Co. v. Zenker (In re 530 Second Ave.)

• Decision Date: 27 March 2018
• Docket Number: Index 570431/14,5827
• Citation: 74 N.Y.S.3d 41,160 A.D.3d 160
• Parties: In re 530 SECOND AVE. CO., LLC, Petitioner–Respondent, v. Lillian ZENKER, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 160
74 N.Y.S.3d 41

In re 530 SECOND AVE. CO., LLC, Petitioner–Respondent,
v.
Lillian ZENKER, Respondent–Appellant.

5827
Index 570431/14

Supreme Court, Appellate Division, First Department, New York.

ENTERED: March 27, 2018

The Price Law Firm LLC, New York (Heather Ticotin, Joshua C. Price and Jennifer Zirojevic of counsel), for appellant.

Belkin Burden Wenig & Goldman, LLP, New York (Magda L. Cruz, Sherwin Belkin and Brian Clark Haberly of counsel), for respondent.

Richard T. Andrias, J.P., Ellen Gesmer, Cynthia S. Kern, Anil C. Singh, Peter H. Moulton, JJ.

MOULTON, J.

74 N.Y.S.3d 42

Respondent (Zenker) in this appeal argues that she is entitled to succession rights in the rent-stabilized apartment which has been her home since 2003. She contends that she was a "family member," as that term is defined in the Rent Stabilization Code, of the tenant of record (Montgomery). Montgomery died in 2011. Petitioner landlord (landlord) contends that Zenker was a mere licensee at the apartment and the death of the tenant of record terminated her right to reside there. After a trial, Housing Court found that Zenker had not carried her burden to prove that she has a right to succeed to the tenancy. Appellate Term affirmed, with one Justice dissenting. We granted leave to appeal and now reverse.

Approximately 30 years ago, in Braschi v. Stahl Assoc. Co., 74 N.Y.2d 201, 544 N.Y.S.2d 784, 543 N.E.2d 49 (1989), the Court of Appeals recognized the rights of nontraditional family members to succeed to rent-regulated apartments and held:

"[W]e conclude 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 by obtaining, for instance, a marriage certificate or an adoption order. The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but should find its foundation in the reality of family life" ( id. at 211, 544 N.Y.S.2d 784, 543 N.E.2d 49 ).

The Braschi Court cited eight factors to aid in that determination, but stressed that "the presence or absence of one or more of

74 N.Y.S.3d 43

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" ( id. at 213, 544 N.Y.S.2d 784, 543 N.E.2d 49 ). In response to Braschi, the rent stabilization regulations were amended to list certain factors that may be considered in determining whether a person qualifies as a family member for succession purposes.¹

The totality of the circumstances in this case demonstrates that Zenker qualifies as a family member of Montgomery and thus qualifies for succession rights.²

The conclusion of Housing Court that Zenker failed to establish that she was a family member could not be reached under any fair interpretation of the record. While the factual findings of the trial court are given deference, particularly because such findings often rest on the credibility of witnesses (see WSC Riverside Dr. Owners LLC v. Williams, 125 A.D.3d 458, 3 N.Y.S.3d 342 [1st Dept. 2015] ), the trial court did not make any credibility findings against Zenker. Instead, in its terse decision, Housing Court held that Zenker did not meet her burden of proof and, without articulating its reasoning or discussing the statutory factors, the court concluded that the couple were merely "friends, roommates and business colleagues." Housing Court also improperly focused on Zenker's "own admission" that she and Montgomery were not "romantically involved" after the end of their nine year "romantic relationship." It was error for the trial judge to consider this testimony as "[i]n no event would evidence of a sexual relationship ... be required or considered" ( 9 NYCRR 2520.6 [o ][2] ).³

74 N.Y.S.3d 44

Landlord maintains that the Housing Court decision should be upheld given the "absence" of evidence and the "deficient documentation." However, the evidence received paints a picture of a couple who exhibited many of the behaviors associated with a traditional marriage. Moreover, the absence of documentary evidence does not undermine a succession rights claim when the totality of the testimonial evidence, as here, establishes the requisite emotional and financial commitment (see Arnie Realty Corp. v. Torres, 294 A.D.2d 193, 742 N.Y.S.2d 240 [1st Dept. 2002] ).

Zenker was unrepresented during the two day trial. Nearly the entire 151 page transcript reflects Zenker's efforts to have documents admitted into evidence in order to establish that she lived with Montgomery in the apartment, as her primary residence, for at least two years prior to his death. The record is cluttered with landlord's counsel's objections to nearly every single piece of evidence that she sought to introduce.⁴ When it came time for Zenker to provide narrative testimony, her account of the nature of her relationship with Montgomery spanned only 3 1/2 pages of the 151 page transcript.

Zenker testified that she met Montgomery, who was her fencing instructor, on January 26, 1979. Within a few months of "kind of hanging out," they became...