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PARK TERRACE REALTY LLC, Petitioner, v. Peter OFNER, Respondent.
Park Terrace Realty LLC, the petitioner in this proceeding (“Petitioner”), commenced this holdover proceeding against Peter Ofner, the respondent in this proceeding (“Respondent”), seeking possession of 31 Park Terrace West, Apt E9, New York, New York (“the subject premises”), on the ground that Respondent is a licensee of a prior tenant of the subject premises (“the prior tenant”) and that his license terminated on the passing of the prior tenant. Respondent interposed an answer with a defense that he is entitled to succeed to the prior tenant's tenancy. The Court held a trial of this matter on September 20, 2018, November 21, 2018, and January 10, 2019 and then adjourned the matter for post-trial submissions to March 15, 2019.
The parties stipulated that Petitioner is the proper party to commence this proceeding, that the prior tenant was the tenant of the subject premises, that his tenancy was subject to the Rent Control Law, that the prior tenant died on January 19, 2017, that Respondent lives in the subject premises, that Respondent is disabled, and that Petitioner properly served a notice to quit on Respondent pursuant to RPAPL § 713 prior to the commencement of this proceeding. Petitioner has thus proven a prima facie case that Respondent is a licensee whose license has terminated. See 85 Fourth Partners, L.P. v. Puckey, 16 Misc 3d 136(A)(App. Term 1st Dept. 2007), Starrett City, Inc. v. Smith, 25 Misc 3d 42, 46 (App. Term 2nd Dept. 2009).
The prior tenant's sister testified that Respondent was the prior tenant's life partner and also described him as the prior tenant's husband; that she and the prior tenant and Respondent spent holidays like Christmas and Thanksgiving and special occasions like her anniversary of being sober together; that Respondent and the prior tenant were an inseparable, loving couple; that the prior tenant had a rough childhood, including being institutionalized for developmental issues he had as a child and was ostracized because of emotional issues that he had and that for the prior tenant to find someone to live with him and be by his side was phenomenal; that the prior tenant had diabetes for the last fifteen years of his life and end-stage renal disease which required dialysis for the last seven years of his life; that she visited the prior tenant every day in the hospital and Respondent was always there, involved with the prior tenant's after care, diet restrictions, and transportation to dialysis; that the prior tenant was the love of Respondent's life; that Respondent assisted the prior tenant with walking; that Respondent shopped for the prior tenant; that she learned about the prior tenant's death because Respondent called her; that she arranged to have the prior tenant cremated because Respondent was in too much grief to deal with the prior tenant's arrangements; and that she gave Respondent the prior tenant's ashes because Respondent was the only person who deserved them.
A tenant of a different apartment (“the neighbor”) in the building in which the subject premises is located (“the Building”) testified that he lived in the Building for all of his thirty-five years; that he met Respondent twenty-two years ago when he was in middle school and that he knew the prior tenant since childhood; that he saw the prior tenant and Respondent going in and out of the subject premises; that he knew that the prior tenant and Respondent as a couple; that he was in the subject premises; that he saw stacks of recording gear there; that he talked about music with Respondent about that equipment as if the equipment was Respondent's; that he saw clothes in the subject premises that he had seen Respondent wearing; that he saw Respondent over the years at all times of day, carrying groceries or sitting on benches near the Building, and entering the door of the subject premises using a key; that he heard arguments between Respondent and the prior tenant through the closed door; that Respondent was the only person he saw assist the prior tenant when the prior tenant needed help at the end of his life; and that after the U.S. Supreme Court rendered a ruling in favor marriage equality,1 he asked Respondent and the prior tenant why they didn't get married.
A resident of a building on the same street as the Building (“the second neighbor”) testified that he met Respondent and the prior tenant in 2012; that they would talk together out to benches nearby for hours; that he saw Respondent three to five times a week around the Building during the last year of the prior tenant's life (“the relevant time period”); that he sometimes helped the prior tenant carry groceries to the Building and that Respondent would come down to the lobby of the Building and carry the groceries upstairs; that he saw Respondent massage the prior tenant on benches after the prior tenant's dialysis; that he saw them shopping together in the grocery store; that he never saw a couple so close in his life; that they were inseparable; that Respondent would have his arm around the prior tenant and give emotional support to the prior tenant; that Respondent was depressed and seemed lost when the prior tenant died, and that he saw Respondent use a key to access the Building.
