Third Lenox Terrace Associates, Petitioner–Respondent, v. Cynthia Edwards, et al., Respondents–Appellants, Eugene Smith, et al., Respondents. (2012)

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Order of the Appellate Term of the Supreme Court, First Department, entered March 27, 2009, which reversed a judgment of Civil Court, New York County (Rubin A. Martino, J.), entered on or about May 2, 2006, after a nonjury trial, dismissing petitioner landlord's summary holdover petition, granted the petition, and awarded petitioner a final judgment of possession, unanimously affirmed, without costs.

Respondent Linda Edwards is claiming succession rights to the rent-stabilized tenancy of her sister, respondent Cynthia Edwards.   The record demonstrates that Cynthia, the tenant of record, initially entered into a two-year lease, beginning on November 15, 1995, with petitioner for the subject apartment.   Cynthia remained the tenant of record by executing renewal leases every two years, with the last renewal being for the period beginning November 30, 2003 and ending November 30, 2005.

In August 2005, petitioner commenced the instant summary holdover proceeding for possession of the rent-stabilized apartment on the ground of non-primary residency, having discovered that Cynthia was not residing in the apartment as her primary residence, but that her sister Linda was residing there instead.   Linda, who has admittedly been residing in the apartment since 1995, has the burden of proving that she resided with Cynthia, the tenant of record, in the apartment as her primary residence for a period of no less than two years prior to Cynthia permanently vacating the apartment (see Rent Stabilization Code [9 NYCRR] § 2523.5[b];  68–74 Thompson Realty, LLC v. McNally, 71 AD3d 411 [2010] ).

The trial evidence establishes, and it is not disputed, that Cynthia, the tenant of record, vacated the apartment in 1998 and established a residence elsewhere.   She, however, continued to execute renewal leases for the apartment extending through November 2005 and continued to pay the rent by money orders issued in her name during that time.   Thus, although the apartment was no longer her primary residence after 1998, Cynthia, having continued to pay the rent and execute renewal leases extending through November 2005, cannot be found to have permanently vacated the apartment at any time prior to the expiration of the last lease renewal on November 30, 2005 (see East 96th St. Co., LLC v. Santos, 13 Misc.3d 133[A], 2006 N.Y. Slip Op 51980[U] [2006] ).   Accordingly, the relevant two-year period during which respondent Linda must show that she co-occupied the subject apartment with Cynthia is 2003 to 2005.   Although Linda did submit sufficient documentary evidence to establish that she resided in the apartment during that period, there was no showing that Cynthia lived in the premises at that time, since she admittedly had been residing elsewhere since 1998.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK