BACKGROUND

This summary holdover proceeding was commenced by INFINITY CORP (Petitioner) against EVELYN DANKO, AS EXECUTRIX OF THE ESTATE OF BERT HERBERT(Danko), and ALISTON PHILIP(Respondent), based on the allegation that Bert Herbert (Herbert) the last rent stabilized tenant of record was deceased, and his estate had unlawfully sublet or assigned Apt 7L, 140 Seventh Avenue, New York, NY 10011 (Subject Premises) to Respondent. Respondent has asserted the right to succeed to Herbert's tenancy pursuant to 9 NYCRR §2520.6(o).

This proceeding was commenced by service of a Notice to Cure dated March 23, 2012. A notice of termination issued April 21, 2010, and the petition issued on May 10, 2010. Danko filed her answer June 14, 2010, and Respondent filed an answer and appeared through counsel May 19, 2010.

On August 18, 2010, the court (Cappella, J) issued a decision dismissing Respondent's second affirmative defense, and marked the proceeding off calendar for discovery. Further disputes regarding discovery were resolved pursuant to an order issued by the court (Schreiber, J) on December 1, 2010, and a stipulation of the parties dated November 17, 2011.

On October 3, 2012, the attorneys for Danko moved to withdraw as counsel. The motion was granted on consent, after the execution of a stipulation of facts and surrender by Danko. The trial commenced on October 3, 2012, continued on October 4, and October 15, concluding on October 16, 2012. The parties submitted post trial memos on December 4, 2012 and the court reserved decision.

Respondent commenced an action in Supreme Court against Petitioner and Mark Greenberg Real Estate Co LLC under Index No. 102552/2010 seeking a declaratory judgment that he is entitled to succeed to the tenancy of Herbert, and related relief.

In April 2010, Respondent moved for a preliminary injunction and temporary restraining order, preventing Petitioner from taking steps to evict Respondent or interfere with Respondent's use of the Subject Premises. On April 12, 2010, the court (Ling-Cohan, J) issued a written order declining to sign the Order to Show Cause.

The summons and complaint were filed in June 2010.

On June 7, 2010, the court (Ling-Cohan, J) transferred the action sua sponte pursuant to a decision that provided in part:

After conference, this landlord-tenant matter is sua sponte transferred to the Housing Part of the Civil Court of the City of New York, in accordance with Article 6 § 19 of The New York State Constitution, to be consolidated with the pending Housing Court proceeding, if deemed appropriate. This case involves the rent stabilized status of plaintiff tenant and issues which are currently being litigated in the context of a holdover proceeding, commenced by the landlord in the Housing Court (Index No 66511/2010). Having cases pending in two (2) courts with respect to the same residential apartment is costly & burdensome to the parties as well as the courts. It is in the interest of justice, judicial economy and the parties that this landlord-tenant matter be resolved in one court; The court specifically designed to expeditiously resolve landlord-tenant [*2]disputes. Plaintiff's third cause of action for damages based upon defendant's alleged harassment, is severed & transferred to the Civil Court pursuant to CPLR 325(d).

In September through November 2010, Respondent moved for discovery and for leave to amend his complaint, and Petitioner cross-moved for summary judgment and related relief. Pursuant to a decision and order issued January 31, 2011, the court (Samuels, J) denied Respondent's motion, and granted Petitioner's motion for summary judgment, dismissing the third cause of action, without prejudice to first and second cause of action which were deemed consolidated with the summary holdover proceeding.

On September 11, 2012, counsel for both sides stipulated on the record that the sole issue for trial was Respondent's succession claim, and Petitioner's prima facie case as to subletting against the estate was waived.^[FN1]

On October 3, 2012, the parties stipulated to the following facts: Herbert, the last tenant of record for the Subject Premises died on November 18, 2009; Respondent remained in the Subject Premises after Herbert's death; Danko never sought Petitioner's consent to sublet to Respondent and Petitioner never consented to any such sublease; Danko acknowledged service of the predicate notices, and both respondents acknowledged service of the petition; Danko acknowledged Petitioner's prima facie case of subletting in its entirety and surrendered all interest in the Subject Premises.

The first witness presented by Respondent was Eugene Price (Price). Price has been a good friend of Respondent for many years. Price did not know Herbert well, but he had a house on the same block as Herbert's house in Fire Island. Price had been to dinner at the Subject Premises with his partner, Respondent and Herbert in 2004 or 2005. Price also had drinks with Respondent and Herbert two or three times each summer. Price saw Herbert and Respondent together every weekend in Fire Island from 1994 through 2000. After 2000, Price saw Respondent less in Fire Island on the weekends, because Respondent often remained in the city for work as a trainer. However, Price still saw them together on about half the weekends in the summer from 2000 through 2009, in Fire Island.

