Opinion
76688/2016
06-12-2017
611 East 179th Street Realty Corp., Petitioner, v. Jessie Gonzalez, Respondent-Licensee, "JOHN DOE" & "JANE DOE", Respondent-Unknown Occupants.
Attorneys for Petitioner: Mark H. Cohen & Associates, P.C. 1942 Williamsbridge Road Bronx, New York 10461 (718) 933-1710 Attorneys for Respondent: Boom!Health Legal Services Emilio Paesano, Esq. 540 East Fordham Road Bronx, New York 10458 (718) 928-3706
Attorneys for Petitioner: Mark H. Cohen & Associates, P.C. 1942 Williamsbridge Road Bronx, New York 10461 (718) 933-1710 Attorneys for Respondent: Boom!Health Legal Services Emilio Paesano, Esq. 540 East Fordham Road Bronx, New York 10458 (718) 928-3706 Diane E. Lutwak, J.
Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of Respondent's motion for summary judgment:
PapersNumbered
Notice of Motion and Accompanying Affirmation, Affidavit and Exhibits A-X 1 Affirmation in Opposition and Exhibits A-C 2 Affirmation in Reply and Exhibits A-B 3
Upon the foregoing papers, Respondent's motion for summary judgment is granted and the petition is dismissed for the reasons that follow. BACKGROUND & PROCEDURAL HISTORY
This is a licensee holdover eviction proceeding brought by Petitioner-Landlord, 611 East 179th Street Realty Corp., following the death on October 29, 2016 of Angel Morales, the tenant of record of Apartment 6 at 116 East 179th Street, Bronx, New York. Petitioner claims in its predicate "Ten (10) Day Notice to Vacate", attached to the Petition and incorporated therein by reference at ¶ 7, that Respondent Jessie Gonzalez is a licensee whose license expired upon the death of Mr. Morales and she "is not related to Angel Morales". Petitioner also asserts in its predicate notice that the original tenant of record was Marcelina Morales, and that Mr. Morales succeeded to her tenancy and was given a lease in his name after Marcelina Morales vacated the apartment "In or about 2004".
Respondent's motion papers reflect that her name is "Jessilyn Gonzalez", not "Jessie Gonzalez" as stated in the caption and in Petitioner's other papers.
Petitioner also names a "Jane Doe" and a "John Doe" as respondents-occupants, but Jessilyn Gonzalez is the only respondent who has appeared. The documents that have been submitted to the court contain no indication that anyone other than Ms. Gonzalez and Jessilyn Morales, the daughter of Ms. Gonzalez and Angel Morales, currently resides in the apartment.
The Notice of Petition and Petition are dated December 22, 2016, and both sides appeared by counsel on the initial return date of January 25, 2017. The case was adjourned to February 24, 2017 for conference, and in the interim Respondent through counsel served and filed her Verified Answer raising an Affirmative Defense of succession rights to the apartment under Section 2523.5(b) of the New York City Rent Stabilization Code "as the surviving spouse of Angel Morales, the tenant of record immediately prior, who permanently vacated upon his death on October 29, 2016." Verified Answer at ¶ 14. Respondent further alleged that she and Angel Morales were married on March 7, 2005 and lived together in the apartment as husband and wife from the date of their marriage until Mr. Morales' death. Verified Answer at ¶¶ 17 & 18.
On February 24, 2017, the parties through counsel adjourned the proceeding by Stipulation to March 31, 2017 for motion practice or trial and for Respondent to provide Petitioner with "proof that Respondent was residing in the subject premises two years prior to October 2016".
Respondent by her attorney filed a motion on March 28, 2017, seeking dismissal of the petition and summary judgment on her first (and only) affirmative defense of succession rights to the apartment as a remaining family member of Mr. Morales under Sections 2523.5(b)(1) and 2520.6(o)(1) of the Rent Stabilization Code. Respondent asserts that she met Mr. Morales in June 1993, moved in with him and his mother Marcelina Morales at the subject premises in July 1994, had two children with him in 1994 and 2002, married him in 2005 and lived together with him continuously from 1994 until Mr. Morales' death on October 29, 2016. Respondent's Affidavit, sworn to March 23, 2017, at ¶¶ 4, 5, 6, 9 & 10.
