Opinion
67112/2018
10-21-2019
SF 878 E. 176TH, LLC, Petitioner (Landlord), v. Elvi MOLINA, Jennifer Molina, "John Doe" and "Jane Doe", Respondents (Occupants).
Petitioner's Attorney: Todd Rothenberg, Esq., 271 North Avenue, Suite 115, New Rochelle, NY 10801, (914) 235-7234 Respondents' Attorneys: Mirkin & Gordon, P.C., 98 Cutter Mill Road, Great Neck, New York 11021, (516) 466-6030
Petitioner's Attorney: Todd Rothenberg, Esq., 271 North Avenue, Suite 115, New Rochelle, NY 10801, (914) 235-7234
Respondents' Attorneys: Mirkin & Gordon, P.C., 98 Cutter Mill Road, Great Neck, New York 11021, (516) 466-6030
Diane E. Lutwak, J.
BACKGROUND
This holdover proceeding was commenced by SF 878 E. 176th, LLC (Petitioner) to recover possession of Apartment 2-D at 878 East 176th Street, Bronx, New York 10460 (the subject premises) from occupants Elvi Molina and Jennifer Molina (Respondents) based on the allegation that they are licensees of the former Rent Stabilized tenant of record Maria Molina, who permanently vacated and moved to Tennessee. Alternatively, Petitioner claims Respondents are squatters. Respondents, represented by counsel, served and filed an answer admitting and denying various allegations in the petition and raising three affirmative defenses: First, that Respondents are entitled to succeed to Maria Molina's Rent Stabilized tenancy as they are her immediate family members (son and daughter-in-law) who lived with her in the subject premises as their primary residence for a period in excess of two years prior to her vacatur of the apartment. In their Second and Third Affirmative Defenses, Respondents claim tenancy rights under the legal doctrines of laches and equitable estoppel based upon Petitioner's and/or its predecessor-in-interest's knowledge of their occupancy since 2007 and acceptance of rent payments from them since 2014.
TRIAL
Petitioner's Case
Petitioner proved certain elements of its case through documents admitted into evidence on consent of the parties. Petitioner is the owner of the premises pursuant to a deed dated August 23, 2016 (Petitioner's Exhibit 1). The building has 21 apartments and is registered as a multiple dwelling with the City of New York; the multiple dwelling registration statement lists Moshe Stahl as Managing Agent and Jissachar Dov Fessel as Head Officer (Pet's Ex 2). The apartment is registered with the New York State Division of Housing and Community Renewal (DHCR) as Rent Stabilized with Maria Molina listed as the tenant of record in every year from 1984 through 2018 (Pet's Ex 3). As reflected in a rent ledger for the subject premises, unpaid rent and/or use and occupancy billed at the monthly rate of $604.97 and late fees billed at the monthly rate of $25 totaled $12,823.95 through August 2019 (Pet's Ex 4).
Also admitted into evidence on consent were:
• Three Rent Stabilized renewal leases on single-page DHCR RTP-8 forms between Maria Molina and three different predecessors-in-interest to Petitioner (Pet's Ex 5):
1. Dated 10/15/09 from owner Jericho LLC for the two-year period of 1/1/10- 12/31/11: with a monthly rent of $542.38 (calculated by applying a 6% increase to the prior rent of $511.68), a tenant's signature dated 11/23/09 and an unidentified and undated owner's signature.
2. Dated 1/3/12 from receiver Gerald Goldsmith, c/o Kinsey Equities LLC for the two-year period of 1/1/12-12/31/13: with a monthly rent of $581.70 (calculated by applying a 7.25% increase to the prior rent of $542.38), a tenant's signature dated 1/19/12 and an unidentified signature dated 2/6/12 for the receiver.
3. Dated 2/17/14 from owner 878 E. 176 St. Owner LLC for the 23-month period of 4/30/14-3/31/16: with a monthly rent of $604.97 (calculated by applying a 4% increase to the prior rent of $581.70), a tenant's signature dated 3/26/14 and an unidentified owner' signature dated 3/17/14.
• Transcript of deposition of Respondent Jennifer Molina taken on August 16, 2018, with accompanying errata sheet, both signed and certified on October 31, 2018, from a prior holdover proceeding Petitioner commenced and then discontinued against Maria Molina, L & T Index # 11106/2018 (Pet's Ex 6).
• DHCR "Tenant's Complaint of Owner's Failure to Renew Lease" following expiration of the last lease renewal on 3/31/16, with a tenant's signature dated 11/14/16 and a cover page dated 1/27/17 (Pet's Ex 7).
• Letter dated April 4, 2017 to Petitioner from Hazel Miura, Director of Housing & Community Development at Neighborhood Initiatives Development Corporation (Pet's Ex 8) requesting a renewal lease on behalf of Respondent Elvi Molina; referencing but not enclosing a copy of a letter sent by Maria Molina in February 2017 that is described as requesting a lease in her son's name with the statement that "she was vacating the apartment as of March 2017, and transferring her tenancy to her son, Elvi Molina".
Two witnesses testified for Petitioner: Moshe Stahl, who described his duties as including repairs, maintenance, collection of rent, vacancies and violations; and Dov Fessel, who described his duties as including depositing rents, signing leases and helping with office work.
Mr. Stahl phrased his answers to most of the questions posed to him on direct, cross-examination and re-direct using the pronoun "we", without indicating who this referred to. He testified that at the time "we" purchased the building in August 2016 "we" thought Maria Molina lived in Apartment 2D, where she was the tenant of record. Over time, "as management, we went apartment by apartment" to meet the tenants of record and encountered difficulty trying to meet with Maria Molina. At an unidentified point, "the super told us she does not reside there." The efforts made to meet with Maria Molina included that "we asked her kids who reside there to meet her" and eventually a meeting did occur in the apartment in January 2017. At that meeting, "there was an old lady in the apartment that we were told she was Maria Molina, we tried to get her to sign a piece of paper to see if it matches the signatures on the leases but she did not want to sign." Mr. Stahl testified that the super — who had been the super for a long time - said that this woman was not Maria Molina.
Mr. Stahl testified that Respondents Elvi and Jennifer Molina currently reside in Apartment 2D and that, based on information obtained at Jennifer's deposition in August 2018, he thinks that Maria Molina currently lives in Tennessee and has lived there since 2011. Regarding the three lease renewals admitted into evidence, "We got these when we purchased the building"; Mr. Stahl believed them to have been signed by Maria and Jennifer confirmed this at her deposition. Mr. Stahl could not recall whether Maria ever reached out to him to request a lease after he purchased the building. He testified that she never turned in the keys, and when asked if she had ever sent in a "formal surrender" Mr. Stahl answered, "We did get some kind of document from her, I don't recall what it was."
