This is the findings of fact and conclusions of law after trial on this holdover proceeding commenced after the expiration of Respondents license to occupy the subject rent-stabilized premises, known as 966 Lexington Avenue, Apt 2RS, New York, New York, after the death of the tenant of record, Nancy Lu.Ms. Lu died April 25, 2006. A duly Ten-Day Notice to Quit and Notice of Petition and Petition were served on Respondents, Mo Ling Lam (hereinafter referred as "Mo Ling") and Wo Sang Lam.Mo Ling interposed the defense of succession rights on the basis that she lived with Ms. Lu, who was her mother, before she died.Respondent Wo Sang Lam is Mo Ling's husband.Respondents consented to Petitioner's prima facie case of ownership, multiple dwelling and rent stabilized registration. Thereafter, Respondents presented their defense to demonstrate that they are entitled to succeed as rent-stabilized tenants to the subject premises by way of the familial relationship of mother-daughter and cohabitation with Ms. Lu prior to her death.

Mo Ling testified that she was born in December 1943, in Mainland China. Sometime before the age of five, she and her brother, approximately two years old, were abandoned by their mother, who moved to the United States of America (hereafter "USA").Mo Ling was raised by her father, who later passed away and, then, by her parental uncle and grandmother. She had no contact with her mother or her mother's family and no memory of her mother. On her Government issued documents, she was schooled and employed in different provinces in China.In 1970, Mo Ling and Wo Sang Lam married. They have two children. Her brother was adopted by another paternal family member.Her brother immigrated to the USA in 1980. They kept contact with each other sporadically. On or about February 1991, approximately forty-eight years later, she received a letter from a cousin on her mother's side of the family who informed her of her mother, Nancy Lu and where to find her in the USA. Mo Ling wrote to Ms. Lu and sent her her contact information. That same month, February 1991, she received a phone call from someone who identified herself as Nancy Lu, her mother. Their reunion started out with communication by telephone calls and letters and culminated to Mo Ling traveling to the USA to meet Nancy Lu, her mother. In May 1991, she traveled to the USA on an Immigration and Naturalization Service (hereinafter referred as "INS") visitor's visa and stayed until October [*2]1991. She returned again in the same manner in December 1991 and stayed until October 1992. (Exhibit No.s R1-R2; S1-S2; T1-T2; V1) On her visits to the USA, she stayed and vacationed with Nancy Lu and at times with her brother. (Exhibits D1 -D8, E1, K.) In 1998, Ms. Lu filed Form I-130 Petition for Alien Relative with all the necessary supporting documents to show that she was Mo Ling's mother in order to obtain approval from the INS for Mo Ling to reside in the USA permanently. (Exhibit #M.)In the petition, Ms. Lu outlined the many aliases she used after leaving China to show she was Mo Ling's mother.Mo Ling submitted her supporting documents to and was interviewed by INS in China. Thereafter, INS approved the petition and Mo Ling received legal resident status. In July 2002, Mo Ling returned to the USA as a Legal Resident Alien and lived with Ms. Lu. Mo Ling resided with Ms. Lu until the end of 2003, when her husband joined her in the USA. She and her husband moved to Queens where they lived until the middle of 2004. Mo Ling and her husband moved back into the subject premises in the middle of 2004 when Ms. Lu became ill and was hospitalized. Mo Ling and her husband cared for Ms. Lu until she died April 25, 2006. (Exhibit #A.) In November 2007, she became a USA citizen. (Exhibit #H.) She worked as a home attendant and filed taxes. (Exhibits # I & J.)

Leon Luk, an attorney at law, testified that he was retained by Ms. Lu to prepare her Last Will and Testament which included Mo Ling as a beneficiary. (Exhibit #L the Last Will and Testimony executed July 18, 1996.) On behalf of Ms. Lu in June 1998, he prepared a Petition for Alien Relative, Form I-130 for Ms. Lu's daughter, Mo Ling. He prepared the petition and submitted it with all the necessary supporting documents to show the familial relationship between Ms. Lu and Mo Ling as mother-daughter.The petition with supporting documents were submitted to INS. (Exhibit #M.) The petition was approved and sent to Hong Kong for processing of an immigrant visa. (Exhibit # N-0.) Although he is aware of frauds with immigration applications emanating from China, there was no fraud detected in the petition he prepared and filed for Ms. Lu on behalf of her daughter, Mo Ling. He admitted that he has never met Ms. Lu's daughter and has no personal knowledge of the biological relationship other than the documents submitted to him by Ms. Lu.

