Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, November 3, 2023

6914 Ridge Blvd LLC v Delao, 2020 NY Slip Op 35110(U), affirmed.

6914 Ridge Blvd LLC v Delao, 2020 NY Slip Op 35574(U), appeal dismissed.

Berger Fink LLP (David M. Berger and Valentine A. Pagan of counsel) for appellant.

CAMBA Legal Services (Kevin Li, Rabiah Gul and Alfred Toussaint of counsel) for respondent.

Ordered that the final judgment is affirmed, without costs; and it is further ordered that the appeal from the order dated June 30, 2020, is dismissed as moot.

Landlord commenced this licensee proceeding (see RPAPL 713 [7]) to recover possession of a rent-controlled apartment, alleging that occupant Elinora Delao was not entitled to occupy the apartment after the death of the tenant of record, Marguerite Valentin. Occupant defended on the ground that, as a nontraditional family member of the deceased tenant who had [*2]resided in the apartment for at least two years prior to the death of the tenant of record, she was entitled to succession{**81 Misc 3d at 18} rights to the apartment. After a nonjury trial, the Civil Court (Jeannine Baer Kuzniewski, J.) found that occupant had established that she was Valentin's nontraditional family member and that she had resided in the apartment for the requisite time period that would entitle occupant to succeed to Valentin's tenancy rights, and that, pursuant to New York City Rent and Eviction Regulations (9 NYCRR) § 2204.6 (d) (3), she was thus entitled to succession rights. Consequently, the Civil Court entered a final judgment on January 6, 2020, dismissing the petition.

After filing a notice of appeal from the decision after trial, which this court deemed to be from the final judgment dismissing the petition, landlord learned that, due to technical problems, the transcript for the third day of the four-day trial could not be obtained. Landlord moved, in pertinent part, pursuant to CPLR 4404 (b), for a new trial. In an order dated June 30, 2020, the Civil Court (Jeannine Baer Kuzniewski, J.) denied landlord's motion and landlord filed a notice of appeal from that order. After the present appeals were initially calendared, this court held them in abeyance and remitted the matter for a reconstruction hearing with respect to the third day of the trial (6914 Ridge Blvd., LLC v Delao, 75 Misc 3d 127[A], 2022 NY Slip Op 50365[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). A reconstruction hearing was held, and, on August 24, 2022, the Civil Court (Jeannine Baer Kuzniewski, J.) reported to this court that, after having been afforded the opportunity to present additional evidence at the reconstruction hearing and declining that opportunity, the parties had consented to using the court's contemporaneous notes from the third day of the trial to reconstruct the record. Since the reconstructed record, which was settled by the Civil Court (see CPLR 5525 [d]), is sufficient to enable a meaningful review of the issues raised on appeal (see Tenaglia v Tenaglia, 134 AD3d 801, 802 [2d Dept 2015]), landlord's appeal from the order dated June 30, 2020, has been rendered moot and is, thus, dismissed.

"The Civil Court's findings 'should not be disturbed upon appeal unless it is obvious that its conclusions could not be reached under any fair interpretation of the evidence' " (1035 Wash. Realty, LLC v Weston, 67 Misc 3d 138[A], 2020 NY Slip Op 50629[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020], quoting RHM Estates v Hampshire, 18 AD3d 326, 327 [1st Dept 2005]). Occupant claims succession rights as Valentin's{**81 Misc 3d at 19} nontraditional family member. A family member, as defined under New York City Rent and Eviction Regulations (9 NYCRR) § 2204.6 (d) (3) (i), includes, as relevant here, any person "who can prove emotional and financial commitment, and interdependence between such person and the tenant." Factors to be considered include: sharing of household expenses; intermingling of finances; engaging in family-type activities by jointly attending family functions, holidays and celebrations, and social and recreational activities; formalizing of legal obligations, intentions, and responsibilities to each other; regularly performing family functions, such as caring for each other and/or relying upon each other for daily family services; and engaging in any other behavior which evidences the intention of creating a long-term, emotionally committed relationship (see NY City Rent & Eviction Regs [9 NYCRR] § 2204.6 [d] [3] [i]).

Here, the credible evidence demonstrated that, during the time occupant lived with Valentin, they had a close, loving relationship. Occupant accompanied Valentin to medical and other appointments, brought Valentin to family gatherings and celebrated holidays with Valentin, [*3]and they performed most of their daily life activities together. Occupant provided physical care for Valentin. The two intermingled their finances and shared a bank account. Valentin appointed occupant to be her attorney-in-fact pursuant to a power of attorney and her agent to make health care decisions pursuant to a health care proxy. Valentin's nephew testified that Valentin had made occupant the executrix of her will. Viewed in its totality, the evidence supports the Civil Court's conclusion that occupant qualifies as Valentin's nontraditional family member (see 354 Atl. Ave., LLC v Noronha, 64 Misc 3d 134[A], 2019 NY Slip Op 51101[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; see also Braschi v Stahl Assoc. Co., 74 NY2d 201, 211-212 [1989]; Arnie Realty Corp. v Torres, 294 AD2d 193 [1st Dept 2002]).

Since occupant was not yet 62 years old at the time of Valentin's death, she was not yet a "senior citizen" for rent control purposes (see NY City Rent & Eviction Regs [9 NYCRR] § 2204.6 [d] [3] [ii]; see also 550 Equities LLC v Washington, 67 Misc 3d 127[A], 2020 NY Slip Op 50394[U] [App Term, 1st Dept 2020]), and thus was also required to establish that she had lived in the apartment for at least two years prior to Valentin's death (see NY City Rent & Eviction Regs [9 NYCRR] § 2204.6 [d] [1]). Occupant's unrefuted testimony that the{**81 Misc 3d at 20} apartment had been her primary residence where she had resided with Valentin for at least two years prior to Valentin's death, which was corroborated by the testimony of Valentin's nephew to the effect that occupant had resided with Valentin for approximately three years prior to Valentin's death, was sufficient to support the Civil Court's conclusion that occupant had resided with Valentin for the requisite period of time entitling her to succeed to Valentin's tenancy rights.

Accordingly, the final judgment is affirmed.

Toussaint, P.J., Buggs and Ottley, JJ., concur.