In this licensee holdover proceeding, respondent, Maria Concepcion Wescott, alleges that she has succession rights to Unit A at 129 East 97th Street in New York County. Respondent concedes that she did not occupy the subject rent-stabilized unit with Lyman Wescott, her late husband, during the two years immediately before he died.

Petitioner, 1504 Associates, LP, argues that respondent, an illegal alien, is not entitled to succeed to the late Mr. Wescott's tenancy. Respondent argues that the Rent Stabilization Code's time requirement does not preclude her succession claim. According to respondent, she temporarily separated from Mr. Wescott due to marital difficulties resulting from his habit of smoking cigarettes. Respondent further argues that being an illegal alien does not prevent her from obtaining succession rights to a rent-stabilized apartment.

Respondent freely acknowledges that she is a citizen of Mexico and that she illegally entered the United States in 1999. Respondent alleges that she and Mr. Wescott moved into the subject apartment in August 2004 and that she continued to occupy the apartment with Mr. Wescott until they experienced marital difficulties resulting from his cigarette smoking.

Respondent alleges that after she and Mr. Wescott separated in May 2007, they reconciled in September 2008 and that she returned to the subject apartment in January 2009.

After Mr. Wescott died of emphysema in June 2009, petitioner was unable to recover possession of the subject apartment because respondent had taken occupancy. Petitioner served respondent with a notice to quit, but she declined to vacate. When the notice to quit expired, petitioner served and filed a petition and notice of petition through which petitioner seeks a judgment of possession against respondent. [*2]

Petitioner now moves for summary judgment and to strike respondent's defense of succession rights and personal jurisdiction.

Respondent cross-moves for summary judgment to dismiss this proceeding. Respondent also claims that summary judgment should be denied because petitioner relies on an unsigned deposition transcript for much of its argument on the facts.

Both motions are consolidated for disposition. Summary judgment is denied against both sides.

To prevail on a motion for summary judgment, the moving party must demonstrate that it is entitled to judgment as a matter of law. (Zuckerman v City of New York, 49 NY2d 557, 562 [1980].) This standard requires the proponent of a summary-judgment motion to make a prima facie showing of entitlement to judgment by advancing evidentiary proof in admission form to demonstrate the absence of any material issue of fact. (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985].)

Petitioner argues that because respondent is in the United States illegally, she cannot be granted succession rights to the subject apartment. Petitioner argues that the Court of Appeals's holding in Katz Park Avenue Corp. v Jagger (11 NY3d 314 [2008]) should lead this court to find that respondent cannot receive succession rights to a rent-stabilized apartment.

In Jagger, the Court found that because the tenant's B-2 visa required her to maintain a principal domicile outside the United States, she could not claim for succession purposes that the subject apartment was her primary residence during the relevant window period. (Id. at 317.) Here, petitioner argues that respondent cannot meet her burden to prove that the subject apartment is her primary residence. Petitioner notes that federal law requires her to be outside the country every day of the year.

Jagger turned on the fact that the tenant had admitted in a B-2 visa that her "principal, actual dwelling place" was in Great Britain. (Id. at 316, 318.) That admission contradicted her claim that the subject rent-stabilized apartment was her primary residence: She could not have two primary residences. (Id. at 317.) As the Court observed, "How she could at the same time have a primary residence' in New York City is something she has not explained." (Id.)

But the Court did not find that an illegal alien may never be entitled to succession rights for a rent-stabilized apartment. The Court wrote, rather, that it "need not consider whether someone who is in the United States illegally may have a primary residence in New York for rent regulation purposes." (Id. at 318.) The Court suggested that a tenant's immigration status is but one factor for a trial judge to consider in determining the tenant's primary residence. (Id. at 317, citing Rent Stabilization Code [9 NYCRR] (RSC) § 2520.6 [u].)

Petitioner argues in the alternative that respondent has no succession rights regardless of her immigration status. According to petitioner, respondent did not reside with Mr. Wescott for the requisite two-year time period immediately before he died. Respondent argues that she [*3]separated from her husband due to marital difficulties resulting from Mr. Wescott's smoking and therefore that her succession claim is viable.

The Rent Stabilization Code prescribes that "[t]he minimum periods of required residency . . . shall not be deemed to be interrupted by any period during which the family member temporarily relocates because he or she: has such other reasonable grounds that shall be determined . . . upon application by such person." (RSC § 2104.6 [d] [1] [vi].) Respondent cites 390 West End Associates v Pearl (NYLJ, June 5, 1997, at 30, col 3 [Civ Ct, NY County]), in which the court found that a wife who had fled from the subject apartment due to her husband's physical abuse was still entitled to succeed.

Whether Mr. Wescott's smoking habit constitutes sufficient grounds to evict under RSC § 2104.6 (d) (1) (vi) is reserved for trial. Although James J. Wescott, Mr. Wescott's son, claims in an affidavit that the reason respondent left the subject apartment had nothing to do with Mr. Wescott's habit of smoking cigarettes — he was a smoker his entire adult life, his son alleges — this factual determination must await a trial.

Respondent cross-moves for summary judgment to dismiss this proceeding based on succession rights. Summary judgment is denied because issues of fact arise about whether respondent maintained the subject rent-stabilized unit as her primary residence in light of her status as an illegal immigrant, whether she temporarily relocated from the apartment due to Mr. Wescott's smoking, and whether, if so, her relocation due to his smoking excuses her absence from the apartment for the requisite two-year period.

Petitioner also moves to dismiss respondent's first affirmative defense, in which respondent alleges that the notice to quit was not properly served. Petitioner has provided the notice to quit and the affidavits of service for the notice to quit. Because respondent has offered only conclusory allegations and not a specific explanation about how or why service was defective, her affirmative defense is dismissed. No Traverse hearing will be held.

Respondent argues that summary judgment should in petitioner's favor be denied on the ground that petitioner relies on respondent's unsigned transcript for much of its argument. The contention that the transcript is unsigned is academic because the petitioner's motion for summary judgment is denied on other grounds.

Adjourned for trial to August 12, 2010.

This opinion is the court's decision and order.

Dated: July 13, 2010

J.H.C.