Opinion
Index No. 300759/2020
07-16-2024
POLYCLINIC OWNER LLC, Petitioner, v. ALONSO CASTILLO, Respondent.
Unpublished Opinion
Present: Hon. Jack Stoller, Judge, Housing Court.
DECISION/ORDER
HON. JACK STOLLER, J.H.C.
Polyclinic Owner LLC, the petitioner in this proceeding ("Petitioner"), commenced this holdover proceeding against Alonso Castillo, the respondent in this proceeding ("Respondent"), seeking possession of 345 West 50th Street, Apt. 4P, New York, New York ("the subject premises") on the allegation of termination of a license given by the passing of Leonor Castillo ("the Prior Tenant"). Respondent interposed an answer with an affirmative defense that Respondent is entitled to succeed to the tenancy of the Prior Tenant. The Court held a trial on May 17, 2024 and adjourned the matter for post-trial submissions to July 3, 2024.
The trial record
Petitioner proved that it is the proper party to commence this proceeding, that the subject premises is subject to the regulations applying to project-based Section 8 housing, that the Prior Tenant had previously been the tenant of the subject premises, that the Prior Tenant passed away on April 17, 2020, that Respondent remained in occupancy of the subject premises after the Prior Tenant's passing, and that Petitioner caused Respondent to be served with a notice to quit pursuant to RPAPL §713(10) prior to the commencement of this proceeding. The parties stipulated that Respondent is the Prior Tenant's brother.
Romulo Leonardo Castillo ("Respondent's Nephew") testified that he has lived at 67 East 2nd Street, New York, New York ("the Other Address"), a two-bedroom apartment, since 1970; that Respondent is his uncle, that is, the brother of his mother, the Prior Tenant; that the Prior Tenant died; that the Prior Tenant was ninety-six years old when she died; that he was taking care of the Prior Tenant when she died; that the Prior Tenant lived in the subject premises before she died; that Respondent's Nephew always visited the subject premises; that the Prior Tenant lived alone until Respondent moved in with the Prior Tenant; that Respondent moved into the subject premises in 2015 because the Prior Tenant was very sick and needed someone to take care of her on a daily basis; that he would visit the subject premises and they would have a meal together as a family; that he observed Respondent taking care of the Prior Tenant, preparing meals, preparing the Prior Tenant's medication, and helping with laundry; that when he moved into the subject premises Respondent was in good health; that Respondent cannot walk well; that Respondent has fallen a few times; that Respondent has no formal medical training; that there was no contract between Respondent and the Prior Tenant; that Respondent helped the Prior Tenant voluntarily; that Petitioner has an office in the building in which the subject premises is located ("the Building"); that he goes to that office every month to pay Respondent's rent; that he handed the rent to an office manager named "Anna"; that there were many efforts to add Respondent to the lease; that since 2017, he and the Prior Tenant tried to add Respondent to the lease but Petitioner did not want to do that; that he first asked a building manager named "Richard Bailey" ("the Building Manager"); and that the Building Manager said no.
Respondent's Nephew testified on cross-examination that Respondent lived with him at the Other Address from the 1980s up until Respondent moved to the subject premises; that he slept in one bedroom of the Other Address while Respondent slept in the other bedroom; that he and Respondent did not have to take care of each other; that eventually the Prior Tenant became totally disabled; that the Prior Tenant's source of income was Supplemental Security Income ("SSI"); that he did not inquire about additional care because Respondent and he could provide additional help; that the Prior Tenant asked for Respondent to take care of her; that the Prior Tenant lost her memory; that Respondent and he had to monitor her medications; that the Prior Tenant would forget to take medications; that the Prior Tenant had Alzheimer's and Parkinson's; that the Prior Tenant would tremble a lot; that the Prior Tenant could not pick up a spoon or drink coffee; that Respondent was constantly with the Prior Tenant, day and night; that Respondent would help the Prior Tenant eat; that Respondent picked up groceries and prescriptions at the pharmacy; that the Prior Tenant had to take medications multiple times a day; that he and Respondent took the Prior Tenant outside in a wheelchair on occasions; that the Prior Tenant could not ambulate on her own in the wheelchair; that he was there 90% of the time; that Respondent was there; that Respondent provided care for the Prior Tenant overnight; that the medical recommendation for the Prior Tenant was twenty-four hour care; that the Building Manager was the person he paid the rent to; that the Building Manager was always the person that he spoke to for annual recertifications; that he filled out recertifications because he knows a little bit more English and because he could read and he could write; that he and the Prior Tenant were always trying to get Respondent on the lease as of 2017; that the Prior Tenant was in decline at the time; that the Prior Tenant was present in these meetings with Petitioner; and that the Building Manager could observe the Prior Tenant's condition.