Respondent's brother testified that he lives in an apartment in Chelsea in Manhattan (“Respondent's brother's apartment”); that he is close with Respondent; that Respondent does not live with him; that he receives mail for Respondent at Respondent's request from many years ago because Respondent thought it was safer and more convenient, as Respondent had previously been homeless; that, even though Respondent is not now homeless, he and Respondent never revisited the issue; that Respondent visits Respondent's brother's apartment once or twice a week, except during the relevant time period, when he didn't see Respondent as much because Respondent was taking care of the prior tenant, who was deathly ill and on dialysis; that Respondent hasn't lived anywhere else but the subject premises since January 2016; that he knew the prior tenant through Respondent; that they had a “perfect gay loving relationship;” that they joked with each other; that they ate together; that they walked together; that they went places together; that they doted on each other; that they were “lovey-dovey”; that they were like that all the way through; that he heard them say that they love each other; that they would hold hands; that they never married, although he urged them to; that during the relevant time period, the prior tenant's and Respondent's phones were on his plan, which was a family plan, because he considered the prior tenant to be family; that the prior tenant's death devastated Respondent; that he thinks of Chelsea as a “gay” neighborhood; that there are a lot of social activities for gay men in Chelsea; that the prior tenant got dialysis about ten blocks from Respondent's brother's apartment; and that it's not as safe for a gay couple to be in Inwood, where the subject premises is located, as in Chelsea.
Respondent's brother testified that Respondent's brother's apartment is a small one-bedroom with a small kitchenette, one bathroom, and two closets. Respondent introduced into evidence photographs of Respondent's brother's apartment that depict a cluttered, hoarding condition there. Respondent's brother testified that Respondent's brother's apartment looked like that during the relevant time period and that Respondent's brother's apartment is too crowded to accommodate two people living there.
Respondent's brother testified on cross-examination that Respondent had any mail pertaining to Respondent delivered to Respondent's brother's apartment the whole time, including Social Security and disability checks.
Another resident of the Building (“the third neighbor”) testified that he has lived next door to the subject premises for some years; that he knows that Respondent lived there because he saw Respondent in the subject premises; that during the relevant time period, he saw Respondent at least three times a week in the hallways in the course of getting ready for his day; that he saw Respondent on weekends carrying grocery bags; that he rarely saw Respondent apart from the prior tenant; that they always had a very loving and close relationship; that in his mind they were inseparable; that his young son drew pictures and addressed them to Respondent and the prior tenant; that Respondent never used buzzer to get in, but used a key; that Respondent and the prior tenant had arguments like couples have; and that he saw Respondent helping the prior tenant walking up the hill nearby the Building.
A friend of Respondent's (“Respondent's friend”) testified that he lives in the West Village in Manhattan; that he has known Respondent for twenty-four years; that he met the prior tenant about twenty years ago; that before he met the prior tenant, Respondent said, “I love this guy”; that Respondent and the prior tenant would always come to Greenwich Village; that he met Respondent and the prior tenant for coffee or dinner maybe once, twice, or three times a week; that Respondent and the prior tenant were like an old married couple; that Respondent became a homebody when he was in that relationship; that he was still friendly with Respondent, but it was like going out with your married friends; that Respondent and the prior tenant always told each other that they love each other; that he saw Respondent call the prior tenant all the time; that he saw Respondent and the prior tenant bicker; that the prior tenant required more emotional support than the average person; and that Respondent and the prior tenant would always check out the salt content of groceries because the prior tenant was diabetic.