Respondent also claims in her motion (although not in her Answer) that she was a co-successor to the original tenancy of her husband's mother Marcelina Morales, who moved out of the apartment in 1998, Respondent's Affidavit at ¶ 5, as a "non-traditional family member", Attorney's Affirmation in Support at ¶ 46. Respondent asserts that she "regarded Angel's mother as my mother," Respondent's Affidavit at ¶ 7, and "was entitled to non-eviction protection as a successor to the subject tenancy, along with Mr. Morales, upon the vacatur of Marcelina Morales in 1998," Attorney's Affirmation in Support at ¶ 50. Respondent references Sections 2523.5(b)(1) and 2520.6(o)(2) of the Rent Stabilization Code and argues that relevant case law allows more than one family to succeed to a rent regulated tenancy and that her claim is not time-barred. Attorney's Affirmation in Support at ¶¶ 44 & 50.
To document her spousal relationship to Mr. Morales, Respondent supports her motion with:
City of New York Office of the City Clerk/Marriage License Bureau Certificate of Marriage Registration confirming their marriage on March 7, 2005 (Exhibit D);
New York City Department of Health Certificate of Birth Registration for their daughter Jessilyn Marie Morales reflecting Respondent (full name Jessilyn Yvette Gonzalez) as mother and Mr. Morales (full name Angel Luis Morales) as father (Exhibit H);
City of New York Department of Health and Mental Hygiene Certificate of Death for Mr. Morales, listing Respondent as the "informant" and as "surviving spouse" (Exhibit L);
Notice from New York City Human Resources Administration (HRA), dated October 23, 2015, addressed to Mr. Morales at the subject premises, which confirms the recertification of his household's eligibility under Case No. 005599999J for public assistance, including a shelter allowance and "SNAP" benefits (Supplemental Nutrition Assistance Program, formerly known as Food Stamps), with a household composition comprised of Mr. Morales, Ms. Gonzalez and their daughter Jessilyn Morales and household income comprised of Social Security Disability Benefits received by both Mr. Morales and Ms. Gonzalez (Exhibit N);
Itemization of Funeral Services statement and invoice from D'Bari Funeral Home at 605 East 188th Street in the Bronx, dated November 8, 2016, addressed to and signed by Respondent as spouse of Mr. Morales (Exhibit X).
The eight photographs attached to the motion papers as Exhibits F, G and M are not described or otherwise referenced in Respondent's Affidavit and therefore are given no weight.
To document her residency in the apartment, in addition to the documents described in the preceding paragraph evidencing her relationship to Mr. Morales (which all list Respondent's address at the subject premises), Respondent supports her motion with copies of the following documents addressed to her at the subject premises:
Collection letter dated 11/15/96 with envelope postmarked the same day from an attorney in White Plains, referring to a 3/14/96 date of service (Exhibit E);
Two ADP Earnings Statements from Potamkin New York with pay dates of 08/02/02 and 08/30/02 (Exhibit I);
NYS Department of Motor Vehicles Interim ID Card dated March 2, 2005 (Exhibit J);
Ten M & T Bank payroll checks from Willow Towers with dates of 01/04/2006; 03/29/2006; 05/10/2006; 01/17/2006; 03/28/2006; 11/22/2006; 05/23/2007; 07/05/2007; 10/24/2007; 01/02/2008 (Exhibit P);
NYS Identification Card issued 05-25-10 (Exhibit Q);
Bronx County Juror Subpoena Notice dated Sept. 14, 2011 (Exhibit R);
Four NYC Public School Verification of Pupil Registration Notices dated 09/16/13, 09/08/14, 01/15/15 and 10/02/15 from I.S. X318 at 1919 Prospect Avenue in the Bronx referencing and signed by Respondent as "Parent/Guardian" with an address at the subject premises (Exhibit S);
Five Verizon bills dated 10/7/13, 2/3/14, 10/7/14, 1/6/15, 01/06/17 (Exhibit T);
Envelope postmarked 9/16/16 from College Preparatory Academy at 363 Fulton Avenue in the Bronx and a corresponding "Dear Parents/Guardians" form letter dated September 16th, 2016 (Exhibit U);
GEICO Car Insurance Declarations Page issued July 15, 2014, addressed to Respondent and Mr. Morales, both of whom are listed under the heading "Named Insured", and referencing a "Coverage Period" of 05-14-14 through 11-14-14 (Exhibit V);
