Summary
In Marine Terrace, the Appellate Term 2nd Department held "the evidence is clear and convincing that occupant resided in the apartment for many years with the knowledge of landlord and that his efforts and those of his mother to add him to the lease were frustrated by landlord.
Summary of this case from Towers v. GreenOpinion
No. 2012–1559 Q C.
2014-08-18
MARINE TERRACE ASSOCIATES, Respondent, v. George KESOGLIDES, Appellant, and “John Doe” and “Jane Doe,” Undertenants.
Present: PESCE, P.J., WESTON and SOLOMON, JJ.
Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Michael J. Pinckney, J.), dated October 31, 2011. The final judgment, after a nonjury trial, awarded landlord possession in a licensee summary proceeding.
ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition.
In this licensee summary proceeding (RPAPL 713[7] ) commenced in 2007, landlord seeks to recover an apartment located in a project-based Section 8 building which is financed by the United States Department of Housing and Urban Development (HUD). Landlord alleges that occupant entered into possession of the apartment as a licensee of his mother, who was the tenant of record; that occupant's mother is no longer entitled to possession because she died in September 2006; and that occupant's mother was the only person listed on the recertification documents. After a nonjury trial, the Civil Court found that occupant was a licensee and that he “is not eligible for succession rights as he was not listed on the annual recertifications/leases submitted by the former tenant.” In reaching this conclusion, the court relied on chapter 3, section 3–16(B)(1) of the HUD Handbook (United States Dept. of Hous. & Urban Dev. Handbook 4350.3, REV–1), as amended in June 2007, which makes it a requirement that an occupant seeking succession rights “be a party to the lease when the family member leaves the unit.” The court further found that, even if the failure to list his name on the recertifications was only one factor to be considered in determining the succession-rights issue, occupant had not established his entitlement to succession rights.
At the outset, we note that, inasmuch as the tenant of record died in September 2006, the issue of whether occupant is entitled to succession rights must be determined based on the law as it stood at that time, which is when occupant's succession rights, if any, would have vested ( see 245 Realty Assoc. v. Sussis, 243 A.D.2d 29, 33 [1998] [succession rights are created upon “the death of the tenant of record”] ). However, the provision in effect at the time the tenant died, which was then found in chapter 3, section 3–15(B)(1) of the 2003 HUD Handbook, contained the same requirement as the June 2007 Handbook that an occupant claiming succession rights be a party to the lease.
“In reviewing a determination made by a hearing court, the power of this Court is as broad as that of the hearing court and it may render the determination it finds warranted by the facts, taking into account that, in a close case, the hearing court had the advantage of seeing and hearing the witnesses” ( Doubletree Hotel Tarrytown v. Chacko, 115 AD3d 703, 704 [2014] ).
To the extent that the Civil Court reviewed the evidence introduced at trial, we find that its analysis was flawed. The court failed to consider the testimony of several witnesses, failed to properly evaluate the equivocal quality of the documentation submitted in support of landlord's position, and failed to credit occupant's documentation regarding his residency in the apartment, which included many years of tax returns, social security statements and letters sent by landlord to occupant at the apartment.
The written statement from occupant in 1988 that he no longer resided in the apartment with his mother, specifically referred to in the Civil Court's decision, was extremely remote in time. Occupant's residence in the apartment in the immediate period prior to September 2006, when the tenant of record passed away, was at issue in this matter. Although documents and evidence prior to that period may have some relevance to the issue of occupant's residence during the relevant period, a document from 15 years prior to the period carries little weight. While a garage lease dated December 2004, which showed a different address for occupant, played an important part in the Civil Court's consideration, it was equivocal, at best, as it either violated the project's policy of letting garage spaces only to residents, or it represented an implicit acknowledgment of occupant's residency in the apartment. Occupant's testimony that he was compelled to provide the management office with an off-site address in order to resolve the issue and retain the parking lease was unrefuted by landlord's witness.
The unrefuted testimony also shows that numerous requests were made by the tenant and occupant to have occupant's name added to the recertifications as a resident of the unit and that these requests were not properly addressed by landlord. In fact, the evidence shows that the requests were actively frustrated by landlord. This is most clearly shown by the testimony of occupant's sister, the tenant's daughter, that, on two separate occasions, landlord refused to permit her to accompany her barely literate mother into the management office to translate and assist in the effort to include occupant's name on the lease for the unit. In addition, an independent witness, a neighbor and friend of the deceased tenant, testified that she saw occupant almost daily and that he lived in the apartment. Occupant's brother and sister both testified that he resided in the apartment with the tenant.
