DECISION/ORDER 140-154 W. 72 Realty LLC, the petitioner in this proceeding (“Petitioner”), commenced this holdover proceeding against Irene Martinez (“Respondent”), a respondent in this proceeding, and Irene Valentin Martinez (“Co-Respondent”), another respondent in this proceeding (collectively, “Respondents”), seeking possession of 142 West 72nd Street Apt. 3D, New York, New York (“the subject premises”), on the ground that Respondent was a licensee of the prior tenant of the subject premises (“the prior tenant”) and that Respondent’s license terminated by the permanent vacatur of the prior tenant from the subject premises. Respondent interposed a defense that the prior tenant was protected by the Rent Control Law and that Respondent is entitled to succeed to the prior tenant’s tenancy. The Court held a trial of this matter on July 20, 2017, October 4, 2017, December 4, 2017, and January 31, 2018, and adjourned the matter for submissions to March 2, 2018. Petitioner proved on its prima facie case that it is the proper party to commence this proceeding; that the prior tenant died on November 16, 2014; that the prior tenant was subject to the Rent Control Law; that Respondent remained in possession of the subject premises after the death of the prior tenant; and that Petitioner properly and timely effectuated service of a notice to quit upon Respondents pursuant to RPAPL §713. Accordingly, Petitioner proved its prima facie case against Respondents. See 85 Fourth Partners, L.P. v. Puckey, 16 Misc.3d 136(A)(App. Term 1st Dept. 2007), Starrett City, Inc. v. Smith, 25 Misc.3d 42, 46 (App. Term 2nd Dept. 2009)(an owner has a cause of action in a licensee holdover proceeding against occupant of a premises when the occupant remained in possession after a vacatur of a tenant of record therein). Co-Respondent did not make a claim of possession of the subject premises. Thus, the remaining controversy that the Court had to determine at trial was whether Respondent met her burden of proving an entitlement to succeed to the prior tenant’s tenancy.Respondent introduced into evidence her birth certificate, which showed that Co-Respondent is Respondent’s mother, and Co-Respondent’s birth certificate, which showed that the prior tenant was Co-Respondent’s mother, thus proving that the prior tenant was Respondent’s grandmother.Respondent introduced into evidence a marriage certificate showing that Respondent got married on July 15, 2014, and a divorce judgment dated October 26, 2015. The marriage certificate shows that Respondent changed her last name to her spouse’s last name. Both documents show that the subject premises is Respondent’s address.Respondent’s father testified that he has been living at the other address for twenty-two years; that the other address is a two-bedroom apartment; that he originally lived in the subject premises with Respondent. Co-Respondent, and his other three children; that Respondent moved out of the other address fifteen years before his testimony because of tension and difficulties among the family in the other address; that he visited the subject premises in the two years before the prior tenant died approximately once a week and on holidays to check up on Respondent and visit with the prior tenant; that Respondent lived in the subject premises and went to school from the subject premises at that time; that the prior tenant had had both of her legs amputated as of this stage of her life; that Respondent and the prior tenant had the best relationship; that Respondent lived in the front room of the subject premises and the prior tenant had the back, master bedroom; that he saw Respondent’s bags, computers, cellphone, and laundry bags in that part of the subject premises; that he would look at these items and that Respondent would respond by saying something to the effect of “stay out of my stuff”; that he knew that Respondent said at one point that she had been married; that he does not know if Respondent ever lived with her spouse; and that he has cable service at the other address in Respondent’s name because he is disabled and Respondent was helping him out.Respondent’s father testified on cross-examination that Respondent graduated from DeVry College, although he is not sure of the date; that the prior tenant had health aides who would be at the subject premises during holidays sometimes; that Respondent stayed at the other address two times in the two years before the prior tenant died; that Respondent started paying for cable service at the subject premises about one and one half years before his testimony; that he had cable