Greene Ave. Assocs. v. Reape

• Court: New York Civil Court
• Citation: 182 Misc.2d 379,697 N.Y.S.2d 913
• Parties: GREENE AVENUE ASSOCIATES, Petitioner,<BR>v.<BR>GILBERT REAPE, Respondent.
• Decision Date: 11 October 1999

182 Misc.2d 379
697 N.Y.S.2d 913

GREENE AVENUE ASSOCIATES, Petitioner,
v.
GILBERT REAPE, Respondent.

October 11, 1999.

[182 Misc.2d 380]

Rappaport Hertz Cherson & Rosenthal, P. C. (Michael C. Rosenthal of counsel), for petitioner.

Legal Aid Society (Warren Scharf, Michael Burger and Stephen Meyers of counsel), for respondent.

OPINION OF THE COURT

LOREN BAILY-SCHIFFMAN, J.

Petitioner commenced the within squatter holdover proceeding seeking possession of apartment F-9 at 80 Greene Avenue, Brooklyn, New York. Petitioner alleges that respondent came into occupancy of the subject premises after the death of the tenant of record, Irene Reape, the respondent's mother, and has no right to continued occupancy of the premises. Respondent alleges that he lived with his mother at the apartment from the inception of the tenancy and had lived with her for several years prior to that time, thus entitling him to succeed to his mother's tenancy. This matter was tried on March 19, 1999, March 29, 1999, April 15, 1999 and May 7, 1999. Both parties were represented by counsel. Posttrial motions were argued on May 20, 1999, written summations were presented and further posttrial submissions were made on the applicability to the instant proceeding of Matter of Evans v Franco (93 NY2d 823).

The basic factual issues to be determined after trial are whether the respondent resided with his mother in the subject apartment as a family unit for at least a one-year period prior to his mother's death (NSA N. Flatbush Assocs. v Mackie, 166 Misc 2d 446, 453 [Civ Ct, Kings County 1995]), and whether the respondent is disabled. The legal issues to be determined are the legal effect of the annual recertification forms listing only Irene Reape as a member of the tenant family and the appropriate definition of "disabled" for the purposes of occupancy in a building housing elderly and disabled residents.

The apartment in question receives a "project-based" section 8 Federal subsidy in a building designed to house elderly and disabled residents. As such, the tenancy in question is governed by Federal regulation to the extent that there are applicable regulations. In the absence of relevant Federal law, State and local laws apply. (Morrisania II Assocs. v Harvey, 139 Misc 2d 651, 659 [Civ Ct, Bronx County 1988].) Here, State landlord/tenant laws apply as Federal law does not contain its own eviction procedure. The court then applies the succession

[182 Misc.2d 381]

rules devised by State decisional law. (Morrisania II Assocs. v Harvey, supra.)

Since Morrisania (supra), the New York Court of Appeals in Braschi v Stahl Assocs. Co. (74 NY2d 201 [1989]) and Rent Stabilization Code (9 NYCRR) § 2523.5 (b) (1) have articulated and codified certain occupancy provisions related to succession rights: A member of tenant's family, who has resided with the tenant, for not less than two years prior to the tenant's vacating the housing accommodation, is entitled to succession rights. If the remaining family member is a disabled person (as Mr. Reape is alleged to be), he need only have resided in the housing accommodation as a primary resident with the tenant for at least one year. (Id.) Ordinarily, proof of residency in a succession case may be made by the testimony of friends and family, and need not rely on documentary evidence. (300 E. 34th St. Co. v Habeeb, 248 AD2d 50 [1st Dept 1997], supra; Lesser v Park 65 Realty Corp., 140 AD2d 169 [1st Dept 1988]; Matter of Rose Assocs. v State Div. of Hous. & Community Renewal, 121 AD2d 185 [1st Dept 1986].)

Disability Pursuant To Rent Stabilization Code

In determining whether the respondent is disabled, the court applies the New York City Rent Stabilization Code definition of a disabled person: "a person who has an impairment which results from anatomical, physiological or psychological conditions, other than addiction to alcohol, gambling or any...