Opinion
72933/2017
12-11-2019
1649 NELSCO, L.L.C., Petitioner-Landlord, v. Yesenia CORCHO, "John Doe" and "Jane Doe", Respondent-Undertenants.
Petitioner's Attorney: Jason Fuhrman, Esq., Novick, Edelstein, Lubell, Reisman, Wasserman, Leventhal, P.C., 733 Yonkers Avenue, Yonkers, NY 10704 (914) 375-0100 Respondent Yesenia Corcho's Attorney: Amanda J. Jennings, Esq., The Legal Aid Society, Bronx Neighborhood Office, 260 East 161st Street, 8th Floor, Bronx, New York 10451 (646) 340-9111
Petitioner's Attorney: Jason Fuhrman, Esq., Novick, Edelstein, Lubell, Reisman, Wasserman, Leventhal, P.C., 733 Yonkers Avenue, Yonkers, NY 10704 (914) 375-0100
Respondent Yesenia Corcho's Attorney: Amanda J. Jennings, Esq., The Legal Aid Society, Bronx Neighborhood Office, 260 East 161st Street, 8th Floor, Bronx, New York 10451 (646) 340-9111
Diane E. Lutwak, J.
BACKGROUND & PROCEDURAL HISTORY
This is a Holdover Proceeding which was commenced by Petitioner 1649 Nelsco, L.L.C. seeking, originally, to recover possession of Apartment 2-B at 1651 Nelson Avenue, Bronx, New York from Alberto Corcho, the Rent Stabilized tenant of record named as Respondent-Tenant in the petition. The petition is based on a termination notice dated November 20, 2017 which advised Mr. Corcho that his tenancy and lease were being terminated as of December 4, 2017 for failure to sign a new lease agreeing "to pay the full amount of the monthly legal rent." The termination notice incorporates by reference a prior notice to cure addressed to Mr. Corcho dated October 5, 2017 that noted that Mr. Corcho's Section 8 subsidy had been terminated effective July 31, 2017 for failure to recertify and that to cure this violation he must "sign a new lease with your landlord acknowledging your agreement to pay the full amount of the monthly legal rent" by a specified date.
The case was originally calendared for January 3, 2018, when it was adjourned to February 14, 2018 for Mr. Corcho to secure counsel. Mr. Corcho retained The Legal Aid Society and on February 14, 2018 the proceeding was adjourned for trial or settlement first to March 19, then to April 25 and then to May 10, 2018. On the latter date, a notation on the court file jacket states: "Adj'd to 6/7 Trial. Resp is now deceased. J + J Doe are present." On June 7 the case was adjourned to July 9 at which time Yesenia Corcho, one of Mr. Corcho's daughters, appeared and filed an answer by The Legal Aid Society raising, inter alia , an affirmative defense of succession rights. The case was then adjourned for motion practice:
• Ms. Corcho moved for summary judgment and dismissal based upon her second and fourth affirmative defenses, arguing that dismissal was warranted based upon (1) the death of her father; and (2) failure to serve her with the predicate notices.
• Petitioner cross-moved for summary judgment and miscellaneous other relief including discontinuance of the case as against Mr. Corcho and substitution of Yesenia Corcho for "Jane Doe" in the caption.
By Decision and Order dated June 14, 2019 the Resolution Part Judge denied Ms. Corcho's motion, finding that (1) since the termination of Mr. Corcho's tenancy took place before his death the estate is not a necessary party; and (2) Petitioner was not required to serve her with the predicate notices. Further, the court found there to be issues of fact and denied Petitioner's cross-motion for summary judgment. In a subsequent Decision and Order dated August 6, 2019 the court added Yesenia Corcho as a Respondent and deemed the proceeding discontinued as against the late Alberto Corcho.
The case was then scheduled for a pre-trial conference in Trial Part T on September 9, 2019; after a second conference on September 27 the case proceeded to trial on November 21. After the parties' counsel stipulated in writing to certain facts and the admissibility of certain documents, each side presented the testimony of one witness. The trial concluded that day, with post-trial briefs to be submitted by December 9, 2019.