Respondent testified that he continuously lived in the subject premises since 1994; that, around that time, he met the prior tenant and fell “head over heels” for the prior tenant; that he and the prior tenant became romantically involved the night that they met; that the prior tenant was the best thing that ever happened to him; that one of the rooms at the subject premises was his room where he kept his personal property; that he and the prior tenant had a pet bird together for ten years; that the subject premises has one bed; that the prior tenant was really funny and had his own language for things, like calling birds “beaks” and dogs “sniffs”; that the prior tenant loved movies and going out for walks; that the prior tenant was a plant fiend; that he developed a relationship with the prior tenant's sister, seeing her on about a dozen holidays; that he went to mass with the prior tenant although he was not religious; that he and the prior tenant cut each other's hair; that in 2016, he was with the prior tenant twenty-four hours a day; that in the morning he checked the prior tenant's feet to make sure there were no wounds resulting from a condition that the prior tenant's diabetes brought on; that the prior tenant had to wear adult diapers; that the prior tenant often had an accident in bed; that he dealt with accidents every day; that he gave the prior tenant insulin; that he had to make sure that the prior tenant got the right amount of carbohydrates; that the prior tenant couldn't eat whole grains because of dialysis so the prior tenant had to eat simple carbohydrates; that he had to change the prior tenant's diapers in public bathrooms; that he shopped for the prior tenant after having consulted the prior tenant's nephrologist and a nutritionist; that the prior tenant couldn't carry anything because that would put weight on his foot; that he carried everything and cooked every meal for him; that he once intervened with a doctor of the prior tenant about the type of insulin to be given to him, and effected a change after getting the doctor in touch with the prior tenant's nephrologist; and that he frequently accompanied the prior tenant to medical appointments.
Respondent introduced into evidence records from the New York City Human Resources Administration (“HRA”) showing use of SNAP benefits at a grocery store in Inwood, which Respondent testified was a seven minute walk from the Building. Respondent introduced into evidence a document appointing him the prior tenant's health care proxy dated March 17, 2010, using the subject premises as the address for both, as well as phone records showing that Respondent, the prior tenant, and Respondent's brother had a family plan together. Respondent introduced into evidence texts that he sent the prior tenant, saying, among other things, “I Love You.”
Respondent testified that Respondent and the prior tenant never married or got a domestic partnership because the prior tenant was conflicted about Catholic Church's teaching; that marriage was not a part of LGBT community for his generation; and that he referred to the prior tenant as his “lover” to people his age, as his “partner” to younger people, and as his “life partner” to medical personnel.
Respondent testified that the prior tenant died in January of 2017 while he was with the prior tenant during dialysis. Respondent testified that he couldn't look at the prior tenant one last time because he didn't want to remember the prior tenant that way. Respondent wondered if he should have looked at him. He called the prior tenant's sister to tell her. Respondent testified that when the prior tenant died, he didn't want to go on.
Respondent testified that the prior tenant left him everything he had. Respondent introduced into evidence the prior tenant's bank records, showing that they were held in trust for Respondent as the beneficiary. Respondent's brother's address is listed as Respondent's address. The record identifies Respondent as the prior tenant's “friend.”
Respondent testified that he used Respondent's brother's address as his address because he did not have a place to live at some point; that the prior tenant asked Respondent not to use the subject premises as his address because the prior tenant was fearful of confrontation with Petitioner; and that he could not sleep on the couch in Respondent's brother's apartment because Respondent's brother is a hoarder and it is not possible for two adults to be there.
Respondent introduced into evidence photos Respondent took of the prior tenant and creatively altered; a block of wood that said “I love you” with the prior tenant's name on it; a portrait he made of the prior tenant; photos of the prior tenant from a photobooth from 1994; photos from last couple years of the prior tenant's life in front of the Building; photos of Respondent and the prior tenant on the subway with the prior tenant leaning against Respondent; photos of the prior tenant sleeping in middle of the night; a photo of the prior tenant brushing his teeth; a photo of the prior tenant and Respondent on a bench together; and a photo of Respondent's and the prior tenant's names that had been written into a concrete curb on a hill outside of the Building when the cement had not dried yet and then had dried.
Respondent testified on cross-examination that he had been using Respondent's brother's address for Social Security-disability benefits, for SNAP benefits, and for voter registration and that he never notified Petitioner or the super that he was living in the subject premises.
On rebuttal, the super of the Building testified that the prior tenant was the tenant of the subject premises; that he didn't see anyone with the prior tenant at that time; that he knows Respondent; that he saw Respondent once every two weeks or ten days when the prior tenant was alive; that he saw the prior tenant alone but sometimes he saw Respondent with the prior tenant; that Respondent didn't say to him that Respondent was living in the subject premises; that a few times he went to the subject premises in the last few years of the prior tenant's life to work on plumbing in the bathroom or the kitchen; that he saw the prior tenant in the subject premises; that he didn't see Respondent; that he saw Respondent in the subject premises a few times; and that he told Petitioner that Respondent was living in the subject premises two to three years before the prior tenant died.