service and paid for it at the other address before the prior tenant died; that Respondent permanently moved out of the other address in 2010 and never came back; that Respondent worked at a jewelry store in Queens; that he saw Respondent at the subject premises in pajamas, although not asleep; that health aides were in the subject premises for the prior tenant in eight-hour shifts; that, in the two years before the prior tenant died, there were two locks on the door of the subject premises, one of which was a deadbolt; and that he does not know the name of Respondent’s spouse.Respondent’s younger brother testified that he has been living at the other address for his entire life except for a time in 2014; that Respondent used to live at the other address until about 2008 or 2009, when she moved to the subject premises because of frequent disputes that Respondent had with other members of the family, the roots of which were in the death of Respondent’s sister at a young age; that he visited Respondent and the prior tenant together at the subject premises; that the prior tenant was strict, controlling, and yelled a lot; that the prior tenant had five locks on the door; that Respondent did various things for the prior tenant; that he saw that Respondent had artwork and pictures in the subject premises; that Respondent had a space in which to sleep at the subject premises; that he observed some of Respondent’s dirty clothes in the bathroom of the subject premises; that Respondent was in the other address once or twice in the two years before the prior tenant died; that Respondent married for about a week; and that he once saw Respondent with a small weekend bag when she was going to stay with her husband.Respondent’s younger brother testified on cross-examination that he visited the subject premises two to three times a month in the two years before the prior tenant died; that his uncle had keys to the subject premises because of work he did there; that he did not know that Respondent had divorced her spouse; that, on the day that the prior tenant died, Respondent and Respondent’s aunt were in a conflict; and that he observed Respondent carrying the prior tenant up stairs to the subject premises. Respondent’s younger brother testified on redirect examination that he observed Respondent’s aunt raise her voice with Respondent.Respondent’s sister-in-law testified that she has been married to Respondent’s younger brother; that she moved into the other address in 2009, moved elsewhere in August of 2014, and then back to the other address in August of 2015; that Respondent lived at the other address in 2009; that, in 2009, Co-Respondent expelled Respondent from the other address to live in the subject premises; that she visited the subject premises once or twice a month after that with her children; that Respondent was at the subject premises when she visited; that Respondent’s textbooks, jewelry, and scrapbooks were in the subject premises; that Respondent prepared food in the subject premises; that Respondent helped the prior tenant ambulate, in part by carrying her down the stairs; that, three or four months before the prior tenant died, family members disagreed about the prior tenant’s end of life care, including an aunt of Respondent’s, who cursed at Respondent on the phone; that Respondent was not at the subject premises when the prior tenant died because Respondent’s aunt threatened to have Respondent arrested; that Respondent spent a night here or there at the other address if Respondent babysat Respondent’s sister-in-law’s children; that Respondent got married, but that the marriage lasted about a week and Respondent did not live with her husband; and that Respondent’s bed, clothes, and books were still at the subject premises when she was married.Respondent testified that she has been living in the subject premises since 2008, that Respondent slept there on a daily basis since 2010, due to unresolvable difficulties with Co-Respondent, and that by 2012, all of her personal property, including her toothbrush and textbooks, was in the subject premises; that Respondent had a key to the bottom lock of the subject premises; that she only needed a key to the bottom lock because attendants would let her in at that time; that she slept in a nook in a little room in front of a window, although she sometimes fell asleep in the same bed as the prior tenant when they were watching television; that home attendants for the prior tenant were living in the subject premises then, and would sleep on a sofa in the subject premises; that she helped the prior tenant