Jourdain v. N.Y.S. Div. of Hous. & Cmty. Renewal

• Decision Date: 31 January 2018
• Docket Number: Index 16008/14,2015–10508
• Citation: 70 N.Y.S.3d 239,159 A.D.3d 41
• Parties: In the Matter of Marie JOURDAIN, petitioner-respondent, v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, respondent, Georgetown Leasing, LLC, appellant.
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 41

70 N.Y.S.3d 239

In the Matter of Marie JOURDAIN, petitioner-respondent,

v.NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, respondent,Georgetown Leasing, LLC, appellant.

2015–10508

Index 16008/14

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

Argued June 9, 2017

January 31, 2018

Kucker & Bruh, LLP, New York, N.Y. (Patrick K. Munson of counsel), for appellant.

Sharon A. Telford, Brooklyn, NY, for petitioner-respondent.

Mark F. Palomino, New York, N.Y. (Sheldon Melnitsky and Susan E. Kearns of counsel), for respondent.

Legal Services NYC, Brooklyn, N.Y. (Edward Josephson and Anita Wu of counsel), and the Legal Aid Society, New York, N.Y. (Seymour W. James, Jr., Judith Goldiner, and Ellen Davidson of counsel), amici curiae pro se (one brief filed).

WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, ANGELA G. IANNACCI, JJ.

OPINION & ORDER

HALL, J.

Rent Stabilization Code (9 NYCRR) § 2523.5(b)(1) and Public Housing Law § 14(4)(a) provide family members residing with tenants in rent-stabilized apartments with succession rights under certain circumstances when the tenant vacates the apartment. On this appeal we are asked to determine whether a family member who had been residing in an apartment with the tenant for years and had the right to seek succession when the tenant moved out of the apartment lost that right by virtue of the fact that the tenant continued to pay the rent and executed a renewal lease after moving out. We answer this question in the negative.

Factual and Procedural Background

Georgetown Leasing, LLC (hereinafter Georgetown), is the owner of a rent-stabilized apartment building in Brooklyn. In December 2003, Scherley Jourdain (hereinafter Scherley) became the tenant of record of an apartment in the building. Scherley's mother, Marie Jourdain (hereinafter Marie), lived in the apartment with Scherley from the outset of the tenancy. In a lease renewal form completed by Scherley in September 2005, Scherley listed Marie as an additional occupant in the apartment. In 2008, Scherley moved to Virginia with her husband. However, Scherley continued to pay the rent for the apartment and, in September 2009, executed a renewal lease form agreeing to enter into a renewal lease for the two-year period beginning January 1, 2010, and ending December 31, 2011. Meanwhile, Marie continued to live in the apartment without Scherley.

In September 2011, Georgetown served Scherley and Marie with a notice of intention to refuse to renew the lease again on the ground that Scherley, the tenant of record, lived in Virginia and had not been seen in or around the property since at least February 2010. The notice directed Scherley and Marie to quit, vacate, and surrender possession of the apartment on or before December 31, 2011.

In November 2011, Marie, then aged 70, filed a complaint with the New York State Division of Housing and Community Renewal (hereinafter the DHCR) regarding Georgetown's refusal to renew the lease. In her supporting papers, Marie asserted that Scherley had permanently vacated the apartment and moved to another state. In a determination dated December 27, 2011, a Rent Administrator found that Marie was entitled to succession rights to the apartment. Georgetown filed a petition for administrative review (hereinafter PAR) of the Rent Administrator's determination. In a determination dated November 27, 2012, the Deputy Commissioner of the DHCR granted the PAR to the extent of remitting the proceeding to the Rent Administrator for further fact finding, including ascertaining the date that Scherley permanently vacated the apartment.

Marie then submitted a number of documents to the Rent Administrator establishing that she had resided in the apartment since 2003, and asserted that, in addition to being a senior citizen, she was also disabled. Marie also submitted a letter from Scherley, dated December 26, 2012, in which Scherley asserted that she had moved to Virginia with her husband on August 23, 2008, but that she continued to provide support and care for her mother, Marie. Scherley also stated in the letter that, at some point in time, she called the building's former management company to see if Marie's name could be placed on the lease as a primary tenant, but was told that Marie did not need to place her name on the lease since she was on record as being an occupant. Finally, Marie submitted a copy of Scherley's marriage certificate, showing the date of marriage as August 23, 2008.

In a determination dated April 29, 2013, the Rent Administrator again found that Marie was entitled to succession rights to the subject apartment. Georgetown filed another PAR challenging this determination. In a determination dated November 29, 2013, the Deputy Commissioner of the DHCR affirmed the Rent Administrator's determination. However, after Georgetown commenced a CPLR article 78 proceeding to review the determination dated November 29, 2013, and after the parties stipulated to remit the matter to the Deputy Commissioner for reconsideration, in a determination dated July 1, 2014, the Deputy Commissioner revoked the determination of the Rent Administrator dated April 29, 2013, and found that Marie was not entitled to succession rights to the subject apartment. In the determination dated July 1, 2014, the Deputy Commissioner concluded that such a finding was required because this case was indistinguishable from the decision of the Appellate Division, First Department, in Third Lenox Terrace Assoc. v. Edwards ( 91 A.D.3d 532, 937 N.Y.S.2d 41 ).

