[*1]
Hazel Towers Co., L.P. v González
2013 NY Slip Op 51937(U) [41 Misc 3d 1230(A)]
Decided on November 22, 2013
Civil Court Of The City Of New York, Bronx County
Vargas, J.
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on November 22, 2013
Civil Court of the City of New York, Bronx County


Hazel Towers Company, L.P., Petitioner-Landlord,

against

Marguerite González, Respondent-Licensee.




L & T 025446/2013



Horing, Welikson & Rosen, P.C.

11 Hillside Avenue

Willinston Park, New York 11596

Legal Services NYC-Bronx

349 East 149th Street

10th Floor

Bronx, New York 10451

Javier E. Vargas, J.



Upon the foregoing papers and for the following reasons, the motion by Respondent-Licensee Marguerite González ("González"), for, inter alia, summary judgment on her succession claim, is granted; and the cross motion by Petitioner-Landlord Hazel Towers Company, L.P. ("Landlord"), for discovery and other relief, is denied as moot.

By Notice of Petition and Petition filed May 2, 2013, Landlord commenced the instant licensee holdover proceeding against Ms. González to recover possession of premises known as 1740 Mulford Avenue, Apartment 6F, in the Bronx, New York, based on the fact that she no longer had a license or right to occupy the premises because the tenant-of-record, Paul Constantino, had passed away on February 21, 2013, and the rent-stabilized lease governing the premises had expired on March 31, 2013. Although the premises are subject to the Rent Stabilization Laws, Landlord alleged the González was unprotected by those laws as merely a licensee without legal right to the apartment. Prior thereto, on April 5, 2013, Landlord had served upon González a ten-day Notice to Quit by April 17, 2013, stating that her continuance at the premises was unlawful, without the Landlord's permission, and revoking any prior license given to her.

After several adjournments and González's obtaining counsel, Bronx Legal Services of New York, this Court issued an order dated August 7, 2013, setting a briefing schedule and ordering González to pay ongoing and past use and occupancy ("U & O") owed since May to August 2013 in the total amount of $3,103.08 by August 31, 2013. By Answer dated September 6, 2013, González denied most of the Petition's allegations and raised as an affirmative defense that she was entitled to succession rights to the apartment, pursuant to Rent Stabilization Code (9 NYCRR) §§ 2520.6(o) and 2523.5(b)(1), as the deceased tenant-of-record's nontraditional domestic partner, who resided with him for at least one year preceding his death.

By Notice of Motion returnable September 30, 2013, González moves for summary judgment in her favor, pursuant to CPLR 3212, arguing that she is entitled to succession rights to the apartment as Constantino's domestic partner because she shared an emotionally and financially committed and interdependent relationship, and has resided with him for over ten years prior to his untimely passing from cancer. Only one year is necessary pursuant to Rent Stabilization Code § 2523.5(b)(1), because, according to González, she is a disabled person suffering from Multiple Sclerosis, wheelchair bound and with severe limited motor functions, who subsists on a fixed, meager income from Social Security Disability. In her Affidavit, González affirms, among other things, that she had a long-term and loving relationship with Constantino since 1987 spanning over 25 years, ten of which they lived together at the subject premises; that her three daughters considered him to be like a father to them and sent him birthday and Father's Day cards; that they would go together to concerts, baseball games, vacations and other family, school and friends' activities; that Constantino permitted her to use [*2]his debit card and paid the rent and electric bills, while she paid for the phone and cable bills; and that she cared for and assisted Constantino during his two-year battle with cancer.

In support of her Motion, González submits: (1) her HSBC bank statements from May 21, 2010 and February 22, 2013 showing her address at the subject premises; (2) certified copies of correspondence and documents from the NYC Human Resources Administration, regarding her public assistance benefits, addressed to her at the premises dated December 2011, July and October 2012 and August and September 2013; (3) correspondence to her at the premises dealing with her benefits from the Social Security Administration dated September 2011 and September 2013; (4) correspondence to her at the premises from Montefiore Medical Center dated August 2012; (5) letter from the US Department of Education regarding her student loans addressed to her there on October 4, 2012; (6) several photos depicting González and Constantino in family functions, a high school graduation, outings with mutual friends and vacations; (7) an Access-a-Ride application with her address there dated July 9, 2008; and (8) greeting cards purportedly sent to her and Mr. Constantino by her daughters and others for birthdays, Father's Day and condolences after his passing. In further support, González also submitted an affidavit by her daughter, Jessica González, who lived with them and attested to the long-term and loving relation between González and Constantino as well as his paternal relationship and friendship with González's three daughters.

In opposition, Landlord cross-moves for leave to conduct discovery in the form of depositions of Ms. González pursuant to CPLR 408, 3102 and 3107, and for a dismissal of her defenses and a final judgment in its favor pursuant to RPAPL 745(2)(c)(I). Through its counsel's affirmation, Landlord argues that González has failed to establish an entitlement to succession to the apartment because all the proof submitted is allegedly not in admissible form and issues of fact exists as to the couple's financial commitment and interdependence. According to Landlord, González has failed to provide any canceled checks, credit card receipts or any documentary formalization of their legal obligations, such as the execution of wills, powers of attorneys or health proxies between them.

