Kingston Heights Apartments v. Hurdle

• Decision Date: 07 April 2017
• Docket Number: No. LT73668/16.,LT73668/16.
• Citation: 58 N.Y.S.3d 874 (Table)
• Parties: KINGSTON HEIGHTS APARTMENTS, Petitioner, v. Laquisha HURDLE, Respondent.
• Court: New York Civil Court

58 N.Y.S.3d 874 (Table)

KINGSTON HEIGHTS APARTMENTS, Petitioner,

v.Laquisha HURDLE, Respondent.

No. LT73668/16.

Civil Court, City of New York, Kings County.

April 7, 2017.

Gutman Mintz Baker & Sonnenfeldt, PC, New Hyde Park.

Vance Gathing, Esq., Veterans Justice Project of Brooklyn Legal Services, Brooklyn.

SUSAN F. AVERY, J.

BRIEF HISTORY

Petitioner commenced this proceeding based upon the contention that the "[r]espondent Laquisha Hurdle entered into occupancy of the premises without the knowledge, consent or permission of the [l]andlord.... Moreover, it is believed that they (sic ) entered into occupancy pursuant to a license granted by the preceding tenant of record, Sharon Tribble, who is deceased"¹ and that said license was terminated upon the death of the tenant of record.² The premises which is the subject of this action is 28 MacDonough Street, Apartment 3K, Brooklyn, New York 11216.

It is petitioner's contention that the "tenant of record, Sharon Tribble, died on or about April 1, 2016"³ and that the "[r]espondent is not an immediate family member of the deceased tenant, or if [r]espondent is a family member, [r]espondent was not listed on the income recertification and/or did not reside with the prior tenant, for the two years prior to the death of the tenant of record, nor has [r]espondent's occupancy received approval from the Department of Housing and Urban Development [ ("HUD") ] and/or the landlord."⁴

Respondent appeared through counsel and filed an answer, which included numerous defenses, including a succession defense.

The premises which is the subject of this action, is subject to the "project based" section 8 subsidy which is overseen by HUD.⁵

THE INSTANT APPLICATION

By notice of motion dated September 15, 2016, respondent seeks an order dismissing the instant proceeding based on the contention that she is the successor tenant to the tenant of record, who is her mother or alternatively dismissing the proceeding because the petitioner failed to follow HUD prerequisites prior to commencing the instant action.

Petitioner opposes the motion.

RESPONDENT'S ARGUMENTS IN SUPPORT: SUCCESSION CLAIMS

The respondent asserts that she is a disabled veteran⁶ and has been residing at the premises which is the subject of this action since 1985.⁷ She states that since she initially moved into the subject premises in 1985, she has never had any other address except the subject premises. The respondent also states that during her tours of active military duty she did receive correspondence at Army base(s) at which she was stationed.⁸ The respondent also states that the petitioner did not properly name her in this proceeding, as her name is Laclesha Tribble.⁹ Indeed, annexed to the respondent's moving papers as exhibit 8, is a copy of her birth certificate, which clearly shows that the respondent's birth name is Laclesha Tribble. As Ms. Laclesha Tribble is entitled to be addressed by her proper name, this court will refer to her as Ms. Laclesha Tribble, movant or respondent.

In support of her assertions that she has continuously resided at the subject premises, since 1985, Ms. Laclesha Tribble annexes a health care proxy dated July 14, 2015, executed by her mother, the tenant of record, appointing the respondent as her mother's health care agent. The document states that Ms. Laclesha Tribble's address is "28 MacDonough Street, Apartment 3K, Brooklyn, New York."¹⁰ Respondent also annexes a letter from the Department of Veterans Affairs ("DVA") dated September 8, 2016, summarizing the benefits that she has earned as a result of her service to this country. The letter is addressed to her at 28 MacDonough Street, Apartment 3K, Brooklyn, New York and states that the letter is provided "to assist disabled veterans when applying for benefits."¹¹ The letter also states that her disabilities are 80% related to her service of this country.¹²

Respondent also attaches a "dd 204" form which is generated upon her completion of service. The document is dated August 1, 2014.¹³ The document states that the respondent's "home of record at time of entry" into service was: "28 MacDonough Street, Brooklyn, New York 11216"¹⁴ and that the date her tour of duty commenced was July 26, 2007.¹⁵ The document also states that she separated from her final tour of duty on August 29, 2014.¹⁶ The document also lists the respondent's mailing address, after her separation from service as "28 MacDonough Street, Brooklyn, New York 11216."¹⁷ Additionally, the document lists Ms. Sharon Tribble as respondent's "nearest relative"¹⁸ and lists Ms. Sharon Tribble's address as "28 MacDonough Street, Brooklyn, New York 11216."¹⁹ Additionally, the document states that upon her separation from service, Ms. Laclesha Tribble was honorably discharged²⁰ and that during her service she was awarded numerous commendations, medals and decorations.²¹

