Recitation, as required by CPLR § 2219(a), of the papers considered in the review of petitioner's motion to deem respondent Messiah's answer to be a general denial with succession defense, to strike the succession defense, and for summary judgment against Messiah Ferguson:

This summary holdover proceeding was commenced in October 2018. After delays due to the COVID-19 pandemic and discovery practice, this court issued a Decision/Order dated June 4, 2025, granting petitioner summary judgment against all respondents named in the original petition. Thereafter, on June 11, 2025, Messiah Ferguson (hereinafter "Mr. Ferguson"), who had not been named in the proceeding, filed an order to show cause, alleging that he had resided in the subject apartment since 2018. Petitioner then made a cross-motion to substitute/join Mr. Ferguson as a respondent. By Decision/Order dated July 15, 2025, this court denied respondent's order to show cause as academic, as a judgment had never been issued against him, and granted petitioner's cross-motion to the extent of joining Mr. Ferguson and directing petitioner to serve an amended petition upon him.

Petitioner now moves for summary judgment against Mr. Ferguson, as well as the deeming of his answer has a general denial with a succession defense, and the striking of the succession defense. Respondent submitted opposition to the motion and the court heard argument on October 9, 2025.

On a motion for summary judgment, "the proponent . . . must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact[.] . . . Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986] [internal citations omitted]). Petitioner's motion is supported by affidavits from David Eshaghoff, one of its members, as well as various exhibits, including the deed, pleadings and orders from this proceeding, and Mr. Ferguson's orders to show cause. Petitioner argues that because Mr. Ferguson did not answer, his answer should be deemed a general denial with a succession defense based on his allegations in orders to show cause filed with the court. Petitioner also argues that respondent's succession defense, if interposed, lacks merit because respondent cannot demonstrate that he primarily resided at the subject premises during the two (2) years before the former tenant of record died (see 9 NYCRR 2523.5(b)(1)).

In opposition, Mr. Ferguson states that the former tenant of record, Callie Russel, was his grandmother and that he lived with her at the subject premises in 1994, when he was incarcerated, and that he resumed living there in September 2018, when he was released on parole. Ms. Russel died in July 2018. Ultimately, he argues that, as a matter of equity, in these circumstances he should be granted succession.

Upon due deliberation, the court finds that Mr. Ferguson's succession defense, with a general denial, should be deemed his answer (Thanasoulis v Shapiro, 81 Misc 3d 132[A], 2023 NY Slip Op 51304[U] [App Term, 1st Dept 2023] [Succession defense articulated at trial was sufficient basis to amend the answer, even if not raised in the initial answer]). In considering the particulars of the succession defense, however, the court finds that Mr. Ferguson has not raised an issue of material fact requiring a trial on the defense. By his own admission, Mr. Ferguson was incarcerated during the entire 2-year period before Ms. Russel died, and for over 20 years before that. He only returned to the apartment after Ms. Russel's death.

Primary residence in the context of rent stabilization is "defined . . . as 'an ongoing, substantial, physical nexus with the . . . premises for actual living purposes.'" (Katz Park Ave. Corp. v Jagger, 11 NY3d 314, 317 [2008] [quoting Emay Props. Corp. v Norton, 136 Misc 2d 127, 129 [App Term, 1st Dept 1987]). As Mr. Ferguson was not physically residing in the subject premises or using it for actual living purposes during the relevant 2-year period before Ms. Russel died, he cannot prove a fundamental succession requirement. Nor can it be held that Mr. Ferguson's lengthy incarceration constituted a "temporary relocation" that would be excused under RSC § 2523.5(b)(2) (see 528 West 123rd Street LLC v Baptiste, 59 Misc 3d 20, 21-22 [App Term, 1st Dept 2018]; Emay Props. Corp., 136 Misc 2d at 128]).^[FN1]

Accordingly, in the absence of any viable defense or other possessory interest, Mr. Ferguson has failed to show that any material issue of fact precludes summary judgment in petitioner's favor (see 170 West 85th Street Tenants Assn. v Cruz, 173 AD2d 338, 339 [1st Dept 1991] ["Due process requires only that, for the warrant to be effective against a subtenant, licensee or occupant, he be made a party to the proceeding[.]"). Petitioner's request for summary judgment is granted and a possessory judgment shall be granted in petitioner's favor against Messiah Ferguson. A warrant of eviction shall issue, provided, however, execution of the warrant of eviction shall be stayed to November 30, 2025 for Mr. Ferguson to vacate. The earliest eviction date shall be December 1, 2025. A marshal's notice shall be served prior to execution and may only be served on or after the earliest eviction date.

This Decision/Order will be filed to NYSCEF and a copy will be emailed to respondent.