Opinion
019996/17
02-04-2019
The PARK CENTRAL I LLC and E & M Lafayette Apts. LLC, Petitioner, v. Cheryl WILLIAMS, Arthur Whaley, John Doe and Jane Doe, Respondent.
Petitioner was represented by: Law Office of Scott D. Gross,Scott D. Gross, Esq. Respondent was represented by: The Bronx Defenders
Petitioner was represented by: Law Office of Scott D. Gross,Scott D. Gross, Esq.
Respondent was represented by: The Bronx Defenders
Steven Weissman, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers Numbered
Notice of motion and affidavits annexed 1
Order to Show Cause and affidavits annexed
Answering affidavits 2
Replying affidavits 3
Exhibits
Stipulations
Other: Notice of Cross-Motion; Answering and Reply papers 4, 5 & 6
Respondent Arthur Whaley (respondent) moves (motion sequence 3) for summary judgment pursuant to CPLR 3212(b), alleging that respondent's documentary evidence clearly establishes his right to succeed to his mother Cheryl Williams' (Williams) rent stabilized tenancy as a matter of law. Petitioner opposes that motion alleging that there is an issue of fact of when Williams actually vacated the subject apartment, thus did respondent have the necessary two years in actual occupancy with Williams in the two years prior to her actual date of vacating. Petitioner cross-moves (motion sequence 4) for permission to seek discovery from Williams, who has never appeared in this proceeding. The Bronx Defenders, who represent only respondent, oppose stating they have no authority over Williams and thus cannot compel her to comply with any discovery order. For the reasons set forth below, respondent's motion is granted and petitioner's motion is denied as moot.
The Court notes at the outset that the Court's file does not contain respondent's Answer, yet, from the papers submitted on these motions it is clear that an Answer was served upon the petitioner and, presumably, filed with the Court at some point as the petitioner has attached a copy of the Answer to its' motion. Thus, issue having been joined, summary judgment may lie if deemed appropriate.
Succession rights under Rent Stabilization is governed by RSC 2523.5(b)(1) which states, in pertinent part: "Unless otherwise prohibited by occupancy restrictions, ..., if an offer is made to the tenant pursuant to the provisions of subdivision (a) of this section and such tenant has permanently vacated the housing accommodation, any member of such tenant's family , ..., who has resided with the tenant in the housing accommodation as a primary residence for a period of no less than two years, ..., immediately prior to the permanent vacating of the housing accommodation by the tenant, or from the inception of the tenancy or commencement of the relationship , if for less than such periods, shall be entitled to be named as a tenant on the renewal lease." (Emphasis added). Petitioner does not challenge the allegation that respondent resided in the subject apartment from the inception of Williams' tenancy as he was then two years old and residing with Williams, his mother. Nor does it challenge that respondent has continuously resided in the subject apartment to-date ( Residential Landlord Tenant L. in NY § 4:223 -to obtain succession rights, remaining household members must show that the apartment has been used as their primary residence). What petitioner challenges is whether respondent actually resided with Williams for the requisite two years immediately prior to her vacating the apartment, alleging that Williams did not vacate the apartment in August, 2016, as she, and respondent, claim, but, in fact, actually vacated sometime in 2011, thus respondent could not have resided with her in the apartment in 2014 and 2015. There is case law that would agree with petitioner if those were the facts herein, see Third Lenox Terrace Assoc. v. Edwards , 91 AD3D 532, 937 NYS2d 41, 2012 NY Slip Op. 00400 (AD, 1st Dept., 2012), M & B Lincoln Realty v. Thompson , 49 Misc 3d 154 (A) (AT, 2nd Dept., 2015). This Court finds those decisions to be wrong on the law, wrong in their interpretation of the plain language of the statute, contrary to the intent of the RSC, contrary to emerging law as far back as 1989, and against public policy, and refuses to follow them. In the most recent decision that this Court can find on this issue, the Appellate Division, 2nd Dept., in Matter of Jourdain v. New York State Div. of Hous. and Community Renewal , 159 AD3d 41, 70 N.Y.S.3d 239, 2018 NY Slip Op. 00556, the Court there stated:
"... we conclude that, in promulgating Rent Stabilization Code § 2523.5 (b) (1), the DHCR intended the ‘permanent vacating of the housing accommodation by the tenant’ to mean the time that the tenant permanently ceased residing at the housing accommodation, and that the mere execution of a renewal lease and the continuation of rent payments by the tenant after the tenant permanently ceases to reside at the housing accommodation does not extend the relevant time period. Thus, the relevant one- or two-year period ... in which the family member must ‘reside with’ the tenant is the one- or two-year period immediately prior to when the tenant ceases residing at the housing accommodation. The purpose of the succession rule is to prevent displacement of family members who have been residing with tenants at housing accommodations for long periods of time ..." (At 46-47, emphasis added, citations omitted).