Respondent's Nephew testified on redirect examination that the handyman in the Building, named "Roberto", would talk with Respondent and him when repairs needed to be done; that he had meetings with Petitioner; and that in 2015 he asked the Building Manager to put Respondent on the lease and the Building Manager said no.
Lillian Valentine ("Respondent's Neighbor") testified that she has lived in apartment IL of the Building for sixteen years; that she has lived in the Building for over forty years; that she lives on the first floor; that she has lived in apartments 9 J and 1W of the Building; that she knows Respondent; that she first met the Prior Tenant as the tenant of the subject premises; that she met family members over time; that Respondent lived with the Prior Tenant until the Prior Tenant died, although she did not remember what date that was; that Respondent has lived in the subject premises since 2015; that she has seen Respondent in the subject premises with the Prior Tenant; that she brought letters to Respondent; that Respondent now lives alone; that she talked with Respondent many times before the Prior Tenant died; that she saw Respondent in the hallway; that Respondent was very sad about the Prior Tenant dying; that she would see the Prior Tenant when the Prior Tenant was sick to see if the Prior Tenant needed anything; that she mostly saw Respondent coming in and out of the Building; and that the Building used to have security staffed more often in the past than now.
Respondent testified that he has lived in the subject premises since 2015; that he is aware that the subject premises is subject to Section 8; that he visited the Prior Tenant before he moved in; that he moved into the subject premises because the Prior Tenant became very sick and he needed someone to take care of her; that the Prior Tenant died in 2020; that the Prior Tenant lived in the subject premises when she died; that the subject premises has two bedrooms, a living room, a kitchen, and a bathroom; that he did not need specialized training to take care of the Prior Tenant; that he did not have an agreement with the Prior Tenant; that he has not cared for other people; that he helped the Prior Tenant with everyday household tasks, like shopping and laundry; that the lease was in the Prior Tenant's name; that in 2017 or 2018 interacted with the Building Manager, about keys to the subject premises; that the super of the Building is known as "Don Luis" ("the Super"); that the Super was Dominican; that he and the Super knew each other; that he would speak to the Super about repairs that were needed; that Respondent's Nephew would call Petitioner about repairs because Respondent's Nephew spoke English or he would see the Super in person; that he was not on the lease for the subject premises; that Respondent's Nephew and the Prior Tenant tried get him on the lease around 2017; that the Building Manager did not want to add him to the lease; that he is retired; that the Building Manager had used keys to enter the subject premises; that he told the Prior Tenant that her door had two locks; and that the Prior Tenant would not lock her own lock.
Respondent submitted his driver's license into evidence. The driver's license, issued on May 19, 2023, shows the subject premises as Respondent's address. Respondent testified that he has medical conditions that require him to take medication and that he gets medications from a Walgreen's on 50" and Broadway. Respondent submitted into evidence a record of medications he obtained from a Walgreen's at 1627 Broadway on various dates from 2018 through 2021. The record says that the Other Address is Respondent's address.
Petitioner submitted into evidence an affidavit that Respondent executed in this matter on April 18, 2022.
Respondent testified on cross-examination that he provided the Prior Tenant with care while he was living in the subject premises; that he was not employed during this time because he was retired; that when he moved in the Prior Tenant was "pretty bad" in terms of her health; that he was living at the Other Address before 2015; that Respondent's Nephew received Respondent's mail at the Other Address from 2015 until the death of the Prior Tenant in 2020; that he was told that Petitioner would not add Respondent to the lease because Petitioner regarded Respondent as a caretaker; and that he was a caretaker.
Discussion
A family member who resides with a tenant of a project-based Section 8 apartment for two years prior to the tenant's permanent vacatur can succeed to the tenancy. Los Tres Unidos Assoc. L.P, v. Colon, 45 Misc.3d 129(A)(App. Term 1st Dept. 2014), Marine Terrace Associates v. Kesoglides, 44 Misc.3d 141(A)(App. Term 2nd Dept. 2014), Chapter 3, §3-16(B) of the HUD Handbook. That section of HUD Handbook goes on to say that a landlord participating in the program does not review the eligibility of a family member remaining in possession after the death of a family who was the tenant. HUD Handbook Chapter 3, §3-16(B)(3)(a). Instructively, when a tenant vacates a project-based Section 8 apartment for a reason other than death in certain types of housing, the participating landlord must determine the eligibility of the remaining family member. HUD Handbook Chapter 3, §3-16(B)(3)(b).
