The above-captioned is a licensee holdover proceeding. The premises at issue is a rent-stabilized, four-bedroom, "railroad flat" apartment in Brooklyn's Park Slope neighborhood. Now, after considering the testimony and the other evidence at the trial herein, the court makes the following findings of fact, reaches the following conclusions of law, and grants petitioner a judgment of possession after trial against respondent Junie Desire and after inquest against respondent Garcon. A warrant (or warrants) may issue forthwith, but such issuance shall not preclude an application for relief pursuant to RPAPL Section 753(1). Upon service of a copy of this decision and of the judgment with notice of entry, petitioner may move for an award of unpaid rent and/or use and occupancy and such other relief as may be warranted.

Petitioner showed, among other things, that it is the landlord of the premises, that the [*2]tenant of record was Marie Desire, that she died on November 30, 2012, that neither respondent herein has a lease for the premises, and that a petition, notice of petition, and predicate notice of termination were duly served. The court holds that petitioner proved a prima facie case.

Respondent Junie Desire defended on the ground that she has a right to possession of the premises because she is entitled to succeed to Marie Desire's tenancy. The Rent Stabilization Code ("RSC") provides that a "family member" of a tenant of record who has vacated rent-stabilized premises may succeed to the tenant of record's tenancy if the family member and the tenant maintained their primary residences at the premises contemporaneously during the two years immediately preceding the surrender. 9 NYCRR § 2523.5(b). In the somewhat different context of non-primary residence holdover proceedings, the term "primary residence" has been defined as "an ongoing, substantial, physical nexus with the premises for actual living purposes [citation omitted]." Katz Park Avenue Corp. v Jagger, 11 NY3d 314, 317 (2008).

Respondent demonstrated that she is one of Marie Desire's seven children and thereby established her status as a "family member." In her answer, prepared with counsel and sworn to on December 9, 2013, respondent averred that she had "continuously resided in the subject apartment for over 10 years." Had respondent been able to demonstrate the same, she would have more than satisfied the statutory requirement of having lived at the premises for a two-year period which, in this case, began on December 1, 2010.

In support of her claim, respondent offered her own testimony and that of friends/acquaintances Shenetta Porter, Linda Charles, and Robin Lee Selicious. Respondent also offered many documents that listed or used the premises' address as her address. These documents included six letters sent to her by Flushing Savings Bank ^[FN1] and they concerned respondent's failure to make mortgage payments on her residential condominium in Brooklyn's Canarsie neighborhood.Respondent purchased the condominium by a deed dated January 27, 2003. She moved in at about that time and lived there for a disputed number of years. She opened accounts in her own name with National Grid for gas service on February [*3]19, 2003 and with Con Edision for electricity on March 1, 2003. She closed the National Grid account on September 19, 2011 and the Con Edison account on either October 20, 2011 or December 13, 2011. She sold the condominium by a deed dated October 16, 2013.

Respondent's testimony was marked by equivocation and tailoring to meet the requirements of her defense. At times, it was given with a striking indifference to the particulars of her responses. For example, in her answer notarized by counsel on December 9, 2013 respondent averred that with respect to the premises she had "continuously resided in the subject apartment for over 10 years." Yet at her deposition she testified that she lived in the Canarsie condo from 2003 to 2005. When asked about this during cross-examination, respondent responded "I didn't think that two years mattered."^[FN2]

At trial, respondent testified that she had purchased the condo as an investment. She did not testify that she had purchased the condo as a place to live but with the hope that it might appreciate in value. Yet within a few weeks of closing title at the end of January, 2003 respondent moved in and opened accounts for gas and electric service at the premises. She lived there for at least the ensuing three years, i.e., until a time in 2006 when, she testified, her father fell ill and she began to spend considerable time at the premises taking care of him. Respondent's testimony that she purchased the Canarsie condo as an investment was, the court finds, not accurate and less than the whole truth.

In September, 2009 respondent filed a voluntary petition in bankruptcy in the Unites States Bankruptcy Court for the Eastern District of New York. In her sworn statements that she submitted in support of that filing, respondent listed the Canarsie condo as her address and the premises as her mailing address. When asked about this during cross-examination, respondent claimed that the condo was not her home address at that time, but that she had received some free legal advice when filling out the bankruptcy forms, and that she had simply signed whatever she had been told to sign. If true, this testimony shows respondent's indifference toward her duty to tell the truth. Whether true or false, it significantly diminishes the probative value of her testimony.

