Landlord-Tenant—Rent Stabilization—Respondent Had a Non-Traditional Mother-Son Relationship and Is Entitled to Right of Succession—Lack of Documentary Proof of Intermingling of Finances Did Not Necessarily Undermine Respondent’s Proof That He Had a Family Like Relationship With the Tenant—Given Meager Income, It Was Not Surprising That Respondent Lacked the Kind of Documentary Proof of Shared Assets Typical of Those With Greater Economic Means

A petitioner had commenced a holdover proceeding, alleging that the respondent was a licensee of the deceased rent-stabilized tenant of record (tenant). The respondent claimed that he and the tenant “had a non-traditional, mother-son relationship and therefore, he is entitled to succeed to” the tenancy.

The court found that the respondent had “testified credibly” that he had been born in Puerto Rico; his father left for New York shortly thereafter, when respondent was 14-years-old; he went to New York to search for his father; his father introduced him to the tenant as “his lady”; the father and the tenant lived as a couple for many years, and after a while, the respondent began calling the tenant “mom”; the tenant would often take the respondent to the store and spend time with him; the respondent’s father, however, left the tenant and returned to Puerto Rico where he died; the respondent however, maintained a close relationship with the tenant; he visited her periodically; he began staying over in her apartment two or three days at a time; when the tenant became ill, the respondent left his own apartment and moved into the subject apartment; the tenant taught the respondent recipes and they cooked together and shared meals; they often entertained each other’s friends in the apartment and celebrated holidays together; they bought gifts for each other; the respondent contributed at least $75.00 to $100.00 per month toward household expenses; the respondent also helped the tenant with electric, rent and cable bills and bought things for her; and when the tenant was diagnosed with liver disease, the respondent helped “bathe her, dress her and perform all household tasks.”

The respondent further testified that when the tenant’s medical condition became worse, he took the tenant to the hospital. The respondent had visited the tenant in the hospital until she fell into a coma and died, leaving the respondent alone in the apartment. The foregoing testimony was corroborated by a family friend and by the tenant’s granddaughter.

The law relating to succession to a rent-stabilized apartment is “largely governed by Public Housing Law §14[4] and NYC Rent Stabilization and Code §2523.5[b][1]; see also 9 NYCRR 2520.6[o]),” the Court of Appeals’ landmark holding in Braschi v. Stahl Associates, 74 NY2d 201 [1989] and several court decisions that followed Braschi.

In Braschi, the Court interpreted the meaning of the term family as used in the rent control regulations. Those provisions protected from eviction, “either the surviving spouse of the deceased tenant or some other member of the deceased tenant’s family who has been living with the tenant”…. The Court held that the term family, as used in 9 NYCRR 2204.6[d], should not be rigidly restricted to those people who have formalized their relationship…. The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life….

Protection from eviction should therefore …be based upon an objective examination of the relationship of the parties…including the exclusivity and longevity of the relationship, the level of emotional and financial commitment, the manner in which the parties have conducted their everyday lives and held themselves out to society, and the reliance placed upon one another for daily family services [citations omitted]. These factors are most helpful, although it should be emphasized that the presence or absence of one or more of them is not dispositive since it is the totality of the relationship as evidenced by the dedication, caring and self-sacrifice of the parties which should, in the final analysis, control….

Current rent stabilization regulations reflect the broad definition of “family” enunciated by the Braschi court (9 NYCRR §2520.6[o]). The term “family member” now includes both traditional as well as non-traditional family relationships; they range from varying degrees of relatives of the tenant of record to “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…” (id.). However, “no single factor shall be solely determinative” in verifying a non-traditional family relationship (id.). The regulations now shield from eviction, members of a rent stabilized tenant’s “family,” as broadly redefined, who have primarily resided with the tenant in the apartment for either two years immediately prior to the tenant permanently vacating the apartment, or for one year where the family member is disabled (9 NYCRR §2523.5[b][1]).

