Alliance Hous. Assocs., LP v. Occupant

• Decision Date: 21 November 2016
• Docket Number: 69191/2015
• Citation: 2016 NY Slip Op 51672 (U)
• Parties: Alliance Housing Associates, LP, Petitioner-Landlord, v. Julio Garcia - Occupant, "JOHN DOE"/"JANE DOE" — Occupants, Respondents.
• Court: New York Civil Court

2016 NY Slip Op 51672(U)

Alliance Housing Associates, LP, Petitioner-Landlord, v. Julio Garcia - Occupant, "JOHN DOE"/"JANE DOE" — Occupants, Respondents.

69191/2015

Civil Court of the City of New York, Bronx County

Decided on November 21, 2016

Attorneys for Petitioner:

Arianna Gonzalez-Abreu, Esq.

Gutman, Mintz, Baker & Sonnenfeldt, LLP

813 Jericho Turnpike

New Hyde Park, New York 11040

(516) 775-7007

Attorneys for Respondent:

Jennifer Smith, Esq.

Angel Melendez, Esq.

Bronx Legal Services

349 E. 149th Street, 10th floor

Bronx, New York 10451

(718) 928-3765

Diane E. Lutwak, J.

Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of Respondent Julio Garcia's motion for summary judgment and Petitioner's cross-motion for use and occupancy:

Papers Numbered

Notice of Motion and Accompanying Affirmation, Affidavits, Exhibits 1

Respondent's Memorandum of Law 2

Notice of Cross-Motion and Accompanying Affirmation, Affidavit, Exhibits 3

Affirmation in Reply and in Opposition to Cross-Motion 4

Upon the foregoing papers, the Decision and Order on this Motion and Cross-Motion are as follows:

BACKGROUND & PROCEDURAL HISTORY

This is a licensee holdover eviction proceeding brought by Petitioner-Landlord, Alliance Housing Associates, following the death in July 2015 of the tenant of record of Apartment 1A at 103 West 165th Street, Bronx, New York, Nelida Caraballo, against Respondent Julio Garcia, the occupant of the apartment. Petitioner claims that Respondent is a licensee whose license expired upon the death of Ms. Caraballo.¹ The subject premises are located in a privately-owned, multi-family, project-based, substantially rehabilitated Section 8 building, which is subject to the Housing Assistance Payments Program run by the United States Department of Housing and Urban Development ("HUD"). 42 U.S.C. § 1437, 24 CFR Part 881.

The Notice of Petition and Petition are dated November 2, 2015, and the case first appeared on the Court's calendar on December 1, 2015. The case was adjourned initially several times for Respondent Julio Garcia to retain and appear by counsel, which he did on March 31, 2016, at which time he served and filed his Answer raising an affirmative defense of succession rights to the tenancy of Nelida Caraballo as a remaining family member ("domestic life partners and co-parents of their two children"). Respondent by his attorney filed a motion for summary judgment on June 13, 2016, Petitioner filed its opposition and a cross-motion for use and occupancy on September 12, 2016 and Respondent's counsel filed a combined Reply Affirmation and Affirmation in Opposition to Petitioner's motion on October 14, 2016.

Respondent's motion seeks summary judgment on his affirmative defense of succession rights to the apartment² as a remaining family member of Ms. Caraballo, whom he asserts he met in 1968 when he was 19 years old after which time they lived together continuously "as husband and wife" until Ms. Caraballo's death on July 18, 2015. Respondent's Affidavit, sworn to June 10, 2016, at ¶¶ 7 & 8. Although they never got married, neither of them was ever married to anyone else and they had two children together, Julio Garcia, Jr., born [month/date redacted], 1969, and Ivette Garcia, born [month/date redacted], 1971 (Respondent's Affidavit at ¶ 8); copies of their birth certificates are attached to the moving papers at Exhibit B, pp. 3 & 4.

In addition to his own affidavit, Respondent's motion for summary judgment is supported by the affidavit of his and Ms. Caraballo's daughter Ivette Garcia, sworn to on April 12, 2016, and the affidavits of seven neighbors, sworn to on October 6, 2016³. The affidavits of Mr. Garcia and his daughter Ivette attest to the length of Mr. Garcia's relationship and co-residency with Ms. Caraballo in both the apartment which is the subject of this proceeding as well as in prior apartments they lived in together⁴; the ways in which they handled their finances, household chores and family responsibilities; the babysitting they did together for their grandchildren; certain holiday and social events they attended together; and the personal care and assistance Mr. Garcia provided to Ms. Caraballo during the last year of her life when, already suffering from diabetes, asthma and Alzheimer's Disease, she fell and broke her hip. With regard to this last item, Mr. Garcia explained in his sworn affidavit that he would visit Ms. Caraballo four times a week while she was in a rehabilitation facility recuperating from surgery and then, after Ms. Caraballo was discharged home, "we had home attendants to take care of her during daytime hours, but I took care of her at night. During this time, I ran errands and picked up groceries for Nelida and the home attendants as needed; I gave her medicine; checked her blood sugar levels; cleaned her, fed her, and changed her diapers as needed. I stayed with her and took care of her this way until she died in July 2015." Respondent's Affidavit at ¶ 10. Ivette Garcia corroborates this information about her father's role in her mother's care in her sworn affidavit: "At night, my father was alone with my mother and he was responsible for taking care of her. He would change her diapers if necessary, clean her up, and give her food and water." Affidavit of Ivette Garcia at ¶ 17.

