her in the lobby or in front of the building about three or four times per week either in person or on security cameras. He testified that during the period January, 2012 to June, 2013 he was in 3N several times to make repairs, that Thelma Williams was always there, and that Wanda Cole (Thelma Williams' daughter and respondent's mother) lived there. He testified that he saw respondent visit the premises but that she did not stay at the apartment until about a week before Thelma Williams' death. He also acknowledged that he had had almost no conversations with respondent and that he never discussed with her whether she lived at the premises or elsewhere.
Jerome Moore testified that since September, 2009 he has lived in an apartment in the basement of 50 Lefferts Avenue and that he has been employed since then as an assistant superintendent/maintenance man. He testified that his hours of work are 8 am to 4 pm on Sundays and Mondays, and 9 am to 5 pm on Tuesdays through Thursdays. He testified that he saw Thelma Williams three to four times per week either in the lobby or going in or out of the building. He testified that he saw respondent "off and on" during the two years preceding Thelma Williams' death, and that he saw respondent and Wanda Cole much more often after Williams returned from the hospital. He testified that he went to 3N to make repairs when management asked him to, that he never saw respondent there, and that he did not remember whether he had any conversations with respondent about repairs during the year preceding Williams' death. He acknowledged that he is a salaried employee of the cooperative and that his compensation includes not having to pay rent for the basement apartment.
Ted Papapostolou, an employee of the retail chain Century 21, testified for the purpose of laying a foundation for records of respondent's employment there. In these documents respondent used as her address not 3N but instead apartment 4M at 50 Lefferts Avenue. To the same purpose, testimony was taken from Shaun Buchanan, an employee of Sears/Kmart. In these documents respondent gave as her address not 3N but apartment 4M at 50 Lefferts Avenue. Victorio Leon, an employee of GFI Management, testified about rent arrears at the premises.
THE DOCUMENTS
(a) Bank records
From December, 2010 until it was closed in June 2012 respondent maintained an account at Bank of America. Her address on the account was 3N.
(b) Student Loan
In 2012 respondent received correspondence in connection with repayment of a student loan taken out at a time in the past not identified in the record herein. The correspondence was addressed to respondent at 3N.
(c) Unemployment Insurance
Respondent applied in October, 2012 for unemployment insurance. Correspondence dated December 4, 2012 to her is addressed to 3N.
(d) Health Insurance
By an application dated May 4, 2013 respondent applied for Medicaid. As her address respondent used 3N.
(e) Employment Records: Kmart and Century 21
By an application dated November 16, 2011 respondent sought employment with Sears Holding Corporation. She was offered and took employment with Kmart, a unit of Sears. She worked there from January 8, 2012 to either February 13 or February 14, 2012. The W–2 issued by Kmart shows respondent's address as apt. 4M at 50 Lefferts Avenue. The separation report filed by Kmart when respondent's employment ended showed respondent's address as 4M.
By an application dated April 18, 2012 respondent sought employment with Century 21. In the application she listed 50 Lefferts Avenue as her address but she did not list an apartment number. However, in the accompanying application dated April 18, 2012 for membership in the United Food & Commercial Workers International Union, she listed 4M as her address.
(f) School Records
Records offered by petitioner show that on September 26, 2007, apt. D2 at 552 Gates Avenue was registered with the New York City Department of Education as Shaheim Fulford's address, that on October 13, 2009, 3N at 50 Lefferts Avenue was registered as his address, and that on January 5, 2010, apt. D2 at 552 Gates Avenue was registered as his address. The records also include an emergency contact card. Respondent filled out this card, writing in the space adjacent to "Parent/Guardian" that she and Lonnie Fulford were Shaheim's parents and that they lived at apt. D2 at 552 Gates Avenue. This contact card also has a space for the name of "Other Parent/Guardian" and other spaces for the Other Parent/Guardian's address, phone numbers, and e-mail. Respondent left these blank. She testified that it was more convenient for Shaheim to attend the public school for which 552 Gates Avenue is zoned inasmuch as Lonnie Fulford picked up Shaheim from school more often than she did, and she thought that it might create confusion if she were to list 3N as an additional address.
