Opinion
L & T 62035/08
9-14-2009
1610 REALTY, LLC, Petitioner-Landlord v. GEORGE BATTS A/K/A "NICK" BATTS JERMAINE DORSEY AND DANTE BATTAN, Respondents "JOHN DOE" AND "JANE DOE" Respondents-Occupants
BRUCE H. WIENER, Esq. & ADAM LINDENBAUM, Esq., WARSHAW BURSTEIN COHEN SCHLESINGER & KUH, LLP, New York, NY, Attorneys for Petitioner. JASON BLUMBERG, ESQ & KENNETH LAU, Esq., MFY LEGAL SERVICES, INC., New York, New York, Attorneys for Respondent George Batts. LEGAL AID SOCIETY HARLEM COMMUNITY LAW OFFICES, New York, New York, Attorneys for Respondent Jermaine Dorsey. DANTE BATTAN, Respondent — Pro Se.
This summary holdover proceeding was commenced by 1610 REALTY, LLC (Petitioner) and seeks to recover possession of Apartment 2 at 267 West 139th Street, New York, New York 10030 (Subject Premises) based on the allegation that GEORGE BATTS, JERMAINE DORSEY, DANTE BATTAN (Collectively" Respondents") were the licensees of Rosa Dorsey, asserted by Petitioner to be the last tenant of record, and that the license to occupy the premises terminated with her death in January 2008.
PROCEDURAL HISTORY
On or about March 4, 2008, Petitioner issued a ten day notice to quit. The predicate notice alleged that Respondents came into possession of the premises as a licensee of Rosa Dorsey, the tenant of record, who had died on January 29, 2008, that Petitioner was revoking Respondents' license, and they were required to surrender on or before March 24, 2008.
The Notice of Petition and Petition were issued on or about March 25, 2008, and the proceeding was first on the Court calendar on or about April 4, 2008. The proceeding was adjourned to May 14, 2008, for an APS referral, and for Respondents' to obtain to counsel. On June 9, 2008, the parties entered into a stipulation of settlement (Stipulation) that was so-ordered by the Court.
Respondents appeared through counsel in the Stipulation, and consented to a judgment of possession, and forthwith issuance of the warrant of eviction. Pursuant to the Stipulation Respondents agreed to surrender by August 31, 2008, in exchange for a payment of $96,000.00 to Dante Batten (Batten) and a waiver of rent arrears. The Stipulation was executed by all parties, and their attorneys, at the Subject Premises, and was subsequently so-ordered by the Court on June 9, 2008. The warrant of eviction issued on June 24, 2008.
On or about July 11, 2008, Jermaine Dorsey (Dorsey) moved to vacate the Stipulation alleging he had never executed the agreement. Dorsey alleged that he had been receiving medical care at the time of the execution of the Stipulation due to injuries from a car accident, and that his signature had been forged.
On or about July 25, 2008, George Batts (Batts) also moved to vacate the Stipulation, asserting that the attorney who had represented him in the course of the execution of the Stipulation, was actually acting on behalf of the Petitioner. Batts further asserted that he did not understand the terms of the Stipulation he executed, that he required assistance from Adult Protective Services, and that he did not wish "to sell" his apartment.
On July 28, 2008, the court granted Dorsey's motion to the extent of finding that Dorsey did not execute the Stipulation. The Stipulation was vacated as to Dorsey, and the matter set down for as trial on August 8, 2008. On the same day, the court granted Batts' motion to the extent of relieving his attorney. Finally, on said date, an Order to Show Cause to be restored to possession was brought by Batten, who alleged that he had been locked out by Dorsey. The Court issued an order transferring the proceeding to the expediter to be assigned to a Judge for an immediate hearing on the issue of the illegal lockout.
On or about July 30, 2008, the parties entered into a stipulation, asserted to be without prejudice to other pending claims in the proceeding, withdrawing Battan's motion to be restored to possession. The stipulation provided that on or about 6/30/08 Dorsey had obtained an Order of Protection, requiring that Battan stay away from Dorsey's home. Dorsey's Order of Protection was found by the Court to supercede Battan's May 2008 Order of Protection against Dorsey. The Court had advised that based on Dorsey's 6/30/08 Order of Protection, the relief of restoration to the premises was not available, and Battan was granted access to remove his personal property from the Subject Premises.