With regard to their finances, Mr. Garcia explains in his affidavit that: neither he nor Ms. Caraballo ever had much money; neither of them ever had a credit card; he never had any bank account in his name until four years ago; Ms. Caraballo had a bank account in her name alone where her SSI (Supplemental Security Income) benefits were deposited; they shared household expenses for groceries, clothing and furniture; the electricity, telephone and rent bills were all in Ms. Caraballo's name and their arrangement was that she would pay the rent from her SSI check and he would pay the utility bills; when he had a heart attack, stopped working and applied for disability benefits in 2008 Ms. Caraballo took over responsibility for payment of all household bills while that application was pending; and they never had cable service. With regard to the subsidized nature of their housing, Mr. Garcia explains: "I was not involved in applying for or recertifying for Section 8. Nelida took care of all of that." Respondent's Affidavit at ¶ 9.

Also submitted in support of the motion are various documents which list Respondent's name and address at 103 West 165th Street, Apt. 1A, Bronx, NY 10452, specifically (in reverse chronological order): (1) an IRS Tax Return Transcript issued on March 21, 2016 for the tax period ending December 31, 2014; (2) a Social Security Benefit Statement form SSA-1099 for the year 2014; (3) a Social Security Benefit Statement in the form of a computer printout for the year 2013; (4) eight pieces of health care-related correspondence from the year 2012; (5) a current New York State Identification Card, issued November 15, 2011 with an expiration date of June 9, 2021 which reflects a date of birth of [month/date redacted], 1948 (establishing that Respondent presently is 66 years old); and (6) a prior New York State Identification Card issued August 24, 2007 with an expiration date of June 9, 2011. Respondent also included a Wage and Tax Statement W-2 form for the year 2006 addressed to him at 101 West 165th Street, Apt. 3B, Bronx, NY 10452, the apartment where he claims he lived with Ms. Caraballo from approximately 1975 until 2007 (see fn 4, supra). Attached as Exhibit C to the moving papers is a set of six photographs of Respondent with Ms. Caraballo⁵, of which, according to the affidavits of Respondent and his daughter, the oldest were taken in the early 1980's and the most recent were taken in 2006.

The neighbors' affidavits are brief, and primarily attest to the length of time each of them had known Mr. Garcia and Ms. Caraballo and, "to the best of my knowledge", how long the couple had lived together, both in Apartment 3B at 101 West 165th Street⁶ and in the subject premises.

Petitioner opposes Respondent's motion with its attorney's affirmation and an affidavit of its agent Eli Davidowitz, sworn to on August 31, 2016, which asserts that Petitioner's records show Ms. Caraballo to be the tenant of record of the subject premises⁷ with an initial lease effective August 1, 2010 and that, "The records in the Petitioner's management office show that each year from 2010 through 2014 Nelida Caraballo submitted an annual income recertification stating that she was the sole household member of the subject premises." Petitioner's Affidavit at ¶ 6 and Exhibits 1 & 2 thereto. Mr. Davidowitz does not explain why its records for Ms. Caraballo only begin with the year 2010, even though Respondent, his daughter and the seven neighbors all describe the tenancy of Respondent and Ms. Caraballo as one dating back 40 years, first in Apartment 3B commencing in approximately 1975 and then in Apartment 1A commencing in approximately 2007. Mr. Davidowitz does not claim to have any personal knowledge of who was residing at the premises prior to Ms. Caraballo's death, and Petitioner did not include with its opposition papers affidavits from anyone else other than Mr. Davidowitz.

In its opposition papers, Petitioner makes essentially two arguments: First, based on the decision of the Court of Appeals in Evans v Franco (93 NY2d 823, 687 NYS2d 615 [1999]), and HUD guidelines, specifically Section 3-16 of the HUD Handbook and a memo from the HUD Office of Public and Indian Housing (PIH)⁸, "Respondent's succession claim must fail on the sole basis that the Respondent was not named on the lease agreement for the subject apartment at the time of the tenant of record's vacatur." Affirmation in Opposition at ¶ 47. Second, Petitioner argues that even if Respondent's absence from the lease were not the sole consideration, the evidence Respondent submitted in support of his motion is...