In order to prevail on his succession defense, Respondent must prove that he was a family member of the prior tenant and that he resided at the subject premises as his primary residence with the prior tenant for one year (as Respondent is disabled) before the prior tenant's permanent vacatur. 9 N.Y.C.R.R.§ 2204.6(d)(1). A “family member,” for these purposes, includes any person who can prove emotional and financial commitment and interdependence between such person and the tenant. 9 N.Y.C.R.R. § 2204.6(d)(3).
The strength of Respondent's case ebbs regarding documentation that Respondent and the prior tenant intermingled finances and formalized legal obligations, two of the factors the Court may consider in a determination of the existence of a non-traditional family relationship, 9 N.Y.C.R.R. §§ 2204.6(c), 2204.6(e), particularly given Respondent's continued use of Respondent's brother's apartment as opposed to the subject premises for a variety of Respondent's income-related mailings. However, an absence of documentary evidence of financial interdependence alone does not necessarily undermine a claim to succession rights, RHM Estates v. Hampshire, 18 AD3d 326, 326-327 (1st Dept. 2005), leave to appeal denied, 2006 NY App. Div. LEXIS 4429 (1st Dept. 2006), Arnie Realty Corp. v. Torres, 294 AD2d 193, 193-194 (1st Dept. 2002), River Park Residences, L.P. v. Carter, 2019 NY Slip Op. 50243(U), ¶¶ 8-9 (Civ. Ct. Bronx Co.), particularly where Respondent, a recipient of Social Security Disability and SNAP benefits, had limited income to share. Roberts Ave. Assocs. v. Sullivan, 2003 NY Misc. LEXIS 901 (App. Term 1st Dept. 2003), leave to appeal denied, 2004 NY App. Div. LEXIS 803 (1st Dept. 2004), Fleishman Realty Corp. v. Garrison, 27 Misc 3d 1202(A)(Civ. Ct. Bronx 2010), citing 176 East 3rd St., LLC v. Wright, N.Y.L.J., January 19, 2001, at 26:5 (App Term 1st Dept.), citing Llorente v. Stackiewicz, N.Y.L.J., February 22, 1995, at 31:4 (App. Term 1st Dept.).
Moreover, the lack of formalization of legal and financial obligations between Respondent and the prior tenant is not dispositive and does not preponderate over the plausible and credited testimonial evidence. Matter of 530 Second Ave. Co., LLC v. Zenker, 160 AD3d 160, 163 (1st Dept. 2018), 178 E. 70th St., LLC v. Weizmann, 61 Misc 3d 147(A)(App. Term 1st Dept. 2018).2 In this matter, the quantum of credible testimonial evidence from an array of witnesses, many of whom were disinterested witnesses, overwhelms whatever weaknesses Respondent's case otherwise sustains. Friends, family members, more casual acquaintances, and neighbors, the latter two with no discernible interest in the outcome, consistently testified to the close, loving, committed, supportive relationship between Respondent and the prior tenant, their constant companionship, and the care with which Respondent ministered to the prior tenant's needs when he was sick. Compare 2-4 Realty Associates v. Pittman, 137 Misc 2d 898, 900-901 (Civ. Ct. NY Co. 1987), aff'd, 144 Misc 2d 311 (App. Term 1st Dept. 1989) (finding a non-traditional family relationship at least in part based on the testimony of three disinterested witnesses, including a local cashier, another tenant, and a former porter of the building). Respondent's detailed knowledge of the prior tenant's medical issues toward the end of his life vividly evinces the level of care Respondent provided the prior tenant. The evidence of the prior tenant's designation of Respondent as a health care proxy and the prior tenant's designation of Respondent as the beneficiary of his bank account only buttresses the copious testimonial evidence to this point.
While 9 N.Y.C.R.R. § 2204.6(d)(3) lists eight criteria by which to determine if a relationship between a tenant and a successor-claimant rises to the level of a non-traditional family relationship, the totality of the relationship as evidenced by the dedication, caring and self-sacrifice of the parties which should, in the final analysis, control. 530 Second Ave. Co., supra, 160 AD3d at 162-63. For the reasons stated above, the totality of the evidence leaves no doubt that Respondent and the prior tenant demonstrated a commitment to each other sufficient to prove a family relationship for succession purposes.
Proof of a family relationship is one element of Respondent's succession defense. Respondent's co-residency with the prior tenant in the last year of his life is the other element. The relevant documentation places Respondent at Respondent's brother's address, not the subject premises, during the relevant time period.