On cross examination Mr. Stahl did not remember what else was talked about at the meeting with Maria Molina in January 2017, denied having offered her money to leave the apartment and stated that "there wasn't a lot of talk". Mr. Stahl thought he might have asked Maria if she had vacated the apartment, but he did not remember her response. Mr. Stahl acknowledged having received the DHCR complaint that was admitted into evidence; in response to the question "Did you respond?" he stated that "our office takes care of this, it's not part of my duties." Mr. Stahl also did not follow up after receiving the letter from Neighborhood Initiatives Development Corporation dated April 4, 2017.
When asked about conversations with Respondents between August 2016 and January 2017 Mr. Stahl said there were some, he could not recall when they took place and they were about his wanting to meet Maria Molina. When asked if Respondents ever asked for a lease in their name Mr. Stahl answered yes, once or maybe more than once on dates he could not recall, and the reason they gave was that "they were living in the apartment and wanted a lease in their name". Mr. Stahl did not think he had spoken with the prior owner regarding renewal leases or requests by Respondents for a lease in their name. Mr. Stahl testified that he collected "some rent" for apartment 2D by mail. He did not know if those payments were made by check or money order, or in whose name the rent had been sent.
On redirect, Mr. Stahl read the section in Jennifer's deposition in which she confirmed that the signatures on the three renewal leases in evidence were all Maria Molina's. Mr. Stahl also testified that the letter from Neighborhood Initiatives Development Corporation dated April 4, 2017 led him to believe that Maria "had moved out and she wanted the lease transferred."
Petitioner's second witness, Dov Fessel, testified that he does the office work and Mr. Stahl does the on-site work for the building. Mr. Fessel received the DHCR complaint and described it as a request from Maria Molina "asking for a lease as she is entitled to get a lease." When asked if Maria ever submitted any documentation stating that she had vacated the apartment and was giving up her rights Mr. Fessel answered, "There was some time that she wanted to give the lease to her son." Mr. Fessel did not remember receiving any letter saying Maria had another residence, and the first time he heard that she lives in Tennessee was at Jennifer Molina's deposition.
On cross examination when asked if Maria Molina ever requested a lease in her son's name, Mr. Fessel responded that she requested a lease in her own name, and he did not remember if he responded to that request. Regarding rent payments for Apartment 2D, Mr. Fessel testified that they had been made by check or money order, he could not remember in whose name the payments were made and, "At some time we assumed she was not there, we wrote her that we would not accept because they were not the tenant's checks".
Petitioner discontinued the proceeding as against "John Doe" and "Jane Doe" and requested a final judgment of possession and a money judgment for the unpaid use and occupancy of $12,823.95 as against both Respondents Elvi Molina and Jennifer Molina.
Respondents moved to dismiss for failure to make out a prima facie case. The Court reserved decision.
Respondents' Case
Both Respondents testified and, as did Petitioner, they supported certain elements of their defenses with documents that were admitted into evidence on consent. Respondent Elvi Molina is the son of the tenant of record Maria Molina, and his birth certificate (Respondents' Exhibit A, p 1) reflects his birth in the year 1972 to Pedro Antonio Molina and Maria Virgen Santos Espinal, whom he testified are his parents. Elvi testified that he moved in to the subject premises as a child, in 1983, with his parents and his two brothers, Wilson Molina and Henry Molina. He testified that he has lived there ever since, other than a gap when he went to college, returning to live in the apartment in either 2003 or 2004. Jennifer testified that she moved in to the subject premises in 2007, when her last name was Rosa, to live with Elvi - then her boyfriend and now her husband; the household at that time consisted of herself, Elvi and his parents, Pedro and Maria Molina. Both Respondents testified that the household currently consists of themselves and their two children, ages one and eleven.
To document Respondents' residence, admitted into evidence on consent were copies of the following documents which all reference the subject premises as the address of the person named in the document:
• NYS Driver's License issued to Elvi Molina on 09-09-10 (Resps' Ex A, p 2);
• NYC Board of Elections "Approval Notice" dated 4/12/2016 addressed to Jenifer Milagros Rosa (Resps' Ex A, p 3);
• W-2 forms for Elvi Molina for the years 2007, 2008, 2013, 2015, 2016 and 2017 (Resps' Ex B); W-2 forms for Jenifer Rosa/Jenifer M Rosa-Mercedes for all years from 2009 through 2017;
• Various income tax-related documents for both Respondents for the years 2009 through 2017, including IRS Wage and Income Transcripts, federal and state tax returns and additional W-2 forms (Resps' Ex C);
• 29 earnings statements/pay stubs issued to Elvi Molina from various employers, three of which have pay dates in the year 2007, twelve in the year 2008, seven in the year 2009, one in the year 2016 and six in the year 2017 (Resps' Ex D);
• Referring to Respondents' 11-year-old daughter:
• two documents from Westmed Medical Group, one indicating that this office has been the child's pediatrician since birth in 2008 and referencing a "last visit" on 2/19/18, and the other designated as an "Immunization Report" dated 9/3/2013;
• four pages of computer printouts dated 5/3/2018 from the NYC Public Schools (Resps' Ex K);
• Two statements addressed to Elvi Molina from "Sedgwick Claims Management Services, Inc." dated 1/12/2015 and 07/02/2015 (Resps' Ex L, pp 1 & 2);
• Letter from MetLife to Elvi Molina dated 11/14/2014 (Resps' Ex L, p 3);
• "Placement Notice" addressed to Jenifer Rosa dated 1/26/2011 from the NYC Human Resources Administration Office of Child Care (Resps' Ex L, p 4);
• Explanation of Benefits addressed to Jenifer M Rosa Mercedes dated 01/27/2012 from "HIP an EmblemHealth company" (Resps' Ex L, p 5).
Although the spelling of this Respondent's first name in the court papers is "Jennifer", the spelling in all of her documents that were admitted into evidence is "Jenifer".
Regarding the vacatur of the apartment by Pedro and Maria Molina, Jennifer testified that Pedro moved out in 2010 and Maria "started moving out" towards the end of 2011; she "went back and forth ... to help another family member" who lived in Tennessee. She took only a bag with her, leaving her other belongings and furniture in the apartment. Jennifer testified that she was in daily communication with her mother-in-law, who returned "several times to visit," with one visit maybe in 2013 and another definitely in 2017.