The stipulation in the Court file actually has a date of 6/30/08, but the Court believes based on a review of the entire file that it is misdated and was actually entered on 7/30/08.
The proceeding was referred back to the resolution part, and on or about September 26, 2008, the Court reserved decision on the balance of the pending motions, and the request to vacate the Stipulation. On or about December 31, 2008, the Court issued a seven page decision and order granting Batts' motion to vacate the Stipulation, and setting the matter down for trial. The Court found that Batts had lived in the Subject Premises for nearly fifty years, first with his parents who were tenants of record, and then with his companion Rosa Dorsey. The Court's decision also noted that Batts suffered from end stage renal disease, received dialysis treatments three times per week, and took multiple medications. The Court concluded that due to the fraudulent circumstances surrounding the execution, the entire Stipulation was void and should be vacated. The proceeding was restored to the calendar for trial on January 19, 2009.
On or about February 3, 2009, the Court issued a decision denying an application for a GAL to be appointed for Batts, allowing Respondents to interpose a late answer, including the assertion of succession claims, allowing Petitioner to accept use and occupancy without prejudice, and setting the matter down for trial on March 4, 2009.
On or about February 12, 2009, Batts, through his attorneys asserted a written answer with defenses counterclaims and a demand for a Bill of Particulars. Batts claimed succession through his mother Edna Lynch, whom he asserted was the last rent control tenant of record for the Subject Premises, and alternatively through Rosa Dorsey as her companion.
On or about February 14, 2009, Dorsey filed a written answer asserting improper service, lack of personal jurisdiction, failure to perform repairs, and succession on behalf of himself, and his brother Allen Dorsey, through their mother Rosa Dorsey.
On or about March 16, 2009 counsel for Batts wrote a letter to the Court asserting that he had been advised that Allen Dorsey was living in the Subject Premises, was the adult son of Rosa Dorsey, suffered from mental retardation, and may be in need of a GAL. The file contains no other references to appearances or occupancy by Allen Dorsey, although there was testimony at trial that Allen Dorsey no longer occupies the premises and is residing with a family member.
Further motion practice took place regarding the issues raised by the pleadings, and the ongoing request for a GAL for Batts. On or about May 11, 2009, the Court issued a decision addressing these motions. The Court held that Batts did not require a GAL, and limited both Batts and Dorsey's answer to the assertion of a succession claim. The Court denied Respondent's request for discovery, and struck the request for a jury demand. The Court set a new trial date for June 25, 2009.
On June 29, 2009, the proceeding was transferred to Part S, and the trial commenced. The trial continued on June 30, July 8, and concluded on July 20, 2009. The parties were allowed to submit additional legal authority for the Court's decision through July 31, 2009, and on that date the Court reserved decision.
PREVIOUS LITIGATION
The Court took judicial notice of a number of different previous proceedings between the parties and/or regarding the Subject Premises.
Index Number 51202/02 was a nonpayment proceeding commenced regarding the Subject Premises against Rosa Dorsey. The Petitioner was Action Housing, LLC. Ms. Dorsey was represented by counsel. The matter was settled per stipulation on February 19, 2002, which addressed payment of arrears and repairs.
Index Number 78162/03 was a nonpayment proceeding commenced regarding the Subject Premises against Rosa Dorsey. The Petitioner was the same as in the case at bar. The matter was settled pursuant to a stipulation on or about July 7, 2003. Rosa Dorsey appeared pro se.
Index Number 100376/04 was a nonpayment proceeding between Petitioner and Rosa Dorsey. Ms. Dorsey appeared pro se, it was settled pursuant to a stipulation on December 7, 2004 which addressed repairs and arrears, and two additional stipulations were entered during the course of the proceeding extending time for payment and repairs on January 27, 2005 and February 24, 2005. Some of the stipulations asserted a right to legal fees and late fees on behalf of Petitioner.
Index Number 70850/05 was started several months later again for nonpayment of rent between the same parties. The case was originally settled pursuant to a stipulation on May 31, 2005, but motions and extensions continued through April 2006. In this proceeding, as well as in prior proceedings, references were made to the fact that Rosa Dorsey was receiving assistance from the Depart of Social Services to pay rent arrears. For example, on January 25, 2006, the Court signed an Order to Show Cause and attached a printout from DSS regarding checks issued. That printout included a list of the names and birth dates of individuals in the Subject Premises for whom assistance was being provided. Listed were: Virginia Dorsey, born in 1932; Craig Batten, born 1968; Sherrod Batten, born 1969; Allen L. Dorsey, born 1979; Jermaine Dorsey, born 1981; and Rosa Dorsey, born 1949.