The evidence is clear and convincing that occupant resided in the apartment for many years with the knowledge of landlord and that his efforts and those of his mother to add him to the lease were frustrated by landlord. Under these circumstances, landlord may not invoke the absence of occupant's name on the lease as a basis for denying him succession rights ( see 2013 Amsterdam Ave. Hous. Assoc. v. Estate of Wells, 10 Misc.3d 142[A], 2006 N.Y. Slip Op 50084 [U] [App Term, 1st Dept 2006] [the absence of a remaining family member's name on the lease or recertification documents was not fatal to a succession-rights claim, where the remaining family member could establish a bona fide co-occupancy with the tenant of record at the time of the latter's death], citing Matter of Manhattan Plaza Assoc., L.P. v. Department of Hous. Preserv. & Dev. of City of NY, 8 AD3d 111 [2004]; see also Murphy v. New York State Div. of Hous. and Community Renewal, 21 NY3d 649 [2013] [adopting a similar rule for succession rights in the Mitchell–Lama context]; Gutierrez v. Rhea, 105 AD3d 481, 485 [2013] [“NYCHA's knowledge that (an occupant) was living in the apartment for a substantial period of time can be an important component of the determination of a subsequent RFM application”] ). Consequently, we hold that occupant was entitled to succession rights and the petition should have been dismissed. PESCE, P.J., and SOLOMON, J., concur.
WESTON, J., dissents in a separate memorandum. WESTON, J., dissents and votes to affirm the final judgment in the following memorandum:
Despite ample evidence supporting the Civil Court's determination that occupant did not reside in the apartment prior to his mother's death, the majority reverses the Civil Court's determination, invoking its authority to conduct an independent review of the facts. In doing so, the majority categorically dismisses the Civil Court's principled analysis as “flawed,” in favor of the self-serving evidence presented by occupant. In my opinion, the Civil Court's decision was based upon a fair interpretation of the evidence, and I perceive no basis to disturb it. Accordingly, I respectfully dissent.
It is well established that a verdict should not be set aside as against the weight of the evidence, “unless the evidence so preponderated in favor [of the unsuccessful party] that the [finder of fact] could not have reached the verdict by any fair interpretation of the evidence” ( Acosta v. City of New York, 84 AD3d 706, 708 [2011]; see Barbieri v. Vokoun, 72 AD3d 853, 855 [2010]; Nicastro v. Park, 113 A.D.2d 129, 134 [1985] ). In determining whether to set aside a verdict as against the weight of the evidence, an appellate court should accord great deference to the finder of fact, “especially where the findings of fact involve issues of credibility” ( Tripp v. B. Reitman Blacktop, Inc., 188 Misc.2d 317, 318 [App Term, 9th & 10th Jud Dists 2001]; see Nicastro v. Park, 113 A.D.2d at 136).
In this case, any conflicts in the evidence merely presented an issue of credibility to be resolved by the Civil Court as the finder of fact ( see Emeagwali v. Brooklyn Hosp. Ctr., 60 AD3d 891, 892 [2009] ). The Civil Court, having had the opportunity to hear the witnesses' testimony and observe their demeanor, was in a far better position than this court to resolve any conflicts in the testimony. The fact that this court is vested with the power to make its own factual assessment does not mean that this court should or “can freely interfere with any [determination] that is unsatisfactory or with which it disagrees” ( Nicastro v. Park, 113 A.D.2d at 133). Such power must be exercised sparingly, “for in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable ... verdict” ( id.).
Applying these principles here, and giving due deference to the Civil Court's factual assessment, I conclude that the Civil Court's decision to grant possession to landlord was supported by a fair interpretation of the evidence. The unrefuted proof shows that, in 1988, occupant relinquished the apartment to his mother, and that she remained there as the sole tenant of record until her death in 2006. In the 18 years that she resided there, occupant's mother never listed her son, or his income, on any of the apartment's leases or recertifications. Moreover, the garage lease signed by occupant for the two-year period immediately preceding his mother's death lists another address as his residence. Occupant listed yet another address on the application he submitted for the subject apartment in September 2006. The fact that occupant submitted tax returns with his mother's address and that both his sister and brother testified that he lived there does not render the Civil Court's analysis “flawed,” as the majority states. The Civil Court clearly considered this evidence in its decision and presumably rejected it as not credible. Indeed, occupant's sister's testimony was self-serving, based largely on hearsay, and carried little weight in light of the fact that she resided in Greece at the time in question.
In any event, even if this evidence were accorded greater weight than it deserves, it still does not warrant a reversal. The Civil Court awarded landlord possession on the ground that the HUD Handbook precludes occupant from asserting a succession claim where occupant was not on the lease and was not included on the annual recertifications ( see HUD Handbook ch 8, § 3–16[B][3] ). Thus, even if occupant resided at the subject apartment, this alone does not entitle him to succession since, concededly, he was never listed on the annual recertifications preceding his mother's death. As the Civil Court found, occupant—having been a prior tenant of record—was aware of the annual recertification requirements, but opted to relinquish the apartment, since his occupancy could have resulted in an increase in his mother's share of the rent.