Opinion
81294/2014
11-05-2018
170 SPRING STREET LLC, Petitioner, v. Jane DOE, Respondent.
For Petitioner: Thomas S. Fleishell and Associates, by Thomas S. Fleishell For Respondent: Fishman Rozen LLP by James B. Fishman
For Petitioner: Thomas S. Fleishell and Associates, by Thomas S. Fleishell
For Respondent: Fishman Rozen LLP by James B. Fishman
Jack Stoller, J.
170 Spring Street LLC, the petitioner in this proceeding ("Petitioner"), commenced this holdover proceeding against Jane Doe, the respondent in this proceeding ("Respondent"), seeking possession of 174-6 Spring Street, Apt. 3, New York, New York ("the subject premises") on the ground that Respondent is a licensee of the prior tenant of the subject premises ("the prior tenant") and that Respondent's license terminated when the prior tenant died. Respondent interposed an answer alleging that the subject premises is subject to the Rent Control Law and that she is a successor to the prior tenant. The Court held a trial of this matter on July 12, 2017, December 5, 2017, December 6, 2017, February 14, 2018, February 15, 2018, June 5, 2018, June 6, 2018, and September 6, 2018 and then adjourned the matter to October 26, 2018 for post-trial submissions.
The parties agreed to refer to Respondent as "Jane Doe."
The parties stipulated that Petitioner owns the building in which the subject premises is located ("the Building"); that the subject premises is subject to the Rent Control Law; that Petitioner timely and properly served a notice to quit on Respondent pursuant to RPAPL § 713 ; that the prior tenant maintained the subject premises as her primary residence from June of 2009 through the date of her passing; and that Respondent remains in the subject premises.
Respondent introduced into evidence the death certificate of the prior tenant, which showed that the prior tenant died on December 29, 2012. The death certificate shows that Respondent's father ("Respondent's father") is the prior tenant's son. Respondent introduced her birth certificate into evidence, which shows that Respondent is the daughter of Respondent's father.
Respondent's father testified that he has lived in a two-bedroom apartment in Tribeca since 1995 ("the other address"); that Respondent is twenty-five years old; that Respondent lived with him from 1995 through 2009; that, in 2009, Respondent was seventeen years old and a senior in a private school on the Upper East Side; that his father ("Respondent's grandfather") lived in the subject premises with the prior tenant until 2006, when Respondent's grandfather died; that the subject premises is a one bedroom three-room apartment; that Respondent moved into the subject premises in 2009 around end of school year in June to help take care of the prior tenant, who was depressed after Respondent's grandfather died; that he has a brother ("Respondent's uncle") who lives in the Building; that the prior tenant did not want Respondent's uncle to help her; that Respondent was the prior tenant's favorite grandchild and all-around favorite family member; that the prior tenant did not eat or take medication after Respondent's grandfather died; that the prior tenant threw a home-care aide out of the subject premises; that Respondent was the only one who could get the prior tenant to go to a doctor, eat, and take medicine; that the prior tenant was happier and her conduct did improve when Respondent moved in; that Respondent moved her personal possessions, including clothing, to the subject premises; that he went to the subject premises at least two times a week in between June of 2009 and December of 2012; and that no one has lived in Respondent's room at his apartment since she moved to the subject premises.
Respondent's father testified that Respondent earned income as a model when she was a minor; that his accountant ("the accountant") did her taxes then, and used the other address on her tax returns; that the accountant continued to file Respondent's tax returns using the other address after Respondent moved to the subject premises; that he noticed that different bills sent to the prior tenant went past-due because she would randomly throw them away; that Respondent started as a full-time student at Georgetown University in 2010; that his concerns about the prior tenant's handling of Respondent's mail caused him to have Respondent's important mail to be sent to the other address; and that he handled the prior tenant's financial affairs from June of 2009 through December of 2012.
Respondent's father testified on cross-examination that he owns his own business; that he uses the accountant for that business; that the accountant did taxes for him and Respondent; that he provided the accountant the information about both him and Respondent for the filing of the taxes; that he mailed Respondent's taxes at the same time that he mailed his taxes; that the other address was Respondent's address on her tax return for 2009; that the other address has two bedrooms; that Respondent's uncle lives alone; that Respondent's uncle lives one floor above the subject premises; that the prior tenant slept on a couch in the living room of the subject premises for fifty-five years, even when Respondent's grandfather was alive; that there is a separate bedroom in the subject premises where he and Respondent's uncle slept when they were children; that the other address is less than a mile, and about fifteen to twenty minutes on foot, from the subject premises; that the prior tenant had had psychiatric conditions throughout her life; Respondent's grandfather's death in 2006 changed her conduct; that it was possible that he drove Respondent to her school on the Upper East Side in 2009; that Respondent was on the basketball team in her senior year that required after-school practice two or three days a week; that the prior tenant slept late in the morning, commonly after Respondent would have to get up for school; that Respondent would return from school around 5 p.m. to 7 p.m.; that the prior tenant would have been alone while Respondent was at school; that the prior tenant had friends and family members who live in the neighborhood of the subject premises; that the prior tenant's daily behavior was different when Respondent lived in the subject premises; that the prior tenant was happier, took better care of herself, and took her medication, and that the subject premises was clean at the time; that Respondent's uncle sometimes received the prior tenant's mail; that the prior tenant was capable on some days and not capable on other days; and Respondent's father testified that their family, including Respondent often spent Thanksgiving, Christmas, and New Year's Eve in Florida with his in-laws but that he sometimes spent Thanksgiving in Manhattan with Respondent's cousin.