Respondent described Herbert as his lover to Price.Price testified that when Herbert became ill, Respondent quit his job to care for Herbert. Price observed that Respondent and Herbert were affectionate towards each other on the occasions Price socialized with them, often holding hands.

John Joseph Labbe (Labbe) also testified for Respondent. Labbe is friends with Respondent, and met Herbert around 2005. Labbe met Herbert when Herbert had purchased a computer and needed help setting it up in the Subject Premises. Labbe knew Herbert and [*3]Respondent to be "boyfriends". Labbe described them as affectionate and bickering like lovers, and testified that this was the dynamic of their relationship. When Herbert became ill, Respondent devoted a lot of time to caring for him in the last year of his life. Labbe met Herbert less then ten times, but saw Respondent more frequently.

Respondent testified on his own behalf. Respondent met Herbert in the summer of 1995 in Fire Island. Herbert went to dinner at the restaurant where Respondent worked as a waiter, and the next day Herbert invited Respondent to live in Herbert's Fire Island home for the summer. Respondent accepted the invitation and moved in. They spent time together over the summer, and Herbert gave Respondent keys to the Fire Island home.

After the season, in October 1995, Respondent returned to his apartment in Harlem and Herbert invited Respondent over for dinner at the Subject Premises. Herbert and Respondent spent the night together, but Respondent continued to live in his own apartment. Herbert and Respondent continued in this pattern for a while, and then Herbert invited Respondent to move into the Subject Premises.

Respondent and Herbert agreed that Respondent would keep his own apartment in Harlem, Herbert would help to pay Respondent's rent on that apartment and they would spend weekends together at the Subject Premises. That arrangement remained in place through April 1996, when they returned to Fire Island. They spent the summer together in Fire Island, and in the Fall of 1996, Respondent moved into the Subject Premises with Herbert on a trial basis.

From 1998 through 2005, in the summers, Respondent would spend most weekends with Herbert at Fire Island, and remain in New York City during the week. Respondent and Herbert entertained friends. Respondent was in charge of opening and closing the house each season in Fire Island. Though neither Respondent nor Herbert were close with their blood relatives, they each made an effort to meet the family of the other. Herbert met Respondent's sister on one occasion for dinner at the Subject Premises, and Respondent met Herbert's mother and nephew in the 1980s on one occasion.

By 2005, Respondent and Herbert were deeply in love, and Respondent permanently moved into the Subject Premises on a full time basis. Respondent and Herbert shared meals, slept in the same bed and Respondent ran the household. Respondent cleaned the Subject Premises, did the grocery shopping, cooked and ran errands. Herbert helped Respondent financially and paid the rent and all of the bills.

Herbert executed lease renewals for the Subject Premises from 2002 through 2006. The lease renewal packages included documents where Herbert was asked to identify any other individuals living in the Subject Premises, and Herbert indicated he was the sole occupant of the Subject Premises (Exs 11 - 13). In the August 2008 renewal package, Herbert's identified Respondent as living in the Subject Premises and under relationship, Herbert listed "friend" (Ex C).

In 2009, Herbert was diagnosed with cancer for a second time. From May 2009 forward, Herbert became totally dependent on Respondent for care and was not even to walk independently. Herbert had become physically weak. Respondent had to get Herbert out of bed, feed him and bathe him. Herbert would repeatedly defecate on himself during the course of the day, requiring Respondent to bathe Herbert multiple times per day. Caring for Herbert became a [*4]full time job for Respondent. Herbert was scheduled for surgery in October 2009. Herbert never returned to the Subject Premises after the surgery.

While Herbert primarily relied upon Respondent for domestic types of functions, Respondent primarily relied on Herbert financially. In the last month of his life, while Herbert was hospitalized, he gave Respondent two pieces of jewelry and a check for a large sum of money. In January 2008, Herbert and Respondent opened a joint bank account with approximately $10,000, which Respondent testified was provided by Herbert. The account was primarily used by Respondent, and another way that Herbert provided financially for Respondent.

Besides his work as a trainer Respondent testified that he also worked as a masseur. Respondent placed ads on the internet under the alias Black Adonis, through various websites including EZ Rent Systems. Respondent testified that these ads were offering his services as a masseur, however the ads put into evidence were explicitly sexual and suggest other services were being offered (Ex 14).