Moreover various individuals appeared in the proceeding and sought relief other than Rosa Dorsey. Sherrod Batten moved for an extension on or about September 15, 2005. Jermaine Dorsey moved for relief on November 10, 2005. Michelle Smith moved for an extension on July 22, 2005. However, all of the stipulations in the proceeding appear to have been executed by Rosa Dorsey.
Index Number 90754/06 was another nonpayment proceeding between the same parties. Initially returnable on October 16, 2006, and the parties entered many stipulations of settlement through April 7, 2008, when the proceeding was discontinued. Both Dorsey and Battan appeared in the nonpayment proceeding. An interim stipulation executed on November 8, 2007 was signed by Latasha Jenkins, who asserted she was the daughter of Rosa Dorsey.
Dorsey repeatedly appeared by making Order to Show Cause applications on: February 2, 2007; March 12, 2007; May 14, 2007; July 12, 2007; October 29, 2007; December 14, 2007; and February 11, 2008.In support of his February 11, 2008 application, Dorsey advised the Court that Rosa Dorsey had passed away on January 29, 2008. The motion was adjourned to March 17, 2008. On March 17, 2008 the Court granted the application of "resp's grandson" for an adjournment to seek counsel, and noted that Petitioner stated it intended to commence a licensee proceeding. On April 7, 2008, the proceeding was discontinued based upon the occupants' representations that Rosa Dorsey was deceased, without prejudice to the instant proceeding, already pending as of said date. The stipulation was signed by Battan for Respondent.In all of the above referenced proceedings, the petitions asserted that Rosa Dorsey was in possession pursuant to a written rental agreement.Additionally, except as noted above all the stipulations appear on their face to have been executed by Rosa Dorsey. However, the Court's review of the files suggests that other individuals may have actually appeared and signed Rosa Dorsey's name. For example on January 14, 2008, a stipulation was entered between the parties settling the Order to Show Cause which Dorsey had applied for on December 17, 2007. The stipulation appears on its face to have been executed by Rosa Dorsey. However, the file indicates that respondent's daughter appeared, and asserted that Rosa Dorsey was hospitalized at that time.
FACTS
Petitioner's first witness at trial was Ivan F. Villarrue. Mr. Villarrue testified that he was employed by Safeguard Realty Management, and that his job includes duties related to management of the Subject Building, such as supervising repairs, and monitoring rent payments. Mr. Villarue testified that Petitioner hired his company to act as managing agent for the Subject premises approximately three years ago when they purchased the property, and that he has regularly visited the Subject Building since that time.
Mr. Viallrue testified that Rosa Dorsey was the last tenant of record of the Subject Premises, but conceded that she never signed a lease for the Subject Premises. Mr. Viallarue testified that Ms. Dorsey was offered a lease for the Subject premises for the first time in 2004, but refused to sign it.
Mr. Villarue knew Dorsey as Rosa s son, and had dealt with Batten in doing repairs to the Subject Premises. Mr. Viallarue was aware that there were other occupants in the Subject Premises, but prior to this proceeding he had never met Dorsey or Batts. Mr. Villarue stated that he believed that Rosa Dorsey had a live in partner, but felt no obligation to look into her partner's identity. Mr. Villarue lacked first hand knowledge of the identity of the tenants and occupants of the Subject Premises.
It is not clear how it was determined that Rosa Dorsey was the tenant of record for the Subject Premises, or how it was determined that the Subject premises are subject to rent Stabilization as opposed to Rent Control. Mr. Viallarue testified that Petitioner had no records from the period when the premises were subject to Rent Control. Mr. Villarue also testified that there were documents from previous owners which indicated that Rosa Dorsey was the tenant of record, but such documents were never produced at trial. Mr. Villarue's testimony regarding how it was determined that Rosa Dorsey was the tenant was not credible, he made several conflicting statements regarding the issue and lacked first hand knowledge on many aspects that were involved in said determination.