However, the testimonial evidence amply demonstrates that Respondent physically lived with the prior tenant in the subject premises during the relevant time period. Respondent's neighbors, including neighbors who live on the same floor of the subject premises, regularly saw Respondent accompanying the prior tenant on and around the subject premises in the mornings and afternoons, assisting the prior tenant with the medical problems that beset him in the last year of his life, and accessing the subject premises by a key. Other witnesses who were not neighbors credibly and consistently described the prior tenant and Respondent as inseparable. Photographs in evidence showed that Respondent's brother's apartment, the only other conceivable address that Respondent could have lived in, could barely accommodate the occupancy of one adult, much less two. Significantly, Petitioner's own rebuttal witness, the super, testified that he told Petitioner that Respondent was living in the subject premises in the two years before the prior tenant died.
As with the determination of a non-traditional family relationship, the determination of a primary residence does not solely turn on documentary evidence, however significant that evidence may, in the face of inconsistent testimonial evidence, 23 Jones St. Assocs. v. Keebler-Beretta, 284 AD2d 109 (1st Dept. 2001), 300 E. 34th St. Co. v. Habeeb, 248 AD2d 50, 55 (1st Dept. 1997), Lenoxville Assocs., L.P. v. Downs, 40 Misc 3d 138(A) (App. Term 1st Dept. 2013), when the testimony is probative of both a substantial physical nexus to the regulated premises and to an explanation for the appearance of another address on documentary evidence. 310 E. 23rd LLC v. Colvin, 41 AD3d 149 (1st Dept. 2007), 710 Madison Ave. LLC v. Hicks, 56 Misc 3d 131(A)(App. Term 1st Dept. 2017). See, e.g., 585 W. 204th LLC v. Peralta, 53 Misc 3d 131(A)(App. Term 1st Dept. 2016)(an occupant of a rent-controlled apartment who testified that he lived in the apartment with his parent, the original statutory tenant, from his birth until the tenant's death proved an entitlement to succession when the testimony was credible and particularly when the landlord did not rebut that testimony by any witness with factual knowledge, even with sparse documentary evidence).
Physical presence at an apartment is significant toward a determination of primary residence. See, e.g., Vill. Dev. Assocs., LLC v. Walker, 282 AD2d 369 (1st Dept. 2001), 370 Columbus Realty LLC v. Liew, 38 Misc 3d 135(A)(App. Term 1st Dept. 2013); Ninth Ave. Realty LLC v. McKay, 29 Misc 3d 136(A)(App. Term 1st Dept. 2010); Extell 609 W. 137th St. LLC v. Bonilla-Morel, 35 Misc 3d 138(A)(App. Term 1st Dept. 2012). The great weight of the evidence showed not only Respondent's intimate family relationship with the prior tenant for decades before the prior tenant's passing, but also that Respondent used the subject premises for actual living purposes for many years, and certainly in the one year before the prior tenant's passing. See Surrey Hotel Assocs., LLC v. Talukder, 11 Misc 3d 133(A)(App. Term 1st Dept. 2006)(sleeping every night in an apartment demonstrates that it is the tenant's primary residence despite the fact that some documents, such as joint tax returns and credit statements, use a different address).
Accordingly, the Court finds that Respondent met his burden of proving that he has been a family member of the prior tenant and that he co-resided with the prior tenant, with both of them using the subject premises as their primary residence, in the year before the prior tenant died. The Court also finds that the prior tenant was the sole rent-controlled tenant of the subject premises as of 1992, when the prior tenant's sister testified that their mother died. As the prior tenant was the only rent-controlled tenant as of June 19, 1997, Respondent is the first successor. 9 N.Y.C.R.R. § 2202.25. Respondent having prevailed on his succession defense, the Court dismisses this proceeding with prejudice.
The parties are directed to pick up their exhibits within thirty days or they will either be sent to the parties or destroyed at the Court's discretion in compliance with DRP-185.
This constitutes the decision and order of this Court.
1. See Obergefell v. Hodges, 135 S.Ct. 2584 (2015).
2. These two cases evaluate non-traditional succession claims in the context of a tenancy subject to the Rent Stabilization Law, not the Rent Control Law, but the standards for showing a non-traditional family relationship are identical. See 9 N.Y.C.R.R. § 2523.5(b)(1).
Jack Stoller, J.
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