bathe, ambulate, and do errands; that Respondent attended DeVry College at 34th Street and Madison Avenue in Manhattan in the last two years before the prior tenant died; that she would spend the night out sometimes if she had a boyfriend during that time; that she eloped with her then-husband in 2014; that she was with him for about a week; that she only packed for a weekend away with her then-husband after she married him; that, in 2014, the prior tenant was stricken with breast cancer; that the prior tenant’s six children, including Co-Respondent, made decisions about end-of-life care for the prior tenant that Respondent disagreed with; that Respondent thought that the prior tenant should gracefully move on instead of getting chemotherapy; and that Respondent slept at the other address in the last couple of months before the prior tenant died when Respondent’s aunt came by, because Respondent’s aunt, who normally lived in Germany, was highly aggressive and threatened Respondent physically.Respondent introduced into evidence documentation from the Board of Elections showing that Respondent changed her address to the subject premises from an address in Queens (“the other address”) as of August 8, 2013; records evidencing Respondent’s receipt of benefits through Medicaid dated January 14, 2014, August 15, 2014, and October 1, 2014 with the subject premises as Respondent’s address; Respondent’s mobile phone bills from October of 2012 through November of 2013 showing the subject premises as Respondent’s address; Respondent’s W-2 form for tax year 2012 from DeVry College with the subject premises as Respondent’s address; Respondent’s New York State tax returns from 2012 and 2014 and Respondent’s federal tax return from 2012 and 2014 with the subject premises as her address; a jury duty summons served on Respondent with the subject premises as her address returnable November 13, 2012; notification from the Board of Elections for September and November of the 2012 and 2013 elections with the subject premises as Respondent’s address; a notice of approval from the Board of Elections from October 16, 2013 for Respondent with the subject premises as her address; an interim drivers’ license issued to Respondent at the subject premises on March 17, 2014; and correspondence concerning Respondent’s credit addressed to Respondent at the subject premises dated September 19, 2012, November 26, 2012, December 18, 2012, February 4, 2013, February 11, 2013, March 20, 2013, September 17, 2013, October 1, 2013, October 11, 2013, January 3, 2014, September 18, 2014, October 8, 2014, November 17, 2014, and December 17, 2014.Respondent introduced into evidence health- and prescription-related documents, including reminders for medical appointments, prescriptions to be filled at a pharmacy near the subject premises, and health insurance documents, mailed to her at the subject premises dated October 9, 2013, December 6, 2013, January 10, 2014, February 1, 2014, February 3, 2014, February 28, 2014, March 1, 2014, April 6, 2014, April 16, 2014, May 1, 2014, May 2, 2014, May 9, 2014, May 20, 2014, May 21, 2014, September 15, 2014, November 1, 2014, December 17, 2014, and December 18, 2014; correspondence mailed from Devry College to Respondent at the subject premises, including a federal work-study earnings statement, transcripts, and information about registration for classes, dated July 24, 2012, October 15, 2012, November 19, 2012, November 20, 2012, April 1, 2013, April 16, 2013, April 4, 2013, June 18, 2013, August 23, 2013, September 19, 2013, September 20, 2013, November 18, 2013, November 22, 2013, April 1, 2014, May 1, 2014, May 12, 2014, and May 16, 2014; correspondence from Respondent’s student loan lender mailed to Respondent at the subject premises on July 24, 2012, December 3, 2012, December 7, 2012, December 22, 2012, January 3, 2013, February 3, 2013, and March 3, 2013; quarterly statements for Respondent’s Individual Retirement Account mailed to her at the subject premises covering quarters ending December 31, 2012 and March 31, 2013; a letter from a bank mailed to Respondent at the subject premises dated January 15, 2013; a letter from a storage company mailed to Respondent dated August 5, 2014; and a letter from the U.S. Department of State dated August 21, 2014.Respondent testified on cross-examination that she originally moved out of the other address because of an order of protection Co-Respondent obtained as against her; that Respondent worked at an establishment in Queens, nearby the other address, in September and October of 2014, Mondays through Saturdays, from 