Opinion
348292/2018
02-26-2019
RIVER PARK RESIDENCES, L.P., Petitioner-Landlord, v. Tyleeha CARTER, Respondent/Tenant, "John Doe" and "Jane Doe", Respondents/Undertenants.
Petitioner's Attorney: Anish Mashettiwar, Esq., 885 Second Avenue, 16th floor, New York, New York 10017, (646) 618-8721
Petitioner's Attorney: Anish Mashettiwar, Esq., 885 Second Avenue, 16th floor, New York, New York 10017, (646) 618-8721
This is a Holdover Proceeding which was commenced by River Park Residences (Petitioner), a limited-profit housing company supervised by the New York State Division of Housing and Community Renewal (DHCR), seeking to recover possession of Apartment 8-F at 10 Richman Plaza in the Bronx from occupant Tyleeha Carter (Respondent). The Holdover Petition is based on a "Ten (10) Day Notice to Quit" dated May 7, 2018 which alleges that Respondent is the licensee of the former tenants of record Manuel Brown and Jesse Futrell who vacated the premises and surrendered their tenancy. Respondent , unrepresented by counsel, filed an answer raising a defense of succession rights to the apartment by stating: "I have been in home since 2015. I paid rent cable bills food and house stuff such as a couch, tv, microwave, dishes, soap etc. Me and my uncles been living together since 1989 from shelters to apartments."
Petitioner discontinued the proceeding as against Respondents "John Doe" and "Jane Doe".
Based on the unrefuted, credible testimony and other evidence presented at trial and described in detail below, the Court finds that Respondent Tyleeha Carter lived with her uncles for more than two years before they surrendered their tenancy, in a relationship characterized by emotional and financial commitment and interdependence. Respondent demonstrated by a preponderance of the evidence that she is the type of family member to whom the applicable regulations - and their important remedial purpose of "preventing dislocation and preserving family units which might otherwise be broken apart upon eviction", Braschi v. Stahl Assoc Co (74 NY2d 201, 543 NE2d 49, 544 NYS2d 784 [1989] ) - contemplate awarding succession rights. Respondent was more like a daughter - not just a niece - to her two uncles, who "stepped up to the plate" and helped to raise her because of her mother's drug problems. When Jesse asked Respondent in September 2015 to move in and help him care for Manuel, who had serious health problems which Jesse could not handle alone, Respondent did not hesitate to say yes because of their ongoing and deeply committed family relationship. For reasons unknown, Respondent was not listed as a member of the household on her uncles' annual income certifications for the two years before they surrendered their tenancy in April 2018. However, under the Court of Appeals' decision in Murphy v. New York State Div of Housing and Community Renewal (21 NY3d 649, 999 NE2d 524, 977 NYS2d 161 [2013] ), and the facts of this case, Respondent is entitled to be named as tenant on the lease.
TRIAL
Petitioner's case
At trial, Petitioner appeared by counsel and presented its case through one witness, Reginald Booker, a Property Manager who started working for Petitioner approximately one year ago, in February 2018. Petitioner proved its prima facie case through Mr. Booker's testimony and various documents admitted into evidence without objection. Petitioner, along with its nominee River Park Bronx Apartments, Inc., a New York Limited Profit Housing Corporation organized pursuant to Article II of the New York State Private Housing Finance Law ("Mitchell-Lama"), is the owner of the premises pursuant to a deed dated December 13, 2012. The building is a registered multiple dwelling.
The most recent tenants of record for the subject premises were Manuel Brown and Jesse Futrell, whose last lease, entitled "Model Lease for Subsidized Programs," ran from June 1, 2017 through May 31, 2018 with a monthly rent of $ 1020. Mr. Booker testified that it was his understanding that Mr. Brown and Mr. Futrell had moved out of the apartment and into a shelter around the time he started working for Petitioner in February 2018. He met them when they came to the office several times saying that they wanted "to try to get their apartment back" and for Petitioner "to remove the person who is there." Mr. Booker explained to them that it was still their apartment as the lease in their name was still in effect. Mr. Brown and Mr. Futrell then brought Mr. Booker a letter surrendering their tenancy, telling him that they did not feel safe in their apartment; however, the letter was not notarized so Mr. Booker did not accept it.