The court found that the respondent and the tenant “were a family within the meaning of the Rent Stabilization Code.” Here, the court had to look “to indicia ‘relevant to a parent/child relationship, as opposed to a relationship between adults.’” The court explained that the petitioner had incorrectly asserted that “financial commitment and interdependence has [sic] often been elevated to the single defining factor of the Braschi relationship.” The court noted that “[f]inancial interdependence must be measured with due regard for the relative economic status of the parties….”

Here, the respondent and the tenant had a “degree of financial interdependence appropriate to the nature of their relationship and their limited resources.” The respondent and the tenant were both “indigent and subsisted on government benefits.” The respondent’s income consisted “solely of SSI checks, averaging approximately $511 per month between 2006 and the time of [tenant's] death,” and from such sum “he contributed at least $75—$100 per month toward shared household expenses and helped with other bills.” He also had “bought things for [the tenant].”

The court opined that such level of “financial interdependence was consistent with respondent and [tenant's] limited means and simple lifestyle.” Given the small amount of income, “it would be unreasonable to expect respondent to have documentary proof of shared assets typical of those of greater economic means.” Further, it would have been “unrealistic to expect a mother and her adult son to have significant shared assets or records evidencing financial interdependence.” The court also stated that “[i]ronically, because of their indigency, respondent and [tenant] actually shared a greater degree of financial interdependence than would most mothers and their adult sons.”

Moreover, “the absence of documentary proof of the intermingling of finances ‘does not negate the conclusion that [the tenant] and respondent had a family-like relationship’ which was otherwise established by testimonial and documentary evidence as here….” Finally, the court noted that the petitioner “failed to call any witnesses or offer any evidence to rebut respondent’s credible proof of his relationship with [the tenant].” Thus, the court held that the respondent was entitled to succeed to the tenancy and the petition was dismissed with prejudice.

2025 Walton Associates v. Arroyo, L&T 6894/11, NYLJ, 1202545276036, at *1 (Civ., BX, Decided Feb. 23, 2012), Madhavan, J.

Landlord-Tenant—Owner Failed to Demonstrate That the Occupants’ Payments of a Mortgage on the Premises Constituted “Rent”—District Court Lacked Jurisdiction—No Landlord-Tenant Relationship Had Been Established

An owner commenced a holdover proceeding in the District Court of Nassau County, seeking to recover possession. The owner alleged that “the respondents were month-to-month tenants under an oral lease which expired” and the petitioner had served a 30-day notice to vacate. At trial, the owner testified that he became the owner because the respondents “were in danger of losing the premises due to non-payment of the mortgage.” The respondents were going “to take the property back in four months but this never occurred.” The owner had been a tenant at the premises renting a room when he had acquired title in 2006. The owner had never paid for the mortgage, “nor did he pay any money for the transfer of title.” The respondents had paid the mortgage, utilities and repairs and the owner had never charged respondents rent. When the transfer had occurred, the respondents agreed to pay the mortgage. A new mortgage had been obtained in order to satisfy the prior mortgage.

A respondent testified that the owner is his brother-in-law and the petitioner had continued paying the respondent $500 per month until 3 months before the owner had relocated in September 2010. The respondents had paid the mortgage until September 2011, but not thereafter.

The court found that it lacked jurisdiction because the parties did not have a landlord-tenant relationship. The “payment of the mortgage does not constitute an agreement to pay rent unless the parties specifically agree otherwise.” Further, “non-rent payments are not recoverable in a summary proceeding.” Here, there was no evidence that the parties had “reached an agreement that the mortgage payments constituted rent.”

A separate action was pending in the Supreme Court for a constructive trust. The court concluded that this matter “properly belongs in the Supreme Court.”

Cazares v. Aguilar, LT-003118-11, NYLJ, 1202543624953, at *1 (Dist., NA, Decided Feb. 22, 2012), Fairgrieve, J.

