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Civil Court, City of New York.

Dumont Green LLC, Petitioner-Landlord, v. Ryan Paul, DANIELLE PAUL, CLAUDETTE BLAIR, Respondent-Tenant

Index No. L & T 68935/16

Decided: March 18, 2019

Recitation, as required by CPLR 2219(a), of the papers considered in review of Petitioner's motion to: amend the petition and for a final judgment for all rent arrears owed to date and for Respondent's cross-motion for a hearing on her warranty of habitability claims;


Notice of Motion and Annexed Exhibits 1

Respondents' Memorandum of Law 2

Respondents' Supplemental Affirmation and Annexed Exhibits 3

Affirmation in Opposition and Annexed Exhibits 4

Reply Affirmation and Annexed Exhibits 5

Upon the foregoing cited papers, the Decision/Order on this Motion and Cross-Motion is as follows:

Petitioner commenced this summary holdover proceeding on or about May 24, 2016, to recover possession of the rent stabilized subject premises. It is undisputed that the subject building, which includes the unit in question, is also subject to a federal Low Income Housing Tax Credit program (LIHTC), which Petitioner entered into with DHPD. To assure compliance with the income guidelines of LIHTC, HPD requires property owners to annually verify tenants' household income. Pursuant to this requirement, the head of household for each apartment must annually submit a "Tenant Income Certification" form, on which he or she must disclose, inter alia, the names of all household members, together with their age, social security numbers, and relationship to the head of household.

The Petitioner, stating that Danielle Paul and Claudette Blair were never listed on the tenant of record Ryan Paul's income certification, alleges that Ryan Paul:

a) Assigned and/or sublet the premises to Danielle Paul and Claudette Blair without the landlord's consent and in violation of the lease agreement, the rules and regulations of the lease agreement, § 226-b of the RPL, and § 2525.6 of the RSC; and

b) Has unauthorized occupants residing in his apartment who are not roommates, and he is not residing in the apartment or maintaining it as his primary residence in violation of his lease agreement, § 235-f of the RPL and § 2525.6 of the RSC.

Respondent, Claudette Blair,1 represented by counsel, brings the current motion seeking summary judgement  2 in her favor. She argues that — despite the apartment being subject to LIHTC regulations — she is the lawful successor of the tenant of record pursuant to RSC§ 2523.5.3 Moreover, even though the tenant of record did not list her on his annual income certification, pursuant to those regulations, Respondent contends she has met her burden for summary judgment.

Despite conceding in its opposition papers that the tenant of record has vacated the subject apartment, Petitioner counters that Respondent has failed to provide proof that the tenant of record has vacated the subject apartment. Moreover, because Respondent was never listed as a family member by the tenant of record on his annually recertification as required by LIHTC regulation, petitioner contends that she is barred from succeeding to the apartment as a matter of law.


The Court must initially determine whether, as a matter of law, a right to succession exists for a rent stabilized apartment in a LIHTC regulation setting, notwithstanding the tenant of record's failure to list family members on the annual recertification

The right of family members to succeed to a rent regulated tenancy, which had long been a part of the Rent Control regulatory scheme, was extended to rent stabilized tenancies in 1987 with DHCR's amendment of the RSC in response to the Court of Appeals' ruling in Sullivan v Brevard (66 NY2d 489 [1985]) that there was no right to succed a rent-stabilized tenancy. Family succession under RSC was promulgated to remedy the "harsh consequences resulting from displacement from one's home upon the death or departure of a named tenant with whom a family member, not named on the lease, resided." Lesser v Park 65 Realty Corp., 140 AD2d 169, 171 (1st Dept 1988). Succession also "spare[s] family members the disruption of relocation at a time of emotional and possible financial turmoil." 245 Realty Assoc. v Sussis, 243 AD2d 29, 32 (1st Dept 1988).

In upholding DHCR's authority to promulgate § 2523.5 the Appellate Division in Festa v Leshen, 145 AD2d 49 (1st Dept 1989) held, that the succession provisions are "remedial in nature" and "should be liberally construed to carry out the reformed intended and spread its beneficial effects as widely as possible" (id at 56). Moreover, the Festa court stated that succession rights "alleviate the continuing and critical shortage of housing in New York City and prevent the grievous harm that would ensue from the wholesale eviction of family members which would otherwise be permitted " (id. at 56-57).

Calling the amendment a "measured response" to the ruling in Sullivan, "which had the potential to expose spouses and children to summary eviction with little or no hope of finding affordable housing in New York City" and poses at least as serious a threat to "public health, safety and general welfare as the eviction of the named tenant with whom they resided," the Festa court concluded that the succession effectively advanced the purposes for which the Rent Stabilization Law was enacted (id).