Petitioner introduced the prior tenant's bank statements into evidence, which showed the prior tenant writing and signing various checks to pay various bills, from April through July of 2011 and December 2011 and January 2012. Petitioner introduced into evidence W-2 forms and federal and New York State tax returns for Respondent for the years 2010 signed by Respondent on April 5, 2011, 2011 signed on April 8, 2012, and 2012 using the other address as Respondent's address. Petitioner introduced into evidence Respondent's 2013 W-2 form and New York and federal tax returns where the other address is crossed out as Respondent's address and the subject premises is written in.
A resident of a building on the block that the subject premises is on ("the neighbor") testified that she is retired; that she has lived on her block for over sixty years; that she knew the prior tenant and Respondent's grandfather; that Respondent's grandfather died two years before the prior tenant; that the prior tenant died around Christmas of 2012; that the prior tenant lived in a state of tension and agitation after Respondent's grandfather died; that the prior tenant would yell at Respondent's uncle; that she has known Respondent since Respondent was a baby; that she saw Respondent visit the subject premises; that Respondent lived at the subject premises after Respondent's grandfather died; that she knew that Respondent was in high school at the time because her own daughter was also in high school and she saw Respondent wearing her school uniform; that the prior tenant was happier when Respondent moved into the subject premises; that she saw Respondent and the prior tenant dining out at a local restaurant together and Respondent helping the prior tenant get into taxis, Respondent in the window of the subject premises, and Respondent shopping in the neighborhood, on all different days of the week; that she fortnightly visited the subject premises at the prior tenant's invitation after Respondent's grandfather died; that she saw a fold-out couch in the living room there; that she saw a headband that the prior tenant did not wear, a magazine for younger girls, and a knapsack in the subject premises; and that she would see Respondent at the subject premises also. The neighbor testified on cross-examination that Respondent's father asked her to testify; that she has a good grasp of timelines; that she saw Respondent around the subject premises before she understood Respondent to have moved into the subject premises; that she has never been to the other address; that she saw Respondent in a night shirt once at the subject premises after Respondent moved in; and that the prior tenant was a night person who slept late. The neighbor testified on redirect examination that she saw Respondent on the bed in the subject premises.
A handyman who works in the vicinity of the subject premises ("the handyman") testified that he knew the prior tenant and Respondent's grandfather; that he met both of them in 2006; that Respondent's grandfather died in 2009; that they lived in the subject premises; that he gets clients while stationed at a hardware store across the street from the subject premises; that he did renovation work on the same block as the subject premises in 2009 and 2010 that required that he be outside putting materials on trucks; that he also worked at a restaurant three doors away from the subject premises; that the prior tenant had once hired him to do some work in the subject premises; that he remembered her because he is from Barbados and they talked about Barbados; that the prior tenant would frequently greet him after that from her window; that he sometimes helped the prior tenant with packages; that Respondent's uncle contacted him also; that he has known Respondent since she was a little girl; that Respondent started living in the subject premises around 2009 when she was going to school, which he knew because the prior tenant asked him to paint a bedroom and then a living room in the subject premises, which he did; that he saw Respondent coming to the subject premises from school in the evening; that the prior tenant wanted three different shades of paint, which was unusual; that he saw school clothes, lipstick, make-up, a "little girl's book," a tablet, and school books in the subject premises when he painted; that he covered these possessions with a dropcloth when he painted; that he installed a chandelier in the subject premises at Respondent's request; that he observed the prior tenant's clothing on a chair and on a dresser in the living room of the subject premises; that he did other odd jobs in the subject premises in 2010, 2011, and 2012; that the prior tenant was more at peace and happier when Respondent came; and that he saw the prior tenant and Respondent going to the park and shopping together. The handyman testified on cross-examination that he met the prior tenant in 2006; that he is sure that Respondent's grandfather died in 2009; that he met Respondent around 2009 or 2010 or before; that he saw Respondent years before, pretty much every week; that he saw Respondent in August of 2009 — not every day, but pretty often — because she lived in the subject premises; and that he does jobs for Respondent's father, including an $800.00 moving job in 2011, which was big for him, such that he has to watch out for Respondent.
