FIRST SUTTON ASSOCIATES v. Joyce Desormeaux, “John Doe” and “Jane Doe”, Respondent-Undertenant-Appellant.

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Supreme Court, Appellate Term, New York.

FIRST SUTTON ASSOCIATES, Petitioner-Landlord-Respondent, v. Peter L. HOFFMAN, as the Executor of the Estate of Lotte Hoffman, Respondent-Tenant-Appellant, Joyce Desormeaux, “John Doe” and “Jane Doe”, Respondent-Undertenant-Appellant.

Decided: January 26, 2007

PRESENT:  McKEON, P.J., McCOOE, SCHOENFELD, JJ. Douglas L. Fromme, P.C., Garden City, for appellants. Belkin Burden Wenig & Goldman, LLP, New York City (Sherwin Belkin, Joseph Burden, Magda L. Cruz and Kristine L. Grinberg of counsel), for respondent.

Final judgment (Laurie L. Lau, J.), entered September 15, 2006, affirmed, with $25 costs.   Order (Jean T. Schneider, J.), entered October 30, 2006, affirmed, with $10 costs.   Appeal from order (Laurie L. Lau, J.) dated January 6, 2006, dismissed, without costs, as nonappealable.

Respondent Desormeaux, the former live-in home health aide for the (now) deceased stabilized tenant, failed to demonstrate the existence of a triable issue of fact with respect to her claimed right of succession to the subject apartment as a nontraditional family member (see Pearlbud Realty Corp. v. White, 10 Misc.3d 141(A), 2006 N.Y. Slip Op. 50041[U], 2006 WL 83515 [2006] ).   Conspicuously absent from Desormeaux's evidentiary submissions was any evidence tending to show that her relationship with the tenant contained the requisite “emotional and financial commitment and interdependence” required for succession (9 NYCRR § 2204.6[d][3][i] ).  “[T]here was no comingling of finances, no joint ownership of anything, not even an indication of sharing household or family expenses” (390 West End Assoc. v. Wildfoerster, 241 A.D.2d 402, 403, 661 N.Y.S.2d 202 [1997] ).   The record shows that Desormeaux was paid a salary to live with and provide 24-hour care to the elderly infirm tenant, a position she previously held for a series of other individuals, and was compensated for any expense incurred on tenant's behalf.   Gifts of personal property and cash made to Desormeaux after tenant's death by her executor son, allegedly at tenant's behest, are consistent with the recognition of a valued employee or close friend, not necessarily a family member.

We have considered respondents' remaining arguments and find them unavailing.

This constitutes the decision and order of the court.


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