Petitioner took ownership of the Subject Building pursuant to a deed dated March 27, 2003 (Exhibit 1). The previous owner, Harvey Entin had owned the building since 1973 (Exhibit 1). The contract of sale indicated that as of January 2, 2003, there were four occupied apartments in the Subject Building and none of the tenants had lease or had paid security. The contract of sale listed "Dorsey" as an occupant of Apartment 2 at a rent of $435 (Exhibit 10).
The Subject Premises was not registered with DHCR at all until 2003. On or about August 1, 2003, a registration for the Subject Premises was filed for the year 1984, listing Rosa Dorsey as the rent-stabilized tenant of record at a rent of $435.00. No registrations were filed for the years 1985 through 1998. On or about June 9, 2003, registrations for the Subject Premises were filed for the years 1999 through 2003, all listing Rosa Dorsey as the rent stabilized tenant of record at a rent of $ 435.00. On all registrations information regarding the lease term is left blank. No copies of the originally filed registrations or proof of their service were ever produced at trial. All of the information from the registrations comes from Exhibit 3, a certified record from DHCR regarding registrations for the Subject Premises.
Hal Walker also testified for Petitioner. Mr. Walker is the Super of the Subject Building. Mr. Walker serves as a super for ten buildings altogether including the Subject Premises.Mr. Walker testified about his duties, the amount of time he spent at the Subject Building and the various people he had observed in occupancy of the Subject Premises, from 2002 through the date of the trial.
Rosa Dorsey died on January 30, 2008 . At the time of her death she was at Lawrence Hospital in Westchester county. Her death certificate indicates that she was a child care provider and that her residence at the time of her death was the Subject Premises (Exhibit 4).
Dorsey testified first for Respondents. Dorsey testified that he is the son of Rosa Dorsey, that he first moved into the Subject Premises on or about 1999, and has considered it home since then. Dorsey testified that he has not used any other address since moving in, and that he has been receiving mail at the Subject Premises since 1999. Dorsey was born in Alabama in 1981. Dorsey testified that he considers Batts like a father, and that Batts and Rosa started their relationship when Dorsey was about thirteen years old.. Dorsey acknowledges that he has a child out of wedlock, and that since 1999 there were occasions where he slept at another premises at least several times a week. Dorsey did not produce significant documentation showing the Subject Premises was his primary residence from 1999 forward.
Batts testified next at the trial. Batts is 62 years old and has lived in the Subject Premises for approximately 45-50 years, since he was approximately sixteen years old. Batts has never lived anywhere else since moving into the Subject Premises. Batts describes Dorsey as his stepson. Batts described Rosa Dorsey as his common law wife, and stated that she started living with him at the Subject Premises on or about 1999.
Batts testified that he lived with Rosa Dorsey at the Subject Premises for at least ten years as well. Rosa used to care for Batts' mom, Edna Lynch a/k/a Edna Thomas. Edna Lynch appears to have been the tenant of record for the Subject Premises prior to her death. Batts testified that Edna Lynch paid the rent for the Subject Premises through her death. After Edna Lynch passed away, Rosa Dorsey moved into the Subject Premises at Batts' invitation. When Rosa moved in to live with Batts she brought her children and grandchildren with her. Some moved out before Rosa's death, and others moved out after Rosa's death. Batts acknowledged that Dorsey is still living in the apartment, but may be gone several days per week.
Suzanne Briggs testified next. Ms. Briggs is a customer service representative for Con Edison, and through her testimony Respondents offered into evidence certified copies of Batts' account for the Subject Premises, which he opened in his name on September 25, 2001 (Exhibit I). The records produce at trial were only for the period of 2004 through the date of the trial. The records indicate public assistance was provided in maintaining the account.
Marilyn Flowers testified next for Respondents. Ms. Flowers is Batts' sister, and used to live in the Subject Premises with Batts from approximately 1969 to 1971. Ms. Flowers testified that at that time Batts was living in the Subject Premises, along with his mother Edna Thomas. Since moving out of the Subject Premises, Ms. Flowers comes back to visit between five to six times a year. Ms. Flowers testified that Batts and Rosa Dorsey lived together as common law spouses. Ms. Flowers noted that Rosa Dorsey helped to care for Batts and helped him deal with his illness. Ms. Flowers testified that Edna Thomas passed away around 1998, and after her death Ms. Flowers met Rosa Dorsey through Batts.
