Recitation, as required by CPLR 2219(a), of the papers considered in the review of William Mora's order to show cause for an order staying execution of any warrant of eviction as against William Mora, and for such other and further relief as this Court may deem just and proper:

PapersNumbered

Order to Show Cause1

Affidavit in Support2

Affirmation in Support3

Affirmation in Opposition4

Affidavit in Opposition5

Memorandum of Law in Further Support of Motion[*2]6

Memorandum of Law in Further Opposition of Motion 7

Upon the foregoing cited papers, the Decision/ Order in this motion is as follows:

Petitioner commenced this holdover proceeding against Jr. Gonzalez ("Respondent Gonzalez"), John Doe and Jane Doe on the grounds that Respondent's license to occupy Apartment 6-A ("Premises") at 558 West 164th Street, New York, New York 10032 ("Building") terminated upon the death of the tenant of record, Mirta Mora, on or about May 15, 2012.

On or about August 2, 2012, Petitioner brought a motion seeking leave to conduct discovery of Respondent.

On September 20, 2012, the parties entered into a stipulation settling Petitioner's motion as follows: 1) Pedro Brea appeared and was substituted as "John Doe"; 2) Pedro Brea ("Respondent Brea") agreed to provide the documents in the Notice of Discovery and Inspection on or before October 20, 2012 for two (2) years from May 2010 to May 2012; 3) Pedro Brea agreed to appear at Petitioner's attorney's office on October 29, 2012 for a deposition at 1:00 p.m.; and 4) Pedro Brea agreed to pay use and occupancy at the last lease rate without prejudice. The proceeding was also marked off calendar pending the completion of discovery.

On October 1, 2012, Alexandra Castillo, allegedly the daughter of the deceased tenant of record, brought an order to show cause asserting that when Mirta Mora passed away in May 2012, she had a two (2) year lease that did not expire until February 28, 2014. Further, Ms. Castillo asserted that her mother's lease did not terminate upon her death and was the property of Mirta Mora's estate, and as such, she and Respondent Brea had a right to occupy the premises until at least February 28, 2014. The matter was adjourned to December 3, 2012.

On December 3, 2012, the order to show cause was granted to the following extent of amending the Answer to assert Respondents' right to occupy the Premises pursuant to Mirta Mora's unexpired lease. Alexandra Castillo and Charles Blocke further alleged that Respondent Pedro Brea had vacated the Premises. Subsequently, the proceeding was restored to the court's calendar for trial on December 19, 2012 unless Respondent Brea appeared and reasserted his claims to the Premises. On December 19, 2012, the proceeding was adjourned to February 26, 2013.

On February 26, 2013, the parties entered into a stipulation ("Stipulation") settling the proceeding. The Stipulation states, in pertinent part, that: 1) the caption is amended to reflect Alexandra Castillo ("Respondent Castillo") and Charles Blocke (Respondent Blocke") as Respondents in this proceeding; 2) final judgment of possession was entered in favor of Petitioner; and 3) issuance of the warrant of eviction forthwith, with execution [*3]stayed to February 28, 2014 on the condition that Respondents pay use and occupancy as per the Stipulation. In the event of default, Petitioner could accelerate the warrant on service of the Marshal's notice. Further, Respondents warranted and represented that they and their two (2) children are the only occupants of the Premises and they had not and would not sublet, assign or otherwise encumber the Premises through the date of vacatur.

On March, 4, 2014, William Mora brought this Order to Show Cause seeking to stay execution of the warrant of eviction as against him. Mr. Mora asserts he is entitled to succeed to Mirta Mora's, his mother, tenancy. Mr. Mora alleges that the Premises has been his one and only primary residence since 1977, and that the only time period he did not reside in the Premises on a day to day basis was from October 2006 until May 2013, when he was in prison. Mr. Mora asserts that he was incarcerated from October 2006 to May 2013, however, he claims he has moved back into the Premises since his release from jail. Mr. Mora annexed to his motion evidence of a letter with a corresponding envelope received from his Parole Officer M. Mayfield dated October 18, 2005, copies of DMV records dated August 9, 2005, a copy of a summary report of Mr. Mora's child support obligations dated January 27, 2006, and a copy of an IRS Notice dated November 7, 2005 all listing the subject premises as his address.