9 a.m. until closing; that she told her employer there that she lived at the other address because the employer wanted to hire someone who lived nearby; that she slept on a sofa in the subject premises when she first moved in, around 2008 or 2009; that home attendants for the prior tenant preferred to sleep on the sofa, so she slept on a bed near a partition in the living room of the subject premises in the summer of 2009; that she provided the subject premises as her address to a variety of entities; that she met her spouse when they were both young children; and that she and her spouse had been dating for four days when they decided to elope.Co-Respondent testified that the prior tenant lived at the subject premises for the two years before she died; that Co-Respondent lived at the other address with Respondent’s father, Respondent’s younger brother, Respondent’s sister-in-law; another brother of Respondent’s, and three grandchildren; that the other address is very crowded; that she spent time in the subject premises at the end of the prior tenant’s life, when the prior tenant was getting hospice care at the subject premises; that she had a bad relationship with the prior tenant; that they come from a dysfunctional family; that the prior tenant was a tyrant who had to have everything her way; that Respondent had the relationship with the prior tenant that Co-Respondent wished that she had; that Respondent came to the subject premises after Co-Respondent asked her to leave the other address because she had a major fight with Respondent and Co-Respondent feared for the safety of her younger son; that tensions she had had with Respondent stemmed from stress resulting from the death of Respondent’s sister at an early age; that Respondent lived in the subject premises in the two years before the prior tenant died; that Respondent’s personal property, such as clothing, books, feminine items, a quilt, a pillow, a computer, textbooks, a phone, an ipad, and Respondent’s paintings were at the subject premises; that Respondent had left some childhood dolls and toys at the other address; that she did not know that Respondent had gotten married until after Respondent had been divorced and she did not know Respondent’s husband’s name; that home attendants for the prior tenants slept on a sofa in the subject premises in the last two years of the prior tenant’s life; that she spoke to her siblings, including Respondent’s aunt, about the prior tenant’s end of life care; that Respondent’s aunt was at odds with Respondent about that; and that Respondent’s aunt told Respondent to stay away from the subject premises at the end of the prior tenant’s life.Co-Respondent testified on cross-examination that she visited the subject premises about once a month from November of 2012 through November of 2013 for varying amounts of time, sometimes for a few hours; that Respondent was there every time she came; that she came to the subject premises more frequently from November of 2013 through November of 2014; and that she asked Respondent to leave when she visited because it became rough between them.The prior tenant’s former home attendant (“the home attendant”) testified on Petitioner’s rebuttal case that she was testifying voluntarily;1 that she knows the subject premises; that she was a home attendant for the prior tenant; that she worked four days a week, twenty-four hours a day from April of 2009 through August of 2013; that she slept in a room that was divided from the living room; that she cooked for the prior tenant and assisted her with bathing; that there were two other home attendants in the subject premises when she was not at the subject premises; that she knows Respondent; that Respondent sometimes stayed in the subject premises; that Respondent came to the subject premises in 2013 three times a week, sometimes arriving in the morning and sometimes at night; that Respondent did not have a key; that she opened the door for Respondent; that Respondent slept on a sofa in the living room; that Respondent and two other people received mail at the subject premises; that the home attendant decided that it was time to stop working there in part because of an issue she had with Respondent; and that Respondent started staying in the subject premises every day as of the middle of August of 2013.The home attendant testified on cross-examination that Respondent carried the prior tenant down the stairs, because she couldn’t do that; that Respondent’s relationship with the prior tenant was disturbing and turbulent; that the prior tenant was not an easy person; that the