Shu Huey Y. Jenner, who is an interpreter, versed in the languages of Mandarin and Cantonese, was called to interpret the documents introduced at trial. However, throughout the trial, the Court was assisted by the official court interpreters in those languages; thereby making Ms. Jenner's testimony irrelevant.

Wo Sang Lam testified that he is married to Mo Ling and they have two children. He visited the USA in 1991 with his wife and returned in 1994. In 2003, he immigrated to the USA and received his "Green Card". He lived with his wife and Ms. Lu in the subject premises until the end of 2003. In August 2004, he returned to the subject premises and continued to live with his wife and Ms. Lu after she became ill and assisted with her care until she passed away.

Charles Zhou, Mo Ling's brother, testified that he was born in China in 1945. He was adopted at a very early age, approximately two, after his mother abandoned him and his sister in China and moved to the USA. His adoptive parents' father is the brother of his biological father. He was raised separately from his sister. In 1980, he migrated to the USA to attend Wisconsin University and continued at George Washington University. He was sponsored through employment to obtain his "Green Card" from INS. He is now a citizen of the USA.He kept sporadic contact with his sister. He never knew his mother and had no contact with her until [*3]1991when he visited her at the subject premises. He knew her many aliases based on what was told to him by his relatives. After his first visit in 1991, he and Ms. Lu got together very often for family reunions and holidays each year. (Exhibit #E1). Mr. Zhou has no doubt that Ms. Lu was his and Mo Ling's mother. He and his children attended Ms. Lu's funeral in 2006. (Exhibit #s Y1-Y3; Z1-Z2).

On Rebuttal, Petitioner called Paul Simon who testified as an expert in Immigration and Visa matters in China. He is an US Government Contractor but not employed by the US Government. He is familiar with the politics, language and culture in the provinces of China. He stated that overall, in the 1990's throughout the mainland of China, approximately 80% of petitions in all visa categories by US citizens were rejected. All counselors receive training and consultations with INS and border patrol to review petitions for eligibility to enter the USA. He agreed that all INS counsel officers are adjudicators for all petition reviews and interviews for American citizens' services, visa works and non immigrant visa works. Prior to his testifying, he reviewed the documents introduced into evidence as Exhibits #4, #A, #C, #M, and #W1-W2. In his opinion, he stated that marriage certificates are normally what is expected to see in a civil marriage but that the certificate introduced as Exhibit #W2 was in fact an affidavit of marriage.In addition, the birth certificate introduced as Exhibit #C was a notarized certificate of birth record and not a birth certificate. He emphasized that because of the state of the Government in China and the revolution duringMo Ling's birth, education, employment and marriage, it was difficult to move from province to province without proper government documentation. He opined that Exhibit #M, Form I-130 petition filed by Ms. Lu for Alien Relative on behalf of Mo Ling, appeared to contain items that he believed was willful deceit based on the disparities of the many aliases used by Ms. Lu. He further stated that the usage of the many aliases by Ms. Lu, shown in the petition, violated cultural norms which should have raised a flag for the INS Interviewer of whether Ms. Lu is one and the same person.In addition, he opined that Mo Ling's document (Exhibit #4) showed unmatched names, lacks information of grandparents and failed to show familial relationship of mother-daughter.Mr. Simon admitted that he has no personal knowledge of how visas are processed nor has he witnessed the processing of visas. He avers that all immigration counselors are properly trained to review documents for visas and these documents in the instant case should have raised a flag to ask for more information if INS detected any discrepancy. Mr. Simon concluded that he never worked with INS. He only consulted.

The sole issue in this case is whether Nancy Lu is Mo Ling's mother. There is no dispute that Mo Ling and her husband lived with Ms. Lu in the subject premises from 2004 until she died in 2006. There is no dispute that Mo Ling is a citizen of the USA and her husband is a lawful resident of the USA. Petitioner proffers that the documents submitted to INS by Mo Ling and Ms. Lu are fraudulent.

The subject premises is rent regulated and governed by the Rent Stabilization Code. A traditional family member, as defined under the Code, includes a daughter who may succeed to the rent regulated apartment upon the death or vacatur of the tenant of record (herein a parent). RSC §2520.6(o)(1). The burden of proof to show the family relationship is on the person asserting that right to succeed to the regulated apartment. Highbridge Park Partners, LLC v Valdez, 12Misc 3d 142(A), (App Term 1st Dept); Caru, LLC v Ramos, 14Misc 3d 138(A), (App [*4]Term 1st Dept 2007); Goldman v Green, NYLJ, Jul 5, 2001, @ 18, col 2 (App Term 1st Dept.) An affirmative proof is needed to prove the family relationship and cohabitation. 200 W. 97th Street, LLC v Matos, NYLJ, Jul 2, 2003, @ 21, col 1 (App Term 1st Dept). There is no one factor that determines but rather the credibility of the evidence either by testimony or documents. (See Sy v Doe, NYLJ, Aug 17, 2004, @ 26, col 1 [App Term 1st Dept]).