Additional documents annexed to the respondent's motion, all contained within exhibit 12, which all list her address as "28 MacDonough Street, Brooklyn, New York 11216" include a DVA "Certificate of Eligibility" dated January 14, 2015; a DVA claims decision dated April 16, 2015; a DVA payment stub dated March 21, 2016; a letter from the Defense Finance Accounting Service dated June 9, 2015; a letter from the Secretary of Veterans Affairs dated December 21, 2014, thanking her for her service; a bank statement dated January 4, 2014; a letter from DVA dated February 26, 2015; a letter from USAA Federal Savings Bank dated January 8, 2014 regarding a completed investigation; as well as additional bank account statements for periods from February 2015 through April 2016.

Also annexed to the respondent's exhibit 12 is a bill requesting payment for renters and automobile insurance dated July 18, 2010 addressed to "Laclesha W Tribble SGT USA" at "28 MacDonough Street, Brooklyn, New York 11216."

Respondent asserts that she is entitled to succeed to her mother's tenancy as she has resided at the premises since 1985, when her mother initially entered possession of the premises. It is respondent's contention that her temporary absence from the premises when she was on active military duty serving our country, does not negatively affect her residency at 28 MacDonough Street. Respondent also attaches an affidavit from a childhood friend who states: "I have been a close friend of Laclesha Tribble since we were 12 years old. I see her at least weekly and also saw her mother regularly until she passed.²² Sharon Tribble and her daughter, Laclesha Tribble, lived together at 28 MacDough Street No.3K in Brooklyn New York until Laclesha's mother pass[ed] and except during her enlistment in the Army.... Laclesha Tribble has lived at 28 MacDonough Street, # 3K, and nowhere else."²³

Respondent also argues that because she is disabled, she was only required to reside with the tenant of record, her mother, for a one (1) year period prior to her mother's passing.

PETITIONER'S OPPOSITION

It is petitioner's contention that the respondent's motion for summary judgment must be denied. Petitioner asserts that the respondent has failed to state a claim for succession. Alternatively, the petitioner argues that issues of fact as to the respondent's succession defense have been raised, which precludes granting summary judgment in the respondent's favor.

Petitioner contends that the respondent is not entitled to succeed to the premises following the death of her mother because she was never listed on the yearly income recertifications that her mother submitted to management, and that the documentation annexed to the respondent's motion is insufficient to demonstrate that the respondent is entitled to succeed to the premises.²⁴

The petitioner argues that the respondent "failed to prove that the subject premises was her primary residence prior to entering the military service ..."²⁵ and failed to provide "any proof regarding her residency in 2002 prior to her enlisting in military service."²⁶ It is the petitioner's assertion that because her last tour of duty terminated in August of 2014, and the tenant of record passed away in April of 2016, respondent's succession defense fails because the respondent is unable to demonstrate that she resided at the premises with her mother for the statutorily required two (2) year minimum period.²⁷

Annexed to the petitioner's opposition, are the following exhibits: exhibit 1, which is a copy of a lease agreement dated April 21, 2010, which is addressed to Ms. Sharon Tribble at the subject premises, and also signed by Ms. Sharon Tribble; exhibit 2, which is a copy of a document entitled "Owner's Certification of Compliance with HUD's Tenant Eligibility and Rent Procedures" and is dated January 17, 2014; exhibit 3, which is a copy of a document entitled "Lease Agreement" dated March 1, 2016; exhibit 4, which is a copy of a document entitled "Owner's Certification of Compliance with HUD's Tenant Eligibility and Rent Procedures" dated January 21, 2016. The court notes, and it is not disputed, that the documents relate to Ms. Sharon Tribble and make no mention of Ms. Laclesha Tribble.

Additionally, annexed to the petitioner's opposition as exhibit 5 is a copy of a document from the "U.S. Department of Housing and Urban Development" ("HUD Handbook") "Issued: March 30, 2010" and "Expires: March 31, 2011" and the stated "SUBJECT" (sic ) of the document is "Effective Use of the Enterprise Income Verification (EIV) System's Deceased Tenants Report to Reduce Subsidy Payment & Administrative Errors." In its supplemental opposition, the petitioner annexes the updated and unexpired HUD Handbook.

Annexed to the petitioner's opposition as exhibit 6, are copies of the pleadings, predicate notices and service affidavits; and annexed to the petitioner's opposition as exhibit 7 are two (2) documents. The first document is one (1) page and the second document is three (3) pages. The one (1) page document bears the heading "Shinda Management Corporation" and...