prior tenant and Co-Respondent did not have a good relationship; that Respondent once shook the prior tenant in an argument they were having; that she would talk and eat with Respondent; that the prior tenant would save food for Respondent all the time; that Respondent spent time at the subject premises between 2012 and 2013; and that she saw Respondent’s valuables, toothbrush, towels, undergarments, shampoo, and other belongings.The home attendant testified on redirect examination that Respondent would come to the subject premises three days on some weeks and two days on other weeks and that she heard Respondent say that she was going to take over the subject premises when the prior tenant died.The manager of the building in which the subject premises is located (“the manager”) testified on Petitioner’s rebuttal case that he was the manager as of April of 2012 and through November of 2014; that he was in the subject premises at various times to inspect for repair issues; that, in September of 2012, someone named Patricia called him about repairs in the subject premises; that he gained access to the subject premises in November of 2012; that he noticed a partition wall in the living room; that he returned four times from August through October of 2013 for repairs; that he only saw Respondent at the subject premises once during that time; that Respondent said that she was there to help the prior tenant while work was going on in the subject premises; that he noticed books on a coffee table; that Respondent told him that she was studying for an exam; and that he received a frantic phone call in October of 2014 from an aunt of Respondent named “Nelly,” who said that Respondent and Co-Respondent were trying to take over the subject premises.The manager testified that he was in the subject premises during working hours; that he manages fifty-two residential units and some commercial spaces; that the prior tenant spoke little English; and that he speaks little Spanish.A family member, like Respondent, as a granddaughter, of a tenant subject to the Rent Control Law, like the prior tenant, may succeed to the tenancy of the prior tenant if she can show that she “resided with” the prior tenant for at least two years before the permanent vacatur of the prior tenant. 9 N.Y.C.R.R. §2204.6(d)(1). The preponderance of evidence at trial shows that the prior tenant resided at the subject premises in the two years before her passing, particularly as the evidence, as per testimony of witnesses for both Respondent and Petitioner, showed that the prior tenant was a double amputee who could not leave the subject premises without Respondent carrying her out. What remains for the Court to determine is whether Respondent not only “resided with” the prior tenant, but did so as Respondent’s “primary residence.” Id. A variety of factors come into play in an inquiry into primary residence, which is fact-intensive, Katz Park Ave. Corp. v. Jagger, 11 N.Y.3d 314, 317 (2008), and no single factor shall be solely determinative. 9 N.Y.C.R.R. §2100.3(j).In determining whether Respondent maintained the subject premises as a primary residence, the Court considers the traditional indicia of residence, 300 East 34th St. Co. v. Habeeb, 248 A.D.2d 50, 55 (1st Dept. 1997), such as tax returns, Glenbriar Co. v. Lipsman, 5 N.Y.3d 388, 392-393 (2005), drivers’ licenses, Id., 300 East 34th St. Co., supra, 248 A.D.2d at 55, W.S.L.D.J. & J. Weinreb, A. & M. Reiss v. Martin, N.Y.L.J. Nov, 20, 2002 at 21:1 (App. Term 1st Dept.), voting residences, Glenbriar Co., supra, 5 N.Y.3d at 392-393, Lesser v. Park 65 Realty Corp., 140 A.D.2d 169, 174 (1st Dept. 1988), Brg 321 LLC v. Hirschorn, 52 Misc.3d 131(A)(App. Term 1st Dept. 2016), RSP 86 Prop. LLC v. Sylvester, 47 Misc.3d 137(A) (App. Term 1st Dept. 2015), W.S.L.D.J. & J. Weinreb, A. & M. Reiss, supra, N.Y.L.J. Nov, 20, 2002 at 21:1, W-2 forms, Brg 321 LLC, supra, 52 Misc.3d at 131(A), phone bills, Cox v. J.D. Realty Assocs., 217 A.D.2d 179, 184 (1st Dept. 1995), Lesser, supra, 140 A.D.2d at 174, health insurance documents, 300 East 34th St. Co., supra, 248 A.D.2d at 55, Lesser, supra, 140 A.D.2d at 174, Brg 321 LLC, supra, 52 Misc.3d at 131(A), RSP 86 Prop. LLC, supra, 47 Misc.3d at 137 (A), jury duty summonses, 611 E. 179th St. Realty Corp. v. Gonzalez, 55 Misc.3d 1225 (A)(Civ. Ct. Bronx Co. 2017), St Owner LP v. Doe, 26 Misc.3d 198, 200 (Civ. Ct. N.Y. Co. 2009), Harounian v. Tofte, 2006 N.Y.L.J. LEXIS 1436 (Civ. Ct. N.Y. Co.), documents relating to attendance at an institution of higher education, St Owner LP, supra, 26 Misc.3d at 200-201, statements of investment accounts, 710 Madison Ave. LLC v. Hicks, 56 Misc.3d 131(A) (App. Term 1st Dept. 2017), and letters from collection agents. 