Opinion
Index No. 86292/16
10-25-2021
PERS REALTY LLC, Petitioner, v. Patricia GRANVILLE, Shenel a/k/a "Shamel" Edwards, Shellon Edwards, "John Doe" and "Jane Doe," Respondents.
For Petitioner: The Legal Aid Society, Patrick Lanhenry, Esq., 394 Hendrix Street, Brooklyn NY 11207, (718) 722-3100 For Respondent: Tenenbaum Berger & Shivers LLP, Robert Price, Esq., 26 Court Street, 2901, Brooklyn, NY 11242, (718)596-3800
For Petitioner: The Legal Aid Society, Patrick Lanhenry, Esq., 394 Hendrix Street, Brooklyn NY 11207, (718) 722-3100
For Respondent: Tenenbaum Berger & Shivers LLP, Robert Price, Esq., 26 Court Street, 2901, Brooklyn, NY 11242, (718)596-3800
Heela D. Capell, J.
After trial, the court makes the following findings and determination:
Pers Realty LLC ("Petitioner") commenced this non-primary residence holdover proceeding against Patricia Granville ("Patricia"), Shenel a/k/a "Shamel" Edwards ("Respondent"), Shellon Edwards ("Shellon"), "John Doe" and "Jane Doe," seeking possession of 1651 Carroll St. Apt. 2D, Brooklyn, NY 11213 ("Premises"). Respondent appeared by counsel and interposed the affirmative defense that she has succession rights to the Premises. The remaining respondents did not appear as parties to the case.
At trial, Respondent consented to the elements of Petitioner's prima facie case, i.e. the deed reflecting Petitioner's ownership of the subject building (Pet. Ex. 1); the last rent-stabilized renewal lease between Petitioner and Patricia, which expired on August 31, 2016 (Pet. Ex. 2); the certified rent registrations for the Premises and the building on file with the New York State Department of Housing and Community Renewal ("DHCR") (Pet. Ex. 3); the Multiple Dwelling Registration for the building on file with the New York City Department of Housing Preservation and Development ("MDR") (Pet. Ex. 4), and acknowledged Patricia no longer resides at the Premises. The court took notice of the contents of the court file including the Notice of Petition and Petition, Notice of Termination and accompanying affidavits of service. Once Respondent consented to Petitioner's prima facie case, the burden shifted to Respondent to establish her succession defense.
Section 2523.5(b)(1) of the Rent Stabilization Code provides:
"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 shall be entitled to be named as a tenant on the renewal lease." ( 9 NYCRR 2523.5 [b][1]) (emphasis added).
It is undisputed that Respondent is Patricia's daughter and that Patricia is the former rent stabilized tenant of record of the Premises. Therefore, Respondent is included as a "member of such tenant's family" who is eligible to succeed to the apartment. The remaining inquiry is whether Respondent has proven the required two years of co-residency.
Through witnesses and scores of documentary evidence (Resp. Exs A-S), Respondent established that she resided at the Premises from 1988 through the date of trial. Respondent testified credibly that she was born at the Premises, went to school at nearby P.S. 221, and continued to reside at the Premises her entire life. Respondent established that her children's doctors are located at Kings County Hospital, a ten minute drive from the Premises. Her children play at the nearby community park, attend movie nights at the schoolyard as a community, and play with friends in the neighborhood. Respondent frequents the neighborhood laundromat and grocery stores on a daily basis.
Candice Lawrence, a pupil accounting secretary at Respondent's children's school, P.S. 221, testified on Respondent's behalf. She confirmed that Respondent and her children live at the Premises, which is walking distance from the school. Ms. Lawrence testified that Respondent's children attended P.S. 221. Sharon Smart, a teacher at P.S. 221 corroborated the documentary evidence presented at trial, to wit, that Respondent's children Rahiem and Skylar were enrolled at the school. Respondent's Exhibit Y reflects that Rahiem was enrolled in the school from September 16, 2013 through October 14, 2016, that Skylar was born on XX/XX/XXXX, in Kings County Hospital, and that Respondent's address is the Premises. Respondent's Exhibit Y also reflects that Skylar was enrolled in the school on September 5, 2018 through December 8, 2020. Ms. Smart and Ms. Lawrence described Respondent as a very involved parent who assisted with community events and fundraisers.
