Opinion
64957/2018
02-20-2019
TRI-BEL, L.P., Petitioner (Landlord), v. Talaya LaShawn EVERETT, "John Doe" and "Jane Doe", Respondents (Occupants).
Petitioner's Attorney: Jason D. Boroff & Associates, PLLC, 349 East 149th Street, Suite 703, Bronx, New York 10451, (718) 475-7888 Respondent: Talaya LaShawn Everett, 2045 Southern Boulevard, Apt. 1D, Bronx, New York 10460
Petitioner's Attorney: Jason D. Boroff & Associates, PLLC, 349 East 149th Street, Suite 703, Bronx, New York 10451, (718) 475-7888
Respondent: Talaya LaShawn Everett, 2045 Southern Boulevard, Apt. 1D, Bronx, New York 10460
Diane E. Lutwak, J.
BACKGROUND
This is a Holdover Proceeding which was commenced by Tri-Bel, L.P. (Petitioner) seeking to recover possession of Apartment 1-D at 2045 Southern Boulevard, Bronx, New York 10460 (the subject premises) from occupant Talaya LaShawn Everett (Respondent) based on the allegation that she is the licensee of the former Rent Stabilized tenant of record Theodore Eustache, who is now deceased. Respondent did not serve and file an answer but her defense of "succession (uncle)" is noted on the court file jacket.
Petitioner discontinued the proceeding as against Respondents "John Doe" and "Jane Doe".
TRIAL
At trial, Petitioner appeared by counsel, Respondent appeared pro se and each side presented one witness: Tara Grekulak, who has worked for Petitioner since 2005, testified for Petitioner and Respondent Talaya Everett testified for herself.
Petitioner proved its prima facie case through Ms. Grekulak's testimony and various documents admitted into evidence. Petitioner is the owner of the premises pursuant to a deed dated June 29, 1999 with the City of New York as the grantor. The building is a registered multiple dwelling. The apartment is subject both to Rent Stabilization and to two Regulatory Agreements with the City, acting through its Department of Housing Preservation and Development (HPD). The first, dated June 29, 1999, describes the subject premises as a project "to be rehabilitated under HPD's Neighborhood Redevelopment Program", financed by HPD, and defines "Eligible Tenants" to include "Current Tenants". The second, dated December 15, 1999 and entitled "Amended and Restated Regulatory Agreement", allocates federal low-income housing tax credits to Petitioner and subjects the premises to the requirements of Section 42 of the Internal Revenue Code of 1986, as amended.
The last tenant of record for the subject premises was Theodore Eustache. His most recent Renewal Lease ran from December 1, 2016 through November 30, 2018 with a preferential monthly rent of $ 722.39 and a legal regulated rent of $ 2235.95. Petitioner's agent testified that there are two "tiers" of rents assigned to each apartment, and Mr. Eustache was charged the lower rent because he was "an original tenant" who was in place when Petitioner took over the building.
Petitioner's agent explained that all tenants in the building must annually certify their household income and composition. Mr. Eustache's "Tenant Income Certification Packets" for the years 2014, 2015, 2016 and 2017, which were admitted into evidence, are all signed by Mr. Eustache, they all indicate that his date of birth was June 11, 1930 and they all list him as the only member of the household, with income comprised solely of his Social Security benefits and a small amount of savings in an account at "Apple Bank". Petitioner's agent testified that Mr. Eustache never requested permission for anyone else to reside in the apartment.
Petitioner learned that Mr. Eustache had died in approximately September 2018, a few months before starting this case. No rent payments have been accepted since then, and $ 2378.29 is the amount owed through February 2019 at the rate last charged to Mr. Eustache.
Respondent testified that she moved into the apartment with Mr. Eustache in September 2014. For about two years before that, Respondent had been living upstairs in the same building in Apartment 5A, which was her stepfather's apartment. She testified that Mr. Eustache was her uncle and that "from what I was told" he was her mother's brother. When she moved in she was working as a "CNA" in a nursing home. The apartment has one bedroom, where Mr. Eustache slept, and she slept in the living room. She and Mr. Eustache had an agreement — not in writing — that "he would help me and I would help him." Respondent testified that Mr. Eustache told her to make herself feel at home, that he helped her with car fare and she helped him by buying food. They ate meals together and she would cook dinner for him after she came home from work. After dinner he would sit by the window and they would watch TV together. After a while his health declined due to Alzheimer's Disease. VNS started sending aides to help him approximately two years ago. They came seven days a week, and the number of hours per day varied, sometimes five and sometimes eight. Respondent testified that Mr. Eustache could not get 24-hour care because she was there. She helped with cleaning and feeding Mr. Eustache, ran errands for him and accompanied him to doctors' appointments at the VA. He died at home on August 16, 2018 and was never in a nursing home.
