This summary holdover proceeding was commenced by EDGECOMBE AVENUE 291 REALTY LLC(Petitioner) against "JOHN/JANE DOE" seeking to recover possession of 291 Edgecombe Avenue, Apt. 4B, New York, NY 10031 (Subject Premises) based on the allegation that the last tenant of record Nannie Wilson (Tenant) died and that the remaining occupants were [*2]licensees of the tenant who's right to possession expired upon her death.

JESSE DEVORE(Respondent) has appeared by counsel and asserted succession.

Petitioner issued a ten day notice to quit dated December 27, 2013. The petition is dated January 28, 2014, and the proceeding was initially returnable on February 19, 2014. Respondent appeared by counsel on the initial return date, and the parties entered into a stipulation pursuant to which the caption of the proceeding was amended to substitute Jesse Devore, in place of the "Does" originally named herein. Respondent, consented to the jurisdiction of the court, agreed to pay use and occupancy without prejudice, and to file an answer on or before March 5, 2014. The proceeding was adjourned to March 25, 2014.

On March 5, Respondent filed an answer asserting succession as a nontraditional family member, improper service, and related claims.

On June 24, 2014, Petitioner moved for leave to conduct discovery, and Respondent cross-moved for a protective order. The motions were granted pursuant to parties' stipulation and the proceeding was marked off calendar pending the complection of discovery.

On May 19, 2015, Petitioner's motion to restore the proceeding to the calendar was granted by the court (Milin, J) and a trial date was set for July 8, 2015. On September 10, 2015 the proceeding was transferred to the expediter's part for assignment to a trial judge. On October 1, 2015, the proceeding was assigned to Part R for trial. The trial took place and the court reserved decision.

At the request of the parties, the court takes judicial notice of two prior nonpayment proceedings under Index Numbers 73338/2012 and 61143/2013. The proceedings were brought by Petitioner's predecessors in interest against Tenant. In both proceedings, Elaine Wilson (Wilson) appeared on behalf of Tenant, and Wilson asserted in each case that she had a power of attorney to act on behalf on Tenant (see Exs 4-6). Both proceedings were resolved by stipulations without entry of a judgment.

Petitioner is the owner of the subject building pursuant to a deed dated September 11, 2013 (Ex 1). The Subject Premises was registered as Rent Controlled in 1984 listing John Wilson, as the tenant of record, at a monthly rent of $226.58 (Ex. 3). There are no subsequent annual registrations filed with DHCR. Tenant was married to John Wilson and lived in the Subject Premises from approximately 1946 through the date of her death, December 21, 2013 (Ex E). As judicially noted by the court on the record at the request of Petitioner, there is a valid MDR on file with HPD for the Subject Premises.

The first witness to testify at the trial was Wilson. Wilson is Tenant's daughter, she is an only child, and she grew up in the Subject Premises. Wilson does not live in the Subject Premises. In 2010, Wilson and her daughter planned to go to Brazil on vacation. Tenant was in her early 90s and suffered from congestive heart failure and dementia. Wilson had been advised by her Tenant's doctors that Tenant could not be left alone in the Subject Premises. Wilson already had hired a companion to care for her Tenant part time, but asked Respondent to stay at the Subject Premises during her trip to Brazil so Tenant would not be alone in the Subject Premises in the evenings. Wilson and her daughter were in Brazil for approximately two weeks, in or around June 2010.

Wilson had already been allowing Respondent to use a room in the Subject Premises on [*3]weekdays, to work on a book Respondent is writing.

After Wilson's return from Brazil, Respondent and Wilson agreed to make the arrangement more permanent. This agreement was arrived at because Tenant's doctors had advised Wilson after a subsequent hospitalization that Tenant could not be released from the hospital unless Wilson had arranged for 24 hour care for Tenant at the Subject Premises. Respondent was provided with a bedroom in the Subject Premises rent free in exchange for acting as a care giver for Tenant when the paid companion or family were not present. This agreement was eventually expanded to provide that Respondent would pay for the groceries for the Subject Premises. In particular, Respondent was responsible for making sure Tenant did not wander off at night and that Tenant was supervised at night.