After that, Mr. Brown and Mr. Futrell surrendered their rights to the apartment in a written Stipulation of Settlement in a prior nonpayment eviction proceeding, L & T Index # 73313/17. The Court took judicial notice of the entire court file in that matter, including the Stipulation of Settlement dated April 30, 2018, which appears to be signed by Mr. Brown and Mr. Futrell and states verbatim : "Resps hereby surrender all rights claims + keys to the premises. Resp have already relocated to the shelter located at 316 W 95 St, NY NY 10025 and has removed all possessions. Respondents hereby revoke any license to any occupant in the apartment."
Jesse Futrell's signature is readable; the signature for Manuel Brown is more like an "x" or similar marking.
Mr. Booker explained that all tenants in the building must annually recertify their household income and composition. "Tenant Income Certification" forms for 2016 and 2017 which appear to be signed by Mr. Brown and Mr. Futrell effective June 1, 2016 and June 1, 2017 were admitted into evidence. The forms reflect a move-in date of June 25, 2015; household composition comprised of Manuel Brown and Jesse Futrell; a combined annual household income of $ 20,655.60 in 2016 and $ 20,769.24 in 2017 comprised solely of "Social Security/Pensions" for both Mr. Brown and Futrell; a "gross rent" for the apartment of $ 1020; and a determination that the household is in the "Tax Credit" program.
As on the April 30, 2018 Stipulation, Jesse Futrell's signature is readable but the signature for Manuel Brown is more like an "x" or similar marking.
Respondent's case
Respondent, still unrepresented by counsel, presented the testimony of two witnesses - herself and her mother Mary Futrell — and a number of documents, many but not all of which the Court admitted into evidence, some over petitioner's objection and some without objection. Respondent testified that she was born in 1989 and lived at that time in an apartment in "Bronxdale Projects" with her mother, her grandparents, her mother's brother Jesse Futrell, Jesse's partner Manuel Brown and her brothers and sisters. When she was seven years old, Respondent's grandmother died. Jesse, Manuel and a cousin Shirley Futrell, who were the adults in the house, "stepped up to the plate" and took care of Respondent and her siblings because their mother had a drug problem.
When she was eight years old there was a fire in the apartment and everyone separated. Jesse and Manuel went to live with Manuel's mother, Shirley went to live with her son's father and Respondent and her siblings went to live with an aunt. Respondent's mother was not around during this time and the other adults in the family took turns to help raise Respondent and her siblings. Respondent would go to see Jesse and Manuel on weekends, and the whole family got together for family functions, Thanksgiving and other holidays.
When Respondent was 21, after staying in a shelter, Respondent got a two-bedroom apartment of her own. However, she couldn't afford it and Jesse, Manuel and Respondent's mother, who were all staying in shelters at that time, moved in with her; they "put their money together" and "all chipped in" for the two-bedroom apartment. Then they moved together to a bigger, three-bedroom apartment. However, they "got scammed", ended up getting their money back from the landlord and moved to another apartment. In 2012 there was a fire in the apartment where they were living and the Red Cross placed them all — herself, her son Ricky, her mother, Jesse and Manuel — first in a shelter and then in some rooms in a basement apartment. The basement apartment didn't work out and from there they moved together to the Convent Avenue "family shelter". They stayed together in that family shelter for about one and a half years and then separated again. Respondent and her son moved from the shelter to live with her boyfriend; Respondent had a second child with her boyfriend in 2014.
Jesse and Manuel initially went to another shelter and then found and moved into the apartment at River Park Residences. Right before school started in September 2015 Jesse and Manuel asked Respondent to move in with them as Manuel was sick and Jesse needed Respondent's help caring for Manuel. Respondent, her children and her daughter's father all moved in and they agreed that Respondent would pay Jesse and Manuel $ 400 per month. At that time Respondent's boyfriend was working and Respondent was receiving food stamps which she used to buy food for the household; when her boyfriend lost his job, Respondent started receiving rent checks from public assistance of $ 400 a month which went directly to Manuel.
When Respondent first moved in with Jesse and Manuel, "there was nothing there"; she brought in furniture and "made it look like something." She got cable installed in her name. At the beginning, Respondent testified that everything was alright: Jesse and Manuel would "drink their beers" and they had no problems until Jesse started using drugs. He would borrow money and drugs to get him through until his next check came in at the beginning of the month. Eventually it got so bad that, because of Jesse's drug problems, he also used Manuel's money for drugs. When their checks would come in on the third of the month Jesse had to pay people back and there would be nothing left for the rent, food and other expenses. Respondent "had to step in to take care of them more", using her money and food stamps to get food for everyone "because they have to eat" and paying for Manuel's transportation to appointments. Sometimes Jesse would leave Manuel in the apartment and Respondent was the one who would have to get him into the tub, clean him up, wipe him and so on because he couldn't do anything for himself. Respondent found herself "taking care of a grown man" and started to feel "like I had four kids".
