Fieldbridge Assocs., LLC v. Sanders

• Decision Date: 19 February 2021
• Docket Number: 2018-979 K C
• Citation: 70 Misc.3d 140 (A),139 N.Y.S.3d 474 (Table)
• Parties: FIELDBRIDGE ASSOCIATES, LLC, Appellant, v. Larry SANDERS and Mary Ann Alexander, Respondents.
• Court: New York Supreme Court — Appellate Term

70 Misc.3d 140 (A)

139 N.Y.S.3d 474 (Table)

FIELDBRIDGE ASSOCIATES, LLC, Appellant, v. Larry SANDERS and Mary Ann Alexander, Respondents.

2018-979 K C

Supreme Court, Appellate Term, New York, Second Dept., 2, 11, 13 Jud. Dist..

Decided on February 19, 2021

Stern & Stern, Esqs. ( David Lyle Stern and Pamela Smith of counsel), for appellant.

New York Legal Assistance Group ( Jonathan Fox and Beth E. Goldman of counsel), for respondents.

PRESENT: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ

ORDERED that the final judgment is affirmed, without costs.

Landlord commenced this licensee proceeding ( see RPAPL 713 [7] ) against occupants in 2015, seeking possession of a rent-stabilized apartment as well as an award of use and occupancy. The rent-stabilized tenant of the apartment passed away in April 2014, occupant Larry Sanders is his son, and occupant Mary Ann Alexander is Sanders's girlfriend and allegedly considered the tenant to be her father-in-law. Occupants defended on the ground that they were each, independently, entitled to succeed to the tenancy ( see Rent Stabilization Code [RSC] [9 NYCRR] § 2523.5 [b] [1]), claiming to have moved into the apartment to live with the tenant in 2008 and primarily resided therein since that time. In a decision dated October 26, 2017, after a nonjury trial, the Civil Court, finding that Sanders and Alexander held themselves out to be common-law husband and wife, determined that each occupant had established succession rights to the apartment and denied landlord's request for outstanding use and occupancy. A final judgment was subsequently entered pursuant to the court's decision.

No family member of a rent-stabilized tenant shall be evicted from the tenant's apartment if the family member has resided with the tenant in the apartment as a primary residence for at least two years prior to the tenant's permanent removal from the premises ( see RSC §§ 2520.6 [o]; 2523.5 [b] [1]). A family member, as defined under RSC § 2520.6 (o), includes, as relevant here, a son and any person who can prove emotional and financial commitment and interdependence between such person and the tenant. The burden of presenting legally sufficient proof to establish contemporaneous residency with the tenant rests with the party claiming succession rights ( see 68-74 Thompson Realty, LLC v McNally , 71 AD3d 411, 412 [2010] ; Gottlieb v Licursi , 191 AD2d 256, 257 [1993] ). The traditional indicia of primary residence, including driver's license, voter's registration, income tax returns, telephone records and bank statements, would be competent evidence to establish a period of residency ( see Lesser v Park 65 Realty Corp. , 140 AD2d 169, 174 [1988] ; Pavel v Fischer , 21 Misc 3d 143[A], 2008 NY Slip Op 52452[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). "While documentation, or the absence thereof, might be a significant factor in evaluating primary residency, especially in the case of the dubious credibility of witnesses, it would not be a dispositive factor, especially when there is a preponderance of credible personal testimony" ( 300 E. 34th St. Co. v Habeeb , 248 AD2d 50, 55 [1997] [citations omitted]; see 23 Jones St. Assoc. v Keebler-Beretta , 284 AD2d 109, 109 [2001] ; Zevrone Realty Corp. v Irving , 63 Misc 3d 141[A], 2019 NY Slip Op 50587[U] [App Term, 1st Dept 2019] ).

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility ( see Northern Westchester Professional Park Assoc. v Town of Bedford , 60 NY2d 492, 499 [1983] ; Hamilton v Blackwood , 85 AD3d 1116 [2011] ; Zeltser v Sacerdote , 52 AD3d 824, 826 [2008] ).

Here, the credible testimony established that Alexander had resided with the tenant in the apartment as a primary residence for at least two years prior to the tenant's death. Her primary residency at the apartment was supported by documentary evidence, including her driver's license, bank account statements, cancelled checks, and correspondence from the Social Security Administration. The record also amply supports the Civil Court's finding that Alexander met her affirmative obligation of establishing the requisite emotional and financial commitment and interdependence between her and the tenant for her to qualify as a nontraditional family member of the tenant pursuant to RSC § 2520.6 (o) (2)....