Marie then commenced this proceeding pursuant to CPLR article 78 to review the determination dated July 1, 2014. In a judgment dated July 17, 2015, the Supreme Court granted the petition, annulled the determination dated July 1, 2014, and, in effect, reinstated the determination of the Rent Administrator dated April 29, 2013, finding that Marie was entitled to succession rights to the apartment. Georgetown appeals. In its brief, the DHCR has changed its position again, and now argues that the determination of its Deputy Commissioner dated July 1, 2014, was properly annulled by the Supreme Court.

Analysis

The Rent Stabilization Law (hereinafter RSL) "was enacted in 1969 in response to a housing crisis which had developed in part because the Rent Control Law did not apply to some

400,000 apartments constructed after 1947" ( Matter of Ansonia Residents Assn. v. New York State Div. of Hous. & Community Renewal, 75 N.Y.2d 206, 216, 551 N.Y.S.2d 871, 551 N.E.2d 72 [citation omitted] ). "[T]he dual purposes of the Rent Stabilization Law were to protect tenants from eviction as a result of rapidly spiraling rent increases and to encourage future housing construction by allowing landlords reasonable rent increases so that they could profit from the operation of their properties" ( id. at 216, 551 N.Y.S.2d 871, 551 N.E.2d 72 ). "The RSL ... authorized the DHCR to promulgate a Rent Stabilization Code consisting of rent stabilization rules that are consistent with the provisions of the RSL" ( Bartis v. Harbor Tech, LLC, 147 A.D.3d 51, 57, 45 N.Y.S.3d 116 ; see L 1985, ch 888, § 2; Administrative Code of City of N.Y. § 26–511; Rent Stabilization Assn. of N.Y. City v. Higgins, 83 N.Y.2d 156, 165, 608 N.Y.S.2d 930, 630 N.E.2d 626 ).

In 1987, the DHCR promulgated Rent Stabilization Code § 2523.5(b)(1), which gives certain family members residing with named tenants of rent-stabilized units succession rights when a named tenant vacates the unit. The DHCR did this in order to protect those who, in its "experience as sole administrator of residential rent regulation and adjudicator of eviction disputes, are most in need of protection against loss of their homes in a continuing housing emergency" ( Rent Stabilization Assn. of N.Y. City v. Higgins, 83 N.Y.2d at 170, 608 N.Y.S.2d 930, 630 N.E.2d 626 ). The regulation was later codified by the New York State Legislature as Public Housing Law § 14(4)(a). Regulations providing for succession rights "serve the important remedial purpose of preventing dislocation of long-term residents due to the vacatur of the head of household" ( Matter of Murphy v. New York State Div. of Hous. & Community Renewal, 21 N.Y.3d 649, 653, 977 N.Y.S.2d 161, 999 N.E.2d 524 ). The regulation " ‘should be liberally construed to carry out the reform intended and spread its beneficial effects as widely as possible’ " ( Festa v. Leshen, 145 A.D.2d 49, 56, 537 N.Y.S.2d 147, quoting Lesser v. Park 65 Realty Corp., 140 A.D.2d 169, 173, 527 N.Y.S.2d 787 ).

Rent Stabilization Code § 2523.5(b)(1) and Public Housing Law § 14(4)(a) provide that if an offer to renew a rent-stabilized lease is made to a tenant who has "permanently vacated" the housing accommodation,

"any member of such tenant's family ... who has resided with the tenant in the housing accommodation as a primary residence for a period of no less than two years, or where such person is a ‘senior citizen,’ or a ‘disabled person’ ..., for a period of no less than one year, immediately prior to the permanent

vacating of the housing accommodation by the tenant, or from the inception of the tenancy or commencement of the relationship, if for less than such periods, shall be entitled to be named as a tenant on the renewal lease" ( 9 NYCRR 2523.5 [b][1]; see Public Housing Law § 14[4][a] ).

Here, Georgetown contends that although Scherley moved out of the apartment in 2008, and never resided there again, Scherley did not "permanently vacate" the apartment at that time because she continued to pay the rent and, in September 2009, executed a renewal lease for a term ending December 31, 2011. Georgetown contends that Scherley only permanently vacated the apartment when the last lease renewal expired on December 31, 2011. Although Scherley's mother Marie has resided in the apartment from the outset of Scherley's tenancy in 2003 to the present, Georgetown contends that Marie was not entitled to succession...