Jols Realty Corp v Nunez (2014 NY Slip Op 50529(U))

Jols Realty Corp v Nunez

2014 NY Slip Op 50529(U) [43 Misc 3d 129(A)]

Decided on March 21, 2014

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Jols Realty Corp., Appellant,

against

Luz Nunez also Known as LUZ VIDAL, Tenant-Respondent, JUAN VIDAL, Undertenant-Respondent, -and- LIDIA VIDAL, "JOHN DOE," and "JANE DOE", Undertenants.

Appeal from a final judgment of the Civil Court of the City of New York, Kings County (John S. Lansden, J.), entered December 19, 2011. The final judgment, after a nonjury trial, dismissed the petition in a holdover 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 in favor of landlord.

Landlord commenced this holdover summary proceeding to recover possession of a rent-stabilized apartment on the ground that tenant, Luz Nunez, was not using the apartment as her primary residence. Juan Vidal (occupant), tenant's nephew, appeared and asserted his right to succeed to the tenancy (see Rent Stabilization Code [9 NYCRR] § 2523.5 [b] [1]). After a nonjury trial, the Civil Court dismissed the petition, concluding that occupant had demonstrated that he was entitled to succession rights as a nontraditional family member.

It was occupant's burden to prove that he had resided with tenant, Ms. Nunez, in the subject apartment as his primary residence for a period of no less than two years prior to his aunt permanently vacating the apartment (see Rent Stabilization Code [9 NYCRR] § 2523.5 [b] 68-74 Thompson Realty, LLC v McNally, 71 AD3d 411 [2010]). While Ms. Nunez moved out of the subject apartment in 2005, she executed renewal leases through March 2011, and occupant wrote on the money orders with which he paid the rent that he was paying them on behalf of Ms. Nunez. Thus, Ms. Nunez cannot be deemed to have permanently vacated the apartment prior to March 2011 (see Third Lenox Terrace Assoc. v Edwards, 91 AD3d 532 [2012]). Consequently, the relevant two-year period during which occupant must show he co-occupied the apartment with Ms. Nunez is 2009 to 2011. The evidence shows that Ms. Nunez did not live in the subject apartment during that time. As a result, occupant failed to establish his succession rights to the apartment.

Accordingly, the final judgment is reversed and the matter is remitted to the Civil Court for the entry of a final judgment in favor of landlord.