The next witness presented by Respondents was Faye Shabazz. Ms. Shabazz is seventy-two years old, and has known Batts since he was born. Their mothers were first cousins. Ms. Shabazz has been to the Subject Premises to visit Batts on numerous occasions. Ms. Shabazz testified that Edna Lynch moved to South Carolina before her death, and that after she moved Batts' brought Rosa Dorsey to live with him. Ms. Shabazz described Rosa Dorsey as a nice young lady, and stated that Batts and Rosa Dorsey lived together as husband and wife. Ms. Shabazz stated that Rosa's children called Batts "Grandpa", and that Rosa Dorsey cared for Batts, prepared his meals and helped him deal with his illness and medications.
Batts was the next witness for Respondents. Batts' testified that he initially moved into the Subject Premises with his mother and his sister. Batts attended DeWitt Clinton High School and his mother paid the rent.Batts put into evidence a number of Life Insurance Policies his mother had taken out listing him as a beneficiary between the years 1949 and 1962, presumably offered to establish that Edna L. Thomas was his mother (Exhibits J-N). According to said applications through 1962, Batts and hi mother were residing at 300 west 142 Street, Apt. 12, New York, New York.
Other documents offered into evidence through Batts' testimony included a joint bank account he held with his mother at Citibank listing the Subject Premises as their address from 1997 (Exhibit H4). Medicare statements addressed to Edna Lynch at the Subject Premises for treatment received in New York City in July 1993 and March 1994 (Exhibit H5 & H6). Acknowledgment of complaints sent by HPD to the previous landlord from Edna Lynch as the tenant of the Subject Premises in June 1997, October 1997, and May 1999 related to a lack of gas in the Subject Premises, a ceiling collapse in the bathroom, and a leaky pipe in the bathroom were also introduced into evidence (Exhibits H3, H7 & H8).
In support of his claim to having lived in the Subject Premises for the past fifty years, Batts offered some additional documents. For example, documents showing Batts used the Subject Premises for the purposes of receiving public assistance from the City of New York were offered into evidence for a period between 1989 and 2007. These documents indicate that Batts was fighting drug and or alcohol addiction during this period (see eg Exhibit G26). As of 1999, the total number of individuals listed as household members for Batts was limited only to himself (Exhibit G 32).
Batts also put into evidence documents showing he used the Subject Premises for the purposes of applying for SSI benefits for the period of 1994 through 1998, as well as medical record and medicare documents for a variety of years.
Batts offered documents showing he had both a Con Edison account in his name at the Subject Premises, as well as an account with Time Warner for cable in or around 1996 and 1997. The Con Edison account was in the name of Batts and Edna Lynch through and including at least 2007. Although the name of Edna Lynch did not appear on the subpoenaed documents produced by Con Edison and put into evidence at trial (Exhibit I), the account number is the same on the subpoenaed documents as on the statements produced by Batts (Exhibits G37, G39, & G 40).
Batts testified that his mother Edna Lynch moved down south before she died in approximately 1998, and that she died approximately two weeks after going down south. Batts testified that his relationship with Rosa Dorsey started in the Summer of 1998, and that Rosa accompanied his mother down south in August 1998. Within approximately six months, Batts testified that he invited Rosa Dorsey and her children to come and live with him in the Subject Premises.
Batts testified that he and Rosa looked out for each other and cared for each other. Rosa prepared meals and her specialty was porkchops. Rosa and Batts spent holidays together, and shared their leisure time by playing cards, and taking the kids to the park or a movie. They both paid for food, and Batts contributed one half of the rent. They shared the same bed in the master bedroom. Rosa assisted Batts with taking his insulin, and later when she became ill, Batts cared for her and prepared meals for her. Rosa died of a blot clot after developing Breast Cancer.
The next witness for Respondents was Sydney Faye Bridgeman, who has lived in apartment 4 at the Subject Building, since 1983. Ms. Bridgemen testified that when she moved into the Subject Building, Batts and his mother Edna Lynch were already living in the Subject Premises, located directly below her apartment. Ms. Bridgeman testified that Edna Lynch never moved out, but died around 1998, while visiting a relative in South Carolina. Ms. Bridgeman testified that after that Rosa and Batts lived together in the Subject Premises. She described the relationship between Rosa and Batts as pleasant, and stated she saw them together almost everyday. She testified that Rosa and batts acted like a couple.
