Scott E. Mollen
Scott E. Mollen ()

Landlord-Tenant—Rent Stabilization—Succession—Respondent Was Non-Traditional Family Member Even Though He Was Still Married to His Wife Who Resided Elsewhere—Wife Would Not Sign Divorce Papers—Not Unusual That an Older Couple Might Keep Their Finances Separate

The petitioner commenced  a summary holdover proceeding against the respondent, “on the grounds that he was the licensee of the deceased” tenant of record (tenant). The lease stated that “the household composition” was to be only the tenant. “No one else was listed as a family member or occupant of the apartment.” The tenant died on April 18, 2015.

The petitioner’s building manager testified that he learned of the respondent after the tenant died and prior thereto, he thought that the tenant lived alone.

However, the manager admitted that he did not “spend time at the…premises” and “he was not acquainted with [the tenant] and was unaware” of the respondent until he learned that the respondent was living in the apartment.

The respondent testified that he lived with the tenant in the apartment for 11-12 years. Previously, he lived in Brooklyn. The respondent explained that “he was married when he lived in Brooklyn, and that he remains married” to his wife, “with whom he has six children.” He described his relationship with his wife “as that of ‘Trump and Clinton’ because they did not get along and bickered constantly.” He testified that he had purchased a new refrigerator, sink and stove for the apartment. He explained that he had never divorced his wife, because “she would not sign the divorce papers.” He claimed that he viewed the tenant as “‘his wife’ and wanted to be with her the rest of his life.”

Additionally, the respondent testified that he paid for groceries and the tenant cooked for him. He explained that he and the tenant enjoyed taking Circle Line cruises and had vacationed once in St. Croix. They also “traveled to Philadelphia to visit with his sisters, and [the tenant] became ‘sisters with his sisters.’” The respondent and the tenant had also traveled to Ecuador with the tenant to meet the tenant’s family and he introduced a photograph of himself, dated Dec. 8, 2012, with the tenant and her sisters in Ecuador. The respondent noted that he and the tenant ate all of their meals together, watched television and would fall asleep together. He also testified that he and the tenant “initially split the rent for about three months,” but it became “evident to him that [the tenant]” needed more help, so he began to pay the full rent. He alleged that he paid the rent with money orders. The respondent further testified that when the tenant became ill with liver cancer, “ he cared for her and would pick her up when she fell.”

The respondent’s daughter confirmed that the respondent is still married to her mother, “her parents argued loudly and constantly” when her parents lived together and that her parents lived apart for more than 15 years.

In order for the respondent to succeed to the tenant’s apartment as a non-traditional family member of the deceased tenant, he would have to prove, since he is over the age of 62, that he resided in the apartment as his primary residence for one year prior to the tenant’s death. 9 NYCRR §2520.6 (p), 9 NYCRR §2523.(5)(b)(1). In determining whether the respondent is entitled to succession as a “family member,” courts consider:

(i) longevity of the relationship;

(ii) sharing of or relying upon each other for payment of household or family expenses, and/or other common necessities of life;

(iii) intermingling of finances as evidenced by, among other things, joint ownership of bank accounts, personal and real property, credit cards, loan obligations, sharing a household budget…;

(iv) engaging in family-type activities by jointly attending family functions, holidays and celebrations, social and recreational activities, etc.;

(v) formalizing of legal obligations, intentions, and responsibilities to each other by such means as executing wills naming each other as executor and/or beneficiary, granting each other a power of attorney and/or conferring upon each other authority to make health care decisions each for the other, entering into a personal relationship contract, making a domestic partnership declaration, or serving as a representative payee for purposes of public benefits, etc.;

(vi) holding themselves out as family members to other family members, friends, members of the community or religious institutions, or society in general, through their words or actions;

(vii) regularly performing family functions, such as caring for each other or each other’s extended family members, and/or relying upon each other for daily family services;

(viii) engaging in any other pattern of behavior, agreement, or other action which evidences the intention of creating a long-term, emotionally committed relationship.

The court found that the respondent lived with the tenant “as his primary residence for more than one year prior to her death on April 18, 2015.” The salient remaining issue was whether or not the respondent proved by a fair preponderance of the credible evidence that he was a nontraditional family member of the tenant.

There was little documentary evidence. The respondent had produced a “photograph of himself and the deceased tenant with her sisters in Ecuador, and that was the only personal memento produced at the trial.” There was no evidence that the couple had intermingled their finances or formalized legal obligations. However, the court found that the respondent’s credible testimony established that “he and the deceased tenant shared a long, committed relationship, that she relied on him for household expenses, that they held themselves out to be a loving couple, that they visited with family members, that [respondent] cared for [tenant] when she became ill, and that [tenant] cared for [respondent] in everyday life, by cooking his meals and waiting for him to get home from work in order to eat with him.”

