LLC v. Nefertari Harvey, "John Doe" & "Jane Doe," Respondent.

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Civil Court, City of New York.

Auburn Leasing LLC, Petitioner, v. Nefertari Harvey, "John Doe" & "Jane Doe," Respondent.


Decided: February 25, 2019

Petitioner's Counsel: Daniels Norelli Cecere & Tavel, P.C., by Denise May, Esq. Respondent's Counsel: Queens Legal Services, by Priam Saywack, Esq.

Petitioner commenced this holdover proceeding to recover possession of Apartment 4B located at 137-20 45th Avenue, Flushing, New York on the grounds that Respondents are occupying the subject premises under a license that expired on the death of Eileen Harvey, the rent stabilized tenant of record. Petitioner and Respondent Harvey (hereinafter "Harvey") appear by counsel. Harvey asserted a succession rights claim as her only defense. John Doe and Jane Doe have not appeared and the trial is deemed an inquest as to them.

Petitioner's prima face case consisted of the admission of a certified deed, certified MDR, certified DHCR registration records, the last lease renewal with the tenant of record, and the death certificate of the tenant of record. Petitioner then rested.

Respondent Harvey is the adopted daughter of Eileen Harvey, the tenant of record. Admitted into evidence were adoption papers and an amended birth certificate for Harvey. Harvey testified she lived in the subject apartment her whole life and that she has never resided anywhere else. Eileen Harvey's death certificate showed that Harvey provided the information as "daughter". Various documents were offered into evidence to reflect Harvey's residency at the premises. Human Resources Administration documents reflect that Harvey has been, and is, a public assistance recipient at the subject premises for almost ten(10) years. According to the Social Security Administration records, Harvey has been receiving benefits at the subject apartment since 2013. The birth certificate for Harvey's daughter, who was born in 2013, lists the subject premises as Harvey's place of residence. Harvey also offered mail she received at the premises from 1) the City of New York DCAS(regarding employment application) postmarked July 2015, 2) New York Presbyterian Hospital (regarding medical test results) postmarked December 2016, 3) NADAP, a home health care agency (regarding additional medicaid benefits) postmarked December 2015, and 4) her attorneys who represent her in her worker's compensation proceeding postmarked December 2015.

A copy of an Occupant Registration Form submitted to Petitioner identified Harvey as one of the occupants residing with the tenant of record in 2013. According to the testimony, Petitioner used this form to verify Harvey's occupancy at the premises and provided her with a new key fob for the subject building. Additionally submitted was a "So Ordered" stipulation dated January 2015, from a family court action between Harvey and her daughter's father, showing the subject premises as her residence.

Harvey also called four witnesses, including a cousin, an uncle and a friend. All three placed her in the subject apartment for all or most her life. All three were able to testify about the adoption and the close relationship between Harvey and the tenant of record.

A fourth witness was from York College. She testified, based upon the records maintained at the college, as to Harvey's contact information and the school credits she earned. The portion of the records that were admitted into evidence covered through October 2014 and reflected Harvey's address as the subject premises. After this testimony, Respondent rested. No rebuttal was offered by Petitioner.


It is the Court's opinion that Petitioner has met its burden of proving its prima facie case. Once this occurred, the burden shifted to Respondent to establish a defense, namely her right to succeed to the subject apartment. Aspenly Co. LLC v Prastien, NYLJ 4/18/01, p.20, col.3 (Civ. Ct. NY County) The defense must be established by a preponderance of the evidence. South Pierre Associates v Mankowitz, NYLJ 1/8/06, p.20, col.1 (Civ. Ct. NY County); 1234 Pacific Mgt. v Jefferson, NYLJ 7/27/05, p.18, col.3 (Civ. Ct. Kings County)

To qualify for succession rights, one must meet certain requirements.

9 NYCRR § 2204.6(d)(1) provides:

. . . [A]ny member of the tenant's family . . . shall not be evicted under this section where the tenant has permanently vacated the housing accommodation as a primary residence for a period of no less than two (2) years . . . immediately prior to the permanent vacating of the housing accommodation by the tenant . . .

Additionally, 9 NYCRR § 2204.6(d)(3)(I) provides:

"family member" is defined as a husband, wife, son, daughter, stepson, stepdaughter, father, mother, stepfather, stepmother, brother, sister, grandfather, grandmother, grandson, granddaughter, father-in-law, mother-in-law, son-in-law, or daughter-in-law of the tenant; or any other person residing with the tenant in the housing accommodation as a primary residence who can prove emotional and financial commitment, and interdependence between such person and the tenant . . .

An adopted child is a child who, though not the natural child, has become a true child through legal action. Black's Law Dictionary, 2nd Ed. "Embodied in our adoption statute is the fundamental social concept that the relationship of parent and child, with all the personal and property rights incident to it may be established, independently of blood ties, by operation of law..." In re Upjohn's Will, 304 NY 366 (1952) "The adoptive parents or parent and the adoptive child shall sustain toward each other the legal relation of parent and child and shall have all the rights and be subject to all the duties of that relation including the rights of inheritance from and through each other and the birth and adopted kindred of the adoptive parents or parent." Domestic Relations Law § 117 (1)( c) As the legally adopted daughter of the tenant of record, Harvey stands in the same shoes as a naturally born child and qualifies as a family member as defined above.

The Court found Harvey's testimony, as well as the testimony of her witnesses to be credible. Her cousin, uncle and friend, neither of whom are related to each other or to the tenant of record, all corroborated Harvey's testimony that she has resided in the subject apartment with the tenant of record continuously for well over twenty years before the death of the tenant of record in March 2017.

Harvey testified she filed a tax return in 2016, worked for the US postal service, is currently out of work on worker's compensation, and has a bank account and credit cards. Following her testimony, the Court expected more documents. However, the document that Harvey presented were compelling. The birth certificate of Harvey's daughter in 2013 shows she resided at the premises. Records from HRA, and the Social Security Administration have Harvey receiving benefits at the subject apartment from 2009 and 2013 respectively. The NYS Worker's Compensation Board Settlement Agreement dated December 2015 and the Family Court Order for Custody and Visitation of her daughter dated January 2015 also place Harvey at the subject premises. Additionally, Petitioner did not offer any rebuttal witnesses or documents to refute the testimony and documents offered by Harvey.


The Court finds that Harvey has proven her affirmative defense of her right to succession as a family member of the deceased tenant of record. Therefore, the proceeding is dismissed with prejudice. A proper renewal lease must be tendered to Harvey in her name.

This constitutes the decision and order of the court.

Dated: February 25, 2019

Queens, New York

John S. Lansden, J.H.C.

John S. Lansden, J.