Jesse's drug problems worsened in October 2017. Respondent and Jesse argued frequently as he started stealing Respondent's things, ransacking the apartment and taking coats, sneakers and anything that was valuable. Respondent told Jesse he "had to get his stuff together" as his "drug habit was so bad he was stealing from me left and right.". When Jesse took her son's "Play-Station" Respondent decided this was too much and she reported Jesse to the police. Respondent ended up dropping the charges she had filed against Jesse, as he "was still my uncle" and "I can't be mad".
Jesse and Manuel "were officially out of the apartment" in January 2018: Jesse was scared to stay in the neighborhood because he had borrowed money, and now owed over $ 5000 to some guys who had threatened him. Manuel, who had been in and out of health care facilities, went back to a nursing home and Jesse went to a shelter. Respondent is still in contact with her uncles, although she does not know where Jesse is living; he is still "in the wind, doing whatever he wants" — using drugs and getting arrested - and she last saw him for New Year's. Manuel is now out of the nursing home, living in a shelter and "doing okay".
Regarding the Tenant Income Certification forms, Respondent testified that she does not know why she is not listed on them other than that Jesse and Manuel "wasn't taking care of business" and that putting her on the lease was probably "the last thing on their minds." All Jesse was concerned about was getting Respondent's public assistance rent checks, which came in Manuel's name as head of household but which Jesse would sneak from the mailbox.
Respondent offered, and the Court allowed into evidence for the purpose of corroborating her statements as to the different places she, her mother, Jesse and Manuel had lived, and the bills she paid, the following documents, listed in chronological order:
• Form dated 4/14/12 from American Red Cross (two pages) referencing a fire on 4/13/2012 as the "Type of Disaster" at the address of 466 East 185 St, Bronx, NY and listing Mary Futrell as head of household; Respondent; and, as "others in home," Respondent's son Ricky, Jesse Futrell and Manuel Brown [Resp's Ex H, no objection]
• Form dated 4/16/12 from HPD (NYC Department of Housing Preservation & Development) addressed to the Bronx Park Motel referring Mary Futrell and her household for temporary shelter and housing relocation assistance services, listing the household members in addition to Mary Futrell as Jesse Futrell, Manuel Brown, Tyleeha Carter and her son Ricky [Resp's Ex M, no objection]
• Letter dated 4/19/12 from American Red Cross/Greater New York addressed to Mary Futrell, at 466 East 185th Street, Bronx, NY 10458, the apartment where the fire was and which Respondent described as one of the apartments where "we all lived, chipped in together", referring to herself, her mother, her son Ricky, Jesse and Manuel [Resp's Ex A-3, in evidence over objection]
• Notice dated 5/11/2012 from Cablevision addressed to Tyleeha Carter at 1123 E Tremont Ave, Bronx, NY, which address Respondent described as one of the places they all lived together after the fire [Resp's Ex L, in evidence over objection]
• Letter dated 2/7/2013 from Convent Avenue Family Living Center Social Services Department addressed to, "Clients of Convent" which Respondent testified referred to the family shelter where she, her mother, her son Ricky, Jesse and Manuel lived together after the fire [Resp's Ex A-4, in evidence over objection]
• Letter dated 10/29/2013 from HRA (NYC Human Resources Administration) addressed to Respondent's son Ricky at 30 Convent Ave, # 2-B, NY NY 10027, which Respondent testified was the address of the Convent family shelter where she lived with her mother, Ricky, Jesse and Manuel after the fire [Resp's Ex A-2, in evidence over objection]
• Two notices dated 12/13/2016 from HRA addressed to Respondent at the subject premises [Resp's Ex C, in evidence over objection]
• Police Report dated 11/15/17 listing Respondent as the victim, 10 Richman Plaza as the location of the incident and Jesse Futrell as the suspect [Resp's Ex F, first page, no objection]
• Letter dated 11/16/2017 from HRA addressed to Respondent at the subject premises [Resp's Ex A-1, in evidence over objection]
• Computer printout dated 2/16/18 from HRA showing Respondent's public assistance household, comprised of herself and her two children, born in 2010 and 2014, reflecting her address at the subject premises and showing semimonthly shelter payments of $ 200 each for the period of 4/11/17 through 12/27/17, and for $ 107.50 each for the period of 1/11/18 through 2/10/18, sent to "BROWN M FR CARTER T", also at the subject premises [Resp's Ex E, no objection]
• Respondent's 2017 IRS 1040 and NYS IT-201 Income Tax Returns, dated 2/16/2018, listing the subject premises as her mailing address, her occupation as "HAIR BRAID", a "Business address" of 2350 Webster Avenue, Apt. 4I, Bronx, NY 10458 and, on the NYS Tax Return, 2350 Webster Avenue as Respondent's "permanent home address" [Resp's Ex D, no objection]
• Temporary Order of Protection from Bronx County Criminal Court dated 7/19/18 ordering Jesse Futrell to stay away from Respondent [Resp's Ex F, second page, no objection]