It is well settled that in order to succeed on a motion for summary judgment, a movant must establish her claim or defense sufficiently to warrant the court as a matter of law in directing judgment in her favor (CPLR 3212[b] ), and she must do so by tender of evidentiary proof in admissible form (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). It is also well settled that upon the death or surrender of a rent-stabilized tenant, Rent Stabilization Code § 2523.5(b)(1) provides automatic succession rights to "any member of such tenant's family, as defined in Section 2520.6(o) of this Title, who has resided with the tenant in the housing accommodation as a primary resident... where such person is... a disabled person' for a period of no less than one year, immediately prior to the permanent vacating of the housing accommodation by tenant, shall be entitled to be named as a tenant on the renewal lease." Under the test first articulated in Braschi v Stahl Assoc. Co. (74 NY2d 201 [1989]), and subsequently codified in various provisions of the Rent Stabilization Code and regulations, the definition of a "family member" has been expanded beyond its traditional meaning to include "any other person residing with the tenant in the housing accommodation as a primary or principal residence, respectively, who can prove emotional and financial commitment and interdependence" (9 NYCRR 2500.2[n][2]; see 9 NYCRR 2520.6[o][2]; Arnie Realty Corp. v Torres, 294 AD2d 193, [*3]194 [1st Dept. 2002]).

The Rent Stabilization regulations provide that evidence of whether such "commitment" and "interdependence" existed may include, but is not limited to, the following eight factors:

(I) longevity of the relationship;
(ii) sharing of or relying upon each other for payment of household or family expenses, and/or other common necessities of life;
(iii) intermingling of finances as evidence by, among other things, joint ownership of bank accounts, personal and real property, credit cards, loan obligations, sharing a household budget for purposes of receiving government benefits, etc.;
(iv) engaging in family-type activities by jointly attending family functions, holidays and celebrations, social and recreational activities, etc.;
(v) formalizing of legal obligations, intentions, and responsibilities to each other by such means as executing wills naming each other as executor and/or beneficiary, granting each other a power of attorney and/or conferring upon each other authority to make health care decisions each for the other, entering into a personal relationship contract, making a domestic partnership declaration, or serving as a representative payee for purposes of public benefits, etc.;
(vi) holding themselves out as family members to other family members, friends, members of the community or religious institutions, or society in general, through their words or actions;
(vii) regularly performing family functions, such as caring for each other or each other's extended family members, and/or relying upon each other for daily family services;
(viii) engaging in any other pattern of behavior, agreement, or other action which evidence s the intention of creating a long-term, emotionally committed relationship.


(9 NYCRR 2500.2[n][2]; 9 NYCRR 2520.6[o][2]) . Notwithstanding this list, however, the regulations themselves provide that "no single factor shall be solely determinative" in making such determination (id.; see Classic Prop., L.P. v Martinez (168 Misc 2d 514, 516 [AT 1st 1996]). This principle was also emphasized in Braschi, by cautioning that although the enumerated "factors are most helpful, * * * the presence or absence of one or more of them is not dispositive since it is the totality of the relationship as evidenced by the dedication, caring and self-sacrifice of the parties which should, in the final analysis, control" (Braschi v Stahl Assoc. Co., 74 NY2d at 213).

Applying these legal principles to the matter at bar, González has tendered sufficient evidence to make a prima facie showing of entitlement to summary judgment on her succession claim. Her submissions demonstrate, beyond factual dispute, the existence of a 25-year long-term committed family-type relationship between González, her family and the deceased tenant-of-record, Mr. Constantino. The evidence, including several, certified governmental agency letters, applications and intimate cards, corroborates her residence at the subject premises with Constantino before and during the relevant statutory period, and documents their close and long-term relationship. Several photographs, holiday and birthday cards depict their joint celebration of holidays and family functions, as well as travel to vacation spots, like the Delaware River and Horseshoe Lake in Upstate New York, as well as Gonzalez's hometown of [*4]San Diego, California, over a period in excess of ten years.

Not only her affidavit, but that of her daughter Jessica, attest to the close nature of their relationship with Constantino, and how they lived together for many years, held themselves out as a couple and were treated as such by their friends, family and the hospital where he was treated. González's daughter recounted how her mother's bond with Constantino grew stronger as they both empathized with each other about their debilitating illnesses, her Multiple Sclerosis and his cancer. Indeed, according to Jessica, Constantino was like a father to her, attended graduations and birthdays, as evidenced by Father's Day cards and other cards she sent, because her biological father lived in Los Angeles and rarely visited with them.