(g) Cable Television
Respondent subscribed for cable service at apt. 2D at 552 Gates Avenue. She testified that Lonnie Fulford cannot obtain cable service under his own name so she subscribed for the service under her name.
(h) 2012 Tax Return
Respondent testified that she used apt. 2D at 552 Gates Avenue as her address on her 2012 tax returns, and that she did so because her tax return preparer told her to do that. However, neither the Federal nor the New York State/New York City returns were offered into evidence and the preparer was not called to testify.
(i) Hospital Records: Mount Sinai and Kings County
Thelma Williams was hospitalized at Mount Sinai Medical Center from May 17, 2013 to June 3, 2013. The admission form dated May 17, 2013 lists Darene Williams—a daughter of Thelma Williams—as both Thelma Williams' next of kin and as her emergency contact. The transfusion consent form dated May 23, 2013 is signed by Shamel Cole. In pertinent part the progress notes dated May 30, 2013 by Social Worker James Palmer state "Darene is fully committed to organizing 24/7 care for patient via family/friends, with Shaniquca acting as the primary caregiver. Shaniquca is comfortable with this responsibility as long as Darene can provide at least one other family member who will be readily available to assist Shaniquca in pt.'s care." The discharge summary dated June 3, 2013 prepared by Julia Carl, NP, states "Daughter Darene very responsive" and "I spoke with granddaughter Shaniquca at bedside who expressed feeling scared but ready to take patient home today." The discharge notice dated June 3, 2013 is signed "S Cole granddaughter."
During the year before her death, Thelma Williams was admitted four times to the Kings County Medical Center, i.e., from May 27, 2012 to May 29, 2012, from June 20, 2012 to August 9, 2012, from September 5, 2012 to September 8, 2012, and from May 2, 2013 to May 6, 2013. The records of these admissions show that Darene Williams was listed on each as the "Person to be notified/next of kin," and that Charles Ford, a brother of Thelma Williams, was listed additionally on the admission record from June 20, 2012 to August 9, 2012.
The record of the admission for June 20, 2012 through August 9, 2012 includes a "psychosocial assessment" prepared by Bederman, LMSW, and dated June 28, 2012. In part it states: "lives with family," "Reside Same Add[ress]: Name: Doreen Williams Relationship: daughter," "Support System: None," and "Pt. was diagnosed with plasma cell leukemia and has poor prognosis. Pt. was started on chemotherapy and will continue on bi-weekly basis post discharge. Pt. is oriented x3 and ambulatory. Pt. is a U.S. citizen, used to reside alone in an apartment with elevator access. Post discharge pt's granddaughter will move in to assist with daily living. Pt has a lot of family support, pt's daughters and granddaughter were at the bedside and expressed commitment in offering needed support."
The record of the admission for May 2, 2013 through May 6, 2013 also includes a "psychosocial assessment" prepared by Chaya Choen, LMSW, and dated May 3, 2013. In part it states: "Lives with Family," "Reside Same Add[ress]: Name: Doreen Williams Relationship: daughter," "Support System: Daughter: Darlene Williams," "DC Discuss Plan: Patient in discomfort and unable to engage at this time Fri. 3 May 2013," and "Patient reported she resides with her daughter (Darlene Williams: 718–498–1884 or 718–287–4368) and receives home care services."
Respondent objected to the admission of the hospital records. The court overruled the objection but left undecided whether the records would be given any probative weight. 50 Lefferts LLC v. Cole, 50 Misc.3d 617 (Civ Ct, Kings Co., 2015).
(j) Death Certificate
The next of kin listed on the death certificate for Thelma Williams is Darene Williams.