TRIAL
Petitioner's Case
The parties stipulated to Petitioner's prima facie case, namely that:
• 1649 Nelsco L.L.C. is the deed holder of the subject building, which is registered as a multiple dwelling.
• The subject apartment is Rent Stabilized and registered with the New York State Division of Housing and Community Renewal.
• The tenant of record, Alberto Corcho, lived in the subject apartment from 1995 when he moved in until his death on April 25, 2018.
• Mr. Corcho's last lease expired on May 31, 2019.
• Mr. Corcho had an HPD (New York City Department of Housing Preservation and Development) Section 8 voucher during his tenancy, which HPD terminated for failure to certify. Mr. Corcho applied for reinstatement of his Section 8 voucher as a reasonable accommodation; HPD denied this application not on the merits but due to his death.
Petitioner's sole witness was its management company's employee Cesar Maldonado, who was the building manager at the subject premises from 2007 until 2015. During those years he would go to the building approximately twice a week. Since 2015 Mr. Maldonado goes less often, only about once a month, when something is going on for which his help is needed. Mr. Maldonado knew Alberto Corcho and knew that he had been a Section 8 tenant. Four documents from HPD addressed to Mr. Corcho were admitted into evidence on consent:
• comprised solely of Albert Corcho.
• "Rent Breakdown" statement dated May 22, 2015, effective July 1, 2015, noting a contract rent of $988.41, a tenant share of $156, an HPD share of $832.41 and a "Family Composition" comprised solely of Albert Corcho.
• "Rent Breakdown" statement dated June 24, 2016, effective August 1, 2016, noting a contract rent of $988.41, a tenant share of $185, an HPD share of $803.41 and a "Family Composition" comprised solely of Albert Corcho.
• "Subsidy Termination" notice dated June 9, 2017, advising Mr. Corcho that his Section 8 subsidy would be terminated as of July 31, 2017 due to his failure to return his recertification package, unless he requested a hearing within thirty days.
Petitioner's rent ledger dated November 20, 2019 was also admitted into evidence on consent. The ledger reflects that Petitioner did not receive any Section 8 funds after July 2017 and that $26,589.04 has accrued through November 2019 in unpaid rent and/or use and occupancy at the monthly rate of $1008.18.
Mr. Maldonado testified that all apartments are inspected once a year, either by himself or another management company employee. A computer screen printout listing nine inspection dates for Mr. Corcho's apartment from 2005 through 2018, including three conducted by Mr. Maldonado, was admitted into evidence over objection, along with eight three-page "Apartment Inspection Worksheets" whose dates match the first eight of the nine inspection dates on the list. Mr. Maldonado identified Mr. Corcho's signature in several places on the first seven Inspection Worksheets; the eighth, dated October 4, 2017, was signed by someone named "Maria", whom Mr. Maldonado believed was Mr. Corcho's home attendant. In response to the question "Who Resides in the Apartment?" in the middle of the second page of the Inspection Worksheets, all but the one dated April 14, 2011 (which has no response to this question) have a hand-written response listing just Mr. Corcho's name and no other.
Mr. Maldonado testified that he was very familiar with Mr. Corcho and would see him at the building approximately once a week - either in his apartment, at the mailboxes, or, in the summer, in front of the building. When he would go to Mr. Corcho's apartment he would see "a couple of men" who lived there with him, whom he believed were roommates. Mr. Maldonado fielded complaints from other neighbors about Mr. Corcho's roommates smoking in the hallway outside of the apartment. Mr. Maldonado testified about a flood from Mr. Corcho's bathroom in 2015 or 2016, after he no longer managed the building; Mr. Maldonado went to check on it and spoke with Mr. Corcho at the time. He described Mr. Corcho as "a big guy" who filled up the tub when taking a shower. Mr. Maldonado was not aware of any family members of Mr. Corcho living with him and did not know who Yesenia Corcho was.
On cross-examination, regarding the roommates Mr. Maldonado testified that he spoke with them himself and once had to take Mr. Corcho to court "because his roommate was using the hallway as a bathroom."
