DECISION/ORDER This is a licensee holdover proceeding in which the respondent, Felipe Capellan, seeks to succeed to the rent controlled tenancy of his grandmother, Antonia Santos. The matter was tried before me on September 26 and October 3, 2018. Both parties were represented by counsel. Post-trial memos were filed on November 13, 2018.Respondent bears the burden of proving his affirmative defense of succession. 68-74 Thompson Realty LLC v. McNally, 71 AD 3d 411 (1st Dept. 2010). To be entitled to succession, respondent must show that he lived in the subject apartment with his grandmother as his primary residence for the last two years before her death in 1998. 9 NYCRR Section 2204.6(d)(1).Respondent testified credibly at trial that he had lived in the apartment from birth. His grandmother, the tenant of record, raised him in the absence of his teen-aged mother and without much help from his father, who lived in the apartment sporadically but was often in jail. I credit Mr. Capellan’s testimony, supported by school and medical records and by the credible testimony of a cousin who lived next door, that he lived in the apartment between 1996, when he was 12 years old, and 1998 when he was 14. Mr. Capellan testified that when his grandmother died, her sister, Eladia Sanchez, who also lived in the apartment, looked after him for the remaining years of his childhood. He testified that he continued to live in the apartment after she relocated to a nursing home in 2008.The paper record in this case is extremely thin. However, because Mr. Capellan was a child during the relevant two year period, this lack of paper records is easy to understand. Children are not registered to vote, do not file tax returns, keep bank accounts, or have motor vehicle licenses or registrations. Under these circumstances, “the minimal documentary evidence does not preponderate over the plausible and fully credited testimonial evidence.” T & S Realty Corp. v. On Lee, 49 Misc. 3d 140 (A) (AT 1st Dept. 2015).Nor does a delay in asserting a succession claim operate to the successor’s detriment in the context of rent control. Under rent control, a person who qualifies for succession simply succeeds, without having to take any particular steps. Klein v. DHCR, 17 AD 3d 186 (1st Dept. 2015), Patmund Realty Corp. v. Foon Mui, 32 Misc. 3d 1232 (A) (Civ. Ct. NY Co. 2011), 90 Elizabeth Apt. LLC v. Eng, 58 Misc. 3d 300 (Civ. Ct. NY Co. 2017), Underhill Washington Equities LLC. V. DHCR, 47 Misc. 3d 1215 (A) (Sup. Ct. 2015), aff’d 157 AD 3d 705 (2nd Dept. 2018) (“DHCR also clarified that the Rent Control Laws indicate that whenever a prime-tenant permanently vacates, a successor family member who has met the two-year co-residency requirement may avail him-herself of succession rights at any point thereafter.”) It should be noted here that this not a case in which there was an effort to hide the death of the tenant of record.Nor are Mr. Capellan’s rights defeated by the fact that Eladia Sanchez may also have had succession rights in 1998 and that she may have exercised them for a decade before leaving the apartment. When two family members have succession rights that attach at the same time, both are considered successor tenants. In re Appeal of MH Residential 1 LLC v. DHCR, 2008 NY Slip Op. 33207 (U) (Sup. Ct. NY Co. 2008).For all the foregoing reasons, I find that Felix Capellan is entitled to succeed to the rent controlled tenancy of his grandmother, Antonia Santos. Accordingly, the proceeding is dismissed on the merits.Dated: 12/28/18