Tenant was in adult day care two days a week, and looked after by her companion, three days a week. As Tenant's condition deteriorated, Respondent took on the added Responsibility of accompanying Tenant to and from day care, and remaining there, for Tenant's stays, in a room provided to him, where he also worked on his book.

Wilson generally came to the Subject Premises on weekends. Wilson testified that she came every Sunday and on some Saturdays. Wilson testified that she had a very demanding job that occupied most of her time during the week.

Respondent is Tenant's nephew, he is the son of Tenant's sister. Respondent never moved any belongings into the Subject Premises other than the clothes he brought with him for his initial temporary stay in June 2010. Immediately prior to taking occupancy of the Subject Premises in 2010, Respondent lived for 15 years in a private home in Westchester that was owned in the name of his former spouse.

As of 2010, Wilson handled her mother's affairs. They had a joint bank account into which Tenant's income, of approximately $1700 per month, was deposited and from which Wilson paid for the expenses of the Subject Premises, like rent, Con Edison charges, telephone and cable. Tenant had a living will and Wilson testified, without objection, that she was designated as the person to make health care decisions for Tenant.

Wilson employed a companion for Tenant, three days a week from 2010 through Tenant's death. The companion is named Elsa.

Elsa O'Reilly (Elsa), Tenant's companion, was the next witness called by Respondent. Elsa testified credibly that she was hired by Wilson to care for Tenant. Elsa's duties included assisting Tenant in going to medical appointments, making meals for Tenant, doing the shopping for Tenant, doing some laundry for Tenant, and spending time with Tenant as a companion. Elsa began her employment at the Subject Premises in May 2010, and at that time Respondent was not in occupancy of the Subject Premises. When she first started her employment by Wilson, Elsa was working about twenty hours a week, typically on Tuesdays, Wednesdays and Friday.

In June 2010, prior to Wilson's trip to Brazil, Elsa, Respondent and Wilson had a meeting where it was discussed what role Respondent would play in Tenant's care during Wilson's trip. Elsa testified that Tenant's dementia grew progressively worse in 2012 through 2013. During this period, Elsa's responsibilities in caring for Tenant increased, and her hours increased to four days a week, from morning through five or six pm in the evening. Elsa was paid $10 per hour. Elsa was generally paid in cash. To the extent that Elsa's testimony and Wilson's testimony conflict regarding the nature of Elsa's employment and her wages, the court credits the testimony of Elsa over Wilson. Elsa spent approximately $100 to $120 every other week on groceries for the Subject Premises. These funds were initially provided by Wilson, and then later, by [*4]Respondent.

The next witness to testify was Respondent. Respondent is 82 years old. Respondent lived in the Subject Premises for a few years in his early 20s. In 2010, Respondent began to spend time at the Subject Premises, because he was writing a book and the Subject Premises is located close to a library.

Respondent testified, not credibly, that he never returned to the home he lived in for 15 years in Westchester. Later he testified that he did return for some visits to distribute some belongings. Respondent testified that pursuant to his agreement with Wilson, Respondent was permitted to live in the Subject Premises rent free as a "quid pro quo" for the responsibilities he took on in caring for Tenant. Respondent testified his sole source of income is from social security and that he receives approximately $1600 per month from that source.

Respondent offered limited documents into evidence pertaining to his residency. These include a document from the Board of Elections showing Respondent registered to vote from the Subject Premises in June 2012 (Ex F). Respondent also submitted statements from his Capital One Bank Account for a period covering July 2013 through July 2014. These statements were addressed to the Respondent at the Subject Premises (Ex J-4).

Respondent also submitted a series of documents in evidence referencing complaints Respondent filed with HPD regarding conditions in the Subject Premises Many are not relevant to his succession claim, as they were filed after Tenant's death [Exs A(1)- (3), D(4)-(6)]. Respondent also filed complaints with HPD in August and October 2013 [Exs A-4, and D(1)-(3)].

