This is a holdover summary proceeding commenced by petitioner Westchester Plaza Holdings, LLC seeking to recover possession of Apartment 5E located at 40 E. Sidney Avenue, Mount Vernon, New York (hereinafter "subject premises"). Pursuant to the petition the subject premises is covered by the ETPA.

In 2008, the petitioner and respondent, Keith Watson previously executed a written lease agreement for the subject premises. Mr. Watson executed renewal leases and beginning on the 2014 rider to the renewal lease, Mr. Watson did list respondent Juanita Dunlap as an occupant of the subject premises.

In early 2018, it came to petitioner's attention that the tenant of record, respondent Watson no longer resided in the subject premises. After conducting an investigation, the petitioner commenced the instant summary holdover proceeding against the respondents based on respondent Watson's illegal sublet, or assignment, of the lease to Juanita Dunlap, as well as other nuisance grounds. The petitioner caused them to be served with a Notice to Cure in or about May of 2018. When the respondents did not cure the lease violations, the petitioner served [*2]them with a Notice to Terminate in or about June of 2018. Since the respondents did not vacate the subject premises, the petitioner served and filed a Notice of Holdover Petition and Holdover Petition, returnable for August 7, 2018.

On August 7, 2018, the Court adjourned the matter on the respondents' application to August 20, 2018. On that day, respondent Watson appeared and executed a stipulation of settlement, wherein he agreed to occupy the subject premises as his primary residence for the duration of his tenancy. In October of 2018, Mr. Watson sent a letter to the petitioner surrendering his tenancy. Since he did not return the keys, the petitioner applied to this Court for the issuance of a Judgment of Possession and Warrant of Eviction. The Court granted that request and issued a Judgment and Warrant of Eviction on or about January 9, 2019.

After the Court issued said Judgment and Warrant of Eviction, the Mt. Vernon City Marshal served the same at the subject premises. When the respondents did not respond, or obtain a stay from the Mt. Vernon City Court, the Marshal executed the warrant on January 16, 2019. After the Marshal executed the Warrant of Eviction, respondent Dunlap filed and the Court granted an Order To Show Cause that stayed the re-letting of the subject premises. On the return date of that motion, the parties appeared and the Court adjourned the matter for Ms. Dunlap to seek legal counsel.

On January 29, 2019, the parties appeared for a hearing on respondent Dunlap's Post Eviction Order to Show Cause. After the hearing, the Court ordered Ms. Dunlap to be restored to possession upon payment of all arrears prior to February 11, 2019. Respondent Dunlap did make that payment to the petitioner on February 8, 2019, and the Petitioner restored her to possession of the subject premises.

After restoring Ms. Dunlap to possession, petitioner maintained that Keith Watson had vacated the premises, and respondent Dunlap was not entitled to succeed to the ETPA lease for the subject premises.

On March 5, 2019 a non-jury trial was held in this matter on Ms. Dunlap's succession claim. It is undisputed that Ms. Dunlap moved into the premises in August of 2014, married the tenant of record, Mr. Watson around that time, and has resided in the residence until the present. What is in dispute is when Mr. Watson permanently vacated the apartment which would be the triggering date for analysis of succession rights.

According to Ms. Dunlap's testimony, Mr. Watson physically and emotionally abused her throughout the course of their marriage, which caused her at times to sleep in her car during disputes. While she claimed that her husband always resided in the apartment with her until the eviction in January of this year, she acknowledged that Mr. Watson had numerous extramarital affairs and would on occasions sleep at other women's homes for several days at a time, before returning to their apartment.

Ms. Dunlap further testified, and it is also undisputed that she divorced Mr. Watson in September of 2018. Ms. Dunlap further testified that the following month she went to the Mount Vernon Police Department to request the police contact her ex-husband, Mr. Watson, to ask him to stop coming to the subject premises. Ms. Dunlap maintains that Mr. Watson didn't permanently vacate the premises until they were evicted in January of 2019. However, this testimony was contradicted by her sworn affidavit on January 17, 2019, where she stated, in support of her post-eviction Order to Show Cause, that she had been living alone for the last two [*3]years. Her testimony at trial, attempting to explain what she meant by living alone for two years was not credible and confusing.