González further affirmed that Constantino was the main financial supporter of their household at the subject premises, while she contributed as best she could, and paid for the phone and cable bills. After Constantino was diagnosed with cancer in 2011, González cared for, bathed, treated his bedsores, made appointments, accompanied him to doctors' visits and assisted Constantino with his medications and movements at home throughout his two-year battle with the disease. More significantly, it is undisputed that González and one of her daughter provided domestic care and support toward the end of Constantino's life, when he was completely dependent upon their care (see Arnie Realty Corp. v Torres, 294 AD2d at 194). No one disputes that he died in 2013 surrounded only by his mother, González and her daughter. Even her relatives and Constantino's hospice care provider, Calvary Hospital, had sent condolences letters to González referring to her as the deceased's "loved one."

Contrary to Landlord's argument that the lack of financial interdependence is fatal to González's succession claim, statutory and judicial precedent belies that assertion, as the existence of financial commingling constitutes merely one of the factors to consider in examining the relationship. As previously stated, "no single factor shall be solely determinative" (22 NYCRR 2204.6 [d] [3] [I]); it is the totality of the relationship which controls (see Braschi v Stahl Assoc. Co., supra at 213). For instance, in Classic Prop., L.P. v Martinez (168 Misc 2d at 516), the Appellate Term held that the absence of a joint bank account or other documents showing financial interdependence between the parties was insufficient to raise a triable issue of fact (see Arnie Realty Corp. v Torres, 294 AD2d at 193). This is a fortiori where the parties have sufficiently established that they possess limited assets and lack significant resources (see Roberts Ave. Assoc. v Sullivan, 2003 NY Slip Op 51091[U] [AT 1st 2003]; Wiener Mgt. Co. v Trockel, 192 Misc 2d 696, 702-703 [Queens Civil Ct 2002]).

Similarly here, neither Constantino nor González possessed significant material resources; to the contrary, it is undisputed that González is a disabled individual counting as her only income limited Social Security Disability and Supplemental Security benefits. Constantino menially worked at the New York Times loading trucks every night. As such, the absence of documentary evidence of financial interdependence and commitment was "consistent with respondent and [the record tenant's] limited means and simple lifestyle" (2025 Walton Assoc., LLC v Arroyo, 34 Misc 3d 1232[A], *5 [Bronx Civil Ct 2012]). It is also undisputed on this record that González and the deceased tenant were not mere roommates or business associates, but two adult lifetime partners who resided together in a household "having all of the normal familial characteristics" (Braschi v Stahl Assoc. Co., supra, at 211). Thus, the objective evidence produced by González, which was not meaningfully opposed by Landlord, establishes a prima [*5]facie claim of succession rights, and warrants a judgment in her favor.

The burden then shifted to Landlord to produce evidence in admissible form to demonstrate the existence of a disputed material issue of fact sufficient to require a trial (see SRM Card Shop, Inc. v 1740 Broadway Assoc., L.P., 2 AD3d at 140; CPLR 3212[b]). A party, in opposition to a motion for summary judgment, must assemble and "lay bare" affirmative proof to establish that the matters alleged are real and capable of being established upon a trial (Johnson v Phillips, 261 AD2d 269, 270 [1st Dept 1999]). However, no contrary evidence whatsoever be that from other tenants, the building manager or superintendent has been submitted by Landlord here in opposing the motion. Counsel's affirmation has no probative weight and cannot raise a triable issue (see Zuckerman v City of New York, supra). The mere suggestion that discovery is necessary to defeat summary judgment, without any inkling as to what that discovery would uncover, will not serve to defeat a summary disposition (see Johnson v Phillips, 261 AD2d at 272; CPLR 3212[d]).

Nor do the cases relied upon by Landlord call for a different conclusion under the extant circumstances. Neither in GSL Enters., Inc. v Lopez (239 AD2d 122 [1st Dept 1997]), Seminole Realty Co. v Greenbaum (209 AD2d 345 [1st Dept 1994), nor in 54 Featherco, Inc. v Correa (251 AD2d 23 [1st Dept. 1998]), was there any evidence introduced that the parties shared a family-type relationship, as opposed to that of roommates or friends, since there was no documentation of holding themselves out as family, celebrating together holidays or birthdays, or executing documents naming the other one as beneficiary. Here, there was undisputed evidence of a close, romantic relationship between the parties for a long period of time, as well as correspondence, photos and cards of family functions and of holding themselves out as a couple. Landlord's contrary contentions therefore fail.

In accordance with the foregoing, González's motion for summary judgment as to her succession claim is granted, she is entitled to eviction protection under the succession regulations (9 NYCRR 2204.6[d][3]), and the proceeding is hereby dismissed. Landlord's cross motion for discovery and other relief is denied as moot. González must pay any outstanding U & O within 45 days of service of this Order with Notice of Entry upon her. The foregoing constitutes the decision and order of the Court.

E N T E R:

Dated: November 22, 2013

Bronx, New YorkJ.H.C.