Concourse Village, Inc. v. Bilotti

• Decision Date: 24 November 1986
• Citation: 509 N.Y.S.2d 274,133 Misc.2d 973
• Parties: CONCOURSE VILLAGE, INC., Petitioner, v. Floree BILOTTI, Respondent.
• Court: New York City Court

Page 274

509 N.Y.S.2d 274

133 Misc.2d 973

CONCOURSE VILLAGE, INC., Petitioner, v. Floree BILOTTI, Respondent.

Civil Court of the City of New York,

Bronx County,

Housing Court Part 18 D.

Nov. 24, 1986.

Novick & Kaner, Mt. Vernon, for petitioner.

Thomas F. Torres, Bronx, for respondent.

SIDNEY ROSEN, Judge.

This case appears to present an issue as yet undetermined by our courts, namely, the right of a "live-in mate" of a shareholder of a federally insured cooperative to continued occupancy of the co-op apartment after the decease of the tenant/shareholder.

The petitioner, relying on the provisions of its by-laws and occupancy agreement, seeks a judgment of possession in this proceeding asserting that respondent is not a member of the immediate family of the tenant/cooperator and, therefore, not entitled to remain in possession.

Concourse Village, Inc. is a cooperative housing corporation organized pursuant to the Limited Profit Housing Companies Law of New York. It is subject to the provisions of that law as well as the rules and regulations governing city-aided limited profit housing companies administered by the Department of Housing & Community Renewal, (DHCR). As a federally insured cooperative, its by-laws and occupancy agreements are required to conform to and be approved by the Department of Housing and Urban Development (HUD), and are based upon the regulations originally promulgated by the Federal Housing Administration (FHA) now known as the Department of Housing & Urban Development (HUD).

The pertinent provisions of the by-laws are as follows:

Art. VI, Sect. 4. Bequeathing of Apartments.

In no event may the right of occupancy in a Mitchell-Lama cooperative be bequeathed to another. Upon the death of the tenant/cooperator, the shares must be returned to the mutual company which will arrange for a sale pursuant to Section 1 of Article VI of these regulations. Notwithstanding the foregoing, eligible members of the tenant/cooperator's immediate family in occupancy may acquire such shares if they meet the requirements of Article II, Section 16 of these regulations.

Article II, Section 16 provides:

For the purpose of this article, immediate family shall mean parents, spouses and children, including adopted children, of the tenant/cooperator.

The foregoing provisions are set forth in the occupancy agreement as well as on the stock certificate issued by the corporation.

In the fall of 1975, Howard Primm purchased the shares of stock in the cooperative entitling him to an occupancy agreement for apartment 22M at the premises in question, 779 Concourse Village East, Bronx, New York. He was the only person named in the said agreement and was the sole owner of record of the shares of stock. The respondent, Floree Bilotti, moved into the apartment together with him and they co-habited as husband and wife until Mr. Primm's death on December 27, 1985. Throughout the ten years of such occupancy, they held themselves out to management, its employees and neighbors as husband and wife, travelled together as such and received mail at the residence in the names of Mr. and Mrs. Howard Primm. At the time of the purchase of the apartment, Mr. Primm was a retired individual, 64 years of age and Mrs. Bilotti approximately 62 years of age. At the hearing conducted by the Court in this matter, respondent claimed to have contributed to the purchase price of the cooperative, but was unable to produce proof to that effect, but did testify that she was present at the purchase negotiations. It also appears that respondent is the executrix and sole beneficiary under the will of Mr. Primm.

The management of the cooperative first became aware of the fact that the respondent and Mr. Primm were not married when a daughter of Mr. Primm advised them of that fact after his death. Apparently, both Mr. Primm and Mrs. Bilotti were separated from their respective spouses for many years before they commenced living together at Concourse Village.

In examining the underlying purpose for the promulgation of the rules by FHA restricting as it did the transfer of the right to occupancy to "immediate family" it was apparent that the emphasis was placed not on the relationship of the parties but rather on the contemporaneous residence by them. Thus, there have been numerous cases involving close blood relatives who have been denied the right to succeed to possession of the co-op apartment because they have failed to prove residence with the tenant/cooperator at the time of death or when there was a vacatur of the apartment. McCorkle Cooperative Apts. v. Gross, 54 A.D.2d 753, 387 N.Y.S.2d 708, affd. 43 N.Y.2d 765, 401 N.Y.S.2d 1012, 372 N.E.2d 800; Hamilton Cooperative Apartments, Inc. v. Siegel, 113 A.D.2d 738, 493 N.Y.S.2d 204; Knolls Coop Sect. 2 Inc. v. Lehner, 50 A.D.2d 898, 377 N.Y.S.2d 543; Ocean Ridge Co-op Apts., Inc. v. Keltz, N.Y.L.J. 10/1/86, p. 14, col. 2.

In his article "Immediate Family Dilemma" (N.Y.L.J. 10/22/86) Prof. Menachem L. Kastner cited several FHA letter rulings which contained significant language in our quest for a judicial determination of the issue presented in this proceeding. Quoting from a letter dated May 4, 1956 of the Chief Counsel of the Cooperative Housing Section of FHA, Harry E. Johnson, as follows: "It is the understanding of this office that it was the administrative intent that the language "member of his immediate family" would be applied to a resident of the dwelling unit of the deceased member. In other words, even though the legatee or distributee of the deceased member might be a close blood relative he should also be a resident of the dwelling unit to qualify as a member of the decedent's immediate family for the purpose of obtaining the right of occupancy of the decedent's dwelling unit. On the other hand, a cooperative might find it appropriate to accept under this provision a person who was a resident of the dwelling unit and considered a member of the family. In other words, this Administration anticipated that there should be a continuity of occupancy by the members of decedent's household who had in fact resided in the unit with him".

The key words in that document, "a person who was a resident of the dwelling...