Civil Court of the City of New York, Bronx County, December 7, 2018

Jason D. Boroff & Associates, PLLC, Bronx, for petitioner.

Mobilization for Justice, Inc., Bronx, for respondent.

The decision and order on this motion is as follows:

Background & Procedural Posture

Petitioner commenced the instant licensee holdover proceeding to regain possession of the subject premises which are regulated by the Department of Housing and Urban Development (HUD) project-based Section 8 program. Respondent Kirkpatrick Dunbar and occupants Akilah Mohed (Mohed) and her daughter, Alana Grant (collectively respondents), are the alleged licensees of the tenant of record, Janice Mohed (tenant), who died in November 2016.

On or about August 11th and 17th 2017, respectively, Dunbar and Mohed on behalf of herself and Grant (a minor) answered the petition through counsel. Their answers raised various affirmative defenses including defenses based upon their purported succession to the premises and to tenant's Section 8 subsidy.

On or about December 13, 2017, petitioner moved to strike respondents' answers. The motion was resolved by stipulation whereby the parties agreed to strike all of respondents' affirmative defenses except for their succession defenses.

Thereafter, petitioner moved for leave to conduct discovery relative to respondents' succession defenses. Respondents cross-moved seeking partial summary judgment on their succession defenses. This court, by decision and order of Hon. Kimon Thermos dated May 18, 2018, denied respondents' motion for summary judgment and granted petitioner's motion for discovery. The case was thus marked off calendar for completion of discovery.

Petitioner makes the instant motion seeking summary judgment pursuant to CPLR 409 (b) and 3212 and, accordingly, a final judgment of possession. During oral argument of the instant motion on November 16, 2018, Mohed and Grant withdrew their answers through counsel. The only remaining issue before the court is whether petitioner has eliminated all issues of fact in relation to Dunbar's succession defense.

Discussion

Pursuant to CPLR 3212, a moving party may be entitled to summary judgment upon making a prima facie showing of entitlement to judgment as a matter of law. (Davern v City of New York, 287 AD2d 679 [2001].) Once the movant has{**62 Misc 3d at 847} established a prima facie case for entitlement to summary judgment, the burden shifts to the opponent to prove the existence of a triable issue of fact. (Adam v Cutner & Rathkopf, 238 AD2d 234 [1st Dept 1997], citing Zuckerman v City of New York, 49 NY2d 557 [1980].) It is incumbent upon a party who opposes a motion for summary judgment to assemble, lay bare and reveal his proofs in order to show that the allegations in the answer are real and are capable of being established at trial. (Spearmon v Times Sq. Stores Corp., 96 AD2d 552 [2d Dept 1983].) The court must accept as true the non-moving party's recounting of the facts and must draw all reasonable inferences in favor of the non-moving party. (Warney v Haddad, 237 AD2d 123 [1st Dept 1997]; Assaf v Ropog Cab Corp., 153 AD2d 520 [1st Dept 1989].) If there is a genuine issue of material fact, summary judgment must be denied. (See Smalls v AJI Indus., Inc., 10 NY3d 733 [2008]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986].)

Petitioner argues it is entitled to summary judgment because, as a matter of law, Dunbar is not eligible to succeed to the premises or tenant's subsidy. First, petitioner claims that pursuant to chapter 3, section 3-16 of the HUD Handbook, the remaining family member's failure to appear on the tenant of record's lease at the time of the tenant's vacatur bars the remaining family member from claiming succession. In support, petitioner attaches to its moving papers copies of tenant's leases and HUD certification forms. It is undisputed that Dunbar is absent from these records.

Secondly, petitioner claims that because Dunbar admits he does not have a biological relationship with the tenant, he cannot be considered her "family member" and therefore is ineligible for succession. According to petitioner, the standard for "nontraditional" family members under Braschi v Stahl Assoc. Co. (74 NY2d 201 [1989]) is inapplicable to project-based Section 8 tenancies. Petitioner maintains that, at most, Dunbar is a live-in aide.