The HUD Handbook can be found here: Occupancy Requirements of Subsidized Multifamily Housing Programs (4350.3) | HUD.gov / U.S. Department of Housing and Urban Development (HUD)
Petitioner does not dispute that Respondent is a sibling of the Prior Tenant. Nor did Petitioner submit any evidence disputing or rebutting that Respondent resided with the Prior Tenant for at least two years before she died nor that Petitioner's employees, specifically identified in Respondent's case, rebuffed efforts to add Respondent to the Prior Tenant's household composition, despite the fact that the HUD Handbook provides that owners "must" process a recertification of a family composition within a reasonable time, which should not exceed four weeks, of receiving a tenant request as such, if a tenant reports a change in family composition, HUD Handbook at §7-11(C), a process which entails an interview with the tenant upon receiving the request, HUD Handbook at §7-12(A)(1), and an owner's acquisition of third-party verification. HUD Handbook at §7-12(A)(2). Accordingly, when a tenant made numerous requests to add an occupant to the recertification of a project-based Section 8 apartment, and when the landlord did not properly address those requests, the landlord may not invoke the absence of the occupant's name on the household composition as a basis to deny succession. Marine Terrace Associates, supra, 44 Misc.3d at 141(A).
Petitioner argues that Respondent is a live-in aide as defined by the HUD Handbook. Such a live-in aide is not entitled to qualify for continued occupancy as a remaining family member. HUD Handbook Chapter 3, §3-6(E)(3)(a)(1)(c). The HUD Handbook defines a live-in aide in part as "a person who is determined to be essential to the care and well-being of the [tenant]" HUD Handbook Chapter 3, §3-6(E)(3)(a)(2)(a). A landlord participating in the project based Section 8 program must obtain verification from a medical professional that the aide is needed to provide necessary support services. HUD Handbook Chapter 3, §3-6(E)(3)(a)(2)(a). There is no evidence in the record of any such verification for Respondent nor any evidence of a determination from a medical professional that the Prior Tenant required the service of any person for her care and well-being. The only evidence is the lay judgment of Respondent and Respondent's Nephew that the Prior Tenant needed assistance, which the plain text of the HUD Handbook does not define as an live-in aide.
Petitioner cites Williams & Georgia Towers, HDFC v. Green, 70 Misc.3d 1222(A)(Civ. Ct. Kings Co. 2021), aff'd, 76 Misc.3d 127(A)(App. Term 2nd Dept. 2022) for the proposition that a family member who is also a live-in aide is not entitled to succession. The finding that Petitioner refers to appears to be dicta, however, particularly as the Court held that the respondent in that proceeding failed to support his position that he actually resided at the premises, Williams &Georgia Towers, HDFC, supra, 70 Misc.3d at 1222(A), and as the Appellate Term found that the lower Court properly held against that respondent that he appeared on a household composition for another apartment in the same complex. Williams & Georgia Towers, HDFC, supra, 76 Misc.3d at 127(A).
Petitioner also cites WRG Acquisition LLC v. Strasser, 45 Misc.3d 2010 (Dist Ct. Nassau Co. 2014), aff'd 55 Misc.3d 129(A)(2nd Dept. 2017), for the proposition that a family member who is a live-in aide and whose income is not imputed to the tenant cannot succeed to a tenancy. The respondent in that proceeding claimed that he was a live-in aide as defined by the federal regulations and therefore was not obligated to report his income. Respondent, by contrast, did not make such a claim of live-in aide status and offered unrebutted testimony that he attempted to be added to the Prior Tenant's household composition. Accordingly, this holding does not compel a finding that Respondent was a "live-in aide" as defined by the HUD Handbook. Cf. Bronx Preserv., L.P. v. Rodriguez, 59 Misc.3d 1210(A)(Civ. Ct. Bronx Co. 2018)(an occupant's affirmative application to reside in a subsidized apartment on the ground that they are a "live-in aide" constitutes an acknowledgement that the occupant is not entitled to succession).
Accordingly, it is ordered that the Court dismisses this proceeding, as Respondent has proven that he is not a licensee, but rather that he is entitled to succession to the tenancy of the Prior Tenant.
This constitutes the decision and order of this Court.