The accountant testified that he has known Respondent's family for thirty years; that he has been preparing tax returns for Respondent's father, both personal and business, for many years; that he prepared the tax returns that Petitioner introduced into evidence; that he put the other address on the returns because Respondent was getting a refund and he was worried about what the prior tenant might do with a refund check if it was sent to the subject premises; and that he advised that the other address could be deleted from the 2013 returns and the subject premises written in. The accountant testified on cross-examination that he did not make an entry for a permanent home address for Respondent that was distinct from a mailing address for the refund because the Department of Finance can erroneously send a check to the permanent address; that he could have had the refund check directly deposited into Respondent's bank account; that Respondent's father was adamant about having the refund check be sent to him; that Respondent got a refund for every year that he prepared a return for her; and that from 2009 through 2013, the refunds added up to several hundred dollars, one time topping one thousand dollars.
Respondent's mother ("Respondent's mother") testified that she lives at the other address; that Respondent lived with her from the time Respondent was born until June of 2009, which was the end of her junior year of high school on the Upper East Side; that the prior tenant had mental issues and was deteriorating, particularly after the prior tenant was widowed, to wit, the prior tenant was not properly cleaning the subject premises, taking her medication, bathing, or eating; that the prior tenant rejected help, like a cleaning woman Respondent's mother had sent; that her family discussed having Respondent move in with the prior tenant; that Respondent was the only one who had a good relationship with the prior tenant; that her own relationship with Respondent was strained at the time; that Respondent did not return to live at the other address after June of 2009; that Respondent visited the other address; that Respondent's commute to school was easier from the subject premises than from the other address; that the prior tenant took better care of herself after Respondent moved in; and that she felt some guilt about having her seventeen-year-old daughter move out of the other address.
Respondent's mother testified on cross-examination that Respondent is her only daughter; that she loves Respondent; that she would do anything to protect Respondent's interests; that Respondent's uncle has lived in the Building for a long time; that the prior tenant and Respondent's uncle were estranged; that the prior tenant's niece ("Respondent's cousin") and nephew live three blocks from the subject premises; that Respondent went overseas to Oxford for two weeks, but she doesn't remember the date; that Respondent returned to the subject premises; that Respondent also spent a week in Tuscany in the summer of 2009; that Respondent's senior year of high school started in September of 2009; that Respondent visited the subject premises often before Respondent moved there; that Respondent's high school had a rigorous schedule that included extracurricular sports; that Respondent would speak to the prior tenant on the phone regularly and saw the prior tenant on weekends; that Respondent would walk from the other address to the subject premises by herself when Respondent reached high school; that Respondent laid out pills and clothes for the prior tenant in the morning before Respondent left for school; that moving out of the other address helped to prepare Respondent for moving away from home for college; that the prior tenant's knowledge that Respondent was coming home meant that the prior tenant couldn't get away with bad behavior as readily as before; that Respondent had to be at her high school by 8:15 a.m., which required that she leave the subject premises by 7:30 a.m.; that school ended at 2:30 p.m.; that Respondent remained at school during the basketball season; that Respondent never slept at the other address after she moved out; that Respondent's mother and Respondent's father turned Respondent's former room at the other address into a den; that Respondent took all of her belongings out of the other address; that after Respondent went to college at Georgetown University, Respondent would come to New York with a friend by car or bus or train once or twice a month during Respondent's freshman and sophomore year; and that the prior tenant deteriorated when Respondent was at college, but that Respondent's belongings in the subject premises made the prior tenant feel better. Respondent's mother testified on redirect examination that Respondent visited but never stayed overnight at the other address when Respondent came home from college; that Respondent's mother's parents live in Florida; and that the family, including Respondent, would go to Florida for holidays.
Respondent's cousin testified that her mother and Respondent's grandfather were siblings; that she has lived at her address nearby the subject premises for thirty-seven years; that she had a close relationship with Respondent's grandfather, who considered her to be a favorite niece; that Respondent's grandfather and the prior tenant were married for forty or fifty years before he died; that Respondent's grandfather took care of most of their household issues; that the prior tenant could not handle herself well when Respondent's grandfather died; that she frequently saw the prior tenant from 2006 through 2009; that the prior tenant didn't take care of herself or the subject premises during that time; that the prior tenant did not allow cleaning personnel, visiting nurses, or home attendants into the subject premises; that the prior tenant slept on a pull-out couch in the living room of the subject premises; that Respondent and the prior tenant had a very close relationship from the time that Respondent was a little girl; that members of their family would say that the way to the prior tenant's heart was through Respondent, meaning that the prior tenant was more likely to do something, like go to a wedding or a dinner, if Respondent asked her to; that Respondent lived in the subject premises as of summer of 2009, which Respondent's cousin knew because she visited the subject premises at this time and saw Respondent's clothes and shoes there and that the subject premises looked different; that she had spoken to members of their family about how it was good for the prior tenant that Respondent lived there; that she saw Respondent at the subject premises once or twice a week after Respondent moved there; that the prior tenant was more happy and comfortable after Respondent moved in; that after Respondent moved into the subject premises, the prior tenant's medications were much better organized, the kitchen was cleaner, the dishes were more likely to be washed, and more vacuuming had been done; that, after Respondent moved in, the prior tenant would offer her tea, while before, the prior tenant only offered coffee; that Respondent's cousin observed yogurt and salads and healthy cereals in the subject premises after Respondent moved in that she had not observed before; that Respondent visited once or twice a month when she was at college; that the prior tenant was very proud that Respondent had gotten into Georgetown; that the prior tenant wasn't worried about being alone when Respondent went to college; and that she saw Respondent at holidays and birthdays.