The evidence demonstrated that the respondent and the tenant “were a loving couple who would have married, but for the fact that [respondent] was still married to [his wife] who would not give him a divorce.” The court also noted that when the respondent and the tenant began living together, the tenant was approximately 60 years old and the respondent was approximately 76 years old. The court opined that they were “already at a point in their lives where they might not do the kinds of things younger couples would do, such as opening joint bank accounts.”

After considering all of the relevant factors and the credible trial testimony, the court dismissed the petition and held that the respondent was entitled to succeed to the apartment as a nontraditional family member and to a renewal lease in his own name.

Comment: As this case makes evident, while certain factors, such as the intermingling of finances and formalizing certain legal obligations, etc. may be important, a finding as to a non-traditional family relationship will depend upon the totality of the circumstances. The courts recognize that human behavior will vary and they are reluctant to apply a rigid formulaic test.

541 Union v. Rivera, L&T 46455/15, NYLJ 1202786329078, at *1 (Civ., BX, Decided May 1, 2017), Breier, J.


Landlord-Tenant—Rent Stabilization—Holdover Proceeding Based on Alleged Violation of Substantial Obligation of a Tenancy Dismissed—Three Nonpayment Proceedings In Six Years Were Caused by the Tenant’s Medical Condition—No Magic Number of Nonpayment Proceedings Is Required to Establish Chronic Rent Delinquencies

A landlord commenced a holdover proceeding seeking possession of a rent stabilized apartment. The landlord alleged that the tenant violated a substantial obligation of her tenancy by repeatedly failing to timely pay rent and causing the landlord to bring three nonpayment proceedings in six years. The tenant explained that she had suffered “medical set backs and accidents which led to financial set backs” and that she was current on her rent when the holdover proceeding had been commenced.

The tenant had been in a car accident in 2010 and was unemployed for a year. That “set back” allegedly resulted in the first nonpayment proceeding in 2011. The tenant had received emergency assistance from the Human Resources Administration (HRA) and using such assistance to pay her rent arrears.

In 2012, the tenant went on temporary disability because of medical complications and was out of work for three months. She again fell behind in her rent and a second nonpayment proceeding was commenced in September 2012. The tenant returned to work in December 2012 and paid her arrears from her earned income. However, in 2015, the tenant again suffered a temporary disability and was out of work for five months. That resulted in a 2015 nonpayment proceeding. In June 2015, the tenant received further assistance from HRA and paid the landlord’s judgment. The tenant had required additional time to pay the current rent “that [had] accrued during the pendency of the proceeding resulting in an OSC in May 2016.”

The tenant’s answer in the 2012 landlord-tenant proceeding “contained defenses of breach of the warranty of habitability and harassment. The stipulations in that proceeding did not contain repair items.” However, the tenant had raised “a breach of warranty of habitability defense” in the 2015 proceedings and several stipulations and court orders in the 2015 proceeding ordered that repairs be done.

The tenant contended that “three nonpayment proceedings in a six-year tenancy is insufficient to sustain a chronic rent delinquency holdover proceeding.” The tenant also noted that the 2015 case included orders for repairs and argued that “the 2015 nonpayment case should not [be] counted because the landlord failed to complete the repairs throughout the proceeding.”

The landlord countered that “[t]here were twenty seven OSC’s” (orders to show cause) “in the three cases” over a five- year period. The OSC’s were necessitated by [tenant's] health issues, waiting for HRA to issue checks in two of the cases, and [tenant's] default in paying without knowing the reason for the delay.”

A prior unrelated court decision held that nine nonpayment proceedings during three years were “sufficient for terminating the tenancy based on rent delinquency.” A landlord asserting chronic rent delinquency must show that “it was required to commence frequent nonpayment proceedings in a relatively short period of time demonstrating a pattern.” The court explained that “[t]he number and frequency of nonpayment proceedings is not the only inquiry a court can make when determining whether a substantial obligation of the lease has been violated.” The “number of nonpayment actions commenced is relevant only in the context of the entire circumstances surrounding the alleged withholding of rent” and “there is no magic number of nonpayment proceedings” that is required to establish chronic rent delinquency. Rather, “each case is sui generis.” A landlord “must show frequent nonpayment proceedings in a short amount of time, due to a tenant’s unjustified failure to pay rent.”

The court noted that the subject three nonpayment proceedings were caused by the tenant’s “medical condition,” the tenant had paid rent arrears with grants from the HRA, had paid certain rent arrears from her earned income and the third proceeding had included a claim for needed repairs. The tenant had not claimed that she had withheld rent due to the conditions in the apartment. The court concluded that the tenant is now “back at work, can afford the apartment,…she was not in default on rent payments when the landlord terminated the tenancy” and the landlord failed to demonstrate that the tenant’s “rent defaults were so unjustified as to warrant a finding that the tenant violated a substantial obligation of the tenancy.”

279 E 92nd Street Corp. v. Grose, L & T 076787/2016, NYLJ 1202785512052, at *1 (Civ., KI, Decided April 27, 2017), Sikowitz, J.