Land Use—Plaintiff Claimed That His Constitutional Rights Were Violated When Defendants Intentionally Delayed Decisions on His Wetlands Permit Application—Defendants’ Motion to Dismiss Granted on the Ground That Plaintiff’s Claim Was Unripe

The plaintiff commenced an action in the U.S. District Court against a town and several town officials, alleging “a violation of his constitutional right to equal protection under the Fourteenth Amendment, pursuant to 42 U.S.C. §1983.” The plaintiff alleged that “the defendants had intentionally delayed any decision on his wetlands permit application, in connection with plaintiff’s anticipated construction on his property.” The defendants had moved to dismiss the complaint on the grounds that the plaintiff had not been injured, the claim was unripe, an equal protection claim had not been alleged and a town official was entitled to qualified immunity. Since the court granted the defendants’ motion to dismiss the complaint in its entirety on the ground that the plaintiff’s claim was “unripe,” the court did not address the defendants’ other arguments.

The court explained that “a land use challenge in federal court is unripe unless the plaintiff has obtained a final decision with respect to the land use from state authorities.” Moreover, “the ‘final decision’ requirement includes utilization of an Article 78 proceeding, which is available in state court, to challenge the denial of a land use permit or a delay in processing a permit.” Here, the plaintiff had not brought an Article 78 proceeding “to attempt to rectify the delay….”

An Article 78 proceeding had been brought by the plaintiffs’ neighbors challenging variances which had been issued by a Board of Zoning Appeals (ZBA). That proceeding “did not address the separate wetlands permit application, or any alleged delay in the processing of that application.” Therefore, the court held that the plaintiff’s “constitutional claim regarding the alleged delay in issuing the wetlands permit is unripe for judicial review. To hold otherwise would be to provide immediate access to federal courts for land owners to challenge any delay in a zoning/permit decision by a municipality without first utilizing the process available to them in state court to obtain a final decision.” The court opined that such a result would be inconsistent with “the legal framework that the Supreme Court and Second Circuit have articulated for land use challenges, including equal protection claims.”

Furthermore, the subject claims were “moot because the Appellate Division, Second Department, vacated the separate [ZBA] variances that also were required to proceed with the proposed construction.” Once the variances were vacated, the plaintiff amended the wetlands permit application. The amended application had been granted and never challenged. In view of the Appellate Division decision and the amended wetlands permit application, “the constitutional claim regarding the initial wetlands permit application is now moot.”

The plaintiff owns a home with a swimming pool and other structures. In late 2007, the plaintiff sought permission from a town and its ZBA to build “three proposed structures, to legalize eight existing structures” and to build an addition to his bedroom. Hearings were held on April 9, 2008 and Jan. 28, 2009. The matter was held open until Feb. 25, 2009. The application was granted in April 2009 and findings were signed by the ZBA Chairman in June 2009. The granting of the application was subject to a “Wetlands and Waterways permit (the ‘wetlands permit’).” In May 2009, neighbors filed an Article 78 petition seeking to set aside the ZBA decision. As a result, the Town was stayed from issuing any permits. The Supreme Court denied the neighbors’ Article 78 petition, with respect to all but the variance regarding a privacy fence. The Appellate Division had denied the neighbors’ request for a stay enjoining the Town from issuing permits.

In January 2010, an assistant Waterways Management Supervisor for the Division of Environmental Protection (Waterways Manager) advised the plaintiff that his application was being analyzed. In May 2010, the plaintiff provided further information to the Waterways Manager. In June 2010, the Waterways Manager requested revised surveys. Those surveys were thereafter delivered. In July 2010, the Waterways Manager advised that “certain conditions and covenants were required for the permits…. Several of the covenants would decrease the property value.” The plaintiff’s consultant stated that he had “never encountered these types of requirements before,” and advised the Waterways Manager that his requests were “repetitive and irrelevant.” The Waterways Manager also asked the plaintiff’s consultant to respond to comment letters received as a result of required mailings to neighbors. During this process, one of the plaintiff’s consultant’s employees received a telephone call from the Waterways Manager, during which the Waterways Manager allegedly “indicated that he would never issue any permits on plaintiff’s property.”