Mr. Mora also asserts that he was not named as a party, he was not served with any process, and he was not informed of the Stipulation entered into in this proceeding. Mr. Mora contends that he was denied due process, and moreover, his time in jail cannot impede upon his succession rights. Further, Mr. Mora contends that Respondent Castillo did not have the authority to bind him to the Stipulation.

Petitioner opposed Mr. Mora's order to show cause by asserting that: 1) William Mora was named herein as "John Doe" in this proceeding, and that he failed to properly move to vacate his default in this proceeding, 2) since Mr. Mora was not named as a co-occupant on his mother's Section §8 HAP Contract, he is barred from claiming succession; 3) Respondent Castillo's representations in the Stipulation bar Mr. Mora's succession claim; and 4) Petitioner cannot be prejudiced by Mr. Mora's delay in asserting a claim for succession as it was not made aware of Mr. Mora's claim for succession or his whereabouts. Moreover, Petitioner contends that Mr. Mora's claim for succession must fail since he concedes he was not contemporaneously occupying the Premises two years immediately prior to his mother's death, and he fails to offer a valid exception to such requirement.

"Due process requires only that, for a warrant to be effective against a subtenant, licensee or occupancy, he be made a party to the proceeding, either by naming him in and serving him with the petition and notice of petition or by joining him as a party during the pendency of the proceeding." 170 W. 85th St. Tenants Assoc. v. Cruz, 173 AD2d 338 (1st Dept. 1991)

Here, William Mora was not named or served in this proceeding, and would be deprived of due process since he will not have the opportunity to assert his claim of succession to the Premises. Petitioner's argument that Mr. Mora was named and served in [*4]this proceeding as "John Doe" is unavailing, as Pedro Brea was substituted as "John Doe" pursuant to the stipulation dated September 20, 2012. As such, Petitioner cannot now utilize the already amended "John Doe" for Mr. Mora.

Furthermore, it is well settled law that "a tenant does not forfeit his primary residence status with respect to a rent-regulated premises due to a temporary absence therefrom. This is true where the tenant's temporary absence is attributable to a definite term of incarceration in prison." Kelly Mgt LLC v. Soltero, 27 Misc 3d 984 (Civ. Ct. Bx Co. 2010); Chris-Mac co. v. Johnpoll, 130 Misc 2d 478 (Civ Ct., NY Co, 1985) revd on other grounds 134 Misc 2d 597 (App. T. 1st Dept. 1987); 216-220 E. 67th St. Assocs. v. Quinn, 136 Misc 2d 188 (Civ. Ct. NY Co. 1987). "A patient or inmate of an institution does not gain or lose a residence or domicile, but retains the domicile he had when he entered the institution." Matter of Corr. v. Westchester County Dept. of Social Servs., 33 NY2d 111, 115 (1973); see also, NY Const., art II, §4 ("No person shall be deemed to have gained or lost a residence, by reason of his presence or absence...while confined to any public prison.")

In Kelly Mgt LLC v. Soltero, supra., Petitioner commenced a licensee holdover proceeding to recover possession of apartment 5C at 758 Kelly Street on the grounds that Mr. Soltero's continued right to occupy the subject premises terminated upon the death of the tenant of record in May 2009. Mr. Soltero claimed that he was entitled to succession because he is the grandson of the deceased tenant of record and has primarily resided at the subject premises for more than twenty-seven (27) years. While Mr. Soltero admittedly was incarcerated from January 2005 until January 2009, he alleged that the period of incarceration does not affect his right to succession. In support of his succession claim, the tenant submitted an affidavit attesting to his continued residency at the premises, and annexed copies of his birth certificate along with copies of certain documents listing the premises as his address. Petitioner failed to offer any affidavit from a party rebutting any of Mr. Soltero's claims. Therefore, the court granted Mr. Soltero's motion for summary judgment. Notably, the court stated, in pertinent part, that:

respondent's period of incarceration from January 2005 until January 2009 does not affect any right he may have to succession at the premises.

since respondent was incarcerated during a portion of the two years immediately preceding the tenant of record's death in May 2009, respondent must establish that he resided at the premises prior to serving his prison sentence in January 2005 and after his release in January 2009.