611 E. 179th St. Realty Corp., supra, 55 Misc.3d at 1225 (A). All of this documentation places Respondent at the subject premises in the two years before the prior tenant died.In addition to that, Respondent showed documentation that she obtained benefits from Medicaid while using the subject premises as her address. The Human Resource Administration (“HRA”) is the agency that administers Medicaid in New York City. See New Vanderbilt Rehab. & Care Ctr., Inc. v. Brown, 32 Misc.3d 1218(A) (S. Ct. Richmond Co. 2011), Matter of Barele, Inc. v. City of N.Y. Human Res. Admin., 2010 N.Y. Slip Op. 30760(U)(S. Ct. N.Y. Co.). New York State regulations require HRA to verify beneficiaries’ residences. 18 N.Y.C.R.R. §351.2(b). HRA’s use of the subject premises as Respondent’s address is thus probative as to her primary residence.The testimony of Co-Respondent, Respondent’s father, Respondent’s younger brother, and Respondent’s sister-in-law were all consistent with the formidable body of documentary evidence referenced above, to wit, that Respondent moved out of the other address and into the subject premises by 2011 because of conflicts that Respondent had with her family. The Court in particular found Co-Respondent to be highly credible to this point, testifying as she did about difficult, private family issues in a public forum like a Court with candor and some evident regret. Not only did all of these family members of Respondent testify that they observed that Respondent had moved out of the other address and into the subject premises, but that they observed Respondent’s personal property at the subject premises, personal property of the kind that a primary resident would need, like a toothbrush, a computer, clothing, and textbooks for school.Petitioner argues in its closing memorandum that Respondent’s use of the other address to get a job in Queens implicates her credibility. Assuming arguendo that the Court gave no weight whatsoever to Respondent’s testimony, the evidence referred to above — the impressive volume of documentary evidence and the testimony of four of Respondent’s family members — still bears a great deal of probative value. The home attendant, Petitioner’s own witness, did not rebut this evidence, testifying that she observed that Respondent slept at the subject premises, that Respondent’s personal property like her toothbrush and undergarments were kept at the subject premises, and that Respondent was present either two days or three days out of the four days a week that the home attendant spent at the subject premises (the home attendant’s testimony on direct examination was different from her testimony on redirect examination to this point). The testimony of the manager, who was only at the subject premises five times during working hours in two years, has very little probative value, Second-82nd St. Corp. v. Vrionis, 2001 N.Y. Misc. LEXIS 943 (App. Term 1st Dept. 2001), particularly given the ample evidence in the record of Respondent’s attendance of an institution of higher education during this time, which would limit her presence in the subject premises during work hours.Petitioner also argues that because Respondent had only one key to the subject premises that she did not primarily reside there. The evidence on the record shows that the prior tenant may have denied Respondent a key to another lock to the front door of the subject premises. This conduct may have given rise to a cause of action of Respondent against the prior tenant pursuant to RPAPL §713(10), but that does not implicate Respondent’s primary residence any more than it does the primary of any possessor of real property subject to dispossession by self-help.Neither of Respondent’s brief absences from the subject premises, during her short-lived marriage and during her contentious dispute with Respondent’s aunt around the time that the prior tenant was dying, outweigh the other copious evidence showing that Respondent maintained the subject premises as her primary residence.Accordingly, the Court finds that Respondent has met her affirmative burden of proving that she is entitled to succeed to the prior tenant’s tenancy. The Court therefore dismisses the petition.The parties are directed to pick up their exhibits within thirty days or they will either be sent to the parties or destroyed at the Court’s discretion in compliance with DRP-185.This constitutes the decision and order of this Court.Dated: New York, New YorkMarch 21, 2018