When Maria's lease came up for renewal in 2012, Jennifer spoke with her about it and they decided that she, Jennifer, would sign her mother-in-law's name on the lease for her. When the lease came up for renewal again two years later, Jennifer did the same thing and signed Maria's name "because she asked me to". At the time these two renewal leases were signed Jennifer did not believe that Maria had permanently vacated the apartment.
Jennifer testified that at her deposition in 2018 she had misspoken when she stated that Maria herself had signed all three renewal leases that were admitted into evidence. She corrected her answers in the errata sheet that accompanied her signed deposition transcript to reflect that she, Jennifer, had signed two of those three renewal leases for her mother-in-law, with her authorization. Jennifer had never been in litigation before, never sat for a deposition, was very nervous at the deposition and it was never her intention to hide the fact that Maria had started moving out in 2011. She explained that it had been difficult to get renewal leases for Maria, even though she was the tenant of record, and she often had to wait for them.
In February 2016, before the last lease renewal expired, Jennifer sent the prior owner a letter - which she did not keep a copy of - requesting that the lease be put in Respondents' names, "due to succession rights". No renewal lease was provided and, soon after the change in ownership later that year, she contacted Petitioner about the expired lease; three or four verbal requests for a renewal lease were made between September 2016 and January 2017.
In January 2017 Jennifer met "face to face", along with her husband and her mother-in-law, with the new owners and the building's super. Jennifer testified that she requested a lease in her name at that meeting and that the landlord's managers offered Maria $5000 to leave. Jennifer testified that her mother-in-law rejected this offer and instead asked for the lease to be put into her son's name.
Regarding rent payments, Jennifer testified that after her mother-in-law went to Tennessee she started to pay the rent in her own name, by money orders that she prepared and mailed that were never returned to her. Photocopies of thirty US Postal Service money orders dated from May 28, 2014 through August 2, 2017 for rent payments were admitted into evidence (Resps' Ex H). The first twenty-one were payable to Petitioner's predecessor-in-interest, 878 E. 176th St Owner LLC; the next nine, beginning in September 2016, were payable to Petitioner. Of the twenty-one payable to 878 E. 176th St Owner LLC, written in on fourteen of them in the "From" line was the name "Jenifer Rosa"; on four was "Jenifer Molina"; and on three was "Maria Molina/Jenifer Rosa". Of the nine payable to Petitioner, seven were from "Jenifer" and Elvi Molina, one was from just "Jenifer" Molina and one dated February 2, 2017 was from "Elvi Molina/Maria Molina".
On cross-examination, when asked whether in her direct testimony about the deposition she had said that "some answers varied from the truth" Jennifer responded yes; when asked why she had done that she answered, "At that moment, I misspoke." When asked why she misspoke Jennifer answered, "I was confused with the dates and everything, it was a lot to remember, I got nervous, and misspoke. I was nervous, my first time, my first deposition." She acknowledged that she was also nervous on the witness stand at trial, and that "I could get confused" when nervous. At the deposition when Petitioner's attorney had shown her three renewal leases and the DHCR complaint she had testified that they all had Maria Molina's signature on them, although this was not true. The truth was that when Maria was living in Tennessee Jennifer signed two of the renewal leases for her, as well as the DHCR complaint (marked as "Exhibit #1" at the deposition and as Petitioner's Exhibit 7 at trial). The reason she did this was that "the lease is in Maria Molina's name and she authorized me to sign her name. Every time, I would get her consent."
Jennifer acknowledged that her answers at the deposition to the questions of when Maria moved from the apartment and where she moved to were "2011" and "Tennessee" and when Petitioner's counsel then asked, "Did she move to Tennessee in 2011?" Jennifer responded "yes". Responding to other questions Jennifer testified that Maria moved in to the home of one of her sons who lived in Tennessee, where her husband Pedro already had moved the year before; the reason they went was that their son had gotten divorced, worked for the military, traveled a lot and needed someone to come immediately to help with his children. Maria did not move there when her husband did because she was being treated by her doctors and "her whole life was here."
Jennifer testified that she understood that the DHCR complaint requested a lease renewal in Maria's name and explained this was done because up until then they had not yet spoken to the new landlord about the fact that "we were living there, that we had the right of succession." After filing the complaint Jennifer called the DHCR for advice and was told to "wait for that petition to be answered to put in another one asking for the lease to be put in our name. It took two years to get an answer from them."
Regarding the rent payments that Jennifer testified she had made herself, when asked "Why was it you, and not Maria Molina?" she answered, "Because I was living there, she wasn't."
On redirect Jennifer testified that there was one thing she wanted to clarify regarding her testimony about when Maria Molina left permanently: The reason she had said 2017 was because until then Jennifer thought her mother-in-law was coming back and "that was really when I lost hope. I always hoped that she would come and live with us, you know, come back and live with us." Jennifer reiterated that her mother-in-law had authorized her to sign the renewal leases for her and that she would not have signed them without her authorization. She signed the DHCR complaint in her mother-in-law's name because "we had asked the landlord for a lease and basically they said no, they weren't going to provide it.... I think it was towards the end of 2016 we submitted the complaint because the lease had been expired since April of that year."
Jennifer knew that her mother-in-law was the tenant of record and did not know what to do in this situation. She denied having misrepresented anything to the landlord and testified that, "in fact I even basically was, in one way, I was letting the landlord know here we are, paying the rent, and putting my name on the payments. It wasn't hiding. I put my name on the rent payments and my husband's name. I wasn't hiding the fact that we were there, and we were the ones making the payments." The landlord never rejected those payments or said they wouldn't be accepted because she and her husband were not the tenants of record.
Elvi Molina testified next. His parents went to Tennessee — his father first, then his mother, in 2011 - to help Elvi's brother who was getting divorced and had custody of his three children. Elvi testified that his mother did not want to leave, that she "can't survive without plantains, salami or fried cheese" which she could not get in Tennessee. However, "my mother, the person that she is, even though she didn't want to leave she went to help him. I thought - and we thought - that it was a temporary situation. It became something that we didn't expect but that's what happened." The prior landlord — whose name he knew as "Bay-John" - knew Elvi, his wife and his parents and knew they all lived in the apartment together. Elvi told Bay-John about the situation when his parents went to Tennessee and, thinking he wanted to go live with them, said to Bay-John, "Give us something so that we can move." Elvi testified, "we were actually looking for six or ten thousand dollars to get out of New York." He did not know the law and did not ask for a lease in his name at that time because he thought they had to wait until the lease expired.