On cross-examination in response to a question about where Mr. Eustache had a bank account Respondent's answer was "Apple Bank". Respondent testified that she helped pay the rent, but not in her name. She testified that she was aware that Respondent had to certify his income to the landlord but thought it was every two years, not every year. She identified a copy of her New York State Learner's Permit that Petitioner showed her which confirms her testimony that she is 23 years old and that lists her address as 2045 Southern Boulevard, Apartment 5A. She explained that she first moved out of Apartment 5A at the beginning of 2014 when she went away to a "Job Corps" trade school in Buffalo, New York. It was a residential school and she lived on campus. When she returned in September 2014 she moved in with Mr. Eustache in Apartment 1D. She could not return to Apartment 5A because she was having problems with someone there, could not be around him and had to leave. She had already spoken to Mr. Eustache about moving in with him during an earlier visit home while on vacation from school. The reason her Learner's Permit has Apartment 5A on it and not 1D is that she applied for it near the beginning of her time at the trade school.
When asked her uncle's age Respondent initially said 68 or 69 and then said he was in his late 80's. She does not know for a fact that Mr. Eustache is her uncle, but testified that her mother, who is 57, told her that Mr. Eustache was her brother. Respondent did not know the names of either of Mr. Eustache's parents or where Mr. Eustache was born. She believes he had two or three brothers and one or two sisters and she was in contact with one sister and two brothers. Respondent offered no other witnesses' testimony and no documents into evidence.
On rebuttal, Ms. Grekulak re-took the witness stand and testified that she had met Respondent once, after Mr. Eustache died. Respondent had given Ms. Grekulak a paper "for a one-shot deal" which Ms. Grekulak gave back to Respondent.
DISCUSSION
To establish the right to succeed to a Rent Stabilized tenancy, an occupant of the apartment such as Respondent must establish that (1) she is a family member as defined in the Rent Stabilization Code; and (2) she resided with the tenant of record during the two years immediately prior to the tenant of record's permanent vacatur of the apartment. Rent Stabilization Code ("RSC"), 9 NYCRR § 2523.5 [b][1]. The RSC defines a family member 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, father-in-law, mother-in-law, son-in-law or daughter-in-law of the tenant or permanent tenant." 9 NYCRR § 2520.6 [o][1]. A niece or nephew is not included in the RSC's definition of traditional family members.
If Respondent were disabled or aged 62 or over, the overlap period is one year. RSC, 9 NYCRR § 2523.5.
Alternatively, a nontraditional family member living with the tenant of record may also be able to establish succession rights under the RSC if they can demonstrate that their relationship with the tenant of record was characterized by "emotional and financial commitment, and interdependence" as set forth in 9 NYCRR § 2520.6 [o][2]. Under this regulation, and the test that was first articulated in Braschi v. Stahl Assoc Co (74 NY2d 201, 543 NE2d 49, 544 NYS2d 784 [1989] ), the definition of a "family member" includes, in addition to the list of traditional family members, "any other person residing with the tenant in the housing accommodation as a primary or principal residence, respectively, who can prove emotional and financial commitment, and interdependence between such person and the tenant or permanent tenant." RSC, 9 NYCRR § 2520.6 [o][2] ; 245 Realty Assocs v. Sussis (243 AD2d 29, 673 NYS2d 635 [1st Dep't 1998] ). Evidence of whether such "commitment" and "interdependence" exist 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 words 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.
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 ); Classic Props, LP v. Martinez (168 Misc 2d 514, 516, 646 NYS2d 755 [App Term 1st Dep't 1996] ); RSC, 9 NYCRR § 2520.6 [o][2] .