Ms. Jean Kirkland, an employee of the Urban America Management Company, testified for petitioner. The Urban America Management Company is the managing agent for the subject premises. Ms. Kirkland testified that in early 2018, it came to her attention that Mr. Watson no longer resided in the subject premises, and petitioner therefore commenced the instant summary holdover proceeding. Ms. Kirkland further testified that in May of 2018 she received information that Mr. Watson was living in the Bronx with a girlfriend, but that he planned to return to the subject premises for the purposes of defeating the within holdover petition.

9 NYCRR § 2503.5(d)(1) regarding succession rights to rent stabilized apartments provides:

Unless otherwise prohibited by occupancy restrictions based upon income limitations pursuant to Federal, State or local law, regulations or other requirements of governmental agencies, if an offer is made to the tenant pursuant to the provisions of subdivision (a) of this section, and such tenant has permanently vacated the housing accommodation, any member of such tenant's family, as defined in section 2500.2(n) of this Title, who has resided with the tenant in the housing accommodation as a primary residence for a period of no less than two years, or where such person is a "senior citizen," or a "disabled person" as defined in paragraph (4) of this subdivision, for a period of no less than one year, immediately prior to the permanent vacating of the housing accommodation by the tenant, or from the inception of the tenancy or commencement of the relationship, if for less than such periods, shall be entitled to be named as a tenant on the renewal lease.

It is well settled that a person claiming a right to continued possession has the affirmative obligation of establishing his right to succession. See e.g. Second 82nd Corp. v. Hahn and Stoumen, NYLJ 7/2/98 p.32 (Appellate Term 1st Dept.) (holding burden of proof on person claiming succession); Village Mgt. Inc. v. Chase, NYLJ 12/7/93 p.21 (Appellate Term 1st Dept.) (finding burden of proof on person claiming succession, particularly when landlord was never informed of claim prior to the demise of the tenant of record). Respondent Dunlap therefore bears the burden of proving to the court that the tenant of record permanently vacated the subject premises, and that she is a remaining family member as defined in 9 NYCRR 2500.2(n).

9 NYCRR 2500.2(n)(1), which defines "Family member," provides in part, a spouse...of the tenant or permanent tenant.

9 NYCRR 2500.2(n)(2) defines "Family member" also as "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. Although no single factor shall be solely determinative, evidence which is to be considered in determining whether such emotional and financial commitment and interdependence existed, the Court may include without limitation, such factors as 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, engaging in family type activities by jointly attending family functions, holidays and celebrations, social and recreational activities, etc., holding themselves out as family members to other family members, friends, members of the community or religious institutions, or society in [*4]general, through their words or actions, regularly performing family functions or relying upon each other for daily family services and engaging in any other pattern of behavior, agreement, or other action which evidences the intention of creating a long-term, emotionally committed relationship.

Based upon the evidence and testimony presented, the Court finds that Mr. Watson did permanently vacate the apartment around the time of the execution of the 72-hour notice in January of 2019. As a result, Ms. Dunlap, who seeks succession rights, is required to show that she resided with Mr. Watson as a family member from January 2017 to January 2019. Based upon Ms. Dunlap's testimony which is supported by the Judgment of Divorce entered into evidence, she divorced Mr. Watson on September 18, 2018, therefore they were no longer spouses for the four months immediately prior to his vacatur of the subject premises in January of 2019. Further, her testimony failed to establish that she and Mr. Watson were in a committed and interdependent relationship for two years immediately prior to his vacatur of the premises, let alone for the four month period immediately prior to his vacatur. As such, Ms. Dunlap has failed to establish that she is entitled to succession rights in the subject premises under 9 NYCRR §§ 2503.5(d)(1) and 2500.2(n).

Accordingly, Final Judgment of Possession and Warrant of Eviction to petitioner, with a stay of the execution of the Warrant to March 31, 2019.

This constitutes the decision and order of this Court, copies of which are being sent to all parties.