The witness did not provide the spelling; this is a phonetic transcription.
Elvi testified that Jennifer always took care of her mother-in-law's doctor's appointments and the family's paperwork and was in constant communication with Maria after she went to Tennessee. Elvi knew that Jennifer had spoken with his mother about the leases and testified, "I didn't play a hand in that, I wish that I had, somehow I didn't." When Jennifer signed the leases, it was because "my mother authorized my wife to sign the leases" and it was not done with any intent to deceive the landlord.
Elvi first learned that Petitioner had taken over the building after receiving a letter in the mail in September 2016. Elvi testified about his first interaction with Petitioner's agents that took place towards the end of October 2016 after Jennifer contacted the new landlord to arrange a meeting to discuss the expired lease and the need for a renewal. Elvi recalled meeting with the landlord's agents, one of whom was Mr. Fessel, around 5:30 p.m. He testified that he had intended to talk with them in the hallway but "they wanted to come in" so he let them in to the entrance of the apartment. After introducing himself, Mr. Fessel asked, "Haven't you lived here long enough? Don't you ever think of moving?" Elvi testified that he would "never forget those words" which were "engraved into my brain". Mr. Fessel also suggested he might be able to downgrade Respondents to a smaller apartment. Elvi testified that in response he "shrugged it off, I just dismissed it"; he did not explain anything about his mother's situation at that time.
In December 2016, the new owner's super, named Daniel, knocked on the door to investigate a water leak into the apartment below. Elvi let him in, and Daniel determined that the problem was with the bathtub which would need to be replaced. Mr. Fessel telephoned after that, Jennifer answered and Elvi got upset and took the phone from Jennifer when he heard Mr. Fessel "threatening her that she had to pay for the bathtub". Elvi told Mr. Fessel that "we're not paying for any new bathtub, I didn't ask for a new bathtub."
The next interaction Elvi had with Mr. Fessel took place on a Wednesday or Thursday in January 2017, after the bathtub repairs were completed and Daniel told Elvi and Jennifer that the landlord was coming as he needed to "check everything [Daniel] does to verify that the work was done." Elvi's mother Maria was visiting at this time and Mr. Fessel and "Mr. Moshe" arrived at the apartment before either Elvi or Jennifer got home. When Elvi arrived, he found Mr. Fessel, "Mr. Moshe" and Daniel in the living room along with his mother and his wife. Elvi testified, "At that point, when I got home, they had already I guess spoken to my mom, and they showed me a picture of our kitchen where there was a washing machine." Elvi told them the washing machine doesn't work and then, "because I could see that we were going to have issues with them, [told them that] the stove and fridge are both ours."
Elvi testified about one other chance encounter at the building with Mr. Fessel and "Mr. Moshe" which took place around lunchtime one day in October 2017, soon after Respondents had received a bill for three months of rent. The bill was a surprise because they knew they had mailed in those payments. Elvi described the encounter and conversation in detail, which was in part about the missing rent payments and, in addition, included his wife asking about the lease. Elvi testified: "Moshe, he goes, I'll send you another one. Mr. Fessel says we can send the lease, but it has to be under your mother's name."
Elvi testified that he and his wife dealt with the lease renewal problem the way they did in 2016 and 2017 because over the years before that there had been many times when the landlord did not give his mother a proper and timely renewal lease. "Every time the lease renewal is up, it's always an issue. We've gone through years and years, many years without a lease. Even with my mother living there they would refuse to give us a lease under her name." For example, at one point after a period of several years with no lease renewals the landlord gave his mother three consecutive leases to sign all at the same time. Another time, the renewal lease that was originally offered to his mother included an unwarranted extra increase for "Capital Improvements". Copies of these leases were admitted into evidence on consent (Resps' Ex M) as follows:
• Three two-page leases all dated June 25, 2007 from landlord "Jericho LLC":
(1) One for a 2-year term from June 1, 2003-May 31, 2005, monthly rent $523.98;
(2) One for a 2-year term from June 1, 2005-May 31, 2007, monthly rent $558.04;
(3) One for a 2-year term from June 1, 2007-May 31, 2009, monthly rent $594.32.
• One single-page DHCR RTP-8 renewal lease form dated January 16, 2014 from landlord "878 East 176th Owner LLC" to commence 4/30/2014, similar to the one in evidence as the third page of Petitioner's Exhibit 5 except that it is not signed by the tenant, bears an unidentified signature for the landlord dated 1/16/14 and includes a monthly charge of $120.68 for "Capital Improvements" in Part A, item #2, Column E ("Lawful Rent Increase, if any, Effective after Sept. 30th) which raised the proposed rent to $714.01 for a one-year renewal and to $725.65 for a two-year renewal.
On cross-examination, Elvi testified that he was not aware at the time that Jennifer had signed the two renewal leases for his mother; he is aware now and denied that there had been any deception. When asked if there was any reason the renewal leases weren't mailed to his mother in Tennessee to sign and mail back Elvi responded, "I suppose that, in hindsight, that could have been done. Sure." In response to the question, "Would you consider it deceptive to sign someone else's name to a document?" Elvi answered, "If I was authorized to sign something by somebody else, that changes things."
Regarding the meeting with the new landlord's agents in October 2016, he did not mention that his mother was not living in the apartment because, "at that time I didn't even know who they were." Regarding the meeting with the owners in January 2017 Elvi testified, "the meeting was over when I got there" and reiterated that the prior owners "knew we were there, they knew my mother was not there."
When asked about the DHCR complaint in his mother's name that Jennifer signed for her Elvi testified that, "Given the circumstances, you know, that it's possible because of the fact that things have happened how they happened, the way that we've been treated. When they had a hard time giving a lease to my mother who was living there, do you really think that when my mother leaves they're going to say oh, sure, here's the lease under your name because you have the right of succession."
When asked about the letter sent to the landlord by a community agency in April 2017, and if he thought it was deceptive "to cause a letter to be sent saying that your mother's going to move out in 2017 when she had left six years earlier," Elvi responded, "Not under the circumstances. My mother happened to have been there in January, the only time she had a chance to speak to the landlords, the only time we had a chance to get anything done. It was at that point that my wife was desperate, she was just looking for a way for our family to just keep living on, we weren't trying to be deceptive of anything. We paid the rent under our names for many, many years."