Lastly, petitioner maintains that Dunbar cannot succeed because he did not co-reside with the tenant for any significant period of time. It further argues that the applicable period of co-residency required to support a claim for succession is two years prior to the vacatur of the tenant of record as required by the Rent Stabilization Code. In support of this assertion that the parties did not co-reside, petitioner attaches to its papers several documents procured from respondents' discovery{**62 Misc 3d at 848} response which reflect Mohed's residence at an address other than that of the subject premises. Included in these documents are Mohed's tax returns which claim Dunbar as her dependent. Petitioner also refers the court to Dunbar's affidavit submitted in support of his opposition to petitioner's motion to strike respondents' defenses. In his affidavit, Dunbar acknowledges having lived with Mohed at the other address. Petitioner further points out that Dunbar has not provided in his motion any documentary evidence connecting him to the subject premises. Petitioner does, however, attach to its own papers two of Dunbar's Social Security documents which reflect the address of the subject premises but are dated less than one week prior to tenant's death.

In response to petitioner's motion, Dunbar's papers purport to raise several issues of fact. While Dunbar does not dispute that he was never a member of the Section 8 household or on any leases, he argues that his absence on these records does not bar him from claiming succession. He also argues that his status as a nontraditional family member does not bar him from asserting his succession defense. Lastly, Dunbar argues that the sworn affidavits annexed to his papers create a question of fact as to the period he co-resided with the tenant, notwithstanding the absence of documentary evidence.

Based upon the papers and evidence herein, petitioner's motion for summary judgment is denied as respondent's papers raise triable issues of fact as to whether he is entitled to succeed to the premises.

[1] Contrary to petitioner's contention in its motion, tenant's failure to add Dunbar to the annual certification and/or leases does not bar him from raising his succession defense. In 2013 Amsterdam Ave. Hous. Assoc. v Estate of Wells, the Appellate Term held that "the absence of [the remaining family member's] name on the family composition document was not fatal to her succession claim otherwise established by the trial evidence." (10 Misc 3d 142[A], 2006 NY Slip Op 50084[U], *2 [App Term, 1st Dept 2006], citing Matter of Manhattan Plaza Assoc., L.P. v Department of Hous. Preserv. & Dev. of City of N.Y., 8 AD3d 111 [1st Dept 2004]; see also NSA N. Flatbush Assoc. v Mackie, 166 Misc 2d 446, 452 [Civ Ct, Kings County 1995] [the failure to list a family member on annual re-certifications "is not irrebuttable evidence which forecloses a tenant's survivor from{**62 Misc 3d at 849} claiming succession rights"].) Respondent shall be permitted at trial to present evidence which serves to rebut the presumption of non-residency reflected by the remaining family member's absence in the family composition. (Manhattan Plaza.)

Petitioner's reliance on Davidson 1992 Assoc. v Corbett (190 Misc 2d 813 [App Term, 1st Dept 2002]) for the proposition that a nontraditional family member cannot succeed to a project-based Section 8 tenancy is misguided. Corbett is distinguishable to the facts herein as it was undisputed that Corbett, the individual seeking succession, entered into possession as a live-in aide. In fact, the tenant of record listed Corbett as an aide in his annual re-certifications. The Appellate Term held that Corbett was not entitled to succeed to the subsidy because live-in aides correspond to a special class of occupants who are not entitled to succession. (Id.) Further, the Corbett trial court (Hon. Malatzky) relied on Matter of Evans v Franco (93 NY2d 823 [1999]) in determining that respondent could not succeed to the tenancy. Subsequently, the Appellate Term, First Department has declined to follow the Franco holding, at least as to project-based subsidies. (See 2013 Amsterdam Ave. Hous. Assoc. v Estate of Wells; Kings Ct. Hous. LLC v Hudson, 22 Misc 3d 1113[A], 2009 NY Slip Op 50113[U] [Civ Ct, Kings County 2009].)