The United States Government accepted the relevant documents introduced as Exhibit #M as sufficient proof to show the familial relationship of mother-daughter and approved the Legal Resident Alien visa to Mo Ling for her to reside in the USA permanently. Although there may be fraud in petitions filed with INS, which is conceivable in China and most likely globally and although some may conclude thus during the time period of the Revolution in China, the opinion of Petitioner's expert failed to show that these particular documents reviewed by INS on behalf of Mo Ling and introduced into evidence at trial, were fraudulent. Mr. Simon's opinion that the documents introduced into evidence raise an issue of fraud is unpersuasive given his lack of experience as an INS counsel contrasted with the findings by INS. Mr. Simon admitted that all INS officers are well trained to detect fraudulent petitions. His unskilled interjection of a fraud is discredited by the experienced determination reached by INS that the supporting documents filed by Mo Ling and Ms Lu with the Petition for Alien Relative, Form I-130, were effectively sufficient to confer legal residence on Mo Ling as Ms. Lu's daughter.This determination by INS shows that the documents submitted by Ms. Lu and Mo Ling legally qualified to show a mother-daughter relationship for INS to confer the status of a lawful resident in the USA. Absent qualified rebuttal proof, this determination made by INS is presumptive proof before the Court to show that Mo Ling is Nancy Lu's daughter.No proof was introduced by Petitioner to disprove this presumption. A mere claim by Petitioner through it's unskilled expert, who lacks personal experience in INS visa processing, that there maybe fraud is insufficient to disprove the offered unrefuted credible evidence by Mo Ling supporting her claim of succession rights based on the familial relationship of mother-daughter. (See R.E. Holding Co, LLC v DHCR, NYLJ, Aug 17, 2006, @ 22, col 1 (Sup Ct, NY Cty.)

Petitioner asks for a missing witness charge for the adoptive parents of Mo Ling and the home care attendants of Ms. Lu. Prince, Richardson on Evidence§3-140 states that a party seeking a missing witness charge must alert the Trial Judge and the adversary to the possibility of a missing witness issue "as soon as practicable," and must show:

(i) That the uncalled witness is knowledgeable about a

material issue upon which evidence is already in the case,

(ii) that the witness would naturally be expected to provide

non-cumulative testimony favorable to the party who

has not called him [her],

(iii) that the witness is available to such party.

Petitioner raised this issue during the summation. But assuming that Petitioner was timely in alerting the Court and adversary, which this Court does not find, Petitioner has failed to meet all three elements. The witnesses whom Petitioner seeks to have the negative inferences drawn against Respondents are the adoptive parents who reside in China and the home attendants for Ms. Lu regarding their observation of Ms. Lu and conversations had with Mo Ling. With [*5]respect to the adoptive parents, there is no evidence that they would have provided non-cumulative testimony in favor of Petitioner. Mo Ling's and her brother's testimony were sufficient to favorably answer the main issue of mother/daughter.In addition, there is no evidence that the home attendants had conversations or knowledge regarding Ms. Lu's relationship or lack thereof with her children, especially Mo Ling. Neither, is there proof that these home attendants were available only to Respondents and not to Petitioner. The negative inference Petitioner seeks to have this Court reach is unsupported by the unrefuted credible evidence on this trial record.

Based on all of the above findings, this Court finds that Respondents have set forth a sufficiently credible defense disproving Petitioner's prima facie case. It is ordered that Petitioner's case is dismissed with prejudice. Petitioner shall provide a renewal lease to Respondents consistent with this decision.

The above constitutes the Decision and Order of the Court.

DATED: September 5, 2008_____________________________

Pam Jackman-Brown, JHC

Attorney for Petitioner:

Belkin Burden Wenig & Goldman, LLP

BY: Jeffrey Goldman, Esq.

270 Madison Avenue

New York, NY 10016

212-867-4466

Attorney for Respondents

John D. Gorman, Esq.

26 Broadway - 28th Floor

New York, NY 10004 212-509-8664