• Optimum bill with due date of 4/5/2018 covering the period of 3/16-4/21 addressed to Respondent at the subject premises [Resp's Ex B, no objection]
On cross-examination, Respondent testified that she has a close relationship with both Jesse and Manuel, both of whom she referred to as her uncles. She testified that they don't have any bank accounts, much less any joint bank accounts with her. She did not sign any forms for Manuel and explained that Jesse is his power of attorney. When Jesse and Manuel moved out she did not speak to anyone in Petitioner's management office about succeeding to the apartment and did not file a succession claim with the DHCR; she testified that she did not know about that process. When asked why she wasn't included in the initial certification when Jesse and Manuel moved in to River Park Residences Respondent answered that she was staying with her boyfriend and her son at that time in an apartment at 2350 Webster Avenue. They were evicted from 2350 Webster and from there Respondent went to live with her sister at 64 Essex for about two or three months. It was then that Jesse called her to ask for her help, and, "When Jesse asked me to come, I came."
She continued to receive mail at 2350 Webster until the beginning of 2016 because she still had the mailbox key and, even though the landlord had evicted them, "they didn't change the mailbox key." When asked why the 2350 Webster Avenue address was listed on her 2017 tax return as her "permanent residence" Respondent answered that she did not know, this was probably a mistake and she hasn't received mail there since the beginning of 2016. When asked why her HRA budget did not include Manuel or Jesse, Respondent explained that they have their own public assistance cases and get their own food stamps. They were not supporting her but she was supporting them by "buying food for the whole house."
When asked why Jesse and Manuel left the apartment Respondent answered that it was because Jesse owed money to people in the neighborhood who had threatened him and also because he had stolen from her. Manuel left along with Jesse because his life was threatened too: "Whatever lands on Jesse lands on him too. That's his partner."
Responding to a few questions from the Court about how household tasks were handled when Respondent was living in the apartment with Jesse and Manuel, Respondent testified that when things were going well for Jesse he made the meals because he was a better cook than she was; he also would buy things and do the laundry "when he cleaned himself up." When Jesse was not doing well, Respondent did the cooking, cleaned the apartment and did everybody's laundry, including Manuel's who "was urinating on himself". Manuel was hospitalized six different times in 2017 and a nurse would come to check on him three or four times a week after each hospitalization. However, no home care was provided as "Jesse was supposed to be the home care." Respondent did not know how old her mother was and said that Jesse was "40-something, fifty" and Manuel is about to be 60.
Respondent's second witness Mary Futrell testified that she is Respondent's mother and Jesse Futrell is her brother. Ms. Futrell testified that she and Respondent and Jesse and Manuel were living in an apartment near Washington Avenue until there was a fire and the Red Cross placed them all in the Convent family shelter together. When asked on cross-examination why they split up after that Ms. Futrell explained that their "time was up in the shelter", they "didn't have the programs they have now," and Jesse and Manuel were able to get the River Park apartment because they had a case manager who helped them with the application. When Jesse and Manuel moved to River Park, she moved somewhere else and then ended up back in a shelter. When asked why Jesse asked Respondent to move in to help him out, Ms. Futrell testified that Jesse asked her first, but she told him she couldn't help with Manuel because she is disabled and couldn't push Manuel in his wheelchair; Manuel had a stroke after he and Jesse moved into River Park and initially needed a wheelchair (then a walker, and then a cane).
Ms. Futrell testified that she visited at least every other week at the River Park apartment, that the family was very close and other family members would go too. She personally observed Respondent living in the subject premises with Jesse and Manuel whom Ms. Futrell referred to as "gay domestic partners" and taking care of things such as cleaning the house, buying food and taking Manuel to his doctors' appointments. Respondent "did a lot for them" and was "a big help" in making sure things were getting done as Jesse was not always able to take care of Manuel. She described the family as "close-knit", and until recently they all used to see each other every week or every week. She did not know why Jesse and Manuel moved out of the River Park apartment, other than that "they had drinking problems" and that Jesse was "acting crazy" and "said he would get some help." She does not know where they are living now and hasn't seen them for the past couple of months.