[2] Petitioner points to no appellate authority holding that a nontraditional family member is barred from succeeding to a project-based Section 8 tenancy as a matter of law. Accordingly, the lower courts have employed a broad analysis when considering whether nontraditional family members can succeed. In Morrisania II Assoc. v Harvey (139 Misc 2d 651, 656 [Civ Ct, Bronx County 1988]), the court held:

[*3]"The term 'remaining member of a tenant family' (42 USC § 1437a [b] [3] [C]) is not otherwise defined by statute or regulation. Since it is not ambiguous, it should be defined according to the ordinary and natural meaning of its own words, as a person who had actually been in occupancy as a part of the family unit at the time of the named tenant's death. Its use recognizes an underlying statutory assumption: all family members have occupancy rights which are not terminated by the death of any member."

{**62 Misc 3d at 850}As such, the courts have found that a determination as to whether a bona fide family relationship exists is an issue to be considered at trial. (Alliance Hous. Assoc., LP v Garcia, 53 Misc 3d 1215[A], 2016 NY Slip Op 51672[U] [Civ Ct, Bronx County 2016]; Boston Tremont Hous. Dev. Fund Corp. v Dunbar, Civ Ct, Bronx County, May 18, 2018, index No. LT23500/17.)

Here, in the sworn affidavits, Dunbar and Mohed describe a close relationship between Dunbar and the tenant, akin to that of a mother-in-law and son-in-law. This assertion is bolstered by Dunbar's allegation he is a "life partner" to tenant's daughter and refers to tenant's granddaughter as his "daughter." The affidavits further aver that the supportive relationship between Dunbar and tenant was reciprocal. These allegations raise a colorable claim that Dunbar and tenant may have had an interdependent, albeit nontraditional family relationship. The nature of their relationship, and the extent to which they fall within the enumerated factors for nontraditional family members set forth by Rent Stabilization Code (RSC) (9 NYCRR) § 2520.6 (o) (2) and Braschi—two standards which may be used by the court to frame its analysis—are to be examined by the trier of fact.

While petitioner avers that the paucity of documentary evidence by Dunbar precludes succession, "[t]he lack of formalization of legal and financial obligations between respondent and tenant, is not dispositive and does not preponderate over the plausible and credited testimonial evidence." (178 E. 70th St., LLC v Weizmann, 61 Misc 3d 147[A], 2018 NY Slip Op 51717[U], *1 [App Term, 1st Dept 2018] [citations omitted].) The absence of documentary evidence does not necessarily undermine a succession rights claim (Arnie Realty Corp. v Torres, 294 AD2d 193 [1st Dept 2002]), especially where the parties are of limited financial means (Roberts Ave. Assoc. v Sullivan, 2003 NY Slip Op 51091[U] [App Term, 1st Dept 2003]; see Alliance Hous. Assoc., LP).

[3] Lastly, petitioner misapplies the two-year cohabitation period (required to succeed to a rent-stabilized apartment) to the tenancy herein. The courts have held that the remaining family member must only show "a bona fide co-occupancy of suitable duration" which may be less than two years. (Mackie; see also Bronx 361 Realty, L.L.C. v Quinones, 26 Misc 3d {**62 Misc 3d at 851}1231[A], 2010 NY Slip Op 50334[U] [Civ Ct, Bronx County 2010].)

Moreover, petitioner's papers cannot establish with certainty the duration of Dunbar's period of cohabitation with the tenant. The two Social Security letters referred to in petitioner's moving papers are not dispositive as to whether and for which periods of time Dunbar actually co-resided with the tenant at the premises. This is especially true considering the opposition's affidavits in which both Dunbar and Mohed aver that Dunbar lived with tenant from October 2015 until her death in November 2016. The credibility of these statements in light of the scarcity of documentary evidence connecting Dunbar to the premises is not to be decided at this [*4]juncture. (S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974] ["On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue"]; see also 105-115 Bennett Realty Co., LLC v Piney, 17 Misc 3d 128[A], 2007 NY Slip Op 51904[U], *1 [App Term, 1st Dept 2007] ["(R)esolution of the credibility issues presented by the parties' conflicting submissions must await further exploration at trial"].)

Conclusion

It is so ordered that petitioner's motion for summary judgment is denied for the reasons stated herein.