Respondent's cousin testified that she is Respondent's father's first cousin, which means that Respondent is first cousin, once removed, of Respondent's cousin. The Court refers to her as "Respondent's cousin" for prosaic convenience.
Respondent's cousin testified on cross-examination that she thought that she invited Respondent, Respondent's father, Respondent's mother, and the prior tenant to her house for Thanksgiving, although she didn't remember the year; that the clothes she saw in the subject premises were basketball uniforms from Respondent's high school; that sometimes when she visited she saw Respondent sleeping in a bed, which she didn't see before Respondent moved in; and that the prior tenant was sad when Respondent went to college even though she was also proud, which was a reason for her to stay engaged. Respondent's cousin testified on redirect examination that sometimes Respondent's father went to Florida to see Respondent's mother's family on Thanksgiving and that she saw Respondent in New York on Mother's Day.
A server manager at a restaurant on the same block as the Building ("the restaurant manager") testified that he has worked at the location for twenty years; that he made weekly food deliveries to the subject premises at the prior tenant's request starting around 2009, when he understood that Respondent's grandfather died; that he knows Respondent; that he saw Respondent many times at the subject premises, often enough to see that Respondent lived at the subject premises; that Respondent paid him for deliveries; that the prior tenant and Respondent ate at his restaurant as well; that he observed them walking around the street at different times of the day; that he would say hello to them when he saw them walking around even if they weren't coming to his restaurant; that the prior tenant particularly liked a roast chicken dish with shallot sauce and mashed potatoes and cheesecake, but hated sauce on the cheesecake; that he was the only one who would make deliveries to the subject premises because most of his co-workers didn't like the prior tenant; that he observed Respondent in pajamas and slippers, or barefoot, in the subject premises when he made deliveries; and that he saw Respondent around 2011 for the first time. The restaurant manager testified on cross-examination that the prior tenant never let him into the subject premises; that he cannot remember how many times he saw Respondent in the subject premises in 2009; that most of the time he would deliver dinner to the subject premises, not lunch; that he did not remember how much time passed in between Respondent's grandfather dying and when he started seeing Respondent; and that Respondent ordered quiche lorraine and croque monsieur.
Respondent's uncle testified that he lives in a different apartment in the Building; that he used to lived with Respondent's grandfather and the prior tenant, who were his parents; that Respondent's father is his brother; that his apartment is one flight above the subject premises; that when Respondent's grandfather died in 2006, the prior tenant became bitter, had mood swings, and was dissatisfied with everything Respondent's uncle tried to do for her; that the prior tenant was going downhill, not keeping herself or the subject premises clean; that she would leave a pot on a flame on the stove with nothing in the pot; that the prior tenant was taking more medication than she should have; that he and Respondent's father tried to have a social worker intervene, but that the prior tenant rejected the social worker; that he told Respondent's father that he couldn't deal with the prior tenant anymore; that he and Respondent's father started talking about having Respondent live with the prior tenant; that Respondent moved into the subject premises in June or July of 2009; that the subject premises then got cleaner and the prior tenant started taking better care of herself, using proper hygiene and getting her hair done; that he sometimes took the prior tenant to get her hair done in Chinatown; that the prior tenant slept on a pull-out couch; that Respondent hung pictures up and put flowers into the bedroom in the subject premises when she moved in; that the prior tenant would light up when Respondent showed up; that he saw Respondent's clothes and schoolbooks at the subject premises after Respondent moved there; that his role diminished when Respondent moved in; that, after Respondent went to college, she came to the subject premises on holidays and weekends; that the prior tenant would always know when Respondent was coming back and was excited; and that he saw Respondent at the subject premises when the prior tenant died.