Rebuttal
Petitioner presented no rebuttal testimony or documents.
PRIOR HOUSING COURT PROCEEDINGS
As described above, at Petitioner's request the Court took judicial notice of a Stipulation of Settlement dated April 30, 2018 in a prior nonpayment proceeding against Jesse Futrell and Manuel Brown, Bronx County L & T # 73313/17, in which Mr. Futrell and Mr. Brown surrendered their tenancy. The Court also took judicial notice of the entire file in that proceeding.
Also in that file of relevance to this proceeding is the Answer filed by Tyleeha Carter, Respondent herein, on January 17, 2018, which identifies her as "Niece — Lives in the Apt" and which includes, in the section called "Other counterclaim(s):" the following statement: "Ms. Carter gives her uncle $ 400 public assistance check & the money seems to be mismanaged/Mr. Brown & Mr. Futrell have not been paying the rent like they are supposed to and spending it on alcohol instead." The file also contains an Order to Show Cause taken out by Ms. Carter on January 23, 2018, returnable February 14, 2018. Notations on the court file jacket for February 14, 2018 indicate that the matter was adjourned that day to March 26, 2018 at 9:30 a.m. "for trial," with the additional notation, "Lockout case on 2/16/18." Notations on the court file jacket for March 26, 2018 indicate that the matter was adjourned to April 30, 2018 with an "APS [Adult Protective Services] referral for Jesse Futrell" emailed on March 27, 2018. The "APS Housing Court Referral" form for Jesse Futrell dated March 26, 2018 is in the court file. It lists Respondent Ms. Carter as a household member who appeared in court and includes the comment "alcohol/drug use ? ? alleged by his niece". On April 30, 2018 the court file jacket was marked "DNAM [denied, no appearance movant] (niece)" and then "T of Record surrendered their rights". The Decision/Order form for the Order to Show Cause was marked "MDNAMP" [motion denied, no appearance moving party] and dated April 30, 2018.
The Court's case management system reflects that Respondent filed a lock-out petition, L & T Index # 801771-18, on February 9, 2018 that had an initial court date of February 16, 2018. That proceeding was adjourned on that date to February 20, 2018 and then the Court issued an order on February 23, 2018.
DISCUSSION
When a tenant moves out of an apartment in a State-assisted limited-profit housing company, someone who lived with them may seek to be named as tenant on the lease. To be added to the lease, such person must establish that they meet the "family member" definition found in 9 NYCRR § 1700.2(a)(7) and that, prior to the tenant of record's permanent vacatur of the apartment, they occupied the apartment with the tenant of record as a primary residence for a period of no less than two years , 9 NYCRR § 1727-8.2(a)(1), as evidenced by listing the family member on the requisite annual income certifications during the applicable period and other evidence that establishes the family member's actual occupancy of the dwelling unit. 9 NYCRR § 1727-8.2(a)(2). The regulatory requirement that the family member be listed on the income certifications has been tempered by the Court of Appeals' decision in Murphy v. New York State Div of Housing and Community Renewal (21 NY3d 649, 999 NE2d 524, 977 NYS2d 161 [2013] ), and must be interpreted so as to align with the mandate that "statutes affording protections to tenants are to be liberally construed as implementing the purposes for which the rent laws were enacted." Lesser v. Park 65 Realty Corp (140 AD2d 169, 173, 527 NYS2d 787, 790 [1st Dep't 1988] ). The housing company must also "secure credible evidence of the tenant's removal from the dwelling unit and the surrender of the unit". 9 NYCRR § 1727-8.2(c).
If the family member is disabled or a senior citizen, the overlap period is one year. 9 NYCRR § 1727-8.2(a)(1)(i).
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Here, it was undisputed at trial that, since their move-in date of June 25, 2015, which is listed on their income certifications for 2016 and 2017, the subject premises had been the primary residence of Manuel Brown and Jesse Futrell. It is also undisputed that Mr. Brown and Mr. Futrell surrendered their tenancy on April 30, 2018 by Stipulation of Settlement in a prior nonpayment proceeding. Further, the Court finds that Respondent established by a preponderance of the unrefuted, credible evidence that she and her two young children have resided at the subject premises as their own primary residence for at least two years prior to April 30, 2018. Respondent credibly testified that she has lived at the subject premises ever since Jesse called to ask for her help in early September 2015, approximately three months after he and Manuel had moved in. This testimony was not contradicted by Petitioner, who failed to put in any rebuttal evidence or otherwise to connect Respondent to any other residence during the relevant time period.