GEICO letter dated Dec-09-15 addressed to Respondent and Mr. Morales (Exhibit W). To support her claim of a non-traditional family relationship and co-residency for at least two years with Mr. Morales' mother Marcelina Morales, who died on August 24, 2010, Respondent relies exclusively on her own sworn affidavit, in which she claims that from July 1994 when she moved in through 1998 when Ms. Morales moved out they shared expenses, celebrated birthdays and holidays, held themselves out as mother-in-law and daughter-in-law, relied upon each other for daily chores and provided emotional support to each other. Respondent's Affidavit at ¶¶ 7 & 8.
Petitioner opposes Respondent's motion with its attorney's affirmation and copies of the predicate notice (Exhibit A), Notice of Petition and Petition (Exhibit B) and Stipulation dated February 24, 2017 (Exhibit C), and makes three arguments: First, that summary judgment should be denied because Respondent failed to attach a copy of her Answer to her motion papers, as required by CPLR § 3212(b). Second, that Respondent has failed to prove that she is entitled to succeed to the tenancy. Third, that it has stated a cause of action and therefore Respondent's motion, to the extent it is based upon CPLR § 3211(a)(7) and seeks dismissal for failure to state a cause of action, should be denied.
Similarly, Respondent attached copies of each of these documents to her moving papers as Exhibits A, B and C.
In reply, Respondent's attorney annexes a copy of Respondent's Answer to his affirmation and requests that the court permit the correction of the "inadvertent failure to annex her answer to the initial moving papers" as permitted by CPLR § 2001. Further, Respondent argues that Petitioner's Affirmation in Opposition "failed to demonstrate issues of material fact mandating a trial", Affirmation in Reply at ¶ 18, and that Petitioner's attorney failed to "substantiate its bald, conclusory allegations that 'there are numerous issues of fact in dispute, discrepancies in Respondent's moving papers, and the like' with any actual examples of facts in dispute." Id. at ¶ 19. Also attached to Respondent's Attorney's Affirmation in Reply is an HRA Benefits Printout dated 02/24/17, referencing the same case number (# 005599999J) as is listed on the HRA notice dated October 23, 2015 confirming recertification of the household's eligibility for benefits, described above. This Benefits Printout shows "AC" status for Respondent and her 15-year-old daughter Jessilyn, and a "DD" status for Mr. Morales. DISCUSSION
As an initial matter, Petitioner is correct that under CPLR Rule 3212(b), a party seeking summary judgment is required to attach to the moving papers a copy of the pleadings — that is, in a case like this one, the petitioner's complete Holdover Petition and respondent's Answer thereto — and the failure to do so may be grounds for denying a motion for summary judgment. See, e.g., Washington Realty Owners, LLC v 260 Washington Street, LLC (105 AD3d 675, 964 NYS2d 137 [1st Dep't 2013]). While Respondent's attorney attached copies of the Notice to Vacate and the Notice of Petition and Petition to the moving papers (Exhibits A and B), he did not attach a copy of Respondent's Answer. However, Respondent is correct that the court has the discretion under CPLR § 2001 to "permit a mistake, omission, defect or irregularity to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded." Here, rather than denying the motion without prejudice, only to have it refiled with a copy of the Answer attached as an Exhibit, the court will permit correction of the omission. See Avalon Gardens Rehabilitation & Health Care Ctr, LLC v Morsello (97 AD3d 611, 948 NYS2d 377 [2d Dep't 2012]); Breytman v Olinville Realty, LLC (46 AD3d 484, 850 NYS2d 9 [1st Dep't 2007]). In fact, the omission has been corrected by the attachment of a copy of the Answer as Exhibit B to Respondent's attorney's Affirmation in Reply. Further, it is appropriate here to disregard the mistake as it cannot be said that a substantial right of Petitioner's has been prejudiced due to Respondent's failure to attach a copy of her Answer to her moving papers. See generally Patrician Plastic Corp v Bernadel Realty Corp (25 NY2d 599, 256 NE2d 180, 307 NYS2d 868 [1970]).