Respondent's uncle testified on cross-examination that he has had issues with Petitioner over late payments of rent and eviction proceedings in Housing Court; that Respondent's father had previously given him $8,000 to pay rent arrears; that he had paid Respondent's father half of that money back; that he does not talk to Respondent's father; that he and Petitioner's attorney talked about this matter during settlement of a different summary proceeding between Petitioner and Respondent's uncle, although Respondent's uncle denied telling Petitioner's attorney that, "if I testified you know what I would have to say"; that Respondent visited the prior tenant often before Respondent moved in; that he observed Respondent moving baggage into the subject premises in June of 2009; that Respondent moved her personal property in little by little; that Respondent went to Britain at some point around that time; that Respondent travels a lot; that Respondent had the subject premises painted pink; that Respondent went to college in 2010; that he did not see Respondent at Thanksgiving that year, when he was at Respondent's cousin's home; that he did not remember how many times he saw Respondent in her first year at college, but that it was more than three times; that he was at the prior tenant's side when the prior tenant died at a nursing facility; that the prior tenant would occasionally get mail; that he had a key to the mailbox for the subject premises; that he did not have an arrangement with the prior tenant about mail; that he was not aware of the prior tenant throwing mail away; and that Respondent would shop for food for the subject premises on a day to day basis and that he did shopping for longer-term needs for the subject premises. Respondent's uncle testified on redirect examination that Petitioner's attorney had spoken with him about subpoenaing him to testify for Petitioner at this trial, but that Petitioner never did.
Respondent testified that she is an only child; that she had lived at the other address starting when she was three years old; that the other address has two bedrooms; that she had her own bedroom there; that she was the prior tenant's favorite grandchild; that the subject premises is within walking distance of the other address; that she could make that walk by the time she was in high school; that she visited the subject premises once a week; that she spoke to the prior tenant on the phone several times a week; that Respondent's grandfather died in July of 2006; that the prior tenant cried, was lonely, and became dependent on Respondent after that; that the prior tenant fought with Respondent's uncle; that her family made a decision that it would be good for her to move in with the prior tenant; that Respondent framed the decision with the prior tenant as a favor to Respondent, to get Respondent away from Respondent's mother, who the prior tenant disliked; that Respondent was a moody teenager at the time, butting heads with Respondent's father and Respondent's mother; that she moved to the subject premises with the prior tenant in June of 2009 when was seventeen years old; that Respondent's mother and Respondent's father drove Respondent's school uniform, clothes, school books, pictures, and toiletries to the subject premises; that she did not leave anything significant in the other address; and that Respondent's father and Respondent's mother turned Respondent's former room at the other address into a den/guest room.
Respondent introduced into evidence photographs of her bedroom at the other address as it looked after she moved out. The photographs depict a room that does not look like a bedroom and some photographs show possessions that were not Respondent's. Respondent testified on voir dire that she does not know what date the photograph was taken.
Respondent testified that in July of 2009 she attended a three-to-four-week program in Oxford, a trip that she had discussed with the prior tenant; that the prior tenant was nervous but proud of Respondent; that she returned to the subject premises at the end of July of 2009 and stayed with the prior tenant there; that her senior year of high school started in September of 2009; that her regular school day last from 8 a.m. through 3 p.m., but she would stay later for extracurricular activity; that she did not receive packages at the subject premises because the mailbox there is too small, because the prior tenant behaved erratically with mail, sometimes throwing her own mail away, and because that Respondent's uncle lives in a different apartment and has the same last name as Respondent, so mail could get misplaced; that the subject premises is approximately 275 to 300 square feet; that the bedroom of the subject premises had a twin bed and armoires; that the prior tenant did not sleep in the bedroom; that Respondent had the bedroom painted and installed a chandelier in the subject premises; that the prior tenant was not getting out of bed until four o'clock in the afternoon and was not properly medicating herself at the time Respondent moved in to the subject premises; that Respondent's presence in the subject premises meant that the prior tenant knew that she had to get out of bed and appropriately medicate herself; that the prior tenant was not so lonely; that Respondent and the prior tenant watched television together at night; that the prior tenant was often asleep when Respondent left for high school in the mornings; that the prior tenant would drink coffee, but she would drink tea; that she kept her school materials, computer, speakers, picture frames, knickknacks, and toiletries in the subject premises when she was in high school; that she kept food in the refrigerator that she liked to eat, such as fruit, yogurt, and salad fixings; that the prior tenant let her do whatever she wanted; that she was engaged in a number of extracurricular activities at school; that Respondent and the prior tenant would spend some time with Respondent's cousin if they had a good day; that she applied for Georgetown University in October of 2009; and that she was accepted into Georgetown University.
