Bos. Tremont Hous. Dev. Fund Corp. v. Dunbar
| Decision Date | 07 December 2018 |
| Docket Number | 23500/17 |
| Citation | 90 N.Y.S.3d 835,62 Misc.3d 844 |
| Parties | BOSTON TREMONT HOUSING DEVELOPMENT FUND CORPORATION, Petitioner v. Kirkpatrick DUNBAR, "John Doe" and "Jane Doe", Respondents. |
| Court | New York Civil Court |
For Petitioner: Jason D. Boroff & Associates, PLLC, Attorneys for Petitioner, 349 East 149th St., Suite 703, Bronx, NY 10451
For Respondent: Mobilization for Justice, Inc., Attorneys for Respondent, 540 East Fordham Road, Bronx, NY 10458
The decision and order on this motion is as follows:
BACKGROUND & PROCEDURAL POSTURE
Petitioner commenced the instant licensee holdover proceeding to regain possession of the subject premises which is regulated by the Department of Housing and Urban Development ("HUD") project-based Section 8 program. Respondent Kirkpatrick Dunbar ("Dunbar") and occupants Akilah Mohed ("Mohed") and her daughter, Alana Grant ("Grant"), (collectively "Respondents") are the alleged licensees of the tenant of record, Janice Mohed ("Tenant"), who died in November 2016.
On or about August 11th and 17th 2017 respectively, Dunbar and Mohed on behalf of herself and Grant (a minor), answered the petition through counsel. Their answers raised various affirmative defenses including defenses based upon their purported succession to the premises and to Tenant's Section 8 subsidy.
On or about December 13, 2017, Petitioner moved to strike Respondents' answers. The motion was resolved by stipulation whereby the parties agreed to strike all of Respondents' affirmative defenses except for their succession defenses.
Thereafter, Petitioner moved for leave to conduct discovery relative to Respondents' succession defenses. Respondents crossed-moved seeking partial summary judgment on their succession defenses. This court, by Decision and Order of Hon. Kimon Thermos dated May 18, 2018, denied Respondents' motion for summary judgment and granted Petitioner's motion for discovery. The case was thus marked off calendar for completion of discovery.
Petitioner makes the instant motion seeking summary judgment pursuant to C.P.L.R. §§ 409(b) & 3212 and, accordingly, a final judgment of possession. During oral argument of the instant motion on November 16, 2018, Mohed and Grant withdrew their answers through counsel. The only remaining issue before the court is whether Petitioner has eliminated all issues of fact in relation to Dunbar's succession defense.
Pursuant to CPLR § 3212, a moving party may be entitled to summary judgment upon making a prima facie showing of entitlement to judgment as a matter of law. ( Davern v. City of New York , 287 A.D.2d 679, 732 N.Y.S.2d 180 [2001] ). Once the movant has established a prima facie case for entitlement to summary judgment, the burden shifts to the opponent to prove the existence of a triable issue of fact. ( Adam v. Cutner & Rathkopf , 238 A.D.2d 234, 656 N.Y.S.2d 753 [1st Dept. 1997], citing Zuckerman v. City of New York , 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). It is incumbent upon a party who opposes a motion for summary judgment to assemble, lay bare and reveal his proofs in order to show that the allegations in the answer are real and are capable of being established at trial. ( Spearmon v. Times Square Stores Corp. , 96 A.D.2d 552, 465 N.Y.S.2d 230 [2nd Dept. 1983] ). The court must accept as true the non-moving party's recounting of the facts and must draw all reasonable inferences in favor of the non-moving party. ( Warney v. Haddad, 237 A.D.2d 123, 654 N.Y.S.2d 138 [1st Dept. 1994] ; Assaf v. Ropog Cab Corp. , 153 A.D.2d 520, 544 N.Y.S.2d 834 [1st Dept. 1989] ). If there is a genuine issue of material fact, summary judgment must be denied. (See Smalls v. AJI Industries, Inc. , 10 N.Y.3d 733, 853 N.Y.S.2d 526, 883 N.E.2d 350 [2008] ; Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).
Petitioner argues it is entitled to summary judgment because, as a matter of law, Dunbar is not eligible to succeed to the premises or Tenant's subsidy. First, Petitioner claims that pursuant to Chapter 3, section 3-16 of the HUD Handbook, the remaining family member's failure to appear on the tenant of record's lease at the time of the tenant's vacatur bars the remaining family member from claiming succession. In support, Petitioner attaches to its moving papers copies of Tenant's leases and HUD certification forms. It is undisputed that Dunbar is absent from these records.
Secondly, Petitioner claims that because Dunbar admits he does not have a biological relationship with the Tenant, he cannot be considered her "family member" and therefore is ineligible for succession. According to Petitioner, the standard for "non-traditional" family members under Braschi v. Stahl , 74 N.Y.2d 201, 544 N.Y.S.2d 784, 543 N.E.2d 49 [1989] is inapplicable to project-based Section 8 tenancies. Petitioner maintains that, at most, Dunbar is a live-in aide.