In New York, at least for apartments which are subject to rent control and rent stabilization, the prevailing law holds that imprisonment does not break the nexus an individual has with the subject premise as it relates to succession rights.

Petitioner cites Emay Props. Corp. v. Norton, 136 Misc 2d 127 (App. T. 1st Dept. 1987) [*5]and Chris-Mac Co. v. Johnpoll, 134 Misc 2d 597 (App. T. 1st Dept. 1987) in support of its argument that Mr. Mora is not entitled to succeed to his mother's tenancy at the Premises. However, both Emay Props. Corp. v. Norton, supra. and Chris-Mac Co. v. Johnpoll, supra. are distinguishable as the tenants in Emay Props. Corp. and Chris-Mac Co. were still incarcerated at the commencement of the proceedings and serving a lengthy indeterminate sentence with no foreseeable release from jail.

In Emay Props. Corp. v. Norton, supra., the tenant was convicted after trial of murder in the second degree and was sentenced to an indeterminate term of fifteen (15) years to life. In Chris-Mac Co. v. Johnpoll, supra., the court found that the tenant had not resided in the apartment since at least September 1983, nor was it shown that the tenant would be in a position to resume occupancy of the premises in the foreseeable future.

Here, William Mora was incarcerated for six and a half (6 ½) years. He was conditionally released on May 31, 2013, and resumed occupancy of the Premises subsequent to his release. Notably, the Certificate of Release to Parole Supervision dated May 30, 2013, and signed by Mr. Mora lists the subject premises as his residence. As mentioned above, Mr. Mora also submitted evidence of a letter with a corresponding envelope received from his Parole Officer M. Mayfield dated October 18, 2005, copies of DMV records dated August 9, 2005, a copy of a summary report of Mr. Mora's child support obligations dated January 27, 2006, and a copy of an IRS Notice dated November 7, 2005, all listing the subject premises as his address. In rebutting Mr. Mora's claims and proof, Petitioner only submitted an affidavit of Genaro Serrano asserting he was unaware that Mr. Mora was in prison or claimed possession to the Premises, and a copy of Mirta Mora's Section §8 HAP contract failing to list Mr. Mora as an occupant of the Premises in 2001. Mr. Mora, however, is not bound by his mother's failure to list him on the Section §8 HAP contract as an occupant. Therefore, this Court finds that Mr. Mora states a colorable claim of succession to his mother's tenancy at the Premises, and should be provided an opportunity to be heard on said claim. Moreover, the prejudice allegedly suffered by Petitioner due to Mr. Mora's delay in interposing his claim of succession is not enough to waive his due process right to assert this substantial defense to a licensee holdover proceeding.

Additionally, contrary to Petitioner's contentions, Respondents Castillo and Blocke's representations in the Stipulation are not binding on Mr. Mora as they did not have the authority to enter in the agreement on his behalf, and Mirta Mora's omission of Mr. Mora's occupancy at the Premises on the Section §8 HAP contract also does not prohibit his right to assert his affirmative defense of succession to a licensee holdover proceeding. Mr. Mora, under the Fifth and Fourteenth Amendments to the United States Constitution, has a fundamental right to be afforded due process of law. This entails the right to notice and an opportunity to be heard before being deprived of the legal right to assert a substantial claim. Since Mr. Mora was admittedly never served with the Notice of Petition and Petition herein, he was given no notice. Since Mr. Mora was not named as a party in this proceeding, he was given no opportunity to be heard. These are substantial rights which cannot be lightly dispensed with. [*6]

Accordingly, William Mora's motion is granted. Petitioner is permanently stayed from executing the warrant of eviction herein against William Mora. This is without

prejudice to Petitioner's right to commence a licensee holdover proceeding or any other appropriate legal action against Mr. Mora.

The foregoing constitutes the decision and order of this Court.



Dated: New York, New York ___________________________

April 1, 2014 Peter M. Wendt, J.H.C.