Respondent introduced into evidence her application to Georgetown University, which Respondent testified that she filled out on an online portal. Respondent listed the other address as her address on the application. Respondent testified that she was still living at the other address when she started filling out the application. The application references standardized tests taken in May, September, and October of 2009. Respondent listed the other address as her "mailing" address and the subject premises as her "permanent" address. One entry in this portal indicates the subject premises as Respondent's "permanent" address "from" November 18, 2009. This entry is on the same page as a box that says, "Last Update" was by a user identified as "SSBUSER" with an "activity date" of November 6, 2013. Another entry in this portal shows that the other address was inactivated as Respondent's "permanent address" "from" November 18, 2009, with the same user and activity date of November 6, 2013 as the former entry. Respondent introduced into evidence a letter from the Manager of Academic Records at Georgetown University dated September 17, 2014, that states that Respondent listed the subject premises as her permanent address on November 18, 2009.
Respondent testified that she graduated from high school in 2010; that, at the time that her 2010 income tax return was filed in April of 2011, she was enrolled at Georgetown University; that she stayed at a dormitory at Georgetown University; that the accountant took care of her taxes; that she only signed returns that Respondent's father and the accountant would present to her; that the returns for 2010, 2011, and 2012 use the other address because Respondent's father handled everything; that she and Respondent's father didn't trust the prior tenant to appropriately handle her mail; that the prior tenant let mail pile up sometimes and Respondent found piles of mail in weird places; and that packages delivered to the subject premises might be left in a hallway in the common area of the Building if the prior tenant did not hear the buzzer. Respondent introduced into evidence utility bills, which as of 2012 still used the first initial of Respondent's grandfather, who had been deceased for several years at that point, including a shut-off notice from Con Edison from February of 2012. Respondent testified that she changed the address on her taxes in 2013 to the subject premises because the prior tenant was deceased at that point; that tuition bills and financial aid information went to the other address because Respondent's father paid the tuition; that she never dealt with tuition; that she interned at American Eagle, located in Midtown Manhattan, in the summer of 2010 and the following summers; and that she lived at the subject premises when she worked there; that her hours went from 9 or 10 a.m. to 6 or 7 or 8 p.m.
Respondent introduced into evidence proof of her voter's registration, which she signed on April 28, 2010, thirteen days after turning eighteen years old, which shows the other address as Respondent's address. Respondent testified that she was a senior in high school at that time and that a teacher of hers filled out the form to ease students' registration to vote and that she forgot that her teacher had done that and registered to vote again. A subpoena of the Board of Elections of the City of New York in evidence shows a voter's registration of Respondent with a registration date of August 3, 2010 using the subject premises as Respondent's address.
Respondent introduced into evidence records from the New York State Department of Motor Vehicles ("DMV") which show that Respondent obtained a permit on September 3, 2009 using the other address as Respondent's address. The records show that Respondent's address with DMV changed to the subject premises on May 17, 2013, after the prior tenant's passing. Respondent testified that she thought that addresses on all of her important documents had to be consistent.
Petitioner read into the record Respondent's deposition testimony that the course she took at Oxford University in 2009 was a six-week course, lasting from June of 2009 through August of 2009.
Respondent testified on cross-examination that she moved her personal property into the subject premises before she went to Oxford because she had the time and so the prior tenant would know that she was going to be in the subject premises; that she considered applying to colleges in New York, but she got into Georgetown early and Georgetown was her dream school; and that, after she started at Georgetown in August of 2010, she returned to New York for one night for Respondent's mother's birthday in September of 2010. Petitioner read into the record Respondent's deposition testimony that she came back to New York for the night of Thanksgiving break and sometimes during a Christmas break. Respondent testified on cross-examination that she did not remember if she came to New York for a day in 2010 since it was eight years before her testimony at trial; that she was in New York on the night before Thanksgiving of 2010; that she spent that day with the prior tenant; and that she and respondent's father flew from New York to Florida on Thanksgiving day of 2010. Petitioner read into the record Respondent's deposition testimony to the effect that she went straight back to Georgetown from Florida; that she came to New York shortly before Christmas 2010, and then went to Florida on December 26, 2010, that she got to the airport by being picked up by a car service at the subject premises, and that she came from Florida to the subject premises after New Year's 2011 before returning to Georgetown. Respondent testified on cross-examination that she stayed at the subject premises when she came to New York.
Respondent testified on cross-examination that she went to Florida in February and March of 2011. Petitioner introduced into evidence flight itineraries corroborating this testimony. Respondent testified on cross-examination that she might have come to New York for Easter in 2011. Petitioner read into the record Respondent's deposition testimony that she did not come to New York during the spring 2011 semester.