Steven Breskin testified on rebuttal for Petitioner. Mr. Breskin is a member of the LLC that owns the Subject Building. Mr. Breskin testified that he has been in the real estate business for twenty-seven years and has been involved with ownership or management of approximately thirty-five buildings. When Petitioner purchased the Subject Building, Mr. Breskin testified that none of the tenants had leases, and he presumed that the tenants were rentstabilized.
DISCUSSION
The petition herein alleged that Respondents only came into possession of the Subject premises as licensees of Rosa Dorsey, the prior tenant of record. The Court finds that Petitioner failed to establish this fact at trial, and that the undisputed facts at trial establish that Batts was in possession long before Rose Dorsey came into possession of the Subject Premises, and that it was at Batts' invitation that Rosa Dorsey moved into the Subject Premises, on or about 1998 or 1999.
A license is a personal, revocable and non-assignable privilege to do one or more acts upon land without possessing any estate or interest therein (100 West 72nd St Ass v. Murphy 144 Misc 2d 1036 [1989][citations omitted]). Section 713(7) provides that a summary proceeding may be maintained against a person who ".. . is a licensee of the person entitled to possession of the property at the time of the license and (a) his license has expired, or (b) his license has been revoked by the licensor, or (c) the licensor is no longer entitled to possession of the property ...".
In this case, Batts' occupancy of the Subject Premises was not as a result of any license granted by Rosa Dorsey, who in fact had no entitlement to possession or even any connection with the Subject Premises at the time Batts started living there, some fifty years ago. Rather Batts' came into possession when his mother Edna Thomas a/k/a Edna Lynch became the tenant of record for the Subject Premises in the early 1960s.
Batts is not the licensee of Rosa Dorsey.
Moreover, Petitioner did not establish its allegation at trial that Rosa Dorsey was the rent stabilized tenant of record for the Subject Premises.
The court finds that in fact the Subject Premises are subject to rent control.
Apartments in buildings completed prior to February 1, 1947 and that contain three or more units which are used or intended to be occupied as residences, and which have not become vacant since July 1, 1971, are subject to rent control [ See eg 9 NYCRR § 2200.2(f)(17); Posalski v. State of New York Div. Of Hous. & Community Renewal 291 AD2d 327 (1st Dept 2002)( landlord failed to submit competent evidence to support assertion that premises somehow acquired rent stabilization status)].
The Subject Building has no certificate of occupancy (Exhibit O) and therefore presumably was built prior to 1938. DOB records show applications for the Subject Building made as early as 1907 (Exhibit O). The Court also takes judicial notice that the building is part of the St. Nicholas Historic District, and was given Landmark Status on March 31, 1967 (See eg http://a810-bisweb.nyc.gov/bisweb/PropertyProfileOverviewServlet?boro=1 & houseno=2610 & street=8th+ave & requestid=0 & s=A03C41B885B461E4F46BD08866A7430E). There was no evidence contradicting the Respondents' assertion that the building was constructed prior to 1947.
The DOB website advises that buildings built prior to 1938 are not required to have a certificate of occupancy on file, and on line records for the Subject Building indicate the landmark status.
Nor was it disputed by Petitioner that the tenant of record for the Subject Premises, from sometime in the 1960s through her death in the late 1990s, was Edna Lynch a/k/a Edna Thomas. Similarly, it is undisputed that Batts moved in with his mother, and has never since vacated the Subject Premises.
Batts credibly testified that he moved into the Subject Premises with his mother and that he resided at the Subject Premises with her for well over two years prior to her permanently vacating the Subject Premises. Therefore Batts is entitled to succeed to his mother's rent controlled tenancy (Lex & Third 116th St. Corp. v. Marrero 23 Misc 3d 59 [App Term, 1st Dept, 2009]). Pursuant to 9 NYCRR 2204.6(d)(1), Batts was not subject to eviction after his mother's permanent vacature of the Subject Premises. That provision provides in pertinent part " ... any member of the tenant's family ... shall not be evicted under this section where the tenant has permanently vacated the housing accommodation and such family member has resided with the tenant in the housing accommodation as a primary residence for a period of no less than two years ... or from the inception of the tenancy ..." Id.