On the merits of Respondent's motion, it is well-settled that, to establish the right to succeed to a Rent Stabilized tenancy, a claimant such as Respondent must establish that she is a family member who primarily resided in the subject apartment with the tenant of record for either no less than two years immediately prior to the permanent vacating of the apartment by the tenant or, where the person claiming succession rights is aged 62 or over or disabled, no less than one year. Rent Stabilization Code ("RSC"), 9 NYCRR § 2523.5.
The proponent of a summary judgment motion under CPLR R 3212 must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. Winegrad v New York Univ Med Center (64 NY2d 851, 476 NE2d 642, 487 NYS2d 316 [1985]); Zuckerman v New York (49 NY2d 557, 404 NE2d 718, 427 NYS2d 595 [1980]. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient. Alvarez v Prospect Hospital (68 NY2d 320, 324, 501 NE2d 572, 508 NYS2d 923, 925-926 [1986]); Zuckerman v New York (49 NY2d at 562, 427 NYS2d at 598). A motion for summary judgment should be granted where "[n]othing but conclusory assertion is offered" in opposition. Friends of Animals, Inc v Associated Fur Mfrs (46 NY2d 1065, 390 NE2d 298, 416 NYS2d 790 [1979]).
Summary judgment may, in certain circumstances, be an appropriate procedural vehicle to determine a respondent's succession rights defense to a holdover eviction proceeding. For example, in Classic Props, LP v Martinez (168 Misc 2d 514, 646 NYS2d 766 [App Term 1st Dep't 1996]), the Appellate Term reversed the trial court's denial of summary judgment to the respondent on his succession rights defense where there was "voluminous objective evidence" to document "the existence of a long-term (24 years) committed family-type relationship between respondent Martinez and the deceased rent-controlled tenant, entitling respondent to eviction protection under the succession regulations". The evidence submitted by respondent included numerous detailed affidavits from friends attesting to the close nature of the relationship between respondent and the tenant; photographs and intimate correspondence depicting the couple's joint celebration of holidays and family functions, as well as world travel, over a period of more than 20 years; documents showing that respondent was authorized to use the tenant of record's credit cards and that respondent and the tenant had named each other as principal beneficiaries and alternate executors in their respective wills and that respondent was the sole beneficiary on six life insurance policies purchased by the tenant. Respondent and the tenant also had executed a City of New York Affidavit of Domestic Partnership.
In Melohn v Franklin (2001 WL 1771829, 2001 NY Slip Op 50126[U] [Civ Ct NY Co 2001]), aff'd (2002 WL 1880239, 2002 NY Slip Op 50328[U] [App Term 1st Dep't 2002]), the court granted summary judgment to the respondent on his defense of succession rights to the tenant of record's Rent Controlled apartment where the motion was supported by detailed affidavits of respondent and the tenant of record's two children and grandson; "a plethora of pictures from the different family gatherings through the years (1970's to 1990's)"; postcards; and documentary proof of financial commitment between respondent and the tenant of record in the form of a power of attorney given to respondent by the tenant of record over her checking account, several joint investment accounts, a testamentary trust set up by the tenant of record for respondent and a bequest to respondent's sister in the tenant of record's will. In opposition, the petitioner had "not produced any credible or admissible evidence to cast doubt on the relationship between respondent and [the tenant of record], which involved a thirty-five year cohabitation complete with sharing finances and obligations, as well as establishing familial ties." Id.