Respondent testified on cross-examination that her sophomore year at Georgetown started with the end of August of 2011; that she came to New York on the day before Thanksgiving of 2011; that she flew from New York to Florida on Thanksgiving day 2011; and that she returned to Georgetown thereafter. Petitioner introduced into evidence flight itineraries corroborating this testimony. Respondent testified on cross-examination that she was either in New York on Christmas 2011 or for New Year's 2012. Petitioner introduced into evidence a flight itinerary showing that Respondent flew from Washington D.C. to Florida on December 20, 2011. Respondent testified on cross-examination that she probably flew to New York before New Year's Eve; that she came to New York for Easter 2012; and that she went to the Dominican Republic for spring break in 2012. Petitioner introduced into evidence a flight itinerary showing that Respondent flew from Washington D.C. to the Dominican Republic on March 4, 2012 and returned on March 9, 2012. Respondent testified on cross-examination that she came to New York in 2012 after taking finals; that she studied abroad in Dublin for her fall 2012 semester; and that she did not come to New York during that semester.
Respondent testified on cross-examination that she might have taken weekend trips from Washington D.C. to New York by bus, for which she paid cash; that she spoke to the prior tenant frequently; that she took the prior tenant to the doctor, the park, restaurants, and family events; that the prior tenant had multiple personalities; that the prior tenant could be nice to Respondent in the morning and mean in the evening; that sometime the prior tenant would be awake in the mornings; that the prior tenant would drink bottles of cough syrup, although not as much as when Respondent moved in; that she kept bottles of pills on the kitchen table for the prior tenant; that Respondent would often eat a yogurt in the morning; that she ate oatmeal for breakfast sometimes, and if she did, she would make enough for the prior tenant; that, even when she was away for college, her personal property was in the subject premises, which was a comfort to the prior tenant; and that she did not send packages to Respondent's uncle because Respondent's uncle and Respondent's father do not have a good relationship.
Petitioner introduced into evidence records from the New York City Department of Finance pertaining to a subsidy that the prior tenant had for the subject premises known as a Senior Citizen Rent Increase Exemption ("SCRIE") as provided by N.Y.C. Admin. Code § 26-509. The record shows that, on July 9, 2010 and November 12, 2011, the prior tenant indicated that she lived alone.
In order to succeed to the prior tenant's rent-controlled tenancy, Respondent must prove that she is the prior tenant's family member and that she resided with the prior tenant as her primary residence for two years before the prior tenant's permanent vacatur. 9 N.Y.C.R.R.§ 2204.6(d)(1). The Court finds that Respondent's birth certificate and the prior tenant's death certificate prove that Respondent is Respondent's father's daughter and that Respondent's father is the prior tenant's son, therefore proving that Respondent is the prior tenant's granddaughter, and therefore the prior tenant's family member as defined by 9 N.Y.C.R.R. § 2204.6(d)(3)(a). As there is no dispute that the subject premises was the prior tenant's residence for the two years before her death, the outcome of this proceeding turns on the question of whether Respondent maintained the subject premises as her primary residence from December 29, 2010 through December 29, 2012, the date of the prior tenant's passing.
Documentary evidence typically probative of primary residence, such as tax returns, driver's licenses, and voter's registration, places Respondent at the other address, not the subject premises during this two-year period. Glenbriar Co. v. Lipsman , 5 NY3d 388, 392-393 (2005). However, while documentary evidence can be significant in determining primary residence, it is not essential, and it does not necessarily preponderate over testimonial evidence, 23 Jones St. Assocs. v. Keebler-Beretta , 284 AD2d 109 (1st Dept. 2001), 300 E. 34th St. Co. v. Habeeb , 248 AD2d 50, 55 (1st Dept. 1997), Lenoxville Assocs., L.P. v. Downs , 40 Misc 3d 138(A) (App. Term 1st Dept. 2013), when the testimony is probative of both a substantial physical nexus to the regulated premises and to an explanation for the appearance of another address on documentary evidence. 310 E. 23rd LLC v. Colvin , 41 AD3d 149 (1st Dept. 2007), 710 Madison Ave. LLC v. Hicks , 56 Misc 3d 131(A)(App. Term 1st Dept. 2017).
Respondent introduced at trial testimonial evidence of uncommonly expansive breadth and depth. Witnesses in the best position to know where someone lives are often close enough to that person to be potentially susceptible to bias. See Coleman v. New York City Transit Authority , 37 NY2d 137, 142-143 (1975). Conversely, truly disinterested witnesses may lack substantial knowledge of an occupant's whereabouts. Respondent addressed this conundrum with a panoply of eight witnesses ranging from close family members to casual acquaintances.
One of Respondent's witnesses, the accountant, had no personal knowledge of Respondent's occupancy of the subject premises.