On redirect Elvi testified that no renewal lease was sent after the last one expired in April 2016, and that he knew that his wife had sent a letter asking for the renewal lease around that time. When asked what he meant when he used the word "desperate" on cross-examination, Elvi testified, "It means that, as I said before, it was very difficult to get the lease under my mother's name. This is where we had our home for so, so many years. They tried so many tactics. It's been a battle every two years. The lease doesn't come in. Then the lease would come in. Then the lease added the capital improvements. Then they would send three leases because they hadn't sent leases for like four or five years."
After Respondents rested their case, Petitioner's counsel asked the court to draw a negative inference from the fact that Maria Molina did not testify for Respondents.
DISCUSSION
Petitioner met its burden of proof on its prima facie case for a licensee holdover proceeding under Section 713(7) of the New York State Real Property Actions and Proceedings Law. Petitioner's documents that were admitted into evidence on consent show that it is the owner, that the building is currently registered as a multiple dwelling and that the last tenant of record of the subject Rent Stabilized apartment was Maria Molina, whose most recent renewal lease expired on March 31, 2016. Through the testimony of Petitioner's agents Moshe Stahl and Dov Fessel it was established that they learned of Maria's permanent vacatur of the apartment in 2011 at a deposition taken of Respondent Jennifer Molina on August 16, 2018 in the context of a prior eviction proceeding under Bronx County L & T Index # 11106/2018. At that deposition, the transcript of which was admitted into evidence in this proceeding, Jennifer had testified that Maria Molina, her mother-in-law, moved to Tennessee in 2011 and that the subject premises are now occupied by Jennifer and her husband Elvi Molina, Maria's son.
Petitioner having established its prima facie case, the burden shifted to Respondents to prove their affirmative defense of succession rights, which is governed by Section 2523.5(b)(1) of the Rent Stabilization Code (RSC). As relevant herein, this section provides that a tenant's family member is "entitled to be named as a tenant on the renewal lease" where the tenant "has permanently vacated the housing accommodation" and the family member "resided with the tenant as a primary residence for a period of no less than two years immediately prior to the permanent vacating of the housing accommodation by the tenant."
The uncontroverted testimonial and documentary evidence at trial established that Respondent Elvi Molina is the son and Jennifer Molina is the daughter-in-law of the tenant of record Maria Molina. Elvi's birth certificate was admitted into evidence, and he identified the names of his parents on that document. While Elvi and Jennifer's marriage certificate was not offered into evidence, there is no reason to doubt their credible testimony that they are married and have two children, ages eleven and one, who were born while they lived in the subject apartment; medical, school and tax records bearing the address of the subject premises and referencing the couple's older child, born in 2008, corroborates at least part of that testimony. The applicable definition of "family member", found in RSC § 2520.6(o), includes both a son and a daughter-in-law.
Further, it was uncontroverted that Elvi moved in to the subject premises with his parents and brothers as a child in 1983 and has resided there continuously since then, other than an unspecified number of years when he left for college and then returned in either 2003 or 2004. It was also uncontroverted that Jennifer has resided continuously at the premises since 2007 when she moved in as Elvi's girlfriend. Both Respondents testified credibly about these facts, their residence at the subject premises was corroborated by numerous tax-related and other documents and Petitioner presented no conflicting evidence.
It was further established that Maria Molina permanently vacated the apartment in 2011 when she joined her husband in Tennessee at the home of one of their other sons to help him care for his three children following a divorce. Both Respondents testified to this at trial, Jennifer testified to this at her deposition from the prior holdover proceeding and Petitioner presented no conflicting evidence.
Petitioner argues that the decision in Third Lenox Terrace Assoc v. Edwards (91 AD3d 532, 937 NYS2d 41 [1st Dep't 2012] ), requires this court to find that Respondents have not met their burden of proof on their succession rights defense. Although Maria Molina moved out of the apartment in 2011 and never resumed her residency there again, arguably under Third Lenox she did not "permanently vacate" the apartment at that time because she did not send her landlord a formal surrender when she left, two renewal leases and a DHCR lease renewal complaint were thereafter executed in her name and, according to a letter dated April 4, 2017 from "Neighborhood Initiatives Development," she allegedly had sent a letter in February 2017 stating that she would be moving out in March 2017. Petitioner contends that Maria's son and daughter-in-law are not entitled to succession rights because, during the two-year period immediately prior to March 2017 they did not reside "with the tenant" who had moved to Tennessee in 2011.
After carefully considering the totality of the credible evidence and reviewing the relevant case law, this Court finds that Respondents are entitled to a renewal lease in their own name and Third Lenox Terrace does not warrant an outcome in Petitioner's favor. First, Third Lenox Terrace and its progeny are factually distinguishable. Whereas the tenant of record in Third Lenox Terrace continued to both execute renewal leases and pay the rent in her name after her date of permanent vacatur from her Rent Stabilized apartment, here while the tenant of record authorized her daughter-in-law to sign two renewal leases for her in 2012 and 2014 and a DHCR lease renewal complaint in 2016 , at least as of 2014 rent payments were made for the most part exclusively in the name of her daughter-in-law and her son. Also see Well Done Realty, LLC v. Epps (58 Misc 3d 160[A], 97 NYS3d 57 [App Term 1st Dep't 2018] )(succession rights to Rent Stabilized apartment denied to mother of tenant of record who vacated in 2003 and continued to both execute renewal leases and pay rent by checks in her name from 2003 through 2015); Mia Terra Realty Corp v. Sloan (57 Misc 3d 141[A], 68 NYS3d 379 [App Term 1st Dep't 2017] ) (succession rights to Rent Stabilized apartment denied to "nontraditional family member" where tenant of record vacated in 2006 and continued to both execute renewal leases and pay rent by checks in the tenant's name from 2006 through 2014); 206 W 104th St LLC v. Zapata (45 Misc 3d 135[A], 5 NYS3d 330 [App Term 1st Dep't 2014] )(succession rights to Rent Stabilized apartment denied to tenant of record's son who vacated in the early 1990s and continued both to sign renewal leases and pay rent with money orders bearing his name through 2006); South Pierre Assocs v. Mankowitz (17 Misc 3d 53, 844 NYS2d 552 [App Term 1st Dep't 2007] )(succession rights to Rent Stabilized apartment denied to "nontraditional family member" who forged the tenant's name on at least seven renewal leases and numerous rental payments).