Given the above, this Court follows Festa's mandate by liberally construing the succession provision to carry out the reform intended and to spread its beneficial effects as widely as possible. This is a rent stabilized apartment for which a right to succeed otherwise exists. And there is nothing contained in the LIHTC program that proscribes a right of succession or renders its application inconsistent with the program's own goals or regulations. Indeed, Petitioner does not dispute that it can fully comply with the rules and regulations of both LIHTC and rent stabilization concurrently.

But Petitioner contends that the failure to list an individual on the annual income certification bars that individual from asserting succession. In effect, Petitioner seeks to engraft an additional requirement on to rent stabilized units subject to the LIHTC program beyond what is enumerated in RSC§ 2523.5; namely, that the one seeking succession be named on the annual recertification. To support this contention, Petitioner relies on Evans v Franco (93 NY2d 823). However, in Evans, RSC§ 2523.5 was not at issue. Evans concerned an occupant's right to succeed to a tenant-based section 8 voucher, governed wholly by federal law as opposed to the proceeding at hand, which involves a rent stabilized apartment governed by state law.

Moreover, the appellate courts have treated the failure to include the individual seeking succession on annual income affidavits as non-fatal to the assertion of succession. See In Matter of Murphy v NYS DHCR, 21 NY3d 649; Manhattan Plaza Assoc. v DHPD, 8 AD3d 111, [1st Dept 2004]; Marine Terrance Assoc. v Kesoglides, 44 Misc 3d 141(A) [App Term, 2nd Dept 2014]; Los Tres Unidos Assoc. v Colon, 45 Misc 3d 129(a) [App Term, 1st 2013]; Amsterdam Ave, Houses Assocs. V Estate of Wells, 10 Misc 3d 142(A) [App Term, 1st Dept, 2006].

In Murphy, the Court of Appeals dealt with a case involving Mitchell-Lamar housing, which, as in this case, is governed by state law and regulated by DHCR. Most notably, the Murphy court reversed DHCR's denial of succession rights despite the tenant of record's failure to list the appellant on the annual income affidavit for one of the two years in question. The court held broadly that

"Succession is in the spirit of the statutory scheme; whose goal is to facilitate the availability of affordable housings 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 (id at 653, citations omitted)."


"Summary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact" (see Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012]). The court's function is "issue-finding, rather than issue-determination" (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]), and the evidence must be construed in the light most favorable to the non-moving party (see Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 340 [2011]). Once a movant meets its initial burden on summary judgment, the burden shifts to the opposing party "to show facts sufficient to require a trial of any issue of fact" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Construing the proffered evidence in the light most favorable to Petitioner, the Court finds that the documents submitted by Respondent in support of her motion for summary judgment are insufficient to grant judgment in her favor as a matter of law. While the absence of Respondent's name on the annual income recertification does not act as a bar to succession per se, it does give rise to a triable issue of fact as to if she lived in the apartment.4 While tax documents are submitted for 2015, no such documents were offered for 2012 to 2014. Likewise, MCU documents only cover 2014. While documents from Chase Bank cover various months for the 2012 to 2014 period, there are many gaps. These and other documents submitted, while persuasive, do not carry enough sufficient probative value for Respondent to meet her burden for summary judgment and militate against Petitioner from challenging her consanguinity to the tenant of record and residency in the subject apartment. Accordingly, the motion for summary judgment is denied.

This proceeding shall appear on the Court's calendar on April 29, 2019 at 9:30 a.m. for trial.

This is the decision and order of the Court.

So ordered,

March 18, 2019


Zhuo Wang, J.H.C.


1.   It is undisputed that respondents Ryan Paul and Danielle Paul have vacated the subject premise.

2.   The Court notes that this is Respondent's second motion for summary judgment, the prior being brought on June 30, 2016 and denied by Hon. J. Kuniewski on December 19, 2016. Since Petitioner raised no objection to this second motion in its opposition papers, the Court will not raise it sua sponte (see Rosenblatt v St. George Health & Racquetball Assoc.,110 AD3d 45 [2nd Dept 2014]).

3.   Initially, Respondent's motion sought leave to interpose an amended verified answer to assert the defense of succession rights, as well as the defense that Petitioner failed to plead the regulatory status of the subject premise. However, Petitioner agreed to Respondent's amended answer and Respondent consented to Petitioner amending its petition to reflect the correct regulatory status of the building.

4.   It bears noting, that, unlike Respondent in this proceeding, in Murphy, DHCR never disputed Murphy's status as a family member, nor that he had resided in the apartment for the relevant two-year period. The court also noted " the absence of any indication that the failure to file [the income affidavit] was related to Murphy's status as a co-occupant or an income earner " Murphy at 654

Zhuo Wang, J.

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