Respondent also submitted evidence that he obtained an interim driving license listing the Subject Premises as his address in July 2014, after the relevant period (Ex J-1), and that for some period in 2014, his name was included on the mailing address of the Con Edison bills for the Subject Premises, which account remained under the name of John Wilson (Ex J-6). Again these records are for periods after the Tenant's death and therefore not relevant to Respondent's succession claim.

Respondent also submitted a program from a birthday celebration for Tenant organized by her church in 2004, which shows that Respondent participated in the event by reading a biography of Tenant's life (Ex G), and the program for Tenant's funeral service (Ex B) which references that Respondent read her obituary at the service (Ex B). Respondent also submitted a single photograph in evidence, showing Respondent and Tenant together in 1974 (Ex H).

In response to discovery demands Respondent stated he has not filed taxes since 2009, and Respondent testified that statements he had for a chase Bank Account were sent to his home in Westchester during the relevant period.

§ 2204.6(d)(1) precludes the eviction of the remaining family members of the rent control tenant of record, where the family member resided with the tenant for at least one year, if said family member is a senior citizen and lived with the tenant in the Subject Premises as his primary residence for at least one year prior to the time the tenant permanently vacated.

The definition of family member is found in § 2204.6(d)(3), it used to include nephews, but a 1997 statutory amendment removed nephews from the definition of family members [*5]entitled to succession based on a blood relationship. Pub. Housing Law §14(4) directed DHCR to promulgate regulation that eliminated aunt, uncle, niece and nephew from the definition of qualified family members, and was intended to limit the class of individuals entitled to succession [Manley Laundromat Inc v Wu 48 Misc 3d 1206(A)].

However, § 2204.6(d)(3) also includes in the definition of a family member "... 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."

The factors to be considered in making such determination include the longevity of the relationship, sharing of or relying upon each other for payment of household or family expenses, and/or other common necessities of life, intermingling of finances, engaging in family type activities, formalizing of legal obligations, holding themselves out as family members, regularly performing family functions, and any other behavior that evidences the intention of creating a long term emotionally committed relationship [§ 2204.6(d)(3)(a)-(h)].

The court finds that Respondent has failed to establish by a preponderance of credible evidence that he is entitled to succession in this proceeding. Respondent provided almost no documentation during the relevant period of December 2012 through December 2013 showing that the Subject Premises was his primary residence. Conspicuously absent were his cell phone statements. The Respondent had a cell phone during the relevant period that he used, but no statements from this account were offered into evidence. Another example would be the statements regarding income that Respondent received from social security, again these documents are acknowledged to have existed but not provided.

Even assuming arguendo Respondent had established that the Subject Premises was his primary residence for the relevant period, he failed to establish a nontraditional family relationship with the Tenant. The evidence was that the relationship was relatively short lived, and that Respondent received consideration for whatever duties he took on in the form of rent free use of the Subject Premises, and that for the most part Tenant and Respondent maintained separate lives during the period, with Respondent going about his own business during the day, and being on duty at night. Respondent was not left anything by Tenant in her will, Respondent was not designated as the person to make health care decisions for Tenant, and there was no intermingling of fiances between the two individuals.While Respondent did pay for the groceries for the Subject Premises this was the result of a specific negotiation between Wilson and Respondent and was specifically in consideration for his living in the Subject Premises without paying rent, it is not indicative of a nontraditional family relationship.

Nor was there any substantial evidence of the Tenant and Respondent spending time together outside of Respondent's obligations to tenant as a part time designated family caretaker, or prior to the period he was asked by Wilson to come to the Subject Premises to assist in the Tenant's care.

Based on the foregoing, Petitioner is awarded a final judgment of possession as against Respondent. The warrant of eviction shall issue forthwith. Execution of the warrant is stayed through January 31, 2016, conditioned on the payment of ongoing use and occupancy at the last lease rate, in light of Respondent's advanced age and to afford Respondent an opportunity to vacate.

This constitutes the decision and order of the Court.^[FN1]