This holdover proceeding was commenced in April 2004 by service of a Petition and Notice of Petition. Petitioner seeks possession of the subject apartment located at 1234 Pacific Street, Apartment B2, Brooklyn, NY The petition alleges that respondents are licensees and their license was revoked. Respondents were served with a Notice To Remove Licensee dated April 1, 2004. Respondents filed an answer alleging that they have succession rights to subject rent controlled apartment. All parties are represented by counsel.

At the trial of this matter the parties stipulated to petitioner's exhibits being accepted in evidence. The following facts are not in dispute. Petitioner is the owner of the subject building. The building is a multiple dwelling duly registered with the N.Y.C. Department of Housing Preservation and Development (DHPD). The subject apartment is rent controlled and the tenant of record was Elizabeth Jefferson who passed away November 19, 2003. Elizabeth Jefferson was the grandmother of respondents Velvet and Lasheima Jefferson.

Respondents' aunt, Virgie Jefferson testified that she was the daughter of Elizabeth Jefferson. She occupied apartment E1 in the subject building in 1967. In 1968 Elizabeth Jefferson moved into the subject apartment. Initially Elizabeth Jefferson lived with her husband and children. Respondents' mother, Boritha Jefferson, left the subject apartment but her children continued to live with Elizabeth in the subject apartment. Boritha died in 1983 and her children were raised by Elizabeth. Vergie Jefferson moved out of the subject building in 1977, however she visited her mother daily and stayed in the subject apartment. She testified that Velvet Jefferson lived in the subject apartment and slept in the same room and bed as Elizabeth Jefferson. Elizabeth was the oldest member of the family and holidays were always celebrated at the subject apartment.

Velvet Jefferson testified that she is 21 years of age and has lived in the subject apartment [*2]since birth. She and her siblings were raised by Elizabeth Jefferson because her mother had a drug problem. She slept in the same room and bed as her grandmother. She attended Prospect Heights High School in 2001 and then Boro Academy which subsequently merged with Brooklyn Academy. School records indicate she was discharged in November 2003 and list her residence as the subject apartment. In 2003 she worked at Yankee Stadium. She submits W-2 tax forms for 2003 addressed to her at the subject apartment. Velvet Jefferson also submitted the following document which list her residence as the subject apartment: Capital One Visa account statement for the period January 29 - February 28, 2003; Direct TV billing statements dated October 9, 2003 and February 9, 2004; an MCI billing statement dated March 18, 2003 and an MCI deferred payment agreement dated January 28, 2003; a NYS Department of Motor Vehicle Interim Identification Card issued April 12, 2002; a T Mobile billing statement dated March 19, 2003 and a letter GS Services. Velvet testified that she has never resided elsewhere. At the time of Elizabeth's death she lived in the apartment with Elizabeth and her older sister Lasheima who slept in the back bedroom.

Respondents' sister, Tanesha Jefferson, testified that she moved out of the subject apartment in 2000 when she gave birth to her child. Elizabeth, Velvet and Lasheima continued to reside in the apartment after she left. She stated that Velvet slept with her grandmother and Lasheima slept in the larger bedroom in the rear of the apartment. Lasheima subsequently moved out of the apartment prior to Elizabeth's death.

Medina Willis, a lifelong friend of Velvet Jefferson, testified that she has lived directly across the street from the subject building for 25 years. She described her relationship with Elizabeth Jefferson like that of grandparent and grandchild. She testified that prior to Elizabeth's death Velvet resided in the apartment with one of her sisters and that Velvet slept with her grandmother.

The managing agent, Issac Schwartz, testified in rebuttal that petitioner purchased the building in February 2001. Since 2003 the superintendent of the building has been Leslie, prior to then it was Sergio. He visits the building daily and has visited the subject apartment to make repairs and speak with Elizabeth Jefferson on several occasions. He alleges no on lived in the apartment with Elizabeth. He observed that the back bedroom was full of cardboard boxes and appeared to be used for storage. He testified after Elizabeth's death he saw people, including respondent Velvet Jefferson moving new furniture into the subject apartment.

A handyman employed by petitioner, Michael Torres, testified that in 2002 he slept in the subject building 3-4 times per week and worked in the subject apartment 2-3 times per month. He saw Velvet Jefferson around the building but she did not live in the subject apartment. He has seen many people going in and out of the apartment and observed that the back bedroom appeared to be used for storage.

The building manager, Mendy Lowy, testified that he has managed the building since petitioner took title. He states that he overlooks the work of the superintendent who was initially Keith Neal and then Leslie. He testified that Michael Torres never slept in the subject building contradicting Mr. Torres' testimony. His description of the subject apartment also differs from Mr. Torres and other witnesses.

Respondent Velvet Jefferson testified that she never saw Mr. Torres before his court appearance. She stated that she was friendly with the buildings' superintendents. Prior to Leslie [*3]becoming the superintendent the basement was not locked and no one lived in the basement although people doing work in the building would "hang out" in the basement.

A person asserting the defense of succession rights has the burden of proof to demonstrate and establish by a fair preponderance of the evidence that she is a remaining family member as defined by statute. Cox v. J.D. Realty Associates, 217 AD2d 179 (1st Dept., 1995). She must establish that not only is she a family member but that she has resided in the subject apartment for the requisite period of time. In the instant case, there is no dispute that Velvet is the grand daughter of Elizabeth and the requisite period of time that the subject apartment was her primary residence with the tenant was two years prior to Elizabeth's death ie. November 18, 2001 through November 18, 2003. See, 9 NYCRR §§2104.6, 2204.6, 2520.6. The regulations include grand daughter in the definition of family member. 9 NYCRR §2204.6(d).

Based upon the foregoing the court finds respondent's and her witnesses' testimony to be credible and concludes that respondent Velvet Jefferson has established entitlement to succession rights by a fair preponderance of the credible evidence. The credible evidence establishes that respondent Velvet Jefferson was raised by her grand mother and during the relevant period was a high school student. The subject apartment was listed as her residence on tax documents, credit card statements, motor vehicle and utility bills. The credible evidnce also establishes that Lasheima Jefferson vacated the subject apartment prior to Elizabeth Jefferson's death.

The court finds the testimony of petitioner's witnesses to be contradictory and insufficient to defeat respondent's evidence. It is noteworthy that petitioner failed to call the current superintendent to testify or to explain his absence. The superintendent is employed by petitioner, within its control and someone that would naturally be expected to be called if his testimony would be favorable. The same is true of respondent Lasheima Jefferson's failure to testify. Not calling such a witness would create a negative inference that his testimony would not be favorable to petitioner ands would not contradict, respondent's testimony. "[W]here 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". People v. Paylor, 70 NY2d 146, 518 N.Y.S.2d 102 citing, Noce v. Kaufman, 2 NY2d 347, 161 N.Y.S.2d 1.

Accordingly, respondent Velvet Jefferson is awarded a Judgment of possession.

The foregoing constitutes the decision and order of the court.

Dated: Brooklyn, NY_________________________

June 14, 2005Hon. Jose Rodriguez

Judge, Housing Part