Civil Court of the City of New York, New York County

Decided on May 8, 2026

Index No. L&T 311470/22

Clinton J. Guthrie, J.

[*1]

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of respondent Orya Manyevitch's motion for summary judgment (seq. 3) and petitioner's (cross) motion for summary judgment and to dismiss respondents' affirmative defenses and counterclaims (seq. 4):

Papers Numbered

Notice of Motion & All Documents Annexed 1 (NYSCEF #62-73)

Notice of (Cross) Motion & All Documents Annexed 2 (NYSCEF #74-87, 91)

Affirmation in Opposition (Mardis) & Memo of Law Annexed 3 (NYSCEF #88-89)

Petitioner's Memo of Law in Opposition 4 (NYSCEF #91)

Affirmation in Opposition (Manyevitch) & All Documents Annexed.. 5 (NYSCEF #92-95)

Petitioner's Affirmation in Reply 6 (NYSCEF #97)

Upon the foregoing cited papers, the decision and order on respondent Manyevitch's motion and petitioner's (cross) motion, consolidated for determination herein, is as follows.

PROCEDURAL HISTORY

This summary "licensee" holdover proceeding was filed in July 2022. Respondent Orya Manyevitch ("Ms. Manyevitch") appeared through counsel and filed an answer in November 2022. Respondent Frederick Lynn Mardis ("Mr. Mardis") filed a pro se answer in December 2022. Counsel appeared for Mardis in February 2023 and an amended answer on his behalf was filed on consent in May 2023.^FN1

Thereafter, petitioner brought a motion for summary judgment and respondents jointly cross-moved for discovery. By three-attorney stipulation dated July 8, 2024, the motions were settled, respondents agreed to pay use and occupancy, and petitioner consented to discovery. Following several adjournments while discovery was conducted, Ms. Manyevitch moved for summary judgment on her second defense and first counterclaim and petitioner made a motion (effectively a cross-motion) for summary judgment and for the dismissal of respondents' affirmative defenses and counterclaims. After briefing on the motions was complete, this court heard argument on October 7, 2025.

DISCUSSION

I. Summary Judgment — Orya Manyevitch

Both petitioner and Ms. Manyevitch have moved for summary judgment. The court first assesses those motions as they relate to Ms. Manyevitch. Petitioner asserts in its motion that Ms. Manyevitch is unable to succeed to the subject apartment, which is located in an Article V housing cooperative organized under the Private Housing Finance Law (PHFL). Petitioner's primary argument is that because cooperative shares did not issue to George Nestor, Ms. Manyevitch's late husband and the person whose occupancy she seeks to succeed, Ms. Manyevitch is foreclosed from succeeding under petitioner's bylaws, specifically Article VII. Secondarily, petitioner claims that Ms. Manyevitch cannot meet the requirements for succession under the Section 210 of the Fourth Amendatory Agreement ("City Agreement") between petitioner and the City of New York.

In her motion for summary judgment, Ms. Manyevitch argues that as a spouse, under Section 210(d)(i) of the City Agreement, she needed only to demonstrate that: (1) the occupancy agreement was not terminated for cause; and (2) that she maintained the subject premises as her primary residence at the time that the tenancy agreement was terminated in order to succeed to Mr. Nestor's tenancy, notwithstanding the absence of shares issued to Mr. Nestor before he died.

The factual history involving the subject apartment is somewhat complex. In 1983, Lila Lewis and Elodie Lewis took possession as shareholders subject to an occupancy agreement. On September 9, 2013, the Department of Housing Preservation and Development (HPD) Administrative Hearing Officer Frances Lippa issued a "Decision and/or Certificate of Eviction" finding that Elodie Lewis had failed to maintain the subject apartment as her primary residence and issued a certificate of eviction against Elodie Lewis and the Estate of Lila Lewis (see NYSCEF Doc. 85). According to petitioner, Elodie Lewis's shares were never surrendered after [*2]the certificate of eviction was issued (see Monika Zajac Aff., ¶ 23 [NYSCEF Doc. 76]). Hearing Officer Lippa's Decision also observed that Lila Lewis died on March 7, 2007. Several years later, Hearing Officer Lippa rendered a "Granting of Appeal for Succession Rights," dated November 8, 2018, which found that George Nestor had demonstrated his entitlement to succession based on shared financial and emotional commitment and interdependence with Lila Lewis before her death (see NYSCEF Doc. 86). Subsequently, Mr. Nestor and Ms. Manyevitch were married on June 22, 2021 (see NYSCEF Doc. 67), and Mr. Nestor died on September 25, 2021 (see NYSCEF Doc. 66). It is undisputed that neither shares nor an occupancy agreement were issued to Mr. Nestor before he died.