Petitioner made much of the fact that Respondent Jennifer Molina originally testified at her deposition in a prior proceeding that Maria Molina herself signed those two renewal leases and the DHCR complaint. However, as permitted by CPLR § 3116(a), Jennifer corrected her testimony in an errata sheet annexed to the deposition transcript and signed both of those documents on the same day. Boyce v. Vazquez (249 AD2d 724, 726, 671 NYS2d 815, 817 [3rd Dep't 1998] )(witnesses have the explicit right to change deposition testimony so long as they comply with CPLR § 3116[a] ). Further, she testified credibly at trial that she signed her mother-in-law's name on those leases after consulting with and obtaining authorization from her mother-in-law to do so. To the extent Petitioner suggests that the "Falsus in uno, falsus in omnibus" maxim should be applied to discredit any of Jennifer's testimony that does not support Petitioner's case, this court declines to do so. Jennifer promptly corrected her deposition testimony and provided a credible explanation for her originally erroneous statements at her deposition. "The maxim is permissive, not mandatory, and it is for this court to determine how much, if anything, to believe from a witness." East Side Mgrs Assoc, Inc v. Goodwin (26 Misc 3d 1233[A], 907 NYS2d 436 [Civ Ct NY Co 2010] ), citing People v. Becker (215 NY 126, 144, 109 NE 127, 33 NY Cr 93 [1915] ). Further, Elvi Molina's credible testimony that his wife was in constant communication with his mother, made doctors' appointments for her and handled the family's paperwork further corroborates Jennifer's testimony.
Second, in the absence of significant affirmative misrepresentation and subterfuge, caselaw is shifting away from treating Third Lenox Terrace as a bright-line rule. See, e.g. , BPP ST Owner LLC v. Nichols (63 Misc 3d 18, 97 NYS3d 376 [App Term 1st Dep't 2019] )(reversing trial court and granting succession rights to son of tenant of record who continued to both sign renewal leases and pay rent in her name); Park Central I LLC v. Figueroa (64 Misc 3d 742, 104 NYS3d 866 [Civ Ct Bx Co 2019] ); Park Cent I LLC v. Williams (62 Misc 3d 1225[A][Civ Ct Bx Co 2019] ); and see Matter of Jourdain v. New York State Div of Hous & Community Renewal (159 AD3d 41, 70 NYS3d 239 [2nd Dep't 2018] ). This shift reflects a focus on the broad remedial purpose of the succession rule for rent regulated tenants, which is "to prevent displacement of family members who have been residing with tenants at housing accommodations for long periods of time". BPP ST Owner, LLC, supra, citing Festa v. Leshen (145 AD2d 49, 537 NYS2d 147 [1st Dep't 1989] ).
Here, for a number of reasons, and in consideration of the totality of the circumstances, the court rejects Petitioner's argument that the two renewal leases signed on Maria Molina's behalf in 2012 and 2014, the DHCR complaint of failure to renew lease signed and submitted on Maria Molina's behalf in November 2016 and the letter to Petitioner dated April 4, 2017 from a community agency "show a clear pattern of deceiving the landlord or landlords". Respondents did not hide their presence in the apartment from Petitioner or the prior owners. Elvi testified credibly that in 2011 he spoke with an agent of the landlord, who knew him and knew his family, about his parents having gone to Tennessee. He did not ask for a lease in his name at that time because he thought they had to wait until the lease expired. While Elvi did not testify about what happened when the lease in effect in 2011 expired, it is evident that "Bay-John" was no longer the landlord's agent by then as the next lease was prepared by a receiver. And by the time of the next lease renewal there was yet another new landlord. Especially given how many times the building changed hands, that Petitioner's agents — who testified that they did not learn that Maria had moved to Tennessee until Jennifer's deposition in August 2018 - did not know about Elvi's conversations in 2011 with a prior owner's agent is not surprising.
Both Respondents testified that they thought that Maria's move to Tennessee was temporary and that she would return. Both Respondents also testified that after Maria left they paid the rent in their own name and this testimony was corroborated by copies of thirty rent payments by money orders with their names on them made during the period from May 2014 through August 2017.
Jennifer also testified credibly that she contacted the prior landlord in February 2016, before the last lease expired, to request a lease in the name of herself and her husband, and that she made the same request to Petitioner's agents Mr. Fessel and Mr. Stahl at a meeting in the apartment in January 2017. Although not able to recall the details, Mr. Stahl acknowledged that Respondents had requested a lease in their name at least once.
That Respondents abandoned the approach of simply requesting a lease in their own names is understandable against this backdrop and given the various other circumstances which Respondents testified to. Elvi testified credibly and in detail about his encounters with Mr. Stahl and Mr. Fessel, all of which quickly turned contentious: The first was in October 2016, at a meeting that had been arranged by Jennifer to discuss the lease; after introducing himself, Mr. Fessel asked, "Haven't you lived here long enough? Don't you ever think of moving?" Elvi, who testified that "at that time I didn't even know who they were", testified that he would "never forget those words" which were "engraved into my brain". It is not surprising that Respondents did not bring up anything about Elvi's parents' relocation in that conversation. Next was a telephone conversation in December 2016, after a leak from Respondents' bathtub was discovered entering the apartment below; Elvi recalled getting upset and taking the phone from Jennifer when he heard Mr. Fessel "threatening her that she had to pay for the bathtub"; Elvi ended up telling Mr. Fessel that "we're not paying for any new bathtub, I didn't ask for a new bathtub." Then in January 2017, when the super had told Respondents that Petitioner's agents needed to stop by to inspect the work he had done in their bathroom, upon arriving home Elvi found Mr. Stahl and Mr. Fessel in the apartment concluding a meeting with his mother and wife; the conversation quickly turned into a confrontation about the kitchen appliances with no further discussion of the lease.
Elvi also testified credibly about a history of persistent problems with securing proper and timely lease renewals from prior landlords over many years, including one time when the landlord let a number of years go by without offering any renewal lease and another time when the proposed renewal lease included an improper charge for "capital improvements". His testimony is corroborated by the seven leases admitted into evidence by the parties, a close examination of which reveals irregularities and RSC violations with each of them. Starting with the lease renewal that was in effect in 2011, the year Maria Molina left, on its face there does not appear to have been much of a problem with it: prepared by "Jericho LLC" as owner on the standard DHCR RTP-8 Renewal Lease Form, it ran from 1/1/2010 through 12/31/2011, was dated 10/15/2009 and was signed by the tenant on 11/23/2009. However, the immediately prior lease, prepared by the same landlord "Jericho LLC", ran from June 1, 2007 through May 31, 2009 making it evident that a gap of seven months elapsed between the end of that lease and the commencement of the next one. Further, that 2007-2009 lease was one of a batch of three from "Jericho LLC" that all bore the same date of June 25, 2007, were all prepared on forms that do not comply with RSC § 2523.5(a) and were back-dated to cover the three separate two-year terms of 2003-2005, 2005-2007 and 2007-2009. Continuing forward, the next lease after Maria Molina left in 2011 commenced 1/1/2012, was prepared by "Gerald Goldsmith as Receiver" and was dated 1/3/2012; clearly this lease renewal was not offered timely as it failed to provide the requisite 90 days advance notice.