(k) Life Insurance
Respondent testified that Thelma Williams had a life insurance policy, that respondent was the sole beneficiary of the policy, and that respondent used the entire proceeds of the policy to pay for Thelma Williams' funeral and related expenses. However, neither the policy nor any bills or payments for funeral services were offered into evidence. In addition, at respondent's deposition nine months after Thelma Williams' death respondent testified that the funeral parlor was on Fulton Street in Brooklyn, New York, but that she did not remember the name of the insurance company or the name of the funeral parlor.
(l) SCRIE records
In June, 2005 Thelma Williams applied to participate in the City of New York's Senior Citizen Rent Increase Exemption ("SCRIE") program. The record herein includes a copy of her initial application in 2005 and of her renewals in 2006, 2008, 2010, and 2012. The renewal application for 2012 asks for the number of persons residing at the premises and whether there has been a change in the household composition. Thelma Williams affirmed that her household composition remained unchanged and that she lived alone. Inasmuch as Williams states in the 2012 application that her household composition remained unchanged, the renewal application for 2010 became relevant. The renewal applications for 2010, 2008, and 2006 asked similar questions and Williams answered similarly. In the initial 2005 application Thelma Williams designated her daughter Darene Williams as her representative for certain future correspondence. For her household composition she listed herself, Shaniquca Cole and Shaheim Fulford, drew lines through the names of the latter two, and in the margin next to their names wrote "moved." In each renewal she designated her brother Charles Ford as her representative for certain future correspondence.
Although only the application in 2012 is within the two-year period, the application refers to the contents of the 2010 application, thereby making the 2010 application relevant here. For similar reasons the 2008, 2006, and 2005 applications are relevant.
DISCUSSION
Zenobia Cutchin testified that respondent never stayed at 552 Gates Avenue. Cutchin was flatly contradicted on this point by respondent and by Lonnie Fulford, who testified that respondent stayed at 552 Gates Avenue every other weekend, and sometimes as often as 4 to 5 days per week, until Thelma Williams became very ill. The court assigns no probative weight to Cutchin's testimony.
Shamel Cole testified that when he was in Georgia he spoke by cellphone with Thelma Williams two or three times per week and that during these calls he often spoke with respondent. Yet he did not testify that at these times he also spoke with Renee Dean, his longtime partner and mother of his two children. Dean, however, testified that during this time she was very often at 3N picking up her children after school and visiting Thelma Williams and respondent. This failure to mention Dean gives the court some pause and the court finds that Shamel Cole's testimony does not deserve full probative weight.
Renee Dean testified that during the time when Shamel Cole was incarcerated she went to 3N almost every day to pick up their children, who took the bus there after school let out. Dean testified that Thelma Williams was always there, and that respondent and Shaheim were often there. However, both respondent and Lonnie Fulford testified that most of the time he picked up Shaheim after school let out, and that after school father and son went from there not to 3N but to 552 Gates Avenue. Considered by itself, Dean's testimony is plausible; considered in conjunction with Fulford's and respondent's testimony, the probative value of this testimony is substantially diminished.
Respondent testified that during the two-year period she lived at the premises and nowhere else. The court finds that the probative value of this testimony was substantially diminished by her use of other addresses. Respondent testified that she used 4M rather than 3N as a mailing address because her grandmother opened her mail and respondent did not like her doing that. However, while respondent used 4M as her mailing address for some of the two-year period, i.e., when she applied for and obtained in late 2011 and during the first months of 2012 employment at Kmart and at Century 21, she did not use 4M as her mailing address during other parts of the two-year period, e.g., she used 3N on her Bank of America account until the bank closed it in June, 2012 and she used 3N on her applications in late 2012 and early 2013 for unemployment insurance and Medicaid. Respondent did not explain why she was willing to risk her grandmother's opening her mail before and after her employment by Kmart and Century 21 but not during these periods of employment. This failure to explain permits the inference that respondent lived in 3N until late 2011, that in response to Williams' lawsuit respondent moved to 4M (or elsewhere), that she lived there for several months, that later she moved to 3N, and that respondent's allegation of Williams' opening her mail was a pretext.