To support her contention that she was not living at the condo but at the premises during the two-year period that began on December 1, 2010 respondent testified that pursuant to a written lease she had rented the condo for the six months of July 1, 2010 through December 31, [*4]2010 to a Farida Goodman ^[FN3] at a rate of $1,000.00 per month ^[FN4] . Yet respondent's income tax return for 2010 does not show any of the rental income that respondent claims Goodman paid to her. When asked about this during cross-examination, respondent stated that her accountant had prepared the tax return and that she had signed whatever she had been told to sign. Similarly, respondent testified that Goodman's tenancy continued in 2011 on a month-to-month basis but respondent's tax return for 2011 does not show that rental income ^[FN5] . If true, this testimony shows respondent's indifference toward her duty to tell the truth. Whether true or false, it significantly diminishes the probative value of her testimony.

At trial respondent testified that she lived at the condo for a year or two, and that she lived mostly at the premises after her father became ill in 2006 and until his death in June, 2007. Respondent testified that at a time specified no more precisely than 2009-2010 she moved out of the condo and to the premises where her mother, whose health was not good, was living alone after her husband's death. The court notes again, though, that respondent did not close her National Grid and Con Ed accounts for utility service to the Canarsie condo until the fall of 2011.

Respondent testified that she and her mother were very close. Yet respondent also testified that she did not know that her mother had been hospitalized on any of 14 occasions between September 24, 2009 and November 29, 2012 at a hospital in Port Jefferson, NY ^[FN6] As an [*5]attempted explanation, respondent testified that her brother Nathaniel Desire is a physician based in Suffolk County and so all issues of medical care were left to him ^[FN7] . While the foregoing might suffice as an explanation for a lack of detailed knowledge of the particulars of her mother's illnesses, the court finds it impossible to reconcile respondent's claim that she was living with her mother at the premises but that, incontrovertibly, respondent was wholly unaware that on 14 occasions her mother had been hospitalized in a different city some sixty miles away.

Respondent testified that while she lived at the premises she helped her mother with many of the affairs of daily living such as cooking and cleaning. However, respondent also testified that she did not know whether there was a stereo or a computer in the apartment. Respondent testified that she made sure that the monthly rent was paid, but she denied any knowledge of her mother's SCRIE rental subsidy (discussed infra). She testified that her sister Esther would prepare a rent check drawn on Marie Desire's account, that Esther would leave it on a table, and that respondent would address an envelope and mail the check to petitioner. Respondent also testified that if Esther had not left a check, respondent would prepare the check herself, sign her mother's name, and mail it. When asked during cross-examination how respondent would know the amount for which to make the check payable, especially in view of respondent's denial of any knowledge of the SCRIE subsidy, respondent asserted that either a paper would be left specifying how much was to be paid or that one of her sisters would telephone her with that information. Especially in light of respondent's failure to call Esther Desire to testify, the court finds that this claimed arrangement was so convoluted as to be unbelievable. In sum, the court declines to give significant probative weight to respondent's testimony.

All but one of respondent's documents show the premises' address as her address. However, they do that because respondent provided the entities that prepared the documents with the premises' address as her address — the entities did not investigate whether the address was a mailing address or a residence. The court holds that the documents' probative value is no greater than that of respondent's testimony. Further, at least two are plainly wrong. Respondent's driver's license was issued in 2004 when respondent acknowledges that she was living at the condo, but the license shows the premises as her address. Respondent's registration with the New York City Board of Elections shows the premises as her address for the roughly 17 years of October, 1996 through 2013; however, respondent lived in Canarsie in at least 2003, 2004, and 2005, and she testified that she lived in Binghamton, NY for many of the years before 2003. Finally, the court notes that when respondent signed an agreement dated September 11, 2012 [*6]listing the condo for sale with Brooklyn New York Multiple Listing Service, Inc. (one of several documents in respondent's exhibit M), she gave the condo's address - 8616 Avenue L — as her address.

Respondent's other witnesses

Shenetta Porter testified that she lives at 711 Union Street, i.e., down the block from the premises, that she had a stroke in August, 2009, that she spent 23 months recovering at home, and that from a window she could see respondent once or twice a week walking on Union Street. She testified also that she never saw Marie Desire from 2009 through 2012. The court finds that this testimony had little probative value because it was equally consistent with the idea that respondent lived at the premises and with the idea that respondent lived elsewhere (e.g., at the condo) but went to the premises several times per week to pick up her mail and to look in on her mother.

Linda Charles testified that she lives in an apartment in the same building and on the same floor as the premises. She testified that she knew Marie Desire and that she knows respondent. She testified that she saw respondent during the period 2010 - 2012 more than once a week in the building's hallway going in or going out. The court finds that this testimony had little probative value because it was equally consistent with the idea that respondent lived at the premises and with the idea that respondent lived elsewhere (e.g., at the condo) but went to the premises several times per week to pick up her mail and to look in on her mother.

