Opinion
No. 1289–17.
08-17-2017
WESTCHESTER PLAZA HOLDINGS, LLC, Landlord-, Petitioner, v. Tara NORWOOD and Brittany Brown, Respondents–Tenants.
Donna L. Denton, Esq., Gutman, Mintz, Baker & Sonnenfeldt, LLP, 813 Jericho Turnpike, New Hyde Park, New York 11040, Attorneys for Petitioner. Tara Norwood, Fox Island Road, Unit # 9, Port Chester, New York, Respondent pro se. Tara Norwood, 40 East Sidney Avenue, Apt. 11M, Mount Vernon, New York 10550, Respondent pro se. Brittany Brown, 40 East Sidney Avenue, Apt. 11M, Mount Vernon, New York 10550, Respondent pro se.
Donna L. Denton, Esq., Gutman, Mintz, Baker & Sonnenfeldt, LLP, 813 Jericho Turnpike, New Hyde Park, New York 11040, Attorneys for Petitioner.
Tara Norwood, Fox Island Road, Unit # 9, Port Chester, New York, Respondent pro se.
Tara Norwood, 40 East Sidney Avenue, Apt. 11M, Mount Vernon, New York 10550, Respondent pro se.
Brittany Brown, 40 East Sidney Avenue, Apt. 11M, Mount Vernon, New York 10550, Respondent pro se.
ADAM SEIDEN, J.
Petitioner commenced this holdover summary proceeding seeking to recover possession of the premises located at 40 East Sidney Avenue, Apartment 11M, Mount Vernon, New York. The premises are subject to the ETPA.
Petitioner claims that Tara Norwood is the tenant of record and that the terms of the lease are being violated in that: 1) Respondent Tara Norwood vacated the premises in 2010, 2) Respondent Norwood sublet the subject premises to Brittany Brown without petitioner's permission to do so; or 3) allowed an unauthorized occupant, that being Brittany Brown, to reside in the subject premises while said premises are not being co-occupied by Tara Norwood as her primary residence. Petitioner served a 10 Day Notice to Cure on or about April 3, 2017 notifying respondent that she had until April 19, 2017 to cure the aforementioned violations and subsequently, served a 10 Day Notice to Terminate on respondent on April 26, 2017 notifying her that she failed to cure the violations and as such, her tenancy was being terminated on May 15, 2017. Both notices were served on Respondent Norwood via conspicuous place service at the subject premises.
A trial was held in this matter on July 12, 2017.
The credible evidence and testimony at trial established that Tara Norwood is the tenant of record for the subject premises. She entered possession of the premises in 2007 under a written lease agreement. On March 31, 2016, she signed a two year renewal lease agreement, which provided for a tenancy commencing June 1, 2015 and ending on May 31, 2017. Respondent Brittany Brown's name is not listed on the lease or renewal lease as an occupant. Brittany Brown states that she is the girlfriend of Respondent Norwood's son.
Between 2014 and 2016 petitioner commenced six nonpayment proceedings against respondent for failure to pay rent. Petitioner argues that Respondent Norwood purchased a condominium in Port Chester in 2010 and has been residing there ever since the purchase. In support of this claim they submitted a Deed for the property, dated September 7, 2010, evidencing that a condominium unit was sold to Respondent Norwood. They also submitted "Schedule B to the Declaration WESTCHESTER COUNTY AFFORDABLE HOUSING HOME OWNERSHIP POLICY PROVISIONS", that provides in pertinent part on Page 7. "A purchaser of a Unit (the "Owner" must occupy said Unit as their principal place of residence...."
Respondent Norwood testified that she still resides in the apartment 3 days during the week. She testified that she stays in Port Chester for the other 4 days of the week. She maintains that her son has succession rights to the apartment and that Brittany Brown is her son's girlfriend. Respondent Norwood's son did not appear in the proceeding. Respondent Norwood testified that her 2016 and 2015 tax returns were filed under the Port Chester address. Further, her driver's license and car registration list the Port Chester address.
The issues now before the Court are: 1) whether respondent Norwood sublet the subject premises to Brittany Brown without petitioner's permission; or, in the alternative, 2) whether respondent Norwood is no longer residing in the apartment as her primary residence while allowing Brittany Brown to occupy said premises; or 3) whether respondent's son has succession rights to the apartment.
A landlord that brings an illegal-sublet proceeding must prove an illegal subtenancy. To succeed on an illegal sublet claim, a landlord must demonstrate that the respondent prime tenant is no longer residing at the subject premises and that the prime tenant sublet the premises to another without the landlord's consent ( Bellstell 140 East 56th Street, LLC v. Layton, 180 Misc.2d 25 (Civ Ct. N.Y. Co.1999) ). Proving or attempting to prove only that the tenant did not use the apartment as a primary residence is insufficient to prove an illegal sublet. PLWJ Realty, Inc. v. Gonzalez, 285 A.D.2d 370 (1st Dept.2001) (finding tenant could not be evicted in illegal-sublet proceeding when landlord directed proof only to tenant's non-primary residence). Moreover, to prevail on a non-primary residence proceeding, a landlord must establish by a preponderance of the evidence that the tenant did not occupy the subject apartment as the tenant's primary residence. No single factor must be shown for the landlord to prevail. It may do so by presenting evidence such as tax returns filed from another address, drivers' licenses, voting residences, occupancy of the premises for an aggregate less than 183 days in the most recent calendar year and/or subletting of the apartment. 9 NYCRR § 2500.2(r) ; see also, Glenbriar v. Lipsman, 5 NY3d 388 (2005). Only after the landlord has provided sufficient proof to make a prima facie showing does the burden shift to the tenant. See ACP 150 West End Avenue Associates v. Greene, 15 Misc.3d 1112(A)(Civ. CT. N.Y. Cty.2007). A tenant may rebut the landlord's evidence and demonstrate that there is a substantial nexus to the apartment. Glenbriar v. Lipsman, 5 NY3d 388 (2005).
In the case at bar, the Court finds that petitioner made a prima facie showing that Respondent Norwood sublet the subject premises and allowed Respondent Brown to occupy the subject premises while she did not use it as her primary residence. Petitioner presented a Deed for the Port Chester condominium purchased by Respondent Norwood in 2010. Respondent Norwood admitted that Ms. Brown had been residing in the apartment. Respondent Norwood failed to rebut petitioner's claims. While Ms. Norwood testified that she remained at the property 3 days per week, her tax returns, driver's license and registration demonstrate that the Port Chester residence is her primary residence and she had no substantial nexus to the subject apartment. Respondents also failed to demonstrate that respondent's son has succession rights to the apartment. ETPA succession regulations provide that, "if the tenant has permanently vacated the housing accommodation, any member of such tenant's family, as defined in section 2520.6 of this title, who has resided with the tenant in the housing accommodation as a primary residence for a period of no less than two years ... immediately prior to the permanent vacating of the housing accommodation by the tenant ... shall be entitled to be named as a tenant on the renewal lease. 9 NYCRR 2523.5(b)(1)." Since petitioner commenced this action in May 2017, respondent's son would have to have demonstrated his residency at the subject premises dating back to May 2015. He did not appear and failed to demonstrate succession rights to the apartment.
Judgment for petitioner. The warrant of eviction shall be stayed until August 31, 2017 to give the respondents an opportunity to vacate the premises. Petitioner shall be entitled to collect use and occupancy for August 2017.
This constitutes the Decision and Order of this Court.