To comply with the 90-day minimum notice period required by RSC § 2523.5(a) it should have been dated October 3, 2009 or earlier.
See fn 4, supra .
Regarding Maria Molina's last lease, which expired 3/31/2016, two versions were admitted into evidence. Both are from an entity named "878 East 176th Owner LLC," which was apparently a new owner in between the receiver and Petitioner herein. Both were prepared on a DHCR RTP-8 form, had a commencement date of 4/30/14 and offered terms of either eleven months (ending on 3/31/14) or twenty-three months (ending on 3/31/16), terms which are inexplicably short by one month of the one-/two-year options required by RSC § 2522.5(a)(1). The one offered into evidence by Respondents was dated 1/16/2014 and included, in addition to the standard renewal lease increases permitted by the Rent Guidelines Board, an additional monthly charge of $120.68 for "Capital Improvements." The tenant did not sign this lease offer. The one offered by Petitioner was fully executed and differed in that it was dated a month later and did not include the "Capital Improvements" charge of $120.68.
Further, the undisputed and consistent testimony of both Respondents was that even though Maria Molina had left in 2011 and returned thereafter only for several visits, they initially believed her move to Tennessee to be temporary; only gradually over time did they come to understand and accept that it was a permanent move. Respondents' beliefs were consistent with the circumstances, which the credible testimony established started with Maria's reluctant departure in 2011, following her husband's the year before, to help another one of their children care for his children following a divorce. The concept of a "permanent vacatur date" under the Rent Stabilization Code is a legal construct that does not necessarily align neatly with the uncertainties often inherent in the decisions people make in real life. See, e.g. , Quiala v. Laufer (180 AD2d 31, 584 NYS2d 786 [1st Dep't 1992] ); 542 E 14th St LLC v. Lee (18 Misc 3d 98, 854 NYS2d 278 [App Term 1st Dep't 2007] ); Edelstein LLC v. Connelly (2019 NYLJ LEXIS 2558 [Civ Ct NY Co 2019] ); 90 Elizabeth Apt LLC v. Eng (58 Misc 3d 300, 64 NYS3d 486 [Civ Ct NY Co 2017] ); Metroka v. Andrews (2006 NY Misc. LEXIS 9320, 236 NYLJ 7 [Civ Ct NY Co 2006] ).
Respondents testified that they did not know the law and what steps to take after Jennifer's request in early 2016 to the prior landlord for a lease renewal was ignored and the building then changed hands. This is not surprising given that New York State's rent regulation laws and regulations are often described as an "impenetrable thicket" and a "legislative quagmire" for laypeople and lawyers alike. 89 Christopher, Inc v. Joy (35 NY2d 213, 220, 318 NE2d 776, 780, 360 NYS2d 612, 618 [1974] ); KSLM-Columbus Apts, Inc v. New York State Div of Hous & Cmty Renewal (6 AD3d 28, 30, 772 NYS2d 665, 667 [1st Dep't 2004] ); Henry 85 LLC v. Roodman (2017 NY Misc LEXIS 2923, *15, 2017 NY Slip Op 31606[U], 11 [Sup Ct NY Co 2017] ).
On the one hand, where a landlord believes that a tenant no longer resides in the apartment as their primary residence rather than offering a lease renewal the landlord has the option of sending a notice of nonrenewal under RSC §§ 2524.2(c)(4) and 2524.4(c), and a remaining family member can raise a timely defense of succession rights in the subsequent holdover proceeding based on nonprimary residence. Here, the owner did not send Maria a notice of nonrenewal after Elvi told "Bay-John" in 2011 that she had gone to Tennessee.
On the other hand, it is the landlord's responsibility to offer a renewal lease pursuant to RSC § 2523.5(a) that provides the catalyst in the regulatory framework for an eligible family member seeking succession rights to request that they be named on the renewal lease under RSC § 2523.5(b)(1). If the renewal lease is not accepted and returned, under RSC § 2524.3(f) the landlord is permitted to commence an eviction proceeding based on failure to renew an expiring lease. That Petitioner's immediate predecessor-in-interest did not offer her a renewal lease upon the expiration of her last lease on March 31, 2016, and that Petitioner upon purchasing the building and discovering that Maria Molina did not have a current renewal lease did not offer her one, in essence deprived Respondents of the opportunity provided by RSC § 2523.5(b)(1) to request that they be named as tenants on such renewal lease. Given these rules and facts, that a complaint of failure to offer a renewal lease was submitted to the DHCR in Maria Molina's name in November 2016, rather than a demand for Respondents to be named as tenants on an as-yet-not-proffered renewal lease, makes sense.
The court does not find the letter dated April 4, 2017 to Petitioner on behalf of Elvi from "Neighborhood Initiatives Development Corporation", an agency in the Bronx about which no details were provided, to constitute evidence of any sort of subterfuge, as argued by Petitioner. That letter references a prior letter sent in February 2017 by Maria Molina to Petitioner which allegedly advised Petitioner that she would be vacating in March 2017. There was no testimony as to whether or not such a letter was actually sent by Maria or received by Petitioner, and no copy of it was provided. As there had been no formal surrender of the apartment by Maria Molina up to that point, and the conversation with Mr. Stahl and Mr. Fessel in January 2017 did not resolve the renewal lease issue, it makes sense that Respondents would want there to be something in writing.
Petitioner's argument that it has been prejudiced by the actions of Respondents and the tenant of record is conclusory and not convincing. The cases in which landlords have been found to be prejudiced by misrepresentations are all ones in which there was a nontraditional family relationship or a long history of subterfuge by the tenant of record and/or family members and the passage of time undermined the landlord's ability to gather evidence to refute the claims of the person claiming succession rights. See CBU Assoc, Inc v. Forray (2019 NY Misc LEXIS 5342, 2019 NY Slip Op 51580[U], 2019 WL 5059122 [App Term 1st Dep't 2019] ); 186 Norfolk LLC v. Euvin (2019 NY Misc LEXIS 2936, 2019 NY Slip Op 50890[U], 63 Misc 3d 160[A], 2019 WL 2402188 [App Term 1st Dep't 2019] ); South Pierre Assocs v. Mankowitz (17 Misc 3d 53, 844 NYS2d 552 [App Term 1st Dep't 2007] ).