The plaintiff alleged that “the issuance of a wetlands permit is an administrative function for which one simply has to supply information” and that the Waterways Manager treated the plaintiff “differently than similarly situated applicants in an effort to help the neighbors.”

The Appellate Division had thereafter vacated the ZBA variances, but upheld the trial court’s decision with respect to the privacy fence. The defendants argued that due to such decision, “the wetlands permit applications, except for a few minor items unrelated to the [ZBA] variances, were rendered moot.” The plaintiff thereafter amended the wetlands permit application. The plaintiff alleged that the permit on the amended application was issued in February 2011 and that no challenge has been made to that decision.

The plaintiff filed his complaint six days after the Appellate Division decision. The defendants moved to dismiss. The plaintiff then filed an amended complaint and the defendants filed a second motion to dismiss.

The court found that the plaintiff’s “[s]ection 1983 claim should be dismissed because it is not ripe for review,” and therefore, the court lacked “subject matter jurisdiction.” In order to determine whether a claim is “ripe for takings-type claims,” the “government entity charged with implementing the regulations in question” must have “reached a ‘final decision.’” Secondly, the plaintiff must have sought compensation “through ‘reasonable, certain and adequate’ state provisions for obtaining compensation.” The ripeness test applied in a takings claim context, “has been extended to equal protection and due process claims asserted in the context of land use challenges.”

In the subject case, the plaintiff had never “received a final decision with respect to the wetlands permit.” The plaintiff argued that the ZBA findings which granted the variances and the neighbors’ Article 78 proceedings challenging that decision constituted a final decision. The court disagreed and noted that, in this litigation, the plaintiff is not challenging the ZBA’s decision with respect to the variances; “rather, plaintiff challenges the defendants’ delay in issuing him the separate wetlands permit. Since plaintiff’s claim arises from the delay in issuing the wetlands permit, there must be a final decision with respect to the wetlands permit.” “Thus, any final decision on the variances in connection with the neighbors’ Article 78 proceeding does not satisfy prong one with respect to the alleged lack of a decision, or delay, in the issuance of the wetlands permit, which is the subject of this lawsuit.”

The court also disagreed with the plaintiff’s argument that “issuance of a wetlands permit was merely ministerial after the variances were approved and, therefore, he should not have had to bring a mandamus action, pursuant to the Article 78 proceeding.” The court explained that “[t]he denial of the neighbors’ request for a stay is not the equivalent of compelling a municipality to act within a certain timeframe.” The court emphasized that “[a]ny injury from the delay in the processing of the plaintiff’s wetlands permit is precisely the type of injury that requires a final decision.”

Here, the plaintiff had never commenced an Article 78 proceeding or “undertook any other action to precipitate a final decision with respect to the wetlands permit.” Therefore, the plaintiff “had not received a final decision regarding the permits, barring this suit” and the court found that the plaintiff’s claim was “unripe and must be dismissed.” In so holding, the court distinguished a prior U.S. Court of appeals for the Second Circuit decision which involved a “summary order of no precedential value.” The court noted that such decision “seems to conflict” with other Second Circuit decisions which applied the final decision requirement to equal protection and due process claims.

The court further held that the plaintiff’s claim is “now moot.” Given “the Appellate Division’s vacatur of the variances underlying the original wetlands permit application, the plaintiff cannot return to the town’s regulatory agencies or state court to effectuate a final decision on the original wetlands permit application….” Following the subject Appellate Division decision, the plaintiff had amended the wetlands permit and that permit had been granted and has never been challenged. Thus, the plaintiff’s claim was “both unripe and now moot.” Accordingly, the court dismissed the complaint in its entirety.

Lewis v. Carrano, 10-cv-5245(JFB) (ARL), NYLJ, 1202543626392, at *1 (EDNY, Decided Feb. 23, 2012), Bianco, J.

Scott E. Mollen is a partner at Herrick, Feinstein and an adjunct professor at St. John’s University School of Law.