The import of the Jourdain decision (supra) is that the plain language of the cited section of the RSC is that a family member, who resided in the subject apartment with the tenant of record for two years prior to the tenant vacating the apartment (meaning when they actually stopped living there and not some ethereal legal construct that the language of the statute does not support), or continuously resided in the apartment from the inception of the tenancy, no matter the time frame or when the tenant vacated the apartment, is entitled to the lease. See Festa v. Leshen , 145 Ad2d 49, 537 NYS2d 147 (AD 1st Dept., 1989) ; Weintraub v. Rudin Estates Co. , 160 AD2d 483, 554 NYS2d 146 (AD 1st Dept., 1990), Mexico Leasing LLC v. Jones , 43 Misc 3d 127(A), 998 NYS2d 307 (Table), 2014 WL 4958215, 2014 NY Slip Op. 51456(U)(AT, 2nd Dept.).
Here, respondent has clearly established that he is Williams' son, that he was residing with her when she moved into the subject apartment (incidentally, he has resided in the subject building since his birth, Williams having moved from apartment 9M in the same building to the subject apartment two years after respondent's birth), that Williams resided in the subject apartment until August, 2016, only spending extended periods of time in Massachusetts between 2011 and 2016 with her estranged husband when he became extremely, and eventually terminally, ill. This Court finds her explanation for her absences for those periods of time between 2011 and 2016 do not constitute such a break in her tenancy that she would be found to have vacated the subject apartment prior to August, 2016. See Hudsoncliff Bldg. Co. v. Houpouridou , 22 Misc 3d 52, 874 N.Y.S.2d 654, 2008 NY Slip Op. 28504 (AT 1st Dept, 2008) (where tenant's extended stay out of country was due to her mother's illness, her brother's illness, and tenant's accident in which she suffered multiple fractures, and tenant returned to apartment for brief intervals, tenant did not abandon it as her primary residence, and thus landlord was not entitled to possession of apartment on ground of nonprimary residence), Lance Realty Co. v. Fefferma , 5 Misc 3d 134(A), 799 N.Y.S.2d 161 (Table), 2004 WL 2782242, 2004 NY Slip Op. 51479(U) (AT 1st Dept, 2004) (while tenant acknowledged spending considerable time in Florida, helping to care for his elderly mother, that circumstance does not in itself mandate a finding of nonprimary residence), Nussbaum Resources I, LLC, v. Gilmartin , 2003 NY Slip Op. 50553(U)(AT 1st Dept) (The tenant's acknowledged absence from the apartment while caring for and overseeing the health care of her infirm mother in Puerto Rico does not mandate a finding of nonprimary residence), Kalimian v. Holmberg , 2001 NY Slip Op. 40297(U)(AT 1st Dept) (though tenant cared for his infirm mother in Michigan and resided with her there in an assisted living facility, that circumstance does not in itself mandate a finding of nonprimary residence). But, even if Williams were found to have vacated the subject apartment in 2011, or any time prior to August, 2016, there is no doubt that respondent resided with her for whatever the two year period prior to such vacating might have been, thus engendering the same outcome. As the Court in Jourdain , supra, stated:
"We can discern no reason why the DHCR would intend to deny succession rights to a family member who had been residing in a unit for a long period of time merely because there was a period of time when the named tenant no longer resided there but still maintained some connection to the property. In this case, it is undisputed that Marie would have been entitled to succession if she had sought it immediately after her daughter moved out of the apartment in 2008. We see no rational reason to treat her differently solely because the named tenant later executed a renewal lease and continued to pay the rent while no longer residing there. We thus conclude that this was not the intent of the DHCR in promulgating the regulation." (at 47). Could the facts be any more similar? This Court finds that they could not and the determination of succession rights in respondent is the only logical, and legal, conclusion, regardless of when Williams was determined to have permanently vacated the subject apartment.
The Jourdain Court then continued:
"An agency's interpretation of its own regulations ‘is entitled to deference if that interpretation is not irrational or unreasonable’. Here, prior to the decision of the First Department in Third Lenox Terrace Assoc. v. Edwards ..., the DHCR did not interpret Rent Stabilization Code § 2523.5 (b) (1) as precluding a family member of a tenant who had moved out but continued to pay the rent and sign renewal leases from making a succession claim. For example, in Festa v. Leshen ..., in which a landlord unsuccessfully contended that the DHCR lacked the authority to promulgate Rent Stabilization Code § 2523.5 (b) (1), the DHCR intervened on behalf of the family member of a tenant who had moved out but continued to pay the rent and sign renewal leases .... Here, while the DHCR determined, in the determination dated July 1, 2014, that Marie was not entitled to succession rights, under the belief that it was bound by the First Department's decision in Third Lenox, the DHCR has changed its position on appeal and now contends that Marie should not be precluded from succeeding to the lease merely because Scherley continued to pay rent and executed a renewal lease after she moved out of the apartment." (At 47-48, citations omitted).
Interestingly, petitioner, while denying receipt of Williams' August, 2016, letter advising them of her intention to then vacate the apartment, and telling them she would be residing at a specific address in Massachusetts, claiming they didn't receive that letter until January, 2017, served its' Golub notice in December, 2016, citing the exact Massachusetts address Williams gave them in her letter of August, 2016, as her new residence, while offering not even the hint of an explanation of how they obtained that information other than from Williams' letter. They do not claim to have done an investigation of Williams (or why they would have done such investigation), or that they, somehow, came into receipt of mail from her, or some other source, giving them reason to believe that, that address was her actual residence.