Here, it was undisputed at trial that the subject premises were the primary residence of the tenant of record, Mr. Eustache, for the two years prior to his death in August 2018. Further, the Court finds that Respondent established by a preponderance of credible evidence that she resided at the subject premises as her own primary residence for at least two years prior to Mr. Eustache's death. Respondent credibly testified that she could not go back to live in Apartment 5A when she returned from attending a trade school in Buffalo, New York in September 2014 and that she instead moved in with Mr. Eustache in Apartment 1D, whom she had been told by her mother was her uncle. This testimony was not contradicted by Petitioner, who failed to connect Respondent to any other residence during the relevant time period. That Mr. Eustache did not include Respondent on his annual income recertification forms is not determinative of the outcome. See, e.g., 170 Spring St LLC v. Doe (2018 NY Misc LEXIS 5529, 2018 NY Slip Op 51705[U], 61 Misc 3d 1222[A][Civ Ct NY Co 2018] ); Bronx 361 Realty, LLC v. Quinones (26 Misc 3d 1231[A], 907 NYS2d 98 [Civ Ct Bx Co 2010] ); Morrisania II Associates v. Harvey (139 Misc 2d 651, 662, 527 NYS2d 954, 961 [Civ Ct Bx Co 1988] ).
However, Respondent's evidence as to her relationship with Mr. Eustache was insufficient to establish the right to succeed to his tenancy as a family member. Even if Respondent had proven that Mr. Eustache was her uncle, which her unsupported claim that she had "been told that he was her mother's brother" fell short of doing, a niece is not on the list of traditional family members entitled to succeed to a Rent Stabilized tenant's apartment. Further, Respondent failed to meet her burden of proving that she and Mr. Eustache had an interdependent relationship that was characterized by emotional and financial commitment. Her testimony that she and Mr. Eustache had an agreement to help each other, that he helped her with car fare and she helped with the food, that she cooked dinner when she came home from work, contributed to the rent, and, when Mr. Eustache became too ill to care for himself, helped with feeding, cleaning and accompanying him to doctors' appointments was simply too cursory and lacking in detail to substantiate a claim that their relationship was characterized by emotional and financial commitment, as opposed to a live-in aide arrangement which benefitted both of them by providing Respondent a place to live and Mr. Eustache the care and companionship he needed in his final years. A live-in caretaker who does not otherwise meet the Rent Stabilization Code's definition of a traditional or nontraditional family member is not entitled to succeed to a rent regulated tenancy. See, e.g., Davidson 1992 Assocs v. Corbett (190 Misc 2d 813, 738 NYS2d 813 [App Term 1st Dep't 2002] ).
Simply put, Respondent failed to offer sufficient evidence of an emotional and financial commitment, and interdependence, between her and Mr. Eustache, other than a sharing that might occur between roommates or a live-in aide and her patient. Respondent did not know who Mr. Eustache's parents were, presumably at least one of which was also the parent of Respondent's own mother or father and therefore her grandparent. Respondent also offered no details as to any of Mr. Eustache's other family members or about his finances other than that he had an account at Apple Bank . A person who assumed a role akin to that of an adult child caring for an elderly and infirm parent would be expected to know such matters.
The Court notes that the documentation of that account which Petitioner submitted into evidence as attachments to four years' worth of Mr. Eustache's income certifications shows that someone other than Respondent was the beneficiary of that bank account.
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The only proof of the relationship between Respondent and Mr. Eustache was the testimony of Respondent herself; understandably, she very much desires to succeed to Mr. Eustache's Rent Stabilized apartment but more was needed to prove her claim. While the absence of documentary evidence is not always fatal to a succession claim, 300 East 34th St v. Habeeb (248 AD2d 50, 683 NYS2d 175 [1st Dep't 1997] ), here, where the Respondent's own testimony was slim, and not supported by corroborating testimony of any other witnesses such as her mother or relatives, friends or neighbors of hers and/or Mr. Eustache's, the absence of any documentary evidence at all - such as photographs, a health care proxy or other indicia of a committed family relationship - is striking. See United Hay, LLC v. Grabrovak (2002 NY Misc LEXIS 405, 2002 NY Slip Op 50170[U], NYLJ, Apr 26, 2002, p 21, c 2 [App Term 1st Dep't 2002] ).
After considering the totality of the circumstances, the court concludes that Respondent Talaya LaShawn Everett is a licensee of the now-deceased tenant of record who is not entitled to succeed to Mr. Eustache's tenancy as either a traditional or nontraditional family member.
CONCLUSION
Accordingly, Petitioner is entitled to a judgment of possession, a money judgment for unpaid use and occupancy of $ 2378.49 and issuance of the warrant of eviction forthwith as against Respondent Talaya LaShawn Everett. In the interest of justice, and to afford Respondent an opportunity to secure alternative housing, execution of the warrant of eviction is stayed through and including March 31, 2019.
This constitutes the Decision and Order of this Court, copies of which are being mailed to Petitioner's attorney and to Respondent forthwith.