Respondent's witnesses’ testimonies were consistent with respect to the occupants of the Premises. Patricia, Percy Richmond, Flay Harper and Respondent testified that Respondent resided at the Premises with her children most, if not all, of her life. In or about 2014, Respondent and her children, Patricia, and Shellon and her children lived at the Premises. Patricia slept on the couch, Respondent slept in a room with her children, and Shellon slept in a room with her children. Shellon vacated the Premises in 2015 or 2016. Patricia lived at the Premises through 2016, and left permanently for Georgia at the end of 2016. Flay Harper, Patricia's longtime friend, confirmed that in 2016 Respondent was living at the Premises with four of her five children.
Therefore, as Respondent demonstrated that she has lived at the Premises for most, if not all, of her life, Respondent's claim hinges on whether she can demonstrate co-residency with Patricia. Here, it is undisputed that Patricia "permanently vacated" the Premises and resides in Georgia, however, the parties dispute exactly when this "permanent vacatur" occurred. Based upon Patricia and Respondent's long term co-occupancy of the Premises, however, the result does not change, regardless of the date Patricia vacated.
The term "permanent vacatur" is a term of art, which the Appellate Divisions in the First and Second Divisions prominently define differently. The Appellate Division in the Second Department defines "permanent vacatur" as "the time that the tenant permanently ceased residing at the housing accommodation." (Matter of Jourdain v New York State Division of Housing and Community Renewal, 159 AD3d 41, 41 [2nd Dept 2018]citing 9 NYCRR 2523.5 [b][1]). Accordingly, in this Department the relevant 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" (Id ). Previously, the date of "permanent vacatur" aligned with the expiration of the tenant of record's most recent renewal lease ( Third Lenox Terrace Association v Edwards , 937 NYS2d 41, 43 [1st Dept 2012] ). However, since Jourdain was decided, "it is not relevant that tenant may not have resided in the apartment with occupant in the year prior to the expiration of the final renewal lease ... [if] the record supports a finding that occupant lived in the apartment with tenant for the year prior to when tenant ceased residing in the apartment" ( 1150 Brighton Co. v Persits , 72 Misc 3d 133[A] [App Term 2nd Dept 2021] ).
In 700 Bklyn Realty, LLC v Samuel, (69 Misc 3d 126[A] [App Term 2nd Dept 2020] ), the court recognized, "[w]here there is no date of death, ‘[t]he uncertainty of the situation may in many cases make it impossible to identify a precise permanent vacatur date’ " ( Samuel, 69 Misc 3d 126[A], citing EB Bedford, LLC v Lee, 64 Misc 3d 39, 42 [App Term 2d Dept 2019] ). In Samuel, the court declined to negatively construe a permanent vacate date against the occupant, even when the tenant of record signed a renewal lease and never returned to the apartment ( 700 Bklyn Realty, LLC v Samuel, 69 Misc 3d 126[A] ). Notably, in Jourdain , the court refused to accept the First Department's definition of permanent vacatur, which was the date the lease expired, because the latter definition frustrated the purpose of the succession laws, which were meant to keep residents in their homes. Rather, in Matter of Jourdain , the court 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 ... which should be liberally construed to carry out the reform intended and spread its beneficial effects as widely as possible. " (Emphasis added).
In Jourdain , the court was persuaded by the fact that the occupant was a long term resident of the apartment, whose succession claim was ripe from the date the tenant vacated the apartment, and could have been asserted at any time. (see also 2258 Assoc., LLC v Monperemer, 70 Misc 3d 135[A] [App Term 2nd Dept 2021] ). Here too, Respondent established that she resided with Patricia for a great deal more than two years prior to Patricia's date of "permanent vacatur" and is entitled to succeed to Patricia's rent stabilized tenancy.