Summary judgment is a drastic remedy, and should not be granted lightly. As the Court of Appeals stated in Zuckerman v. City of New York , 49 NY2d 557, 427 NYS2d 595 (CANY, 1980), at 562: "To obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor ( CPLR 3212[b] ), and he must do so by tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must ‘show facts sufficient to require a trial of any issue of fact ’( CPLR 3212[b] ). Normally if the opponent is to succeed in defeating a summary judgment motion he, too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible , for the opposing party , as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet the strict requirement of tender in admissible form." (Citations omitted, emphasis added.)
The Court continued: "We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form ; mere conclusions , expressions of hope or unsubstantiated allegations or assertions are insufficient ." (Citations omitted, emphasis added.) See also North Central Mechanical, Inc. v. Hunt Construction Group, Inc. , 43 AD3d 1396, 843 NYS2d 894 (AD, 4th Dept., 2007) ; Ochoa v. Walton Management, LLC , 19 Misc 3d 1131(A), 2008 WL 1991486 (NY Sup, 2008).
The Supreme Court in Ochoa v. Walton Management, LLC, supra, succinctly stated the requirements for opposing a motion for summary judgment. There, the Court said: "Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact (citing Zuckerman, supra). The burden ... always remains ... with the movant ... ‘if the evidence ... is evenly balanced, the party that bears the burden must lose ’(citations omitted, emphasis added). It is worth noting ... that while the movant's burden ... is absolute , the opponent's burden is not .... to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue ... The rule ... to defeating ... summary judgment ... is more flexible, ... the opposing party , ... contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form .... [G]enerally, the opponent ... seeking to have a court consider inadmissible evidence must proffer an excuse for proffering the inadmissible evidence in inadmissible form.... [T]he Court's function ... is issue finding and not issue determination .... summary judgment ... should never be granted when there is any doubt as to the existence of a triable issue of fact. When the existence ... is even debatable, summary judgment should be denied." (Citations omitted, emphasis added.)
Even under the prior Civil Court Act, the rule was the same. As it was stated by the Court of Appeals in Sillman v. Twentieth Century-Fox Film Corp. , 3 NY2d 395, 165 NYS2d 498 (CANY, 1957) : "To grant summary judgment it must clearly appear that no material and triable issue of fact is presented. This drastic remedy should not be granted where there is any doubt as to the existence of such issues, or where the issue is ‘arguable’; ‘issue-finding, rather than issue- determination, is the key to the procedure’ ". (Citations omitted.)
It has also been said that "An underlying factor ... appears to be that the defects in opposition to the motion [for summary judgment] are curable upon the trial ... the courts have expressly noted the availability of additional or alternative evidence which could potentially be produced at trial." Ratut v. Singh , 186 Misc 2d 350, 718 NYS2d 135 (NY Civ. Ct., Kings Co., 2000).
Here, there are no issues of fact that this Court finds would lead the Court to a different conclusion, all the facts point to only one conclusion, that respondent is entitled to succeed to his mother's tenancy in the subject apartment. As the Court in Weintraub , supra, stated: " Rent Stabilization Code § 2523.5 (b) is dispositive of the motion .... The affidavits and documentary evidence supplied by plaintiff conclusively establish that plaintiff has resided in the leased premises since the inception of tenant of record's (the father's) tenancy ... thereby entitling plaintiff to a rent-stabilized lease under Rent Stabilization Code § 2523.5 (b). There seems little other evidence available to plaintiff with which he could establish that the apartment is and has been his primary residence." (At p. 484). This Court, having found that any break in respondent's residence in the subject apartment between 2011 and 2016 were adequately explained, and the Court having determined that Williams still maintained an ongoing physical nexus to the subject apartment, returning for brief intervals during this period, her date of having permanently vacated the apartment was August, 2016, and not sooner. Thus respondent had the necessary two years in residence with Williams during 2014 and 2015. But, given the decision in Jourdain , supra, and the DHCR's own interpretation of RSC 2523.5(b)(1), this Court is of the opinion that even if Williams were to be found to have permanently vacated prior to August, 2016, the outcome would be the same. The First Department, in light of the Jourdain decision, and the DHCR interpretation of the statute being rational and entitled to due deference, may well be ready to embrace this more modern, and intuitively logical and rational, interpretation of the RSC. Only time will tell, but given this Court's determination of when Williams actually permanently vacated the subject apartment, no other conclusion can be reached herein other than respondent is entitled to summary judgment finding he is entitled to succeed to his mother's rent stabilized tenancy. Accordingly, respondent's motion is granted and he is entitled to summary judgment dismissing the petition, and a judgment in his favor granting him succession rights to the subject apartment. Petitioner is directed to offer respondent a rent stabilized lease in his name for the subject premises, and petitioner's cross-motion is denied in its entirety as moot.
This is the decision and order of the Court. Copies are being mailed to both sides.