The court finds that the credibility of respondent's testimony was diminished further by other considerations. She testified that she was the sole beneficiary of Thelma Williams' life insurance policy and that she used all of the policy's proceeds to pay for the funeral and related expenses. Yet respondent did not offer the policy or any other supporting documentation, and at her deposition only nine months after the death of a grandmother that respondent testified was like a mother to her, respondent could not remember the name of the funeral parlor or of the insurance company.
Respondent testified that she used the 552 Gates Avenue address on her 2012 income tax returns because her tax preparer told her to do that, yet she did not offer those returns or an explanation for not doing so, or the testimony of the tax preparer or an explanation for not doing so. The court draws the negative inference that had she offered the returns they might have shown that she used an address other than 552 Gates Avenue for her residence—perhaps apartment 4M.
The tenant of record of 4M at all times pertinent herein was respondent's godmother, Deborah Sargent. Respondent testified that her brother Nazier Cole lived in 4M with Sargent, and that she (respondent) saw either Sargent or Nazier Cole almost every day. Respondent might have called Sargent to testify that Sargent was willing to have respondent's mail delivered to 4M even though respondent did not live in 4M but lived instead in 3N. Respondent did not, and she did not offer an explanation for not calling Sargent. The court draws a negative inference from the failure to call Sargent.
The court declines to give any probative weight to the SCRIE records. Given that Thelma Williams filled out the forms with inaccurate information, she may have had any number of reasons, including the form's ambiguity, for so doing. For example, respondent testified at her deposition that Lonnie Fulford lived at the premises in 2011 for perhaps as much as 6 months, and that Malcolm and Malik Cole lived at the premises for 10 months in 2011 and for several months in 2012. Should Thelma Williams have listed any or all of them on the 2012 renewal application? The form does not provide any guidance for answering this question. The court declines to find that respondent's right to succession, such as it may be, can be prejudiced by these inaccuracies, such as they may be. See also, Hochhauser v. Electric Ins. Co., 46 AD3d 174 (2nd Dep't, 2007).
The hospital records, the court holds, are probative of the identities of those listed therein as next of kin, emergency contacts, and such. However, the court declines to give any probative weight to the narratives therein of the social workers Beyderman and Choen. They might have been called to testify; they were not, and explanations for these absences were not offered. The court holds that without respondent having an opportunity to cross-examine them, their hearsay narratives in the hospital records cannot be accorded any probative value.
The court finds that Monique Lewis' testimony was credible but had only marginal probative value. She worked at the 95–unit building for only the last six or seven months of the two-year period, and while she testified that she did not see respondent often, she was not a doorman and her principal duties did not include learning and keeping track of the identities of the persons entering and exiting the building.
Harlin Lascelles testified that he saw Thelma Williams rather more often than he saw respondent. The court finds that this testimony was credible but deserving of only modest probative weight because it was largely consistent with both respondent residing in 3N and her residing elsewhere but often visiting 3N and perhaps 4M. Jerome Moore testified to substantially similar effect, and the court finds that this testimony was credible but deserving of only modest probative weight because it too was largely consistent with both respondent residing in 3N and her residing elsewhere but often visiting 3N and perhaps 4M.
CONCLUSION
To prevail here respondent bore the burden of proving her affirmative defense by a preponderance of the evidence, i.e., that she maintained an ongoing, substantial, physical nexus with 3N for actual living purposes for the two-year period ending June 10, 2013. There can be no question that she lived in 3N for some of that period, for in August, 2011 Thelma Williams sued to evict her and others from 3N. Neither can there be any doubt on the record here that Malik Cole, Malcolm Cole, Lonnie Fulford, Wanda Cole, and even Shamel Cole albeit briefly, also lived in 3N for some of that period. However, in view of respondent's use of different mailing addresses during the middle of the period, her failure to produce easily obtained documents, and her at times less than credible testimony, the court holds that respondent did not carry her burden. Accordingly, the court grants the relief set out above.
The court will mail copies of this decision and order to the parties, and the court requests that they retrieve their exhibits from the courtroom within 30 days, failing which they will be disposed of pursuant to administrative directive.