Further, both Respondents through their testimony and documents have made a persuasive showing of their long-term, unconcealed co-occupancy with the tenant of record that predates her departure in 2011 by well over the applicable minimum period of two years. Elvi testified credibly that in 2011 the landlord knew him, knew his family and knew that his parents had gone to Tennessee to live with and help another son and his children. That prior owner could have served Maria with a notice of nonrenewal based on the information provided by Elvi and proceeded with a holdover proceeding based on nonprimary residence. RSC § 2524.4(c). Based on the credible evidence presented, Elvi and Jennifer would have been entitled to succession if they had asserted and pursued their claim immediately after Maria moved out in 2011. They had nothing to gain for purposes of a succession claim by representing that Maria was still living there, which undermines any claim of prejudice to Petitioner. Park Tower S Co, LLC v. Mandal (63 Misc 3d 134[A], 2019 WL 1512597 [App Term 1st Dep't 2019] ); 90 Elizabeth Apt LLC v. Eng (56 Misc 3d 128[A], 63 NYS3d 306 [App Term 1st Dep't 2017] ); and see Matter of Jourdain v. New York State Div of Hous & Community Renewal (159 AD3d 41, 48-49, 70 NYS3d 239, 245 [2nd Dep't 2018] )("since there is no dispute in this case that [the succession rights claimant] was a family member who had resided in the apartment since 2003, under the circumstances of this case, the landlord was not prejudiced by any misrepresentation or delay").
Even if the court viewed as significant misrepresentations Maria Molina's renewal of her lease in 2012 and 2014 and filing of a complaint of non-renewal with the DHCR in November 2016, these actions were of a short-lived duration and were accompanied by Respondents' open and notorious payment of the rent in their own names and requests to the current and prior owners for the lease to be put in their names. Moreover, the filing of the DHCR complaint is the only one of the three specified actions that took place after Petitioner became the owner in August 2016. And in January 2017 - five months later — Jennifer asked Petitioner's agents Mr. Fessel and Mr. Stahl, in the presence of her mother-in-law Maria, to transfer the lease into the names of herself and her husband. Neither Mr. Fessel nor Mr. Stahl denied that this occurred, and neither had good recall of any of their conversations with either of the Respondents. Rather, their testimony overall lacked specifics and confusingly was replete with the use of the plural personal subject pronoun "we".
To be clear, for the reasons discussed above the court has determined that the renewal of the leases in 2012 and 2014 and filing of a complaint of non-renewal with the DHCR in November 2016, in Maria Molina's name, do not constitute material misrepresentations for purposes of Respondents' succession rights claim upon the totality of the circumstances presented.
Accordingly, it cannot reasonably be said that anything Respondents and/or Maria Molina did or didn't do caused Petitioner any discernible prejudice in the prosecution of its eviction claim. Park Tower S Co, LLC v. Mandal (63 Misc 3d 134[A], 2019 WL 1512597 [App Term 1st Dep't 2019] ); Riverton Assocs v. Knibb (11 Misc 3d 14, 811 NYS2d 854 [App Term 1st Dep't 2005] ).
Finally, the Court declines to draw a negative inference from the fact that Respondents did not call Maria Molina as a witness to support their succession rights defense. After Respondents rested their case, Petitioner requested "a missing witness charge" due to Maria's nonappearance, referring to the rule that "where an adversary withholds evidence in his possession or control that would be likely to support his version of the case, the strongest inferences may be drawn against him which the opposing evidence in the record permits." Noce v. Kaufman (2 NY2d 347, 353, 141 NE2d 529, 531, 161 NYS2d 1, 5 [1957] ). A request for an adverse inference must be made in a timely manner that provides the opposing party an opportunity to adjust trial strategy or explain the failure to call certain witnesses. 3657 Realty Co, LLC v. Jones (18 Misc 3d 82, 85, 852 NYS2d 570, 572 [App Term 2007], rev'd on other grounds , 52 AD3d 272, 859 NYS2d 434 [1st Dep't 2008] ).
Petitioner here argued that Maria Molina is someone who would be expected to be called by Respondents and that, as to the co-residency element of their defense, there was "no testimony as to her residency in the apartment." Regardless of whether Petitioner's request was made in a timely manner, or Maria Molina was available to testify, a negative inference may only be drawn from the absence of reasonably anticipated testimony when there is some independent evidence presented which allows the court to make such an inference. "It is well recognized that the finder of fact may not speculate as to what the witness would testify to had he or she been called. The rule is that the finder of fact ‘may construe the evidence already in the case most strongly against the party who might have called the witness to contradict or explain that evidence’ (Richardson, Evidence [10th ed], § 92; emphasis added)." Jarrett v. Madifari (67 AD2d 396, 408, 415 NYS2d 644, 651 [1st Dep't 1979] ); and see generally , ST Owner, LP v. Novog (31 Misc 3d 680, 921 NYS2d 814 [Civ Ct NY Co 2011] ).
While Respondents' attorney argued at closing that it would have been a hardship for Maria Molina to testify as she is of advanced age and caring for her ill husband in Tennessee, there was no evidence presented by either Respondent on this issue other than their testimony.
Petitioner presented no independent evidence from which the court can infer that Maria Molina did not reside in the apartment with Respondents for at least two years prior to moving to Tennessee in 2011 or that her testimony otherwise would contradict anything Respondents testified to. Moreover, it is not correct that there was "no testimony as to [Maria Molina's] residency in the apartment." The long-term nature of Maria's tenancy is evident from the DHCR rent registration statement that lists her as the tenant of record in every year dating back to 1984. Both Respondents testified credibly that they had lived with Maria in the subject premises until she left in 2011 to join her husband, who had left a year earlier, for what they originally thought would be a temporary stay at the home of another son who needed their help taking care of his children following a divorce. Accordingly, an adverse inference is unwarranted.
CONCLUSION
Based on the totality of the circumstances regarding the tenant of record's vacatur, and after a trial at which all testimony and exhibits were carefully considered, the court finds that Respondents proved their succession rights defense and are entitled to a renewal lease in their name pursuant to RSC § 2523.5(b)(1). Accordingly, the Petition is dismissed, with prejudice. The parties may pick up their documents that were submitted into evidence as trial exhibits from the Part T Clerk (in either Room 409 or 410 at 851 Grand Concourse, Bronx, New York) within thirty days. This constitutes the Decision and Order of the court, copies of which are being mailed to the parties' attorneys.