Respondent Yesenia Corcho's Case
Ms. Corcho testified that she was born in 1990 and that Alberto Corcho is her father. Ms. Corcho's birth certificate and her father's death certificate were admitted into evidence on consent. Ms. Corcho is listed in the "Informant's Name" box on her father's death certificate, with an address at 41 Neptune Road in Kissimmee, Florida. Ms. Corcho testified that her father raised her in the subject two-bedroom apartment, that she "had left for a little while" and that she returned "around 2015 to help my dad because he was sick." Ms. Corcho recalled that her father had started needing a home health aide in 2013 or 2014, and his first home health aide stayed with him "for a long time". In 2017 he had had different home health aides. Ms. Corcho did not know the names of any of her father's home health aides.
Ms. Corcho testified that when she was younger "ACS helped my father get this apartment" so that she, her sister who is now 31 and her brother who is now 34 could be discharged from foster care and live with him. Ms. Corcho's sister lives on Kingsbridge Road in the Bronx and her brother lives in Maryland. She was not sure when they moved out of the apartment. The apartment hasn't changed much since she was a child except that it looks older and the furniture in her room is not the same as what she grew up with.
Ms. Corcho testified that she currently is living in Kissimmee, Florida and a cousin of hers lives in the subject apartment and is staying in her room, which she had shared with her siblings when growing up. The cousin lived in the apartment in October 2017 at the time of the inspection which Mr. Maldonado testified about. Ms. Corcho has a Florida State driver's license, which she provided as identification when her father's death certificate was being completed. Ms. Corcho testified that she used to have a New York State driver's license but changed it to Florida when she moved there to go to school.
When asked about the point in time two years before her father died on April 25, 2018, Ms. Corcho testified that she had lived with her father for the full year of 2016 and it was just the two of them in the apartment. At that time she worked as a licensed certified nursing aide (CNA) in nursing homes through three different staffing agencies. In 2016 Ms. Corcho also started studying to be a medical assistant at "Mildred Elley"; she switched to an occupational therapy assistant program at Mercy College later that year, "to start in January". She did not finish her degree at Mercy College because she decided instead to study nursing, to better understand her father's health problems. She felt she could not help her father much as a CNA.
When asked how she would spend a typical day in 2016 Ms. Corcho testified that she would go to school in the morning, return home around 12:30 or 1 pm, help her father with anything he needed such as a meal, medication and getting ready for dialysis and then she would do her homework. Her father was very weak from the dialysis and diabetes and had poor vision. Sometimes her sister, her male cousin (the one now living in the apartment) or her mother would visit. When asked if her brother in Maryland ever visited in 2016 Ms. Corcho answered, "I have another brother named Adrian Alvarez, he actually comes as well, but not often."
Admitted into evidence on consent were copies of the following documents addressed to Ms. Corcho at the subject premises:
• letter dated July 1, 2016 from "Mildred Elley" accepting her into the school's Medical Assistant Program starting July 18, 2016;
• two 2016 "Tuition Statement" tax forms - one from "Mildred Elley" and one from "Mercy College";
• two 2016 W-2 forms, one from "Floral Agency LLC" reflecting earnings of $979.13 and one from "Terence Cardinal Cooke Health Care Center" reflecting earnings of $1099.15;
• bill from "Mercy College" dated June 1, 2018 referring to charges due for the Spring 2017 semester.
A copy of Ms. Corcho's 2016 federal tax return, unsigned and undated, was admitted into evidence over objection. Ms. Corcho testified that she received it from her paid tax preparer and typically files her tax return at the beginning of the year. The tax return lists the subject premises on the first page as Ms. Corcho's home address. On the second page, in the "Paid preparer" section, a tax preparation firm is listed with an address in Florida City, Florida.
Ms. Corcho testified that she had a bank account at TD Bank when she lived with her father. TD Bank statements for the period of May 2016 through June 2017 addressed to Ms. Corcho at the subject premises were admitted into evidence, reflecting the following:
• May 2016 through November 2016 - various debt card purchases in Manhattan and the Bronx.