In Hazel Towers Co, LP v Gonzalez (41 Misc 3d 1230[A], 981 NYS2d 635 [Civ Ct Bx Co 2013]), the court found it appropriate to grant summary judgment to respondent on her succession claim as nontraditional domestic partner to the tenant of record's Rent Stabilized apartment where, in opposition to respondent's evidence in the form of detailed affidavits, photographs, correspondence addressed to respondent at the premises and greeting cards sent to and by the various members of the family, the petitioner had offered no contrary evidence whatsoever, argued that the lack of proof of financial interdependence was fatal to respondent's succession claim and cross-moved for discovery. The court rejected petitioner's argument that the lack of proof of financial interdependence was fatal to respondent's succession claim, citing cases holding that the absence of joint bank accounts or other documents showing financial interdependence between the parties to be insufficient to raise a triable issue of fact, especially "where the parties have sufficiently established that they possess limited assets and lack significant resources." Id. See also, e.g., 235 W 71 St LLC v Chechak (4 Misc 3d 114, 782 NYS2d 498 [App Term 1st Dep't 2004], aff'd, 16 AD3d 242, 790 NYS2d 871 [1st Dep't 2005])(upholding lower court's granting of summary judgment to respondent-tenant "since there was no material issue that the occupancy of his mother, Elinore Chechak, rose to the level of an unlawful 'assignment', as opposed to a permissible presence by an immediate family member"); Santorini Equities v Picarra (2003 NY Misc LEXIS 246, 2003 NY Slip Op 50645[U] [App Term 1st Dep't 2003])(upholding lower court's granting of summary judgment to respondent- tenant "since there was no material issue that the presence of tenant's daughter in the subject premises rose to the level of a prohibited sublet, as opposed to a permissible occupancy by an immediate family member"); St Owner LP v Doe (26 Misc 3d 198, 888 NYS2d 3434 [Civ Ct Bx Co 2009])(in a licensee holdover proceeding, granting summary judgment to respondent granddaughter, who "produced copies of various birth certificates to confirm her status as the granddaughter of the tenant of record" and, to confirm her co-residency for at least two years prior to her grandmother's death, produced federal and state tax returns, bank statements, cable bills, NYS driver's licenses and notices and jury summonses from the NYC Board of Elections).
Respondent has presented sufficient evidence to meet her initial burden on this motion. While the only relevant time is the two-year period prior to the death of Mr. Morales, Respondent voluntarily provided information well before the two years. Her affidavit swearing to the facts of her marriage to Mr. Morales and her residency with him at the subject premises is well supported at least back to the year 2002, when the couple's daughter was born, by the various documents described above, notably their daughter's birth certificate, the couple's Certificate of Marriage, Mr. Morales' death certificate, the Funeral Home invoice, the Notice from the City's Human Resources Administration confirming the recertification of the family's eligibility for public benefits in 2015 as well as the numerous other dated documents addressed to Respondent at the subject premises.
Respondent claims she is a "person with a disability" and has applied for Social Security Disability Insurance Benefits, Respondent's Affidavit at ¶ 1, but does not provide any other information to establish that she fits within the Rent Stabilization Code's definition of a "disabled person" applicable to family member succession rights claims under RSC § 2523.5(b)(4). Accordingly, for purposes of this motion the court applies the two-year rather than one-year minimum co-residency requirement of RSC § 2523.5(b)(1). In any event, this is an inconsequential point in this case, as the court finds that Respondent has submitted sufficient evidence of her co-residency with Mr. Morales dating back at least to the time of their daughter's birth in 2002.