The fact that Rosa Dorsey was registered by Petitioner as the rent stabilized tenant of record and paid rent for the Subject Premises does negate this finding. As the Court held in Marrero supra "That the record tenant acceded to petitioner's demand that he execute a stabilized lease for what petitioner (mis)represented to be an unregulated apartment some 13 years after the rent controlled tenancy began, does not negate respondent's otherwise persuasive showing that his father's tenancy was rent controlled. A contrary holding would run ... ignore the well established principle that deregulation of apartments is only available through regular, officially authorized means ... (Marrero at 59 [citations omitted])"
Furthermore, 9 NYCRR 2203.2 provides in pertinent part that the landlord of an apartment subject to rent control which becomes vacant after 1971 by voluntary surrender must file a report of decontrol within 30 days of the vacancy or the first rental after decontrol. Petitioner presented no such evidence that this was done in this proceeding, and in fact there was no evidence in the record of either a vacancy or surrender after 1971.
Petitioner's arguments that it reasonably relied on a contract of sale listing "Dorsey" as the tenant of record do not require a different outcome, nor do their arguments of waiver or estoppel require a different result. "In determining whether a dwelling unit is subject to rent regulation, what the parties think might be its status or even what they agree to be its status is not dispositive; what is controlling is whether the premises meet the statutory criteria for protection under the applicable regulatory statute (546 West 156th Street HDFC v. Smalls 43 AD3d 7, at 12 [1st Dept 2007])". Similarly it is well established that "..coverage under a rent regulatory scheme is governed by statute and may not be created or destroyed by laches, waiver and estoppel (In re Jo-Fra Properties, Inc. 27 AD3d 298, at 299 [1st Dept 2008])".
The Court rejects Petitioner's argument that Batts is estopped from asserting that he is the tenant of record rather than Rosa Dorsey. In support of this argument, Petitioner relies principally upon two cases 500 West End Owners LP v. Deen NYLJ, July 17, 1998, p.21 col2 (App Term 1st Dept) and South Pierre Associates v. Mankowitz 17 Misc 3d 53 (App Term 1st Dept 2007). However, the holdings in those cases were in large part dependent on the fraudulent conduct of the Respondent, which is not present in the case at bar. In Mankowitz the Court held that the respondent "..engaged in a persistent and systematic pattern of deception in concealing his occupancy status from petitioner for nearly 13 years following the death of the stabilized tenant in November 1989 by forging the tenant's name on no less than seven renewal lease and numerous rental payments (Mankowitz at 54)". Similarly, in Deen the rent-control tenant vacated in 1976, the tenant's son signed a rent-stabilized lease with the landlord in 1977 and executed renewal leases through 1996, only asserting succession to his mother's rent-control tenancy for the first time in litigation in 1997 with the landlord's successor in interest.
In this case, Batts did not conceal his occupancy, which was known both to Petitioner's predecessor in interest and Petitioner, nor was there any evidence that Batts concealed the death of his mother in 1998. Batts' testimony that his name was on the mailbox of the Subject Premises was undisputed. Additionally, it is undisputed that Rosa Dorsey affirmatively refused to sign a lease, and be recognized as the rent stabilized tenant of record for the Subject Premises.
Moreover, the fact that Batts who was extremely ill, with limited education and ability to read and write, allowed Rosa Dorsey to handle issues related to the payment of rent and court proceedings can not be equated as a waiver of his tenancy rights, and was practicable under the circumstances, given his limited capabilities and his relationship with Rosa as a nontraditional spouse.
Similarly, Petitioner's argument that Batts failed to challenge annual filings with DHCR is without merit. First, Petitioner offered no documents into evidence to support its argument that annual registrations were mailed to the Subject Premises. Additionally, Petitioner filed a fraudulent initial registration for the Subject Premises, with DHCR in 2003, for the year 1984 alleging that Rosa Dorsey was a tenant of record for the Subject Premises (Exhibit 3), when Rosa Dorsey did not start living in the Subject Premises until some fifteen years later.
The Court finds Respondent's argument that Batts is the rent control tenant of record of the Subject Premises to be supported by the weight of credible evidence adduced at trial, as well as the applicable law. Batts has met his burden of establishing by a preponderance of the evidence that he is entitled to succeed to his mother's rent controlled tenancy.
CONCLUSION
Based on the foregoing, the Court finds that Batts is the rent controlled tenant of record for the Subject Premises. The petition is dismissed, and the succession claims asserted by Dorsey and Battan are also dismissed, based on said finding.
This constitutes the decision and order of this Court.