Contrary to petitioner's contention, as a spouse, Ms. Manyevitch was not obligated to be listed on the last 2 consecutive income affidavits before a succession determination, as that requirement is only required for a Braschi-type successor (see City Agreement, §§ 210(a)(ii), 210(d)(i) [NYSCEF Doc. 80).^FN2 Petitioner does not meaningfully dispute either that Ms. Manyevitch was Mr. Nestor's spouse at the time of his death or that Ms. Manyevitch maintained the subject premises as her primary residence at the time of Mr. Nestor's death and thereafter. Ms. Manyevitch annexes her marriage certificate and various proof of residence, including a New York State Drivers License, a Social Security Administration letter, a New York City Human Resources Administration letter regarding SNAP (Supplemental Nutrition Assistance Program) benefits, and Mr. Nestor's death certificate, which lists Ms. Manyevitch, with an address at the subject premises, as the informant (see NYSCEF Docs. 66-70).

Thus, Ms. Manyevitch meets the requirements of the second prong for a spouse to succeed under the City Agreement. However, the first requirement, that the occupancy agreement not be terminated for cause, is complicated here by the fact that no occupancy agreement ever issued in Mr. Nestor's name. The only occupancy agreement of record was issued to Lila Lewis and Elodie Lewis in 1983 (see NYSCEF Doc. 83). The HPD Hearing Officer held in September 2013 that Elodie Lewis had breached the agreement by failing to maintain the subject premises as her primary residence (see NYSCEF Doc. 85). Nonetheless, notwithstanding that determination, the same HPD Hearing Officer held in November 2018 that George Nestor was entitled to succeed to Lila Lewis's occupancy. There is a significant dispute between the parties as to the precise procedure for how shares and an occupancy agreement are to be issued to a successor and upon whom the burden of effectuating the issuance is placed. Petitioner asserts that under Article VII, § 3(i) of its Bylaws, it was Mr. Nestor's burden to ensure that Elodie Lewis's shares were surrendered and to purchase the apartment from petitioner, whereupon shares and an occupancy agreement would have been issued to him. Ms. Manyevitch, on the other hand, argues that petitioner improperly failed to afford Mr. Nestor the ability to obtain shares and that the only relevant inquiry is whether she qualifies as a successor under Section 210(d)(i) of the City Agreement.

The Court of Appeals has held, in the context of PHFL Article II (Mitchell-Lama) cooperative housing, that "[s]uccession is in the spirit of the statutory scheme, whose goal is to [*3]facilitate the availability of affordable housing for low-income residents and to temper the harsh consequences of the death or departure of a tenant for their 'traditional' and 'non-traditional' family members." (Matter of Murphy v New York State Div. of Hous. & Community Renewal, 21 NY3d 649, 653 [2013]; see also Matter of Jourdain v New York State Div. of Hous. & Community Renewal, 159 AD3d 41, 47 [2d Dept 2018] ["The purpose of the succession rule [in rent-stabilized housing] is to prevent displacement of family members who have been residing with tenants at housing accommodations for long periods of time."]). The court notes that the HPD Commissioner repealed the Rules governing redevelopment companies formed pursuant to Article V of the PHFL on January 10, 2017 (see "Notice of Adoption" posted at https://www.nyc.gov/assets/hpd/downloads/pdfs/about/redevelopment-companies-rules-1-10-17.pdf [last accessed May 5, 2026]). In the absence of governing Rules, HPD has applied the relevant City Agreement provisions on succession for the subject building, as reflected in Hearing Officer Lippa's determination granting Mr. Nestor succession rights in November 2018 (see NYSCEF Doc. 86, Pages 4-5).^FN3

As the "purpose of the Redevelopment Companies Law was to provide for the development and maintenance of moderate income housing in New York City" (Joint Queensview Housing Enterprise, Inc. v Grayson, 179 AD2d 434, 435 [1st Dept 1992]), the court finds that it would be contrary to the law to impose unduly stringent barriers to succession when the successor otherwise meets the relevant requirements (see Matter of Murphy, 21 NY3d at 654-655).^FN4 While no occupancy agreement was issued to Mr. Nestor before his death, HPD's issuance of a certificate of eviction in 2013 as against Elodie Lewis and the Estate of Lila Lewis did not preclude HPD's determination in 2018 that Mr. Nestor could succeed to the subject apartment. In line with that rationale, the court finds that Ms. Manyevitch, who has met the requirements for succession under Section 210(d)(i) the City Agreement as the spouse of the prior successor who maintained her primary residence at the subject premises all times during her co-residency with the prior successor until his death, is entitled to succeed to the subject apartment, notwithstanding the lack of shares and an occupancy agreement issued in Mr. Nestor's name. Since there is nothing in the record to demonstrate that either petitioner or HPD terminated the original occupancy agreement or the shares after the issuance of the certificate of eviction, succession flows back to those instruments.^FN5 In making this determination, the court [*4]stresses that Ms. Manyevitch will have to follow the applicable provisions of the City Agreement and Bylaws to effectuate the issuance of shares and/or an occupancy agreement in her name. Nonetheless, as Ms. Manyevitch has demonstrated that she is a valid successor, rather than a licensee, she is granted summary judgment and the petition is dismissed solely against her. Petitioner's motion for summary judgment and to strike respondents' defenses and counterclaims is denied to the extent that they apply to Ms. Manyevitch. Ms. Manyevitch's legal fees counterclaim is stricken, though subject to restoration by motion on notice.