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Respondent and her family members, such as Respondent's father, Respondent's mother, Respondent's cousin, and Respondent's uncle, consistently testified that she moved into the subject premises in June of 2009, testimony consistent with the testimony of the neighbor, the handyman, and the restaurant manager, who had no discernible stake — emotional or otherwise — in the outcome of this proceeding. Not only did the neighbor, the handyman, and the restaurant manager testify as such, they also testified to idiosyncratic details probative of Respondent's residency at the subject premises. The neighbor saw Respondent in the window of the subject premises, saw Respondent in a night shirt at the subject premises, and saw Respondent's personal property at the subject premises, like a headband, a magazine for younger girls, and a knapsack. The handyman painted the subject premises and installed a chandelier there at Respondent's request, saw Respondent coming to the subject premises from school in the evening, and saw school clothes, lipstick, make-up, a "little girl's book," a tablet, and school books at the subject premises. The restaurant manager made weekly food deliveries to the subject premises at the prior tenant's request starting around 2009, observed Respondent in pajamas and slippers, or barefoot, in the subject premises when he made deliveries, and delivered dishes to Respondent at the subject premises, remembering that she ordered quiche lorraine and croque monsieur.
Respondent's family members offered similarly detailed testimony. The prior tenant offered Respondent's cousin tea, a change from the coffee that the prior tenant exclusively offered Respondent's cousin before June of 2009. Respondent's cousin saw yogurt and salads and healthy cereals in the subject premises she had not seen before June of 2009 and saw Respondent sleeping in a bed in the subject premises. Respondent's uncle observed that Respondent hung up pictures and put flowers in the subject premises, saw Respondent's clothes and schoolbooks at the subject premises and saw that Respondent had a bedroom in the subject premises painted pink. The tense role that Respondent's uncle played vis a vis the prior tenant diminished when Respondent moved in. Respondent, Respondent's father, Respondent's mother, Respondent's cousin, Respondent's uncle, and the neighbor consistently testified that the prior tenant was happier upon Respondent's presence at the subject premises, such that she took better care of herself and the subject premises and appropriately took her medication.
Respondent and Respondent's father testified that Respondent continued to use the other address for various mailing purposes because the prior tenant did not reliably handle her own mail, much less Respondent's, testimonial evidence corroborated by objective evidence, to wit, the shut-off notice that Con Edison sent the prior tenant.
Petitioner made much of Respondent's absences from the subject premises during the school years when she was an undergraduate at Georgetown University. However, Respondent's documented and unchallenged status as a full-time student at Georgetown does not affect her co-residency of the subject premises with the prior tenant in the two years before the prior tenant's death. 9 N.Y.C.R.R. § 2204.6(d)(1)(ii). Wherever else Respondent may have spent her breaks during the school year, Respondent testified that she had summer internships in Midtown Manhattan during the summers, living at the subject premises at the time, testimony which, to be repetitive, is consistent with the testimony of disinterested witnesses observing the details showing Respondent's occupancy of the subject premises. While Petitioner's dissection of Respondent's whereabouts during spring breaks and Christmas breaks from Georgetown illustrated the level of information Petitioner received in discovery, Petitioner did not similarly challenge Respondent's testimony about her presence at the subject premises during the summers of 2011 and 2012, stints of time more significant than the one- or two-week breaks from school.
The Court can only find that the documentary evidence outweighs testimonial evidence of the texture and volume articulated above by finding that so many witnesses got so many consistent details wrong, or that Respondent somehow orchestrated perjury among her parents, her cousin, her uncle, a manager of a local restaurant, a neighbor, and a local handyman, a proposition that defies common sense. The Court finds that this testimonial evidence proved that Respondent lived at the subject premises from June of 2009 until the prior tenant's passing, with absences therefrom occasioned by Respondent's enrollment at Georgetown, an expressly recognized excuse from occupancy for a claimant to succession. Respondent's summer internship and maintenance of her personal property at the subject premises as a comfort to the prior tenant, as testified to by Respondent and Respondent's mother, demonstrates an "ongoing physical nexus" at the subject premises during Respondent's matriculation at Georgetown. Second 82nd Corp. v. Veiders , 146 AD3d 696 (1st Dept. 2017), 710 Madison Ave. LLC , supra , 56 Misc 3d at 131(A).
The Court further notes that the prior tenant's apparent improprieties in reporting her household composition to the New York City Department of Finance for SCRIE purposes does not impair the merits of Respondent's succession claim, Levine v. Costanzo , NY L.J. Feb. 17, 1994 at 24:3 (App. Term 1st Dept.), leave to appeal denied , 1994 NY App. Div. LEXIS 8461 (1st Dept. 1994), I.N. Covington Corp. v. Surdo , N.Y.L.J. July 8, 1998 at 31:4 (Civ. Ct. NY Co.), which rest upon Respondent's family relationship and co-residency with the prior tenant.
Accordingly, the Court finds that Respondent has proven on the merits that she had been a family member of the prior tenant and co-resided with the prior tenant at the subject premises for the two years before the prior tenant died. Respondent therefore is entitled to succeed to the prior tenant's tenancy. The Court therefore dismisses the petition with prejudice.
The parties are directed to pick up their exhibits within thirty days or they will either be sent to the parties or destroyed at the Court's discretion in compliance with DRP-185.
This constitutes the decision and order of this Court.