Greene Ave. Assocs. v. Reape

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

182 Misc.2d 379

697 N.Y.S.2d 913

GREENE AVENUE ASSOCIATES, Petitioner,

v.GILBERT REAPE, Respondent.

October 11, 1999.

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 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 controlled substance, which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques, and which are expected to be permanent and which substantially limit one or more of such person's major life activities." (9 NYCRR 2523.5 [b] [4].) Respondent elicited testimony from Daniel Schweitzer, M.D., a vascular surgeon, that Mr. Reape had varicose veins that developed into severe ulcers on both legs, that the condition causes constant pain to Mr. Reape, that the condition is permanent and that it limits Mr. Reape's ability to walk normally. Dr. Schweitzer based his testimony on a physical exam of Mr. Reape and a review of his medical records. Gilbert Reape also testified on the issue of his disability. He stated that he has "holes in his legs" that cause him constant pain and make it difficult for him to sleep. He also testified that he rides a bicycle because his legs hurt when he walks.

Based upon the testimony of Gilbert Reape and Dr. Daniel Schweitzer, the court finds that Gilbert Reape is disabled within the meaning of the Rent Stabilization Code. He has a permanent physical condition, ulcers on his legs, which substantially limits his ability to walk normally. The court, therefore, concludes that in determining whether Gilbert Reape succeeds to his mother's section 8 apartment, the court must consider whether Mr. Reape lived with his mother for a period of one year prior to his mother's death.

Succession Rights

Typically, "no one factor is completely determinative with regard to whether a relative may succeed to the rights of a section 8 tenant when the tenant permanently vacates. What is dispositive is whether the respondent can make a showing, under the totality of the circumstances, that he lived with the deceased section 8 tenant as a family unit, and that it was for more than a short period of time." (NSA N. Flatbush Assocs. v Mackie, 166 Misc 2d 446, 453 [Civ Ct, Kings County 1995], supra.)

After hearing testimony on behalf of both parties, the court concludes that the respondent did not reside in the premises for the one year preceding his mother's death. The attorneys for both parties presented strong arguments indicating the bias or interest of many, if not most, of the witnesses who testified. The court concludes, however, that the witnesses without interest in the proceeding are also the witnesses who spent the most continuous time in the apartment during part of the time in question. Those witnesses are the home attendants whose job it was to take care of Irene Reape, the tenant of record.

The home attendants, Brenda Dryden and Sonia Jean Baptiste, worked from 9:00 A.M. to 9:00 P.M. Ms. Dryden worked on weekends and Ms. Sonia Jean Baptiste worked Mondays through Fridays. Ms. Dryden testified that she never saw the respondent, Gilbert Reape, and that the only family...