The harder questions, which the Court has examined carefully, are whether Respondent meets the definition of "family member" and whether her succession rights claim is precluded by the fact that her uncles omitted her from their annual income certification forms for 2016 and 2017.
A "family member" is defined in the first instance as certain traditional family members, specifically, a "spouse, son, daughter, stepson, stepdaughter, father, mother, stepfather, stepmother, brother, sister, grandfather, grandmother, grandson, granddaughter, daughter-in-law, son-in-law, mother-in-law or father-in-law of the tenant." 9 NYCRR § 1700.2(a)(7). Alternatively, the definition of family member "may also mean any other person residing with the tenant or cooperator in the dwelling unit as a primary or principal residence, who can prove emotional and financial commitment and interdependence between such person and the tenant or cooperator." 9 NYCRR § 1700.2(a)(7). Blood relatives such as a niece or nephew that are not included in the definition of traditional family members may qualify under the alternative definition. See, e.g. , 300 East 34th St Co v. Habeeb (248 AD2d 50, 683 NYS2d 175 [1st Dep't 1997] ); Hitchcock Plaza, Inc v. Fortune (47 Misc 3d 127[A], 15 NYS3d 711 [App Term 1st Dep't 2015] ).
Evidence which is to be considered in determining whether the requisite "commitment" and "interdependence" existed "shall be the income affidavit filed by the tenant for the dwelling unit" and other evidence which may include, but is not limited to, the following eight factors:
(i) longevity of the relationship;
(ii) sharing of or relying upon each other for payment of household or family expenses, and/or other common necessities of life;
(iii) intermingling of finances as evidenced by, among other things, joint ownership of bank accounts, personal and real property, credit cards, loan obligations, sharing a household budget for purposes of receiving government benefits, etc.;
(iv) engaging in family-type activities by jointly attending family functions, holidays and celebrations, social and recreational activities, etc.;
(v) formalizing of legal obligations, intentions, and responsibilities to each other by such means as executing wills naming each other as executor and/or beneficiary, granting each other a power of attorney and/or conferring upon each other authority to make health care decisions each for the other, entering into a personal relationship contract, making a domestic partnership declaration, or serving as a representative payee for purposes of public benefits, etc.;
(vi) holding themselves out as family members to other family members, friends, members of the community or religious institutions, or society in general, through their works or actions;
(vii) regularly performing family functions, such as caring for each other or each other's extended family members, and/or relying upon each other for daily family services;
(viii) engaging in any other pattern of behavior, agreement, or other action which evidences the intention of creating a long-term, emotionally committed relationship.
Under the test that was first articulated in Braschi v. Stahl Assoc Co (74 NY2d 201, 543 NE2d 49, 544 NYS2d 784 [1989] ), no single factor is solely determinative. Although the enumerated "factors are most helpful the presence or absence of one or more of them is not dispositive since it is the totality of the relationship as evidenced by the dedication, caring and self-sacrifice of the parties which should, in the final analysis, control." Braschi , supra (74 NY2d at 213, 543 NE2d at 55, 544 NYS2d at 790 ); RHM Estates v. Hampshire (18 AD3d 326, 795 NYS2d 214 [1st Dep't 2005] ); Classic Props, LP v. Martinez (168 Misc 2d 514, 516, 646 NYS2d 755 [App Term 1st Dep't 1996] ).
While Braschi, RHM Estates and many of the other decisions addressing the succession rights of remaining family members arise under the Rent Stabilization Law and Code, the "family member" definition and succession rules for apartments in limited-profit housing companies are very similar and courts cite interchangeably to the cases interpreting these rules, regardless of the type of housing at issue. See, e.g., Murphy v. NYS DHCR, supra ( 21 NY3d at 653, 999 NE2d at 527, 977 NYS2d at 164 ), a case involving succession rights to an apartment in a State-supervised limited profit [Mitchell-Lama] housing project which cites Braschi for the proposition that "Succession is in the spirit of the statutory scheme, whose goal is to facilitate the availability of affordable housing for low-income residents and to temper the harsh consequences of the death or departure of a tenant for their ‘traditional’ and ‘non-traditional’ family members"; Matter of King-Rubie v. Wambua (141 AD3d 589, 590, 34 NYS3d 590, 590-591 [2nd Dep't 2016] ), a case involving succession rights to an apartment in a City-supervised limited-profit [Mitchell-Lama] housing project which cites RHM Estates v. Hampshire, supra .