Petitioner did not call any witnesses at trial. Petitioner's entire rebuttal of Respondent's succession defense is that Patrcia did not permanently vacate the Premises in December 2016, as stated in Respondent's Answer, but rather sometime in 2015, and therefore Respondent's claim must fail. However, Petitioner did not rebut the credible evidence proffered by five out of seven of Respondent's witnesses at trial that Respondent and Patricia lived together through the day Patricia moved out, in or about December 2016, after gradually relocating to Georgia over the course of several months. Even assuming, for the sake of argument, that Patricia permanently vacated in 2015, there is no difference in the outcome, because Respondent established that she resided with Patricia until she vacated the Premises.
Petitioner's main contention is that Jourdain requires this court to consider whether Petitioner has been prejudiced. Petitioner maintains "Petitioner has suffered greatly due to Respondent's misrepresentations." (Pet brief p. 11). The first instance of prejudice is that Respondent delayed the case during discovery which caused the law to shift from the more favorable Third Lenox Terrace Association v Edwards , to the less favorable, Jourdain . While Petitioner recognizes that the controlling law in this Department is Matter of Jourdain , Petitioner argues, not that Respondent prejudiced Petitioner by asserting succession rights, but that Petitioner has been prejudiced because the law shifted out of Petitioner's favor.
When determining prejudice in the context of a succession claim, the question is whether a successor concealed his or her occupancy to the detriment of the landlord (see e.g. Jourdain, 159 AD3d 41 ; 2258 Assoc., LLC v Monperemer, 70 Misc 3d 135[A] ; Jims Realty LLC v Barrett 2019 NY Slip Op 29004 [Civ Ct King County] ). For example, courts will determine whether a tenant fraudulently signed leases or paid rent after vacating the apartment (Id ). Furthermore, courts look favorably upon parties who disclose their succession claim to the landlord, particularly in close proximity to the expiration of the lease (see 2258 Assoc., LLC v Monperemer, 70 Misc 3d 135[A] ). Here, Respondent never concealed her occupancy from the landlord and Patricia did not sign any renewal leases in her own name once she vacated the Premises. Patricia had also previously listed Respondent as an occupant on the lease, and requested that the landlord add Respondent to the lease, prior to the lease expiring (Pet. Ex. J). A landlord's agent also acknowledged that Patricia and Respondent co-occupied the Premises in a letter dated January 12, 2006. (Resp. Ex. U). Notably, in Monpremer, where the facts resemble the facts here, the court declined to find that the landlord was prejudiced by delay because the occupant/son would have been eligible for tenancy rights regardless of when he asserted his claim. (Id. ) Lastly, Petitioner's attempts to discredit Patricia and Respondent's testimonies based upon minor inconsistencies do not detract from the court's finding that they both testified credibly at trial . ( People v Wagner, 178 AD2d 679 [3rd Dept 1991] ).
Petitioner's most significant argument is that Respondent testified she did not receive the Termination Notice, yet she, like the person who allegedly received service of the papers per the affidavit of service, has a tattoo on her chest. As this court did not conduct a hearing to determine whether Respondent actually received the court papers, this discrepancy does not warrant a finding, as Petitioner suggests, that Respondent's entire testimony was false. Further, the argument that Patricia could not reside in Brooklyn while receiving a homestead exemption for the Georgia House is unavailing. (See, Turner v Board of County Tax Assessor , 71 Ga. App. 374 [1944] ; Judd v Schooley , 158 So.2d 514, 517 [Fla.1963] ).
Accordingly, the proceeding is dismissed with prejudice as Respondent has successfully established her affirmative defense that she is the lawful successor to the rent stabilized tenancy at the Premises. Respondent's first counterclaim is dismissed without prejudice as no evidence was produced at trial in support.
This constitutes the decision and order of the court.