Herbert had a will at the time he died. The will was executed in December 2008 (Ex B). Pursuant to the will, Herbert left Respondent half the proceeds from the sale of the Fire Island home and one third of any residuary estate. The other half of the proceeds and another one third of the residuary estate were left to Ralph Garcia Vega, who had shared the Fire Island home with Herbert and Respondent. Herbert also left $20,000 each to two other friends and a mutual fund account and remaining one third of the residuary estate to his nephew. The bequest by Herbert to Respondent exceeded $300,000.00 in value.

Herbert was buried in Westchester with his long time partner Vick Vorak, who had predeceased him and died in the 1980s. Herbert's ashes are buried in the Gates of Heaven Cemetery in Vahalla New York. Herbert made all the arrangements prior to his death. There was no ceremony or obituary after Herbert's death, because Herbert left instructions that he did not want them.

Petitioner also presented the testimony of Danko. Danko was the executrix of Herbert's estate and his close friend for thirty years. Danko was Herbert's attorney in fact and his health care agent. Danko primarily saw Herbert on Fire Island, where she saw him daily. Danko would also lunch with Herbert in New York during the winter months. Danko has known Respondent for over ten years, and she testified that they had a friendly relationship. After Herbert's death, Danko left most of Herbert's personal property in the Subject Premises for Respondent.

Danko testified that Herbert never discussed his relationship with Respondent with her. Danko produced a photograph of Herbert taken at her home on Christmas Eve in or around 2001 (Ex bb). Respondent later testified that Danko did not like him and had not invited him to the dinner at her home on Christmas Eve. The Court credits Respondent's testimony that Danko did not like Respondent.

DISCUSSION

§ 2523.5 of the Rent Stabilization Code provides in pertinent part that at the time a renewal lease is offered if the tenant of record has permanently vacated, a member of the tenant's family "... who has resided with the tenant in the housing accommodation as a primary residence for a period of no less than two (2) years ... immediately prior to the permanent vacating of the housing accommodation by the tenant ... shall be entitled to be named as a tenant [*5]on the renewal lease."

The definition of family member under the Rent Stabilization Code includes ...

Any other person residing with the tenant ...in the housing accommodation as a primary residence, who can prove emotional and financial commitment, and interdependence between such person and the tenant .... ( RSC § 2520.6(o)).

Factors to be considered in making such a determination include longevity of the relationship, sharing expenses, relying on each other for the common necessities of life, intermingling of finances, formalizing of legal obligations, and caring for each other.

At trial Respondent met his burden of establishing by a preponderance of the evidence that he resided with Herbert at the Subject Premises for over two years prior to Herbert's death.

Respondent also established that he was a non traditional family member as defined by the Rent Stabilization Code. Respondent and Herbert had a long term relationship which began in 1994, and lasted until Herbert's death in 2009. Respondent was financially dependent upon Herbert, and relied upon Herbert for the payment of household expenses and other common necessities of life. Respondent and Herbert had a joint bank account.

Significantly, Herbert left Respondent a bequest in his will that had a value of $300,000, which was a formalization of Herbert's intentions towards Respondent by executing a will where Respondent was named as a beneficiary. Additionally, in the last months of Herbert's life it is uncontested that Respondent cared for Herbert, and that said care was full time for a period covering May 2009 through October 2009.

Respondent regularly performed family functions for Herbert such as cooking, shopping, cleaning and laundry, and Herbert who was forty years Respondent's senior relied upon Respondent to do so.The Court found Respondent to be a credible witness, and found particularly credible the detailed description of the life Respondent shared with Herbert over a fourteen year period.

Prince and Labbe both credibly testified that over a period of many years Herbert and Respondent held themselves out as a couple both by their words and their actions. The evidence also shows that most of Herbert's close friends were deceased as of the time of the trial, Herbert having been in his late eighties when he died.

While Petitioner places heavy emphasis on the emails sent by Respondent related to Rentboy.com, and while the court did not find Respondent's testimony regarding the emails to be credible, the court finds it understandable that Respondent would be reluctant to readily testify about such activity. The court finds that the emails related primarily to Respondent's employment, and not to the nature of the relationship between Respondent and Herbert. The Court credits Respondent's testimony that Herbert was aware of Respondent's activity on said websites.

Viewed as a whole, the preponderance of credible evidence at trial supports a finding that Respondent and Herbert were nontraditional family members as defined by the RSC and that they had a long term, loving relationship wherein each relied upon the other to provide what was needed. Respondent relied upon Herbert financially and Herbert relied upon Respondent for care and assistance with daily living. This was a relationship that went well beyond that of roommates or a caregiver, Herbert and Respondent were each other's family and shared their lives for a period of approximately fifteen years.

Based on the foregoing, the court finds that Respondent is entitled to receive a renewal [*6]lease and the petition is dismissed.