• December 2016 and January 2017 - no debit card purchases connected to any State.
• February 2017 - various debit card purchases in St. Croix, Virgin Islands from February 13 through March 2.
• March and April 2017 — various debit card purchases in Florida beginning April 5.
• May and June 2017 — no activity listed, other than the closing out of the account on June 26 and a maintenance fee charge on June 9.
Ms. Corcho entered a nursing program at a school called "Med-Life" located in Kissimmee, Florida in August 2017 and attended classes there as a full-time student for approximately one year. She testified that she left a lot of her clothes, paperwork and other things in her father's apartment and that she did not return home for the Christmas holiday in 2017 because her father told her "there was something going on with the apartment" and they "could do something else later". Ms. Corcho testified that her father "never went into details", never included her in the preparation of his housing documents, would hold things back and "we would have to find out for ourselves." At the time of her father's death, Ms. Corcho was in school at Med-Life.
Ms. Corcho's Med-Life transcript for the three terms of Fall 2017, Spring 2018 and Summer 2018 was entered into evidence. The transcript reflects that Med-Life accepted eleven transfer credits for three courses Ms. Corcho took prior to enrolling at Med-Life. The transcript also reflects that in the Fall 2017 term which began "0817" Ms. Corcho took three courses for a total of eight credit hours of which she earned three credit hours; in the Spring 2018 term which began "0118" she took four courses for a total of thirteen credits of which she earned thirteen; and in the Summer 2018 term which began "0518" she signed up for four courses for a total of seven credit hours but withdrew as of July 16, 2018. Regarding her first semester at Med-Life, Ms. Corcho explained that she did not have a full course load because she received transfer credit for certain courses that she otherwise would have taken that first semester and the program did not allow her to fill the gap in her schedule with other classes.
Ms. Corcho did not get her degree from Med-Life because that school "lost financial aid" and she had to transfer to a different school. She testified that she attended the 2018 Fall semester at Med-Life; this does not appear on her transcript because her enrollment for that semester was "cash-based".
Ms. Corcho started a new nursing program in Florida in January 2019 at a school called Cambridge College where she is still enrolled. Ms. Corcho testified that her plan after she finishes her degree is to return to the Bronx and work as a nurse and that her move to Florida was temporary, not permanent. Her plan always has been "to come back home" and her father was her "motivation to become an RN" so that she could help him but "she ran out of time".
Ms. Corcho remembered the flood which Mr. Maldonado testified had occurred in 2015 or 2016 as follows: "We were washing clothes and the water spilled over in the sink and went down to the lady on the first floor and it flooded her apartment." Ms. Corcho also recalled contacting the building super for repairs in 2015 and 2016 and that there had been a hole behind the washing machine through which rats entered the apartment. Ms. Corcho testified that she did not take her father's rent payments to the office or sign leases or other housing paperwork for him but would go with him to drop off rent at the management office.
On cross-examination, Ms. Corcho could not recall when she stopped being a student at Mercy College. When asked about her TD Bank Statements which ended in June 2017 Ms. Corcho testified that she switched banks at that point. Ms. Corcho acknowledged that she is married and that some of the documents she offered into evidence have her "married name" on them, including her 2016 tax return.
On redirect, Ms. Corcho testified that the reason she moved to Florida in April 2017 was that she wanted to find a nursing school; she "did some research and learned that it was easier to get into nursing schools in Florida." She was married at the time she moved to Florida and is currently married. The reason her documents reflect two different addresses in Florida is that she "didn't have a place to stay to begin with" and the address on her 2017 Tuition Statement from Med-Life "is basically like a dorm for students that actually relocate to Florida."
DISCUSSION
There are potentially three issues for the court to decide in this proceeding: First is whether Petitioner proved it was permitted to terminate Respondent-Tenant Alberto Corcho's tenancy for failure to sign a new lease after he lost his Section 8 subsidy. If so, second is whether such termination of Mr. Corcho's tenancy precludes his daughter Yesenia Corcho from asserting a succession rights defense. Third, if Ms. Corcho is permitted to proceed on her succession defense, is whether Ms. Corcho met her burden of proof.