Robin Lee Selicious testified that she lives a few blocks from the premises, that she and respondent have known each other for more than nine years, that she saw respondent about six to eight times per year, that when she met respondent at the premises they were never in the premises for more than a few minutes, and that when she was in the premises the only room that she was ever in was the kitchen. On cross-examination Ms. Selicious acknowledged that although she and respondent had known each for many years, she (i.e., Selicious) had never met any of respondent's six siblings. Ms. Selecious did not testify that respondent and she celebrated birthdays or holidays together. The court finds that this testimony was of little probative value because it was consistent with both the idea that respondent lived at the premises and with the idea that respondent lived elsewhere (e.g., at the condo) but went to the premises several times per week to pick up her mail and to look in on her mother.

In rebuttal petitioner offered the testimony of Orlando Angarita. He testified that he was a construction worker, that he has made repairs at the building, and that as petitioner's employee since 2003 he has cleaned the building. He testified that he knew Marie Desire, that he helped her to go up and down the stairs, especially when she had groceries, that he was typically in the building for eight hours on Saturdays, and that he rarely saw respondent. The court finds that this testimony was of little probative value because there was no showing that the frequency with which he saw respondent was significantly less than that with which he would have seen her had [*7]she lived at the premises.

An Unresolved Issue

The rent for the premises was subsidized by the City of New York's Senior Citizen Rent Increase Exemption ("SCRIE") program. Administrative Code of the City of New York § 26-509; see, generally, Scherer, Residential Landlord-Tenant Law in New York § 4:313 et seq. (2013). To retain this subsidy after her husband died in 2007, Marie Desire filed bi-annually a statement of household composition and income. In these filings, Marie Desire stated that she lived at the premises alone. Before the trial began, respondent moved in limine to preclude their introduction into evidence. Respondent argued that inasmuch as petitioner intended to offer them for their truth, i.e., as additional evidence that respondent did not live at the premises, the documents were inadmissible hearsay. By a decision and order dated April 25, 2014, the court denied the motion without prejudice to renewal at trial.

At trial petitioner offered the documents into evidence. Respondent objected on the ground that admitting the documents would prejudice her because she could not cross-examine the documents' author, i.e., her mother. Respondent also argued that her rights ought not to be prejudiced by any erroneous statements made by her mother. Petitioner countered in two ways. One was that the documents, having been filed with the government, had sufficient indicia of reliability to be admissible. The other was that the documents were, in whole or in part, respondent's handiwork and therefore admissible as such, and that respondent's denial of participating in the documents' creation was unbelievable. Petitioner argued that the court might easily infer that respondent had had a hand in the statements' composition because she testified that she helped her mother with her daily affairs, including making rental payments, and it was clear from respondent's testimony that Marie Desire could not have prepared the documents alone because her primary language was Haitian Creole and her command of English was weak.

There was some documentary support for this second argument. In a fax to SCRIE dated August 6, 2007 Marie Desire informed that governmental unit that her husband had passed away and that she wanted the SCRIE subsidy that he had enjoyed to continue. She advised that she might be reached on her cell phone, for which she listed the number 917-689-2826, if there were any questions. However, this phone number is respondent's phone number. It is the same phone number that respondent identified as her own in her bankruptcy filing made in September, 2009 and it is also the same phone number that respondent identified as her own in a letter to petitioner dated January 1, 2013 advising of Marie Desire's death and of respondent's claim to succeed to her mother's tenancy. From the foregoing one might infer that it was more likely than not that respondent knew of and was involved with the preparation of Marie Desire's applications to SCRIE, and therefore that the SCRIE applications should be received in evidence.

Statute - 9 NYCRR § 2520.6[u] - provides that in determining primary residence, no single factor is determinative. The court finds that when all of the non-SCRIE factors are taken into account, especially respondent's ignorance of the 14 hospitalizations, they lead without difficulty to the conclusion that she did not live together with her mother at the premises. [*8]Accordingly, whether the SCRIE applications are admitted or not is academic; in this court's view, there is no reason to reach the issue here. To the extent that the court held at trial that the documents were admissible, the court now retracts that holding.

The court finds that respondent used the premises as a mailing address, and that she went there perhaps as often as several times per week to get her mail and also to look in on her mother. However, the court does not find that for the two-year period beginning December 1, 2010 respondent was at the premises "for actual living purposes," Jagger, supra, or otherwise made the premises her primary residence.

Accordingly, the court grants the relief set out in the first paragraph above. The parties are requested to retrieve their exhibits within two weeks hereof.