II. Summary Judgment — Frederick Mardis

Petitioner also moves for summary judgment and to strike Mr. Mardis's defenses and counterclaims. While Mr. Mardis does not cross-move for summary judgment, he opposes petitioner's motion in its entirety. Petitioner argues that it has established its prima facie claim that Mr. Mardis is a licensee and that he has no viable defenses or counterclaims.

First, the court finds that petitioner has established the prima facie elements of its claim against Mr. Mardis. Petitioner annexes the original occupancy agreement and stock certificate issued to the Lewises by petitioner, a certified multiple dwelling registration, the pleadings, the building bylaws, the 2013 and 2018 HPD Hearing Officer decisions, income affidavits from 2001-2021, and the relevant provisions of the City Agreement governing succession. The motion is also accompanied by an affirmation from Monika Zajac, petitioner's legal coordinator, who details the history of the subject apartment's occupancy since 1983. Petitioner asserts that under Section 210(a)(ii) of the City Agreement, Mr. Mardis does not qualify for succession because he does not meet the standard set out for Braschi-type successors.

As petitioner has met its prima facie burden, the obligation shifts to Mr. Mardis to offer admissible evidence demonstrating that an issue of fact exists as to one of his defenses (Zuckerman v City of New York, 49 NY2d 560, 562 [1980]). Mr. Mardis claims that he independently qualifies for succession based on his family-type relationship with Mr. Nestor. Under Section 210(a)(ii) of the City Agreement, an adult who is not a spouse, child, stepchild, adopted child, parent, sibling, or grandparent of the occupant of record may qualify for succession if: (1) they resided with the occupant in the subject apartment as a primary residence for at least 2 years; (2) they were listed on the income affidavits for at least 2 consecutive reporting periods immediately prior to the succession determination; and (3) they can prove emotional and financial commitment and interdependence with the occupant of record. There are 8 separate categories of evidence to be considered as to whether the requisite emotional and financial commitment and interdependence exist, largely tracking the Braschi succession criteria set out in the New York City Rent and Eviction Regulations (governing Rent Control) and Rent Stabilization Code.

Petitioner annexes the relevant income affidavits to show that Mr. Mardis only appeared on the income affidavits for 2012 and 2021. While failure to appear on income affidavits may be excusable in determining succession to a regulated apartment, this is only the case where there is "ample evidence" to support a finding of succession (Matter of Murphy, 21 NY3d at 655). Here, Mr. Mardis has failed to come forth with any admissible evidence of emotional and [*5]financial commitment and interdependence with Mr. Nestor. Indeed, his opposition to petitioner's motion solely consists of an attorney affirmation and memorandum of law. The memorandum of law refers back to an earlier affirmation by Mr. Mardis made under the penalties of perjury in February 2024 (see NYSCEF Doc. 39). However, the statements in the earlier affirmation are not corroborated with any tangible evidence. Thus, Mr. Mardis has failed to raise any issue of material fact relating to his succession defense and counterclaim. Nor has Mr. Mardis demonstrated merit to any of his remaining defenses in this proceeding that would require a trial. Accordingly, petitioner is granted summary judgment against Mr. Mardis. Mr. Mardis's defenses and first counterclaim are dismissed, and the attorney's fees counterclaim is stricken. A possessory judgment is granted as against Frederick Lynn Mardis and a warrant of eviction shall issue forthwith. The warrant shall not be effective against Ms. Manyevitch, who is entitled to possession of the subject premises, and the marshal shall exercise care in executing the warrant to comply with this mandate (see Parkash 2125 LLC v Galan, 61 Misc 3d 502, 513-514 [Civ Ct, Bronx County 2018]). Execution of the warrant of eviction shall be stayed through June 30, 2026. The earliest eviction date (EED) shall be July 1, 2026. A marshal's notice shall be served prior to execution on default.

Although petitioner named a John Doe and Jane Doe, CPLR § 1024 requires due diligence before naming a respondent fictitiously. In the absence of a showing of due diligence or any demonstration of a genuine belief that individuals whose identities are unknown are residing in the subject premises, the court will not grant relief against John Doe and Jane Doe as mere placeholders (see Wilmington Trust, N.A. v Shasho, 197 AD3d 534, 536 [2d Dept 2021] [citing CPLR § 1024]; Michaelangelo Preserv., LLC v Burgos, 75 Misc 3d 1209[A], 2022 NY Slip Op 50424 [U] [Civ Ct, Bronx County 2022]). Pursuant to CPLR § 409(b) ("The court shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues are raised"), the petition is dismissed against John Doe and Jane Doe without prejudice.

This Decision/Order will be filed to NYSCEF.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Dated: May 8, 2026

Queens, New York

HON. CLINTON J. GUTHRIE, J.H.C.