Petitioner argues that it is entitled to a judgment of possession and that the court should not reach Ms. Corcho's succession rights defense because it properly terminated Mr. Corcho's tenancy prior to his death based on his breach of a substantial obligation of his tenancy which he failed to cure, leaving no tenancy for Ms. Corcho to succeed to. In Pinnacle Bronx West LLC v. Jennings (29 Misc 3d 61, 910 NYS2d 335 [App Term 1st Dep't 2010] ), cited by Petitioner in support of the proposition that Mr. Corcho's failure to maintain his Section 8 subsidy creates a holdover cause of action based on breach of lease, the Appellate Term noted in dicta that, "among the potential remedies available to landlord is the commencement of a holdover summary proceeding based upon an alleged breach of lease stemming from tenant's failure to recertify for Section 8 eligibility." The respondent in Pinnacle , like Mr. Corcho herein, was a Rent Stabilized tenant who lost his Section 8 subsidy; however, Pinnacle was a nonpayment proceeding in which the appellate court upheld the dismissal of so much of the petition as sought recovery of arrears in excess of what the tenant's share of the rent had been under the Section 8 program. While the Pinnacle dicta certainly suggests the viability of a holdover proceeding based on a Rent Stabilized tenant's loss of their Section 8 subsidy in a proper case, see also , e.g. , Heywood Towers Assoc v. Hussain (36 Misc 3d 128[A], 953 NYS2d 549 [App Term 1st Dep't 2012], aff'g for the reasons stated by the court below at 31 Misc 3d 1235[A], 932 NYS2d 760 [Civ Ct Bx Co 2011] ); Promenade Global LLC v. Abraham (44 Misc 3d 1205[A], 997 NYS2d 100 [Civ Ct NY Co 2014] ); 835-37 Trinity Ave HDFC v. Royal (26 Misc 3d 1240[A], 907 NYS2d 436 [Civ Ct Bx Co 2010] ), Pinnacle and its progeny do not explain the mechanics of how a landlord is to terminate the lease of an existing Rent Stabilized tenant who lost a Section 8 subsidy and offer that tenant a new lease.
Pinnacle and its progeny also do not mention the rule that a holdover proceeding based upon a landlord's termination of the lease may only be maintained where there is a conditional limitation in the lease providing for its early termination based on a specified occurrence. 1900 Albemarle, LLC v. Solon (77 Misc 3d 158[A], 72 NYS3d 517 [App Term 2nd Dep't 2017] ), citing Perrotta v. Western Regional Off-Track Betting Corp (98 AD2d 1, 469 NYS2d 504 [4th Dep't 1983] ); Grand Concourse E HDFC v. DeJesus (61 Misc 3d 403, 84 NYS3d 318 [Civ Ct Bx Co 2018] ).
Here, Petitioner provided no explanation for how and why it was permitted to terminate Mr. Corcho's existing lease and substitute a new lease "acknowledging your agreement to pay the full amount of the monthly legal rent". That is, Petitioner offered no proof at trial that Mr. Corcho's original lease included a conditional limitation requiring Mr. Corcho to maintain his Section 8 subsidy, 1900 Albemarle, LLC v. Solon, supra , or that Mr. Corcho was given an opportunity to sign a new lease after losing his Section 8 subsidy. As Petitioner failed to prove it was permitted to terminate Mr. Corcho's testimony for the reason stated in the termination notice, or that Mr. Corcho rejected a properly proffered new lease that Petitioner was permitted to demand as a substitute for the one that was in effect at that time, the proceeding is dismissed and the court does not reach either of the other two issues.
This constitutes the court's Decision and Order, copies of which will be mailed to the parties' attorneys unless picked up forthwith. The documents entered into evidence at trial will be held for thirty days and may be picked up from the Part S/T clerk in Room 409/410 of the courthouse.