Lastly, Petitioner maintains that Dunbar cannot succeed because he did not co-reside with the tenant for any significant period of time. It further argues that the applicable period of co-residency required to support a claim for succession is two years prior to the vacatur of the tenant of record as required by the Rent Stabilization Code. In support of this assertion that the parties did not co-reside, Petitioner attaches to its papers several documents procured from Respondents' discovery response which reflect Mohed's residence at an address other than that of the subject premises. Included in these documents are Mohed's tax returns which claim Dunbar as her dependent. Petitioner also refers the court to Dunbar's affidavit submitted in support of his opposition to Petitioner's motion to strike Respondents' defenses. In his affidavit, Dunbar acknowledges having lived with Mohed at the other address. Petitioner further points out that Dunbar has not provided in his motion any documentary evidence connecting him to the subject premises. Petitioner does, however, attach to its own papers two of Dunbar's Social Security documents which reflect the address of the subject premises but are dated less than one week prior to tenant's death.
In response to Petitioner's motion, Dunbar's papers purport to raise several issues of fact. While Dunbar does not dispute he was never a member of the Section 8 household or on any leases, he argues that his absence on these records does not bar him from claiming succession. He also argues that his status as a non-traditional family member does not bar him from asserting his succession defense. Lastly, Dunbar argues that the sworn affidavits annexed to his papers create a question of fact as to the period he co-resided with the Tenant, notwithstanding the absence of documentary evidence.
Based upon the papers and evidence herein, Petitioner's motion for summary judgment is denied as Respondent's papers raise triable issues of fact as to whether he is entitled to succeed to the premises.
Contrary to Petitioner's contention in its motion, Tenant's failure to add Dunbar to the annual certification and/or leases do not bar him from raising his succession defense. In Amsterdam Ave. Hous. Assoc. v. Estate of Wells , the Appellate Term held that "the absence of [the remaining family member's] name on the family composition document was not fatal to her succession claim otherwise established by the trial evidence." ( 10 Misc. 3d 142(A), 2006 WL 176950 [App. Term 1st Dept. 2006], citing Matter of Manhattan Plaza Assocs. v. DHPD , 8 A.D.3d 111, 778 N.Y.S.2d 164 [1st Dept. 2004] ). See also , NSA Flatbush Assoc. v. Mackie , 166 Misc. 2d 446, 632 N.Y.S.2d 388 [Civ. Ct., N.Y. County 1995] () ). Respondent shall be permitted at trial to present evidence which serves to rebut the presumption of non-residency reflected by the remaining family member's absence in the family composition. ( Manhattan Plaza , supra ).
Petitioner's reliance on Davidson 1992 Associates v. Corbett , 190 Misc. 2d 813, 738 N.Y.S.2d 813 [App. Term 1st Dept. 2002] for the proposition that a non-traditional family member cannot succeed to a project-based Section 8 tenancy is misguided. Corbett is distinguishable to the facts herein as it was undisputed that Corbett, the individual seeking succession, entered into possession as a live-in aide. In fact, the tenant of record listed Corbett as an aide in his annual re-certifications. The Appellate Term held that Corbett was not entitled to succeed to the subsidy because live-in aides correspond to a special class of occupants who are not entitled to succession. Id. Further, the Corbett trial court (Hon. Malatzky) relied on Matter of Evans v. Franco , 93 N.Y.2d 823, 687 N.Y.S.2d 615, 710 N.E.2d 261 in determining that respondent could not succeed to the tenancy. Subsequently, the Appellate Term, 1st Department has declined to follow the Franco holding, at least as to project-based subsidies. (see 2013 Amsterdam v. Wells , supra ; Kings Ct. Hous. LLC v. Hudson , 22 Misc. 3d 1113(A), 880 N.Y.S.2d 224 [Civ. Ct., New York County 2009] ).
Petitioner points to no appellate authority holding that a non-traditional family member is barred from succeeding to a project-based Section 8 tenancy as a matter of law. Accordingly, the lower courts have employed a broadanalysis when considering whether non-traditional family members can succeed. In Morrisania II Associates v. Harvey , 139 Misc. 2d 651, 527 N.Y.S.2d 954 [Civ. Ct., Bronx County 1988], the court held:
The term ‘remaining member of a tenant family’ ( 42 USC § 1437a [b] [3] [C] ) is not otherwise defined by statute or regulation. Since...
To continue reading
Request your trial
-
Towers v. Green, L & T 74645/19
...2018], Bronx 361 Realty, L.L.C. v Quinones , 26 Misc 3d 1231[(A]), 907 N.Y.S.2d 98 [Civ Ct, Bronx County 2010], Boston Tremont Hous. Dev. Fund Corp. v Dunbar , 62 Misc 3d 844 [Civ Ct, Bronx County 2018], Alliance Housing Assoc LP v Garcia , 53 Misc 3d 1215[(A]), [Civ Ct, Bronx County 2016] ......