Petitioner, however, has failed to come forward with any proof whatsoever to raise a material issue of fact and require a trial in this proceeding. Petitioner's sole submission is its attorney's affirmation, whose "unsubstantiated assertions or speculations," Alvarez v Prospect Hospital, supra; Friends of Animals, Inc v Associated Fur Mfrs, supra, are insufficient to meet its burden as the nonmoving party on this summary judgment motion. Petitioner has produced no evidence of any kind to counter Respondent's substantial proof of her marital relationship and co-residency with Angel Morales for at least two years prior to his death. Accordingly, the court finds that Respondent is not a mere licensee, whose right to occupy the premises terminated upon Mr. Morales' death, but rather she is his widow, who lived with him in the apartment since well before their marriage in 2005, who has the right to succeed to his tenancy. Accordingly, Respondent is entitled to summary judgment under CPLR R 3212 and the Petition which asserts that Respondent is merely a licensee must be dismissed.
Petitioner's argument that the motion should be denied to the extent it seeks dismissal under CPLR R 3211(a)(7) for failure to state a cause of action is a moot point, given the court's granting of summary judgment to Respondent and dismissal of the proceeding under CPLR R 3212.
With regard to Respondent's claim that from 1994 through 1998 she lived with and had a nontraditional family relationship under 9 NYCRR § 2520.6(o)(2) with Marcelina Morales, her husband's mother, and that she therefore should be treated as a co-successor along with her husband to Ms. Morales' tenancy, Respondent is correct that succession rights to a rent regulated apartment are not limited to one family member, 4848 Broadway Inv LLC v Santana (36 Misc 3d 155[A], 2012 NY Misc LEXIS 4310 [App Term 1st Dep't 2012]); M & L Jacobs v Del Grasso (133 Misc 2d 542, 543, 509 NYS2d 237 [App Term 2nd & 11th Jud Dists 1986]), and that she is not time-barred from raising this claim, 1872 Monroe Ave Assoc v Cogle (40 Misc 3d 1208[A], 977 NYS2d 668 [Civ Ct Bx Co 2013]); In the Matter of MH Residential 1, LLC v NYS Div of Housing and Comm Renewal (2008 NY Misc LEXIS 8083, 2008 NY Slip Op 33207[U][Sup Ct NY Co 2008]). Further, there is no "hierarchy of succession rights; rather, traditional and non-traditional family relationships enjoy equal standing to succeed to a tenancy." Fleishman Realty Corp v Garrison (27 Misc 3d 1202[A], 907 NYS2d 437 [Civ Ct Bx Co 2010]).
However, Respondent has presented insufficient proof on the co-successor issue. Her own sworn affidavit is the only evidence Respondent proffers to support her claim that she lived with her husband's mother from 1994 through 1998 in a relationship characterized by an emotional commitment and financial interdependence. Respondent provides no affidavits of any family members or friends or any other objective indicia of emotional commitment, financial interdependence and a family relationship with Marcelina Morales. While it is the totality of the circumstances that must be examined, and the absence of documentary evidence of financial interdependence does not necessarily undermine a succession rights claim, Arnie Realty Corp v Torres (294 AD2d 193, 742 NYS2d 240 [1st Dep't 2002]), especially where the parties are of limited financial means, Roberts Ave Assocs. v. Sullivan (2003 NY Slip Op 51091[U], 2003 NY Misc LEXIS 901 [App Term 1st Dep't 2003]), sufficient, credible testimony at trial likely will be needed to compensate for the lack of such formal, objective evidence, United Hay v Grabrovak (2002 NY Misc. LEXIS 405, 2002 NY Slip Op 50170U [App Term 1st Dep't 2002]). Further, the documentary evidence submitted includes only one letter, from a collection attorney, addressed to Respondent at the subject premises dating from this period. Given the court's dismissal of the Petition for the reasons stated above, the court need not reach this issue, makes no findings of fact on it and denies that branch of Respondent's motion, without prejudice. CONCLUSION
Respondent has conclusively established that she is not a licensee but rather is the widow of Angel Morales, the now-deceased tenant of record, and that they lived together in the apartment for well over the minimum co-residency period of two years. Accordingly, Respondent's motion for summary judgment is granted and this licensee holdover proceeding is dismissed. This constitutes the Decision and Order of this Court, copies of which will be provided to the parties' counsel in court. Diane E. Lutwak, Hsg. Ct. J. Dated: Bronx, New York June 12, 2017