Further, while many of the decisions ruling on succession claims are raised by life partners who lived in nontraditional marital-type relationships with the now departed or deceased tenants of record, these are not the only types of nontraditional family relationships covered by the remaining family member succession rules. Matter of King-Rubie v. Wambua, supra (reversing lower court's dismissal of Article 78 proceeding challenging a dismissal by HPD of a succession rights petition filed by the tenant of record's great-nephew); Hitchcock Plaza, Inc v. Fortune, supra (affirming trial court's dismissal of a licensee holdover proceeding against the deceased tenant of record's niece).
Here, Respondent credibly testified that she has lived with her uncles Jesse Futrell and Manuel Brown for much of her life, first in her grandmother's household, then, after her grandmother died, in their household, as they "stepped up to the plate" to take care of Respondent and her siblings, whose mother, Jesse's sister Mary Futrell, was unable to care for them because of her drug use. Although a fire in the apartment caused the family to split up and go in different directions, as a young adult of age 21 Respondent moved back in with Jesse, Manuel and her mother, pooling their resources to rent a series of apartments together and then, following another fire, ending up in a "family shelter", after being recognized by the American Red Cross and the City's Department of Housing Preservation and Development as one family. After a year and a half in that "family shelter," Jesse and Manuel were fortunate enough with the assistance of Manuel's caseworker to get an apartment at River Park Residences, and when Jesse asked Respondent to move in with them to help him take care of Manuel, she herself did not hesitate to "step up to the plate", as her uncles had done for her when she was a child. When she moved in at Jesse's request, because of Jesse's drug use and Manuel's poor health she found herself taking care of the whole household. She brought in furniture, arranged for cable service and "made it look like something." As Jesse was using all the money coming in to him and Manuel for drugs Respondent had to "step in and get food" on the table, even though Jesse was the better cook when he was up to it. Respondent had to bathe Manuel, who was incontinent, and wash his clothing, to the point where "Now it's like I had four kids." The testimony of Respondent's mother, while scant, credibly corroborated bits of Respondent's testimony: she visited regularly and saw that her daughter cleaned the house, bought food and took Manuel to doctor appointments.
As acknowledged by the Court of Appeals, "The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life." Braschi, supra (74 NY2d at 211, 543 NE2d at 53, 544 NYS2d at 788-789 ). The reality of this family's life is that Jesse and Manuel have been more than just uncles to Respondent, and she has been more than just a niece to them. As Respondent concluded plaintively, what niece lives together with their uncles for all these years? In other words, Jesse and Manuel have been Respondent's "father figures" throughout her life, having helped to raise her after her grandmother had died and when her own mother couldn't because of drug abuse. As a young adult, Respondent, her uncles and her mother, who had all spent time living in shelters, pooled their resources and lived together first in a series of apartments and then, after a fire in one of those apartments, in a "family shelter". Then, when Jesse and Manuel were in need, Respondent moved back in with them to the apartment they had moved to from the shelter, sharing household expenses and living as a family again.
The paucity of documentary evidence offered by this unrepresented Respondent is not determinative of her succession rights claim given the Court's finding that her testimonial evidence was credible, consistent and sufficiently detailed, Matter of 530 Second Ave Co, LLC v. Zenker (160 AD3d 160, 163, 74 NYS3d 41, 44 [1st Dep't 2018] ); Arnie Realty Corp v. Torres (294 AD2d 193, 742 NYS2d 240 [1st Dep't 2002] ) 178 E 70th St, LLC v. Weizmann (2018 NY Slip Op 51717[U], 61 Misc 3d 147[A][App Term 1st Dep't 2018] ); Lenoxville Assoc, LP v. Downs (40 Misc 3d 138[A], 975 NYS2d 710 [App Term 1st Dep't 2013] ), especially given that 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] ). Here, neither Respondent nor her uncles possessed significant material resources: Respondent is on public assistance and her uncles' annual combined income of approximately $ 20,000 as reflected in their last two years' worth of income certification forms was comprised solely of "Social Security/Pensions". Respondent's credible testimony that she used her limited resources to put food on the table and keep the household running was convincing and unrefuted.
