Opinion
2005-13 NC.
Decided February 27, 2006.
Appeal from a final judgment of the District Court of Nassau County, First District (Francis D. Ricigliano, J.), entered October 7, 2004. The final judgment, entered pursuant to a decision of that court (Fred J. Hirsh, J.) made upon stipulated facts, dismissed the petition.
Final judgment affirmed without costs.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ.
In this proceeding by a Section 8 landlord to remove occupant Donna Lupo on the ground that she is a licensee of the former tenant, her mother, and that her license to remain in the premises expired upon her mother's relocation to a nursing home, the parties entered into a stipulation of facts which states that occupant's mother "vacated the premises with no intent to return as she left to reside permanently in a nursing home about March 3, 2002."
"Absent a surrender of possession by the tenant . . . the lessor must obtain a judgment of possession against the lessee pursuant to RPAPL 711 and may not proceed directly against the undertenant, whether licensee, subtenant or occupant, pursuant to RPAPL 713" ( 170 W. 85th St. Tenant's Assn. v. Cruz, 173 AD2d 338, 339; City of New York v. Stewart, NYLJ, Apr. 10, 1998 [App Term, 2d 11th Jud Dists]). In the circumstances presented, the relocation of the tenant of record from the premises to a nursing home, leaving her mildly retarded daughter in the premises, did not constitute a surrender of possession, and this RPAPL 713 proceeding does not lie.
In view of the foregoing, we do not reach the issue of whether occupant's waiver of succession rights, executed as a precondition of landlord permitting occupant to move into the apartment with her mother in 2000, is valid. We further note that the Department of Housing and Urban Development directive relied upon by landlord (HUD Directive 97-74) in support of its claim that it was entitled to exclude the adult children of its tenants, was applicable only to Section 202 housing and not to Section 8 housing such as that involved herein.
Rudolph, P.J., Angiolillo and McCabe, JJ., concur.