The documentary evidence Respondent presented, although of a limited nature, corroborated and enhanced the credibility of her testimony, confirming, for example, that she, her two uncles and her mother were treated as a family by the American Red Cross and the City's Department of Housing Preservation and Development after a fire occurred in the apartment where they all had been living together; that she had cable service in her name both at the subject premises and at another prior apartment where she testified she lived with her uncles; that she received public assistance for herself and her two children at the subject premises and that her budget included a shelter allowance paid to her uncle Manuel Brown. Her testimony that her uncle Jesse was "forty-something, fifty" and that her uncle Manuel was "about to be sixty" was corroborated by the Tenant Income Certification forms, which show that Jesse turned fifty in February 2018 and Manuel is fifty-six. Respondent's estimate was close enough, especially considering that she also testified that she did not know how old her mother was.
Also corroborative of certain parts of Respondent's testimony are the contents of the file in the related nonpayment proceeding against Mr. Futrell and Mr. Brown, L & T Index # 73313/2017, including the fact that the only Answer and the one Order to Show Cause that were filed with the Court in that proceeding were filed by Respondent herein. That the Court referred Mr. Futrell to Adult Protective Services because of alleged alcohol and/or drug abuse reported by his niece is also consistent with Respondent's testimony herein.
That the Webster Avenue address was listed as Respondent's "business address" on her 2017 Federal tax return and as her "permanent home address" on her State tax return is not determinative, give that those forms also listed the subject premises as her mailing address. Compare Matter of Ansonia Assoc LP v. Unwin (130 AD3d 453, 13 NYS3d 67 [1st Dep't 2015] ); Goldman v. Davis (49 Misc 3d 16, 17, NYS3d 264 [App Term 1st Dep't 2015] ). Further, Respondent's answers to the questions she was asked on cross-examination about those tax returns were consistent and credible, including her conclusion that those references to the Webster Avenue apartment from which she had been evicted in 2015, "must have been a mistake", given her candid testimony about how she continued until early 2016 to use the Webster Avenue mailbox after being evicted from that address because the landlord there did not change the lock and her key still worked.
Petitioner's cross-examination questions to Respondent about whether she applied for succession rights either at Petitioner's management office or at the DHCR are of no moment. This Court has concurrent jurisdiction with the DHCR over Respondent's claim of succession rights to her uncles' apartment. See, e.g. , 83-85 Baxter St, LLC v. Bin Cai (49 Misc 3d 30, 17 NYS2d 578 [App Term 1st Dep't 2015] ).
The absence here of documents reflecting formal legal obligations or intermingling of finances between Respondent and her uncles does not undermine her succession rights claim given that the totality of the testimonial evidence, as corroborated in part by documentary evidence, establishes the requisite emotional and financial commitment. Instructive is the decision in Pacst 1244-46, 1356, LLC v. Swinton (50 Misc 3d 143[A], 31 NYS3d 923 [App Term 2nd Dep't 2016] ), a licensee holdover proceeding in which the deceased tenant of record's grandniece raised a defense of succession rights to the subject Rent Stabilized apartment. The court found that,
Unrebutted testimony, which the court found credible, showed that tenant and occupant had a loving, close, mother/daughter-type relationship. Occupant moved in with tenant when occupant was in junior high school. While occupant was in school, tenant essentially raised occupant, taking care of the necessities of life for occupant, setting rules for occupant to follow and assigning chores for occupant to do. Occupant and tenant shared meals, went shopping together, spent holidays together, and did most daily life activities as a family. Once occupant started working, she began contributing to the household expenses, including the rent. Later, after tenant had had a stroke, occupant cared for tenant, including bathing, dressing and feeding her. Viewed in its totality, this evidence demonstrates that occupant qualifies as a nontraditional family member and is entitled to succession rights.
Respondent convincingly established the elements of her defense and there was no evidence to indicate that her actions at any time were "in furtherance of some nefarious scheme to succeed to the apartment." Lesser v. Park 65 Realty Corp (140 AD2d 169, 174, 527 NYS2d 787, 791 [1st Dep't 1988] ).
CONCLUSION
Accordingly, the petition is dismissed, and Respondent is entitled to be named on the lease for the subject premises. This constitutes the Decision and Order of this Court, copies of which are being mailed to Petitioner's attorney and to Respondent forthwith. The parties may pick up their documents that were submitted into evidence as trial exhibits from the Part Clerk in Room 409 or 410 within thirty days. If the exhibits are not picked up by March 29, 2019, they may be disposed of in accordance with Administrative Directives.